text
stringlengths 1
1.21M
| meta
dict |
|---|---|
505 S.W.2d 582 (1974)
Jackie Albert CLEMONS, Appellant,
v.
The STATE of Texas, Appellee.
No. 48022.
Court of Criminal Appeals of Texas.
February 13, 1974.
Rehearing Denied March 6, 1974.
*583 Billy J. Earley, Nacogdoches, for appellant.
Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is robbery; the punishment, one hundred fifty (150) years.
Appellant first contends that he was placed on trial to an indictment which had been dismissed. The record reflects that count two of the indictment which charged a prior conviction alleged for enhancement was ordered dismissed prior to trial and the primary count charging this offense remained. When this case was called for trial appellant made no further objection to the indictment. Ground one is overruled. Yeagin v. State, Tex.Cr.App., 400 S.W.2d 914.
He next contends that his confession was improperly admitted in evidence. There is no assertion of duress, either physical or mental. Appellant was confined approximately one hour before he confessed. The trial judge held a "Jackson v. Denno"[1] hearing and made findings and conclusions that the appellant was duly warned and that the confession was voluntary and admissible. Appellant asserts that he did not voluntarily waive his right to counsel. Officer Barlow testified that he warned appellant that he had a right to have an attorney during questioning and appellant stated that he did not want an attorney present prior to the statement or during the statement.
Appellant merely asserts that he was given no warning at all.
In McCandless v. State, 425 S.W.2d 636, which is also applicable to the case at bar, we said:
"We find nothing in the record that would support a finding that this appellant was threatened, tricked, or cajoled into a waiver. There does not appear to be any question of physical or psychological coercion.... There is further no showing of incommunicado incarceration which would mitigate against the finding of a valid waiver.
"While the `waiver' was not here demonstrated by the prosecution in the most effective or desirable manner, we feel when the `totality of the circumstances' are considered the evidence is sufficient to show that the state has discharged its *584 burden and the appellant made a constitutionally permissible waiver as required by Miranda."
See also Pete v. State, Tex.Cr.App., 471 S.W.2d 841.
Ground of error number three alleges that the arresting officers did not have probable cause to arrest appellant and that the pistol, money and clothing seized were inadmissible. In the robbery the attendant was shot one time with a .22 calibre bullet from which he died and $453.00 was taken from the cash register. When arrested appellant had a total of $201.00 consisting of an unusual amount of quarters and nickels on his person and a .22 calibre pistol with one spent shell was found under the bed where he was sleeping. Clothing similar to that described by the eyewitness was also recovered.
Appellant relies upon Barnes v. State, 390 S.W.2d 266, which was reversed by this Court upon remand from the Supreme Court of the United States. Barnes is not controlling because in addition to the pistol, money and clothing we have eyewitness identification plus a voluntary confession. Recently in Bridger v. State, 503 S. W.2d 801 (1974), we held, as we do here, that where there was a voluntary confession plus eyewitnesses to the crime that the admission of the fruits of an illegal search was harmless beyond a reasonable doubt and would not call for a reversal of the conviction. The confession details the robbery including the taking of the money by means of the pistol.
Ground of error number four is that the court erred in permitting the witness Arnold to identify appellant as one of the robbers because of alleged improper viewing of pictures and of appellant at a police showup.
Arnold was visiting with the night attendant McDaniel at Billups Service Station on the night in question at some time prior to the robbery. He watched appellant and his companion who came to the station for approximately thirty minutes prior to the robbery, observed the manner of their dress and actually witnessed appellant's co-defendant's participation in the robbery. After the attendant was shot and the robbers departed, Arnold told the police whom he summoned that appellant was of medium build (Arnold's size) and was wearing a green shirt and dark pants. All of this occurred after 2:00 a. m. and by 8:00 a. m. appellant and his companion had been arrested. Arnold was shown approximately fifty photographs and picked out appellant and his co-defendant Sexton. Later that morning Arnold identified them when they were brought to the police station. Appellant's companion Sexton was first placed on trial and at that time Arnold was certain of his identification of Sexton, but did not identify appellant. However, at this trial Arnold was positive in his identification of appellant and sure that he was not influenced by the pictures shown him or by viewing appellant at the police station. Arnold never identified anyone other than appellant and Sexton as the robbers. Recently in Cunningham v. State, 500 S.W.2d 820, we had a case in which a witness who had been uncertain as to identification at an examining trial was positive at the trial on the merits which is comparable to Arnold's testimony here. In the case at bar, however, we have appellant's confession. We have concluded that Arnold's testimony was admissible.
Finding no reversible error, the judgment is affirmed.
NOTES
[1] 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.
| {
"pile_set_name": "FreeLaw"
} |
366 B.R. 894 (2007)
David G. VELDE, Plaintiff,
v.
Hans REINHARDT, Defendant.
David G. Velde, Plaintiff,
v.
Howard Steinmetz, Defendant.
David G. Velde, Plaintiff,
v.
Flywheel Grain, LLP, and Bill Hess, Defendants.
Nos. 06-2289 RHK/RLE, 06-2305 RHK/RLE, 06-3224 RHK/RLE.
United States District Court, D. Minnesota.
January 25, 2007.
*895 *896 Justin P. Weinberg, Michael S. Dove, Mary Kay Mages, Gislason & Hunter LLP, New Ulm, for Plaintiff.
John R. Brakke, Caren L. Stanley, Vogel Law Firm, Fargo, ND, for Defendants Hans Reinhardt, Flywheel Grain, LLP, and Bill Hess.
David L. Johnson, McNair, Larson & Carlson, Ltd., Fargo, ND, for Defendant Howard Steinmetz.
MEMORANDUM OPINION AND ORDER
KYLE, District Judge.
INTRODUCTION
These three bankruptcy adversary proceedings arise out of payments made by Daniel Miller to Defendants Hans Reinhardt (Civ. No. 06-2289), Howard Steinmetz (Civ. No. 06-2305), and Flywheel Grain, LLP and Bill Hess (Civ. No. 06-3224). Plaintiff David Velde, the Trustee of Miller's bankruptcy estate, seeks to recover the payments as preferential and fraudulent transfers under the Bankruptcy Code. Presently before the Court are the parties' cross-motions for summary judgment in each of the three cases, which the Court treats as cross-motions for partial summary judgment.[1] For the reasons set forth below, the Court will deny the Trustee's motions and grant in part and deny in part Defendants' cross-motions.
BACKGROUND
Miller previously owned Danielson Grain, a crop-storage elevator in East Grand Forks, Minnesota. In that capacity, Miller bought, sold, and stored crops.
On February 3, 2004, an involuntary Chapter 7 bankruptcy petition was filed against Miller in the United States Bankruptcy Court for the District of Minnesota. Miller subsequently converted the involuntary petition to a case under Chapter 11.[2] On September 29, 2004, the Bankruptcy, Court converted the matter back to a Chapter 7 case and appointed Velde as the Trustee of Miller's bankruptcy estate.
The Trustee then commenced several adversary proceedings including the three cases sub judice seeking to recover the value of several checks Miller issued in the 90-day period prior to February 3, 2004. The instant Defendants demanded trials by jury and did not consent to jury trials before the Bankruptcy Court. Accordingly, the Bankruptcy Court ordered *897 the actions transferred to this Court. See 28 U.S.C. § 157(e).
In pertinent part, the following facts in these cases appear to be undisputed and are substantially similar:
1. The Reinhardt action: Miller issued a check for $100,332.75 in December 2003 payable to Reinhardt and to his bank in order to pay for canola that Reinhardt had previously delivered to Miller.[3] The check bounced, and Miller partially replaced it on January 9, 2004, with a $50,000 bank check. The funds for the bank check came from Miller's bank account.
2. The Steinmetz action: Miller issued a check for $12,000 in October 2003 payable to Steinmetz and to his bank in order to pay for wheat that Steinmetz had previously delivered to Miller. The check bounced, and Miller replaced it on November 5, 2003, with a $12,500 bank check.[4] The funds for the bank check came from Miller's bank account.
3. The Flywheel Grain action: Miller issued two checks totaling approximately $300,000 in November 2003 payable to Flywheel Grain and its bank in order to pay for grain and soybeans that Flywheel Grain had previously delivered to Miller. The checks bounced, and Miller replaced them on December 23, 2003, with two bank checks totaling $300,000. The funds for the two banks checks came from Miller's bank account.[5]
The Trustee now moves for summary judgment in each of these cases. He argues that Defendants must repay to the bankruptcy estate the value of the replacement checks because they constitute "avoidable" transfers under 11 U.S.C. § 547(b), the "preferences" statute. Defendants have cross-moved for summary judgment, arguing that exceptions to the preferences statute apply and, accordingly, that the transfers are not "avoidable."
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the non-moving party, 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that the material facts in the case are undisputed. Id. at 322, 106 S.Ct. 2548; Mems v. City of St. Paul, Dep't of Fire & Safety Servs., 224 F.3d 735, 738 (8th Cir.2000). The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the non-moving party. Graves v. Ark. Dep't of Fin. & Admin., 229 F.3d 721, 723 (8th Cir.2000); Calvit v. Minneapolis Pub. Schs., 122 F.3d 1112, 1116 (8th Cir.1997). The non-moving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995).
ANALYSIS
I. Each transfer satisfies the elements of Section 547(b)
A bankruptcy trustee may "avoid" a transfer made to or on behalf of a creditor *898 on or within 90 days of the filing of a bankruptcy petition, if(1) the debtor was insolvent on the date of the transfer, (2) the transfer was for an antecedent debt, and (3) the transfer allowed the creditor to receive more than it would have received in a Chapter 7 liquidation. 11 U.S.C. § 547(b); Peltz v. Edward C. Vancil, Inc. (In re Bridge Info. Sys., Inc.), 474 F.3d 1063, ____, 2007 WL 57597, at *3 (8th Cir. Jan.10, 2007). An "avoided" transfer may be recovered by the trustee. See 11 U.S.C. § 550(a).
Here, the Trustee has established all of the prerequisites to avoidability with respect to the transfers at issue. First, all of the transfers clearly occurred within 90 days of February 3, 2004, when the involuntary bankruptcy petition was filed against Miller, and all were on account of antecedent debts[6] owed to creditors, namely, Defendants.[7] Second, a debtor is presumed to have been insolvent during the 90-day period immediately prior to the filing of a bankruptcy petition, see 11 U.S.C. § 547(f), and Defendants have proffered no evidence to rebut that presumption here. Third, it is "generally well settled that unless creditors would receive a 100% payout, any unsecured creditor who receives a payment during the preference period is in a position to receive more than it would have received under a Chapter 7 liquidation." Hoffinger Indus., Inc. v. Bunch (In re Hoffinger Indus., Inc.), 313 B.R. 812, 827 (Bankr. E.D.Ark.2004) (internal quotation marks and citations omitted); accord Still v. Rossville Bank (In re Chattanooga Wholesale Antiques, Inc.), 930 F.2d 458, 465 (6th Cir.1991); Zachman Homes, Inc. v. Oredson (In re Zachman Homes, Inc.), 40 B.R. 171, 173 (Bankr.D.Minn.1984). Here, the Trustee notes that when Miller converted the involuntary Chapter 7 bankruptcy petition into a Chapter 11 case, he submitted documents stating that he had over $5 million in liabilities and less than $3 million in assets, thereby clearly indicating that Miller's creditors would not receive a 100% payout. (See, e.g., Trustee's Reinhardt Mem. at 5.) Thus, the Trustee has established that the transfers allowed Defendants to receive more than they would have received in a Chapter 7 liquidation, and Defendants do not argue otherwise.
Accordingly, the Trustee has established each of the elements to avoidability set forth in 11 U.S.C. § 547(b) with respect to the transfers at issue.
II. The "contemporaneous-exchange-for-new-value exception" applies
Although they largely concede that the transfers at issue satisfy the requirements for avoidability under Section 547(b), Defendants argue that the "contemporaneous-exchange-for-new-value *899 exception" applies and that this exception precludes the Trustee from avoiding the transfers. The contemporaneous-exchange-for-new-value exception is codified in 11 U.S.C. § 547(c), which states in pertinent part:
(c) The Trustee may not avoid under this section a transfer
(1) to the extent that such transfer was
(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and.
(B) in fact a substantially contemporaneous exchange.
Defendants argue that this exception applies here because the commodities they sold to Miller were subject to security interests held by their banks. For this reason, the checks Miller issued to pay for the commodities were made payable both to Defendants and to the banks, in order to extinguish the banks' security interests.[8] According to Defendants, this renders each of the checks a contemporaneous exchange for new value, with the "new value" being the release of the banks' security interests in the commodities. (see Reinhardt Mem. at 6-11; Steinmetz Mem. at 4-9; Flywheel Grain Mem. at 9-14.)
Defendants are correct that a third-party's release of its security interest in items purchased by a debtor may constitute a contemporaneous exchange for new value. Indeed, this Court previously reached that conclusion in a separate adversary proceeding in Miller's bankruptcy case. See Velde v. Nikle Farms, Inc., No. 05-795, 2006 WL 1228850, at *9 (D.Minn. May 5, 2006) (Kyle, J.). The Trustee argues that Nikle Farms is distinguishable, however, because that case did not involve bounced checks. According to the Trustee, because the checks originally issued to pay for Defendants' commodities bounced, the nature of the transactions differs from that in Nikle Farms and renders the contemporaneous-exchange-for-new-value exception inapplicable. (See, e.g., Trustee's Flywheel Grain Mem. at 11.)[9] Although the Court agrees that Nikle Farms is not controlling, it concludes that the contemporaneous-exchange-for-new-value exception nevertheless applies.
The Trustee first argues that each bank's release of its lien upon receipt of the replacement check(s) cannot have been "new value" as a matter of law. (See, e.g., Trustee's Flywheel Grain Reply Mem. at 6.) In support of this argument, the Trustee points to the Bankruptcy Code's definition of "new value," which expressly excludes "an obligation substituted for an *900 existing obligation." (See id. (citing 11 U.S.C. § 547(a)(2)).) But the replacement checks issued by Miller which are what the Trustee argues were the "obligation[s] substituted for . . . existing obligation[s]" cannot have been "new value," because that term (in the context of the contemporaneous-exchange-for-new-value exception) refers to the property or other benefit received by the debtor, not the property transferred by the debtor. See 11 U.S.C. § 547(c)(1)(A) (trustee cannot avoid contemporaneous exchange "for new value given to the debtor") (emphasis added). In other words, the Trustee appears to have confused the replacement checks Miller issued the "transfers" the Trustee now seeks to recover with the "new value" Miller received, viz., the release of the banks' security interests.
The Trustee next argues that a "brightline rule" exists in a bounced-check situation: "[W]hen a bounced check is given by the debtor in exchange for new value provided by a creditor, any subsequent payment to make good the bad check is not a contemporaneous exchange for new value." (See, e.g., Trustee's Steinmetz Mem. at 11 (quoting Morrison v. Champion Credit Corp. (In re Barefoot), 952 F.2d 795, 800 (4th Cir.1991)).) At first glance, this argument appears to have merit. Upon closer inspection, however, it becomes clear that the Trustee's argument must fail under the facts of this case.
In Morrison, the debtor received "new value" title certificates for mobile homes on the date upon which the original, bounced checks were received by the creditor. Accordingly, the subsequent replacement of those bounced checks with wire transfers could not have been "contemporaneous" with the "new value" the debtor had received. See Morrison, 952 F.2d at 800. In ruling that the creditor could not invoke the contemporaneous-exchange-for-new-value exception, the Morrison court stated:
The exception for a contemporaneous exchange does not ordinarily apply to credit transactions, and the dishonor of a check inevitably creates an antecedent debt owed by the debtor which any subsequent payments to make good the check, no matter how quickly made, would be satisfying. Unlike the case of an honored check or a cash payment where there is only one exchange between the debtor and creditor, the case of a dishonored check involves multiple exchanges and thus assumes the character of a credit transaction: the debtor gives the bad check, which in this context is the functional equivalent of a promissory note, followed by one or more payments to make good the check. The dishonor of a check, therefore, defeats the actual achievement of a contemporaneous exchange for new value, and we conclude that any payments to make good a bounced check cannot qualify as transfers to which the contemporaneous exchange exception applies.
Id. Key to the court's holding, therefore, was the lack of contemporaneousness between the replacement of the bounced checks and the value received by the bankruptcy estate in exchange therefor; in the absence of such contemporaneousness, the exception simply did not apply. Id. at 800 & n. *. The other cases upon which the Trustee relies all reached the same result.[10]
The facts of this case stand in stark contrast to the cases cited by the Trustee. *901 Here, Miller did receive "new value" at the time he issued the replacement checks because those checks and only those checks extinguished the banks' liens on the commodities Miller had purchased. Indeed, under the Food Security Act, the release of the banks' security interests occurred only when Miller made "payments" for the commodities he had received. See 7 U.S.C. § 1631(e)(3)(B). The bounced checks Miller issued to Defendants cannot have been "payments" under the Act; to hold otherwise would "giv[e] operative legal significance `to bad checks," which would "undermine . . . Congress's purposes for § 547(b)." Morrison, 952 F.2d at 798; accord In re Stewart, 274 B.R. at 514. Rather, it was only after Miller issued the replacement checks that the banks' security interests were released, and it was those releases that constituted the "new value" received by him. Thus, the necessary contemporaneousness between the transfers (the replacement checks) and the new value (the banks' releases of their liens) exists here. The cases cited by the Trustee, therefore, are inapposite, and the contemporaneous-exchange-for-new-value exception applies to the transfers at issue.[11]
For all these reasons, the Court concludes that Section 547(c)(1)'s contemporaneous-exchange-for-new-value exception applies and that the Trustee cannot avoid the transfers under Section 547 of the Bankruptcy Code.[12]
III. The remainin claims
Having concluded that the transfers at issue are not avoidable under Section 547, the Court pauses briefly to discuss its holding in the context of the claims pled by the Trustee.
Each Complaint in these cases asserts four claims against the Defendant: that the transfer at issue is avoidable under 11 U.S.C. § 547 (Count I) and § 548 (Count II); that, because the transfer is avoidable, it is recoverable by the Trustee under 11 U.S.C. § 550 (Count III); and that, pursuant to 11 U.S.C. § 502(d), any claim by the Defendant against Miller's bankruptcy estate must be disallowed, until the avoidable transfer is repaid (Count IV). As set forth above, the Court concludes that the transfers at issue are not avoidable preferences under Section 547 of the Bankruptcy Code. Accordingly, each Defendant is entitled to summary judgment on Count I of the Complaint.[13]
However, this does not mean that Defendants also are entitled to summary judgment on Counts II, III, and IV. Indeed, while the parties purport to seek summary judgment on all of the claims in the Complaints, no party has sought summary judgment on or even mentioned the Trustee's claims under Section 548 of *902 the Bankruptcy Code (Count II), the "fraudulent transfers" section. And, if the Trustee were to succeed on his claims under Section 548, his claims under Section 550 (Count III) and Section 502 (Count IV) also would be successful. Accordingly, the Court will grant summary judgment in Defendants' favor only on Count I of the Complaints and in all other respects deny the Motions.[14]
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, it is ORDERED as follows:
1. In Case No. 06-2289, Velde v. Reinhardt, Plaintiffs Motion for Summary Judgment (Doc. No. 7) is DENIED. Defendant's Cross-Motion for Summary Judgment (Doc. No. 19) is GRANTED IN PART and DENIED IN PART, and Count I of Plaintiffs Complaint is DISMISSED WITH PREJUDICE;
2. In Case No. 06-2305, Velde v. Steinmetz, Plaintiffs Motion for Summary Judgment (Doc. No. 10) is DENIED. Defendant's Cross-Motion for Summary Judgment (Doc. No. 22) is GRANTED IN PART and DENIED IN PART, and Count I of Plaintiffs Complaint is DISMISSED WITH PREJUDICE; and
3. In Case No. 06-3224, Velde v. Flywheel Grain and Bill Hess, Plaintiffs Motion for Summary Judgment (Doc. No. 4) is DENIED. Defendants' Cross Motion for Summary Judgment (Doc. No. 20) is GRANTED IN PART and DENIED IN PART, and Count I of Plaintiffs Amended Complaint[15] is DISMISSED WITH PREJUDICE.
NOTES
[1] As discussed in more detail below (see infra at 12-13), no party has moved for summary judgment on the Trustee's fraudulent transfer claims.
[2] Generally speaking, a Chapter 7 case involves the liquidation of a debtor's assets, while a Chapter 11 case involves a debtor's reorganization. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 389, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
[3] The bank was listed as a payee in order to extinguish its security interest in the canola Reinhardt had sold to Miller.
[4] The additional $500 apparently covered bank charges resulting from the bounced check. (Trustee's Steinmetz Mem. at 2.)
[5] These replacement checks were made payable to Bill Hess, one of Flywheel Grain's partners, rather than to Flywheel Grain. (Trustee's Flywheel Grain Mem. at 2.)
[6] An "antecedent debt" is a debt "incurred before the allegedly preferential transfer." In re Bridge Info. Sys., 474 F.3d at ___, 2007 WL 57597, at *3. A debt is "incurred" on "the date upon which the debtor first becomes legally bound to pay." Id. Here, Miller became bound to pay on the dates that the grain or other commodities were delivered by Defendants, all of which occurred before the replacement checks were issued.
[7] Defendant Hess argues that he was not a creditor of Miller and that he is entitled to summary judgment on this basis. (Flywheel Grain Mem. at 6-8.) This argument is meritless. A transfer cannot be shielded from the Trustee's avoidance powers simply because the transferee was not a creditor of the debtor. Indeed, in order for a transfer to qualify as a preference under Section 547, the transfer must have been made "to or for the benefit of a creditor." 11 U.S.C. § 547(b)(1) (emphasis added). The fact that Hess was not a creditor of Miller is therefore of no moment, because there is no dispute that Hess received the replacement check for the benefit of Flywheel Grain (see Defendants' Answer to Amended Complaint ¶ VIII (civ. no. 06-3224)), admittedly one of Miller's creditors (see id. ¶ VII).
[8] The replacement check issued to Reinhardt omitted his bank as a payee. According to Miller, that omission "was a simple oversight." (Miller Aff. ¶¶ 4-5.) Regardless, there is no dispute that Reinhardt endorsed the check and delivered it to his bank in order to extinguish the bank's lien on the crops he had sold to Miller. (See Reinhardt Mem. at 4; Reinhardt Aff. ¶ 7.) Nor is there any dispute that the replacement checks were intended to extinguish, and did extinguish, the bank's lien. (see Reinhardt Mem. at 2; Reinhardt Aff. ¶ 7.)
[9] Several Defendants argue that Nikle Farms collaterally estops the Trustee from challenging the applicability of the contemporaneous-exchange-for-new-value exception. (See Reinhardt Mem. at 14-15; Flywheel Grain Mem. at 17-18.) The issue of whether the exception applies in the context of a bounced check, however, did not arise, in Nikle Farms. Accordingly, collateral estoppel does not preclude the Trustee from arguing that the exception is inapplicable here. See Canady v. Allstate Ins. Co., 282 F.3d 1005, 1016 (8th Cir.2002) (collateral estoppel does not apply when "the issue sought to be precluded is [not] identical to the issue previously decided").
[10] See Endo Steel, Inc. v. Janas (In re JWJ Contracting Co.), 371 F.3d 1079, 1082 (9th Cir.2004); Stewart v. Barry County Livestock Auction, Inc. (In re Stewart), 274 B.R. 503, 512 (Bankr.W.D.Ark.2002), aff'd, 282 B.R. 871 (8th Cir. BAP 2003); Goger v. Cudahy. Foods Co. (In re Standard Food Servs., Inc.), 723 F.2d 820, 821 (11th Cir.1984).
[11] The Trustee directs the Court's attention to a recent decision by the Minnesota Bankruptcy Court in another adversary proceeding in Miller's bankruptcy case. There, the court considered, but rejected, the application of the contemporaneous-exchange-for-new-value exception on nearly identical facts to this case. See Velde v. Kirsch (In re Miller), No. 06-6086, 2006 WL 2623882, at *2-4 (Bankr. D.Minn. Aug.29, 2006). As the Trustee conceded at oral argument, however, Kirsch is not binding on this Court. Moreover, Kirsch contains no discussion of the Food Security Act or the fact that the "new value" at issue here was received by Miller only in exchange for the replacement checks. Accordingly, the Court declines to follow Kirsch.
[12] As a result, it is unnecessary to consider the applicability of the "forward-contract exception" in Section 546(e) of the Bankruptcy Code, which several Defendants raise.
[13] This includes Defendant Flywheel Grain, which "cross" moved for summary judgment even though the Trustee did not seek summary judgment against it.
[14] The Court notes that the avoidance exceptions raised by Defendants in connection with the instant Motions do not apply to the Trustee's claims under Section 548. The contemporaneous-exchange-for-new-value exception is expressly limited to claims under Section 547(b). See 11 U.S.C. § 547(c) ("The trustee may not avoid under this section a transfer. . . .") (emphasis added). And, while the "forward-contract exception" in Section 546(e) applies to claims under Section 548(a)(1)(B) of the Bankruptcy Code, the Trustee has pleaded claims under Section 548(a)(1)(A), a different sub-section of Section 548. (See Steinmetz Compl. ¶ 16; Reinhardt Compl. ¶ 16; Flywheel Grain Am. Compl. ¶ 16.)
[15] The Amended Complaint, which was filed in the Bankruptcy Court before this action was transferred to this Court, is appended to the original Complaint as part of Docket Entry No. 1.
| {
"pile_set_name": "FreeLaw"
} |
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 19 MAL 2019
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
KHAILYL A. CHAMBERS, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 15th day of July, 2019, the Petition for Allowance of Appeal is
DENIED.
| {
"pile_set_name": "FreeLaw"
} |
FILED
NOT FOR PUBLICATION JAN 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALFREDO RUIZ MARTINEZ, No. 09-70885
Petitioner, Agency No. A079-535-463
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Alfredo Ruiz Martinez, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by
8 U.S.C. § 1252. We review de novo due process claims. Ram v. INS, 243 F.3d
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
510, 516 (9th Cir. 2001). We dismiss in part and deny in part the petition for
review.
We lack jurisdiction to consider Ruiz Martinez’s contentions that neither the
IJ nor his former attorney elicited testimony regarding his entry date because he
did not exhaust these claims before the BIA. See Barron v. Ashcroft, 358 F.3d 674,
677-78 (9th Cir. 2004) (this court lacks jurisdiction to review contentions not
raised before the agency).
Ruiz Martinez’s contention that the IJ failed to ascertain whether the
withdrawal of his cancellation of removal application was knowing and voluntary
is not supported by the record.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2 09-70885
| {
"pile_set_name": "FreeLaw"
} |
Filed 7/29/14 P. v. Arnott CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
THE PEOPLE, C074275
Plaintiff and Respondent, (Super. Ct. Nos. 11F2332,
11F7992, & 13F0495)
v.
PAUL C. ARNOTT,
Defendant and Appellant.
In February 2013 defendant Paul C. Arnott entered no contest pleas in three
superior court cases. In case No. 11F2332, he pleaded to forgery (Pen. Code, § 470,
subd. (d))1 and identity theft (§ 530.5). In case No. 11F7992, he pleaded to failure to
appear in court on the previous case. (§ 1320, subd. (b).) In case No. 13F495, he pleaded
to evading the police with disregard for public safety. (Veh. Code, § 2800.2.) Defendant
admitted that he committed the evading offense while released from custody in the two
1 Undesignated statutory references are to the Penal Code.
1
previous cases. (§ 12022.1.) He also admitted having served a prior prison term.
(§ 667.5, subd. (b).) In exchange, two misdemeanor counts and four prison term
allegations were dismissed. Defendant entered a Harvey2 waiver for restitution in an
unfiled matter.3
Defendant was sentenced to prison for seven years four months, awarded 83 days’
custody credit and 83 days’ conduct credit, ordered to pay various fines and fees, and
ordered to make restitution to his victims including $1,677.45 to the Shasta County
District Attorney Bad Check Unit (DA).
Defendant contends, and the People concede, the victim restitution award to the
DA is improper because the DA was not the direct victim of any of defendant’s crimes.
The concession moots defendant’s alternative claim that his trial counsel rendered
ineffective assistance by failing to object to the award to the DA. We modify the
judgment to order restitution to the direct victims of defendant’s conduct.
FACTS
Because defendant’s contentions relate solely to the issue of victim restitution in
the unfiled matter that is the subject of his Harvey waiver, the facts of the three filed
cases are not at issue and need not be set forth in this opinion.4
2 People v. Harvey (1979) 25 Cal.3d 754.
3 We granted defendant’s motion to augment the record with the investigative report in
the unfiled matter, No. 11-22248.
4 The minute order, the original abstract of judgment, and the amended abstract of
judgment incorrectly attribute this restitution to filed case No. 13F495.
2
In the unfiled matter, defendant passed the following nonsufficient funds checks:
Number Payee Date Amount
102 Farmer’s Market 09/13/2011 97.01
121 Farmer’s Market 09/19/2011 60.91
140 Sunshine Market 09/26/2011 32.56
150 Costco 10/05/2011 266.82
133 Top’s Market 09/24/2011 48.49
135 Top’s Market 09/25/2011 64.84
93 Winco Foods 07/10/2012 168.29
147 Food Maxx 06/29/2012 167.81
122 Food Maxx 06/29/2012 186.52
DISCUSSION
The Victim Restitution Award Must be Modified
Defendant contends the DA is not a direct victim of the offenses at issue in the
unfiled matter. As a remedy, defendant argues that the award of $1,677.45 to the DA
must be stricken.
The People concede that the DA is not a direct victim and that the award to the
DA is not proper, but they claim the proper remedy is to modify the judgment to award
restitution to the direct victims in the amounts shown in the above table. We agree with
the People.
Background
As part of the negotiated plea, defendant entered a Harvey waiver for restitution in
an unfiled matter reflected in Shasta County District Attorney investigative report no. 11-
22248. At the February 2013 change of plea hearing, the prosecutor referred to the
investigation of the unfiled matter, which had revealed that defendant had written two
3
bad checks totaling $157.92. Attendant administrative, bank, and diversion fees were
$180. In an October 2011 letter, the DA had demanded that defendant make an
immediate payment of $337.92.
On March 14, 2013, the DA sent defendant an updated letter reiterating the two
bad checks and adding seven more bad checks; this letter demanded payment of
$1,677.45, consisting of $1,093.25 in bad checks, $84.20 in bank fees, and $450 in
administrative fees.
The probation report filed March 19, 2013, recommended that defendant be
“ordered to pay $1,677.45 to the Shasta County District Attorney’s Bad Check Unit
regarding the unfiled case pertaining to Shasta County District Attorney’s Investigative
report # 11-22248.” At sentencing, the trial court followed this recommendation.
Neither counsel pointed out that the DA was not a direct victim. The minute order and
the amended abstract of judgment reflect that the court ordered restitution to the DA.
Analysis
“Section 1202.4 declares ‘the intent of the Legislature that a victim of crime who
incurs any economic loss as a result of the commission of a crime shall receive restitution
directly from any defendant convicted of that crime.’ [Citation.] Accordingly, with
specified exceptions, ‘in every case in which a victim has suffered economic loss as a
result of the defendant’s conduct, the court shall require that the defendant make
restitution to the victim or victims . . . .’ [Citation.] Absent extraordinary and
compelling reasons [citation], restitution ‘shall be of a dollar amount that is sufficient to
fully reimburse the victim or victims for every determined economic loss incurred as the
result of the defendant’s criminal conduct’ [citation], and must include, but is not limited
to, such costs as the value of stolen or damaged property, as determined by repair or
replacement value [citation], medical expenses [citation], and ‘[w]ages or profits lost due
to injury incurred by the victim’ [citation].
4
“For purposes of section 1202.4, a ‘victim’ is defined to include, among others,
the actual victim’s immediate surviving family [citation], as well as specified relatives of
the actual victim, and present and certain former members of the victim’s household, who
sustained economic loss as a result of the crime [citation]. A ‘victim’ also includes ‘[a]ny
corporation, business trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity when that entity is a direct victim of a crime.’ [Citation].
“The case law has ascribed a precise meaning to the phrase ‘direct victim,’ as that
phrase has appeared in several restitution statutes. Thus, it is established that a statute
‘permitting restitution to entities that are “direct” victims of crime [limits] restitution to
“entities against which the [defendant’s] crimes had been committed”–that is, entities that
are the “immediate objects of the [defendant’s] offenses.” [Citation.]’ [Citations.]”
(People v. Runyan (2012) 54 Cal.4th 849, 856.)
In this case, the parties agree that the DA was not the immediate object of any of
defendant’s bad check offenses; rather, the immediate objects were the vendor payees set
forth in the above table. (Cf. People v. Martinez (2005) 36 Cal.4th 384, 393-394 [state
agency that cleaned up the defendant’s methamphetamine laboratory was not a direct
victim of his offense].) Because the trial court had no jurisdiction to award victim
restitution to the DA, its order may be corrected on appeal notwithstanding the lack of
contemporaneous objection. (People v. Scott (1994) 9 Cal.4th 331, 354.)
The correction proposed by defendant--the simple striking of the restitution order--
would leave the vendor victims without any restitution and confer an undeserved windfall
upon defendant. The People objected to that windfall in their respondent’s brief, and
defendant has elected not to file a reply brief. We modify the judgment to order
restitution to the direct victims of defendant’s conduct.
5
There is no contention that the bank fees and administrative fees demanded in the
DA’s letters were owed to direct victims of defendant’s offenses. We have no occasion
to consider that issue.
DISPOSITION
The judgment is modified to award victim restitution to the entities named in the
above table in the amounts shown therein. As so modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and to forward a
certified copy to the Department of Corrections and Rehabilitation.
BLEASE , J.
We concur:
RAYE , P. J.
DUARTE , J.
6
| {
"pile_set_name": "FreeLaw"
} |
Court of Appeals
of the State of Georgia
ATLANTA,____________________
February 16, 2017
The Court of Appeals hereby passes the following order:
A17D0280. JAMES DENNIS NEW v. THE STATE.
On December 16, 2016, the trial court dismissed James Dennis New’s motion
to compel in this habeas corpus action on the basis that New was represented by
counsel.1 On January 25, 2017, New filed this application for discretionary appeal
seeking leave to appeal the ruling. We, however, lack jurisdiction for several reasons.
First, as noted by the trial court, a criminal defendant does not have the right
to represent himself while also being represented by an attorney. See Pless v. State,
255 Ga. App. 95, 96 (564 SE2d 508) (2002). Because New is currently represented
by counsel, his pro se filing is a nullity. See id.
Second, New’s application is untimely. An application for discretionary appeal
must be filed within 30 days of the entry of the order or judgment to be appealed.
OCGA § 5-6-35 (d). The requirements of OCGA § 5-6-35 are jurisdictional, and this
Court cannot accept an application for appeal made beyond 30 days. See Boyle v.
State, 190 Ga. App. 734 (380 SE2d 57) (1989). Here, New filed his application 40
days after entry of the order he seeks to appeal.
Third, New failed to follow the requisite appellate procedure. Because the
habeas case remains pending below, the trial court’s order is not considered final and
1
As of January 1, 2017, the Court of Appeals has jurisdiction over “[a]ll cases
involving extraordinary remedies, except those cases concerning proceedings in
which a sentence of death was imposed or could be imposed and those cases
concerning the execution of a sentence of death” pursuant to the Appellate
Jurisdiction Reform Act of 2016. Ga. L. 2016, p. 883, § 3-1 [codified as OCGA § 15-
3-3.1 (a) (4)].
may be appealed only by compliance with the interlocutory appeal procedures of
OCGA § 5-6-34 (b). Although New filed a discretionary application, “[t]he
discretionary appeal statute does not excuse a party seeking appellate review of an
interlocutory order from complying with the additional requirements of OCGA § 5-6-
34 (b).” Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996).
For these reasons, we lack jurisdiction over this application for discretionary
appeal, which is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
02/16/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
| {
"pile_set_name": "FreeLaw"
} |
435 U.S. 559
98 S.Ct. 1596
56 L.Ed.2d 547
Maurice PROCTORv.WARDEN, MARYLAND PENITENTIARY
No. 77-5898
Supreme Court of the United States
April 17, 1978
On petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit.
PER CURIAM.
1
A Federal District Court entered a final order denying the petitioner habeas corpus relief. Under federal law the petitioner had a statutory right to appellate review of that decision. 28 U.S.C. § 2253. Because it appears that effective appellate review may not have been accorded in this case, the writ of certiorari is granted, and the case is remanded to the Court of Appeals for the Fourth Circuit.
2
The petitioner pleaded guilty to narcotics and firearms violations in the Criminal Court of Baltimore City and was sentenced to a term of 20 years in the Maryland state penitentiary. In 1975, after exhausting state post-conviction remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland, alleging that several specific constitutional violations had occurred in the state prosecution. The District Court dismissed the petition without an evidentiary hearing. The petitioner, pro se, took an appeal to the Court of Appeals, which affirmed the order of the District Court in the following language:
3
"PER CURIAM:
4
"A review of the record and of the district court's opinion discloses that this appeal from the order of the district court denying relief under 42 U.S.C. § 1983 is without merit. Accordingly, the order is affirmed for the reasons stated by the district court. Blizzard v. Mahan, C/A No. 76-0117-CRT (E.D.N.C., Sept. 13, 1976).
"AFFIRMED."
5
Clearly, this per curiam order has nothing whatsoever to do with the petitioner's case. He had filed a petition for a writ of habeas corpus, not a civil rights action under 42 U.S.C. § 1983. He had sought relief in a federal court in Maryland, not one in North Carolina. The case of Blizzard v. Mahan, in short, is wholly unrelated to the petitioner's case.*
6
It may be that the petitioner's contentions are wholly frivolous. But it is not enough that a just result may have been reached. "[T]o perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955); cf. In re Gault, 387 U.S. 1, 26, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Accordingly, in the exercise of our power to "require such further proceedings to be had as may be just under the circumstances," 28 U.S.C. § 2106, we grant the motion for leave to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand this case to it for further consideration.
7
It is so ordered.
*
The petition for certiorari in No. 77-939, Blizzard v. Mahan (denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800), shows that the Court of Appeals' per curiam order in that case (filed on the same day as the order in the present case) is identical to the one quoted in the text above.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 99-20439
Summary Calendar
_________________
WARD MYERS,
Plaintiff-Appellant,
versus
MICHELIN NORTH AMERICA INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1283
January 26, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff Ward Myers (“Myers”) appeals from the district court’s entry of summary judgment
in favor of defendant Michelin North America, Inc. (“Michelin”) in Myers’ discrimination suit brought
under the Age Discrimination in Employment Act (“ADEA”). We affirm.
Myers worked for Michelin in various capacities from 1974 until his termination in 1997. At
that time, Michelin discharged Myers, then age 56, citing problems with his conduct and attitude
towards other employees. Myers filed suit in federal court alleging that Michelin had demoted and
eventually discharged him because of his age in violation of the ADEA. He contended that Michelin
had a pattern and practice of terminating older employees in favor of younger ones. The district court
granted summary judgment in favor of Michelin. On appeal, Myers argues that sufficient evidence
*
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.
existed in the record for a rational fact-finder to conclude that Michelin’s asserted reason for firing
Myers was pretextual and that age was the real reason for his discharge.
We review the district court’s grant of summary judgment de novo, applying the same
standard as the district court. See Ward v. Bechtel Corp., 102 F.3d 200, 202 (5th Cir. 1997).
Summary judgment is appropriate when, considering all of the evidence in the light most favorable
to the non-moving party, there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. See Newell v. Oxford Management, Inc., 912 F.2d 793, 795 (5th Cir.
1990); Fed. R. Civ. P. 56(c).
We analyze claims under the ADEA under the burden-shifting approach of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1972). See Ross v. Univ. of Tex., 139 F.3d 521, 525 (5th
Cir. 1998). The plaintiff carries the initial burden of establishing a prima facie case of discrimination
by presenting evidence that he was (1) t erminated from his job, (2) qualified for the position, (3)
within the protected class when he was fired, and (4) either replaced by someone outside the
protected class, someone younger, or was otherwise discharged because of his age. See Brown v.
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996). If a plaintiff sets out a prima facie case, a
presumption of discrimination arises that the employer must rebut by articulating a legitimate
nondiscriminatory basis for the termination. See id. Once the employer establishes a legitimate basis,
the burden shifts to the plaintiff to prove by a preponderance of the evidence that the employer’s
proffered reasons are a pretext for age discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502 (1993).
Here, it is uncontested that Myers met his prima facie showing and that Michelin, by
documenting numerous incidents regarding Myers’ weak interpersonal skills, rebutted the
presumption of discrimination. Accordingly, the burden shifted back to Myers to proffer sufficient
evidence that Michelin’s articulated reasons for his termination were pretextual. See CSC Logic, 82
F.3d at 654.
A plaintiff can show pret ext in two ways: “either directly by persuading the court that a
-2-
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Amburgey v. Corhart Refractories
Corp., Inc., 936 F.2d 805, 813 (5th Cir. 1991). In the summary judgment context, the question is
whether the plaintiff raises a genuine issue of fact regarding pretext. See id. We agree with the
district court that Myers fails to do so.
Myers’ evidence of pretext consists of (1) the affidavit of Jim Arndt, a former supervisor,1 (2)
excerpts of positive comments from Myers’ job evaluations, and (3) Myers’ own deposition
testimony. This evidence does not create a genuine issue regarding pretext.
First, Arndt’s affidavit provides, inter alia, that (1) in 1994, the human resources manager
said that Myers should be fired because he was making too much money, and (2) during his last years
of employment with Michelin he witnessed a pattern of older employees being singled out for job
elimination because they made more money than younger employees made. The manager’s remark
was no more than a stray remark that does not constitute evidence of discrimination in the 1997
decision to discharge Myers. See, e.g., Smith v. Berry Co., 165 F.3d 390, 396 (5th Cir. 1999); Ray
v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (5th Cir. 1995) (remark four years earlier about
“get[ting] rid of” plaintiff was “a stray remark too remote in time to support an inference of . .
.discrimination in later employment actions”).
Second, the existence of positive comments concerning Myers’ job performance in his
evaluations does not call into question the credence of Michelin’s proffered explanation. Such
statements do not erase or even call into question the plethora of comments and complaints from both
subordinates and supervisors about Myers’ display of poor interpersonal skills and use of racially-
1
Myers contends that the district court did not consider Arndt’s affidavit in its decision. While
the court did not expressly mention the affidavit in its opinion, it did state that it had conducted a
“careful and thorough review of the parties’ submissions.” Furthermore, a district court, though
encouraged to articulate all of its analysis in rendering a summary judgement, does not commit
reversible error by failing to do so. See Shepherd v. Comptroller of Public Accounts, 168 F.3d 871,
873 n.1 (5th Cir.), cert. denied, 120 S. Ct. 395 (1999).
-3-
charged and demeaning language.2
Third, Myers’ own unsubstantiated testimony that six employees were terminated over the
course of five years because of their age is little more than speculation. Neither this testimony nor
Arndt’s statement to the same effect offsets Michelin’s well-supported explanation for Myers’
termination. Accordingly, this evidence does not raise a genuine question that “a discriminatory
reason more likely motivated [Michelin]” and thus does not enable Myers to avoid summary
judgment. See Grimes v. Texas Dept. of Mental Health & Mental Retardation, 102 F.3d 137, 140
(5th Cir. 1996). Myers’ t estimony that a Michelin supervisor told him that he would “know when
[his] time has come to get out” merely cites to a stray remark. See Price v. Marathon Cheese Corp.,
119 F.3d 330, 336 (5th Cir. 1997) (finding that the remark “a younger person could do faster work”
insufficient to establish discrimination).
Myers failed to establish the existence of a genuine issue of material fact with regard to
whether Michelin’s proffered explanation for termination was pretextual. Accordingly, the judgment
of the district court is AFFIRMED.
2
Myers’ argument that the Michelin employees’ complaints against him were incredible lacks
merit. Michelin is not required to prove the veracity of the employee complaints. See Singh v.
Shoney’s, Inc., 64 F.3d 217, 219 (5th Cir. 1995); Waggoner v. City of Garland, 987 F.2d 1160,
1165-66 (5th Cir. 1993) (finding that veracity of underlying claim is irrelevant and the real issue is
whether the employer relied in good faith on the comments).
-4-
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 12-562V
Filed: June 7, 2013
*************************************
JOYCELYN ALLEN, * No. 12-562V
*
Petitioner, * Special Master Dorsey
*
v. *
* Petitioner’s Motion for a Decision
SECRETARY OF HEALTH * Dismissing the Petition; Insufficient Proof
AND HUMAN SERVICES, * of Causation; Vaccine Act Entitlement;
* Denial Without a Hearing
Respondent. *
*
*************************************
Jennifer A. Lenze, Lenze Law, PLC, El Segundo, CA, counsel for petitioner.
Tara J. Kilfoyle, United States Department of Justice, Washington, DC, counsel for respondent.
DECISION1
On September 4, 2012, petitioner filed a petition seeking compensation in the National
Vaccine Injury Compensation Program (“the Program” or “Act”). Petitioner alleged that she
received three Gardasil or human papillomavirus vaccines (HPV) on April 30, 2009, July 13,
2009, and January 14, 2010, which caused her to suffer from seizures and migraines. The
information in the record, however, does not show entitlement to an award under the Program.
On May 17, 2013, petitioner filed a Motion for a Decision dismissing her Petition.
Petitioner asserts in her Motion that under the current applicable law, she will be unable to
demonstrate entitlement to compensation in the Program. See Pet’r’s Motion at 1. Accordingly,
petitioner requests that the undersigned dismiss her petition. Id.
To receive compensation under the Program, a petitioner must prove either 1) that Ms.
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post this decision on the United States Court of Federal Claims'
website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116
Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with
Vaccine Rule 18(b), a party has 14 days to identify and move to delete medical or other
information, that satisfies the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule
requirement, a motion for redaction must include a proposed redacted decision. If, upon review,
the undersigned agrees that the identified material fits within the requirements of that provision,
such material will be deleted from public access.
Allen suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of her vaccinations, or 2) that Ms. Allen suffered an injury that was
actually caused by a vaccine. See §§ 300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of
the record did not uncover any evidence that Ms. Allen suffered a “Table Injury.” Further, the
record does not contain a medical expert’s opinion or any other persuasive evidence indicating
that Ms. Allen’s alleged injuries were vaccine-caused.
Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records that have been filed do not support petitioner’s claim, a medical opinion must be offered
in support. Petitioner, however, has offered no such opinion.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that she suffered a “Table Injury” or that her injuries were “actually caused”
by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
2
| {
"pile_set_name": "FreeLaw"
} |
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00806-CV
James COURAGE,
Appellant
v.
AMERICAN EXPRESS BANK,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CI05845
Honorable Richard Price, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: January 10, 2018
DISMISSED FOR WANT OF PROSECUTION
After the trial court clerk filed a notification of late record stating the clerk’s record had
not been filed because appellant had failed to make arrangements to pay the clerk’s fee, we issued
an order directing appellant to provide written proof by December 22, 2017 that either: (1) the
clerk’s fee had been paid or arrangements had been made to pay the clerk’s fee; or (2) appellant is
entitled to appeal without paying the clerk’s fee. Our order stated that this appeal would be
dismissed for want of prosecution if appellant failed to timely respond. Appellant has not filed
04-17-00806-CV
any written response to our order. Accordingly, this appeal is dismissed for want of prosecution.
See TEX. R. APP. P. 37.3(b).
PER CURIAM
-2-
| {
"pile_set_name": "FreeLaw"
} |
588 F.2d 1347
Atchison & Keller Co.v.1616 Reminc Limited Partnership
No. 77-2350
United States Court of Appeals, Fourth Circuit
12/4/78
1
E.D.Va.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
818 F.2d 877
Howitt, In re
86-1671
United States Court of Appeals,Federal Circuit.
2/18/87
COMM
DISMISSED
| {
"pile_set_name": "FreeLaw"
} |
Filed 3/11/14 P. v. Abdul-Malik CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B248990
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. BA378199)
v.
ZAKEE SHAKIR ABDUL-MALIK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J.
Hall, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Seth P. McCutcheon, Deputy Attorney General, for
Plaintiff and Respondent.
_____________________________
Defendant and appellant Zakee Shakir Abdul-Malik was convicted by jury of three
counts of perjury by declaration in violation of Penal Code section 118, subdivision (a).1
In a separate proceeding, the trial court found defendant had suffered two prior
convictions for rape in violation of section 261, subdivision (a)(2), within the meaning of
the three strikes law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
Defendant was sentenced to 25 years to life in count 1 pursuant to the three strikes
law. The trial court dismissed one prior strike conviction for purposes of counts 2 and 3,
imposing consecutive terms of two years for both counts, for a total sentence of 29 years
to life. Credit was given for 179 days in custody and 179 days of conduct credits, for a
total of 358 days.
Defendant timely appealed the judgment. On October 16, 2012, this court ordered
the judgment modified to reflect 454 days of presentence custody credits, consisting of
310 actual days and 144 days of conduct credit. We also remanded the case to the trial
court for resentencing on counts 2 and 3 under the determinate sentencing law.
The trial court sentenced defendant to an indeterminate term of 25 years to life in
prison for count 1, consecutive terms of 4 years in count 2, and 2 years in count 3, for a
total of 31 years to life in state prison.
Defendant again appealed. He contends the sentence of 31 years to life is cruel
and unusual punishment in violation of the Eighth Amendment. We affirm the judgment.
FACTS
Defendant, a convicted sex offender subject to registration under section 290,
received Section 8 housing assistance since 2003. In his applications for Section 8
assistance in 2008, 2009, and 2010, defendant falsely stated under penalty of perjury that
he was not required to register as a sex offender. Defendant received $34,305 in funding
between 2008 and 2010 as a result of his false statements.
1 All statutory references are to the Penal Code unless otherwise indicated.
2
Defendant was previously convicted of misdemeanor assault with a deadly
weapon against his then girlfriend in 1972. In 1979, he pleaded guilty to misdemeanor
battery, after being charged with rape by force. In 1982, he was convicted of rape by
force and sentenced to eight years in prison. In 1989, just after his discharge from parole
in connection with the 1982 conviction, defendant was again convicted of rape by force
and sentenced to eight years in prison. In 1995, while on parole, he was convicted of
misdemeanor battery.
At the resentencing hearing for the current offenses, defendant moved to strike his
priors and thereby shorten his sentence.2 The trial court granted the motion as to counts 2
and 3 but denied it as to count 1. In doing so, the trial court discussed the issue of cruel
and unusual punishment.
“THE COURT: The other right that has to be balanced into all of this is the cruel
and unusual punishment. As I indicated when I sentenced Mr. Abdul-Malik last time, if I
imposed three consecutive 75-year to life sentences, which incidentally, the Court of
Appeal said I would have been well within my right to do, or three consecutive 25 to life
sentences, giving him 75 years to life, that really would have been the moral equivalent
of an LWOP. And in a case where most defendants are placed on probation and forced to
pay restitution, that is disproportionate punishment and would probably fall within the
range of cruel and unusual punishment. Reyes [v.] Brown, a 2005 case from the 9th
Circuit, 399 [F.3d] 964, in which the 9th Circuit held that imposing a 25-year to life
sentence on a [section] 118 violation was in fact cruel and unusual punishment as a
matter of law.
“The second factor that has to be examined in this is the interest of society as
represented by the People. And I think that we are engaging in a little bit of revisionist
history and a little bit of sort of minimizing what this case was all about.
2 Defendant does not challenge the trial court’s exercise of discretion in denying
his motion to strike.
3
“When Mr. Abdul-Malik was sentenced initially, his position outlined in letters
and statements and everything else that he had submitted was not that he was concerned
about the family and all the rest of that. But it seems to be something that has come up in
prison, but rather, that he felt that he wasn’t guilty of the underlying rape charges, and he
felt that he had paid his debt to society and therefore, he was justified in not reporting that
and reporting the fact that he was a sex registrant on the Section 8 housing. The fact that
he has now come up with a different story doesn’t really impress me very much, I have to
say. I think that his initial take on that was why he acted the way he did, and I’m going
to act on that.
“Additionally, there has to be a balance between leaving the prison authorities
with the discretion to evaluate Mr. Abdul-Malik when he’s reached a period in his life
where the odds of him repeating any of his sexual offenses -- and the two rape charges
are not the only ones -- whether he’s gained enough insight into his behavior by that point
to justify a release when he is of an age that is significantly older. And I’m going to
impose a sentence that ensures that he stays in until he is old enough that he may be
safely trusted out in the community, but allows the parole authorities the flexibility they
may desire to release him when he reached that point.
“Now, I spent the last couple of weeks going through this file, the same as I did
the first time I sentenced him, and I’ve read every document that was filed in this case.
The documents contain fairly substantial descriptions of Mr. Abdul-Malik’s prior strike
offenses. These were extremely violent rapes that go beyond the normal violence, if we
can use that phrase, encountered in a rape. In the second one, the victim received
substantial injury and suffered significant emotional injuries as well. There is very little
record of what occurred in the first, because the records had been destroyed. But the
brief discussion that was contained in the probation report has no suggestions that it was
any less violent that the second. The rapes were fairly remote. The first strike occurred
on July 1, 1982. The second occurred on November 13, 1989; both of them more than 20
4
years old. In the overall scheme of ruling on Romero3 motions, that would augur in favor
of striking them; however, the fact that the strikes occurred approximately seven years
apart is a factor that militates against him, because Mr. Abdul Malik was in prison for
most of that time. Both of these prior offenses were extremely violent, as I indicated.
“Another factor that the Court has to look at is whether these priors occurred in a
single period of aberrant behavior. They didn’t. The nature of the victim and the type of
assault which occurred on August 26, 1979. The type of victim continued to the two
allegations which underlay the 2006 misdemeanor conviction which was reversed. I’m
not going to consider that for any other reason, because the conviction was reversed. But
it was reversed on a technical issue. But I think that the types of victim involved in that,
or alleged victim involved, that is something that’s relevant.
“I think it’s also significant according to the registration records that in 2003,
[defendant] was accused of attempts to inveigle girls, again, who met the same profile,
into working with him for an escort service. What this tells me is that Mr. Abdul-Malik
shows absolutely, over the course of his life, a long period of time, has shown no insight
into his behavior as to what is best termed to be a sexual predator. And I think the best
evidence that this hasn’t changed or at least it hadn’t changed up until the time of the
commission of this offense, and one of the facts that drives my feeling is -- of this matter
is that Mr. Abdul Malik chose to use the illegally obtained Section 8 housing voucher to
move in right next to a child case center. . . . And it’s this factor that causes me to be
utterly unwilling to strike the strikes as to Count 1. As far as I can tell, Mr. Abdul Malik
is still a sexual predator. I see nothing to indicate the contrary. And again, the fact that
knowing his history, he would choose to lie about his sexual history and then use that to
move next to a child care center, to me is just inconceivable.
“The other factor that the court has to look at is whether the prior convictions
arose out of the same act. They did not.”
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
5
Defendant interrupted the trial court at that point in the proceeding, explaining that
he had never beaten or raped the victims. He stated that he had consensual sexual
intercourse with both victims, and that he “just didn’t know these girls well enough.” He
asserted that the first woman was beaten by her sister who then framed him, and in the
second conviction, the district attorney knew he had a prior conviction so he “made” the
victim come to court and testify against defendant. He denied being a violent predator.
After defendant’s lengthy statement, the trial court pronounced the sentence.
Defense counsel did not object to the sentence on the ground of cruel and unusual
punishment.
DISCUSSION
Defendant’s contention that his 31 years to life sentence is so grossly
disproportionate to his crimes that it constitutes cruel and unusual punishment in
violation of the Eighth Amendment is without merit.4
Preliminarily, we agree with the Attorney General that defendant forfeited the
claim on appeal by failing to raise it below. Defendant’s assertion that the issue was
preserved because the trial court considered whether the sentence rose to the level of
cruel and unusual punishment at the resentencing hearing is unavailing. The law requires
that defendant specifically object to his sentence as a violation of the Eighth Amendment,
which defendant concedes he failed to do. (In re Seaton (2004) 34 Cal.4th 193, 197-198
[“‘[T]he failure to object to errors committed at trial relieves the reviewing court of the
obligation to consider those errors on appeal.’ [Citations.] This applies to claims based
on statutory violations, as well as claims based on violations of fundamental
constitutional rights. [Citations.]”].)
To avoid forfeiture, defendant alternately argues that his counsel provided
ineffective assistance by failing to object, which necessitates review on the merits.
4 Defendant does not contend that his sentence violates the state Constitution.
6
(People v. Williams (1998) 61 Cal.App.4th 649, 657.) We conclude that, even if the issue
had been preserved for appeal, the trial court could constitutionally impose the 31-year to
life sentence in compliance with state law in accordance with section 667, subdivision
(e)(2)(A)(ii), such that there is not a reasonable probability defendant would have
obtained a more favorable result had his counsel objected. (People v. Cunningham
(2001) 25 Cal.4th 926, 1003 [reversal on the ground of ineffective assistance of counsel
requires the defendant to establish counsel’s performance did not meet the standard to be
expected of a reasonably competent attorney and there is a reasonable probability the
defendant would have obtained a more favorable result absent counsel’s shortcomings].)
The Eighth Amendment prohibits only those sentences that are grossly
disproportionate to the crime. (Ewing v. California (2003) 538 U.S. 11, 23-24 (Ewing).)
Three factors are considered when determining whether a sentence is proportionate to the
offense and the defendant’s circumstances such that it does or does not constitute cruel
and unusual punishment: (1) the gravity of the offense and the harshness of the penalty;
(2) sentences imposed on other criminals in the same jurisdiction; and (3) sentences
imposed for the same crime in other jurisdictions. (Id. at p. 22.) Here, defendant’s sole
contention is that the punishment is unconstitutional as applied to him, so we consider
only the first factor—the nature of the offense and the offender.
We find no merit in defendant’s argument that his current offenses are
comparatively trivial, like the triggering offenses in People v. Carmony (2005) 127
Cal.App.4th 1066 (Carmony II) and Gonzalez v. Duncan (9th Cir. 2008) 551 F.3d 875
(Gonzalez). In Carmony II, the defendant failed to update his registration as a sex
offender within five days of his birthday (former § 290, subd. (a)(1)(C)) but had
accurately registered the required information a month before. There was no change in
the information in the intervening period, and the defendant’s parole officer was aware
there had been no changes. The appellate court classified the offense as a “passive”
omission and not an act that either “evade[d] or [was] intend[ed] to evade law
enforcement officers.” (Carmony II, supra, at p. 1078.) It held that the defendant’s 25
7
years to life sentence was cruel and unusual punishment under the circumstances. (Id. at
p. 1089.)
In Gonzalez, the defendant violated former section 290, subdivision (a)(1)(D),
another provision requiring registration as a sex offender within five days of the
defendant’s birthday. The court of appeals described the purpose of the law as “only
tangentially related to the state’s interest in ensuring that sex offenders are available for
police surveillance,” and “merely a ‘backup measure to ensure that authorities have
current accurate information.’ [Citation.]” (Gonzalez, supra, 551 F.3d at p. 884.)
Gonzalez had been found not guilty of violating the reporting requirements of section
290, subdivision (a)(1)(A), which was promulgated for the purpose of “prevent[ing]
‘recidivism in sex offenders’ by assuring they are ‘available for police surveillance.’
[Citation.]” (Gonzalez, supra, at p. 884.) Taking into account the not guilty verdict, the
court “adopt[ed] the jury’s implicit determination that Gonzalez was living at his
registered address throughout the relevant time period in this case.” (Ibid.) Considering
the gravity of the offense and the fact that Gonzalez had updated his information both
nine months before and three months after the relevant time period, the court was “unable
to discern any actual harm resulting from [the violation].” (Ibid.) It therefore held
Gonzalez’s 28 years to life sentence was cruel and unusual punishment. (Id. at p. 891.)
Here, defendant did not simply fail to act as the defendants in Carmony II and
Gonzalez did. He affirmatively lied about his previous offenses to gain a government
benefit. Cognizable harm to the state occurred when defendant perjured himself to obtain
subsidized housing. Moreover, it is clear that defendant acted purposefully, as he
perjured himself on not one, but three, separate occasions. At the resentencing hearing,
defendant minimized his past crimes and ignored his responsibility for them, displaying a
callous disregard for their seriousness. In light of these circumstances, his decision not to
disclose his sex offender status when required by law “may properly be viewed as an
indicator of potentially significant future dangerousness.” (In re Coley (2012) 55 Cal.4th
524, 562 (Coley).)
8
The sentence imposed under the three strikes law is often dependent on the trial
court’s exercise of discretion in determining whether to strike any of the serious or
violent prior convictions, such that it is appropriate to rely on the trial court’s findings
and reasoning when evaluating a claim that the punishment is cruel and unusual. (Coley,
supra, 55 Cal.4th at pp. 559-561) In this case, the trial court considered the two violent
sexual assaults that resulted in defendant’s prior strike convictions, along with his other
crimes. Although the rapes are remote from the current offenses, they occurred many
years apart, illustrating that a significant lapse of time is no indication that defendant has
reformed. Defendant was also convicted of assault with a deadly weapon and battery
against women on two other occasions. As the trial court noted, evidence of defendant’s
current state of mind does not weigh in his favor. Defendant’s lengthy statements at the
resentencing hearing show that he does not acknowledge the gravity of his past offenses
or take responsibility for them. His powers of introspection do not appear to have
developed over time. Finally, defendant is a repeat offender whom the Legislature may
punish more severely than it punishes a first time offender, and his recidivism is a
relevant consideration that also weighs against him. (Ewing, supra, 538 U.S. at pp. 24-
26, 29 [25 years to life sentence not cruel and unusual punishment where triggering
offense of felony grand theft of golf clubs was related to prior convictions for theft, grand
theft auto, burglary, trespassing, and robbery].)
Having considered defendant’s nature and the nature of his offense, we conclude
that his 31 years to life sentence does not violate the constitutional prohibition against
cruel and unusual punishment.
9
DISPOSITION
We affirm the judgment.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
10
| {
"pile_set_name": "FreeLaw"
} |
310 F.3d 1046
Avone KUKLA, Appellee,v.Andrew D. HULM; Scott Brown, Appellants.
No. 01-3812.
United States Court of Appeals, Eighth Circuit.
Submitted: June 11, 2002.
Filed: November 15, 2002.
Niel K. Fulton (argued), Pierre, SD (John J. Delaney, on the brief), for appellant.
Michael W. Strain (argued), Sturgis, SD, for appellee.
Before BOWMAN, FAGG, and BYE, Circuit Judges.
FAGG, Circuit Judge.
1
Motor carrier inspector Scott Brown and Trooper Andrew D. Hulm arrested Avone Kukla, a commercial truck driver, for failing to produce his logbook. After a South Dakota judge dismissed the charges against Kukla, Kukla brought this federal lawsuit against Brown for illegal arrest and against Hulm for using excessive force. The district court* denied Brown and Hulm's motion for summary judgment based on qualified immunity, finding there were questions of fact about the arrest's validity and the amount of force used. Brown and Hulm appeal. We affirm.
2
We review the denial of summary judgment de novo. As we explain the facts, we must give Kukla, the party opposing summary judgment, the benefit of all reasonable inferences. Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000). According to Kukla's affidavit, on November 25, 1998, he was driving west on I-90 when he saw a sign indicating "truck inspection ahead." App. at 61. Testimony in Kukla's state court proceeding indicates the inspection was at a public rest area. App. at 86, 92. Kukla had never seen an inspection station at that location before. App. at 61-62. He pulled into the rest area, but did not see any official emblems or insignia confirming an inspection was authorized by the state. App. at 62. Kukla had never had any problems with inspections or weigh stations, including the day before at the Tilford weigh station located on eastbound I-90. At the rest area, Kukla was approached by a person wearing clothing different from that worn by inspectors at the Tilford station, and Kukla saw no insignia, emblem, badge, or name tag indicating who the individual was. Id. Kukla noticed an old, blue Suburban, which did not appear to have any insignia. Kukla had heard of phony truck inspections being set up in other states, and the situation seemed peculiar to him. Id. The person who approached Kukla, later identified as motor carrier inspector Scott Brown, asked for Kukla's driver's license and logbook. Kukla pulled them out and showed him he had them, but told the person he would not turn them over until the person identified himself. Id. Brown refused to identify himself, and stated he didn't have to. Brown told Kukla he was "putting [his] truck out of service for eight hours," and told Kukla to pull over. Kukla complied. Id.
3
Within a few seconds, App. at 88, a car with an official South Dakota emblem drove up, App. at 62. A uniformed person, motor carrier enforcement officer Lawrence Bryant, got out of the car. Bryant approached Kukla, asked why Kukla would not comply with Brown, and asked for Kukla's records. Id. at 63. Kukla explained Brown would not identify himself and he looked different from other inspectors he had encountered the day before. Because Kukla could see Bryant was acting on behalf of the State of South Dakota, Kukla gave Bryant his license and logbook. Bryant found everything in order, and left the scene. Id.
4
Brown then issued a ticket to Kukla for failing to produce his logbook, which Kukla refused to sign. Id. Brown radioed the South Dakota Highway Patrol (SDHP) for assistance and Trooper Andrew Hulm responded. Bryant overheard the call to the highway patrol and returned to the inspection point. During this time, Kukla retrieved his camera and appeared to take pictures of the scene. When Hulm arrived, he spoke with Brown and then advised Kukla he had to sign the ticket or be subject to arrest. Id. at 64. Kukla refused to sign the ticket and Hulm announced he was going to arrest Kukla. Kukla was handcuffed by Hulm and Bryant and taken into custody. Kukla asserts he did not resist arrest, but rather was unnecessarily manhandled. Kukla alleges that when Hulm told him he was under arrest, he protested, but did not take an aggressive stance. A doctor determined that as a result of the arrest, Kukla strained and sprained his right shoulder, distal right clavicle, right elbow, and right wrist.
5
To avoid summary judgment based on qualified immunity, Kukla had to assert a violation of a constitutional right, show the alleged right was clearly established at the time of the alleged violation, and raise a genuine issue of material fact about whether Brown and Hulm would have known their alleged conduct would have violated his clearly established right. Smithson, 235 F.3d at 1061. In other words, qualified immunity shields Brown and Hulm from this lawsuit if they could have reasonably believed their conduct was lawful in light of clearly established law and the information they possessed. Id. If an officer alleges conduct by an arrestee giving rise to probable cause and those facts are undisputed, the officer is entitled to qualified immunity. Arnott v. Mataya, 995 F.2d 121, 123-24 (8th Cir.1993). On the other hand, if the arrestee challenges the officer's description of the facts and presents a factual account that would not permit a reasonable officer to make an arrest, then there is a material factual dispute precluding summary judgment. Id. at 124.
6
Kukla asserts a violation of his Fourth Amendment right to be free from arrest without probable cause. This right was clearly established at the time of Kukla's arrest. Id. Kukla was arrested without probable cause if a reasonable person would not have believed Kukla "`had committed... an offense' at the time of the arrest." Smithson, 235 F.3d at 1062 (emphasis added) (quoting Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir.1986)). Brown contends he could reasonably believe that a citation is properly issued to a driver who initially refused to produce his logbook, but later produced it at the request of a different inspector. Brown does not suggest Kukla was lawfully arrested for failing to sign the citation.
7
Under South Dakota Codified Laws § 32-2-7, "agents, patrol officers, motor carrier enforcement officers, and motor carrier inspectors may examine any... registration, license, or permit to determine if the motor carrier is properly registered, licensed, or permitted." The same specified individuals may place violators of any of the laws or regulations governing motor carriers under arrest without a warrant for criminal offenses committed in their presence. Id. § 32-2-8. South Dakota has adopted federal regulations regarding motor carriers. S.D. Cod. Laws § 49-28A-3. One of the adopted regulations requires drivers to record their duty status in a log, and states failure to complete or preserve the record, or making false reports, subjects the driver and carrier to prosecution. 49 C.F.R. § 395.8. Here, according to the SDHP case report, the district court, and Brown and Hulm's brief, Kukla was arrested for "Failure to Produce a Log Book SDCL 49-29A-3." App. at 24, 95, Appellant's Brief at 5. Neither the pertinent federal regulations nor South Dakota laws criminalize a trucker's failure to turn over his logbook. The affidavit of Hulm's supervisor, SDHP Lieutenant Chuck Hoffman, states it is the policy of the SDHP that any driver who refuses to produce a driver's license or logbook on demand by a fully uniformed officer will be cited for failure to have or produce a license or logbook. App. at 37. Full uniform includes badges, name tags, appropriate patches, and insignia. Id. When in full uniform and on duty, neither SDHP motor carrier inspectors nor troopers will provide further identification before proceeding with an inspection or arrest. Id.
8
Viewing the facts in Kukla's favor, we conclude Brown could not reasonably believe Kukla "`had committed ... an offense' at the time of the arrest." Smithson, 235 F.3d at 1062. Before Brown arrested Kukla, Kukla had asked Brown to identify himself as an authorized official and Brown had refused to do so, Brown saw Kukla turn over his records to one of Brown's colleagues who was clearly identifiable as an authorized official, and the authorized official had found nothing wrong. Only a few seconds elapsed between the time Kukla left Brown to pull over his truck and the time Bryant approached Kukla and obtained his records. Given these facts, Kukla did not violate the law requiring truckers to maintain logbooks. Further, the South Dakota statutes giving inspection and arrest power to specified individuals make clear that a civilian cannot examine the records of truck drivers or make arrests for violations. Even the SDHP policy states the officer must be in proper uniform. There is simply no offense when, as here, a trucker refuses to turn records over to a person who is not identifiable as an authorized officer or inspector.
9
In sum, viewing the facts in Kukla's favor, we conclude a reasonable jury could find there was no probable cause for the citation and thus no probable cause for Kukla's arrest. Because Kukla presents a factual account that would not permit a reasonable officer to make an arrest, there is a material factual dispute precluding summary judgment. Arnott, 995 F.2d at 124. The district court thus properly denied summary judgment to Brown. Id. Of course, the jury may disbelieve Kukla's testimony at trial, but it is not our function to remove the credibility assessment from the jury. Because Kukla could prevail if the jury believes him, summary judgment for Brown is improper.
10
Second, Kukla contends Hulm violated his Fourth Amendment right to be free from excessive force. This right was also clearly established at the time of Kukla's arrest. Guite v. Wright, 147 F.3d 747, 750 (8th Cir.1998). Force is excessive when an officer's actions are not objectively reasonable in light of the facts and circumstances confronting him. Id. Here, Kukla alleges that although he did not resist arrest or take an aggressive stance, Hulm forced him against his truck, twisted his arm, and raised it high behind his back injuring his collar bone, shoulder, neck, and wrist. Kukla also claims the handcuffs were so tight that they broke his wrist and were not loosened for fifteen minutes despite his repeated complaints. Considering the circumstances, including the offense at issue, the lack of an immediate safety threat, and the lack of active resistance to arrest, we agree that there is a genuine issue of whether the force used was excessive, so the district court properly denied summary judgment to Hulm. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
11
Accordingly, we affirm the district court.
Notes:
*
The Honorable Andrew W. Bogue, United States District Judge for the District of South Dakota
| {
"pile_set_name": "FreeLaw"
} |
190 F.Supp.2d 260 (2002)
Brunilda CHAPARRO, Plaintiff,
v.
Larry G. MASSANARI, Acting Commissioner of Social Security, Defendant.
Civil No. 99-2040 (JAG).
United States District Court, D. Puerto Rico.
February 25, 2002.
*261 Salvador Medina-De-L-Cruz, Rio Piedras, PR, for Plaintiff.
Camille L. Velez-Rive, U.S. Attorney, Office District of P.R., Civil Division, San Juan, PR, for Defendant.
OPINION AND ORDER
GARCIA-GREGORY, District Judge.
Plaintiff Brunilda Chaparro ("Chaparro") brought suit under Section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C.A. § 405(g), seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits. On August 28, 2001, Magistrate Judge Justo Arenas issued a Report and Recommendation (Docket No. 14) recommending that the Commissioner's final decision be affirmed and this action be dismissed. Upon review of Chaparro's objections, the Court finds that the Magistrate Judge's Report and Recommendation should be upheld. Accordingly, the Court adopts the Report and Recommendation, and dismisses Chaparro's Complaint.
FACTUAL BACKGROUND
On August 27, 1997, the Administrative Law Judge ("ALJ") rendered a final decision denying Chaparro's application for a period of disability and Social Security disability insurance benefits. On December 21, 1998, Chaparro submitted additional evidence before the Appeals Council, including a psychiatric evaluation performed by Dr. Emilio Pagan Gordils as a result of interviews with Chaparro. (Report and Recommendation, Docket No. 14, at 4.) The Appeals Council concluded that the additional evidence presented by Chaparro did not provide a basis for reversing the ALJ's ruling. Id. On September 15, 1999, Chaparro filed a petition seeking judicial review of the Commissioner's final decision. (Docket No. 1.)
On August 28, 2001, Magistrate Judge Arenas issued a Report and Recommendation, recommending that the Court affirm the Commissioner's decision and dismiss the action. The Magistrate Judge considered Chaparro's allegation "that the [ALJ] failed to consider [Chaparro's] combination of impairments in determining that she could return to her previous employment in management." Id. at 3. Moreover, the Magistrate Judge considered Chaparro's contention that the ALJ, and particularly the Appeals Council, had "failed to adequately consider her deteriorated mental capacity as already established by the treating source, and also failed to give the treating source controlling weight." Id.
Still, the Magistrate Judge found Chaparro's arguments wanting. He first pointed to long-standing First Circuit precedent to hold that "the opinions of treating physicians [were] not entitled to greater weight merely because they [were] treating physicians," and therefore the ALJ was not required to give the opinions controlling weight. Id. at 4. The Magistrate Judge then noted that the main issue *262 raised in Chaparro's petition involved her mental condition and the information received by the Appeals Council. Id. The Magistrate Judge held that the ALJ's analysis as to mental condition and pain comported with statutory and First Circuit authorities establishing the guidelines for allegations of disabling pain. Id. The Magistrate Judge held that the medical report submitted to the Appeals Council did not provide enough objective evidence to support a finding that Chaparro was disabled during the period being considered (on or before August 27, 1997). Id. at 4-5.
The Magistrate Judge concluded that the ALJ's proffered rationale for its decision was "comprehensive," and that he could not find that the final decision failed to comply with the requirements of the substantial evidence rule. Accordingly, finding no good cause to remand, the Magistrate Judge recommended that the Court affirm the Commissioner's final decision. Id. at 6.
Chaparro filed its Objections on October 1, 2001. (Docket No. 17.)
DISCUSSION
In accordance with the Social Security Act, "[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision...." 42 U.S.C.A. § 405(g). Because the Social Security Administration decision from which Chaparro seeks relief was a final decision, the Court may properly exercise jurisdiction over this action.
"The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary...." 42 U.S.C.A. § 405(g). The Court's role in reviewing the decisions of the Secretary of Health and Human Services is limited, however, for even though it reviews questions of law de novo, it evaluates questions of fact under a substantial evidence standard. See Ortiz v. Secretary of HHS, 955 F.2d 765, 769 (1st Cir.1991); Falu v. Secretary of HHS, 703 F.2d 24, 28 (1st Cir.1983); Rodriguez v. Secretary of HHS, 647 F.2d 218, 222 (1st Cir.1981). Therefore, the Court "must uphold a denial of social security disability benefits unless `the Secretary has committed a legal or factual error in evaluating a particular claim.'" Manso-Pizarro v. Secretary of HHS, 76 F.3d 15, 16 (1st Cir.1996) (citing Sullivan v. Hudson, 490 U.S. 877, 885, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989)).
The term "substantial evidence" has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Furthermore, the determination of substantiality must be made upon an evaluation of the record as a whole. Ortiz, 955 F.2d at 769. In reviewing the record, the Court must avoid reinterpreting the evidence or otherwise substituting its own judgment for that of the Secretary. Colon v. Secretary of HHS, 877 F.2d 148, 153 (1st Cir.1989). The Court need not perform the initial evaluation of the petition itself; instead, it may refer the matter to a United States Magistrate Judge for a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Here, pursuant to the Court's order, Magistrate Judge Arenas reviewed the record and found that the Secretary's decision denying *263 disability benefits was based on substantial evidence, and therefore recommended that the Court affirm the decision.
"[A] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). These objections must be filed in a timely manner and in accordance to the rules of the Court, which state that objections "shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objection." Rule 510.2, Local Rules, District of Puerto Rico.
Chaparro's objections to the Magistrate Judge's Report and Recommendation have been presented to the Court "in a slightly revised version of the original Plaintiff's Memorandum of Law." Lopez v. Chater, 8 F.Supp.2d 152, 155 (D.P.R.1998)(Domínguez, D.J.). In Lopez, the Court specifically admonished plaintiff's counsel, who also represents Chaparro here, that the memorandum "barely complie[d] with the rule's requirements to the objectionable parts of the magistrate judge's report." Id. The Court advised plaintiff "that future objections must comply with all requirements set forth in the local rules, including specificity." Id. (emphasis supplied).
This was not the first warning that plaintiff's counsel had received on the subject. In Agront v. Chater, 1996 WL 148619 (D.P.R.1996), the Court noted that plaintiff (represented, again, by counsel for Chaparro) had filed an objection to the report that was "an exact duplicate, almost word for word, of Plaintiffs' Memorandum of Law that the Magistrate Judge considered." In Agront, the Court adopted the Report and Recommendation without considering plaintiff's rehashed arguments.
Despite these clear admonitions, plaintiff has submitted objections that, with one exception, simply restate (often verbatim) the arguments made in the memorandum of law submitted to the Magistrate Judge. Compare Docket No. 17 with Docket No. 11. Simply put, plaintiff's counsel has not made a serious effort to heed the warnings issued by this Court in prior cases. Not only do the objections fail to comply with Local Rule 510.2 for lack of specificity, but they also do not reflect an understanding that a plaintiff may not simply restate the arguments that the Magistrate Judge considered and expect the Court to treat the filing seriously.[1]
The Court will only consider the single arguably legitimate objection that Chaparro has presented. She contends that the Magistrate Judge erroneously concluded that the evidence submitted to the Appeals Council "did not form part of the record for judicial review." (Objection, Docket No. 17 at 2.) The argument may be briefly disposed of. A review of the Magistrate Judge's opinion reveals that the plaintiff is mistaken. The Magistrate Judge first pointed to the Appeals Council's conclusion that the additional evidence presented by Chaparro did not provide a basis for challenging the decision of the ALJ. See Docket No. 14 at 4-5. Rather than saying that such evidence did not form part of the record before him, the Magistrate Judge expressly stated that the report provided by Dr. Pagan Gordils "provide[d] no objective evidence to support a finding that plaintiff was disabled *264 during the period being considered. See 20 C.F.R. § 404.976(b)." In other words, not only did the Magistrate Judge regard the report as part of the record, but he also held that it did not provide a basis for reversing the ALJ's decision.
The Court's review leads it to concur with Magistrate Judge Arenas's conclusion that the Secretary's denial of disability benefits should be upheld. The Court holds that the record as a whole presents substantial evidence to support the conclusion that plaintiff's medical problems are insufficient to constitute a "disability" under the Act. Accordingly, the Court adopts the Report and Recommendation, and dismisses the Complaint.
CONCLUSION
For the foregoing reasons, the Court ADOPTS Magistrate Judge Justo Arenas's Report and Recommendation. Judgment shall enter dismissing the Complaint with prejudice.
IT IS SO ORDERED.
NOTES
[1] Any future objections made by plaintiff's counsel to a Magistrate Judge's Report and Recommendation that do not object to specific findings made by the Magistrate Judge and instead merely restate arguments already considered and discarded below will subject him to sanctions.
| {
"pile_set_name": "FreeLaw"
} |
189 F.3d 240 (2nd Cir. 1999)
FELIX BLONDIN, Petitioner-Appellant,v.MARTHE DUBOIS, Respondent-Appellee.
Docket No. 98-2834August Term, 1998
UNITED STATES COURT OF APPEALSSECOND CIRCUIT
Argued May 6, 1999Decided Aug. 17, 1999
Appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge), denying father's petition, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the "Convention"), for return of his children to the country from which they were abducted. Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998). Although the mother conceded that the children were "wrongfully abducted," as that term is used in the Convention, the District Court nevertheless ruled that the children would face a "grave risk" of harm if they were returned. While we agree with the District Court that the children should not be returned to their home country in their father's custody, we nevertheless conclude that the District Court should be given a further opportunity to consider the availability of temporary arrangements that would honor the Convention's mandate of delivering abducted children to the jurisdiction of the courts of their home countries, while still protecting them from the "grave risk" of harm.
Judgment vacated; cause remanded.
SANFORD HAUSLER, Brooklyn, NY (Valerie S. Wolfman, New York, NY, of counsel), for Petitioner-Appellant.
HOWARD L. JACOBS, New York, NY, for Respondent-Appellee.
Before: OAKES, CABRANES, and SACK, Circuit Judges.
JOSE A. CABRANES, Circuit Judge:
1
This case presents issues of first impression regarding the application of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the "Hague Convention" or "Convention"); 42 U.S.C. §§ 11601 et seq. (domestic implementing legislation). That treaty, which has been ratified by the United States-and thus shares with the Constitution and federal statutes the status of "supreme Law of the Land," U.S. Const., art. VI-seeks to "secure the prompt return of children wrongfully removed to or retained in" any signatory state. Hague Convention, art.1.
2
As with many Hague Convention cases, this matter involves a custody dispute between now-separated parents. The mother, Marthe Dubois, concedes that she "wrongfully removed" the children-Marie-Eline and Franois-from France, and even forged the signature of their father, Felix Blondin, to obtain passports for the children. However, Dubois contends that she did so in order to protect the children from what she alleges was a physically abusive environment. Blondin, in contrast, denies that he abused the mother or the children.
3
These issue arise on an appeal by Blondin from a judgment of the United States District Court for the Southern District of New York (Denny Chin, Judge), denying his petition for repatriation of Marie-Eline and Franois. See Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998). Due to Dubois's allegations of abuse, the District Court determined, see id. at 127-29, that returning Marie-Eline and Franois to Blondin's custody would place the children at a "grave risk" of harm-thus qualifying for an exception to the Convention's presumption that abducted children should be returned to their home country. See Hague Convention, art. 13(b). The Court held that return of the children to France other than in Blondin's custody was impracticable, because Blondin's means were limited and he presumably could not support Dubois and the children other than in his home. See id. at 128. The Court also rejected Blondin's suggestion that the children could be returned to France in the custody of some third party, ruling that the children would be returned, if at all, only in their mother's custody.
4
On this appeal, we conclude that the Hague Convention requires a more complete analysis of the full panoply of arrangements that might allow the children to be returned to the country from which they were (concededly) wrongfully abducted, in order to allow the courts of that nation an opportunity to adjudicate custody. Courts considering Hague Convention petitions should make every effort to honor simultaneously the Convention's commitments (1) to the return of wrongfully abducted children to their home countries, for custody adjudication by courts there with proper jurisdiction, and (2) to safeguarding the children from "grave risk" of harm. The careful and thorough fulfillment of our treaty obligations stands not only to protect children abducted to the United States, but also to protect American children abducted to other nations-whose courts, under the legal regime created by this treaty, are expected to offer reciprocal protection.
5
While we understand the District Court's reluctance to place the children directly into Blondin's custody, we believe the District Court should be given another opportunity to consider, under the clarified standard, whether other options are indeed available under French law-options that may allow the courts of the United States to comply both with the Convention's mandate to deliver abducted children to the jurisdiction of the courts of their home countries and with the Convention's command that children be protected from the "grave risk" of harm. Accordingly, we vacate the judgment of the District Court, and we remand the cause for further appropriate proceedings. We stress, however, that whatever the outcome of those proceedings may be, we do not disturb the District Court's conclusion that the children should not be released from the United States into the custody of their father. At most, they could return to France in the temporary care of some other person; a court in that country would then be empowered-unlike the federal courts of the United States-to make plenary determinations regarding the children's long-term custody.
BACKGROUND
6
Blondin and Dubois met in the summer of 1990 and soon began living together in France, though they never wed. A daughter, Marie-Eline, was born in May 1991; a son, Franois, in August 1995. There is evidence in the record to suggest, however, that family life was turbulent. Dubois testified that Blondin began beating her in 1991; in some instances, he would do so while she was holding Marie-Eline, with the result that some of Blondin's blows would fall on Marie-Eline. She also testified that on one occasion in 1992, Blondin twisted a piece of electrical cord around Marie-Eline's neck, threatening to kill both the mother and the child. After this incident, Dubois left the home for two weeks, living with Marie-Eline in a shelter for battered women before returning to Blondin. The following year, Dubois again took Marie-Eline with her to a series of shelters, living in them over a period of approximately nine months.
7
In April 1993, Blondin commenced an action in France to obtain custody of Marie-Eline. That proceeding was resolved in December 1993, when Blondin and Dubois reconciled, agreeing to live together with Marie-Eline at Blondin's residence. Pursuant to their agreement, the French court terminated the proceedings, and issued an order declaring that "the parental rights over the child will be exercised in common by both parents" and that "the child will have its usual residence at the fathers' [sic]." The court's order also provided for regular visitation by Dubois, in the event that she should choose to live outside Blondin's home.
8
Dubois testified that despite their reconciliation, Blondin continued his abuse. She testified that both during and after her pregnancy with Franois, Blondin repeatedly beat her and threatened her life, as well as the lives of the children. Dubois sought medical attention for her injuries on at least two occasions, and once summoned the French law enforcement authorities.
9
In August 1997, when Marie-Eline was six years-old and Franois was days short of his second birthday, Dubois and the children left France for the United States without notifying Blondin, let alone obtaining his consent. Earlier in 1997, Dubois had forged Blondin's signature in order to obtain passports for the children.
10
Within days of discovering that Dubois and the children had left the home, Blondin sought and obtained a preliminary order from a French court, directing that the children not leave "the metropolitan territory without the previous authorization of the father." It thus appears that Blondin was not immediately aware that they had departed the country, and that they were living with Dubois and her relatives in New York City. However, Blondin had discovered their whereabouts by June 1998, when he filed the instant petition, seeking the children's return to France under the Hague Convention.
11
In keeping with the Convention's explicit emphasis on expeditious judicial resolution, see Hague Convention, art. 11 ("The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children."), the District Court conducted a prompt evidentiary hearing on Blondin's petition. In that hearing, Dubois testified to the factual allegations set forth in the foregoing paragraphs; Blondin, for his part, denied that he had ever "hit" Dubois or the children, but admitted to having spanked Marie-Eline on infrequent occasions, and equivocated as to whether he may have "slapped" Dubois in the "heat of a dispute." Judge Chin also interviewed Marie-Eline, outside the presence of her parents or their attorneys. She told him that Blondin had hit her and her mother, and that this is why they had left France. She also explained that she did not want to return to France because she didn't "want Daddy to hit me." In addition, she also told Judge Chin that both parents beat her, but that Blondin did so more than Dubois.
12
By Memorandum Decision dated August 17, 1998, the District Court denied Blondin's petition. For reasons discussed in detail below, the Court determined that the children would face a "grave risk" of harm if returned to Blondin's custody. See Blondin, 19 F. Supp. 2d at 127-29. The opinion also noted that if the children were to return to France in Dubois's custody, Blondin would be financially unable to support them outside his home. See id. at 128. Although the opinion did not explicitly consider any alternative temporary custodial arrangement, the District Court had earlier rejected (in a ruling from the bench) the one such arrangement suggested by Blondin-namely, placement of the children in France with Marie-Eline's godmother, Noelle Gouillou, pending a final decision by the French courts. Nonetheless, the District Court stated that "if I am going to send the children back, I am probably going to do it with Ms. Dubois."
13
Following entry of judgment, Blondin filed a timely notice of appeal. In light of the importance of deciding matters affecting children as expeditiously as possible, see Hague Convention, art. 11; Joseph Goldstein, Albert J. Solnit, Sonja Goldstein, & Anna Freud, The Best Interests of the Child 9, 42-43 (1996),1 it is unfortunate that neither party requested that this matter be briefed and argued on an expedited basis. At oral argument on May 6, 1999, it became clear that supplemental briefing was needed regarding the availability of remedies that might allow the children to be repatriated, while assuring their safety. In addition to directing the parties to file supplemental briefs on the subject, this Court asked the Department of State to contact the government of France and, if possible, to submit to this Court that government's position on the return of the children as well as on the availability of temporary care for them pending final adjudication of custody, in the event they should be returned.
14
By letter dated July 16, 1999, the government of France responded to the inquiries made by the State Department. That letter, signed by Ms. B. Biondi of the French Ministry of Justice, Office of Mutual Legal Assistance in Civil and Commercial Matters-which apparently functions as France's "Central Authority" under the Convention-stated that her agency had "undertaken to ensure that measures are taken to provide the children, in the event that they are returned to France, with the necessary care pending a decision on custody rights by the French court of competent jurisdiction." In particular, she stated that the government had initiated a review of the "procedural means" by which a temporary placement might be made. She made no concrete proposal as to how this might be accomplished. Although the French Government is apparently still in the process of considering a temporary placement decision, we decide this appeal now in order to afford the District Court-the court best equipped to expeditiously develop a more complete record and to fashion appropriate relief-an opportunity to proceed with dispatch. We hope that any temporary custodial order forthcoming from France will be available by the time the District Court renders its decision on remand. In any event, we recognize the District Court's broad equitable discretion to develop the factual record, and in so doing to inform itself-through the United States Department of State-as to the views of the Government of France, as well as to the efforts that have been made by that government to facilitate repatriation under the Convention.
DISCUSSION
I. The Framework of the Convention
15
The Hague Convention, to which both France and the United States are signatories, seeks to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." Hague Convention, preamble. Under the Convention, removal or retention of a child is deemed "wrongful" when
16
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
17
b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
18
Id., art. 3.
19
The parent (or other individual or institution) who claims that his child has been wrongfully removed may apply to the "Central Authority" of his country, or to the "Central Authority" of the country to which the children have been taken. See id., art. 8. In either case, the Central Authorities of each country will attempt to communicate with each other and with the parties, both to exchange helpful information and, where possible, to achieve voluntary return. See id., arts. 8, 9, 10. Alternatively-especially in those instances where voluntary resolution is not possible-the parent may file a judicial proceeding in the country to which the child has been removed. See id., arts. 8, 11, 29; see also 42 U.S.C. §§ 11601 et seq. (legislation implementing the Hague Convention).
20
By operation of the Convention, "a United States District Court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim." Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) ("Friedrich I"); Hague Convention, art. 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."); see also id., art. 16.2 The abduction claim is limited, initially, to a determination of whether the defendant has "wrongfully removed or retained" the child; on this issue, the plaintiff bears the burden of proof. See 42 U.S.C. § 11603(e)(1)(A) (domestic legislation implementing Hague Convention, and addressing, inter alia, burdens of proof). However, "[o]nce a plaintiff establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses." Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996) ("Friedrich II") (emphasis added); see 42 U.S.C. § 11601(a)(4) ("Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.").
21
Two of those exceptions may be established only by "clear and convincing evidence"-either that "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation," pursuant to Article 13(b) of the Convention, or that return of the child "would not be permitted by the fundamental principles . . . relating to the protection of human rights and fundamental freedoms," pursuant to Article 20. See 42 U.S.C. § 11603(e)(2)(A) (setting forth standard of proof for defenses pursuant to Articles 13(b) and 20). In contrast, the other two exceptions to the presumption of repatriation need only be established by a preponderance of the evidence-either that judicial proceedings were not commenced within one year of the child's abduction and the child is well-settled in the new environment, pursuant to Article 12 of the Convention, or that the plaintiff was not actually exercising custody rights at the time of the removal, pursuant to Article 13(a) of the Convention. See 42 U.S.C. § 11603(e)(2)(B) (setting forth standard of proof for defenses pursuant to Articles 12 and 13(a)).3
22
As the federal statute implementing the Convention makes clear, these four exceptions are meant to be "narrow." 42 U.S.C. § 11601(a)(4).4 They do not authorize a court to exceed its Hague Convention function by making determinations, such as who is the better parent, that remain within the purview of the court with plenary jurisdiction over the question of custody. See Friedrich I, 983 F.3d at 1400 (noting that court deciding Hague Convention petition "has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim."); see also Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (considering asserted exception under Article 13(b), and stating that "[i]t is not relevant to this Convention exception who is the better parent in the long run."). Were a court to give an overly broad construction to its authority to grant exceptions under the Convention, it would frustrate a paramount purpose of that international agreement-namely, to "preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court." Friedrich I, 983 F.2d at 1400; accord Shalit v. Coppe, 182 F.3d 1124, 1126-27 (9th Cir.1999); Nunez-Escudero, 58 F.3d at 376; Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995). And as the Hague Convention's Reporter has explained, "a systematic invocation of [these] exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration." Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980) ("Perez-Vera Report"), ¶ 34.5
II. Application of the Convention
23
Dubois concedes that she "wrongfully abducted" the children from France, as that term is used in the Convention. Thus, she acknowledges, the children must be returned to France unless she can establish one of the exceptions provided by the Convention. See generally Friedrich II, 78 F.3d at 1067; 42 U.S.C. § 11601(a)(4). The single exception she asserts is that provided for in Article 13(b), which permits the court to withhold the child's return if the defendant shows by clear and convincing evidence "that there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b).
24
The District Court agreed with Dubois that returning Marie-Eline and Franois to Blondin would place them at "grave risk" of a "physical or psychological harm." The District Court relied principally upon the record evidence tending to show that Blondin had physically abused Dubois, often in the children's presence, and that he also had beaten Marie-Eline. See Blondin, 19 F. Supp. 2d at 127-28. The Court also relied, to a lesser extent, upon two other factors: That Marie-Eline had expressed her desire not to return to France, see id. at 128-29, and that Dubois and the children "appear to have settled in well in the United States ..., [and] returning the children to France now for custody proceedings would be extremely disruptive," Id. at 128. As to the latter point, the Court noted that Dubois has no financial resources of her own and was supported by relatives while in the United States. See id. The Court continued,
25
In France, Dubois and the children would be dependent upon Blondin. Under the circumstances, I would be extremely wary of requiring Dubois and the children to live in his home. Although one possibility would be to require Blondin to pay for their housing elsewhere, he represented to the Court, during discussions about scheduling a hearing, that he had "no more money" and could not afford the cost even of airfare . . . . Under these circumstances, requiring Dubois and the children to return to France for legal proceedings would present a grave risk of psychological harm or an intolerable situation.
26
Id.
27
Ample record evidence supported the District Court's factual determination regarding the risk of physical abuse that the children would face upon return to Blondin's custody. And the parties do not dispute that such a determination will normally provide the basis for an exception under Article 13(b). In contrast, the other two ancillary considerations articulated by the District Court-that Marie-Eline expressed a preference to remain in the United States and that the children "have settled in well" in this country-were not appropriately relied upon in granting the exception pursuant to Article 13(b). The Convention includes a separate provision allowing the court to take into account a child's objection to being returned "if [the court] finds that the child . . . has obtained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13. The Court did not, however, determine that Marie-Eline was of such an age. Instead, the Court explicitly noted her young age and that she was "prepared, to a degree, for her appearance." Blondin, 19 F. Supp. 2d at 128. Similarly, the circumstance of a child having become "well settled" is governed by a separate exception, which does not apply on the facts presented. Under Article 12, this exception does not apply unless the other parent waited more than one year before filing a petition for the child's return.6 In the instant case, Blondin filed his petition in June of 1998-that is, approximately 10 months after the children's August 1997 abduction. We do not rule out the possibility of a case in which a petition seeking a child's return is filed less than a year after the child's abduction, but it is nevertheless established "by clear and convincing evidence" on the child's behalf that he or she is so deeply rooted in the United States that "there is a grave risk that [the child's] return would expose the child to . . . psychological harm." The child might then be excepted from return under Article 13(b). The record as now constituted does not present such a case.
28
In any event, it appears that the District Court placed little emphasis on these two inapplicable considerations, instead predicating the Article 13(b) exception primarily on the danger that Blondin would physically harm the children-a consideration that lies at the core of the interests this Article was designed to protect. The question remaining before us, however, is whether the District Court could have protected the children from the "grave risk" of harm that it found, while still honoring the important treaty commitment to allow custodial determinations to be made-if at all possible-by the court of the child's home country. As the Hague Convention's Reporter has explained,
29
it would be advisable to underline the fact that . . . the Convention does not seek to regulate the problem of the award of custody rights. On this matter, the Convention rests implicitly upon the principle that any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal . . . .
30
Perez-Vera Report, supra, ¶ 19. The Reporter further offered the view, drawn from the proceedings underlying the Convention, that the "whole structure of the Convention" depended on the institutions of the abducted-to state generally deferring to the forum of the child's home state. See id. ¶ 34. As noted above, such deference is necessary to preserve "the spirit of mutual confidence which is [the Convention's] inspiration." Id.; accord Currier v. Currier, 845 F. Supp. 916, 923 (D.N.H. 1994).7
31
For this reason, it is important that a court considering an exception under Article 13(b) take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child's repatriation. In the exercise of comity that is at the heart of the Convention (an international agreement, we recall, that is an integral part of the "supreme Law of the Land," U.S. Const., art. VI), we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it. See, e.g., Friedrich II, 78 F.3d at 1068.
32
As the District Court properly recognized here, see Blondin, 19 F. Supp. 2d at 128, granting Blondin's petition would not-as a legal matter-invariably entail turning the children over to his custody. In fact, other arrangements might be available that would allow the children to return to France in some other person's care, pending a long-term custody adjudication-thus reducing or eliminating the risk of harm that might otherwise be associated with granting Blondin's petition. One possible remedy was suggested by Blondin-namely, the temporary placement (with the parties' consent) of Marie-Eline and Franois with their godmother, pending a final adjudication of custody by the courts of France. The District Court rejected this suggestion, stating "if I am going to send the children back, I am probably going to do it with Ms. Dubois." Having determined that the children would be returned, if at all, in their mother's care, the District Court subsequently determined in its written opinion that this arrangement would also be impracticable; the Court based this determination on its belief that the family's straitened circumstances would force Dubois and the children to live with Blondin. See Blondin, 19 F. Supp. 2d at 128.
33
As stated above, we find merit in the District Court's reasons for avoiding a remedy that would effectively transfer the children directly into Blondin's custody. However, that concern appears to justify only the Court's decision that the children not be returned in their mother's care, and thereby forced to live in their father's home. It does not explain the Court's determination that the children should not be returned in the temporary custody of some appropriate and suitable third party, with adequate guarantees of child protection. The District Court did not offer any basis in the Convention or any other legal authority for its determination that a temporary third-party placement would be unacceptable, and no such basis is readily apparent to us.
34
Under the circumstances presented, we think it appropriate to remand this matter to the District Court for further consideration of the range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody award in due course by a French court with proper jurisdiction.8 In conducting that inquiry, the District Court should not limit itself to the single alternative placement initially suggested by Blondin. On remand, the Court will have the opportunity to exercise its broad equitable discretion to develop a thorough record to facilitate its decision. In so doing, the District Court should feel free to make any appropriate or necessary inquiries of the government of France-especially regarding the availability of ameliorative placement options in France-and to do so, inter alia, by requesting the aid of the United States Department of State, which can communicate directly with that foreign government. We trust that the District Court will conduct these proceedings on remand with the same dispatch that properly characterized its initial consideration of Blondin's Hague Convention petition. See Hague Convention, art. 11; Goldstein et al., supra, at 9, 42-43.
35
We emphasize, however, that we do not disturb or modify the District Court's finding that returning Marie-Eline and Franois to Blondin's custody (either expressly or de facto) would expose them to a "grave risk" of harm, within the meaning of Article 13(b). Accordingly, if the District Court remains unable to find any reasonable means of repatriation that would not effectively place the children in Blondin's immediate custody, it should deny Blondin's petition under the Convention.
CONCLUSION
36
For the foregoing reasons, we vacate the judgment of the District Court and remand the cause for further proceedings consistent with this opinion, including the further consideration of remedies that would allow the children's safety to be protected pending a final adjudication of custody in France.
Notes:
1
As Professor Goldstein et al. explain:
[A] child may experience a given time period not according to its actual duration, measured objectively by calendar and clock, but according to her subjective feelings of impatience, frustration, and loss. . . . Procedural and substantive decision-making should not exceed the time that the child-to-be-placed can endure loss and uncertainty. . . . As a matter of normal procedure, a child's placement must be treated by legislatures, courts, and administrative agencies as a matter of urgency that comports with the child's sense of time.
Goldstein et al., supra, at 42-43 (paragraphing suppressed).
2
Article 16 provides as follows:
After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
Hague Convention, art. 16.
3
In addition to these four exceptions, the Convention allows a court to take into account the preference of an older child. The court may "refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13; see generally Friedrich II, 78 F.3d at 1067 & n.8.
4
And even where the grounds for one of these "narrow" exceptions have been established, the district court is not necessarily bound to allow the child to remain with the abducting parent. See Friedrich II, 78 F.3d at 1067 ("[A] federal district court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.") (citations omitted).
5
In its "Legal Analysis" of the Hague Convention, reported at 51 Fed. Reg. 10494, 10503, the State Department explains that Perez-Vera served as "the official Hague Conference reporter for the Convention" and that "[h]er explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention." Id; accord Shalit,182 F.3d at 1126-28. As the Supreme Court has noted, "[b]ecause a treaty ratified by the United States is not only the law of this land . . ., but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history (travaux preparatoires) and the postratification understanding of the contracting parties." Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996) (Scalia, J.) (citation omitted). In a similar vein, three decades earlier Professor Myres S. McDougal and his associates explained that "[i]n some contexts, competent examination shows, the most reliable clue to the shared expectations of the parties comes from the travaux; in other contexts it may come from subsequent conduct." Myres S. McDougal, Harold D. Lasswell & James C. Miller, The Interpretation of Agreements and World Public Order 365 (1967).
6
The Hague Convention's Reporter has explained the considerations that led the drafters to select a one-year time limitation:
The problem is an important one since, in so far as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it-something which is outside the scope of the Convention. Now, the difficulties encountered in any attempt to state this test of 'integration of the child' as an objective rule resulted in a time limit being fixed which, although perhaps arbitrary, nevertheless proved to be the 'least bad' answer to the concerns which were voiced in this regard.
Perez-Vere Report, ¶ 107; see also Goldstein et al., supra at 105-06 (defending the utility of time periods in child custody statutes, despite their element of arbitrariness; citing Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting)).
7
As Professor Reisman has observed, the interpretation of a treaty given by the institutions of the United States will likely affect the other signatories' pattern of interpreting that treaty in cases involving the United States or its interests:
All other treaty parties engage in performance-interpretation when they perform or when they react to other parties' performance-interpretations and then themselves decide whether to protest, insist on a modification, declare the treaty void, or acquiesce.
W. Michael Reisman, Necessary and Proper: Executive Competence to Interpret Treaties, 15 Yale. J. Int'l L. 316, 325 (1990).
8
We note that Dubois's supplemental brief, and accompanying affirmation of counsel, mentioned the possibility that she could be criminally prosecuted for abducting the children, should she return to France to litigate custody. She cites no authority regarding the significance, if any, of this asserted possibility under the Convention. Dubois is free, however, to make any argument on remand that she believes follows from the asserted possibility of criminal liability on her part, and, if she does so, the District Court should obtain whatever clarification of French law may be appropriate in the circumstances, including testimony by experts and submissions by French authorities.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4400
FULTON LEE HINEBAUGH, Individually
and d/b/a Hinebaugh Fox Group,
Incorporated,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-94-65)
Submitted: September 30, 1997
Decided: October 30, 1997
Before HALL and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Peter B. Bennett, Michael V. Gilberti, BENNETT & LEAHEY, Red
Bank, New Jersey, for Appellant. Mark T. Calloway, United States
Attorney, Thomas R. Ascik, Assistant United States Attorney, Ashe-
ville, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
F. Lee Hinebaugh, an administrator of corporate benefit plans,
appeals his convictions on five counts of wire fraud 1 and sentence to
fifty-five months incarceration. Hinebaugh asserts that counsel was
ineffective, and that the district court abused its discretion by denying
his Fed. R. Crim. P. 33 motion for a new trial. Additionally, he con-
tends that the district court erred in applying the federal sentencing
guidelines by departing upward to a criminal history category V and
enhancing his sentence for abusing a position of trust. Finding no
reversible error, we affirm Hinebaugh's convictions and sentence.
Hinebaugh's primary contention on appeal is that he suffered inef-
fective assistance of counsel. Essentially, Hinebaugh asserts that
counsel failed to adequately investigate and prepare his case for trial.
According to Hinebaugh, counsel's failure to prepare resulted in such
a breakdown of the attorney-client relationship that he was denied his
Sixth Amendment right to counsel. While we have consistently
observed that a claim of ineffective assistance of counsel is more
properly raised on collateral review than on direct appeal,2 this court
will review a claim of ineffective assistance of counsel on direct
appeal if the record conclusively discloses that defense counsel failed
to provide effective representation.3 With respect to counsel's alleged
_________________________________________________________________
1 See 18 U.S.C. § 1343 (1994).
2 See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995); United
States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994).
3 See United States v. Gastiaburo , 16 F.3d 582, 590 (4th Cir. 1994)
(recognizing the exception, but failing to apply it because the record did
not "conclusively demonstrate" that counsel was ineffective); Matzkin,
14 F.3d at 1017 (declining to address a claim of ineffective assistance of
counsel because counsel's alleged ineffectiveness was not conclusively
apparent from the record).
2
deficiencies, we do not believe that the record conclusively shows
that Hinebaugh was deprived of effective assistance of counsel. Fur-
thermore, we do not find that the district court abused its discretion
by denying Hinebaugh's Rule 33 motion for a new trial based on the
claim of ineffective assistance of counsel.4
Judicial scrutiny of counsel's performance must be highly deferen-
tial. It is all too tempting for a defendant to second-guess counsel's
assistance after conviction or adverse sentence, and it is all too easy
for a court, examining counsel's defense after it has proved unsuc-
cessful, to conclude that a particular act or omission of counsel was
unreasonable, rather than sound trial strategy. 5 In determining Hine-
baugh's Rule 33 motion, the district court found that counsel con-
ducted a reasonable investigation and presented all the issues
Hinebaugh now claims should have been addressed at trial. Moreover,
Hinebaugh failed to offer specific examples of how a more intense
investigation would have exonerated him, and conclusory allegations
are insufficient to warrant relief. Finally, Hinebaugh's assertion of a
break-down of the attorney-client relationship is without merit
because there is no statutory or constitutional right to a "meaningful
attorney-client relationship."6
Next, Hinebaugh asserts that the district court misapplied the sen-
tencing guidelines by departing upward. Hinebaugh's claim is without
merit. Hinebaugh's original guideline range was twenty to thirty-three
months incarceration because his offense level was 18 and he was in
criminal history category I. However, Hinebaugh had numerous prior
fraud-type convictions, including three convictions subsequent to his
indictment in this case, so prior to sentencing the government moved
for an upward departure based on the inadequacy of Hinebaugh's
criminal history and the likelihood that he would commit further crimes.7
After hearing argument on the issue at sentencing, the court found
that Hinebaugh had engaged in criminal conduct while on bail and
that those incidents were each the equivalent of three criminal history
_________________________________________________________________
4 See Smith, 62 F.3d at 650-51.
5 See Strickland v. Washington, 466 U.S. 668, 689 (1984).
6 Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
7 See USSG § 4A1.3.
3
points.8 Adding those nine points to the one point awarded to Hine-
baugh in the presentence report, the court determined Hinebaugh's
criminal history to be category V. Accordingly, the court departed
upward to category V and sentenced Hinebaugh in the middle of the
new guideline range of fifty-one to sixty months.
Hinebaugh argues that the departure was unjustified, and that the
district court failed to consider each successively higher level and
make specific findings before proceeding to the next higher level.9
Hinebaugh's claim is without merit. In the addendum to the record,
the court stated that categories II, III, and IV did not adequately
reflect the seriousness of Hinebaugh's criminal conduct, and that only
category V with its requirement of ten criminal history points
reflected Hinebaugh's serious criminal record and risk of recidivism.10
The court's comments indicate that it intended to comply with the
dictates of Cash and Rusher, and that it considered the intervening
levels inadequate to account for Hinebaugh's past criminal conduct.
Thus, we find the district court's decision to depart was not an abuse
of discretion.11
Additionally, Hinebaugh claims that the district court erred by
adopting the presentence report's findings concerning the amount of
loss. Hinebaugh asserts that the court should have used "actual loss"
in setting his base offense level, instead of the"intended loss" of his
fraud. This circuit reviews the district court's legal interpretation of
the term "loss" de novo, but the determination of the amount of loss
is a factual matter that is only reviewed for clear error.12 Further, the
district court's factual findings need only to be supported by a pre-
ponderance of the evidence.13
_________________________________________________________________
8 See USSG § 4A1.1(a).
9 See United States v. Cash, 983 F.2d 558, 561-63 (4th Cir. 1992);
United States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992).
10 See United States v. Blake, 81 F.3d 498, 504 (4th Cir. 1996).
11 See Koon v. United States, ___ U.S. ___, 64 U.S.L.W. 4512 (U.S.
June 13, 1996) (Nos. 94-1664/8842).
12 See United States v. Castner , 50 F.3d 1267, 1274 (4th Cir. 1995).
13 See United States v. Engleman , 916 F.2d 182, 184 (4th Cir. 1990).
4
In calculating the total amount of loss attributable to Hinebaugh,
the sentencing court included all amounts in trust that Hinebaugh
improperly diverted for non-trust purposes. While Hinebaugh offers
various explanations for the diversions and contends that the "actual
loss" was much less than the total amount diverted, it does not change
the fact that the money was actually diverted. "Loss" under U.S.
SENTENCING GUIDELINES MANUAL § 2F1.1 (1995), does not always
equal the actual financial harm suffered by the victim. The guidelines
provide that where the "intended" loss is greater than the "actual
loss," intended loss will be used to determine a sentence.14 Moreover,
fraudulent losses come about through an ever-expanding variety of
means and each case must be determined on its own facts.15 Accord-
ingly, we find that the district court did not err by adopting the pre-
sentence report's loss computations.
Finally, Hinebaugh asserts that the district court erred in enhancing
his sentence by two points for an "abuse of a position of trust" under
USSG § 3B1.3. Hinebaugh's claim is without merit, and we review
the district court's application of the guidelines' abuse-of-trust provi-
sion only for clear error.16
The phrase "position of public or private trust," refers to positions
"characterized by professional or managerial discretion,17 and whether
a person holds a position of trust is determined from the perspective
of the victim.18 Additionally, USSG § 3B1.3 provides that "[i]f the
defendant abused a position of public or private trust ... in a manner
that significantly facilitated the commission or concealment of the
offense," his sentencing range should be enhanced by two levels.
Applying those principles, Hinebaugh's position as an administrator
of corporate benefit plans with discretionary power over trust funds
is the type of position that the sentencing guidelines describe. We
therefore hold that the district court properly enhanced Hinebaugh's
sentence for abusing a position of trust.
_________________________________________________________________
14 See USSG § 2F1.1, comment (n.7).
15 See United States v. Mancuso , 42 F.3d 836, 849 (4th Cir. 1994).
16 See United States v. Helton, 953 F.2d 867, 869 (4th Cir. 1992).
17 See USSG § 3B1.3, comment (n.1).
18 See United States v. Moore, 29 F.3d 175, 180 (4th Cir. 1994).
5
Accordingly, we affirm Hinebaugh's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
6
| {
"pile_set_name": "FreeLaw"
} |
NO. 07-00-0476-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 5, 2001
_________________________________
ANTONIO SEPEDA,
Appellant
v.
MATT KENNELLY and RAYNALDO CASTRO,
Appellees
_________________________________
FROM THE 223rd JUDICIAL DISTRICT FOR GRAY COUNTY
NO. 31,689; HON. LEE WATERS, PRESIDING
_______________________________
Before Boyd, C.J., and Quinn and Reavis, JJ.
Antonio Sepeda (Sepeda), an inmate at the Rufe Jordan Unit of the Texas Department of Criminal Justice (TDCJ), appeals from an order dismissing his suit against Matt Kennelly (Kennelly) and Raynaldo Castro (Castro), employees of TDCJ. Via his
pro se
brief, he contends the trial court erred in dismissing the action. We reverse.
Background
Reading Sepeda’s original petition liberally, he alleged that he previously had filed a civil action, cause No. 31,480, against employees of the Rufe Jordan Unit.
(footnote: 1) Thereafter, Kennelly, who allegedly supervised the defendants involved in the initial suit, began to retaliate against Sepeda for filing the action. The supposed retaliation took the form of Kennelly’s refusal to accord Sepeda different work assignments and privileges granted other prisoners. When the situation was made known to Castro, a senior warden at the prison, the latter allegedly “failed to even attempt to correct or even make any full investigation.” Rather, Castro “asked Unit Major Bryan to look into the situation.” In turn, Bryan purportedly informed Sepeda that no retaliation was occurring. Nevertheless, Sepeda’s requests for other job assignments continued to be denied.
According to Sepeda, the actions of Kennelly, Castro, and others were “all a form of punishment simply because [he] . . . exercis[ed] [his] rights and proceeding to access to courts with [his] civil rights complaint against employees . . . for mistreatment of a handicapped inmate”. Furthermore, in so combining against him, their retaliation purportedly denied him his constitutional right to access the courts.
Kennelly and Castro joined issued via answer, special exceptions, and plea to the jurisdiction of the court. Thereafter, the trial court entered its order dismissing the cause. The reasons given for same were:
Plaintiffs [sic] claims for relief . . . are derived from the claims
asserted in cause No. 31,480 now pending before this court,
and the relief requested is duplicitous of the relief requested
in No. 31,480, so that Plaintiff therefore has an adequate remedy in No. 31,480 for the damages requested in this cause;
Plaintiff’s claims for damages herein may be addressed in No. 31480;
Plaintiff has asserted no constitutionally protected right in this cause, nor has Plaintiff stated a claim of constitutional dimension in this cause;
Plaintiff’s claims herein have no arguable basis in law or fact and his realistic chances of success herein are slight.
From the order, Sepeda appealed.
Standard of Review
Statute permits a trial court to dismiss an action initiated by someone proceeding
in forma pauperis
.
Tex. Civ. Prac. & Rem. Code Ann
.
§§13.001(a) & 14.003(a) (Vernon Supp. 2001). Before doing so, however, the trial court must first find either that the allegations of poverty were false, that the action was frivolous or malicious,
id.
at §13.001(a)(1) & (2), or that the inmate executed a false affidavit or unsworn declaration.
Id.
at §14.003(a)(3). Next, in determining whether the action is frivolous, the court may consider whether 1) the plaintiff’s “realistic chance of ultimate success is slight,” 2) the claim lacks “arguable merit in law or fact,” 3) the plaintiff can prove a set of facts supporting his claim,
id.
at §§13.001(b)(1), (2), & (3) & 14.003(b)(1), (2), & (3), or 4) the claim arises from the same operative facts as a previous claim filed by the inmate.
Id.
at §14.003(b)(4). Finally, the decision to dismiss is reviewed under a standard of abuse discretion.
See Morris v. Collins
, 916 S.W.2d 527, 528 (Tex. App.--Houston [1st Dist.] 1995, no writ) (stating that a trial court has broad discretion to determine whether to dismiss under 13.001). And, discretion is abused when the court acted arbitrarily, unreasonably, or without reference to guiding principles.
Harrison v. Texas Dept. Crim. Justice
, 915 S.W.2d 882, 887 (Tex. App.--Houston 1995, no writ).
Application of Standard
We now consider each ground relied upon by the trial court. The first involves the conclusion that the claims have no arguable basis in fact. Before the trial court could legitimately make that finding, it was obligated to conduct an evidentiary hearing.
In re Wilson
, 932 S.W.2d 263, 265 (Tex. App.--El Paso 1996, no writ);
Morris v. Collins
, 916 S.W.2d at 528;
Harrison v. Texas Dept. Crim. Justice
, 915 S.W.2d at 887. However, the record at bar reveals no such hearing having been conducted. Thus, the trial court could not have lawfully dismissed the suit on that ground.
Id.
The second ground we address involves the finding that the claims lacked arguable basis in the law. In testing the validity of this ground, we discovered authority holding that prison officials cannot retaliate against a prisoner for availing himself of the courts.
Woods v. Edwards
, 51 F.3d 577, 580 (5th Cir. 1995). Furthermore, the prohibition encompasses discrimination in job assignments.
Vignolo v. Miller
, 120 F.3d 1075, 1077-78 (9th Cir. 1997). Here, Sepeda averred that Kennelly and Castro impermissibly retaliated against him because he filed a civil action against other TDCJ employees. Furthermore, the retaliation allegedly took the form of denying him job assignments and privileges granted other prisoners. On their face, these allegations fall within the scope of
Woods
and
Vignolo
and, therefore, present a facially viable chose-in-action. And, to the extent they do and since the trial court did not conduct an evidentiary hearing before dismissing the cause, “it is impossible to tell from [the] petition whether the . . . action’s realistic chance of ultimate success is slight . . . .”
Spellmon v. Sweeney
, 819 S.W.2d 206, 212 (Tex. App.--Waco 1991, no writ). Thus, dismissal because Sepeda’s purported claim had no arguable basis in law or lacked a realistic chance of success was improper.
The third ground we consider involves the determination that the claims were duplicitous of those encompassed in cause No. 31,480. None of the pleadings from No. 31,480 were made part of the record before us. Nevertheless, the original petition at bar pertains to a circumstance arising
after
cause No. 31,480 was filed. Furthermore, the purported wrong and injury involved in the cause before us concerned retaliation for initiating the former proceeding. Moreover, the retaliation was supposedly committed by individuals other than those named as defendants in the first suit. Thus, the proceeding before us arose from two different transactions or occurrences and involved not only a different wrong and injury but also different parties. In short, the two actions did not encompass the same operative facts as contemplated by §14.003(b)(4) of the Texas Civil Practice and Remedies Code.
(footnote: 2) Nor were they duplicitous simply because the first suit spawned purported misconduct giving rise to the second. So, dismissal on the ground that the suits were duplicitous was improper.
The fourth and final ground we consider concerns the finding that Sepeda’s claims for damages “may be addressed in [cause] No. 31,480.” As shown above, the two suits involved different acts, transactions, and parties. Thus, resolution of the dispute encompassed in the first proceeding would not
ipso facto
resolve that in the second. So, one could not simply conclude that the issues in the second may have been addressed in the first. Furthermore, and to the extent that economy of resource would have favored resolving all disputes at one time, the appropriate recourse was consolidation of the two proceedings, not dismissal of the second action. So, dismissal on this ground also was improper.
In sum, the content of the record at bar satisfies none of the grounds permitting dismissal which are contained in either §§13.001 or 14.003 of the Texas Civil Practice and Remedies Code. In holding otherwise and dismissing the cause, the trial court’s decision did not comport with guiding principles and, therefore, constituted an abuse of discretion. Accordingly, the order of dismissal is reversed and the cause is remanded for further proceedings.
Brian Quinn
Justice
Do not publish.
FOOTNOTES
1:Authority requires us to liberally construe the petition of a
pro se
complainant,
Perales v. Kinney,
891 S.W.2d 731, 732 (Tex. App. – Houston [1
st
Dist.] 1994, no writ), and accept the allegations contained therein as true.
Jackson v. Texas Dept. of Criminal Justice-Institutional Div.,
28 S.W.3d 811, 813 (Tex. App. --Corpus Christi 2000, pet. denied).
2:That different transactions and occurrences formed the basis of each suit negates the State’s contention that res judicata applies. Simply put, the first suit could hardly bar the second when the operative facts or subject matter underlying the second proceeding had yet to occur when the first was initiated.
See Amstadt v. United States Brass Corp.
, 919 S.W.2d 644, 653 (Tex. 1996) (stating that res judicata applies when the plaintiffs in the second suit seek to relitigate the matter which was the subject of the earlier litigation).
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARITA DOUGLAS,
Plaintiff,
v. Civil Action No. 12-429 (JEB)
CHARIOTS FOR HIRE, et al.,
Defendants.
MEMORANDUM OPINION
On March 19, 2012, Plaintiff Charita Douglas, a limousine driver, filed this suit against
her former employer, Chariots for Hire, and its management, seeking unpaid wages under the
Fair Labor Standards Act, 29 U.S.C. § 207. The Court subsequently granted Plaintiff’s Motion
for Leave to Amend her Complaint to pursue a “collective action” on behalf of similarly situated
employees at the company. Defendants now move to dismiss or to transfer venue to the Eastern
District of Virginia, arguing that nearly all of the alleged events here arose in Virginia, not the
District of Columbia. Finding that venue is proper in this District and that the interests of justice
do not weigh in favor of transfer, the Court will deny Defendants’ Motion.
I. Background
According to the Amended Complaint, which must for now be presumed true, Chariots
hired Douglas as a driver in June 2010. See Am. Compl., ¶ 17. She drove both large and small
vehicles for the company, which operates a luxury-limousine transportation service in the greater
Washington area. Id., ¶¶ 16, 17-19, 28. Douglas alleges that Defendants took a number of steps
to avoid paying her and similarly situated employees appropriate minimum and overtime wages
as required by the FLSA. Id., ¶¶ 10-16, 28-31, 36-40, 44. According to Douglas, these measures
1
included misclassifying her and her peers as “casual workers” or “independent contractors” for
tax and employee-benefits purposes. Id., ¶¶ 38-40. In addition, Plaintiff alleges that although
she was required to be present on Defendants’ premises from 9:00 a.m. until the conclusion of
her last drive of the day, seven days per week, she was only compensated for time spent actually
driving passengers. Id., ¶¶ 18-21. She claims this deprived her of overtime wages to which she
would otherwise have been entitled for working more than 40 hours per week. Id., ¶ 23. She
asserts that this also had the effect of denying her minimum wages on several occasions. Id., ¶
24.
Douglas originally filed this lawsuit on March 19, 2012, and subsequently sought leave to
amend her complaint to proceed as a “collective action” under § 216(b) of the FLSA, which
request this Court granted. See Order of September 11, 2012 (ECF No. 36). Additionally,
Plaintiff filed a Motion for Conditional Class Certification, which the Court also granted. See
Order of October 31, 2012 (ECF No. 42). Defendants now move to dismiss the Amended
Complaint for improper venue or, in the alternative, to transfer the case to the Eastern District of
Virginia.
II. Legal Standard
A. 12(b)(3) and § 1406 Dismissal for Improper Venue
When a plaintiff brings suit in an improper venue, the district court “shall dismiss [the
case], or if it be in the interest of justice, transfer such case to any district or division in which it
could have been brought.” 28 U.S.C. § 1406(a); see also Fed. R. Civ. P. 12(b)(3) (may assert
improper venue via motion). In considering a Rule 12(b)(3) motion, the Court “accepts the
plaintiff’s well-pled factual allegations regarding venue as true, draws all reasonable inferences
from those allegations in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s
2
favor.” Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008) (citing Darby v. U.S.
Dep’t of Energy, 231 F. Supp. 2d 274, 276-77 (D.D.C. 2002)). The Court need not, however,
accept the plaintiff’s legal conclusions as true, Darby, 231 F. Supp. 2d at 277, and may consider
material outside of the pleadings. Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002)
(citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)). “Because it is the plaintiff’s obligation to
institute the action in a permissible forum, the plaintiff usually bears the burden of establishing
that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003); 15 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 3826, at 258 (2d ed. 1986 & Supp.
2006) (“[W]hen an objection has been raised, the burden is on the plaintiff to establish that the
district he or she has chosen is a proper venue.”). To prevail on a motion to dismiss for improper
venue, however, “the defendant must present facts that will defeat the plaintiff’s assertion of
venue.” Khalil v. L-3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C. 2009). Unless
there are “pertinent factual disputes to resolve, a challenge to venue presents a pure question of
law.” Williams v. GEICO Corp., No. 10-1420, 2011 WL 2441306, at *2 (D.D.C. June 20,
2011).
B. § 1404 Transfer of Venue
As an alternative to dismissal, Defendants seek to transfer this action to the United States
District Court for the Eastern District of Virginia in the interests of justice pursuant to 28 U.S.C.
§ 1404. Even where a plaintiff has brought its case in a proper venue, a district court may, “for
the convenience of parties and witnesses, in the interests of justice . . . transfer [it] . . . to any
other district . . . where [the case] might have been brought.” 28 U.S.C. § 1404(a). District
courts have “discretion . . . to adjudicate motions for transfer according to an ‘individualized,
3
case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487
U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
III. Analysis
A. § 1406 Dismissal
Defendants first contend that Plaintiff’s Amended Complaint should be dismissed under
28 U.S.C. § 1406(a) because venue in the District of Columbia is improper. See Mot. at 2-7.
This is so, they maintain, because “no substantial part of the events that allegedly gave rise to
Plaintiff’s claims arose in the District of Columbia. On the contrary, all or nearly all of the
events alleged arose in Virginia.” Id. at 6. Plaintiff counters that venue is proper here since “a
substantial part of the events giving rise to [her] claims occurred in [the District of Columbia],
and Defendant corporation is a resident of the District of Columbia.” Opp. at 4-5. The Court
agrees.
For the venue purposes of this case, a civil action may be brought in “a judicial district in
which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C.
§ 1391(b)(2). As a court in this District has noted,
Nothing in section 1391(b)(2) mandates that a plaintiff bring suit in
the district where the most substantial portion of the relevant
events occurred, nor does it require a plaintiff to establish that
every event that supports an element of a claim occurred in the
district where venue is sought. To the contrary, a plaintiff need
only show that “a substantial part of the events or omissions giving
rise to the claim occurred” in that district. 28 U.S.C. § 1391(b)(2)
(emphasis supplied). Indeed, the transactional-venue provision of
section 1391(b)(2) clearly allows that, in some cases, a plaintiff
will have a choice among multiple districts where a substantial
portion of the underlying events occurred. See City of New York
v. Cyco.Net, Inc., 383 F. Supp. 2d 526, 543 (S.D.N.Y. 2005)
(“Venue may be proper even if a greater part of the events giving
rise to a claim happened in another forum.”); Dooley v. United
Techs. Corp., 786 F. Supp. 65, 80 (D.D.C. 1992) (“[I]t appears that
[section 1391(b)(2)] is intended to place venue within the District
4
of Columbia, even where the case also might be brought in another
forum.”); Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th
Cir. 1994) (“[W]e ask whether the district the plaintiff chose had a
substantial connection to the claim, whether or not other forums
had greater contacts.”).
Modaressi v. Vedadi, 441 F. Supp. 2d 51, 57 (D.D.C. 2006). The court concluded that “even if a
substantial part of the events in this case took place in Maryland, that does not preclude plaintiff
from filing suit in the District of Columbia if a substantial part of the events took place here, as
well.” Id.; see also Radtke v. Caschetta, No. 06-2031, 2007 WL 2071700, at *5 (D.D.C. Jul. 17,
2007).
Defendants do not dispute that some of the alleged events in this case took place in the
District of Columbia; instead, they simply contend that a more substantial portion – and, indeed,
the most significant events – occurred in Virginia. See Mot. at 4-5. Specifically, Defendants
point to the following Virginia-centric events:
• “All substantive decisions by the Company about the terms and conditions under
which Plaintiff and other drivers were engaged, and the payments made to
Plaintiff and other drivers in connection with those engagements, were made in
Virginia,” see id. at 4;
• “The computation and processing of payments to Plaintiff and other drivers by the
Company in connection with their engagements for the Company occurred in
Virginia,” see id.;
• “Company vehicles that Plaintiff and other drivers used to perform their
engagements for the Company were owned by M & C, were registered in
Virginia and had Virginia tags,” see id.; and
• Company vehicles “were stored in Virginia, and all regular maintenance on
those vehicles was performed in Virginia,” and drivers accordingly began and
ended each of their engagements at the Company’s facility in Virginia.
See id. (citing Declaration of Jeffrey T. Dausch, ¶¶ 5-9).
While Defendants stress the concentration of events in Virginia, they do acknowledge
that more than one-third of Plaintiff’s trip hours were spent in the District. See id. at 4-5
5
(“Plaintiff spent approximately 254 hours in Virginia, approximately 172 trip hours in the
District of Columbia, and approximately 59 trip hours in Maryland.”). The substantial
percentage of driving hours that Plaintiff and her fellow drivers spent in the District of Columbia
makes this case readily distinguishable from Shay v. Sight & Sound Sys., Inc., 668 F. Supp. 2d
80 (D.D.C. 2009), a case upon which Defendants rely. In Shay, a court in this District found that
there was no venue under § 1391(b)(2) where the plaintiffs’ complaint was almost entirely
devoid of any allegations of work being done in the District of Columbia. The court noted that
while “[f]our of the five plaintiffs [had] allege[d] that their job duties included installing stereo
and electronic equipment throughout the Washington, D.C., metropolitan areas, . . . they fail to
provide any specific facts to show that they performed work in the District of Columbia for
which they have gone uncompensated.” Id. at 84. The plaintiffs’ allegations there were further
undermined where the defendants presented
facts showing that a very small proportion of the plaintiffs’ work
occurred [in the District of Columbia]. For example, the
defendants show that Shay was assigned to work on only one
project located in the District of Columbia. The defendants also
establish that Talbert and Perez each worked on only one project
located in the District of Columbia out of the 100 and 50 projects
respectively that they worked on during the course of their
employment. Findley and Coleman never worked in the District of
Columbia.
Id. at 85 (internal citations omitted). Even were its conclusion binding, the facts in Shay thus
diverge widely from those here.
In addition to the substantial percentage of time Plaintiff personally spent driving
customers in the District, she contends that “a substantial amount of [Defendants’] business was
focused on operating within the District of Columbia.” Opp. at 8. Specifically, Plaintiff points
to admissions by Defendants that
6
• they are “engaged in the business of providing chauffeured transportation services
within the District of Columbia,” see id. (quoting Defs.’ Answer, ¶ 2) (emphasis
omitted);
• “certain of the driving engagements in which Plaintiff participated took place in
part in the District of Columbia,” see id. (quoting Defs.’ Response to Request for
Admission No. 58); and
• they perform transportation services within the District.
See id. (quoting Deposition of Courtney West, Defendants’ Rule 30(b)(6) corporate designee).
Plaintiff further notes that Defendant “M & C Enterprise, Inc., d/b/a/ Chariots for Hire, is a
corporate resident of the District of Columbia as it is both registered in, and maintains a resident
agent assigned within the District.” Opp. at 9.
In addition to these contacts with the District of Columbia, Plaintiff also points to the
following statements on the company’s website proclaiming its unique knowledge of
Washington and the extensive services it offers in the area:
• “. . . no one knows DC like Chariots. With a staff of in-house tour guides and
uniquely trained and certified drivers we can provide you and your guests with a
personal expedition through our Nation’s Capitol. . . . [Y]our DC Chariot
awaits!” see Opp. at 5-6 (citing http://www.chariotsforhire.com/dc_tours.html);
• “[o]ver the past decade, Chariots for Hire became a recognized leader in
transportation and an icon for those interested in Washington DC’s nightlife and
tourism,” id. at 6; and
• “Chariots For Hire possesses unique familiarity with the pace of Washington and
continues to expand its services and vehicles to suit the expectations of its
guests.”
Id.
Considering Plaintiff’s driving time in the District along with Defendants’ admissions
and website, the Court finds that a substantial part of the events in this case took place here, thus
making this District a proper venue for the suit. The Court, therefore, will deny Defendants’
Motion under § 1406 and turn to their alternate argument in favor of transfer under § 1404(a).
7
B. Transfer Under § 1404
Defendants next contend that even if venue in the District of Columbia was proper, the
Court should exercise its discretion to transfer this case under 28 U.S.C. § 1404(a). See Mot. at
7-13. To warrant transfer under § 1404(a), the movant must first show that the plaintiff could
originally have brought the case in the transferee district. Treppel v. Reason, 793 F. Supp. 2d
429, 435 (D.D.C. 2011). The movant must also show that “considerations of convenience and
the interest of justice weigh in favor of transfer . . . .” Sierra Club v. Flowers, 276 F. Supp. 2d
62, 65 (D.D.C. 2003). This second inquiry “calls on the district court to weigh in the balance a
number of case-specific factors,” related to both the public and private interests at stake. Stewart
Org., 487 U.S. at 29. The burden is on the moving party to establish that transfer is proper.
Trout Unlimited v. U.S. Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996).
The parties here agree that the threshold requirement of § 1404(a) is met, as the case
could have originally been brought in the Eastern District of Virginia. See Mot. at 7; Opp. at 13.
That is correct since all Defendants are Virginia residents. See 28 U.S.C. § 1391(b)(1) (venue is
proper in a judicial district where any defendant resides, if all defendants are residents of same
state). Having cleared this preliminary hurdle, the Court will focus its analysis on the private-
and public-interest factors that underlie the case-specific, discretionary transfer inquiry under
§ 1404(a). Those private-interest factors include: (1) the plaintiff’s choice of forum; (2) the
defendant’s choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the
parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof. See
Trout Unlimited, 944 F. Supp. at 16. The public-interest factors include: (1) the transferee’s
familiarity with the governing laws; (2) the relative congestion of the calendars of the transferor
and transferee courts; and (3) the local interest in having local controversies decided at home.
8
See id. In this case, neither the private- nor public-interest factors tip the scales decisively in
favor of either venue. Given the current posture of the case and the familiarity this Court now
has with the parties and issues, the Court ultimately finds that the interests of justice militate in
favor of maintaining the suit in this District.
1. Private-Interest Factors
a. Plaintiff’s Choice of Forum
A plaintiff’s choice of forum is a “paramount consideration in any determination of a
transfer request.” Thayer/Patricof Educ. Funding, LLC v. Pryor Res., 196 F. Supp. 2d 21, 31
(D.D.C. 2002) (internal quotation marks omitted). A plaintiff’s considerable freedom to bring a
lawsuit in an advantageous forum should not be compromised by a transfer that “merely shift[s]
the inconvenience from one party to the other.” 15 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 3848 (3d ed. 1998) (citation omitted).
The deference owed a plaintiff’s chosen forum, however, is lessened when the forum has
“no meaningful ties to the controversy,” and lessened further still when the forum to which
transfer is sought has “substantial ties” to both the plaintiff and “the subject matter of the
lawsuit.” Trout Unlimited, 944 F. Supp. at 17 (citations omitted). While Virginia has
meaningful ties, it cannot be said that the District of Columbia has no ties to the controversy, as a
substantial portion of the relevant events connected to the lawsuit occurred here. See Section
III.A, supra. The Court, therefore, must follow the ordinary rule and accord Plaintiff’s choice of
forum some deference in the transfer inquiry.
b. Defendant’s Choice of Forum
While a defendant’s choice of forum is a consideration when deciding a § 1404(a)
motion, it is not ordinarily entitled to deference. See Mahoney v. Eli Lilly & Co., 545 F. Supp.
9
2d 123, 127 (D.D.C. 2008). And here, where Defendants move to transfer over Plaintiff’s
opposition, they must establish that the added convenience and justice of litigating in their
chosen forum overcomes the deference ordinarily given to Plaintiff’s choice. See In re Vitamins
Antitrust Litig., 263 F. Supp. 2d 67, 69 (D.D.C. 2003). To the extent this factor carries any
weight, it weighs in favor of transfer.
c. Whether Claim Arose Elsewhere
In considering a motion to transfer, the Court also examines whether there is a nexus
between the underlying transactions giving rise to the claim and the forum selected. See, e.g.,
Gipson v. Wells Fargo & Co., 563 F. Supp. 2d 149, 158 (D.D.C. 2008). When the material
events that form the factual predicate of a plaintiff’s claim did not occur in his chosen forum,
transfer is favored. Intrepid Potash-N.M., LLC v. U.S. Dep’t of Interior, 669 F. Supp. 2d 88, 95
(D.D.C. 2009). Where claims arise from actions in several fora, “this factor does not weigh in
favor or against transfer.” Bederson v. U.S., 756 F. Supp. 2d 38, 48 (D.D.C. 2010).
In Section III.A, supra, the Court found that Plaintiff’s engagements in the District of
Columbia and Defendants’ regular performance of transportation services here constituted a
“substantial event” for purposes of 28 U.S.C. § 1391(b)(2). This determination, however, does
not mean that the District of Columbia is where Plaintiff’s claims “arose” for purposes of 28
U.S.C. § 1404(a). See Treppel, 793 F. Supp. 2d at 436. “Courts in this district have held that
claims ‘arise’ under 28 U.S.C. § 1404(a) in the location where the corporate decisions underlying
those claims were made, or where most of the significant events giving rise to the claims
occurred . . . .” Id. at 436-37 (internal citation omitted).
Defendants contend that under this definition, the claims at issue in this case arose in the
Eastern District of Virginia. See Mot. at 9. Specifically, they argue:
10
All of Plaintiff’s payments, and payments to all other drivers, were
computed and processed in Virginia. The Company vehicles that
Plaintiff and other drivers drove to perform their Company
engagements were registered in Virginia, stored in Virginia, and
each of the days in which they participated in driving engagements
for the Company they picked up and dropped off those vehicles at
the Company’s facility in Virginia.
Id. (internal citations omitted). Because the Court agrees that the corporate decisions and most
of the significant events giving rise to the claims here appear to have occurred in Virginia, it
finds that this factor weighs in favor of transfer.
d. Convenience of Parties, Convenience of Witnesses & Ease of Access
to Sources of Proof
The final three factors “do not weigh heavily in favor of either venue, given the close
proximity of the District of Columbia and the Eastern District of Virginia.” Treppel, 793 F.
Supp. 2d at 437 (citing Lagor v. Eli Lilly & Co., No. 06–1967, 2007 WL 1748888, at *4 (D.D.C.
June 18, 2007) (finding close proximity of two potential venues minimized any potential
inconvenience). Additionally, while the bulk of Defendants’ records may be in Virginia,
“technological advances have significantly reduced the weight of the ease-of-access-to-proof
factor.” Nat’l R.R. Passenger Corp. v. R & R Visual, Inc., No. 05-822, 2007 WL 2071652, at *6
(D.D.C. July 19, 2007); see also Thayer, 196 F. Supp. 2d at 36; Air Line Pilots Ass’n v. Eastern
Air Lines, 672 F. Supp. 525, 527 (D.D.C. 1987).
Finding that the private-interest factors do not tilt strongly in favor of either venue, the
Court now turns to the public-interest ones.
2. Public-Interest Factors
The public-interest factors, similarly, offer no clear answer as to the preferable venue.
11
a. Transferee’s Familiarity with the Governing Laws
Both parties agree that the core of the case – Plaintiff’s claim under the FLSA – could be
handled competently by a federal court in either district. See, e.g., Nat’l Wildlife Fed’n v.
Harvey, 437 F. Supp. 2d 42, 49 (D.D.C. 2006) (where “both courts are competent to interpret the
federal statutes involved[,] . . . there is no reason to transfer or not transfer based on this factor”).
Defendants contend, however, that the case should be transferred to the Eastern District of
Virginia because that court would be more familiar with Virginia law, which would “likely”
apply to Plaintiff’s common-law claims for breach of implied contract and fraudulent
misrepresentation. See Mot. at 10-11. Plaintiff counters that District of Columbia law, rather
than Virginia law, will apply to these claims, thus counseling in favor of maintaining this matter
here. See Opp. at 18-19.
While this Court has not performed a choice-of-law analysis for Plaintiff’s common-law
claims, even if Defendants were correct that Virginia law governs, where the heart of the case
involves violations of federal law, this factor is less significant. See Thayer, 196 F. Supp. 2d at
36 (finding this factor did not strongly favor transfer to Kansas where complaint included
numerous allegations of violations of federal securities laws); but see Treppel, 793 F. Supp. 2d at
439 (noting that “courts in this district often transfer cases to the Eastern District of Virginia
where the cases involve claims arising under Virginia law, despite this Court’s ability to apply
Virginia law”).
b. Relative Congestion of the Courts
A comparison of the relative docket congestion in the District of Columbia and the
Eastern District of Virginia is largely neutral with respect to transfer. While “congestion alone is
not sufficient reason to transfer,” this Circuit has held that “relative docket congestion and
12
potential speed of resolution is an appropriate factor to be considered” by district courts in the
motion-to-transfer analysis. See Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974). As
Defendants note, the median time interval from filing to disposition of civil cases is somewhat
shorter in the Eastern District of Virginia. See Mot. at 12-13 (citing U.S. District Courts –
Median Time Intervals, available at
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/appendices/C05Sep11.pdf).
Plaintiff does not appear to dispute the statistical disparities cited by Defendants, instead electing
to focus on the fact that to date, the case has proceeded without “any hint of inefficiency.” Opp.
at 20.
While courts in this District have granted motions to transfer based, in part, on
differences in docket congestion between two districts, see, e.g., Treppel, 793 F. Supp. 2d at 439
(finding transfer warranted based on median-time-interval differences between District of
Columbia and Eastern District of Virginia); Parkridge 6, LLC v. U.S. Dep’t of Trans., 772 F.
Supp. 2d 5, 8-9 (D.D.C. 2009) (same), the statistical differences here do not weigh strongly in
favor of transfer. See U.S. v. H & R Block, Inc., 789 F. Supp. 2d 74, 84-85 (D.D.C. 2011)
(treating relative congestion of dockets as neutral factor in transfer analysis, noting that
“statistics provide, at best, only a rough measure of the relative congestion of the dockets in the
two districts. They do not, for example, reflect the differences in the caseloads carried by
different individual judges in each district. Any disparities between the lengths of time from
filing to trial may also reflect differences other than congestion, such as differences in the types
of cases that are likely to be tried in each district and the level of discovery and pre-trial motion
practice required in those cases.”).
13
Since the filing of this action in March 2012, this case has proceeded in a timely manner.
A Scheduling Order was issued on May 29 following the Initial Scheduling Conference, setting
dates for initial disclosures, motions for joinder or to amend the pleadings, and deadlines for
discovery. See ECF No. 17. This Court has timely ruled on several subsequent motions,
presided over discovery disputes that have arisen, and overseen the parties’ efforts in developing
a Notice of Collective Action. See August 20, 2012 & January 2, January 8, January 10, &
January 17, 2013, Minute Orders. Additionally, while the pending Motion was filed on
September 25, 2012, any delays in its resolution were due to a consensual stay in the proceedings
while the case was referred for mediation. See December 21, 2012, Minute Order. Finally, at
least for now, this particular Court’s calendar is not filled with lengthy scheduled trials that
might interfere with its ability to attend to this matter. This factor thus does not favor either side.
c. Local Interest in Controversies
Defendants maintain that the Eastern District of Virginia, “where Defendants reside and
where the Company operates its business,” has a strong local interest in resolving Plaintiff’s
claims. See Mot. at 13. Plaintiff responds that this District has a “high level of interest in
determining this controversy” because Defendants “actively operate, advertise, and send their
employees to the District.” See Opp. at 21, 20. While Defendants are correct that the Eastern
District of Virginia has a strong interest in having Plaintiff’s claims resolved there, Defendants’
substantial business engagements in the District of Columbia largely neutralize this factor.
When viewed collectively, both sets of factors do not strongly favor litigation in either
venue. While several may tip slightly in favor of transfer to Virginia, they do not do so
decisively, and the burden is squarely on Defendants to demonstrate that the balance of factors
14
favors transfer. See Thayer, 196 F. Supp. 2d at 31; Armco Steel Co., L.P. v. CSX Corp., 790 F.
Supp. 311, 323 (D.D.C. 1991).
3. Interests of Justice
Given this essential equipoise or, at most, a gentle inclination of the scale toward transfer,
the Court might be at an impasse. That is not the case here because a critical factor has yet to be
discussed: the Court’s current involvement in the case. Where a Court has gained knowledge
and familiarity with the facts, the interests of justice and concerns of efficiency militate in favor
of retaining the suit. See SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1156 (D.C. Cir. 1978) (a
court’s “familiarity with the allegations, characters, lawyers, and previous history of litigation of
th[e] particular case” weighed in favor of denying party’s request for transfer) (citing Wyndham
Assoc. v. Bintliff, 398 F.2d 614, 619-20 (2d Cir. 1968)); FTC v. Cephalon, Inc., 551 F. Supp. 2d
21, 31 (D.D.C. 2008) (finding that “th[e] case may be resolved more expeditiously” where “[the]
court is already familiar with the facts and legal issues presented”); Navajo Nation v. Peabody
Holding Co., Inc., 209 F. Supp. 2d 269, 280 (D.D.C. 2002) (denying motion to transfer in part
because case had been pending for significant period, “during which time the Court has
considered and resolved a variety of potentially dispositive motions and discovery disputes,”
thus making the “interests of judicial efficiency” against transfer).
As discussed in Section III.B.2.b, supra, the Court has ruled on a number of substantive
motions, dealt with the lawyers on multiple occasions, and helped guide the discovery and class
procedures. This familiarity would be squandered by a transfer now. As a result, the Court’s
prior involvement means that the interests of justice would be clearly served by keeping the case
here. This determination carries sufficient weight to offset the other factors that might lean
toward transfer.
15
IV. Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order denying
Defendants’ Motion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 24, 2013
16
| {
"pile_set_name": "FreeLaw"
} |
267 S.W.3d 619 (2007)
VACCARO LUMBER and Jamie Donerson, Appellants,
v.
Gayla FESPERMAN, Appellee.
No. CA 07-233.
Court of Appeals of Arkansas.
November 7, 2007.
Rehearing Denied December 19, 2007.
*620 Laser Law Firm, by: Cotten Cunningham; Barrett & Deacon, by: Kevin W. Cole and Brandon J. Harrison, Jonesboro, AR, for appellants.
Law Office of Alvin L. Simes, by: Alvin L. Simes, Forrest City, AR, for appellee.
SAM BIRD, Judge.
On May 24, 2000, Jamie Donerson, an employee of Vaccaro Lumber Company, accidentally backed a company flatbed delivery truck into Gayla Fesperman's car at a stop sign in Marianna in order to avoid oncoming traffic. In December 2000, Ms. Fesperman filed a complaint against Vaccaro Lumber Company and Jamie Donerson, alleging negligence and requesting $50,000 in compensatory damages and $50,000 in punitive damages.[1] The case went to trial in August 2006, and a jury found that Vaccaro and Donerson were negligent and awarded $50,000 in damages to Ms. Fesperman. Vaccaro filed a post-judgment motion asking the circuit court to grant a new trial or, in the alternative, *621 to order a remittitur because the verdict was excessive. The circuit court denied Vaccaro's motion. Vaccaro and Donerson bring this appeal from the judgment of the court and from the court's order denying Vaccaro's motion for new trial or remittitur. We reverse and remand for a new trial.
After the accident, Ms. Fesperman left the scene to call the police. Officer Walker arrived minutes later and spoke with Mr. Donerson, Mr. Donerson's passenger, and Ms. Fesperman. Officer Walker did not call emergency-medical personnel to the scene. Ms. Fesperman told Officer Walker that she was not injured and then drove her car from the scene.
On the day after the accident, a friend drove Ms. Fesperman to the emergency room, where the treating doctor diagnosed her with "a lower back strain with muscle spasm" and prescribed a muscle relaxant. The emergency-room doctor suggested a heating pad and restricted her to light-duty work for seventy-two hours. Several days later, Ms. Fesperman was treated by Dr. William M. Traylor at Traylor Chiropractic Clinic in Forrest City. From May 30, 2000, until August 14, 2000, Ms. Fesperman made twenty-five office visits to the Traylor Chiropractic Clinic for treatment. On August 14, 2000, the Clinic discharged Ms. Fesperman, stating in its discharge cover sheet: "She's reached maximum improvement, no further scheduled treatment is anticipated." The Clinic did not assign a disability rating and released her without restrictions, indicating that she was "allowed normal activity with continued care." There was no evidence presented at trial that any other doctor treated Ms. Fesperman or prescribed any medication for her. Her medical bills totaled $4,791.50.
While Ms. Fesperman testified that she was off work due to her lower-back problems for about twelve weeks, according to the records of the Traylor Chiropractic Clinic, she was advised not to work for three weeks. Moreover, the evidence indicated that Ms. Fesperman received checks for working three weeks in June 2000, the month after the accident. Ms. Fesperman could not explain the inconsistency.
On appeal, Vaccaro and Donerson do not challenge the jury's finding of liability but only the amount of damages that the jury awarded. They argue that the jury's award of damages is excessive and is not supported by substantial evidence and that the circuit court abused its discretion in refusing either to grant Vaccaro's motion for new trial or order remittitur. Ms. Fesperman argues that there was substantial evidence to support the verdict, stating that she proved her case through the testimony of Dr. Hayde, a chiropractor employed by the clinic where Ms. Fesperman was treated.
Where an award of damages is alleged to be excessive, this court reviews the proof and all reasonable inferences most favorably to the appellee and determines whether the verdict is so great as to shock the conscience of the court or demonstrates passion or prejudice on the part of the jury. Advocat, Inc. v. Sauer, 353 Ark. 29, 43, 111 S.W.3d 346, 353 (2003); see also Mustang Elec. Servs., Inc. v. Nipper, 272 Ark. 263, 613 S.W.2d 397 (1981). Remittitur is appropriate when the compensatory damages awarded are excessive and cannot be sustained by the evidence. Id. The standard of review in such a case is whether there is substantial evidence to support the verdict. Id. We will review a circuit court's denial of a motion for new trial or order of remittitur based on excessive damages for abuse of discretion. Id. at 48, 111 S.W.3d at 357.
*622 In determining whether the amount of damages is so great as to shock the conscience of this court, we consider such elements as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Builder's Transp., Inc. v. Wilson, 323 Ark. 327, 328, 914 S.W.2d 742, 743 (1996). We make this determination on a case-by-case basis with little reliance on prior decisions, as "precedents are of scant value in appeals of this kind." Id. (quoting Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457 (1983)). With these elements in mind, we turn to the evidence presented in this case.
Ms. Fesperman contended at trial that, as a result of the accident, she suffered an injury to her lower back. On appeal, appellants argue that the evidence presented at trial simply did not support the damages awarded by the jury for Ms. Fesperman's injury. First, appellants claim that Ms. Fesperman did not suffer sufficient physical injury to justify the damages awarded, arguing specifically that the award is more than ten times her medical bills; Ms. Fesperman neither received nor requested medical attention at the time of the accident; she felt well enough to drive away from the accident; she suffered no broken bones, scrapes, bruises, scars, or abrasions in the accident; she has never been hospitalized because of the accident; other than the seventy-two hour, light-duty restriction recommended by the emergency-room doctor the day after the accident, no medical restrictions have ever been placed on her ability to enjoy daily life because of the accident; she is able to drive, work if she chooses, play with her granddaughter, do housekeeping chores, and garden; and she stopped receiving chiropractic treatments six years before the trial. Moreover, they argue, her medical bills totaled only $4,791.50. They assert further that, aside from the muscle relaxants prescribed by the emergency-room doctor immediately after the accident, Ms. Fesperman has taken no prescription pain medication for any injury caused by the accident. Indeed, appellants note, there was no evidence that she takes any medication at all for pain.
Second, appellants argue that Ms. Fesperman did not suffer sufficient mental or emotional anguish to justify the award. While she did testify that the accident "scared her to death," there was no evidence that Ms. Fesperman needed psychological or pastoral counseling because of the accident. She did not testify that the accident affected her enjoyment of life or that it changed her life in any significant manner. Nor was there any evidence that Ms. Fesperman suffered any permanent disability. In addition, appellants contend that no evidence was presented regarding future medical expenses. Ms. Fesperman has no pending appointments; no medical provider has limited her ability to work or do other activities in the future; she has not and does not take prescription medication; and she was released from her chiropractor's care over six years before the jury deliberated this case. Finally, appellants claim that, while Ms. Fesperman could not explain why her former employer paid her during a time that she said she had not worked, Ms. Fesperman testified that she lost only $685 in wages because of the accident. Therefore, even allowing for deference to the jury's findings of credibility, appellants claim that there simply was not substantial evidence to support a verdict of $50,000.
Ms. Fesperman argues only that she proved her damages through Dr. Hayde's testimony, although she does not point to anything specific in it. Dr. Hayde testified that, at the time of trial, he was a chiropractor employed by Traylor Chiropractic *623 Clinic in Forrest Citythe clinic where Ms. Fesperman received treatments from Dr. Traylor after the accidentbut that he was not employed by the clinic when Ms. Fesperman was being treated. He stated that he reviewed Ms. Fesperman's records, that she was treated at the clinic between May 30, 2000, and August 14, 2000, for a lumbar sprain and neck pain. Ms. Fesperman has not claimed that her neck pain was caused by the accident. Dr. Hayde testified that Dr. Traylor recommended that she remain off work for about three weeks. He also testified that the clinic discharged Ms. Fesperman on August 14, 2000, stating that she had reached maximum improvement and that no additional treatment was anticipated. He did not testify about any permanent impairment or future medical expenses.
There was evidence presented in this case to support an award of medical expenses in the amount of $4,791.50 and lost wages in the amount of $685, which together total $5,476.50. The only evidence presented to support an additional award of damages, for either future medical expenses or pain and suffering, was Ms. Fesperman's testimony. She testified that, while she still has pain sometimes and her back has hurt her "just about every day" since the accident, depending upon the activity she is doing, she still carries on with her normal activities and does everything that she did before the accidentthat is, driving, housecleaning, taking care of her three-year-old grandchild, and gardening. She admitted that she is not taking medication for her pain and has not seen a doctor for her pain since August 2000. Without more, Ms. Fesperman's testimony simply does not constitute substantial evidence sufficient to support an award of almost ten times the special damages proved in this case.
Determining the proper amount of damages in a personal-injury case is difficult, but, giving the evidence in this case its greatest probative value, as we must, we find that the jury's award of $50,000 was not supported by the evidence. A damages award is not a lottery ticket; the amount of damages must be supported by substantial evidence. If evidence does not support the amount awarded, and the amount is sufficiently excessive in relation to the evidence presented at trial that it shocks the conscience of the appellate court, then we must order remittitur or remand for a new trial. We hold that the circuit court abused its discretion in failing either to grant Vaccaro's motion for new trial or to order remittitur. Therefore, we reverse the judgment and remand for a new trial.
Reversed and remanded.
GLADWIN and HEFFLEY, JJ., agree.
NOTES
[1] The circuit court granted Vaccaro's motion for directed verdict on the issue of punitive damages at trial, finding no evidence to justify such an award.
| {
"pile_set_name": "FreeLaw"
} |
43 F.3d 1463
U.S.v.Lombardo (Nicholas)
NO. 94-1288
United States Court of Appeals,Third Circuit.
Nov 14, 1994
Appeal From: E.D.Pa., No. 93-cr-00215-3
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
FILED
MAR 2 0 2012
UNITED STATES DISTRICT COURT Clerk, U.S. District & Bankruptcy
FOR THE DISTRICT OF COLUMBIA C0urts for the District of Co|umbla
JAIME QUINTERO, )
)
Plaintiff, )
)
v_ ) Civil Action No. g-
) 12 O43o
UNITED STATES SENTENCING )
COMMISSION, )
)
Defendant. )
MEMORANDUM OPINION
This matter is before the Court on the plaintiff s application to proceed in forma pauperis
and his pro se complaint. The Court will grant the application and dismiss the complaint.
lt appears that the plaintiff is serving a tenn of life imprisonment, and that he disputes
whether "life" means "natural life" or a 360-month term of incarceration. See Compl. at 3 (page
number designated by the Court). The plaintiff alleges that the sentence imposed by the United
States District Court for the District of Arizona is illegal, and he requests "a new sentencing with
hearing according with Criminal Rule 43" or, alternatively, his "release from prison." Id.
The Court construes the complaint as a challenge to the legality of the plaintiffs criminal
sentence, A challenge of this nature must be presented to the sentencing court in a motion under
28 U.S.C. § 2255. See Ojo v. Immigration & Naturalz`zatz'on Serv., 106 F.3d 680, 683 (5th Cir.
1997). Section 2255 provides specifically that:
[a] prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed_in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate
set aside or correct the sentence.
28 U.S.C. § 2255(a) (emphasis added).
The court will dismiss the complaint for subject v tter jurisdiction and it will be
‘!
dismissed. An Order accompanies this Me
Unitell States District Judge
”"§/M//f/
| {
"pile_set_name": "FreeLaw"
} |
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKTOR YAROSLAVOVICH SAGAYDAK;
NATALIYA BOGDANIVNA SAGAYDAK, No. 02-74299
Petitioners, Agency Nos.
v. A77-424-463
ALBERTO GONZALES,* Attorney A77-424-462
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 6, 2004—Seattle, Washington
Filed May 4, 2005
Before: Procter Hug, Jr., A. Wallace Tashima, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Partial Concurrence and Partial Dissent by Judge Tashima
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
4817
SAGAYDAK v. GONZALES 4821
COUNSEL
Tom Youngjohn, Federal Way, Washington, for the petition-
ers.
Leslie McKay, Washington, D.C., for the respondent.
OPINION
PAEZ, Circuit Judge:
To be eligible for asylum, an alien must, absent changed or
extraordinary circumstances, file an asylum application within
one year of arriving in the United States. 8 U.S.C.
§ 1158(a)(2). In the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996, Congress made clear that
“no court shall have jurisdiction to review any determination
of the Attorney General” with respect to whether the alien had
met the one-year deadline or had failed to satisfy this time
limit because of extraordinary circumstances. Pub.L. 104-208,
§ 604, 110 Stat. 3009-691 (1996) (codified at 8 U.S.C.
§ 1158(a)(3)); see also Hakeem v. INS, 273 F.3d 812, 815 (9th
Cir. 2001). However, in this case, we are confronted with an
unusual situation: The lead petitioner argued that his untimely
filing was due to extraordinary circumstances, but both the
Immigration Judge (“IJ”) and the Board of Immigration
Appeals (“BIA”) failed to address the issue. We hold that
when the Attorney General fails to make a “determination,”
this court has jurisdiction to grant the petition and remand the
case so that the agency charged with making this determina-
tion can properly do so.
4822 SAGAYDAK v. GONZALES
Both petitioners also argued that they were targeted by their
alleged persecutors on account of a protected ground. See 8
U.S.C. § 1101(a)(42)(A). The IJ disagreed, and the BIA sum-
marily affirmed. We find that substantial evidence does not
support the IJ’s conclusion that the petitioners were targeted
purely for personal punishment or revenge, rather than on the
basis of Viktor’s implied or actual political opinion, and we
remand for the BIA to determine whether the petitioners have
satisfied the remaining eligibility requirements for asylum, 8
U.S.C. § 1158, and withholding of removal, 8 U.S.C. § 1231.
I.
The petitioners in this case, Viktor and Nataliya Sagaydak,
are citizens of Ukraine. Before immigrating to the United
States, Viktor worked as a tax auditor for the Ukrainian gov-
ernment. During an audit of the Hidro Corporation (“Hidro”),
Viktor uncovered an illegal tax-evasion scheme. Viktor dis-
covered that Hidro, founded by a high-ranking government
official, had evaded the payment of automobile import duties.
When Viktor reported his findings to officials at Hidro, they
attempted to bribe Viktor to change his report. They first
offered him an envelope filled with valuable American dol-
lars, and after he refused, they offered a vacation to Germany.
Viktor refused both bribes and referred the matter to local
prosecutors.
Ten days later, two men forcibly removed Nataliya from a
bus and warned her that her husband “should be more agree-
able with us, because if he will not agree with us, we know
what we will do.” Nataliya suffered a miscarriage three days
after being assaulted, which she attributed to this incident.
Viktor also began receiving threats. Callers warned him to
change his report, and reminded Viktor of Nataliya’s abduc-
tion. A Hidro henchman also informed Viktor that “we will
make a powder out of you.”
SAGAYDAK v. GONZALES 4823
Fearing for his safety, Viktor arranged for his cousin to
drive him to work. While Viktor’s cousin was driving alone
in his car, equipped with tinted windows, he was shot. The
cousin was supposed to be chauffeuring Viktor at that time,
but Viktor had cancelled at the last moment. A Hidro thug
warned Viktor that “next time, we are not going to shoot your
brother, we will shoot you.”1
Viktor fled to the United States and arrived on September
17, 1997. After he had left Ukraine, the Sagaydaks’ apartment
was vandalized. Nataliya then joined Viktor in the United
States. Even though both had left the country, two men threat-
ened Viktor’s father after inquiring about Viktor’s where-
abouts. Members of Nataliya’s family were also involved in
a suspicious car accident that Nataliya suspects was caused by
Hidro officials.
Viktor filed for asylum on November 18, 1998, and
included Nataliya in his application. During the removal pro-
ceedings, the IJ noted that Viktor had failed to apply within
one year of arriving in the United States.2 The Sagaydaks’
attorney asked the IJ to consider the fact that Viktor had con-
tacted his prior attorney long before the one-year deadline
passed. The IJ responded that it was “not within his authority”
to take that fact into account because, the IJ explained, federal
law automatically precludes an alien from applying for asy-
lum after being in the United States for more than one year.
The IJ explicitly found Viktor’s testimony to be credible,
and did not comment on Nataliya’s credibility. We therefore
accept each of their testimony as true. See Mashiri v. Ash-
1
Viktor testified that the Ukrainian language does not distinguish the
words “brother” and “cousin,” and that this misstatement was simply an
error in translation.
2
Nataliya, on the other hand, arrived in the United States on February
13, 1998, and the IJ found that she was therefore eligible for asylum
despite the lead applicant’s ineligibility.
4824 SAGAYDAK v. GONZALES
croft, 383 F.3d 1112, 1119 (9th Cir. 2004); Kalubi v. Ash-
croft, 364 F.3d 1134, 1137 (9th Cir. 2004). The IJ nonetheless
denied the Sagaydaks’ applications for asylum, as well as
their applications for withholding of removal under 8 U.S.C.
§ 1231(b)(3) and relief under the Convention Against Torture
(“CAT”), 8 C.F.R. § 208.16(c). The IJ held that Viktor was
“ineligible for asylum since he arrived in the United States on
September 17, 1997, and did not apply for asylum until
November 18, 1998, more than one year after his arrival.”
The IJ did not, however, address Viktor’s argument that
extraordinary circumstances had caused the delay. With
respect to Nataliya, the IJ determined that she had filed within
the one-year bar, and therefore considered the merits of her
asylum application.
In addressing Viktor’s claim for withholding of removal
and Nataliya’s claims for asylum and withholding, the IJ
determined that the Sagaydaks failed to establish that they
would be persecuted on account of a protected category. The
IJ specifically rejected the Sagaydaks’ contention that Ukrai-
nian tax auditors constitute a bona fide social group. More-
over, the IJ reasoned that the Sagaydaks were facing harm
because Viktor was involved in the prosecution of corrupt
officials, not because of Viktor’s membership in a protected
class. Thus, the IJ ruled that “in the case of [Nataliya], there
is not a well-founded fear of persecution based upon one of
the five grounds, and for both respondents, there is not a clear
probability of persecution based upon one of the five grounds
that they will be persecuted if they return to the Ukraine.”
Additionally, the IJ found both petitioners ineligible for CAT
relief because their persecutors were private citizens, not gov-
ernment officials.
The Sagaydaks appealed to the BIA, arguing in part that the
IJ erred by failing to determine whether Viktor had qualified
for the extraordinary-circumstances exception to the one-year
time bar. The BIA affirmed the IJ’s decision without opinion
SAGAYDAK v. GONZALES 4825
on November 18, 2002. The Sagaydaks filed their timely peti-
tion for review on December 16, 2002.3
II.
Viktor contends that the IJ erred by not determining
whether Viktor’s failure to meet the one-year time bar was
attributable to exceptional circumstances. We agree.
A.
[1] We first consider whether we have jurisdiction to
review this challenge to the IJ’s ruling.4 Normally, this court
cannot consider a petitioner’s claim that exceptional circum-
stances should excuse his late filing. See Hakeem, 273 F.3d
at 815. This is true because, under 8 U.S.C. § 1158(a)(3), we
lack “jurisdiction to review any determination of the Attorney
General under paragraph (2) [of 8 U.S.C. § 1158(a)].” Para-
graph (2) of § 1158(a) contains two separate provisions: the
one-year filing deadline contained in subparagraph (B),5 and
the extraordinary-circumstances exception to the one-year fil-
ing deadline contained in subparagraph (D).6 Thus, we cannot
3
The same day that the petition for review was filed, the Sagaydaks also
filed a motion to reopen with the BIA. The BIA denied the motion on
March 10, 2003. The petitioners did not file an amended petition for
review to incorporate the BIA’s denial of the motion to reopen. Accord-
ingly, the BIA’s denial of the motion to reopen is not before us here.
4
We, of course, have jurisdiction to determine whether we have jurisdic-
tion. Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000).
5
Subparagraph (B) provides in full: “Subject to subparagraph (D), para-
graph (1) shall not apply to an alien unless the alien demonstrates by clear
and convincing evidence that the application has been filed within 1 year
after the date of the alien’s arrival in the United States.” 8 U.S.C.
§ 1158(a)(2)(B).
6
Subparagraph (D) provides in full:
An application for asylum of an alien may be considered, not-
withstanding subparagraphs (B) and (C), if the alien demonstrates
4826 SAGAYDAK v. GONZALES
review the IJ or BIA’s determination that an alien failed to
apply within one year of arriving in the United States or a
determination that the delay in filing was not caused by
extraordinary circumstances.
[2] But what if, as occurred in Viktor’s case, an IJ makes
no determination, even though the issue was raised by the
petitioner? Although the IJ made a determination that Viktor
had applied more than one year after arriving in the United
States, the IJ did not consider, much less determine, whether
Viktor’s failure to meet the one-year time bar was caused by
extraordinary circumstances. The IJ’s only statement with
respect to Viktor’s asylum application was that “[t]he Court
finds that the male respondent is ineligible for asylum since
he arrived in the United States on September 17, 1997, and
did not apply for asylum until November 18, 1998, more than
one year after his arrival. Section 208(a)(2)(B); 8 C.F.R.
208.4(a)(2).” Both the IJ’s words and his citations refer spe-
cifically to the one-year time bar; they do not address the
extraordinary-circumstances exception.
[3] Had the IJ merely erred in making a determination
under subparagraph (D), we would lack jurisdiction. 8 U.S.C.
§ 1158(a)(3). Here, however, the IJ’s error was that he did not
make “any determination” at all. The jurisdiction-stripping
provision contained in § 1158(a)(3) only precludes us from
reviewing “any determination” with respect to the
extraordinary-circumstances exception. In light of the fact that
the IJ failed to make “any determination,” even though the
extraordinary-circumstances issue was raised by Viktor’s
to the satisfaction of the Attorney General either the existence of
changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to
the delay in filing an application within the period specified in
subparagraph (B).
8 U.S.C. § 1158(a)(2)(D).
SAGAYDAK v. GONZALES 4827
attorney, we conclude that § 1158(a)(3) does not apply in this
case. Quite simply, we are not reviewing a “determination,”
but the failure to make a determination. Thus, we hold that
when, as occurred here, a petitioner alleges that his failure to
file a timely asylum application was due to extraordinary cir-
cumstances and both the IJ and the BIA fail to determine
whether the extraordinary-circumstances exception should
apply, we have jurisdiction to review the failure to make a
determination.
B.
[4] We next consider whether it was error for the IJ not to
determine whether Viktor’s late filing was due to extraordi-
nary circumstances. We think it goes without saying that IJs
and the BIA are not free to ignore arguments raised by a peti-
tioner. See Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir.
2004) (holding that “the IJ erred by failing to consider” an
explanation offered by the petitioner for her brother’s failure
to appear and testify on her behalf). Immigration judges,
although given significant discretion, “cannot reach their deci-
sions capriciously” and “must indicate ‘how [they] weighed
the factors involved’ and ‘how [they] arrived at [their] conclu-
sion.’ ” Yepes-Prado v. INS, 10 F.3d 1363, 1370 (9th Cir.
1993) (quoting Dragon v. INS, 748 F.2d 1304, 1307 (9th Cir.
1984)). Furthermore, it has long been held that the BIA’s
“failure to exercise its own discretion, contrary to existing
regulations” is reversible error. United States ex rel. Accardi
v. Shaughnessy, 347 U.S. 260, 268 (1954).
[5] Although the BIA effectively ignored the issue of
whether the extraordinary-circumstances exception should
apply in Viktor’s case, the IJ was apparently not even aware
of this exception. During the removal hearing, Viktor’s attor-
ney attempted to submit evidence that the delay in filing the
application was caused by Viktor’s prior attorney’s ineffec-
tive assistance. The IJ, however, interrupted the attorney and
said:
4828 SAGAYDAK v. GONZALES
Well, the only thing that is going to make me change
my ruling is if you show me an application that was
submitted before—
MR. YOUNGJOHN TO JUDGE:
I wouldn’t be able to do that, Your Honor.
JUDGE TO MR. YOUNGJOHN:
Because, as I say, you can’t get around clear lan-
guage of the law . . . . I’m just trying to find the sec-
tion on time limit. Let’s see, the alien must
demonstrate by clear and convincing evidence that
the application was filed within one year after the
date of the alien’s arrival in the United States. So
application filed, that would not mean beginning
preparations or whatever.
MR. YOUNGJOHN TO JUDGE:
Please, for the record, can I—
JUDGE TO MR. YOUNGJOHN:
You can submit anything you want, Mr. Youngjohn.
I just want you to know that I don’t have—it’s not
within my authority, even if I wanted to do it—
MR. YOUNGJOHN TO JUDGE:
Yes, sir.
JUDGE TO MR. YOUNGJOHN:
— if I decide, you know, in this case, I think I’m
going to do that, I would be reversed by the Board
of Immigration Appeals.
SAGAYDAK v. GONZALES 4829
MR. YOUNGJOHN TO JUDGE:
Yes, Your Honor.
As this colloquy demonstrates, the IJ believed that the one-
year deadline was absolute and not subject to any exception.
Under the IJ’s understanding of the statute, so long as Viktor
applied for asylum more than a year after his arrival in the
United States, the IJ had no “authority” to find Viktor eligible
for asylum. Indeed, the IJ was concerned that if he found an
exception to the one-year time bar, he would be reversed by
the BIA.
[6] The IJ’s understanding of the INA was plainly contrary
to both the statute’s and the regulation’s obvious meaning.
Under 8 U.S.C. § 1158(a)(2)(D), the one-year time bar does
not apply “if the alien demonstrates to the satisfaction of the
Attorney General . . . the existence of . . . extraordinary cir-
cumstances relating to the delay in filing an application.”
Additionally, the agency’s own regulation provides that
extraordinary circumstances can excuse an alien’s failure to
satisfy the one-year time bar, and the regulation specifically
recognizes that ineffective assistance of counsel, the basis of
Viktor’s extraordinary-circumstances claim, can qualify as an
extraordinary circumstance. 8 C.F.R. § 208.4. Neither the stat-
ute nor the regulation is ambiguous, and neither could be
interpreted any other way than including an extraordinary-
circumstances exception. The IJ erred as a matter of law, and
we therefore remand Viktor’s asylum claim to the BIA, or, if
it deems appropriate, to the IJ, for further proceedings.7
7
In addition to the extraordinary-circumstances exception contained in
the statute, Viktor also contends that the one-year time bar should be sub-
ject to equitable tolling. We need not decide whether the equitable tolling
doctrine applies to the one-year time bar on asylum applications. The reg-
ulations specify that the extraordinary-circumstances exception includes
claims based on ineffective assistance of counsel. 8 C.F.R. § 208.4. Thus,
although a statute can also be equitably tolled on the basis of ineffective
4830 SAGAYDAK v. GONZALES
III.
The IJ denied Viktor’s claim for withholding of removal
and Nataliya’s claims for asylum and withholding of removal
on the basis that Viktor did not establish that the Hidro hench-
men “wish[ed] to harm him due to his race, his religion, his
nationality, his membership in a particular social group, or his
political opinion.” See 8 U.S.C. § 1101(a)(42)(A). The Sagay-
daks challenge this determination.8 We review for substantial
assistance of counsel, see Socop-Gonzalez v. INS, 272 F.3d 1176, 1193
(9th Cir. 2001) (en banc), the availability of relief for Viktor under the
extraordinary-circumstances exception makes it unnecessary for us to
decide whether the equitable tolling doctrine is applicable here. See
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226 n.5 (9th Cir. 2002) (declin-
ing to address whether a regulatory exception for “exceptional circum-
stances” should apply because the petitioner’s arguments were the same
arguments that supported the equitable tolling claim that the court had
already considered).
Indeed, we suspect that the requirements for satisfying the
extraordinary-circumstances exception are identical to the showing neces-
sary to equitably toll a statute of limitations. See United States v. Battles,
362 F.3d 1195, 1197 (9th Cir. 2004) (explaining in the context of the one
year statute of limitation on filing a habeas corpus petition that a petitioner
must demonstrate that extraordinary circumstances prevented the timely
filing of a petition in order to have the statute of limitation equitably
tolled); Socop-Gonzalez, 272 F.3d at 1193 (stating in the context of filing
deadlines for motions to reopen deportation proceedings that “the party
invoking tolling need only show that his or her ignorance of the limitations
period was caused by circumstances beyond the party’s control, and that
these circumstances go beyond a garden variety claim of excusable
neglect.” (internal citations and quotations omitted)).
8
The Sagaydaks also contend that the BIA erred by failing to recognize
that persecution can be inflicted by non-governmental actors. In denying
the Sagaydaks’ CAT claim, the IJ did find that any harm would come from
Hidro officials, not from government officials. Because “torture” is
defined as “pain or suffering . . . inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in
an official capacity,” 8 C.F.R. § 208.18(a)(1), this was a proper ground for
denying CAT relief. The IJ did not, however, deny Nataliya’s claim for
asylum under 8 U.S.C. § 1158 or the Sagaydaks’ claims for withholding
of removal under 8 U.S.C. § 1231(b)(3) on the basis that their persecutors
were not government officials.
SAGAYDAK v. GONZALES 4831
evidence, see Ochave v. INS, 254 F.3d 859, 865 (9th Cir.
2001), and we conclude that the IJ’s finding did not meet this
standard.9
[7] To establish a nexus to the political opinion ground, the
Sagaydaks must show (1) that Viktor had either an affirmative
or imputed political opinion,10 and (2) that they were targeted
on account of that opinion. See Njuguna v. Ashcroft, 374 F.3d
765, 770 (9th Cir. 2004) (“He must establish that the political
opinion would motivate his potential persecutors.”). Viktor’s
status as a government employee clearly suffices to show an
imputed political opinion under our case law. We have stated
that we consider “persecution of those who work for or with
political figures to be on account of the political opinion of
their employer even if the nature of their work . . . is not in
itself political.” Navas v. INS, 217 F.3d 646, 659 n.19 (9th
Cir. 2000). Viktor was aligned with the political opinion of
his employer simply by the fact that he worked as a govern-
ment official enforcing government policies. See Aguilera-
Cota v. INS, 914 F.2d 1375, 1380 (9th Cir. 1990)
(“[Petitioner]’s status as a government employee caused the
opponents of the government to classify him as a person
‘guilty’ of a political opinion.”).
9
Initially, we reject the Sagaydaks’ contention that the IJ failed to con-
sider whether they were persecuted on account of Viktor’s political opin-
ion. While the IJ did not analyze the political-opinion category as
thoroughly as he analyzed the social-group category, the IJ explicitly
stated that the corrupt Hidro Corporation officials “do not wish to harm
[Viktor] due to his race, his religion, his nationality, his membership in a
particular social group, or his political opinion. They simply want to
coerce him not to testify against them” (emphasis added). Thus, the IJ con-
sidered, but rejected, the Sagaydaks’ claim that they were facing persecu-
tion on account of Viktor’s political opinion.
10
“Under our case law, and unchanged by Elias-Zacarias, an applicant
can establish his political opinion on the basis of his own affirmative polit-
ical views, his political neutrality, or a political opinion imputed to him by
his persecutors.” Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997) (cit-
ing INS v. Elias-Zacarias, 502 U.S. 478 (1992)).
4832 SAGAYDAK v. GONZALES
[8] Viktor also has established that his troubles with Hidro
arose on account of that actual or imputed political opinion.
Our cases make clear that a victim who is targeted for expos-
ing government corruption is persecuted “on account of”
political opinion. Retaliation for investigating or publicizing
corruption by political figures is by its very nature a political
act. Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir.
1999) (holding that persecution was on account of political
opinion because petitioner’s prosecutorial investigation into
acts of political corruption “was, by its very nature, politi-
cal”). We have held, for example, that “retaliation for the act
of publicizing corruption amounts to persecution on account
of a political opinion” even when the petitioner “did not
espouse a political theory.” Hasan v. Ashcroft, 380 F.3d 1114,
1120 (9th Cir. 2004); see also Njugana, 374 F.3d at 770-71;
Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (holding
that nexus existed where government employee exposed cor-
ruption of his supervisors).
[9] These cases also require that the corruption being
exposed have far-reaching roots. In Hasan, for example, the
“institutionalized level of corruption” in the local political
leadership that the petitioner uncovered and reported went
“far beyond an individual, anomalous case.” 380 F.3d at
1120. Citing Grava, we pointed out that “ ‘retaliation com-
pletely untethered to a governmental system does not afford
a basis for asylum.’ ” Id. at 1121 (quoting 205 F.3d at 1181
n.3). We have therefore refused to recognize a nexus to politi-
cal opinion where the alleged persecution occurred only as a
result of personal animosity, rather than “a difference of polit-
ical philosophies.” Zayas-Marini v. INS, 785 F.2d 801, 806
(9th Cir. 1986); see also Kozulin v. INS, 218 F.3d 1112, 1117
(9th Cir. 2000) (stating that in the face of a crew member’s
accusation that a ship’s captain stole provisions, “[t]he cap-
tain’s endeavors to maintain order within his questionable
enterprise, however unpalatable, do not constitute persecution
on account of political opinion”).
SAGAYDAK v. GONZALES 4833
[10] Viktor’s audit was slightly different in that it uncov-
ered corruption within a private organization, not a govern-
ment institution. Thus, Viktor’s refusal to accept Hidro’s
bribes and abdicate his duty to testify was not a stance critical
of any particular political figure or party. Cf. Njuguna, 374
F.3d at 770-71. Nonetheless, it implicated the foundations of
Ukrainian government and was undeniably a political state-
ment in the context of the country’s evolving politics. At the
time the Sagaydaks’ troubles arose, Ukraine was struggling
with its transition to a fledgling free-market economy. The
State Department reported that the country’s economy “suf-
fered greatly” with this transition following the collapse of the
Soviet Union in 1991. Corruption was rampant throughout the
government, and organized criminals grew accustomed to
influencing witnesses through both bribery and intimidation.
See United States Department of State, Ukraine—Profile of
Asylum Claims and Country Conditions 2 (June 1997) (here-
inafter “Profile of Asylum Claims”).
In 1994, a new president, Leonid Kuchma, was elected.
According to the CIA’s World Factbook, “Kuchma has
pushed economic reforms, maintained financial discipline,
and tried to remove almost all remaining controls over prices
and foreign trade.” These changes to Ukraine’s economic sys-
tem were, of course, politically charged, and they faced strong
resistance in Parliament. As part of his reforms, Kuchma
made substantial efforts to uncover organized crime, a policy
that he implemented through the Tax Inspectorate where Vik-
tor worked.11 Viktor testified at his removal hearing that in
1994, the same year of Kuchma’s election, Viktor took a new
oath of office “that I . . . will be serving my country, do the
11
The Tax Inspectorate was apparently a highly politicized agency.
According to the State Department, “[n]umerous sources charge that the
administration has used government agencies, particularly the Tax Inspec-
torate, to pressure the opposition media and businesses supporting its
political opponents.” Bureau of Democracy, Human Rights, and Labor,
United States Department of State, 1999 Country Reports on Human
Rights Practices: Ukraine 15 (Feb. 25, 2000).
4834 SAGAYDAK v. GONZALES
work on behalf of my country, and will be building a new
country.” According to Viktor’s declaration, his task was to
uncover “wrong and illegal use of state financial resources[,
which] is one of [the] negative consequences of a ‘socialist’
method of conducting a national economy . . . .” Viktor’s
work was therefore deeply tied to the new political and eco-
nomic reforms.
These changes meant the end of “businesses” like Hidro.
Hidro had been closely tied to the former communist govern-
ment, and was founded by a prominent member of that former
government who continued to hold a government post at the
time of Viktor’s audit. As Viktor put it, “[t]he founder was
tied to the current government, in the same way that most
organized crime in the Ukraine has government ties.” Consis-
tent with the State Department’s assessment, Viktor testified
that bribery of government officials was a problem in
Ukraine. Moreover, “if somebody has connections and . . . has
a position in the government, they can create such an institu-
tion or company or private business like Hidro, which will
provide the activity against the law. . . .” The new policies in
the Ukraine, which from Hidro’s perspective, Viktor repre-
sented, signaled the end of that system.
By adhering to the new government policies and refusing
Hidro’s bribes, Viktor took a political stance in opposition to
the corrupt government practices that allowed Hidro to exist.
Just like the petitioner in Aguilera-Cota, Viktor “was specifi-
cally threatened because of his perceived adherence to the
government’s cause.” 914 F.2d at 1379. Viktor was part of a
new guard within the Ukrainian government that refused to
succumb to the old system of corruption and acquiescence
that allowed companies like Hidro to operate. The State
Department reports make clear that Hidro’s scheme was part
of the pervasive structure of Ukrainian politics. In Grava, we
pointed out that “the salient question is whether Grava’s
actions were directed toward a governing institution, or only
against individuals whose corruption was aberrational.” 205
SAGAYDAK v. GONZALES 4835
F.3d at 1181. Because “[c]orruption among governmental
officials at all levels remain[ed] a serious problem” in
Ukraine, Profile of Asylum Claims at 2, Viktor’s refusal to
accede to Hidro’s bribery, in the context of Ukrainian politics,
was a political statement.
We analyzed a similar situation in Desir v. Ilchert, 840
F.2d 723 (9th Cir. 1988). There, Desir refused to accede to
extortion by low-level members of Haiti’s ruling “kleptocra-
cy,” the Macoutes, who demanded protection money for their
own personal use. Id. at 725. We concluded that Desir’s
refusal to make “contributions” was a political statement
because, in that context, “[t]o challenge the extortion by
which the [Haitian security forces] exist is to challenge the
underpinnings of the political system.” Id. at 727. Similarly,
Viktor’s actions challenged the political system of corruption
by which Hidro existed and which Hidro sought to maintain
through threats and bribes.
The IJ concluded that the Hidro officials were motivated to
prevent Viktor’s testimony, to preserve their own economic
interests, and to punish Viktor “or to take revenge against
him.” Even assuming this conclusion was correct, it does not
undermine Viktor’s claim that he was persecuted on account
of a protected ground. The requirement that persecution be
“on account of” political opinion “does not mean persecution
solely on account of the victim’s political opinion. That is, the
conclusion that a cause of persecution is economic does not
necessarily imply that there cannot exist other causes of the
persecution.” Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999)
(en banc) (quotation marks omitted; emphasis in original).
[11] That the Hidro officials may have been motivated in
part by personal retribution does not mean that they did not
also see Viktor as their political enemy. We recognize that
“many persecutors have mixed motives. In such instances,
personal retaliation against a vocal political opponent does not
render the opposition any less political, or the opponent any
4836 SAGAYDAK v. GONZALES
less deserving of asylum.” Grava, 205 F.3d at 1181 n.3.
Moreover, we have recognized that such motives can indeed
be political. In Desir, for example, the Macoutes would have
kept the money they sought to extort for their individual gain.
Desir’s refusal to pay nonetheless had a political impact
because it threatened “the intimidation and fear . . . engen-
dered” by their extortion, which “accrued to the benefit of the
[Haitian] regime.” 840 F.2d at 728. The Sagaydaks’ troubles
arose at least in part because of the political opinion imputed
to Viktor. He therefore has shown that he was persecuted on
account of a protected ground.12
IV.
In sum, the IJ erred by failing to determine whether Vik-
tor’s late filing was caused by extraordinary circumstances.
Further, the IJ’s determination that the Sagaydaks were not
targeted on account of a protected ground was not supported
by substantial evidence. However, because substantial evi-
dence supports the IJ’s determination that the Sagaydaks were
not entitled to relief under CAT, see supra at 4830 n.8, we
deny the petition as to that claim. Thus, we grant the petition
for review in part and remand so that the BIA may determine
whether extraordinary circumstances exist that would excuse
Viktor’s failure to apply for asylum within one year of arriv-
ing in the United States, and whether the Sagaydaks have sat-
isfied the remaining requirements for asylum and withholding
of removal.13 See INS v. Ventura, 537 U.S. 12, 16 (2002).
12
Because we conclude that Viktor’s trouble arose on account of his
political opinion, we need not address his alternative argument that he was
targeted on account of his membership in the “particular social group” of
honest tax auditors.
13
The Sagaydaks claim that the IJ’s decision was not appropriate for the
BIA’s streamlining process because the IJ’s decision was incorrect, the
errors in the decision were material, and the legal issues raised were sub-
stantial. See 8 C.F.R. § 1003.1(e)(4)(I). Because we grant the petition for
review, this argument is moot. See Vukmirovic v. Ashcroft, 362 F.3d 1247,
1253 (9th Cir. 2004).
SAGAYDAK v. GONZALES 4837
PETITION GRANTED in part, DENIED in part, and
REMANDED.
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, § 604, provides that “no court shall have
jurisdiction to review any determination of the Attorney Gen-
eral under paragraph (2)” that an alien’s application for asy-
lum is untimely.1 8 U.S.C. § 1158(a)(3) (emphasis added).
Because the majority’s reading of the statute impermissibly
narrows the plain meaning of “any determination” to exclude
some determinations, I respectfully dissent from its assuming
jurisdiction and reviewing petitioner Viktor Sagaydak’s claim
that his asylum application is not time-barred.
Here, the IJ found “that the male respondent is ineligible
for asylum since he . . . did not apply for asylum until . . .
more than one year after his arrival.” (Citing § 1158(a)(2)(B)
and 8 C.F.R. § 208.4(a)(2).) Because the IJ also mistakenly
“believed that the one-year deadline was absolute and not
subject to any exception,” Maj. op. at 4829, he did not go on
expressly to rule on Viktor’s contention that the extraordinary
circumstances exception of § 1158(a)(2)(D) applied to his
case. On this basis, the majority holds “that the IJ failed to
make ‘any determination,’ even though the extraordinary-
circumstances issue was raised by Viktor’s attorney,” and
concludes, therefore, “that § 1158(a)(3) does not apply to this
case.” Maj. op. at 4827. It holds that the IJ’s failure expressly
1
There are two elements to the timeliness requirement. First, there is the
requirement that an asylum application be filed within one year of the
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). There is also
a “changed circumstances” and “extraordinary circumstances” exception
which permits tolling the one-year period. 8 U.S.C. § 1158(a)(2)(D).
4838 SAGAYDAK v. GONZALES
to address the extraordinary circumstances tolling provision
was a failure to make any determination under § 1158(a)(2);
therefore, that review is not barred. I disagree.
We have already held that in deciding whether § 1158(a)(3)
applies, “we need only determine whether the IJ acted under
section 1158(a)(2).” Hakeem v. INS, 273 F.3d 812, 815 (9th
Cir. 2001). And in this case, it is clear that the IJ did so act.
The only requirement is that the IJ act under § 1158(a)(2); not
that he act under every, or any particular, subdivision of
§ 1158(a)(2). Here, the IJ expressly determined that Viktor
was “ineligible for asylum” under the one-year bar of
§ 1158(a)(2)(B). That he was mistaken in his application of
§ 1158(a)(2), in believing that no tolling was available, does
not mean that he did not act under § 1158(a)(2) in holding that
Viktor’s petition was barred by the one-year provision.
In effect, the majority is reviewing the merits of the IJ’s
time-bar ruling. It holds, in substance, that the IJ erred in his
determination that no tolling was available and remands on
that issue and directs the agency to make a redetermination of
that issue. I agree with the majority that “[n]either the statute
nor the regulation is ambiguous, and neither could be inter-
preted any other way than including an extraordinary-
circumstances exception. The IJ erred as a matter of law. . . .”
Maj. op. at 4829. But the fact that the IJ “erred as a matter of
law” in applying the one-year time-bar means that he made an
erroneous determination, not that he did not make “any deter-
mination” at all. I therefore respectfully dissent from Part II
of the majority opinion.
I do, however, fully concur in Part III of the majority opin-
ion, and in the remainder of the opinion insofar as it pertains
to Nataliya Sagaydak’s claim for asylum and to the Sagay-
daks’ claims for withholding of removal.
| {
"pile_set_name": "FreeLaw"
} |
703 A.2d 850 (1997)
118 Md. App. 567
John GALLAGHER
v.
Joan GALLAGHER (Levine).
No. 498, Sept. Term, 1997.
Court of Special Appeals of Maryland.
December 1, 1997.
Reconsideration Denied January 27, 1998.
*851 George D. Bogris, Sabrina Wills and Howell, Gately, Whitney & Carter, LLP, on the brief, Towson, for Appellant.
*852 Andre' R. Weitzman and Steven J. Potter, on the brief, Baltimore, for Appellee.
Submitted before CATHELL, DAVIS and SONNER, JJ.
CATHELL, Judge.
John Gallagher appeals from a judgment of the Circuit Court for Baltimore County that granted Joan Gallagher, appellee, an absolute divorce, awarded her indefinite alimony, granted her a marital award, and awarded her attorneys' fees. Mr. Gallagher's appeal raises issues regarding the award of indefinite alimony, monetary award, and attorneys' fees. We shall affirm the judgment of the trial court.
I. THE FACTS
Appellant and appellee were married in 1987. At the time of their marriage, appellee had been married twice before and appellant had never been married. Appellant was a professional gambler and investor, and appellee worked as a secretary and sales clerk.
While married, appellant continued to work as a professional gambler and investor. There also was testimony that appellant acted as a "facilitator," one who assists another in placing bets on sporting events. Appellant testified that he made approximately $50,000 per year from personal bets and as a facilitator. He stated he expected a decrease in his income because he would no longer be acting as a "facilitator," as appellee's counsel had informed him that such conduct was illegal. Appellee continued to work during the marriage and, at the time of the divorce, had a part-time job from which she earned $12,827 per year.
Appellee introduced, over appellant's objection, the testimony of Regis Burke, a Certified Public Accountant. Mr. Burke was offered as an expert witness in the areas of taxation, accounting, finance, and asset valuation and was accepted as an expert by the court. Appellant never objected to Mr. Burke's credentials as an expert witness; appellee's objection related solely to the summaries that were prepared by the expert witness from the financial documentation and testimony given by appellant.
Mr. Burke testified extensively regarding the summaries he had prepared relative to appellant's cash flow and assets. He testified that appellant "spent well in excess of what he reported as income in each given year." For example, Mr. Burke testified that in 1995, appellant spent approximately $31,375 more than his reported income. Mr. Burke testified that some of his assets, however, were cashed in during that time period and that this would have given appellant additional liquidity. Mr. Burke testified that this added liquidity could have been used to pay for the personal expenditures that exceeded his income, but he could not make a determination as to "what proportion was spent on living expenses and what proportion was rolled over into an investment account."
In the court's memorandum opinion, it granted appellee an absolute divorce on the grounds of adultery. The court also determined the parties' marital and non-marital property and valued that property. The court determined the parties' respective incomes and ultimately made a monetary award. It noted it was difficult "to determine precisely Mr. Gallagher's income given the nature of his business" and that "[s]everal exhibits were introduced in an attempt to persuade the Court that Mr. Gallagher's income exceeds that which is reported on his tax returns." The court also stated:
Mr. Gallagher testified that in the past, his personal wagering produced a $50,000 per year net income, but presently, the amount produced is only $25,000. He further testified that his present income from "facilitating" is $30,000 per year.
....
The Court is persuaded that Mr. Gallagher has net income from personal wagering and "facilitating" in excess of $80,000 per year.
Mr. Gallagher is approaching social security benefits eligibility. However, considering the nature of his business, it is not likely he will be forced to retire any time soon, barring any "unforseen legal intervention."
Mr. Gallagher lists his monthly personal living expenditures at $3630.00. Ms. Gallagher *853 attacks this figure, arguing that it is artificially low to conform to his grossly understated earnings. [Footnote omitted.]
After considering the factors set forth in section 8-205 of the Family Law Article, the court granted appellee a monetary award of $175,000. In making this award, the court noted: 1) the "marriage came to an end because of the adultery committed by Mr. Gallagher;" 2) "Ms. Gallagher's physical health is more limiting than Mr. Gallagher's physical health;" 3) "[w]hen the parties lived together, Mr. Gallagher was the major monetary contributor while Ms. Gallagher used her earnings for her personal needs and desires;" 4) Ms. Gallagher relinquished her full-time employment at the insistence of Mr. Gallagher; and 5) "[b]oth parties made some nonmonetary contributions, mainly, the important contribution of companionship."
The trial court also awarded appellee indefinite alimony in the amount of $1,500 per month. In doing so, the court acknowledged that both parties were accustomed to a high standard of living. The court also noted that, following the monetary award, appellee would have $380,778 in assets while Mr. Gallagher would hold assets totaling $267,117. It noted appellee's income was $19,937 and her investment income would increase due to the monetary award while appellant's would decline. The trial court further stated: "However, there is every reason to believe, and the court so finds, that Mr. Gallagher's earned income from his business will continue to be substantially greater than that of Ms. Gallagher." It also found that the "respective living standards of the parties will be unconscionably disparate."
Finally, the court granted appellee attorneys' fees of $20,684.95. It specified that appellee had substantial justification for prosecuting the proceeding and noted the financial resources of the parties.
At a later hearing on April 23, 1997, after the judgment of divorce was entered and this appeal taken, appellee's counsel requested that the court reduce the marital award and counsel fees to judgment. Appellant's counsel asserted that the court lacked jurisdiction to do so because he had filed an appeal to this Court and such a filing had divested the trial court of jurisdiction. The court reduced the marital award to judgment, finding that doing so was collateral to the initial judgment which was appealed.
Appellant presents three questions on appeal:
I. Did the circuit court err in making a monetary award and granting indefinite alimony?
II. Did the circuit court err in granting an award of attorney fees and other costs to Ms. Levine [appellee's former counsel]?
III. Did the circuit court have jurisdiction to reduce the monetary award to judgment?
II. DISCUSSION
In the resolution of this case, we shall examine A) the monetary award; B) the award of alimony; C) the award of counsel fees; and D) the reduction of the monetary award and counsel fees to judgment.
A. Monetary Award
Appellant's primary assignment of error concerning the monetary award relates to the trial court's determination that his income was approximately $80,000 per year. He gives multiple reasons as to why the trial court erred in its determination of his then current income and argues that this error resulted in an exorbitant monetary award.
We note initially that appellant has not raised any contention as to the characterization and valuation of the marital property. His only argument relates to his income.
Before addressing appellant's various arguments, we shall state the law applicable to the granting of a monetary award. Maryland law requires that the trial court undertake a three-step process prior to granting a monetary award:
(1) the trial court must initially characterize all property owned by the parties, however titled, as either marital or nonmarital;
(2) the court shall then determine the value of all marital property; and, finally, (3) the court may then make a monetary award as an adjustment of the parties' equities and rights in the marital property.
*854 Strauss v. Strauss, 101 Md.App. 490, 501, 647 A.2d 818 (1994) (citations omitted), cert. denied, 337 Md. 90, 651 A.2d 855 (1995); see also Md.Code (1984, 1991 Repl.Vol, 1997 Supp.), §§ 8-203 to 8-205 of the Family Law Article (FL). With respect to this last step in the process, the court must consider the following factors:
(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(2) the value of all property interests of each party;
(3) the economic circumstances of each party at the time the award is to be made;
(4) the circumstances that contributed to the estrangement of the parties;
(5) the duration of the marriage;
(6) the age of each party;
(7) the physical and mental condition of each party;
(8) how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both;
(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;
(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and
(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both.
FL § 8-205(b).
An appellate court, when an action has been tried without a jury, "will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses." Md.Rule 8-131(c).
The decision whether to grant a monetary award is generally within the sound discretion of the trial court. Nevertheless, even with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal standards.
....
It is important that courts not lose sight of th[e] history and purpose [of the equitable distribution statute] when making decisions about marital property. The "function [of the monetary award] is to provide a means for the adjustment of inequities that may result from distribution of certain property in accordance with the dictates of title."
Alston v. Alston, 331 Md. 496, 504-06, 629 A.2d 70 (1993) (citations omitted) (footnotes omitted) (some alterations in original).
We shall next examine appellant's specific allegations of error regarding the trial court's grant of a monetary award. We note all of appellant's assertions of error relate to his and appellee's income, factors two and three of section 8-205(b) of the Family Law Article.
1. Overestimation of Income Based on Condominium Sale
Appellant argues the court erred in calculating his income because it failed to consider that the sale of his West Palm beach condominium resulted in a loss. In support of this argument, appellant notes the court stated: "Plaintiff exhibit 23 reveals that in 1995, he had a total income of $48,633 and net proceeds from the sale of stock in the amount of $117,702." He argues that all of the $117,702 did not come from the sale of stock and that some of that amount came from the sale of his West Palm Beach home. The sale of this home, however, created a loss, as reflected on his tax return.
We believe that whether the $117,702 came from the sale of stock or from the sale of the condominium is irrelevant. While the court may have misspoken as to the amount and the nature of net proceeds that resulted from the two sales, it is clear the court did not *855 consider these proceeds in setting appellant's income. In making a determination as to appellant's income, the court merely stated it was persuaded "that Mr. Gallagher has net income from personal wagering and `facilitating' in excess of $80,000 per year." The trial court did not refer to any sales of assets in setting appellant's then current income. Accordingly, any argument relating to the $117,702 is not relative to the court's determination of income. Additionally, appellant alleges no error in regard to his assets and characterization of those assets as marital or nonmarital property.
2. Overestimation of income based on stock sales
Appellant makes similar arguments as those made above relative to the sale of the condominium. He asserts the court erred in stating that appellant had net proceeds from the sale of stock in the amount of $117,702 because this amount resulted from both the sale of stock and the sale of the condominium. For the reasons noted above, we need not address this argument. As we stated, the court did not consider the $117,702 in setting appellant's income.
3. Testimony of Mr. Burke
Appellant next challenges the testimony of appellee's expert, Mr. Burke. Appellant presents a two-fold argument; first he asserts that Mr. Burke did not testify as an expert witness and second, that Mr. Burke's testimony was speculative.
As initially noted, appellant never objected at trial to Mr. Burke's qualifications. In fact, appellant did not elect to voir dire the witness prior to his testimony. Appellant's sole objection at trial related to the introduction of certain reports prepared by the expert that were used to explain the assets, cash flow, and income of appellant. As to these reports, appellant's counsel argued they were inadmissible because they had not been presented to him prior to trial; appellant did not challenge the expert witness' testimony. Accordingly, appellant's argument is not preserved for our review. See Md.Rule 8-131(a). Nevertheless, appellant's arguments are without merit. We explain.
As to his first argument, appellant asserts that the trial court stated: "`[t]urns out [Mr. Burke] is only a fact witness. He hasn't become one who gave an opinion as an expert[.]'" Appellant directs this Court to page 860 of the extract for this statement. We have been unable to discern whether this statement was made by the trial court because the extract does not contain a page 860. We believe, however, the testimony of Mr. Burke was proper expert witness testimony.
Although the court may have misstated that Mr. Burke did not testify as an expert witness, we believe his testimony was qualified as such. The numerous, complex, financial transactions in which appellant was involved required that an expert, such as a Certified Public Accountant, be consulted in order to determine the nature and extent of appellant's income and expenditures. It is clear that Mr. Burke testified as to appellant's income and expenditures and traced certain assets held in various bank accounts. He also took certain statements and income tax records and drew from them conclusions. This is precisely what experts do. Maryland Rule 5-702 provides: "Expert testimony may be admitted ... if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." Mr. Burke's testimony clearly did so in the instant case. Accordingly, we believe Mr. Burke properly testified as an expert.
As to the speculative nature of Mr. Burke's testimony, the transcript clearly shows Mr. Burke was careful to draw only certain conclusions from the information he obtained. For example, Mr. Burke testified that appellant spent approximately $31,375 more than his income in 1995. The witness, however, carefully noted that he could not determine where this additional money may have come from and indicated that it could have come from proceeds that were obtained from the sale of other assets during that year. There are many other instances where the witness refused to draw speculative conclusions and indicated merely what the accounts and records showed. We do not believe *856 that the expert's testimony was unfairly speculative. We also note that the court made no mention of this testimony when determining appellant's income. Accordingly, the trial court did not err.
4. Facilitating Income
Appellant lastly asserts, as to the monetary award, that the trial court erred in determining his income because it considered income from facilitating, an endeavor he was not engaged in at the time of the granting of the marital award.
Appellant testified that he was facilitating during the first few months of 1996. While he clearly denied facilitating at the time of the trial, the court was not required to accept his testimony. Under Maryland Rule 8-131(c), we shall "not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses." We stated in Hollander v. Hollander, 89 Md.App. 156, 175, 597 A.2d 1012 (1991) (quoting Shapiro v. Chapman, 70 Md.App. 307, 318, 520 A.2d 1330 (1987)), that "`[t]he trier of fact is not bound to accept the testimony of any witness even if it is uncontradicted.'" Additionally, appellee testified that the income reported on the parties' tax returns did not adequately reflect the income appellant earned from his gambling activities. Based on all this evidence, the court did not err in determining appellant's income or determining a marital award was warranted.
B. Indefinite Alimony Award
Appellant also presents numerous arguments relating to the trial court's grant of indefinite alimony to appellee. A trial court may grant indefinite alimony if it finds that:
(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
(2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
FL § 11-106(c). In order to make a fair and equitable alimony award, the court considers:
(1) the ability of the party seeking alimony to be wholly or partly self-supporting;
(2) the time necessary for the party seeking alimony to gain sufficient education or training to enable that party to find suitable employment;
(3) the standard of living that the parties established during their marriage;
(4) the duration of the marriage;
(5) the contributions, monetary and nonmonetary, of each party to the well-being of the family;
(6) the circumstances that contributed to the estrangement of the parties;
(7) the age of each party;
(8) the physical and mental condition of each party;
(9) the ability of the party from whom alimony is sought to meet that party's needs while meeting the needs of the party seeking alimony;
(10) any agreement between the parties;
(11) the financial needs and financial resources of each party, including:
(i) all income and assets, including property that does not produce income;
(ii) any award made under §§ 8-205 and 8-208 of this article;
(iii) the nature and amount of the financial obligations of each party; and
(iv) the right of each party to receive retirement benefits; and
(12) whether the award would cause a spouse who is a resident of a related institution as defined in § 19-301 of the HealthGeneral Article and from whom alimony is sought to become eligible for medical assistance earlier than would otherwise occur.
FL § 11-106(b).
We shall address appellant's contentions individually.
*857 1. Income from Facilitating
Appellant makes numerous interesting arguments regarding his income from facilitating as it relates to the alimony award. Appellant essentially asserts that by including the money earned from facilitating in determining his total income, the trial court has required him to continue in this illegal occupation.
Appellant misperceives the trial court's order in this case. As we noted above, section 11-106(b)(11) requires the trial court to consider the financial resources of a party before granting alimony. In the trial court's order, it attributed to appellant approximately $80,000 in income during the year. Appellant asserts that this amount includes income from facilitating and that he has stopped this type of activity, so his income cannot be $80,000.
As we perceive the trial court's order, the court obviously believed that appellant continued facilitating despite his contentions that he no longer engaged in this type of activity. The trial court makes credibility determinations, and in this case evidently made a determination that appellant was not credible. The trial court did not require that appellant remain in this type of work; it found that appellant continued to engage in this type of activity. If appellant is able to show at a later point in time that he no longer engages in facilitating, this may constitute a circumstance allowing for a modification in the alimony award. Unfortunately for appellant, he was not able to persuade the trial court that he was not engaged in such activity at the time of trial, and it was from his current activities that the court determined appellant's income. Accordingly, the trial court did not err.
2. Potential Income
Appellant asserts the trial court, in its determination of the alimony award, considered his potential income, not his actual income. As we have explained above, appellant did not persuade the court that he no longer was engaged in facilitating. The court took into consideration actual income from this activity and appellant's earnings from his gambling activities. Accordingly, appellant's assertion that the court did not determine his actual income is inaccurate.
3. Application of § 11-106
Appellant's last assertion of error in regard to the alimony award relates to the trial court's application of section 11-106 of the Family Law Article. He asserts numerous errors in the application of the factors listed in section 11-106. Before addressing appellant's contentions, we shall examine the trial court's order in regard to the alimony award. The order provides:
The parties enjoyed a fairly high standard of living. They dined out regularly and traveled frequently. Considering the monetary award made to Ms. Gallagher, she will have assets totaling $380,778. Mr. Gallagher will have assets of $267,117.
Ms. Gallagher's 1995 total income was $19,937. Her investment income will increase by virtue of the monetary award. On the other hand, Mr. Gallagher's investment income will decline. However, there is every reason to believe, and the court so finds, that Mr. Gallagher's earned income from his business will continue to be substantially greater than that of Ms. Gallagher.
The court is persuaded that Ms. Gallagher can again become employed but because of her health, age, education level and lack of employment skills beyond sales and secretarial, she will not have an income level sufficient to maintain a standard of living similar to that enjoyed during the marriage. Under these circumstances, the court is persuaded that the respective living standards of the parties will be unconscionably disparate.
There can be no doubt that Mr. Gallagher can meet the needs of Ms. Gallagher from his business. The Court has determined his income to be in excess of $80,000 per year, more than that is only limited by his efforts.
Therefore, indefinite alimony is awarded in the amount of $1,500 per month. [Footnotes omitted.] *858 a. Presumption against indefinite alimony
Appellant correctly notes that the law favors rehabilitative alimony over indefinite alimony. See Tracey v. Tracey, 328 Md. 380, 391, 614 A.2d 590 (1992). In Tracey, the Court of Appeals stated:
[T]he purpose of alimony is not to provide a lifetime pension, but where practicable to ease the transition for the parties from the joint married state to their new status as single people living apart.... The concept of alimony as a life-long support enabling the dependent spouse to maintain an accustomed standard of living has largely been superseded by the view that the dependent spouse should be required to become self-supporting, even though that might result in a reduced standard of living.
328 Md. at 391, 614 A.2d 590.
The court, however, may award indefinite alimony if
(1) due to age, illness, infirmity, or disability, the party seeking alimony cannot reasonably be expected to make substantial progress toward becoming self-supporting; or
(2) even after the party seeking alimony will have made as much progress toward becoming self-supporting as can reasonably be expected, the respective standards of living of the parties will be unconscionably disparate.
FL § 11-106(c).
It is clear the court made both of the findings contained in section 11-106(c), even though only one such finding is required in order to grant indefinite alimony. The court was "persuaded that Ms. Gallagher can again become employed but because of her health, age, education level and lack of employment skills beyond sales and secretarial, she will not have an income level sufficient to maintain a standard of living similar to that enjoyed during the marriage." In addition, the court noted that despite the marital award, "the respective living standards of the parties will be unconscionably disparate." We cannot say that these determinations were clearly erroneous. Accordingly, the court had authority to award indefinite alimony based on its findings and did not err.
b. Appellee's Income
Appellant next asserts the trial court erred because it "never determined with any specificity [appellee's] expected future earnings, and failed altogether to quantify her expected future income from other sources."
With respect to appellee's income level, the court explicitly noted that appellee lacked marketable employment skills and found that the most she probably could earn was the same amount she earned during the previous year. This amount was found to be approximately $12,827 in wages and investment income of approximately $7,110 for a total of $19,937. We believe this finding was sufficiently specific with respect to appellee's income.
Appellant also argues the court failed to quantify appellee's future earnings, especially in light of the marital award granted by the court. He cites Newman v. Newman, 71 Md.App. 670, 527 A.2d 61 (1987), and Rosenberg v. Rosenberg, 64 Md.App. 487, 497 A.2d 485, cert. denied, 305 Md. 107, 501 A.2d 845 (1985), in support of his contention. More specifically, appellant faults the trial court for failing to assign a numerical value to any income that may be generated from the marital award.
We do not believe Newman and Rosenberg require that the trial court assign a numerical value to income that may be earned from a marital award. In both of those cases, the trial court failed to consider any income that could have been generated by the marital award in setting the amount of alimony. In the case sub judice, the trial court clearly considered the effect of the marital award on appellee's income. It stated: "Her investment income will increase by virtue of the monetary award. On the other hand, Mr. Gallagher's investment income will decline." Accordingly, appellant's claim is without merit as the court clearly addressed the effect of the monetary award prior to granting alimony to appellee.
*859 c. Other § 11-106(b) Factors
In addition to the monetary factors discussed above, appellant asserts the court failed to consider other factors such as the length of marriage and other equitable considerations in granting appellee indefinite alimony. We stated in Hollander, 89 Md.App. at 176, 597 A.2d 1012:
We cannot reverse the judgment of the trial judge unless we conclude his findings were clearly erroneous or that in awarding alimony, he abused his discretion.
The trial judge ... is not required to use a formal "checklist" but may declare an award for alimony in any way that shows consideration of the necessary factors.
The trial court, in its written memorandum, clearly considered all of the relevant factors in section 11-106(b) of the Family Law Article in granting the indefinite alimony award. We cannot say it abused its discretion.
C. Counsel Fees
Section 11-110 of the Family Law Article gives the court the authority to award "reasonable and necessary" expenses associated with a proceeding for alimony. Before awarding a party expenses, the court must consider "(1) the financial resources and financial needs of both parties; and (2) whether there was substantial justification for prosecuting or defending the proceeding." FL § 11-110(c).
In its memorandum, the trial court, granting appellee reasonable and necessary expenses, stated:
Clearly, there was substantial justification for Ms. Gallagher to prosecute this proceeding. She met with considerable resistance along the way from Mr. Gallagher. She has proven her claim of adultery and persuaded the court on the issue of monetary award and alimony.
The court has considered the testimony of the parties and has examined the exhibits, particularly Plaintiff exhibit 18. The work and expenses required to properly prosecute this case were reasonably necessary. The fees charged by the lawyers and other professionals are reasonable for the work done.
The court again considers the financial resources of the parties to determine how much of these expenses can be reasonably born[e] by each party. Considering the monetary award, the award of alimony, the assets of the parties, and the respective income of the parties, Mr. Gallagher is ordered to pay the sum of $25,000 toward Ms. Gallagher's expenses.
Appellant asserts that many of the fees associated with the prosecution of this case by appellee were unjustified. He notes the deposition of Ms. Kelly Carney, appellant's alleged mistress, the private investigator fees, the testimony of Mr. Burke, appellee's expert financial witness, and the counsel fees of appellee's attorney.
As is clear from the trial court's memorandum opinion, the court considered the two requisite factors of section 11-110(c) of the Family Law Article. Appellant's only argument relates to the reasonableness of such fees. As to the deposition of Ms. Carney and the investigator fees, the information gathered from these sources, although much was not used at trial, was necessary to establish appellee's ground for divorce. As we indicated previously in this opinion, Mr. Burke's expert testimony was relevant and helpful in determining appellant's assets, income, and expenditures. Finally, as to the counsel fees, we stated in Hollander that "a detailed list of expenses is not necessary. `A chancellor may well be able to appraise the value of an attorney's services on the basis of the record and his own knowledge and experience without an account of the number of hours spent by the attorney.'" 89 Md.App. at 177-78, 597 A.2d 1012 (quoting Holston v. Holston, 58 Md.App. 308, 326, 473 A.2d 459, cert. denied, 300 Md. 484, 479 A.2d 372 (1984)). We, therefore, conclude that the granting of expenses for the prosecution of the alimony claim properly were awarded.
D. Reduction of Monetary Award and Fees to Judgment
Appellant's last assertion of error relates to the entry of a judgment for the monetary award in favor of appellee and for *860 counsel fees in favor of appellee's former attorney by the circuit court during a later hearing. Appellant avers the court was without authority to reduce these amounts to judgment because he had entered a Notice of Appeal to this Court that deprived the circuit court of jurisdiction.
With respect to the monetary award, the trial court stated in its memorandum opinion and order that the amount was "payable in cash, in two equal installments, due on December 31, 1996 and February 28, 1997." In regard to the necessary fees and expenses, the court stated that "[t]he sum of $20,684.95 is to be paid directly to Ms. Gallagher's attorney within thirty days hereof, and the balance of $4,315.05 shall be paid directly to Ms. Gallagher not later than December 31, 1996."
At an April 24, 1997 hearing, the trial court reduced the monetary award and the attorney's fees to judgment. Appellant asserts the court was without jurisdiction to do so because he had filed a notice of appeal to this Court.
Section 8-205(c) of the Family Law Article provides that "[t]he court may reduce to a judgment any monetary award made under this section, to the extent that any part of the award is due and owing." Likewise, section 11-110(f) of the Family Law Article states: "As to any amount awarded for counsel fees, the court may: (1) order that the amount awarded be paid directly to the lawyer; and (2) enter judgment in favor of the lawyer." As is clear, the trial court has the authority to reduce to judgment any monetary award due and owing and attorney's fees to be paid directly to the lawyer.
The interesting issue presented by appellant is whether the trial court, after a notice of appeal has been filed, has the authority to reduce to judgment a marital award that becomes due and owing at some point after the initial order providing for the monetary award was granted.[1]
In McClayton v. McClayton, 68 Md.App. 615, 515 A.2d 231 (1986), we examined the phrase "due and owing" as used in present section 8-205(c) of the Family Law Article. We stated:
A monetary award, unlike a judgment at law, is not based upon any antecedent debt or obligation, but is a present adjustment of equities existing at the time of the award. In granting such an award, the chancellor's discretion extends not only to the amount of the award but also the method of payment. The entire award can be made immediately due and payable or all/or part of it can be made payable in the future. Subsection [ (c) ] of § 8-205 authorizes the court to reduce to a judgment any monetary award granted under § 8-205(a), but only "to the extent that any part of the award is due and owing."
....
Senate Bill 604 (1978) originally contained a provision (§ 3-6A-05(c)) that a monetary award "shall constitute a judgment." That language was stricken, however, and the current language of § 8-205[ (c) ] was substituted for it. 1978 Md. Laws, ch. 794. This change indicates that the Legislature intended that only those decrees for monetary awards then due and owing in the sense of then immediately payable could be reduced to judgments under § 8-205[ (c) ].
Id. at 622-24, 515 A.2d 231 (citations omitted).
Although McClayton gives us insight as to whether an initial monetary award constitutes a final judgment, it does not answer whether the court has the authority to reduce to judgment a monetary award due and owing after a notice of appeal has been filed. Both parties cite to Kirsner v. Edelmann, 65 Md.App. 185, 192-93, 499 A.2d 1313 (1985), in which we stated:
It is well settled that "[a]fter an appeal has been perfected, [the appellate court] is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of *861 the lower court with reference thereto is suspended." The lower court may act only with respect to collateral or independent matters not relating to the subject [matter] of the appeal. [Citations omitted; brackets in original].
Although the parties both agree on the applicability of this general rule, they disagree as to its effect on this case. Appellant asserts the judgment entered on April 24, 1997, was not collateral to the subject matter of the appeal. Appellee asserts that the subsequent judgment was collateral to the issues on appeal.
The subject matter of this appeal, as it relates to this issue, is the grant of the monetary award, the amount of the monetary award, and the award of litigation expenses. The later trial court proceeding and judgment did not concern the amount or the award of the monetary award or the amount or the award of litigation expenses. The proceedings at issue involved whether appellant had paid the monetary award and litigation expenses as directed by the trial court's previous order. These amounts, not having been paid by appellant, caused a judgment to be entered against him. As we perceive this case, the subsequent reduction of the monetary award and counsel fees to judgment was a collateral matter. Accordingly, the trial court properly reduced to judgment the monetary award then due and owing and the counsel fees.
III. CONCLUSION
We affirm the judgment of the trial court that granted appellee a monetary award, indefinite alimony, and counsel fees. We likewise affirm the trial court's reduction of the monetary award and counsel fees to judgment.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
NOTES
[1] It seems appellant would agree that the trial court would have the authority to reduce to judgment a marital award so long as the judgment was entered prior to the notice of appeal. He is concerned only with the court reducing a monetary award to judgment after the filing of a notice of appeal.
| {
"pile_set_name": "FreeLaw"
} |
Filed 5/17/13 J.R. Marketing v. Hartford Casualty Ins. Co. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
J.R. MARKETING, L.L.C. et al.,
Plaintiffs, Cross-Defendants and
Respondents, A133750
v. (San Francisco County
HARTFORD CASUALTY INSURANCE Super. Ct. No. CGC-06-449220)
COMPANY,
Defendant, Cross-Complainant and
Appellant.
This is an appeal from an order sustaining the demurrers of respondents/cross-
defendants Squire Sanders L.L.P. (Squire) and Scott Harrington in a cross-action by
appellant Hartford Casualty Insurance Company (Hartford) for reimbursement of
allegedly excessive or otherwise inappropriate legal fees and costs billed by Squire to
Hartford. Squire served as independent counsel for cross-defendants J.R. Marketing,
L.L.C., Noble Locks Enterprises, Inc., Jane and Robert Ratto, Lenore and Germain
DeMartinis, and Penelope Kane (collectively, insured cross-defendants) in a California
tort action after Hartford disclaimed coverage for the action under the relevant insurance
policy. Squire also served as counsel for certain of the insured cross-defendants in two
non-California actions, and as counsel for the non-insured cross-defendants – to wit,
Harrington, Wheatland Baking Inc., and Kane Processing, L.L.C. – in the California
action or one or more of the non-California actions (collectively, uninsured cross-
defendants). According to Hartford, some portion of the fees and costs billed by Squire
1
and paid by Hartford were for legal services provided to cross-defendants outside the
scope of Hartford‟s contractual obligations as insurer under the relevant policy. For
reasons discussed below, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
This is not the first time this court been called upon to review trial court rulings in
this insurance coverage lawsuit. We have twice before decided appeals in this matter.
(See J.R. Marketing, L.L.C. v. Hartford Cas. Ins. Co., A115472 (Oct. 30, 2007) (nonpub);
J.R. Marketing, L.L.C. v. Hartford Cas. Ins. Co., A115846 (Nov. 30, 2007) (nonpub).)1
As such, we have already set forth in detail much of the relevant factual and procedural
background of this coverage dispute, allowing us, in the name of judicial efficiency, to
borrow extensively from our previous opinions for purposes of this appeal. With respect
to more recent events, however, we abide by well-established principles requiring us,
when reviewing an order on demurrer, to accept as true all factual allegations set forth in
the operative complaint. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 664, fn.
2.) We thus turn to the relevant facts.
In Summer 2005, Hartford issued two commercial general liability policies, the
first policy to cross-defendant Noble Locks Enterprises, Inc., effective July 28, 2005 to
July 28, 2006, and the second policy to cross-defendant J.R. Marketing, L.L.C., effective
August 18, 2005 to August 18, 2006 (collectively, the J.R. Marketing and Noble Locks
policies). Under these policies, Hartford promised to defend and indemnify claims
against the named insureds for certain business-related damages subject to various
exclusions of coverage.
In September 2005, several individuals, including Meir Avganim, sued cross-
defendants (except Wheatland Baking, Inc.) and others for intentional misrepresentation,
1
In the first appeal, we upheld a trial court order requiring Hartford to immediately
pay Squire‟s outstanding legal fees and costs and declining to permit Hartford to avail
itself of the protections provided to insurers pursuant to Civil Code section 2860,
subdivision (c). This order will be discussed in greater detail herein. In the second
appeal, we upheld a trial court order denying Hartford‟s motion to disqualify Squire as
counsel.
2
breach of fiduciary duty, unfair competition, restraint of trade, defamation, interference
with business relationships, conversion, accounting, mismanagement and conspiracy in
Marin Superior Court (Marin or Avganim matter). Cross-complaints were subsequently
filed by J.R. Marketing, L.L.C., the Rattos, Kane and Kane Processing, L.L.C. The
Marin matter was immediately tendered to Hartford for defense and indemnity under the
J.R. Marketing and Noble Locks policies.
Around the same time, two actions were brought against various of the cross-
defendants in non-California courts (non-California matters). The complaints in the non-
California matters were likewise tendered to Hartford for defense and indemnity under
the J.R. Marketing and/or Noble Locks policies.
In the Marin matter, Hartford refused to defend or indemnify the named cross-
defendants on the ground, among others, that the acts complained of appeared to have
occurred before the relevant insurance policy‟s inception date. Hartford nonetheless
invited them to provide more information should they believe its position to be erroneous.
In February 2006, cross-defendants J.R. Marketing, L.L.C., Noble Locks Enterprises,
Inc., the Rattos, and Kane, represented by Squire, filed this coverage lawsuit, after which
Hartford reconsidered its position and, based on newly provided information, agreed in
March 2006 to provide a defense in the Marin matter under the J.R. Marketing policy
subject to a reservation of rights. In doing so, Hartford continued to refuse to pay defense
costs incurred before January 19, 2006, or to provide the named cross-defendants
independent counsel in place of its panel counsel. The named cross-defendants thus
moved for summary adjudication on the issue of whether Hartford owed them a duty to
defend, including a duty to provide independent counsel, from the initial tender of the
Marin matter in September 2005. The trial court granted their motion on July 26, 2006,
finding a legal duty to defend and to fund independent (“Cumis”) counsel under the J.R.
Marketing policy.2
2
See San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162
Cal.App.3d 358. For purposes of this appeal, we use the terms “Cumis counsel” and
“independent counsel” interchangeably.
3
The trial court also granted a subsequent motion by cross-defendants J.R.
Marketing, L.L.C., Noble Locks Enterprises, Inc., the Rattos, and Kane to enforce
Hartford‟s duty to defend and fund independent counsel under the J.R. Marketing policy
(hereinafter, enforcement order). Specifically, on September 27, 2006, the trial court
ordered Hartford to pay the insured cross-defendants‟ outstanding invoices within 15
days and to pay “all future reasonable and necessary defense costs within 30 days of
receipt.” Acknowledging a right of reimbursement, the enforcement order provided, “[t]o
the extent Hartford seeks to challenge fees and costs as unreasonable or unnecessary, it
may do so by way of reimbursement after resolution of the Avganim matter. American
Motorists Insurance Co. v. Superior Court (“AMICO”) (1998) 68 Cal.App.4th 864, 874;
Buss v. Superior Court (1997) 16 Cal.4th 35, 50 et seq.”3
Finally, the order provided that, while Squire‟s bills had to be reasonable and
necessary, Hartford was barred from invoking the protective provisions afforded insurers
under Civil Code section 2860 because it “has breached and continues to breach its
defense obligations by (1) failing to pay all reasonable and necessary defense costs
incurred by the insured and by (2) failing to provide Cumis counsel.”4 (See, e.g.,
3
Hartford subsequently agreed to defend and fund independent counsel for Germain
and Lenore DeMartinis in the Marin matter based upon their status as J.R. Marketing
employees. They were also added as plaintiffs in this coverage action.
4
Civil Code section 2860, discussed in much greater detail below, provides in full:
“(a) If the provisions of a policy of insurance impose a duty to defend upon an insurer
and a conflict of interest arises which creates a duty on the part of the insurer to provide
independent counsel to the insured, the insurer shall provide independent counsel to
represent the insured unless, at the time the insured is informed that a possible conflict
may arise or does exist, the insured expressly waives, in writing, the right to independent
counsel. An insurance contract may contain a provision which sets forth the method of
selecting that counsel consistent with this section.
“(b) For purposes of this section, a conflict of interest does not exist as to allegations or
facts in the litigation for which the insurer denies coverage; however, when an insurer
reserves its rights on a given issue and the outcome of that coverage issue can be
controlled by counsel first retained by the insurer for the defense of the claim, a conflict
of interest may exist. No conflict of interest shall be deemed to exist as to allegations of
punitive damages or be deemed to exist solely because an insured is sued for an amount
in excess of the insurance policy limits.
4
Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1233.) In so ordering,
the trial court expressly reasoned there was “no authority for the proposition that once an
insurer breaches its duty to defend by refusing to provide Cumis counsel, when that
insurer is later ordered to provide Cumis counsel, and continues to refuse the order, but
later agrees to provide that counsel, it can unilaterally take advantage of the rate
limitation provision of Section 2860. Indeed, such an outcome would encourage insurers
to reject their Cumis obligation for as long as they chose, safe in the notion that they
“(c) When the insured has selected independent counsel to represent him or her, the
insurer may exercise its right to require that the counsel selected by the insured possess
certain minimum qualifications which may include that the selected counsel have (1) at
least five years of civil litigation practice which includes substantial defense experience
in the subject at issue in the litigation, and (2) errors and omissions coverage. The
insurer‟s obligation to pay fees to the independent counsel selected by the insured is
limited to the rates which are actually paid by the insurer to attorneys retained by it in the
ordinary course of business in the defense of similar actions in the community where the
claim arose or is being defended. This subdivision does not invalidate other different or
additional policy provisions pertaining to attorney‟s fees or providing for methods of
settlement of disputes concerning those fees. Any dispute concerning attorney‟s fees not
resolved by these methods shall be resolved by final and binding arbitration by a single
neutral arbitrator selected by the parties to the dispute.
“(d) When independent counsel has been selected by the insured, it shall be the duty of
that counsel and the insured to disclose to the insurer all information concerning the
action except privileged materials relevant to coverage disputes, and timely to inform and
consult with the insurer on all matters relating to the action. Any claim of privilege
asserted is subject to in camera review in the appropriate law and motion department of
the superior court. Any information disclosed by the insured or by independent counsel is
not a waiver of the privilege as to any other party.
“(e) The insured may waive its right to select independent counsel by signing the
following statement: „I have been advised and informed of my right to select independent
counsel to represent me in this lawsuit. I have considered this matter fully and freely
waive my right to select independent counsel at this time. I authorize my insurer to select
a defense attorney to represent me in this lawsuit.‟
“(f) Where the insured selects independent counsel pursuant to the provisions of this
section, both the counsel provided by the insurer and independent counsel selected by the
insured shall be allowed to participate in all aspects of the litigation. Counsel shall
cooperate fully in the exchange of information that is consistent with each counsel‟s
ethical and legal obligation to the insured. Nothing in this section shall relieve the insured
of his or her duty to cooperate with the insurer under the terms of the insurance contract.”
5
could, at any point, invoke the protection of the statute, effectively forcing their
policyholder to transfer the file to yet another law firm whose rates are lower.” In this
case, the court added, “such a result would work an injustice, since Hartford has already
forced its policyholders to transfer the defense of the Avganim matter from [Squire] to
Hartford‟s panel counsel, only to have it come back again.” Finally, the court concluded:
“[T]he province of the Court is not to continually monitor the conduct of a breaching
insurer to determine at what point it is no longer in „breach‟ so that it may benefit from a
statute whose protection it previously waived.”
This court affirmed both the enforcement order and the underlying summary
adjudication order in the aforementioned nonpublished opinion dated November 30,
2007.5
On or about October 2009, the Marin matter was resolved. Cross-defendants,
including the insured and uninsured, submitted bills to Hartford for defense fees and costs
totaling over $15 million, which Hartford subsequently paid. According to Hartford,
these defense fees and costs were charged by Squire for its legal services as independent
counsel for the insured cross-defendants in the Marin matter, as well as for its services as
counsel for the insured and uninsured cross-defendants in the Marin and/or non-
California actions. Hartford further alleges cross-defendants authorized and ratified each
act of legal service rendered by Squire on their behalf as counsel in those actions, and did
so under the auspices of the enforcement order.
After paying Squire‟s invoices, on July 15, 2011, Hartford filed the operative
cross-complaint in this action, asserting causes of action for reimbursement of monies
5
After cross-defendants J.R. Marketing, L.L.C., Noble Locks Enterprises, Inc., the
Rattos, and Kane filed their motion to enforce the duty to defend but before the motion
was heard, Hartford filed its motion to disqualify Squire for reasons not relevant herein.
We affirmed the trial court‟s decision to deny this motion in the appeal mentioned above
filed in October 2007. (J.R. Marketing, L.L.C. v. Hartford Cas. Ins. Co., A115472
(Oct. 30, 2007) (nonpub).)
6
paid pursuant to the enforcement order, unjust enrichment, accounting and rescission.6 In
this cross-complaint, Hartford alleges Squire submitted improper invoices to Hartford
“under the auspices of the enforcement order,” which caused it to pay in excess of $15
million in defense fees and costs. As such, Hartford claims a right under the enforcement
order to obtain reimbursement of “all unreasonable or unnecessary fees and costs billed
to and paid by Hartford,” including those amounts outside the scope of the enforcement
order for services rendered: (a) for individuals and entities not insured under the
underlying policies; (b) prior to any proper tender to Hartford by any individual or entity;
(c) for any individual or entity in one of the non-California actions; (d) for prosecution of
any affirmative cross-complaints in the Marin action; and/or (e) for any individual or
entity to the extent such fees or costs are abusive, excessive, unreasonable or
unnecessary.
Respondents Squire and Harrington, as well as cross-defendants J.R. Marketing,
L.L.C., the Rattos, the DeMartinis, and Kane, thereafter demurred to the operative cross-
complaint on the ground that each cause of action fails to allege facts sufficient to state a
valid legal claim against any of the named cross-defendants. Following a hearing on
September 1, 2011, the trial court sustained the demurrer to the unjust enrichment and
accounting causes of action without leave to amend as to all cross-defendants and to the
reimbursement and rescission causes of action without leave to amend as to respondents
Squire and Harrington. The trial court overruled the demurrer to the reimbursement and
rescission causes of action as to cross-defendants J.R. Marketing, L.L.C., the Rattos, the
DeMartinis, and Kane.
On December 21, 2011, a judgment of dismissal was thus entered in favor of
Squire and Harrington and against Hartford. Hartford appeals.
DISCUSSION
Hartford raises one primary issue for our review in seeking to overturn the trial
court‟s order sustaining without leave to amend the demurrer of respondents Squire and
6
The rescission cause of action was asserted against all cross-defendants except
Squire. The remaining causes of action were asserted against all cross-defendants.
7
Harrington: Does Hartford have a quasi-contractual right rooted in common law to
maintain a direct suit against Squire, independent counsel for certain cross-defendants in
the Marin action, or Harrington, an uninsured defendant in the Marin action, for
reimbursement of excessive or otherwise improperly-invoiced defense fees and costs? 7
For reasons set forth below, we conclude the answer with respect to both respondents is
“No.”
I. Standard of Review
“In evaluating a trial court‟s order sustaining a demurrer, we review the complaint
de novo to determine whether it contains sufficient facts to state a cause of action. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) In doing so, we
accept as true all properly pleaded material facts, as well as facts that may be implied
from the properly pleaded facts [citation], and we also consider matters that may be
judicially noticed [citation]. We do not assume the truth of contentions, deductions or
conclusions of fact or law. (Ibid.)” (Peterson v. Cellco Partnership (2008) 164
Cal.App.4th 1583, 1589.)
“When a demurrer has been sustained . . . without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by amendment: if it
can be, . . . we reverse; if not, . . . we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) “The plaintiff „bears the burden of demonstrating that the trial court erroneously
sustained the demurrer as a matter of law‟ and „must show the complaint alleges facts
sufficient to establish every element of [the] cause of action.‟ [Citation.]” (Peterson v.
Cellco Partnership, supra, 164 Cal.App.4th at p. 1589.)
II. The Law Governing the Relationship Among Insurer, Insured and
Independent Counsel.
Under well-established California insurance law, an insurer has the right to control
defense and settlement of a third party action against its insured, and to otherwise directly
participate in the litigation on the insured‟s behalf, so long as no conflict of interest arises
7
Hartford does not challenge on appeal the trial courts ruling on its cause of action
for rescission.
8
between the insurer and the insured. (Gafcon, Inc. v. Ponsor & Associates (2002) 98
Cal.App.4th 1388, 1406-1407 (Gafcon) [recognizing a fiduciary relationship between an
attorney retained by an insurer, on the one hand, and both the insurer and insured, on the
other hand, where no conflict of interest exists]; see also National Union Fire Ins. Co. v.
Stites Prof. Law Corp. (1991) 235 Cal.App.3d 1718, 1727 [“[s]o long as the interests of
the insurer and the insured coincide, they are both the clients of the defense attorney and
the defense attorney‟s fiduciary duty runs to both the insurer and the insured”].)
In this case, however, it is undisputed a conflict of interest between Hartford and
the insured cross-defendants did in fact arise. As such, a different rule was triggered.
Specifically, where, as here, the interests of the insurer and the insured no longer align,
the insured is entitled under Civil Code section 2860 (section 2860) to independent
counsel at the insurer‟s expense. (§ 2860 [codifying and clarifying the Cumis doctrine];
e.g., Gafcon, supra, 98 Cal.App.4th at pp. 1421-1422.) Although independent counsel
owes certain limited duties to the insurer under these circumstances (mainly related to
sharing nonprivileged information), independent counsel represents the insured alone.
(§ 2860, subds. (d), (f).) Otherwise stated, “there is no attorney-client relationship
between Cumis counsel and the insurer.” (Assurance Co. of America v. Haven (1995) 32
Cal.App.4th 78, 87-88, 90 [Assurance].)
Section 2860 also provides certain protections for the insurer. These protections
include provisions governing the amount of fees payable to independent counsel, the
subject matter of this dispute. For example, the statute limits the rate of fees an insurer
may be obligated to pay to “the rates which are actually paid by the insurer to attorneys
retained by it in the ordinary course of business in the defense of similar actions in the
community where the claim arose or is being defended.” In addition, the statute
mandates that fee disputes “shall be resolved by final and binding arbitration by a single
neutral arbitrator selected by the parties to the dispute.” (§ 2860, subd. (c).)
Yet these protective rules come with an important caveat. “ „To take advantage of
the provisions of [section] 2860, an insurer must meet its duty to defend and accept
tender of the insured‟s defense, subject to a reservation of rights.‟ ” (Atmel Corp. v. St.
9
Paul Fire & Marine (N.D. Cal. 2005) 426 F.Supp.2d 1039, 1047; see also Truck Ins.
Exchange v. Superior Court (1996) 51 Cal.App.4th 985, 998.) When, to the contrary, the
insurer fails to meet its duty to defend and accept tender, the insurer forfeits the
protections of section 2860, including its statutory limitations on independent counsel‟s
fee rates and resolution of fee disputes. More generally, “[w]hen an insurer wrongfully
refuses to defend, the insured is relieved of his or her obligation to allow the insurer to
manage the litigation and may proceed in whatever manner is deemed appropriate.”
(Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196. See also Stalberg v. Western
Title Ins. Co., supra, 230 Cal.App.3d at p. 1233 [an insurer that wrongfully refuses to
defend the insured forfeits its right to control the defense, including its rights to select
defense counsel and litigation strategy].)
Here, undisputedly, Hartford failed to meet its duty to defend and accept tender of
the defense in the Marin matter, thereby, as this court recognized in 2007, forfeiting its
right to rely on the statutory protections of section 2860 and to otherwise control the
defense. (See J.R. Marketing, L.L.C. v. Hartford Cas. Ins. Co., A115846 (Nov. 30,
2007), at pp. 18-19.)
III. The Right of an Insurer to Seek Reimbursement for Defense Fees and Costs.
A. Does Hartford have a right to seek reimbursement from Squire?
It is within this context that we are left to consider Hartford‟s asserted right to seek
reimbursement in a direct suit against Squire. In doing so, we first identify two well-
established legal principles relevant to any claimed right of reimbursement by an insurer.
First, with respect to claims that are at least partially covered under the relevant policy,
an insurer‟s duty to defend extends to the insured‟s entire defense cost. (Buss v. Superior
Court, supra, 16 Cal.4th at pp. 47-48 [recognizing that insurers contract to pay the entire
cost of defending at-least-potentially-covered claims] [Buss]). And second, with respect
to claims not even potentially covered under the relevant policy, an insurer, like Hartford,
does indeed have a right to seek reimbursement of its cost to defend such claims once the
underlying suit has been resolved. (E.g., Buss, supra, 16 Cal.4th at p. 50 [“As to the
claims that are not even potentially covered, however, the insurer may indeed seek
10
reimbursement for defense costs”]; Reliance Ins. Co. v. Alan (1990) 222 Cal.App.3d 702,
710.) However, having acknowledged this right to seek reimbursement as to not-even-
potentially-covered claims, the question remains against whom may the insurer assert this
right.
Hartford, in arguing its right to seek reimbursement extends against independent
counsel, looks to language in the California case law, including the high court‟s decision
in Buss, describing the nature of this right as both contractual and quasi-contractual:
“Under the policy, the insurer does not have a duty to defend the insured as to the claims
that are not even potentially covered. With regard to defense costs for these claims, the
insurer has not been paid premiums by the insured. It did not bargain to bear these costs.
To attempt to shift them would not upset the arrangement. [Citation.] The insurer
therefore has a right of reimbursement that is implied in law as quasi-contractual,
whether or not it has one that is implied in fact in the policy as contractual. [Fn. omitted.]
As stated, under the law of restitution such a right runs against the person who benefits
from „unjust enrichment‟ and in favor of the person who suffers loss thereby. The
„enrichment‟ of the insured by the insurer through the insurer‟s bearing of unbargained-
for defense costs is inconsistent with the insurer‟s freedom under the policy and therefore
must be deemed „unjust.‟ ”8 (Buss, supra, 16 Cal.4th at pp. 51-52 [italics added]; see also
Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 [Durell] [“ „where
appropriate [in cases involving fraud, duress, conversion, or similar conduct], the law will
imply a contract (or rather, a quasi-contract), without regard to the parties‟ intent, in order
to avoid unjust enrichment‟ ”].)
8
The California Supreme Court justified its conclusion as follows: “Not only is it
good law that the insurer may seek reimbursement for defense costs as to the claims that
are not even potentially covered, but it also makes good sense. Without a right of
reimbursement, an insurer might be tempted to refuse to defend an action in any part--
especially an action with many claims that are not even potentially covered and only a
few that are--lest the insurer give, and the insured get, more than they agreed. With such
a right, the insurer would not be so tempted, knowing that, if defense of the claims that
are not even potentially covered should necessitate any additional costs, it would be able
to seek reimbursement.” (Buss, supra, 16 Cal.4th at pp. 52-53.)
11
According to Hartford, Buss and Durell stand for the proposition that a right of
restitution lies, independent of a contractual relationship, between any person who has
suffered loss and the person who has been unjustly enriched thereby. Thus, relying on
the above-identified language, and in particular the language in Buss relating to an
insurer‟s right to reimbursement for unbargained-for defense costs, Hartford argues one
step further that insurers are entitled to reimbursement from independent counsel of those
costs to prevent counsel‟s unjust enrichment by the insurer. As we will explain, the
relevant law and policy both suggest otherwise.
With respect to the law, Hartford‟s argument ignores several implications of the
important caveat governing restitution claims identified in both Buss and Durell.
According to this caveat, “ „ “[t]he fact that one person benefits another is not, by itself,
sufficient to require restitution. The person receiving the benefit is required to make
restitution only if the circumstances are such that, as between the two individuals, it is
unjust for the person to retain it. [Citation.]” ‟ [Citation.]” (Durell, supra, 183
Cal.App.4th at p. 1370; see also Buss, supra, 16 Cal.4th at pp. 50-52.)9 Or, as other
courts have expressed, “restitution should be required only when it „ “ „involves no
violation or frustration of law or opposition to public policy, either directly or
indirectly.” ‟ ” ([County of San Bernardino v. Walsh (2007)] 158 Cal.App.4th [533,]
542.)” (Peterson v. Cellco Partnership, supra, 164 Cal.App.4th at p. 1595.)
In this case, important policies – to wit, those underlying the enactment of section
2860 – would indeed be frustrated by allowing Hartford to directly sue Squire for
reimbursement. As explained in great detail above, Hartford‟s and Squire‟s relationship
9
Thus, as the California Supreme Court explained in Buss, while “[a]ny
„enrichment‟ of the insured by the insurer through the insurer‟s bearing of bargained-for
defense costs is consistent with the insurer‟s obligation under the policy and therefore
cannot be deemed „unjust,‟ ” the same cannot be said of unbargained-for defense costs
(i.e., those not even potentially covered under the policy). As to the latter costs only, an
implied quasi-contractual right to reimbursement would be appropriate because “[t]he
„enrichment‟ of the insured by the insurer through the insurer‟s bearing of unbargained-
for defense costs is inconsistent with the insurer‟s freedom under the policy and therefore
must be deemed „unjust.‟ ” (Buss, supra, 16 Cal.4th at pp. 50-51.)
12
is governed by the Cumis scheme, which “envisions an attorney pursing an insured‟s
defense independently of the insurer rather than intertwined with it.” (Assurance, supra,
32 Cal.App.4th at p. 91, fn. 8.) Thus, under this scheme, where, as here, the insurer
breaches its duty to defend the insured, the insurer loses all right to control the defense,
including, necessarily, the right to control financial decisions such as the rate paid to
independent counsel or the cost-effectiveness of any particular defense tactic or approach.
(James 3 Corp. v. Truck Ins. Exchange (2001) 91 Cal.App.4th 1093,1103, fn.3 [“Th[e]
right to control the defense necessarily encompasses the right to determine what measures
are cost effective, bearing in mind liability and indemnity exposure” ]; Dynamic
Concepts, Inc. v. Truck Ins. Exchange (1998) 61 Cal.App.4th 999, 1009, fn. 9 [insurers
are barred from imposing on the insured‟s counsel discovery or research limitations that
would impede counsel‟s professional judgment or otherwise unreasonably interfere with
the insured‟s defense].)10 Retroactively imposing the insurer‟s choice of fee arrangement
for the defense of the insured by means of a post-resolution quasi-contractual suit for
reimbursement against the insured‟s separate counsel, such as Hartford seeks to pursue
here against Squire, runs counter to these Cumis-scheme principles for several reasons
well-illustrated by the facts at hand.
Recall Hartford, an insurer in breach of its duty to defend, chose not to align its
interests with the insured cross-defendants for purposes of the Marin defense and thereby
10
Indeed, even where the insurer is not in breach of its duty to defend, independent
counsel still owes very few duties directly to the insurer given the lack of an attorney-
client relationship between them and the consequent “compelling need for Cumis counsel
to remain free from the oftentimes subtle ethical dilemmas and temptations that arise
along with conflict in joint representations.” (Assurance, supra, 32 Cal.App.4th at
pp. 87-88 [insurer may sue Cumis counsel for breach of section 2860-specified duties to
disclose, inform, consult or cooperate regarding information known to Cumis counsel, but
may not sue Cumis counsel for negligent failure “to investigate, prepare, assert, establish,
or perform similar functions regarding a defense or position in [the insurer‟s] favor”]; see
also § 2860, subds. (d), (f) [identifying only the following duties of Cumis counsel to the
insurer: To “disclose . . . all information concerning the action except privileged materials
relevant to coverage disputes,” to timely “inform and consult with the insurer on all
matters relating to the action,” and to “cooperate fully in the exchange of information that
is consistent with . . . counsel‟s ethical and legal obligation to the insured”].)
13
forfeited all right to control that defense. Placed in this position, cross-defendants, not
Hartford, hired Squire as independent counsel to represent their interests in the defense,
negotiated the relevant fee arrangement with Squire, and oversaw all matters of defense
strategy including, presumably, deciding with Squire the cost/benefit of various litigation
pursuits. It is within this context that Hartford claims the legal right to bring a
reimbursement action against Squire for allegedly charging excessive, unreasonable or
unnecessary fees for their provision of legal services in the name of cross-defendants‟
defense. We think not. As set forth above, it is clear California law bars an insurer, like
Hartford, in breach of its duty to defend from thereafter imposing on its insured its own
choice of defense counsel, fee arrangement or strategy. This court now takes the law one
slight step further by holding Hartford likewise barred from later maintaining a direct suit
against independent counsel for reimbursement of fees and costs charged by such counsel
for crafting and mounting the insureds‟ defense where Hartford considers those fees
unreasonable or unnecessary.
To hold otherwise would effectively afford the insurer that has waived the
protections of section 2860 through its own wrongdoing more rights in a fee dispute with
independent counsel than the insurer that has not waived such protections. Specifically,
while the insurer in compliance with its duty to defend would be limited under section
2860 to arbitrating a fee dispute, the insurer in breach of its duty could bring the fee
dispute to court.11 The law does not sanction this inequitable result. (See Comunale v.
Traders & General Ins. Co. (1958) 50 Cal.2d 654, 660 [“Certainly an insurer who . . .
wrongfully refused to defend should be in no better position than if it had assumed the
defense”]; The Housing Group v. PMA Capital Ins. Co. (2011) 193 Cal.App.4th 1150,
1157 [rejecting the position that “ „insurers always can take advantage of [§2860] despite
immediately failing to meet their burden to defend‟ ” because it “would encourage
11
As Squire also points outs, had Hartford met its duty to defend in the Marin
matter, the issue of its right to directly sue Squire for reimbursement would not have
arisen. Under section 2860, subdivision (c), Hartford would not only have had the right
to pay a specific hourly rate, it would have had the right to arbitrate any fee dispute.
14
insurers to reject their Cumis obligations for as long as they chose because they knew
they could invoke the limitations and remedies of section 2860 at any time”].)
Indeed, by providing legal services to cross-defendants, Squire did not confer any
benefit upon Hartford. Rather, Squire conferred a benefit on its clients – to wit, cross-
defendants. That Hartford paid Squire for those services does not change this fact. There
simply is no legal basis here for the restitution claim that Hartford has asserted against
Squire. Here, it is the insured cross defendants – rather than independent counsel – that
the insurer should look to for reimbursement if it believes the fees were incurred to
defend claims that were not covered by the insurer‟s policies or that the insured agreed to
pay Squire more than was reasonable for the services that Squire performed.
Finally, we add that our holding in this regard is actually quite limited. Given the
precise issue raised by the parties to this appeal, we have no reason to, and do not, take a
position as to whether an insurer would have the right to maintain a direct suit against
independent counsel for fraudulent billing practices in connection with the underlying
defense of its insured. (Cf. Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993)
15 Cal.App.4th 800, 803 [pointing out that if “the only issue in dispute truly was the
amount of Cumis counsel fees the insurance company owed, it would be improper, in
most circumstances at least, for a trial court to stay the arbitration proceeding mandated
under section 2860 in order to allow a judicial proceeding in the California courts to
decide that issue and that issue alone”]; Fireman’s Fund Ins. Companies v. Younesi
(1996) 48 Cal.App.4th 451, 455-459 [where an insurer sued its insured‟s Cumis counsel
for fraudulent billing practices, the appellate court affirmed an order denying counsel‟s
motion to compel arbitration under section 2860, subd. (c), holding “the language of
[section 2860, subd. (c)] can only be interpreted to limit the scope of arbitrable disputes
to those in which only the amount of legal fees or the hourly billing rates are at issue”].)
Thus, for all the reasons stated, we conclude that, where a conflict arises with
respect to defense fees or costs paid by an insurer in breach of its duty to defend to the
15
independent counsel hired by its insured following this breach, the insurer must look to
the insured, not independent counsel, to resolve the conflict.12
B. Does Hartford have a right to seek reimbursement from Harrington?
Finally, we address Hartford‟s contention the trial court erred by sustaining the
demurrer to its reimbursement cause of action as to respondent Harrington, an individual
named as a defendant in the Marin matter but not insured by Hartford.13 In seeking
reimbursement from Harrington, Hartford raises one argument in its opening brief
without any citation to legal authority or to the factual record: Hartford claims simply that
it has a right to restitution from Harrington because he was unjustly enriched by receiving
a Hartford-financed defense in the Marin matter.14 As respondents point out, however, in
addition to failing in its opening brief to cite to relevant legal authority or to the record,
Hartford also failed in the operative complaint to allege that any fees or costs were
incurred or legal services provided solely for Harrington‟s defense (as opposed to for one
or more of the insured cross-defendants). Moreover, Hartford offered no explanation in
its opening brief as to how this failure to allege could be remedied.
12
Hartford‟s accounting cause of action against Squire, which Hartford
acknowledges is simply an extension of its reimbursement cause of action, fails for the
same reason: It is based on the nonexistent right of an insurer in breach of its duty to
defend to directly sue independent counsel for reimbursement of monies paid for the
insured‟s defense. As reflected in the operative complaint, this cause of action, by which
Hartford “seeks an accounting from [Squire] as to all monies paid to, or for the benefit of,
each of the Cross-defendants” in the Marin and non-California actions, serves no purpose
other than to permit an accurate calculation of the amount subject to reimbursement.
Because we hold there is no right to reimbursement from Squire in this case, there is no
amount subject to reimbursement.
13
The trial court sustained the demurrer to the reimbursement cause of action as to
respondents Squire and Harrington without leave to amend. In doing so, the court noted
the need to protect the attorney-client relationship between the insured and their counsel.
However, the court did not specifically state why the demurrer was sustained as to
Harrington, as distinguished from Squire.
14
Hartford‟s entire argument on this point is as follows: “Had Hartford not provided
Harrington a defense, he would have had to pay for his own defense. Accordingly, he
was unjustly enriched and should be subject to a restitution action. Hartford should be
entitled to recover the value of the legal services provided to Harrington.”
16
We conclude based on this record that Hartford has failed its burden to prove the
trial court abused its discretion by sustaining the demurrer as to Harrington without leave
to amend. This court is not obligated to research the relevant law or to develop an
appellant‟s otherwise conclusory legal assertions. (Dills v. Redwoods Associates, Ltd.
(1994) 28 Cal.App.4th 888, 890, fn. 1; HFH, Ltd. v. Superior Court (1975) 15 Cal.3d
508, 513, fn. 3.) To the contrary, this court is entitled to disregard legal assertions not
supported by meaningful argument, particularly where the proponent of such assertions
has the burden to prove grounds for reversal. (McComber v. Wells (1999) 72 Cal.App.4th
512, 522; Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003)
111 Cal.App.4th 1328, 1345, fn. 16.)
While Hartford may have provided additional argument in its reply brief, its
argument did no more than respond to points raised by respondents in their appellate
brief.15 This backward approach, particularly where Hartford carried the burden of
demonstrating the trial court‟s error, runs contrary to our well-established rules of
appellate litigation. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 322 [“[w]e
do not entertain issues raised for the first time in a reply brief, in the absence of a
showing of good cause why such issues were not raised in the opening brief. [Citations.]
No good cause appearing here, we will disregard these issues”].) Moreover, to condone
this approach for purposes of the present appeal would be unfair to respondents, who
15
After pointing out the above-mentioned deficiencies in Hartford‟s opening brief
with respect to its challenge to the order sustaining Harrington‟s demurrer, respondents
set forth two legally supported arguments for affirming: (1) Harrington, as an uninsured,
was not subject to the enforcement order upon which Hartford relies in seeking
reimbursement; and (2) because there was no contractual relationship between Hartford
and Harrington, Hartford has no remedy against Harrington for reimbursement. In its
reply brief, Hartford briefly responds to each of these arguments, claiming for the first
time that the lack of a contractual relationship or binding order between Hartford and
Harrington is irrelevant because its right to reimbursement is “implied in law as quasi-
contractual.” (See Buss, supra, 16 Cal.4th at p. 51.) Further, Hartford claims for the first
time that it was not required to plead specific fees incurred on behalf of Harrington
“given that Squire Sanders was in possession of that information, not Hartford. (See Doe
v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550 . . . .)”
17
have been deprived by Hartford‟s tactic of any opportunity to counter its reply arguments.
(Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) As our appellate colleagues in
the Third District have aptly noted: “ „Obvious considerations of fairness in argument
demand that the appellant present all of his points in the opening brief. To withhold a
point until the closing brief would deprive the respondent of his opportunity to answer it
or require the effort and delay of an additional brief by permission. Hence the rule is that
points raised in the reply brief for the first time will not be considered, unless good
reason is shown for failure to present them before.‟ ” (Neighbors v. Buzz Oates
Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
Thus, we conclude that, given Hartford‟s failure to state facts supporting its
reimbursement cause of action against Harrington, and to present timely and legally-
supported arguments as to how the trial court erred or how the operative complaint could
be amended to remove any defect, there are no grounds for reversing this order.
DISPOSITION
The judgment of dismissal in favor of respondents and against Hartford is
affirmed. Respondents are entitled to recover costs on appeal.
_________________________
Jenkins, J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
18
| {
"pile_set_name": "FreeLaw"
} |
50 Cal.3d 1098 (1990)
790 P.2d 1327
269 Cal. Rptr. 530
THE PEOPLE, Plaintiff and Respondent,
v.
DUANE HOLLOWAY, Defendant and Appellant.
Docket No. S004695. Crim. No. 24659.
Supreme Court of California.
May 31, 1990.
*1102 COUNSEL
Louis N. Hiken, under appointment by the Supreme Court, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PANELLI, J.
Defendant was convicted of the first degree murders (Pen. Code, § 187) of Diane Pencin and Debra Cimmino.[1] He was also convicted of burglary of the Pencin-Cimmino residence (§ 459) and attempted rape (§§ 664/261) of Debra Cimmino. Three special circumstance allegations under the 1978 death penalty law were found true: (1) murder of Pencin during the commission of burglary (§ 190.2, subd. (a)(17)(vii)); (2) murder *1103 of Cimmino during the commission of attempted rape (§ 190.2, subd. (a)(17)(iii)); and (3) conviction in this proceeding of more than one offense of murder (§ 190.2, subd.(a)(3)). The jury fixed the punishment at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239.)
As explained hereafter, we conclude that the judgment of guilt must be reversed for jury misconduct. For guidance on retrial we nevertheless discuss the ruling on the motion to suppress defendant's statements to the police.
GUILT PHASE FACTS
A. Prosecution Case.
Diane Pencin and her younger sister, Debra Cimmino (Debbie), lived together in a townhouse in Sacramento. Their parents, Mike and Lorie Cimmino, lived about one block away and kept in close touch with their daughters. The sisters were very security conscious; there was a burglar alarm in the residence, which included a panic button.
On Saturday, March 19, 1983, Diane and her father went to a movie together. About 11:30 p.m. that evening Lorie Cimmino talked to her daughter Debbie on the telephone and indicated that she might come over the next afternoon. She had a change of plans and did not go there on Sunday. Lorie Cimmino's telephone conversation was the last contact anyone had with the sisters.
On Monday, March 21, Connie Greer, a friend of Debbie Cimmino's, received a call from Debbie's employer asking if she knew where Debbie was. Greer drove over to the Pencin-Cimmino townhouse to look for Debbie. When she arrived she noticed Diane's car parked in front; this seemed strange since it was a workday. She also noticed that the Sunday and Monday newspapers were still lying on the walkway. After receiving no answer at the door and being unable to open it, Greer walked around to the carport where Debbie's car was parked. The car was unlocked. She opened the door and discovered Debbie Cimmino's body in the rear seat underneath a pile of blankets and clothing. Greer ran to her aunt's house nearby and called for help.
Connie Greer was present when fire department paramedics and sheriff's deputies arrived. The first deputy on the scene concluded that a homicide had been committed and summoned detectives. He then entered the townhouse to look for Diane Pencin. He discovered Diane's nude body on the bed in the rear bedroom; the corpse was in rigor and very cold.
*1104 Detective Machen handled the investigation of Debbie's car. No car keys were found in the car. The contents of Debbie's purse were strewn about the floor of the front passenger seat. There was a sandy footprint on the floor of the rear seat and a pair of black panties. Although a blue ski parka was covering the body, the victim was nude from the waist down. Her blouse was pushed up to the lower portion of her breasts. Other than bleeding from the nose there were no apparent signs of trauma on the victim.
The autopsy of Debbie Cimmino revealed that she had numerous defensive wounds on her hands. The cause of death was manual strangulation. Vaginal and rectal swabs revealed no evidence of sperm. There was a small injury or tear to the entrance of the vagina; there was also some bruising. The tearing had occurred within a few hours of the victim's death.
Detective Reed investigated the townhouse where Diane Pencin's body was found. There were no signs of forced entry. The telephone in the kitchen had been disconnected from the wall. Two knives were lying on the floor near the bed containing Diane's body. One knife had blood on it. Nothing in the house appeared to be missing, and there were no signs of a struggle. Both cords for the telephone in the bedroom were missing. Diane's body was lying naked on the bed; her pajamas were mixed up with the bedspread on the floor. Her body had multiple stab wounds, bruising on her ankles and marks on her neck.
The autopsy of Diane Pencin revealed that she had at least six stab wounds and two smaller puncture wounds. She was alive when the wounds were inflicted. There were ligature marks on her wrists and possibly on her throat. There were no signs of trauma to her genitalia, nor was there any sperm present. The cause of death was multiple stab wounds in association with strangulation.
The two victims' niece had spent Friday and Saturday, March 18 and 19, with the victims at their townhouse. She and Debbie had washed and cleaned the interior and exterior of Debbie's car on Saturday morning, March 19. Diane had driven her home about 3 p.m. that day.
On March 21, the day the bodies were found, detectives spoke to Robert Cruz, a friend of defendant's. Cruz had picked up defendant at his father's house about 4 p.m. on Saturday, March 19. They watched television and drank beer at Cruz's apartment until about 4 a.m. when Cruz drove defendant to defendant's father's house.
Around 8 a.m., Sunday, March 20, defendant called Cruz and told him that if anyone asked he was to say that he dropped defendant off at his *1105 mother's house at 8 a.m. that day. Cruz told the requested lie when officers questioned him about defendant's whereabouts on Saturday night and Sunday morning. Later Cruz was troubled and discussed the situation with his work supervisor who in turn called the sheriff's office. Cruz then told the officers the truth. Cruz also called defendant and informed him that he had told the officers the truth.
Officers interviewed defendant about 7:25 p.m. on March 21, 1983. Defendant said he had met Debbie in junior high school, had written to her after he had left school, had visited with her at his father's house several times, but was not "in love" with her. On the afternoon of Saturday, March 19, defendant went with his friend Robert Cruz and spent the night at the latter's apartment. Cruz drove defendant to his mother's house about 7 a.m. on Sunday. Defendant said he had no idea why anyone would want to kill Debbie and Diane.
Defendant was interviewed again on March 22, 1983, after Robert Cruz had informed him that he had told the truth. This time defendant said Cruz had dropped him off at his father's house at 3 or 4 a.m. Nobody was there, so he walked to a store and tried to call his father and a friend. No one answered, so he walked to his mother's house. When passing the Chandler Street area (the victims' street), defendant heard the sound of breaking glass and a woman screaming. When he arrived at his mother's house he called Cruz and asked him to give the false story; defendant did not want to be connected with the scream and broken glass. Defendant said he had been in Debbie's house and car a number of times; the last time he was in her car was about a month before. He had been in the townhouse in early March. Defendant explained that he had scratches on his side and knees from playing handball. At the end of the interview defendant admitted he had gone to Debbie's house to use the telephone. Both sisters answered the door. He remembered nothing else except that Debbie was screaming in the carport.
An identification technician testified that defendant's fingerprints were found in the following places: (1) at four spots on the outside of Debbie's car; (2) inside the car on the backseat backrest; (3) on the telephone lying on the bed where Diane's body was found; and (4) on the doorjamb of the other bedroom.
B. Defense Case.
Defendant did not testify in his own behalf. A friend testified that on the day of defendant's arrest they had played a "high intensity" game of handball *1106 during which defendant may have scraped himself on the wall or the ground.
A friend of Debbie Cimmino, Chris Caico, testified that she and Debbie had a lesbian relationship that had broken up. The testimony was introduced by way of a court reporter reading aloud testimony given by Caico in an earlier hearing out of the presence of the jury.
ISSUES
A. Jury Misconduct.
Defendant contends that jury misconduct during the guilt phase of the trial requires reversal of the judgment. We reluctantly agree. When the misconduct came to light, defendant moved for a mistrial. The court denied it, as well as a later motion for new trial on the ground of jury misconduct.
At the beginning of the trial the court had admonished the jurors to refrain from reading newspaper articles or listening to other media reports about the case. The court warned the jurors about the possibility of a mistrial resulting from corruption by outside influences and urged them to do their best to avoid it.
In addition, the court and all counsel went to great lengths to ensure that the jurors did not hear any evidence about defendant's prior criminal history. Before jury selection the court ruled under Evidence Code section 352 that defendant's prior record would not be admissible at the guilt phase since the probative value was outweighed by the prejudicial effect of such evidence. The court also ruled that it would not be admissible under Evidence Code section 1101 and warned the parties to tread carefully around the subject.
Despite these efforts, it was discovered shortly after the jury returned its verdicts in the guilt phase that one of the jurors, Juror Beck, had read a newspaper article on January 23, 1985, the second day of trial, stating that defendant was on parole from prison after having served time for assaulting a Sacramento woman with a hammer. Juror Beck had known this information throughout the trial and, according to him, had kept it to himself until after the jurors had signed their guilt phase verdicts.
The information came to light when another juror, Juror Gravier, telephoned the court clerk on April 1, 1985, five days after the guilt verdicts had been returned, to report that one of the jurors had mentioned after deliberations had been completed that he had knowledge of a possible prior *1107 record or something, but that he had been careful not to mention anything until after the deliberations.
After consulting with counsel, the court brought in Juror Gravier for further inquiry. Gravier stated that after the verdict forms had been signed but before the jury had been summoned to return to court, the jurors were conversing. Juror Beck had said to several other jurors that he was glad the deliberations were over because he had been afraid he might accidentally reveal that he had read that defendant had previously assaulted a woman with a hammer. Juror Gravier thought that the comment had been directed to Juror Baril.
The court then brought in Juror Beck for inquiry. Juror Beck stated that he had read a newspaper article indicating that defendant previously had been convicted of assaulting a woman with a hammer. After further investigation the parties were able to stipulate that the article was in the Sacramento Bee on January 23, 1985, after the prosecutor had made his opening statement. The last paragraph of the article read: "At the time of his arrest, Holloway was on parole from prison after serving time for assaulting a Sacramento woman with a hammer."
Beck said that at the time he read the article, he was aware of the court's admonition to refrain from reading press reports about the trial. He remembered thinking that he had "blown it," and he wished he had never seen the article. Nevertheless, he made no mention of having read the article until after the jury had finished its guilt phase deliberations.
Juror Baril was identified as one of the jurors to whom Juror Beck had been talking. Inquiry of her revealed that she remembered sitting next to Juror Beck after deliberations and hearing some speculation about what defendant had been doing since high school. She did not, however, remember any specific discussion.
Counsel agreed not to question any of the remaining nine jurors. Following argument by counsel, the court denied a motion for mistrial without prejudice.
Defendant raised the issue of jury misconduct again in his motion for a new trial. In discussing the motion, the court acknowledged that there were two questions: (1) Was it misconduct? (2) If so, was it prejudicial? Taking the second question first, the court focused on the impact of Juror Beck's communication of the information to the other jurors, noting that if the verdicts had changed thereafter, he would immediately have granted a mistrial. Turning to the first question, the court stated that it had found no *1108 "support in cases or statute for saying that inadvertent reading is in and of itself misconduct." The court ended its rather rambling ruling with the statement: "I respectfully feel that there was probably no misconduct in any cognizable sense and there is preeminently no indication of prejudice to the defendant of anything that's been brought before me."
The court's ruling was erroneous in several respects. As we shall explain, it erred in finding that there was no misconduct. It also erred in its analysis of the question of prejudice by failing to consider the effect of having one juror sit through the entire trial with secret and improper knowledge of defendant's prior record. Although the court's general admonition against reading newspapers did not include an instruction to report any such activity, the court had asked Juror Beck during voir dire to let it know if Beck later remembered having read anything else about the crime.[2]
(1) It is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he is sitting, and the People so concede. (People v. Lambright (1964) 61 Cal.2d 482, 486 [39 Cal. Rptr. 209, 393 P.2d 409]; People v. Wong Loung (1911) 159 Cal. 520, 525-527 [114 P. 829]; People v. Stokes (1894) 103 Cal. 193, 196-200 [37 P. 207]; People v. McCoy (1886) 71 Cal. 395, 397 [12 P. 272].) "There is no doubt ... that the reading of newspapers by jurors, while engaged in the trial of a cause, is an inattention to duty which ought to be promptly corrected; and if the newspaper contains any matter in connection with the subject-matter of the trial which would be at all likely to influence jurors in the performance of duty, the act would constitute ground for a motion for a new trial. Jurors in a criminal action are sworn to render a true verdict according to the evidence. They cannot, under the oath which they take, receive impressions from any other source." (People v. McCoy, supra, 71 Cal. at p. 397.)
(2) It is equally well settled that such juror misconduct raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted. (People v. Honeycutt (1977) 20 Cal.3d 150, 156 [141 Cal. Rptr. 698, 570 P.2d 1050]; People v. Wong Loung, supra, 159 Cal. at pp. 527-529; People v. Conkling (1896) 111 Cal. 616, 628 [44 P. 314].) As early as 1896, we said, "when misconduct of jurors is shown, it is presumed to be injurious to defendant, unless the contrary appears." (People v. *1109 Conkling, supra, 111 Cal. at p. 628.) We have long recognized the reason for this rule: "A juror is not allowed to say: `I acknowledge to grave misconduct. I received evidence without the presence of the court, but those matters had no influence upon my mind when casting my vote in the juryroom.' The law, in its wisdom, does not allow a juror to purge himself in that way. It was said in Woodward v. Leavitt, 107 Mass. 466; 9 Am. Rep. 49: `But, where evidence has been introduced tending to show that without authority of law, but without any fault of either party or his agent, a paper was communicated to the jury which might have influenced their minds, the testimony of the jurors is admissible to disprove that the paper was communicated to them, though not to show whether it did or did not influence their deliberations and decision. A juryman may testify to any facts bearing upon the question of the existence of the disturbing influence, but he cannot be permitted to testify how far that influence operated upon his mind.'" (People v. Stokes, supra, 103 Cal. at pp. 196-197.) That principle is now embodied in Evidence Code section 1150.
"The presumption of prejudice is an evidentiary aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which Evidence Code section 1150 erects, and it seeks to lower that barrier somewhat." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416 [185 Cal. Rptr. 654, 650 P.2d 1171].)
(3) Until recently it was unclear what standard should be applied in criminal cases to determine whether the presumption of prejudice has been rebutted. In People v. Marshall, ante, 907, at pages 950-951 [269 Cal. Rptr. 269, 790 P.2d 676], however, we held that the analysis set forth in the American Bar Association Standards for Criminal Justice should be followed. A verdict of guilty must be reversed or vacated "whenever ... the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury." (2 ABA Standards for Criminal Justice, std. 8-3.7 (2d ed. 1980) p. 8.57.)
"The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror." (2 ABA Standards for Criminal Justice, supra, std. 8-3.7, Commentary, p. 8.58.)
*1110 As we noted in People v. Marshall, supra, ante, at page 951, this prejudice analysis is different from and indeed less tolerant than the "harmless-error analysis" for ordinary error at trial: "The reason is as follows. Any deficiency that undermines the integrity of a trial which requires a proceeding at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury introduces the taint of fundamental unfairness and calls for reversal without consideration of actual prejudice. (See Rose v. Clark [(1985)] 478 U.S. [570,] 577-578 [92 L.Ed.2d 460, 470-471, 106 S.Ct. 3101].) Such a deficiency is threatened by jury misconduct. When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant's detriment, we are compelled to conclude that the integrity of the trial was undermined: under such circumstances, we cannot conclude that the jury was impartial."
There are, of course, cases in which the presumed prejudice has been found rebutted. In People v. Sutter (1982) 134 Cal. App.3d 806, 820-821 [184 Cal. Rptr. 829], for example, the presumption of prejudice was found rebutted because the evidence from the juror's improper visit to the crime scene added nothing contradictory to the evidence at trial and there was no issue relating to the scene of the crime.
(4a) The present case, however, is an entirely different matter. There is no doubt that serious misconduct occurred, regardless of whether the reading of the article was inadvertent or intentional. (People v. Andrews (1983) 149 Cal. App.3d 358, 363 [196 Cal. Rptr. 796, 46 A.L.R.4th 1].) The content of the article was extremely prejudicial; it revealed information about defendant's prior criminal conduct that the court had ruled inadmissible because of its potential for prejudice. The court and counsel had gone to great lengths to avoid having the jury learn of defendant's prior conviction for having assaulted a woman with a hammer. Their efforts were to no avail as to one juror a fact that they did not learn until after it was too late to take any curative steps.
The present situation is similar to that in People v. Thomas (1975) 47 Cal. App.3d 178 [120 Cal. Rptr. 637] and People v. Andrews, supra, 149 Cal. App.3d 358. In Thomas, several jurors read a newspaper article stating that a codefendant had pleaded guilty and been sentenced. The Court of Appeal held that the trial court should have granted the defense motion for a mistrial. In Andrews, a newspaper article stating that the codefendant had pleaded guilty was inadvertently sent to the jury room during deliberations and read by at least six jurors. The trial court refused to question the jury and denied a motion for a new trial. The Court of Appeal reversed, stating that the preferred procedure in such cases "is to question the jurors in *1111 chambers to ascertain knowledge and prejudice, if any, to defendant and, based upon the information obtained, decide whether the proper remedy is admonishment, instruction or mistrial." (149 Cal. App.3d at p. 366.) Given the extremely prejudicial nature of the evidence improperly received, the record in Thomas and Andrews presented no basis for finding that the presumption of prejudice had been rebutted. The prejudicial nature of the inadmissible evidence set the cases apart from those in which the presumption of prejudice had been found rebutted by the inherently nonprejudicial value of the evidence improperly considered or where the court has admonished jurors to disregard such evidence. (See, e.g., People v. Martinez (1978) 82 Cal. App.3d 1, 25 [147 Cal. Rptr. 208] [jury's consideration of maps that duplicated evidence already before jury]; People v. Reyes (1974) 12 Cal.3d 486, 506-507 [116 Cal. Rptr. 217, 526 P.2d 225] [jury's receipt of victim's clothing, to which defense objection had been overruled, but which had not been moved into evidence].)
In attempting to rebut the presumption of prejudice in the present case, the People follow the reasoning employed by the trial court in denying the motion for a new trial. They argue that Juror Beck did not disclose the offending information to any other jurors before or during deliberations and that the court had carefully admonished the jury not to read or listen to media reports about the case. The argument misses the point. We agree that the 11 other jurors were not contaminated, but we cannot overlook the fact that 1 juror went through the entire guilt phase contaminated by knowledge of what had been judicially determined to be inadmissible and prejudicial information. His silence exacerbated matters because it prevented the court and counsel from taking any action to remedy the situation. Thus, the defense had no opportunity to request curative measures such as the replacement of the tainted juror with an alternate or a limiting instruction or admonition. (Cf. People v. Craig (1978) 86 Cal. App.3d 905, 919 [150 Cal. Rptr. 676] [immediate admonishment cured potential prejudice]; People v. Harper (1986) 186 Cal. App.3d 1420, 1426-1430 [231 Cal. Rptr. 414] [prompt admonition not to consider definitions from dictionary rebutted presumption of prejudice].) Instead, the defense went through the entire guilt phase thinking that the jury was unaware of defendant's prior record when in fact one juror had such knowledge. We cannot say at this point that Juror Beck's improper knowledge had no impact. Although we know he was not the foreperson of the jury, we do not know, and may not discover under Evidence Code section 1150, what, if any, influence the improper information had on Juror Beck or what influence he in turn had on the other jurors. (See People v. Pierce (1979) 24 Cal.3d 199, 209 [155 Cal. Rptr. 657, 595 P.2d 91].)
Under the circumstances, we are unable to conclude that the presumption of prejudice has been rebutted. Our conclusion might have been *1112 different had the misconduct been revealed in time for the court to have taken corrective steps to cure it through admonition or by other prophylactic measures. It might also have been different if the information improperly obtained by Juror Beck had been less prejudicial. Here, however, the trial court had already determined that the very information obtained by Juror Beck was inadmissible at trial under Evidence Code section 352 because its probative value was outweighed by its prejudicial impact. Although we recognize that a court's in limine determination of prejudice is not the same as the determination that we must make on appeal, we find nothing on this record to dispel that assessment of prejudice. The entire case was tried on the premise that defendant's prior record was inadmissible. There was no voir dire about it, no limiting instructions were given, and the parties went to great effort to excise such references from defendant's extrajudicial statements. The court had no chance to take any curative measures because of Juror Beck's concealment of the misconduct. In such circumstances, we are unable to say that the juror misconduct did not prejudicially affect the outcome of the trial.
(5) Defendant was entitled to be tried by 12, not 11, impartial and unprejudiced jurors. "Because a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors (People v. Wheeler (1978) 22 Cal.3d 258, 265-266 [148 Cal. Rptr. 890, 583 P.2d 748]), it is settled that a conviction cannot stand if even a single juror has been improperly influenced." (People v. Pierce, supra, 24 Cal.3d at p. 208; see also In re Stankewitz (1985) 40 Cal.3d 391, 403 [220 Cal. Rptr. 382, 708 P.2d 1260].) (4b) Accordingly, we hold that the judgment must be reversed for jury misconduct.
B. Alleged Miranda Error.
Because the issue will arise on retrial we address defendant's claim that the court erred in denying his motion to suppress statements he made to the police on March 21 and 22, 1983, and evidence derived therefrom. Defendant brought a common law motion to suppress alleging violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] for failure to give warnings before the March 21 interview and a section 1538.5 motion to suppress the March 21 and March 22 statements, along with those of Robert Cruz, as products of an illegal arrest.
At the hearing on the motion Lieutenant Hash testified that during the course of his investigation on March 21, after the bodies were discovered, he was informed that defendant may have been a boyfriend of one of the victims and also that he was an ex-convict. Hash learned that defendant was *1113 on parole, and Detective Dean checked with the parole office in an attempt to locate defendant. Defendant's parole officer called Detective Dean to tell him defendant was in his office at that time for questioning. Dean said he wanted to talk to defendant and asked if he left directly, would it be possible "to have Mr. Holloway there when [he] arrived?" Dean testified that he did not tell the parole officer to hold, detain, or arrest defendant.
When Dean and Hash arrived at the parole office about 6:34 p.m., they found defendant seated and handcuffed. Lieutenant Hash was surprised to see the handcuffs and asked the parole officer to remove them. Hash explained that he would like to talk to defendant downtown, and defendant indicated that he understood and that he would voluntarily come to the sheriff's station. The officers offered defendant the option of driving himself there, but when defendant said he had come with a friend they told defendant they would give him a ride home afterward if his friend did not want to accompany him. Lieutenant Hash testified that defendant would have been free to leave if he had so desired.
Before taking defendant to the station, the officers patted him down for weapons. They put him in the backseat of the unmarked car, unhandcuffed. They arrived at the sheriff's station about 7 p.m. and interviewed defendant for about two hours. Defendant was advised that he was not a suspect at that time. Lieutenant Hash testified that they did not think they had probable cause to arrest defendant, but that defendant was a suspect in the same sense that many people were at that point. During this interview defendant gave his alibi involving Robert Cruz. At no time during the interview was defendant advised of his Miranda rights. Unbeknownst to defendant the interview was tape-recorded and broadcast over a "squawk box." Defendant agreed to take a polygraph examination and provide a set of fingerprints. Defendant was given Miranda warnings before taking the polygraph examination. Defendant's alibi was corroborated, his polygraph examination indicated no deception, and defendant was driven home about 1 a.m., March 22.
Defendant testified that when he agreed to go downtown with the officers, he had not felt that he had a choice. When he was at the station he had not felt that he was free to leave the interview room and go home, and this was not due to the fact that he had no ride home.
Later that day, March 22, Lieutenant Hash went to defendant's home to speak to him about the false alibi he had asked Cruz to supply. They brought defendant's parole officer with them so they could conduct a parole search. Defendant said he had been trying to reach them and agreed to go with them to the sheriff's station. At the station defendant was advised of *1114 his Miranda rights, which he waived. After being interviewed for five to six hours, defendant indicated that he wanted a lawyer. At that point he was advised of his Miranda rights again, he waived them again, and continued to talk. Lieutenant Hash testified that only during this second interview did he feel that he had probable cause to arrest defendant. Hash did not think the false alibi alone provided probable cause, but he did think there was probable cause after defendant's fingerprints were matched with those in the townhouse.
The trial court suppressed everything in the March 22 statement after defendant's initial indication that he desired an attorney. It ultimately denied suppression of the March 21 statement and the beginning portion of the March 22 statement. It did, however, order that the statements be sanitized to delete references to defendant's prior conviction, prison commitment, and parole.
In denying suppression of the March 21 statement and a portion of the March 22 statement, the court ruled that defendant had not been in custody for purposes of Fourth Amendment or Fifth Amendment protection. The court reasoned that the initial coerciveness arising from the parole officer's act of handcuffing defendant was attenuated by the officers' prompt request for removal of the handcuffs and their noninvolvement in the decision to handcuff defendant. The officers were not overbearing in any way, and though defendant testified that he had not felt he had a choice, he also testified that he had not seen any reason not to go. The court also noted that the questioning had been gentlemanly and not coercive.
Defendant contends that he was in custody for purposes of the Fourth and Fifth Amendments. He relies primarily on People v. Boyer (1989) 48 Cal.3d 247 [256 Cal Rptr. 96, 768 P.2d 610], contending that the facts of Boyer are strikingly similar to those here. We agree that there are similarities, but we find the situation here different in significant respects and affirm the trial court's ruling.
In Boyer, four police officers in plain clothes and unmarked cars went to the defendant's home seeking a voluntary interview. They deemed him a suspect but did not have probable cause to arrest him. Two officers were posted at the rear of the house to detain the defendant if he attempted to flee when the other two officers knocked at the front door. The defendant emerged from the back door after the officers knocked at the front door and spoke with a woman. The officers stopped the defendant, identified themselves and said that they would like to speak with him. The defendant agreed to come to the police station for an interview and was accompanied by officers while he went in the house to change clothes. The defendant was *1115 frisked and told to "have a seat" in the back of the car. It took an hour to drive to the station. At the station, the defendant was advised of his Miranda rights before commencement of the interview. The questioning was aggressive and accusatory, and the officers evaded the defendant's questions regarding whether he was under arrest. We held that the circumstances amounted to an illegal arrest, noting the initial manner of accosting the defendant, the giving of Miranda warnings, and the accusatory questioning. (48 Cal.3d at pp. 267-268.)
(6) The situation in the present case, by contrast, was considerably more benign and much less coercive. Leaving aside the initial handcuffing of defendant, for which the officers may not reasonably be held responsible, the circumstances of the officers' request for an interview did not carry the indicia of coercion that were present in Boyer, supra, 48 Cal.3d 247. Second, attention had not focused on defendant as a suspect; he was merely one of many persons being questioned. Third, no Miranda warnings were given since defendant was not considered a suspect. Fourth, the questioning was not aggressive or accusatory. These factors, in our view, serve to distinguish the situation from that in Boyer and convince us that the trial court was correct in concluding that defendant was not in custody for purposes of Fourth or Fifth Amendment protections at the time the challenged statements were made.
We believe the facts here are closer to those in California v. Beheler (1983) 463 U.S. 1121 [77 L.Ed.2d 1275, 103 S.Ct. 3517] and Oregon v. Mathiason (1977) 429 U.S. 492 [50 L.Ed.2d 714, 97 S.Ct. 711] than they are to Boyer. In both Beheler and Mathiason, the defendants agreed to come to the police station for an interview. Though they were suspects, they were told that they were not under arrest but that any statement they made would be evaluated by the district attorney. Both interviews lasted about 30 minutes, and the defendants then left. The United States Supreme Court held that neither defendant was "in custody" within the meaning of Miranda. The court noted that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it.... But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him `in custody.'" (Oregon v. Mathiason, supra, 429 U.S. at p. 495 [50 L.Ed.2d at p. 719].)
(7) In addition to the substantive challenge, defendant also challenges the trial court's ruling on procedural grounds. He contends the record is *1116 inadequate because there were approximately five hours of argument on the merits in chambers that were not reported by the court reporter. There is, however, a stipulated settled statement as to the contents of the in-chambers discussion, which indicates it concerned legal arguments. Section 1181, subdivision 9 authorizes a reviewing court to order a new trial "because of the loss or destruction, in whole or in substantial part" of the reporter's notes. "The test is whether in light of all the circumstances it appears that the lost portion is `substantial' in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal." (People v. Morales (1979) 88 Cal. App.3d 259, 267 [151 Cal. Rptr. 610].) A settled statement may provide an adequate substitute. (People v. Huff (1978) 83 Cal. App.3d 549, 556 [147 Cal. Rptr. 316].) We find the settled statement adequate here and accordingly reject defendant's procedural challenge.
(8) Defendant also contends that the unreported argument in chambers violated his right to be present at all stages of the proceedings pursuant to sections 977 and 1043. We disagree. Sections 977 and 1043 have been interpreted as not requiring the accused's personal presence either in chambers or bench discussions that occur outside of the jury's presence on questions of law or other matters in which the defendant's presence does not bear a "reasonably substantial relation to the fullness of his opportunity to defend against the charge." (People v. Bloyd (1987) 43 Cal.3d 333, 360 [233 Cal. Rptr. 368, 729 P.2d 802], internal quotation marks omitted.) Moreover, the burden is on the defendant to demonstrate that his absence prejudiced his case or denied him a fair trial. (People v. Garrison (1989) 47 Cal.3d 746, 783 [254 Cal. Rptr. 257, 765 P.2d 419].)
Defendant has not met his burden of showing prejudice. The settled statement reveals that the only matters discussed were legal arguments about the court's intended ruling, its ramifications, relevant authorities, and the question of which evidence was derivative. Given the nature of the discussion, defendant's presence was not necessary to protect his interests.
Defendant further contends that the court's ruling was based on improper considerations regarding the ramifications of suppression of the statements. The authorities he cites, however, do not support defendant's premise that it is improper for the court to consider the effect of its ruling on derivative evidence. The record shows that the court initially indicated that it intended to rule that the March 21 statement and the latter part of the March 22 statement were inadmissible. The court described its rambling ruling as "something in the nature of an announcement of intended decision." In the course of explaining its intended ruling, the court indicated that it was "bending over backwards to keep out pre-Mirandized statements *1117 in order to fully protect the Defendant's rights." The prosecutor asked the court to look at California v. Beheler, supra, 463 U.S. 1121, before the court made a firm ruling. The court did so and then began a series of discussions with counsel in chambers regarding the derivative evidence that would be suppressed if the March 21 statement were suppressed. The prosecutor urged the court, in view of the ramifications of suppression of the March 21 statement, not to "bend over backwards" for defendant. After more on-the-record discussion, the court ultimately indicated that it had reconsidered its tentative position and had decided that the March 21 statement was admissible. No impropriety appears in the court's decisionmaking.
CONCLUSION
The judgment is reversed in its entirety.
Lucas, C.J., Broussard, J., Eagleson, J., Kennard, J., and Arabian, J., concurred.
MOSK, J., Concurring
I concur in the judgment. I join the majority in concluding that prejudicial juror misconduct occurred at the guilt phase of defendant's trial.
Thereafter, I part company with them: there is no need to proceed further. On retrial, I am sure, the prosecution and defense will fully relitigate the claimed Miranda violations (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]). This is now inevitable since a majority held in People v. Mattson, ante, 826, at pages 848-869 [268 Cal. Rptr. 802, 789 P.2d 983], that a previous ruling by this court on the admissibility of evidence is not controlling on the trial court in a subsequent retrial. Therefore, whatever "guidance" is contained in the majority's discussion is likely to do little more than help the parties "prepare" their witnesses.
NOTES
[1] Unless otherwise noted, all statutory references hereafter are to the Penal Code.
[2] During voir dire, Juror Beck had acknowledged having read or heard something about the crimes at the time they occurred, but said that he did not remember any details. As a result of this disclosure, the court explained: "If one juror were secretly operating on input that may be true or false that came from some hearsay that he got a year and a half ago, this wouldn't be quite fair to the system. Do you understand?" Beck responded, "Yes." During argument on the motion for a new trial, counsel and the court determined that Juror Beck's knowledge of defendant's parole history came from the January 23 article and not from any earlier media coverage.
| {
"pile_set_name": "FreeLaw"
} |
669 F.2d 46
UNITED STATES of America, Plaintiff-Appellee,v.David T. LACE, Roger R. Ducharme, Gary D. Butts, PatriciaEckman, and Glenn Pollack, Defendants-Appellants.
Nos. 1560, 1561, 1563, 1562, 1542, Dockets 81-1098, 1099,1102, 1100, 1103.
United States Court of Appeals,Second Circuit.
Argued July 15, 1981.Decided Jan. 5, 1982.
Clifford J. Steele, Atlanta, Ga., for appellant Lace.
Paul J. Cambria, Jr., Buffalo, N. Y. (Lipsitz, Green, Fahringer, Roll, Schuller & James, Barbara Davies Eberl, Buffalo, N. Y., on the brief), for appellant Ducharme.
Robert G. Fierer, Atlanta, Ga., for appellant Butts.
Lewis K. Sussman, Burlington, Vt. (Agel, Carroll & Sussman, Burlington, Vt.) for appellant Pollack.
Ellen Mercer Fallon, Middlebury, Vt. (Langrock, Sperry, Parker & Stahl, Middlebury, Vt.), for appellant Eckman.
Peter W. Hall, Asst. U. S. Atty., Rutland, Vt. (Jerome F. O'Neill, U. S. Atty., D. Vermont, Jerome J. Niedermeier, Rutland, Vt., of counsel), for appellee.
Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and DUMBAULD, District Judge*.
VAN GRAAFEILAND, Circuit Judge:
1
On this appeal, we are confronted once again with a case in which every issue has been tried except that of guilt. On December 17, 1979, appellants were indicted for narcotics violations in the United States District Court for the District of Vermont. During the ensuing ten months, appellants presented Chief Judge Holden of the District Court of Vermont with more than eighty pre-trial motions. These were followed by a fourteen day hearing on appellants' combined motions to suppress. When these motions were denied in substantial part, see United States v. Lace, 502 F.Supp. 1021 (D.Vt.1980), each defendant pleaded guilty to one count of the indictment, reserving, pursuant to stipulation, his or her right to appeal the district court's suppression rulings. Appellants have now filed over 200 pages of briefs in our Court in which the word "innocent" is conspicuous only by its absence. Appellants' sole arguments for reversal are that the Government, in a variety of ways, violated their constitutional rights.1 Finding no merit in these arguments, we affirm the judgments of conviction. Although we can add but little to Chief Judge Holden's thorough and scholarly opinion, some discussion may be appropriate in several areas where appellants strongly contend that error has occurred.
2
On May 15, 1979, Judge Charles Bristaw of the Vermont District Court issued a warrant authorizing a search for drugs in a house, a garage and a barn on Beaver Brook Road in the Town of Sharon, Vermont. The search authorized by this warrant uncovered, among other incriminating evidence, approximately 457 pounds of hashish and 100 pounds of marijuana. Because this evidence is the bedrock upon which the Government rests its case, appellants' attack has been centered mainly on the legality of the search.
3
The affidavits upon which the warrant was based were executed by two members of the Vermont State Police, Corporal Vallie and Trooper Holton. Corporal Vallie, a member of Vermont's Special Investigation Unit, with specialized training and education in the narcotics field, swore that the Special Investigation Unit had received information concerning a major drug distribution organization. This information led them to appellant Lace, the proprietor of a restaurant in Jamica, Vermont, known as the Bailey-Rawston House. There, the troopers became acquainted with both Lace and appellant Ducharme.
4
On one of Vallie's visits to the Bailey-Rawston House, he was accompanied by a confidential informant who introduced him to David Southam. The informant told Vallie that Southam was Lace's right-hand man, and the informant believed Lace and Southam to be the suppliers of cocaine to a previously convicted buyer named Steele. On April 23, 1978, Lace, injured in an automobile accident, was found to have $6,000 in cash on his person, which he stated was the day's proceeds from his restaurant. At that time, however, the restaurant was closed for the season. Hospital personnel also heard Lace telephone a friend and instruct him to look under the car seat for additional money.
5
In March, 1979, Vallie received additional information from another unidentified informant. Vallie stated that the informant's information was reliable because it was self-incriminating and much of it had been substantiated by independent investigation. It was this informant's disclosures that led the police to appellants' drug "warehouse" on Beaver Brook Road. The informant told Vallie that he had been doing business with Lace and Ducharme since 1975, and that they appeared to have an equal interest in the drug business. The informant correctly described and located a house owned by Ducharme in Quechee, Vermont.
6
The informant stated that Lace and Ducharme had handled over 30,000 pounds of marijuana during 1975-76, and that during the ensuing four years they used various "stash houses" to warehouse the drugs. He described the location of the stash house then being used and stated that within the preceding three months he had purchased 500 pounds of marijuana at that location. The stash house thus described was the Beaver Brook Road property covered by the subsequently issued search warrant. The informant said that the stash house was run by Ducharme's cousin whose first name was "Gary" and who drove a dark color Ford pick-up truck with a cap. The informant stated that the narcotics group used several pick-up trucks with caps to deliver marijuana, which was normally packaged in fifty pound bales, and that each truck would carry about 1,000 pounds; that during 1978, the group purchased, warehoused, and distributed about 30,000 pounds of marijuana. The informant was told by Ducharme on February 29, 1979, that the group was trafficking heavily in cocaine on a year-round basis and that marijuana shipments for the 1979 season would begin in April.
7
The informant told Vallie that the Ducharme-Lace organization had "personally sold him multiple pounds of marijuana" since 1975; that the group was operating a multiple pound cocaine distribution scheme on a year-round basis, while the marijuana operation went from April through the summer. He provided Vallie with the telephone numbers and location of the 1979 warehouse on Beaver Brook Road.
8
This information, standing alone, provided sufficient probable cause to justify a court-authorized search of the Beaver Brook Road buildings. Mapp v. Warden, New York State Correctional Institution for Women, 531 F.2d 1167, 1171-72 (2d Cir. 1976). "Although the informant did not have a previous track record of reliability, this is not the only means whereby an informant's trustworthiness can be established." Id. at 1171. The fact that the informant, himself, was a confessed participant in the criminal activities taking place on Beaver Brook Road was, by itself, sufficient to establish the trustworthiness of his disclosures. United States v. Dunloy, 584 F.2d 6, 10 (2d Cir. 1978); United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977); United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975); United States v. Miley, 513 F.2d 1191, 1204 (2d Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975).
9
However, the Vermont police did not rest on this evidence alone; they gave Judge Bristaw additional facts to corroborate the informant's story. Vallie's affidavit states that during several random surveillances he and Trooper Holton saw a dark blue pick-up truck with a white cap at the Beaver Brook Road premises. The truck was owned by appellant Butts, whose first name is "Gary". On several occasions, vehicles owned by Lace, Ducharme and Southam were also seen at that address. Appellant Butts' truck was also seen at Ducharme's residence in Quechee, as was that of a known drug peddler. This combination of corroborating evidence and the informant's admitted participation in appellants' criminal activities was sufficient to satisfy a prudent judge such as Judge Bristaw that the informant's story was credible and that there was probable cause for a search warrant to be issued. Mapp v. Warden, supra, 531 F.2d at 1171; United States v. Sultan, 463 F.2d 1066, 1068-69 (2d Cir. 1972). This being so, appellants' argument that the affidavits submitted to Judge Bristaw referred to other evidence allegedly obtained in violation of appellants' constitutional rights is of little consequence.
10
The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause
11
United States v. Giordano, 416 U.S. 505, 555, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J. concurring and dissenting).
12
Justice Powell has summarized in the above quote what has been the established law of this Circuit for many years. See, e.g., United States v. Vasquez, 634 F.2d 41, 44-45 (2d Cir. 1980); United States v. Jackstadt, 617 F.2d 12-14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980); United States v. Marchand, 564 F.2d 983, 991-94 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2d Cir.), cert. denied, 317 U.S. 674, 63 S.Ct. 79, 87 L.Ed. 541 (1942). Other Circuits are in accord. See United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980).
13
Examining the evidence of surveillance referred to in the troopers' affidavits and explored at length during the suppression hearings we agree with the holdings of Chief Judge Holden concerning its admissibility on the trial. Judge Holden found that the Beaver Brook Road property consisted of the house, barn, and garage, and approximately 70 acres of land. It was owned jointly by two couples named Heine and Berkman. They rented the house and garage to Butts for his exclusive use for one year beginning September, 1978, with the understanding, however, that Butts would share the use of the remaining property with the owners. The owners could use the remainder of the property for recreation as they desired, and permission for such use had also been given to the neighbors. The property was not posted and was used freely by hunters. "Outsiders could enter the open property at will." 502 F.Supp. at 1038.
14
Although the yard, the garage, the barn, and much of the house were visible from the public highway, a good deal of the police surveillance which occurred after April 24, 1979, took place on the property itself. On occasion, binoculars and a spotting scope were used. Other more sophisticated optical instruments were also tried but with little success.
15
Appellants contend that all observations made during such surveillance violated their constitutional right of privacy and must be suppressed. The district court agreed that, while appellants were inside the house, they had a legitimate expectation of privacy from telescopic observation. See United States v. Taborda, 635 F.2d 131, 136-38 (2d Cir. 1980). However, because the area between the house, the garage, and the barn was clearly visible from the road and could easily be observed by outsiders who "could enter the open property at will", the district court held that none of the appellants had a legitimate expectation of privacy while in that open area. We agree.
16
In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), Justice Holmes enunciated for the Court what has since become to be known as the "open fields" doctrine. There, two revenue officers were approaching a farmhouse in which the defendant lived, when they saw another person drive near the house. The officers concealed themselves from 50 to 100 yards away and saw the defendant come out of the house and hand the arrival a bottle which contained moonshine whiskey. The Court held that, even if the revenue officers were trespassers, there was no illegal search or seizure, stating that "the special prohibition accorded by the Fourth Amendment ... is not extended to the open fields." Id. at 59, 44 S.Ct. at 446.
17
Although the emphasis on Fourth Amendment protections has shifted from places to people, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the "open fields" doctrine continues to receive judicial recognition. This is because people generally do not have a legitimate expectation of privacy in open and accessible areas that the public is prepared to recognize as reasonable. United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1976). Thus, in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the Court held that a state health inspector's warrantless entry onto defendant's outdoor premises to make an opacity test of smoke coming from the defendant's chimneys was not an unreasonable search. Justice Douglas, speaking for the Court said that the inspector was "well within the 'open fields' exception to the Fourth Amendment approved in Hester." Id. at 865, 94 S.Ct. at 2115.
18
In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the defendant, when first observed by the police, was standing in the doorway of a house. The police arrested her in the vestibule, to which she had retreated. The Court, distinguishing between private property under the common law and public places under the Fourth Amendment, held, citing Hester, that, when first seen, the defendant was "as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house." Id. at 42, 96 S.Ct. at 2409.
19
Chief Judge Holden's factual findings that outsiders could enter the Heine and Berkman property at will and that the area between the house and barn was readily observable from the highway were not clearly erroneous and must therefore be accepted by this Court.2 What was observable by the general public was observable without a warrant by the police as well. Marshall v. Barlows, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978); see United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973), citing United States v. Doe, 457 F.2d 895, 898-99 (2d Cir. 1972), cert. denied, 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608 (1973); United States v. Miller, 589 F.2d 1117, 1133-34 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); United States v. Knight, 451 F.2d 275, 278 (5th Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972).
20
Among the lower court decisions adopting the Hester-Katz rationale, the following are illustrative:
21
United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981).
22
View from roadway of illegal aliens working in delivery area of defendant's fenced scrap metal yard.
23
Patterson v. National Transportation Safety Board, 638 F.2d 144 (10th Cir. 1980).
24
Examination of exterior of plane parked at private airport.
25
United States v. Magana, 512 F.2d 1169 (9th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975).
26
View of defendant in front of garage from police car driven into private residential driveway.
27
United States v. Hensel, 509 F.Supp. 1376 (D.Me.1981).
28
Surveillance of outdoor premises with a telescope, a spotting scope, binoculars, and a nightscope, plus aerial surveillance and physical entry onto driveway.
29
See also United States v. Arboleda, 633 F.2d 985, 991-92 (2d Cir. 1980); United States v. Mullinex, 508 F.Supp. 512 (E.D.Ky.1980); United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980).
30
Although some of the observations of the outdoor area were made with binoculars or other visual aids, this did not make such observations unlawful. United States v. Allen, 633 F.2d 1282, 1290-91 (9th Cir. 1980); United States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974). In United States v. Taborda, supra, 635 F.2d 131, we held that the Fourth Amendment proscribed the use of a telescope by a policeman only so far as it enhanced his view into the interior of a home. Id. at 139. Its use is not proscribed in places where the defendant otherwise has exposed himself to public view. United States v. Allen, supra, 633 F.2d at 1289; United States v. Hensel, supra, 509 F.Supp. at 1384 n.9; United States v. Bifield, 498 F.Supp. 497, 506-08 (D.Conn.1980).
31
Judge Newman's reference to nude sunbathers is a felicitous one because it brings the issue of reasonable expectations of privacy into sharp focus. If one were asked whether a person, strolling stark naked around an open yard such as the one on Beaver Brook Road, reasonably could expect to do so in privacy, we suggest that the answer would have to be "No". If this is so, there is no reason why the judiciary should clothe similarly located drug traffickers in cloaks of invisibility.
32
The only other issue meriting comment involves the search of appellant Lace's automobile. The search warrant for the Beaver Brook Road premises was executed during the evening of May 16, 1980. While the search was in process, Lace arrived in his car with Ducharme as a passenger. Both were promptly arrested. Lace was given his Miranda warnings but made no request for an attorney at that time.
33
Sometime after midnight, both Lace and his automobile were taken to the Bethel Police Barracks. Around 4:00 a. m., the police asked Lace if he would permit them to search his car. The district court's findings relative to this conversation were as follows:
34
Corporal LeClair referred to the lateness of the hour and pointed out that Lace's consent to a search would save a lot of time that would be required to obtain a search warrant. Lace replied he would be willing to permit a search on one condition-to the effect that whatever was found in the search of the vehicle, he (Lace) didn't know anything about.
35
Lace then executed a written consent which is set forth at full in the margin.3 In the search that followed, the police found and seized $185,000.
36
Lace's contention that his consent was not voluntarily given was rejected by the district court, a factual finding which should not be overturned unless clearly erroneous. United States v. Price, 599 F.2d 494, 503-04 (2d Cir. 1979). The district court found Lace to be a "mature", "well informed", "enlightened" person with four years of college education, who was not under duress during his detention and who "conveyed the impression of being self-possessed and self-confident despite his predicament." The district court also found no persuasive evidence of police overbearing, deprivation of physical needs, or deception. Having seen and heard the witnesses, the district court was in a far better position to make these findings than is this Court.
37
The district court found that Lace's consent was not in response to police interrogation. It was instead a "practical accommodation to a consequence that the witness understood would be inevitable by way of a search warrant", and was accompanied by an imposed condition that the property uncovered would not be considered to be his. In the absence of any deception, coercion, or other overreaching on the part of the police. Lace's belief in the inevitability of a search warrant, a justifiable belief under the circumstances, did not preclude a finding that his consent was voluntary. United States v. Price, 599 F.2d 494, 503 (2d Cir. 1979); United States v. Tortorello, 533 F.2d 809, 814 (2d Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); United States v. Miley, 513 F.2d 1191, 1199 n.4 (2d Cir.) cert. denied, 423 U.S. 842, 96 S.Ct. 75, 46 L.Ed.2d 62 (1975); United States v. Faruolo, 506 F.2d 490, 493-94 (2d Cir. 1974); United States v. Curiale, 414 F.2d 744, 746-47 (2d Cir.), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969); United States v. Jordan, 399 F.2d 610, 614 (2d Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968); United States v. Flores, 462 F.Supp. 702, 708-10 (E.D.N.Y.1978), aff'd sub nom United States v. Vasquez, 612 F.2d 1338, 1346-47 (2d Cir. 1979), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); United States v. Manarite, 314 F.Supp. 607, 613 (S.D.N.Y.1970), aff'd, 448 F.2d 583 (2d Cir.), cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d 264 (1971).4
38
The consent to a search by one who realizes that the jig is up and a search warrant will issue in any event is similar to a plea of guilty by one who believes that he will be convicted if he stands trial. Robbins v. MacKenzie, supra, 364 F.2d at 50. His act does not become involuntary simply because the consequences would have been the same if he refused. See United States v. Gorman, 355 F.2d 151, 159 (2d Cir. 1965), cert. denied 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966). Like the defendant who pleads guilty, Lace was attempting to make the best deal he could under the circumstances.
39
A judge who accepts a guilty plea makes careful inquiry to ascertain that the plea is voluntary and not the result of Governmental overreaching. That is exactly what the district court did when considering Lace's consent to the search of his car. There was no clear error in the district court's factual finding that consent was voluntarily given.
40
We have reviewed all of appellants' remaining arguments.5 Most of them were considered and rejected by the district court in its well reasoned opinion. None of them merits discussion here.
41
The suppression orders and the judgments of conviction are affirmed.
42
NEWMAN, Circuit Judge, concurring in the result:
43
The facts of this case give new meaning to the term "invasion" of privacy. Dressed in military camouflage uniforms, 24 to 30 officers of the Vermont State Police moved onto a 70-acre tract of private property in Sharon, Vermont, leased by one of the appellants as his residence, and, working in eight-hour shifts, maintained 24-hour surveillance of the appellants for three weeks. Observations were made of the appellants while inside and outside a house on the property. The observations were so continuous as to include viewings of some of the appellants using a toilet. Among the devices used to enhance the officers' observations were field binoculars with 12-power magnification, a Bushness spotting scope with 45-power magnification, and a Questar lens with 130-power magnification. Some use was made of a Javelin nightscope, capable of magnifying existing light 50,000 times. The officers used infrared night goggles to facilitate their movement in the dark and concealed their presence not only by using the natural cover of trees and shrubs but also by cutting branches and brush to form a blind.
44
Without doubt there was an invasion. The Court suggests, however, that what was invaded by the exterior observations was not privacy,1 at least not the reasonable expectation of privacy protected by the Fourth Amendment. Fortunately that suggestion is dictum, since the majority holds that, wholly apart from the results of the para-military surveillance at Sharon, the independent information in an affidavit presented to the state judge who issued the search warrant adequately established probable cause for the search of the premises. I agree with that holding and therefore concur in the result, but I write separately to register respectful disagreement with the majority's dictum, approving the exterior surveillance at Sharon, in the hope that this dictum will not in future cases ripen into a holding.
45
The majority's endorsement of the Sharon surveillance purports to draw support from two doctrines, each illustrated by a number of cases cited in Judge Van Graafeiland's opinion. The first is the "open fields" doctrine, which traces its Fourth Amendment lineage to Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). The second is essentially a doctrine of waiver of Fourth Amendment protection as to items or activities willingly exposed to public view. In my judgment neither doctrine justifies the surveillance carried out in this case, nor do any of the cited cases remotely countenance what occurred here.
46
1. Both before and after Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), shifted the appropriate inquiry in Fourth Amendment cases from places to people, or, more precisely, to a person's reasonable or "legitimate" expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143 n.12, 99 S.Ct. 421, 430 n.12, 58 L.Ed.2d 387 (1978), the "open fields" doctrine had been invoked to uphold police activity in a context totally different from the circumstances of this case. Police have been permitted to intrude upon open areas of privately owned property on a brief, one-time basis to make specific observations of items or events that were either observable from beyond the property2 or about which the officers had prior information.3 None of the cases cited by Judge Van Graafeiland,4 nor any that I have located,5 invokes the "open fields" doctrine to validate an open-ended, long-term surveillance conducted on private residential property in the hope of seeing evidence of crime.
47
The distinction between all the prior cases and this one goes to the heart of the Fourth Amendment's protection. The Amendment protects against "unreasonable" searches. Katz teaches that warrantless searches are unreasonable if they intrude upon a person's reasonable expectation of privacy. When a law enforcement officer sees smoke pouring from a factory chimney and steps onto an open area of the owner's property to make a more precise observation, Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), or when an officer receives information that a cache of dynamite is hidden in a junked car in an open field and goes to look, United States v. Ramapuram, 632 F.2d 1149 (4th Cir. 1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), his action is not "unreasonable"; it can fairly be said that he does not encroach upon an expectation of privacy that "society is prepared to recognize as 'reasonable.' " Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). But when police officers execute military maneuvers on residential property for three weeks of round-the-clock surveillance, can that be called "reasonable"? Can it be doubted that society is prepared to recognize as "reasonable" the expectation of the tenant and his guests that the property will not be invaded for such purposes? I should think that even those in our society not overly fond of the Fourth Amendment and its implementing exclusionary rule would agree that every person may enjoy the privacy of his back yard secure in the belief that police officers are not bivouacked on his property just beyond the nearest tree line observing him with high-powered telescopes day and night for three weeks.
48
The "open fields" of private property are not open for any surveillance police officers choose to conduct, unrestricted as to duration, constancy of observation, location observed, or means of enhanced viewing. The narrow holding of Hester supports no such rule. Officers there approached the residence of an individual about whom they had prior information. When they saw another man drive up to the house, they concealed themselves and maintained observation only long enough to see the immediate episode at hand, the transfer of a quart of moonshine whiskey. Dealing with the contention that the officers' subsequent examination of a bottle and jug dropped on the ground violated the Fourth Amendment, Justice Holmes said that the "special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields. The distinction between the latter and the house is as old as the common law." 265 U.S. at 59, 44 S.Ct. at 446. If that observation was intended to mean that no Fourth Amendment protection extends beyond the house, its validity has not survived either the holding or the rationale of Katz, which extended Fourth Amendment protection to a person using a public telephone because the person was entitled to enjoy a legitimate expectation of privacy. See United States v. Mullinex, 508 F.Supp. 512, 514 (E.D.Ky.1980) ("The final analysis (after considering the impact of Katz upon Hester ) is that 'open fields' are not per se outside the protective boundary of the Fourth Amendment, but a defendant's expectation of privacy in an open field must be an expectation that society would consider as reasonable.") (emphasis in original).
49
Courts have not had to consider whether police officers may occupy a property owner's open fields for prolonged and continuous surveillance of his back yard because, until today, it does not appear that police officers have asserted such authority. But many courts that have upheld surveillance conducted on, over, or from open fields have been careful to note the limited extent of the surveillance and to caution against unrestricted surveillance. United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980) (aerial surveillance of private property upheld because only isolated instances occurred); State v. Stachler, 58 Hawaii 412, 570 P.2d 1323 (1977) (same). See United States v. Jackson, 588 F.2d 1046, 1053 n.12 (5th Cir.) ("(T)his court may, under different facts, find a Fourth Amendment violation even though the government agents make their observations from an 'open field' "); cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979); United States v. Brown, 487 F.2d 208, 210 (4th Cir. 1973) (observing, even as to one-time appearance on property, "It is a bit disquieting that we must countenance federal snooping around farmers' barns as a legitimate investigative technique"), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974); Fullbright v. United States, 392 F.2d 432, 435 (10th Cir.) ("(W)e do not mean to say that surveillance from outside a curtilage under no circumstances could constitute an illegal search...."), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968). As Judge Hillman observed in United States v. DeBacker, supra, 493 F.Supp. at 1081, "The ultimate question, therefore, is not whether the surveillance in this case occurred in 'open fields'. Instead, the issue is whether 'if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.' " (quoting Amersterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 403 (1974) (emphasis added)).
50
Moreover, even apart from the particular form of the surveillance, "absent exigent circumstances a warrantless search of one's home or its curtilage, when effected through trespass, violates the fourth amendment." United States v. Van Dyke, 643 F.2d 992, 993 (4th Cir. 1981). As Judge Friendly has pointed out, "Terming a particular area curtilage expresses a conclusion; it does not advance Fourth Amendment analysis. The relevant question is ... whether the defendant has a legitimate expectation of privacy in the area." United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1362, 67 L.Ed.2d 343 (1981). But obviously the nature of the area observed, its proximity to one's home, the extent of surrounding trees and shrubs, and the general setting of the area within the larger context of the total property are all relevant in assessing the reasonableness of an expectation of privacy. These defendants, while in the immediate area of the home one of them had rented on a 70-acre farm in rural Vermont, had a reasonable expectation of privacy that they would not be observed by highly intrusive surveillance conducted upon the open fields of the leased property.
51
2. I have no quarrel with the majority's general statement of its second proposition, "What was observable by the general public was observable without a warrant by the police as well." That statement, paraphrasing a sentence in Marshall v. Barlow's, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978), derives from the following sentence in Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Before endeavoring to apply that statement, it is well to identify its origins. The supporting citations in Katz are Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966), and United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927). Lewis concerns observations made by an undercover agent invited into the defendant's home to purchase narcotics. The case involves misplaced confidence and does not illuminate the Katz-Marshall principle of public exposure, since nothing was viewed or viewable by the public. Lee concerns a view of items on the deck of a motor boat on the high seas by agents on a Coast Guard vessel. The case is more pertinent to a principle of public exposure because the items were located where any member of the public, at least any sea-going member, could see them, and the observation made by law enforcement officers was precisely the one that the defendant could have reasonably expected.
52
Katz itself supplies some content to the principle of "public exposure" by holding that even in an area accessible to the public, what a person seeks to preserve as private may be constitutionally protected. 389 U.S. at 351-52, 88 S.Ct. at 511-12. Marshall v. Barlow's, Inc., supra, adds an important qualification by making clear that exposure to some limited segment of the public, there employees, is not the sort of public exposure that removes Fourth Amendment protection against government observations. See also Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968) (defendant who shared an office entitled to Fourth Amendment protection for its contents, even though he could expect that contents would be observed by those who shared the office and by their business and personal guests).
53
In suggesting, albeit in dictum, that the exterior surveillance at Sharon impaired no Fourth Amendment right of the defendants because the area viewed was exposed to the public, the majority has extended the public exposure doctrine in two significant respects beyond the holdings of other courts. The first extension concerns who could have made the observations; the second concerns the location from which they could have been made.
54
Though the District Court stated that "outsiders" could enter the Sharon property "at will," 502 F.Supp. at 1038, Judge Holden's specific factual findings make clear that he is not referring to the public at large but only to a narrow segment. The owners (two couples) retained the right to use the property for recreational purposes, neighbors had permission to use the pond, and hunters could hunt on the property. Id. at 1026-27. Since it is undisputed that the surveillance occurred out of the hunting season, the "outsiders" whose observations the defendants risked were the owners and neighbors when using the pond. No doubt defendants did bear the risk that an owner or neighbor might observe unlawful activity and report it to the police, just as the defendant bore the risk in Marshall v. Barlow's, Inc., supra, that employees would report OSHA violations to Government inspectors. 436 U.S. at 315, 98 S.Ct. at 1821. But risking observation by a limited category of persons is not the equivalent of public exposure and does not displace a reasonable expectation of privacy against "governmental intrusion." Mancusi v. DeForte, supra, 392 U.S. at 368, 88 S.Ct. at 2123.
55
As to the location from which the back yard at Sharon was observable, it could be seen from a point on what Judge Holden called an "unimproved town road," 502 F.Supp. at 1026. But it is undisputed that the surveillance was not made from this point. The majority cites no case where the risk of being observed from one spot accessible to the public has been considered the sort of public exposure that relinquishes a reasonable expectation of privacy that surreptitious observations will not be made from locations on private property. In fact, all of the cases cited by the majority that uphold police observations on a "public exposure" theory involve sightings made from precisely the location from which the defendant knew or should have known he was observable.
56
Perhaps cases may arise where a person is observable from several locations accessible to the public and may thereby be deemed to have exposed himself to the public so as to lose any reasonable expectation of privacy against government observation, even from some other location.6 But surely that situation is not reached by people in the back yard of a rural Vermont farm property, simply because observation was physically possible from one point on a rarely used road. A person in a back yard reading Karl Marx or sunbathing in the nude is entitled to rely on his or her own sense of whether anyone is at the one point on an adjacent road from which observation is possible. They take the risk of not hearing a car or otherwise not realizing that someone is there, but that slight risk does not expose them to three weeks of 24-hour surveillance by camouflaged police officers peering through telescopes from concealed positions on their property.
57
To summarize, the exterior surveillance of the defendants in the area of the house at the Sharon property, though conducted from an "open field" of the property, violated the defendants' reasonable expectation of privacy because of the offensively intrusive manner in which police officers operated on the property, and that reasonable expectation of privacy was not displaced by the possibility that a few identifiable people might have observed the defendants from locations on the property or that anyone might have observed them from one point on a little-used, unimproved road. I regret that the majority, even in dictum, has expressed approval of what occurred in this case. Since the surveillance I regard as unlawful was not essential to the validity of any of the challenged searches and seizures, I concur in the result.7
*
Of the Western District of Pennsylvania, sitting by designation
1
Appellant Pollack also asserts that his sentence was excessive, a contention which we find to be without merit
2
Judge Newman states that when Chief Judge Holden found that "(o)utsiders could enter the open property at will", he was not referring to the public at large but only to a narrow segment. We disagree. Inasmuch as Chief Judge Holden relied upon the quoted finding in reaching a conclusion diametrically opposed to that of our colleague, we believe that Chief Judge Holden meant exactly what he said, not what Judge Newman contends that he meant to say
The surveillance in question took place in April and early May, and the district court's finding would be pointless unless directed to that period. When the court found that "outsiders" could enter at will, it obviously was not referring to summertime swimmers or fall hunters. The district court said:
The land was not posted. Outsiders could enter the open property at will. Therefore, Butts' actions outside the buildings could easily be observed by any person going on the land. (emphasis supplied)
We suggest that, as used by Chief Judge Holden, the phrases "any person" and "outsiders" are synonymous.
3
I, DAVID LACE, having been informed of my constitutional right not to have a search made of my premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search voluntarily authorize M. LeClair and N. Ruggiero, Officers of the Vermont State Police to conduct a complete search of my (car) located at Bethel, Vermont. These officers are authorized by me to take from my (car) any letters, papers, materials or other property which they desire in connection with a pending investigation being made by them. This written permission is being given by me to the above mentioned Officers voluntarily and without threats of promises of any king (sic)
4
Other Circuits are in accord. See, e.g., United States v. Miller, 589 F.2d 1117, 1132 n.13 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974); United States v. Culp, 472 F.2d 459, 461 (8th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973); United States v. Savage, 459 F.2d 60, 61 (5th Cir. 1972); United States v. Myers, 378 F.2d 398, 399 (3d Cir. 1967), cert. denied, 396 U.S. 847, 90 S.Ct. 96, 24 L.Ed.2d 96 (1969); Robbins v. MacKenzie, 364 F.2d 45, 50 (1st Cir.), cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966); Gatterdam v. United States, 5 F.2d 673, 674 (6th Cir. 1925)
5
We agree with Judge Newman's comments urging caution in accepting guilty pleas that are subject to the number and variety of conditions found in the instant case. This Circuit's rule on conditional guilty pleas has not been adopted in all Circuits. See United States v. DePoli, 628 F.2d 779, 781 n.1 (2d Cir. 1980). The reasons for its rejection in other Circuits, as set forth in United States v. Cox, 464 F.2d 937, 944-45 (6th Cir. 1972), are peculiarly applicable where the plea is not conditioned upon the resolution of a single clear-cut legal issue which plays a pivotal role in the case. If a plea is tendered upon condition that more than one issue is reserved for appeal, the district court should satisfy itself that the reserved issues are significant to the outcome of the case
1
The results of the interior observations were suppressed by the District Court, 502 F.Supp. 1021, 1040-41, and the correctness of that ruling is not in issue on this appeal
2
E.g., Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974); United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981); United States v. Freie, 545 F.2d 1217 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1977)
3
E.g., United States v. Ramapuram, 632 F.2d 1149 (4th Cir. 1980), cert. denied 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981); United States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974); Fullbright v. United States, 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968)
4
Of all the cases cited in the majority's opinion, the only one involving any long-term, surreptitious surveillance is United States v. Hensel, 509 F.Supp. 1376 (D.Me.1981). In Hensel the surveillance was conducted from locations off the defendant's property, although some instances of aerial surveillance occurred. The degree of intrusiveness is reflected in the fact that the surveillance could not even identify any of the individuals observed. The one-time physical entry into the driveway resulted in observation only of a license plate number, as to which defendant had no reasonable expectation of privacy. Id. at 1386
5
McDowell v. United States, 383 F.2d 599 (8th Cir. 1967), approved surveillance conducted on the open fields of private property, but the case is readily distinguishable from what happened here. In McDowell initial surveillance of fields suspected of being used for illegal hunting of migratory birds was conducted from locations off the defendant's property. When alerted by unusual activities in the fields, agents entered the fields on three occasions for a closer look. Their observations were confined to open areas, one-quarter to one-half a mile from the nearest farm building
6
Even that circumstance would not necessarily validate an observation made from a location on the defendant's property
7
While I do not share the majority's concern that defendants' briefs omit the word "innocent," since their guilty pleas with a reservation of appellate rights usefully saved considerable time and expense, some comment on the plea procedure is warranted. The practice of pleading guilty with a reservation of right to appeal a pre-trial ruling has been used in the context of a single pre-trial issue that all sides recognized would be dispositive of the entire case. See, e.g., United States v. Faruolo, 506 F.2d 490, 491 n.2 (2d Cir. 1974) (voluntariness of consent to search); United States v. Rothberg, 480 F.2d 534, 535 & n.1 (2d Cir.) (construction of statute defining offense), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); United States v. Mann, 451 F.2d 346, 347 (2d Cir. 1971) (pre-trial delay). The practice was suggested to our Circuit by Judge Friendly in United States v. Doyle, 348 F.2d 715, 719 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965), though previously used elsewhere, e.g., Jaben v. United States, 333 F.2d 535 (8th Cir. 1964), aff'd without consideration of the point, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965). But see United States v. Mizell, 488 F.2d 97 (5th Cir. 1973) (rejecting the practice)
The use of the practice in this case to preserve for appellate review a considerable number of issues is potentially troublesome. Suppose, for example, we had found one of the several challenged seizures unlawful. Under the terms of the defendants' plea agreements, it would certainly be arguable that upon a determination that even one seizure was unlawful, the defendants could withdraw their guilty pleas. Yet if the lawfulness of the seizures had not been adjudicated until after a trial, the unlawfulness of any one seizure might well have been found to be harmless error, in light of the weight of the admissible evidence. Pleading guilty with a reservation of appellate rights should not be a device to circumvent the harmless error rule.
The problem does not arise in this case since we affirm the results of all of the pre-trial rulings. But it is a problem to which the Government and District Judges should be alert in accepting conditional guilty pleas hereafter. When multiple pre-trial rulings concerning evidence are to be challenged, one solution would be for the parties to stipulate, for purposes of the conditional guilty plea, to an agreed statement of the admissible evidence apart from the challenged rulings, with withdrawal of the plea permitted only upon an appellate determination that a pre-trial ruling was not only erroneous but prejudicial in light of the stipulated evidence.
| {
"pile_set_name": "FreeLaw"
} |
117 F.3d 1428
97 CJ C.A.R. 1264
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
John W. PAUL, Petitioner-Appellant,v.Sandra MCFADIN, Warden; Tom Udall, Attorney General, Stateof New Mexico; Donald Dorsey, Warden,Respondents-Appellees.
No. 96-2214.
United States Court of Appeals, Tenth Circuit.
July 21, 1997.
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
1
ORDER AND JUDGMENT*
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
3
Petitioner John W. Paul filed two 28 U.S.C. § 2254 petitions for writs of habeas corpus in the United States District Court for the District of New Mexico. In petition CIV 95-0034, Paul alleged that the defendants violated his due process rights by failing to provide both preliminary and final parole revocation hearings within the time limits prescribed by New Mexico law. In petition CIV 95-0397, Paul alleged that the defendants violated his due process rights by miscalculating his good-time credits and time served. The district court consolidated the petitions. On September 6, 1995, the district court dismissed petition CIV 95-0397 as an abuse of writ. On August 1, 1996, the district court dismissed petition CIV 95-0034, finding that Paul had failed to demonstrate any prejudice resulting from the delays in his parole revocation hearings. Paul filed a timely notice of appeal, and the district court granted a certificate of appealability. We affirm.
I. Petition CIV 95-0034
4
Paul is a New Mexico prisoner, serving time on sentences dating back to the early 1970's. On June 15, 1992, Paul was paroled for at least the third time, and placed under the supervision of Parole Officer Ronald Romero. In March 1993, Paul traveled to Texas to attend a Social Security hearing. He used a travel permit Officer Romero had earlier issued for that purpose. The permit authorized Paul to leave New Mexico on March 25, 1993, and return five days later on March 30, 1993. Shortly after Paul left for Texas, his former roommate, Ted Nance, called Officer Romero and told him that Paul had traveled to the hearing and would return when it was completed. Nance did not know Paul's address in Texas, but told Officer Romero that Paul's attorney in Texas was named Kara Stein. Kara Stein called Officer Romero shortly thereafter and informed Officer Romero that Paul's hearing was scheduled for the end of March. She contacted Officer Romero on subsequent occasions to tell him that Paul's hearing had been twice continued. Officer Romero asked Ms. Stein to tell Paul to write or call him with his current address.
5
Paul wrote Officer Romero in April 1993, providing a Texas address, as well as the name and phone number of his physician. According to Officer Romero, he sent Paul three monthly report forms to the address in Paul's letter, and instructed Paul to complete and return them. Officer Romero never received any response. He again contacted Kara Stein, who informed him that Paul's hearing had been continued yet again. Officer Romero sent three more monthly report forms to Paul's Texas address, but received no response.
6
In August 1993, Kara Stein informed Officer Romero that Paul had prevailed in his Social Security case. Officer Romero wrote Paul once again, asking him to convey his intentions now that his case was complete, but received no reply. In October 1993, Officer Romero resigned, and wrote Paul yet another letter informing him that Steve Rausch was his new supervising parole officer, and asking Paul to contact Rausch. Paul never contacted Officer Romero or Officer Rausch. A warrant was issued for Paul's arrest on January 5, 1994.
7
Paul was arrested in Texas on March 14, 1994. He was extradited to New Mexico on April 15, 1994. His preliminary parole revocation hearing took place on June 10, 1994, 56 days after his return to the Western New Mexico Correctional Facility. His final parole revocation hearing took place on July 26, 1994. At his hearings, Paul claimed that he had never received any letters or report forms from Officer Romero, and that he was unable to leave Texas because he had been attending physical therapy. The Parole Hearing Board revoked Paul's parole, finding that Paul had violated conditions of his parole by failing to report to his parole officer as instructed and by failing to consult with his parole officer before changing his residence. The Parole Hearing Board credited Paul with time served since the date of his arrest in Texas, but denied credit for the two months between the issuance of the warrant and his arrest.
8
On appeal, Paul renews his contention that the defendants violated his due process rights by failing to provide him with timely preliminary and final parole revocation hearings. In support of his argument, Paul cites two New Mexico statutory provisions:
9
In those instances where the state has failed to conduct a preliminary parole revocation hearing on a parolee held for parole violations within sixty days of arrest, the parolee shall be eligible for bail. In all cases the final parole revocation hearing shall be scheduled for hearing within sixty days of the parolee's return to the penitentiary.
10
N.M.Stat.Ann. § 31-11-1.
11
Upon arrest and detention, the board shall cause the prisoner to be promptly brought before it for a parole revocation hearing on the parole violation charged, under rules and regulations the board may adopt.
12
N.M.Stat.Ann. § 31-21-14. Paul also cites New Mexico Correctional Department Policy No. CD-052700: "A preliminary hearing will be conducted within 21 days of his/her detention."1 Paul notes that his preliminary hearing did not occur until nearly three months after his arrest in Texas, and 56 days after his return to Western New Mexico Correctional Facility. His final hearing was conducted 102 days after his return. He contends that these hearings occurred outside the statutory time periods, as well as outside the time periods required by Federal constitutional law.
13
The loss of liberty entailed in parole revocation requires that parolees be accorded due process. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Among other things, due process requires a preliminary revocation hearing "as promptly as convenient after arrest," and a final revocation hearing "within a reasonable time after the parolee is taken into custody." Morrissey, 408 U.S. at 485, 488. However, delay in providing these hearings does not, per se, constitute a violation of due process entitling an accused parole violator to immediate release. McNeal v. United States, 553 F.2d 66, 68 (10th Cir.1977). Instead, "to establish a legal right to habeas relief, the delay, taking into consideration all the circumstances, must also be prejudicial." Id.; see also Harris v. Day, 649 F.2d 755, 761-62 (10th Cir.1981). This is the well-established rule. See Meador v. Knowles, 990 F.2d 503, 506 (9th Cir.1993) (due process violation occurs only when delay is both unreasonable and prejudicial); Villarreal v. United States Parole Comm'n, 985 F.2d 835, 837 (5th Cir.1993) (154-day delay between arrest and final hearing did not violate due process absent a showing of prejudice); Heath v. United States Parole Comm'n, 788 F.2d 85, 89 (2nd Cir.1986) (predicating habeas relief upon showing of prejudice or bad faith); Sutherland v. McCall, 709 F.2d 730, 732 (D.C.Cir.1983) (absent prejudice, proper remedy for delay is not habeas relief, but rather a writ of mandamus compelling compliance with statutory time periods); State v. Chavez, 694 P.2d 927, 930 (N.M.Ct.App.1985) (showing of prejudice required); State v. Sanchez, 612 P.2d 1332, 1335 (N.M.Ct.App.1980) (same).
14
The New Mexico statutes cited by Paul do not obviate the need for a showing of prejudice. While the specific time periods contained in N.M.Stat.Ann. §§ 31-11-1 and 31-21-14 bear upon whether the delay in this case was unreasonable, they do not entitle Paul to habeas relief absent prejudice. Villarreal, 985 F.2d at 837 (even though hearing was not held within the specific ninety-day period required by 18 U.S.C. § 4214(c), habeas relief still requires a showing of prejudice); Sutherland, 709 F.2d at 732 (same).
15
The district court found that Paul failed to demonstrate any prejudice by the nearly three-month delay between his arrest and preliminary hearing and the nearly four and one-half month delay between his arrest and final hearing.2 We agree. Paul alleges that the delays prejudiced him in two ways. First, he asserts that in "making the determination [at the preliminary hearing] whether probable cause existed to support a finding that Paul violated his parole conditions, the hearing officer ... relied on the testimony of Romero, whose recollection of events which occurred more than a year ago was sketchy at best." Appellant's Br. at 14-15.3 Paul, however, does not list a single specific example of sketchy memory, nor does he specifically challenge any of the chronology recounted by Officer Romero's recollection. Instead, he merely speculates that an earlier hearing would have resulted in a clearer "chronology of events." Id. at 16.
16
Second, Paul notes that although he had listed Ted Nance as a witness, Nance did not appear at the preliminary hearing. Paul states: "No explanation appears in the hearing officer's report as to why Mr. Nance did not appear; however, the delay may have been responsible for his absence." Id. at 15. Again, Paul merely speculates that delay caused Nance's non-appearance. Furthermore, Paul does not explain what, if any, testimony Nance would have provided that could have altered the final outcome.
17
In short, the delay in Paul's preliminary and final parole revocation hearings does not entitle him to habeas relief. During the delays, New Mexico statutory law may have entitled Paul to an order compelling a timely hearing or bail. Under the facts of this case, however, "the extreme remedy of release" is not available, Barton v. Malley, 626 F.2d 151, 159 (10th Cir.1980), and we affirm the district court's dismissal of this claim.
II. Petition CIV 95-0397
18
Petition CIV 95-0397, which the district court dismissed as an abuse of the writ, concerns alleged errors in prison record keeping. Paul received three sentences in 1970 and 1971:(1) 1 to 5 years' imprisonment for burglary; (2) 10 to 50 years' imprisonment for armed robbery; and (3) 2 to 10 years' imprisonment for attempted armed robbery. In his opening brief on appeal, Paul contends:
19
In addition to these sentences, the records of the Penitentiary of New Mexico have two additional sentences for "Robbery while armed with a deadly weapon and Burglary." Mr. Paul provided the district court with copies of a document referring to "Cause No. CR-566" as the Judgment or authority for this set of offenses, when, in fact, the document is a "Commitment" or mandate from the New Mexico Court of Appeals affirming the convictions and sentences entered in Bernalillo County No. 19906. "Cause CR-566" is not a separate judgment representing convictions of separate offenses. This error led to miscalculations in his time served and time remaining to be served, resulting in denial of Mr. Paul's good time credits and possible denial of actual time served.
20
Appellant's Br. at 6 (citations omitted). The government argues that these claims should have been raised in a prior habeas petition filed by Paul in 1992. Paul contends, however, that he "had no knowledge of these phantom sentences until his arrest for an alleged parole violation on March 14, 1994." Id.
21
Claims raised for the first time in a second or subsequent habeas petition may be dismissed as abusive unless the petitioner shows cause for the failure to raise the claim in an earlier habeas petition, and prejudice therefrom. Andrews v. Deland, 943 F.2d 1162, 1171 (10th Cir.1991). The cause standard requires the petition to show that some objective and external factor impeded efforts to raise the claim in the previous habeas petition. McCleskey v. Zant, 499 U.S. 467, 497 (1991). Where a petitioner claims that he lacked the factual basis necessary to raise the claim in a previous petition, we consider "whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." Id. at 498.
22
As the district court correctly determined, Paul has failed to show either cause for his failure to raise this claim in his 1992 petition, or prejudice resulting therefrom. First, although Paul claims that he did not learn of the alleged errors until March 14, 1994, he does not explain why the prison records and information containing the errors were not available to him at the time he filed his previous petition in 1992.4 As noted, Paul's sentences date back to the early 1970's. Since that time, he has had multiple contacts with the Parole Hearing Board, and presumably ample opportunity to familiarize himself with his sentence and record. Paul has failed to show that he could not, through reasonable means, discover the factual basis for his claims either before or during the pendency of his previous habeas petition.5
23
Second, with respect to prejudice, the parties agree that Paul's prison records have been corrected to remove any mistaken sentences derived from the New Mexico Court of Appeals mandate titled "Cause CR-566." See R. Vol. 1, Doc. 60 at p 5; Appellee's Br. at 13. Paul does not explain with any clarity how his good-time credit or time served has been, or is presently, affected by any previous error. Like the district court, we do not find any sufficient showing of prejudice.6 Accordingly, we affirm the district court's dismissal of petition CIV 95-0397 as an abuse of the writ.
III.
24
For the foregoing reasons, we AFFIRM the orders of the district court dismissing Paul's consolidated habeas petitions. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3
1
Paul has not provided this court with any copy of the alleged Correctional Department Policy
2
The record is silent as to the reasons for the delay. It appears, however, that at least one month of the delay is attributable to extradition proceedings
3
Although Paul refers to Romero's sketchy memory of events occurring "more than a year ago," the only memory loss relevant to his habeas claim would be that attributable to the delay between his arrest and the preliminary hearing. Thus, Paul essentially argues that Officer Romero suffered prejudicial memory loss within three months
4
With respect to the erroneous sentences added as a result of "Cause CR-655," Paul does not claim that this error was created in March of 1993, but rather that he did not know about it until March of 1993
5
Paul's 1992 habeas petition was not dismissed by the district court until June 9, 1994. Paul claims that he learned of the alleged errors in prison record keeping on March 14, 1994
6
In his reply brief on appeal, Paul alleges an entirely different error in prison record keeping. He claims that when his parole was revoked in March of 1993, his 2 to 10 year sentence for attempted armed robbery "was added back onto [his] existing sentences." Appellant's Reply Br. at 4. Hence, Paul claims that "he is currently serving a sentence that terminated in 1972, and for which no revocation proceedings appear to have been conducted." Id. This issue is waived by Paul's failure to raise it in his opening brief. Coleman v. B-G Maintenance Management of Colorado, Inc., 108 F.3d 1199, 1205 (10th Cir.1997)
| {
"pile_set_name": "FreeLaw"
} |
740 F.Supp. 530 (1990)
Paul L. CRAIG, Ph.D., Plaintiff,
v.
FIRST AMERICAN CAPITAL RESOURCES, INC., Mark Anthony, and Carl Gerard Bitler, Defendants.
No. 89 C 2149.
United States District Court, N.D. Illinois, E.D.
June 26, 1990.
*531 *532 Ronald P. Kane, Barbara Young, Siegan, Barbakoff & Gomsberg, Chicago, Ill., for plaintiff.
Roger J. McFadden, Marshall L. Blankenship, Schuyler, Roche & Zwirner, Chicago, Ill., for defendant Bitler.
ORDER
BUA, District Judge.
Plaintiff Dr. Paul L. Craig filed this action alleging that a securities brokerage firm, defendant First American Capital Resources, Inc. ("First American"), and two of its employees, defendants Mark Anthony and Carl Bitler, committed fraud and engaged in other misconduct in handling various securities transactions on his behalf. Bitler now moves to dismiss all of the claims asserted against him. For the reasons stated herein, Bitler's motion to dismiss is granted as to Counts I-V and VII; the motion is denied as to Count VI.
FACTS[1]
Craig's involvement with First American began in about September 1987. Around that time, Craig, a resident of Anchorage, Alaska, became aware of a seafood processing company called Seafood From Alaska, Inc. ("SFA"). When Craig contacted SFA to inquire about investing in the company, he was directed to Anthony. Anthony had engineered the initial public offering of SFA stock while working for Chicago-based First American. Upon being contacted *533 by Craig, Anthony persuaded Craig to invest in SFA through First American.
Over the course of the next year, Anthony, acting as First American's agent, made numerous misrepresentations to Craig, inducing Craig into several other investments in which he suffered substantial monetary losses. Anthony also executed a series of unauthorized trades on Craig's accounts at First American, causing Craig to suffer further monetary losses. On November 3, 1988, after Craig became aware of the unauthorized trading on his accounts, he contacted First American to complain. At that time, Craig was informed that Anthony no longer worked for First American.
On November 8, 1988, Craig had a telephone conversation with Bitler, who identified himself as the new president of First American. During that conversation, Craig advised Bitler of the unauthorized trading which had taken place on his accounts at First American. Bitler assured Craig that misrepresentations had been made to him by Anthony and that the unauthorized transactions which Anthony had executed would be "reversed." Approximately two weeks later, Craig had another conversation with Bitler, during which Bitler represented that he had reversed Anthony's unauthorized trades as he had promised. Bitler stated that written confirmations evidencing the fact that the trades had been reversed "were in the mail" and that slow delivery of mail to Alaska was the reason Craig had not yet received the confirmations. Craig subsequently learned that the unauthorized trades had not been reversed. He then filed this action.
The first three counts of Craig's seven-count complaint allege violations of federal securities laws. Count I alleges that defendants violated § 12(2) of the Securities Act of 1933 ("1933 Act"), 15 U.S.C. § 77l (2); Count II alleges that defendants committed securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934 ("1934 Act"), 15 U.S.C. § 78j(b), and Securities Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5; Count III asserts claims for "control person" liability pursuant to § 15 of the 1933 Act, 15 U.S.C. § 77o, and § 20 of the 1934 Act, 15 U.S.C. § 78t. Count IV asserts a claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Finally, Counts V-VII allege state law claims for breach of fiduciary duty, common law fraud, and negligent misrepresentation. Bitler's motion seeks his dismissal from each count.
DISCUSSION
I. Count I: Violation of § 12(2) of the 1933 Act
Craig alleges three alternative theories for holding Bitler liable under § 12(2) of the 1933 Act. He claims that Bitler is liable for either committing a direct violation of § 12(2), entering into a conspiracy to violate § 12(2), or aiding and abetting in a violation of § 12(2).
A. Direct Violation
By its express terms, § 12(2) limits liability to "sellers" and "offerors" of securities.[2] The Seventh Circuit recently pointed out that many district courts in this circuit, relying on dicta in Sanders v. John Nuveen & Co., 619 F.2d 1222 (7th Cir. 1980), cert. denied, 450 U.S. 1005, 101 S.Ct. 1719, 68 L.Ed.2d 210 (1981), have held that to be liable as a "seller" or "offeror" under § 12(2), the defendant must be in privity with the plaintiff-purchaser. See Schlifke v. Seafirst Corp., 866 F.2d 935, 939 (7th Cir.1989) (citing Steinberg v. Illinois Co., 659 F.Supp. 58, 60 (N.D.Ill.1987) (collecting cases), and Kennedy v. Nicastro, 503 F.Supp. 1116, 1118 (N.D.Ill.1980)). This *534 court, however, has never embraced a strict privity requirement for § 12(2). In fact, in Ambling v. Blackstone Cattle Co., Inc., 658 F.Supp. 1459 (N.D.Ill.1987), this court expressed reservations about whether § 12(2) really requires strict privity between the plaintiff-purchaser and the defendant-seller and doubted whether the Seventh Circuit would adopt such an approach when called upon to actually decide the issue. Id. at 1465-66.
Subsequent to Ambling, in Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), the Supreme Court refused to adopt a strict privity requirement for cases alleging violations of § 12(1) of the 1933 Act. The Seventh Circuit then stated, in Schlifke, "The language in Pinter v. Dahl, coupled with prevailing case law in other circuits, seems to undermine the continuing viability of the strict privity concept under section 12(2)." 866 F.2d at 940. The Schlifke court, however, refused to adopt a specific test for determining who can be a "seller" or "offeror" under § 12(2). Instead, the court found that under any of the various tests employed for determining who is a "seller" under § 12(2) including the "proximate cause" test and "substantial factor test"[3] the defendant in Schlifke was not a "seller" of securities. 866 F.2d at 940-41.
As in Schlifke, this court need not determine the precise parameters of the "offers or sells" language in § 12(2), for under any reasonable definition of "offeror" or "seller," Craig's claim that Bitler is liable for a direct violation of § 12(2) as a seller of securities must fail. The complaint does not allege that Bitler participated in soliciting Craig's purchase of securities or that Bitler even communicated with Craig before he purchased securities. Nor does the complaint allege that Bitler took any action at First American to facilitate Craig's securities transactions. The only action allegedly taken by Bitler in connection with Craig's transactions was his misrepresentations concerning the reversal of certain trades; those misrepresentations were allegedly made by Bitler sometime after Craig's securities transactions had already been completed. Therefore, in no way can Bitler be considered a proximate cause or a "substantial factor" in causing Craig's transactions to take place. See Beck v. Cantor, Fitzgerald & Co., Inc., 621 F.Supp. 1547, 1561-62 (N.D.Ill.1985) ("[T]here is no question that under any stretch of the term, `strict privity' does not apply to [defendant] whose conduct did not occur until well after the plaintiff bought his ... stock.... Indeed, ... even under the `substantial factor' and `transaction causation' tests enunciated by other circuits which have not required `strict privity' under Section 12(2), [defendant] did not have both prior and significant involvement in the events leading to and causing the sales transaction.") As a result, Bitler is not liable as a direct seller of securities under § 12(2).
B. Aiding and Abetting
In addition to questioning "the continuing viability of the strict privity concept," the Schlifke court spoke disapprovingly of the doctrine of aiding and abetting liability under § 12(2). Noting that this circuit has never recognized aiding and abetting liability under § 12(2), the court stated: "[N]otions of aiding and abetting liability would be inconsistent with the intent and language of the statutory provision which expressly limits to offerors and sellers the categories of persons who may be sued." 866 F.2d at 942.
Craig correctly points out that Schlifke did not totally foreclose the possibility of aiding and abetting liability. The Schlifke court narrowly tailored its holding to the facts of that case, stating, "[I]n the absence of a showing that the [defendant] Bank acted with scienter, we see no reason at this time to imply a right of action for aiding and abetting under section 12(2)." Id. However, in light of the Seventh Circuit's recognition that aiding and abetting liability is discordant with the language and intent of § 12(2), this court is not persuaded to retreat from its prior ruling in Ambling rejecting the notion of aider and *535 abettor liability under § 12(2). See 658 F.Supp. at 1467.[4] Moreover, even if it were appropriate to recognize aider and abettor liability in some circumstances, this case would not be one of them. As noted above, Craig's complaint does not contain any allegations that Bitler facilitated the offer or sale of a security; Bitler did not even have any involvement with Craig until after Craig's securities purchased had already been effectuated through Anthony. Accordingly, Bitler cannot be liable as an aider or abetter under § 12(2).
C. Conspiracy
Craig's final theory under § 12(2) is that Bitler was part of a conspiracy. However, in order to state a claim for conspiracy, "a plaintiff must allege the agreement of each defendant to the operation of the conspiracy." First Interstate Bank of Nevada v. Chapman and Cutler, 837 F.2d 775, 780 (7th Cir.1988). Craig has not alleged that Bitler entered into any agreement to violate § 12(2); nor has he alleged any facts from which such an agreement may be inferred. He merely claims that at all times relevant to this action Bitler was an officer and director of First American and that by virtue of that position Bitler either knew or should have known of Anthony's misrepresentations and unauthorized transactions. These allegations, even when read in the light most favorable to Craig, are simply insufficient to state a claim for conspiracy. See Maloney v. Washington, 584 F.Supp. 1263, 1266 (N.D.Ill.1984) (allegations of conspiracy must be supported by facts and cannot withstand motion to dismiss if they are merely conclusory). Accordingly, Craig's § 12(2) conspiracy claim against Bitler, as well as his claims against Bitler for a direct violation of § 12(2) and aiding and abetting under § 12(2), must be dismissed.
II. Count II: Violation of § 10b of the 1934 Act and Rule 10b-5
Section 10(b) and Rule 10b-5 make it unlawful for any person to make an untrue statement of material fact or to omit a statement of material fact in connection with the purchase or sale of a security.[5] Craig asserts that Bitler violated § 10(b) and Rule 10b-5 in the same three ways that Bitler allegedly violated § 12(2): as a direct violator, as an aider or abettor, and as a conspirator.
A. Direct Violation
To satisfy the "in connection with" language of § 10(b) and Rule 10b-5, a plaintiff must show a causal connection between his decision to buy or sell securities and the defendant's fraudulent conduct. See Schlifke, 866 F.2d at 943; Rowe v. Maremont Corp., 850 F.2d 1226, 1233 (7th Cir.1988). As this court has already discussed, in the instant case Bitler's statements to Craig did not occur until after Anthony had executed Craig's securities transactions. Therefore, in no way can Bitler's representations be construed as a cause of Craig's purchases of securities through First American.
Craig argues that Bitler's statements are actionable even though they occurred after the securities purchases. Citing Securities *536 and Exchange Commission v. Holschuh, 694 F.2d 130 (7th Cir.1982), Craig claims that "post-purchase representations may still be actionable if they are part of an overall scheme to defraud by concealing the fraud and preventing its detection." Holschuh, however, does not stand for that proposition. In fact, the Holschuh court suggested that post-purchase representations are not actionable. The court stated:
[Defendant's argument] that a violation of the securities laws may not be based on events occurring after a sale has been completed, because such events could not have influenced the decisions of investors and cannot satisfy the requirement of being "in connection with the purchase or sale of any security[,]" ... might have merit were it true that the district court predicated its finding of fraud solely upon [defendant's] post-sale activities.
Id. at 143. The Holschuh court expressly held that it was the defendant's conduct prior to the sale which satisfied the "in connection with" requirement, and that the defendant's conduct after the sale was relevant only because it was evidence of the defendant's overall fraudulent scheme. Id. at 143-44. The instant case stands in stark contrast to Holschuh because Craig does not allege that Bitler made any pre-sale misrepresentations. Thus, Holschuh provides no support for Craig's claim that Bitler's post-sale representations are actionable under Rule 10b-5.
Craig also argues that even if Bitler's statements were not part of the fraud which caused his securities purchases, Bitler's statements were still "in connection with" the sale of securities because the statements pertained to the reversal of the unauthorized transactions which had been executed on his account. According to Craig, "Certainly the reversal of trades would constitute a sale within the meaning of Section 10(b)." However, although Bitler's statements were made in relation to a proposed securities transaction the reversal of the unauthorized trades Bitler's representations did not cause Craig to buy or sell securities. At most, the statements caused Craig to retain the securities he had already purchased. The law is clear that claims for wrongful retention of securities are not actionable under § 10(b). See O'Brien v. Continental Illinois Nat'l Bank and Trust Co., 593 F.2d 54, 58 (7th Cir.1979). Therefore, Craig cannot base his 10b-5 claim on Bitler's statements regarding the reversal of Anthony's unauthorized trades. As a result, there is no foundation for Craig's claim that Bitler committed a direct violation of Rule 10b-5.
B. Aiding and Abetting
To state a claim for aider and abettor liability under Rule 10b-5, "the plaintiff must show that the alleged aider and abettor committed one of the manipulative or deceptive acts proscribed under section 10(b) and Rule 10b-5 with the same degree of scienter that is required for primary liability." Schlifke, 866 F.2d at 947. The plaintiff must also show "substantial assistance by the aider and abettor in the perpetration of the primary violation." Id.
In the instant case, Craig has failed to allege that Bitler committed any manipulative or deceptive act proscribed by Rule 10b-5, since, as discussed above, none of the representations allegedly made by Bitler were "in connection with" the purchase or sale of any security. Moreover, Craig's complaint is barren of any allegation that Bitler provided "substantial assistance" to Anthony in Anthony's alleged violation of Rule 10b-5. Therefore, Bitler cannot be held liable under an aider or abettor theory.
C. Conspiracy
As discussed in Part I of this opinion, in order to state a claim for conspiracy, plaintiff must allege facts showing that defendant agreed to participate in the scheme, or facts from which such an agreement may be inferred. See First Interstate Bank, 837 F.2d at 780 & n. 5. The complaint in this case contains no such allegations with respect to Bitler. Therefore, Craig's Rule 10b-5 conspiracy claim against Bitler, like his § 12(2) conspiracy claim against Bitler, has no foundation. Count II must be dismissed as to Bitler.
*537 III. Violation of § 15 of the 1933 Act of § 20(a) of the 1934 Act
Section 15 of the 1933 Act and Section 20(a) of the 1934 Act provide liability for individuals who act as "control persons" in violating securities laws.[6] Craig alleges that Bitler is liable as a control person because he was an officer and a director of First American and, as such, he controlled the acts of First American. To hold Bitler liable as a control person, however, it is insufficient for Craig to simply allege that Bitler was an officer of First American; Craig must allege that Bitler had "potential for control over the specific activity upon which the primary violation [of securities laws] is predicated." Schlifke, 866 F.2d at 949-50. See also Barker v. Henderson, Franklin, Starnes & Holt, 797 F.2d 490, 494 (7th Cir.1986) ("control" under § 15 or § 20 means the practical ability to direct the actions of those who sell the securities). In the instant case, Anthony's alleged fraudulent misrepresentations and unauthorized trading constitute the specific activity on which the primary violation of security laws is based. Craig's complaint, however, is void of any allegation that Bitler had specific control over Anthony's culpable acts. Craig only generally alleges that Bitler controlled the acts of First American by virtue of his position with the company. Under Schlifke, that allegation is insufficient to state a claim for control person liability under either the 1933 Act or the 1934 Act. See e.g., Pershing v. Sirmer, No. 89 C 2239, 1989 WL 165155 (N.D.Ill. December 27, 1989) (available on Lexis and Westlaw) (dismissing claim for control person liability where plaintiff failed to allege facts showing that defendant had the ability to exercise control over the fraudulent securities transaction at issue). Therefore, Bitler's motion to dismiss Count III as it relates to him must be granted.[7]
IV. Count IV: RICO
In Count IV, Craig claims that defendants are liable under § 1962(a) of RICO. That provision states, in relevant part:
It shall be unlawful for any person who has received income derived ... from a pattern of racketeering activity ... to use or invest ... such income ... in the acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
18 U.S.C. § 1962(a). In Palumbo v. I.M. Simon & Co., 701 F.Supp. 1407 (N.D.Ill. 1988), this court held, in line with the majority of courts, that in order to state a claim under § 1962(a), the plaintiff cannot simply allege that he was injured by the defendant's racketeering acts; plaintiff must allege that he suffered an injury "by reason of" the defendant's use or investment of the income derived from the racketeering activity. Id. at 1408-11. In the instant case, Craig concedes the complaint *538 does not allege that he sustained an injury by reason of the defendants' use or investment of the income derived from the alleged pattern of racketeering; he alleges only that he was injured by the racketeering acts. Therefore, under Palumbo, Craig's RICO claim must be dismissed.
Craig argues that this court should reconsider its Palumbo decision. However, as this court pointed out in Grove Fresh Distributors, Inc. v. Flavor Fresh Foods, Inc., 720 F.Supp. 714, 717 & n. 1 (N.D.Ill. 1989), since this court's ruling in Palumbo two circuit courts have interpreted the proximate cause requirement of § 1962(a) in line with Palumbo and the majority of courts. See Rose v. Bartle, 871 F.2d 331, 357-58 (3d Cir.1989); Grider v. Texas Oil and Gas Corp., 868 F.2d 1147, 1149 (10th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). Moreover, this court has not found any circuit decision taking the contrary position, and the Seventh Circuit has still not been called upon to decide the issue. See Mid-State Fertilizer v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1340-41 n. 1 (7th Cir.1989) (Ripple, J., concurring) (noting that the Seventh Circuit has not decided the proximate cause issue under § 1962(a)). Therefore, the court sees no reason to retreat from its prior ruling in Palumbo. In addition, since Craig's allegations fail to meet the proximate requirement for a § 1962(a) claim as set forth in Palumbo, the court sees no reason to allow Craig to maintain his RICO claim against any of the defendants, even in the absence of a motion to dismiss from First American or Anthony. Accordingly, Count IV is dismissed in its entirety.
V. State Law Claims
A. Pendent Party Jurisdiction
Bitler also moves to dismiss the state law claims against him on the grounds that they fail to state a claim upon which relief may be granted. Before discussing the merits of Craig's state law claims, however, the court confronts a jurisdictional issue not discussed in the parties' briefs: pendent party jurisdiction. Craig bases this action on federal claim jurisdiction, not diversity jurisdiction. Therefore, in light of this court's ruling that the complaint does not state a federal claim against Bitler, there is no independent basis for exercising federal jurisdiction over Bitler, even if Craig's state law claims against Bitler are meritorious. The only way the court can hear Craig's state law claims against Bitler is if it exercises pendent party jurisdiction.
In order to exercise pendent party jurisdiction, a two-part test must be satisfied. See Carter v. Dixon, 727 F.Supp. 478, 479 (N.D.Ill.1990) (citing Huffman v. Hains, 865 F.2d 920, 922 (7th Cir. 1989) and Zabkowicz v. West Bend Co., 789 F.2d 540, 546 (7th Cir.1986)). First, the constitutional power to exercise such jurisdiction must exist. This part of the test is satisfied where, as here, "the federal claim [against another defendant] is not frivolous, the federal and state claims `derive from the same nucleus of operative fact', and the federal and state claims are the kind that plaintiff `would ordinarily be expected to try ... in one judicial proceeding.'" Carter, 727 F.Supp. at 479 (citing Huffman, 865 F.2d at 922). Second, Congress must not have limited the court's power to exercise pendent party jurisdiction in the particular statutory provision conferring federal jurisdiction on the case. Id. In the instant case, this part of the test is met since the court finds nothing in the federal securities laws preventing the exercise of pendent party jurisdiction. Therefore, the court has the power to exercise pendent party jurisdiction in this case.
Moreover, the court finds that the exercise of pendent party jurisdiction is appropriate under the facts present here. Due to the relatedness of Craig's state law claims and his federal securities law claims, litigating all of Craig's claims at the same time and in the same forum will undoubtedly preserve judicial time and resources. See Carter, 727 F.Supp. at 480. Hearing all of the claims together will also be more convenient for the parties, who will avoid shuffling back and forth between state and federal court to resolve the issues presented in Craig's complaint. Id. Therefore, *539 the court will exercise pendent party jurisdiction over Craig's common law fraud claim which, as discussed below, is the only state law claim against Bitler which survives Bitler's motion to dismiss.
B. Count V: Breach of Fiduciary Duty
Count V of the complaint alleges that by virtue of his relationship with Craig, Bitler is liable for breach of fiduciary duty. Under Illinois law, most business relationships do not of themselves create fiduciary relationships. See Schuppenhauer v. Peoples Gas Light and Coke Co., 30 Ill.App.3d 607, 613, 332 N.E.2d 583, 589 (1975) ("The fact that business transactions are conducted does not justify an inference of a fiduciary obligation."); see also BA Mortgage and International Realty Corp. v. American Nat'l Bank & Trust Co. of Chicago, 706 F.Supp. 1364, 1372 (N.D.Ill. 1989); Seaboard Seed Co. v. Bemis Co., 632 F.Supp. 1133, 1136 (N.D.Ill.1986). In the absence of a per se fiduciary relationship such as attorney/client, guardian/ward, principal/agent a fiduciary relationship is created only where one party, because of some close relationship, is heavily dependent upon the judgment or advice of another. Seaboard Seed, 632 F.Supp. at 1136 (citing Carey Electric Contracting, Inc. v. First Nat'l Bank of Elgin, 74 Ill.App.3d 233, 237-38, 30 Ill.Dec. 104, 108, 392 N.E.2d 759, 763 (1979)); Gutfreund v. Christoph, 658 F.Supp. 1378, 1395 (N.D.Ill.1987) (same).
In the instant case, Craig does not claim that he had a close relationship with Bitler; in fact, the entire relationship allegedly consisted of two phone conversations in which Craig inquired about trading activity on his account at First American. Craig also does not allege that he relied on any advice from Bitler, or that he placed any trust or confidence in Bitler's judgment. Bitler claims that his allegations create a factual question as to whether a fiduciary relationship existed between a broker and his customer. Craig's allegations, however, are that Anthony, not Bitler, was his broker. Therefore, the court finds no basis in the complaint for Craig's breach of fiduciary duty claim against Bitler. As a result, Count V must therefore be dismissed as it relates to Bitler.
C. Count VI: Common Law Fraud
Under Illinois law, in order to state a claim for common law fraud, a plaintiff must allege: (1) a false statement of material fact; (2) knowledge or belief of the falsity of the statement on the part of the party making it; (3) intent to induce the other party to act; (4) action by the other party in justifiable reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. Soules v. General Motors Corp., 79 Ill.2d 282, 286, 37 Ill.Dec. 597, 599, 402 N.E.2d 599, 601 (1980).
In the instant case, reading Craig's allegations in the light most favorable to him[8] Count VI alleges that Bitler told Craig that the unauthorized trades which Anthony had executed on Craig's account had been reversed, despite Bitler's knowledge of the falsity of that statement. Count VI further alleges that Bitler made that statement intending for Craig to rely on it, and that Craig suffered damages as a result of his reliance on that statement. These allegations sufficiently satisfy each of the elements set forth in Soules to state a fraud claim against Bitler.
Bitler argues that any damages Craig suffered resulted from Anthony's misrepresentations and unauthorized trading, not from Bitler's assurances that the unauthorized trades had been reversed. While that may prove to be true after discovery, that is not what is alleged in the complaint. Craig claims, "Despite Bitler's representations, the transactions were not reversed and, as a result, the accounts have sustained substantial losses." Complaint, *540 ¶ 22. This allegation, which must be accepted as true and read in the light most favorable to Craig at this stage of the litigation, claims that Craig sustained losses from Bitler's misrepresentations in addition to any losses he sustained from Anthony's unauthorized trading. At this point, this court cannot hold that Craig is unable to prove any set of facts consistent with that claim for damages. Therefore, Bitler's motion to dismiss must be denied to the extent that it relates to Count VI.
D. Count VII: Negligent Misrepresentation
In order to state a claim for negligent misrepresentation under Illinois law, plaintiff must show: (1) that the defendant is in the business of supplying information; (2) that defendant supplied information to plaintiff for guidance in plaintiff's business transactions; and (3) that the information was supplied for guidance in plaintiff's business dealings with third parties. Rankow v. First Chicago Corp., 870 F.2d 356, 362-63 (7th Cir.1989) (citing Black, Jackson and Simmons Ins. Brokerage, Inc. v. IBM Corp., 109 Ill.App.3d 132, 135, 64 Ill.Dec. 730, 732, 440 N.E.2d 282, 284 (1982)).
Under this test, Craig cannot sustain a claim for negligent misrepresentation against Bitler based on the allegations in the complaint. Craig simply alleges that Bitler made certain misrepresentations regarding past transactions which had been executed on Craig's account at First American. Nowhere in the complaint does Craig claim that he used any information acquired from Bitler in conducting business transactions with third parties. In his memorandum, Craig contends that the information provided to him by "defendants" guided him in his business dealings with the issuers of the stocks he purchased through First American. While that may be true with respect to Anthony, it cannot be true with respect to Bitler. Bitler did not have any contact with Craig until after the purchases on Craig's account at First American had already been executed. Moreover, the complaint does not allege that Bitler's statements guided Craig in any subsequent business transactions. Therefore, the complaint fails to state a claim against Bitler for negligent misrepresentation.
CONCLUSION
For the foregoing reasons, Bitler's motion to dismiss is granted with respect to Counts I-V and Count VII. The motion is denied with respect to Count VI.
IT IS SO ORDERED.
NOTES
[1] For the purpose of deciding Bitler's motion to dismiss, all the well-pleaded allegations in Craig's complaint must be accepted as true. Gregory v. Nunn, 895 F.2d 413, 414 (7th Cir. 1990); Ed Miniat, Inc. v. Globe Life Insurance Group, Inc., 805 F.2d 732, 733 (7th Cir.1986), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 676 (1987).
[2] Section 12(2) states:
Any person who
(2) offers or sells a security ... by means of a prospectus or oral communication, which includes an untrue statement of material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading ..., and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission ...
shall be liable to the person purchasing such security from him....
[3] For a discussion of the various tests employed, see Schlifke, 866 F.2d at 940.
[4] This court's position is consistent with that of the Second and Third Circuits, both of which have rejected aider and abettor liability since the Supreme Court's decision in Pinter v. Dahl, supra. See Craftmatic Securities Litigation v. Kraftsow, 890 F.2d 628, 636-37 (3d Cir.1989); Royal American Managers, Inc. v. IRC Holding Corp., 885 F.2d 1011, 1017 (2d Cir.1989).
[5] Rule 10b-5, promulgated pursuant to § 10(b), provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security.
17 C.F.R. § 240.10b-5.
[6] Section 20(a) of the 1934 Act provides:
Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person ... is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.
15 U.S.C. § 78t(a).
Section 15 of the 1933 Act provides:
Every person who ... controls any person liable under sections 77k or 77l of this title, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist.
15 U.S.C. § 77o.
[7] Count III also alleges that "Defendants" are liable as control persons "pursuant to the Doctrine of Respondeat Superior." Although it is unclear from the complaint which defendants Craig believes are liable under the doctrine of respondeat superior, the court does not read Craig's reference to the doctrine as pertaining to Craig. In his memorandum, Craig does not attempt to apply the doctrine to Bitler. Moreover, the complaint alleges that both Anthony and Bitler were agents of First American, not that Anthony was an agent of Bitler. Therefore, there is no basis for respondeat superior liability against Bitler.
[8] Count VI incorporates paragraphs 10-21 of the complaint for the factual basis of the fraud claim. The factual allegations which pertain to Bitler, however, are set forth in paragraph 22. In his memorandum, Craig asserts that the failure to incorporate paragraph 22 into Count VI was merely an oversight or a typographical error, so he seeks to amend Count VI to incorporate paragraph 22. The court reads Count 22 so amended.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Interboro Packaging Corporation, :
Appellant :
: No. 473 C.D. 2018
v. : Argued: December 11, 2018
:
West Whiteland Township :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: January 4, 2019
In this appeal involving a publicly bid contract, Interboro Packaging
Corporation (Interboro) asks whether the Court of Common Pleas of Chester
County (trial court) erred in denying its post-trial motions following a non-jury
trial. The trial court found in favor of West Whiteland Township (Township) and
against Interboro on Interboro’s breach of contract suit and in favor of the
Township on its counterclaim for breach of contract. The trial court also awarded
the Township attorney fees and expenses. The litigation arose out of Interboro’s
failure to provide the Township with trash bags that conformed to the
specifications set forth in the Township’s request for proposals (RFP). Upon
review, we affirm on the trial court’s opinions.
I. Background
The trial court made the following findings of fact. Interboro is a
corporation engaged in the business of selling and distributing plastic liners and
trash bags in 48 states.
In August 2013, the Township issued an RFP, Specification Number
2013-17, for 400,000 trash bags for use in its existing “Pay as You Throw”
municipal trash and recycling program. The RFP required bidders to comply with
the following specifications:
(a) Size - 30" wide by 37" long, 33 gallon plastic trash
bags
(b) Color - Black bag with white printed logo
(c) Resin - Linear Low Density, 100% virgin Hexene
(d) Thickness - 1.9 mils (minimum)
(e) Seal - Flat seal
(f) Printing
(i) Logo on all bags shall have printing on one side
in repeating pattern.
(ii) Printing color shall be white.
(iii) Lettering 10" high x 19" wide from beginning
of first W to end of T.
(iv) Each letter width is 1½" thick.
(v) 1" wide vertical stripe on both ends of bag
indent 3" from center of stripe to edge of bag.
Stripe shall be from top of bag to bottom of bag.
See attached picture.
(g) Packaging - Bags shall be individually cut and
packaged flat in quantities of 200 per case. All cases
shall be made of sturdy cardboard.
(h) Twist Ties - Each case shall contain a minimum of
200 twist ties. Ties shall be wire encased in a paper
covering and shall be perforated for easy separation.
2
(i) Quantity - Bid process shall be based upon 400,000
bags to meet specifications.
Tr. Ct. Dec., 8/28/17, Finding of Fact (F.F.) No. 5 (quoting Ex. P-1) (underlined
emphasis added) (bolded emphasis in original).
The RFP required each bidder to submit a minimum of 20 sample
bags to the Township for review and inspection prior to an award of the contract.
The sample bags were required to meet the specifications and be representative of
the bags the bidder would supply if awarded the contract. The RFP also stated that
the Township reserved the right to require a 90-day evaluation period to determine
the quality of the bags and if the bags did not meet the Township’s standards and
expectations, the contract would be terminated and any unused bags would be
returned to the bidder at the bidder’s expense. Further, the bidder would be
required to reimburse the Township for the full cost of the unused quantity of bags.
On August 20 and 26, 2013, Interboro submitted bids in response to
the RFP through PennBid (“Pennsylvania’s Electronic Document & Bid
Management Program”). Ex. P-2. Interboro’s bids were for Super Hexene trash
bags, as per sample #1, at a price of $22.82 per case or $45,640. The cost to
Interboro to buy the bags from its supplier, Inteplast Group, LTD. (Inteplast) was
$19.59 per case or $39,180. This price was for 1.5 mil trash bags, which Interboro
used as the basis for its bid, intentionally ignoring the 1.9 mil minimum thickness
requirement. Interboro initially requested pricing from Inteplast on 1.9 mil bags
that actually satisfied the RFP’s specifications. The cost to Interboro would have
been $24.82 per case or $49,640 for bags with a thickness of 1.9 mils.
3
Including Interboro, a total of four bidders responded to the RFP.
Assuming all other bidders submitted bids based on bags that actually complied
with the 1.9 mil minimum thickness specification, while Interboro undisputedly
submitted a bid that was based on thinner and cheaper-to-manufacture bags,
Interboro knowingly tainted the entire bidding process to win the contract. At no
time in the bidding phase did Interboro advise the Township that the 1.9 mil
specification was thicker than needed. Nor did Interboro advise the Township that
it would provide a bag that was less than 1.9 mils thick. Interboro submitted at
least 20 sample trash bags as part of its bid. In addition to the sample bags,
Interboro sent the Township a “Sample Bag Compliance Letter” (sample letter),
which stated:
All shipments made consistent with the enclosed samples
will be deemed in full conformance with bid
specifications. We are relying upon approval of these
samples for compliance of [our] bid and will ship only
such bags, in the specified size/color. Acceptance of our
bid shall conclusively constitute approval of the enclosed
samples as [in] conformity with bid specifications.
F.F. No. 18 (citing Ex. P-5).
Abraham Jeremias, Interboro’s President (Interboro’s President),
testified he made the decision to send the Township sample bags that he knew
were less than 1.9 mils thick despite knowing that the RFP specifications called for
1.9 mil thick bags.
On August 27, 2013, Denise Serino, the Township’s Purchasing
Agent, wrote a memorandum to Michael Cotter, Township Manager, and Cathy
4
Kleponis, the Township’s Finance Director, recommending that the Township
Board of Supervisors award the contract to Interboro, the lowest bidder. The
contract covered a two-year supply of trash bags in the amount of $22,820 in 2013
and $22,820 in 2014 for a total of $45,640. Purchasing Agent’s memorandum
indicated that Township staff tested all the bags submitted with the bids. Before,
during, and after the testing, Purchasing Agent took great care to ensure the bags
received from each bidder were kept in the envelope in which they were sent and
were never mixed with others. The trial court found that the Township elicited
significant, credible testimony regarding the chain of custody of the sample bags
from receipt through testing and trial.
Conversely, the trial court explained, Interboro did not produce Malky
Weiss, the employee who actually sent the now-contested sample bags to the
Township. Interboro’s only “evidence” questioning the chain of custody of the
bags was the testimony of its President and its representative, Rachel Loeb
(Interboro’s representative), who simply testified in a conclusory manner that the
bags in the envelope marked as Exhibit D-38 were not and could have come from
Interboro. F.F. No. 24.
The Township’s Public Works Director and Assistant Public Works
Director performed rudimentary testing on the sample bags, and Purchasing Agent
recorded the ratings, based on the Township’s system. The purpose of the testing
process was to ensure the bidder’s bags were as good as or better than the bags the
Township was presently using.
5
Ultimately, the Township awarded the contract to Interboro.
Interboro sent a letter to the Township dated October 1, 2013 (waiver letter), which
acknowledged receipt of the contract and stated that the samples provided during
the bidding process would serve as “the benchmark for all tests and future
inspections of the quality and strength of the liners provided.” F.F. No. 28 (citing
Ex. P-7). The waiver letter stated: “Upon formal approval of our samples we shall
manufacture the bags exactly according to the bid scope, the specified size & color.
The purpose of the samples is to test the strength of the bag and the material we are
offering.” F.F. No. 29 (citing Ex. P-7). The waiver letter also stated that by
signing the waiver, the Township acknowledged that it
examined, inspected and approved the quality of the
sample Interboro provided with the bid, and that all
future shipments in accordance [with] the sample quality
approved by you will be accepted. Of course, you have
the right to inspect each shipment to confirm the product
delivered conforms to the sample provided by Interboro
and approved by you.
F.F. No. 30 (citing Ex. P-7). The Township Manager signed the waiver letter on
the Township’s behalf. At trial, Interboro’s President testified that in his view the
waiver letter made the Township aware that everything would be based on the
sample bags, not on the bid specifications.
On October 24, 2013, the Township ordered the bags from Interboro
for a total price of $45,640. After receiving the award, Interboro submitted a
purchase order to Inteplast to manufacture 1.5 mil bags at a cost of $19.59 per
case.
6
On October 23, 2013, the Township and Interboro entered into a West
Whiteland Township Independent Contractor Services Agreement (Agreement).
Paragraph 10(A) of the Agreement states:
This Agreement and the exhibits attached hereto contain
the entire agreement between the parties, and supersede
all prior communications, representations or agreements,
whether oral or written, between the parties with respect
to the subject matter of this Agreement. Any additions or
alternations to this Agreement shall have no force and
effect unless made in writing and signed by the parties.
F.F. No. 36 (citing Ex. P-9).
The Agreement was signed after the Township Manager signed the
waiver letter; therefore, the Agreement superseded the waiver letter as stated in
Paragraph 10(A) of the Agreement.
In early November 2013, Interboro had Inteplast deliver 1,936 cases
of trash bags purportedly containing 387,200 trash bags to the Township.
Immediately upon arrival of the shipment, the Township’s Purchasing Agent
noticed that the logo printing was incorrect and the bags felt thinner and were more
transparent, indicating that the thickness was incorrect. The Township’s
Purchasing Agent informed the truck driver that the Township rejected the
shipment and noted that the “bags did not meet specs” on the bill of lading. F.F.
No. 40 (citing Ex. D-9; Tr. Ct., Non-Jury Tr., Notes of Testimony (N.T.), 4/4/17, at
172-73). The printed logo on the delivered bags was clearly incorrect and the
parties did not dispute this point.
7
Interboro’s President testified that the bags Interboro actually
delivered to the Township were 1.5 mils, and he claimed they matched the sample
bags previously provided. Interboro asserted “the delivered bags were at least as
good as those that would actually meet the 1.9 mil [thickness] specification.” F.F.
No. 43 (citing N.T., 4/3/17, at 205). Even if this was so, the trial court explained,
the Township had to answer to residents who had no knowledge of the properties
of Hexene or its strength. For that reason, the Township believed thickness, as
evaluated by a layperson (resident) by sight and touch, to be an important
consideration in its trash bag purchases. The trial court stated the Township issued
a clear, unambiguous RFP, and it was justified in expecting bidder compliance
with the terms.
Interboro had the bags tested by Inteplast. In an email from
November 2013, an Inteplast representative confirmed that an Interboro
representative asked Inteplast to provide the physical properties of the delivered
bags, without disclosing the thickness.
The Township presented the expert testimony of John Boschuk, Jr.,
Professional Engineer, Certified Forensic Engineer (Township’s Expert), to testify
regarding his measurements of the properties of the trash bags supplied by
Interboro to the Township. The Township’s Expert was provided with 10 bags to
test including 5 of the Interboro sample bags contained in Exhibit D-38 and 5 of
the bags ultimately delivered to the Township contained in Exhibit D-39. The
Township’s Expert tested 3 of 5 Interboro sample bags. The first bag measured an
average of 1.52 mils, the second bag measured an average of 1.56 mils, and the
8
third bag measured an average of 1.53 mils. The Township’s Expert also tested 3
of 5 bags that were delivered to the Township by Inteplast on behalf of Interboro
after execution of the Agreement. The first bag measured an average of 1.21 mils,
the second bag measured an average of 1.29 mils, and the third bag measured an
average of 1.13 mils. The Township’s Expert performed various other industry-
standard tests on both the sample and delivered bags. He opined that the delivered
bags were weaker than the sample bags and that a 1.9 mil trash bag would be
stronger than both the sample and delivered bags. Therefore, the trial court
explained, even if the waiver letter was enforceable, as Interboro argued, Interboro
would still have been in breach of the Agreement because the delivered bags were
not as good as the sample bags.
Pursuant to Section 9(A)(5)(A) of the Agreement, the Township sent
Interboro preliminary notice of its intention to terminate the Agreement. The
Township’s letter notified Interboro that the Township was considering terminating
the Agreement for fault as the delivered bags failed to meet the following
specifications: linear low density of 100% virgin Hexene, thickness of not less than
1.9 mils, and logo placement. The letter also requested a conference with
Interboro to discuss methods of performing the contract.
In December 2013, a conference call was held between Interboro’s
President, the Township Manager, and the Township Solicitor in which the
Township informed Interboro’s President that Interboro could cure the default by
providing bags that conformed to the RFP or by providing bags that conformed to
the sample bags. Interboro’s President did not offer to perform either of the
9
proposed cure methods but instead offered to provide a bag he insisted was better
than the sample bags.
Because it was in need of bags, the Township ordered replacement
bags from the second lowest bidder, Central Poly Corporation (Central Poly). On
December 17, 2013, the Township submitted a purchase order to Central Poly for
146,000 trash bags at a price of $23.80 per case ($0.1190 per bag) for a total cost
of $17,374. In April 2014, the Township purchased 139,400 bags from Central
Poly at a price of $23.80 per case ($0.1190 per bag) for a total cost of $16,588.60.
About a month later, the Township purchased 120,000 bags from Central Poly at a
price of $23.80 per case ($0.1190 per bag) for a total cost of $14,280. The
Township ordered a total of 405,400 bags from Central Poly. Removing the excess
5,400 bags, the Township paid Central Poly $47,600 for the 400,000 bags it had to
order in light of Interboro’s breach of the Agreement. As a result, the Township
paid $1,960 more to buy bags from Central Poly than it would have had Interboro
not breached the Agreement.
By letter dated January 10, 2014, counsel for the Township notified
Interboro’s President that, pursuant to Section 9(A)(5)(B) of the Agreement, the
Township was terminating the Agreement. The stated reason for termination was
that Interboro failed to satisfy the conditions to cure as established during the
December 2013 telephone conference by showing the delivered bags: (1) satisfied
the specifications set forth in the RFP; (2) were the same as the sample bags
provided to the Township; and (3) satisfied the specified logo requirement.
10
Interboro subsequently filed suit against the Township for breach of
contract and intentional interference with a contractual relationship. The Township
asserted a counterclaim for breach of contract and sought damages of $1,960 as
well as attorney fees and costs.
Thereafter, the trial court held a three-day non-jury trial. After trial,
the trial court issued a decision in favor of the Township and against Interboro on
Interboro’s complaint. The trial court made the following conclusions of law on
Interboro’s breach of contract claim. The Agreement is a valid, enforceable
contract between Interboro and the Township, and it constituted the entire contract
between the parties, superseding the waiver letter. The parties had a duty to deal in
good faith, and each party claimed that the other party violated the Agreement.
Interboro claimed the Township engaged in multiple instances of bad faith
conduct. However, applying the doctrine of unclean hands, the trial court
determined that it could not ignore Interboro’s conduct in intentionally misleading
the Township about the thickness of the bags from the offer stage of the contract
through the attempted cure process. The trial court concluded Interboro did not
meet its burden of proving the Township breached the Agreement; therefore,
Interboro was not entitled to any damages.1
1
As to Interboro’s intentional interference with contractual or prospective contractual
relationship claim, the trial court determined that a contractual relationship existed between
Interboro and its bonding company, Travelers Casualty and Surety Company of America. As a
direct result of Interboro’s breach of the Agreement, the trial court stated, the Township filed a
claim with Travelers in January 2014. The trial court determined the Township was justified in
submitting a claim to Travelers, based on Interboro’s breach of the Agreement. Interboro does
not challenge the trial court’s determination on this issue in its appeal to this Court.
11
In addition, as to the Township’s counterclaim for breach of contract,
the trial court determined Interboro breached the Agreement by failing to deliver
bags to the Township in compliance with the RFP, as incorporated into the
Agreement. Further, the trial court determined Interboro “intended to deceive the
Township from the inception of the bidding process by knowingly presenting a bid
that was based on a cheaper, intentionally non-conforming product to which [it]
later attempted in furtherance of its pre-planned scheme, to bind the Township by
procuring the signed waiver letter.” Tr. Ct. Dec., Concl. of Law No. 9.
The trial court further determined that the Township rejected the non-
conforming goods within a reasonable time (immediately at delivery and then
again formally after allowing Interboro a chance to cure its breaches) after their
delivery in compliance with 13 Pa. C.S. §2602(a) (“Manner and effect of rightful
rejection”) (Title 13 of the Pennsylvania Consolidated Statutes contains the
Uniform Commercial Code, 13 Pa. C.S. §§1101-9809). The trial court determined
the Township provided Interboro with the opportunity to cure the defective
delivery, as required by the Agreement and 13 Pa. C.S. §25082 (“Cure by seller of
2
This Section states, in its entirety:
(a) General rule.--Where any tender or delivery by the seller is
rejected because nonconforming and the time for performance has
not yet expired, the seller may seasonably notify the buyer of his
intention to cure and may then within the contract time make a
conforming delivery.
(b) Rejection of tender which seller believed acceptable.--
Where the buyer rejects a nonconforming tender which the seller
had reasonable grounds to believe would be acceptable with or
without money allowance the seller may if he seasonably notifies
(Footnote continued on next page…)
12
improper tender or delivery; replacement”), by either providing bags that
conformed to the RFP or by providing bags that conformed to the sample bags.
Interboro failed to cure the defective delivery as proposed by the Township. The
trial court further determined the Township rightfully rejected the bags and was
permitted to cancel the Agreement pursuant to 13 Pa. C.S. §2711 (“Remedies of
buyer in general; security interest of buyer in rejected goods”).
In addition, pursuant to 13 Pa. C.S. §2712(a) (“‘Cover’; procurement
by buyer of substitute goods”), the trial court explained, after a breach a “buyer
may ‘cover’ by making in good faith and without unreasonable delay any
reasonable purchase of or contract to purchase goods in substitution for those due
(continued…)
the buyer have a further reasonable time to substitute a conforming
tender.
13 Pa. C.S. §2508.
In its Pa. R.A.P. 1925(b) Statement, Interboro asserted it had the right to cure, which it
offered to do, and each offer to cure was wrongfully rejected by the Township. It reiterates this
assertion in its brief to this Court. Additionally, in its brief to this Court, Interboro briefly argues
that, under 13 Pa. C.S. §2508(b), it had reasonable grounds to believe its non-conforming tender
would be acceptable based on the waiver letter and the Sample Bag Compliance letter, giving it
further reasonable time to substitute conforming tender. Interboro did not raise this issue in its
lengthy and detailed 1925(b) Statement, resulting in waiver. See Kull v. Guisse, 81 A.3d 148,
160 (Pa. Cmwlth. 2013) (“Issues not included in a party’s 1925(b) Statement are waived and will
not be addressed on appeal.”); Pa. R.A.P. 1925(b)(4)(vii).
In any event, contrary to Interboro’s assertion, the trial court’s supported findings reveal
that the bags Interboro actually delivered to the Township after execution of the Agreement,
were inferior in thickness to the bags required under the specifications in the RFP and to the
sample bags Interboro provided to the Township. F.F. Nos. 45-50; Tr. Ct., Non-Jury Tr., Notes
of Testimony (N.T.), 4/4/17, at 153-55, 174-75, 198-99, 239-41; N.T., 4/5/17, at 4-5; Ex. D-34.
Thus, Interboro’s argument, that it had reasonable grounds to believe its non-conforming tender
would be acceptable based on the waiver letter and the Sample Bag Compliance letter, lacks
record support.
13
from the seller.” Pursuant to 13 Pa. C.S. §2712(b), “[t]he buyer may recover from
the seller as damages the difference between the cost of cover and the contract
price, together with any incidental or consequential damages ….”
Here, the trial court determined, the Township purchased replacement
or “cover” trash bags from Central Poly as a result of Interboro’s breach. Concl. of
Law No. 16. The trial court determined the Township suffered losses in the
amount of $1,960 to purchase the replacement trash bags from Central Poly.
Pursuant to Section 9(A)(3)(A)(3) of the Agreement and 13 Pa. C.S. §2712(b),
Interboro was obligated to pay the $1,960 incurred by the Township. Further, the
trial court determined, pursuant to Sections 9(A)(3)(A)(1) and 10(L) of the
Agreement, the Township was entitled to reasonable attorney fees and costs.
Interboro filed a motion for post-trial relief, which the trial court
denied. Additionally, the Township filed a petition for attorney fees and costs,
which the trial court granted.
Interboro filed a notice of appeal.3 The trial court directed Interboro
to file a concise statement of the errors complained of on appeal, which it did. The
trial court subsequently issued a thoughtful and thorough opinion pursuant to Pa.
3
Interboro filed its notice of appeal to the Superior Court, which transferred the appeal to
this Court.
14
R.A.P. 1925(a) in which it responded to the numerous issues raised in Interboro’s
1925(b) Statement. This matter is now before us for disposition.4
4
As a threshold procedural issue, the Township argues Interboro’s single notice of appeal
from the trial court’s two orders, the order denying Interboro’s post-trial motions and the order
awarding the Township attorney fees and costs, should be quashed. It asserts this Court holds it
is improper to appeal multiple orders through a single notice of appeal.
“Under our Appellate Rules, an appeal in a civil case in which post-trial motions are filed
lies from the entry of judgment.” K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003). Although an
appeal from an order denying post-trial motions is interlocutory, see Pa. R.A.P. 301(a), (c), (d),
Note, where judgment is subsequently entered, the appeal is “treated as filed after such entry and
on the date thereof.” Pa. R.A.P. 905(a); see K.H.
Further, the Note to Pa. R.A.P. 341 states (with emphasis added):
A party needs to file only a single notice of appeal to secure review
of prior non-final orders that are made final by the entry of a final
order, see [K.H.] (following trial); Betz v. Pneumo Abex LLC, 44
A.3d 27, 54 (Pa. 2012) (summary judgment). Where, however,
one or more orders resolves issues arising on more than one docket
or relating to more than one judgment, separate notices of appeal
must be filed. Commonwealth v. C.M.K., 932 A.2d 111, 113 &
n.3 (Pa. Super. 2007) (quashing appeal taken by single notice of
appeal from order on remand for consideration under Pa.R.Crim.P.
607 of two persons’ judgments of sentence).
In addition, the Note to Pa. R.A.P. 1701 states (with emphasis added):
The Supreme Court has held that, so long as a motion for
attorneys’ fees has been timely filed, a trial court may act on that
motion under subdivision (b)(1) even after an appeal has been
taken. Samuel-Bassett v. Kia Motors Am., Inc., [34 A.3d 1, 48
(Pa. 2011)]. Thus, unlike the court actions discussed in
[Pennsylvania Industrial Energy Coalition v. Pennsylvania Public
Utility Commission, 653 A.2d 1336, 1344-45 (Pa. Cmwlth. 1995),
aff’d, [670 A.2d 1152 (Pa. 1996)], an award of attorneys’ fees
constitutes a separately appealable order that would be reviewable
upon [the] filing of a timely separate notice of appeal, measured
from the date the fee award order was entered.
Further, in M.R. Mikkilineni v. Amwest Surety Insurance Co., 919 A.2d 306, 311
(Pa. Cmwlth. 2007), this Court explained (with emphasis added):
(Footnote continued on next page…)
15
(continued…)
In [General Electric Credit Corp. v. Aetna Casualty &
Surety Co., 263 A.2d 448 (Pa. 1970)], our Supreme Court
reviewed the propriety of filing one appeal from multiple
judgments. There, the plaintiff corporation filed an action against
seven insurance companies to recover damages sustained in a fire.
A jury returned a verdict in favor of the plaintiff corporation
against five of the seven defendants; two defendants were found
not liable. After post-trial motions were denied, separate
judgments were entered as to each defendant. However, the
plaintiff corporation filed one notice of appeal as to all seven
defendants.
Relevant for current purposes, the Court considered the
appeal from two orders denying post-trial relief against the
exonerated defendants. Although the Court ultimately disposed of
the appeal on the merits, it recognized the established principles
that ‘[t]aking one appeal from several judgments is not acceptable
practice and is discouraged’ and that ‘a single appeal is incapable
of bringing on for review more than one final order, judgment or
decree ….’ [Id. at 452].
This is by no means an inflexible rule. A court may refrain
from quashing an appeal in the interests of judicial economy. Id.
Nevertheless, a court will quash an appeal where review will not
provide a meaningful remedy. Id.
Here, the trial court issued its initial decision in favor of the Township on the claims
raised in Interboro’s complaint and the Township’s counterclaim in late-August 2017. Interboro
filed post-trial motions, which the trial court denied by order dated December 27, 2017. On the
same date, the trial court entered a separate order granting the Township’s petition for attorney
fees and costs. Thereafter, on January 9, 2018, the trial court entered judgment on its decision on
the merits, awarding the Township $1,960 in damages. On January 26, 2018, the trial court
entered judgment on its decision granting the Township’s petition for attorney fees and costs.
All of these orders and judgments were entered on the same docket. On January 26, Interboro
filed a notice of appeal “from the Orders of the Honorable Allison Bell Royer entered on August
28, 2017 and the two Orders of The Honorable Allison Bell Royer entered on December 27,
2017 [(denying Interboro’s post-trial motions and granting the Township’s petition seeking an
award of attorney fees and costs)].” Reproduced Record at 1268a.
Although Interboro should have filed separate notices of appeal from the trial court’s
entry of judgment on its decision on the merits and the trial court’s order granting the
Township’s petition for an award of attorney fees and costs, we may refrain from quashing the
appeal in the interests of judicial economy. Mikkilineni; see G. Ronald Darlington et al.,
(Footnote continued on next page…)
16
II. Issues
On appeal, Interboro raises five issues, with several sub-issues. More
specifically, Interboro asserts: (1) it performed its obligations under the contract;
(2) it made good faith offers to cure the defective tender, which the Township
wrongfully rejected5; (3) the Township breached the contract and violated public
(continued…)
PENNSYLVANIA APPELLATE PRACTICE §512:2 (2017-2018 ed.) (“Pennsylvania’s appellate courts
have uniformly and traditionally discouraged the taking of one appeal from several orders, but
have, pursuant to the Supreme Court’s decision in General Electric Credit Corporation, refrained
from quashing such appeals.”) (footnote omitted). Moreover, in both its main brief and its reply
brief Interboro presents no developed challenge to the trial court’s award of attorney fees and
costs. Instead, Interboro’s briefs challenge the trial court’s decision on the merits, and it
essentially asserts that, if this Court reverses the trial court’s decision on the merits, it should also
reverse the trial court’s award of attorney fees and costs. Thus, Interboro only presents a
developed challenge to the trial court’s decision on the merits, from which it timely appealed.
Thus, we decline to quash Interboro’s notice of appeal.
5
At oral argument before this Court, Interboro advanced a new, different argument on
this issue. It asserted that the trial court erred in failing to recognize that the Township accepted
Interboro’s offer to cure the defective tender. Contrary to this new assertion, the trial court’s
supported findings and determinations reveal that:
52. On or about December 15, 2013, a conference call was held
among [Interboro’s President], [the Township Manager], and the
Township Solicitor wherein the Township told [Interboro’s
President] that Interboro could cure the default by either providing
bags that conformed to the RFP or providing bags that conformed
to the sample bags. (Exhibit P-20; N.T. 4/5/17 at 56-59).
53. [Interboro’s President] did not offer to perform either of the
proposed cure methods but instead offered to provide a bag that he
insisted was better than the sample bags. (N.T. 4/5/17 at 59-60).
Tr. Ct. Dec., 8/28/17, Findings of Fact (F.F.) No. 52-53 (emphasis added). Further, the trial
court explained:
The Township provided Interboro with the opportunity to cure by
either providing bags that conformed to the RFP or at least by
(Footnote continued on next page…)
17
bidding law by failing to re-bid the contract before awarding it to Central Poly; (4)
the trial court erred by admitting and excluding vital evidence; and (5) based on the
trial court’s findings, the trial court erred in concluding there was a meeting of the
minds.
III. Discussion
Following a non-jury trial, this Court’s review is limited to
determining whether the trial court’s findings are supported by competent
evidence, and whether the trial court committed error in the application of the law.
(continued…)
providing bags that conformed to the sample bags. (Exhibits P-16,
P-20; N.T. 4/5/17 at 56-59). Interboro, however, did not offer to
perform either of the proposed cure methods but instead counter-
offered to provide a bag that [Interboro’s President] insisted was
better than the sample bags. (N.T. 4/5/17 at 59-60, 93-94). There
is no support for Interboro’s argument that it was permitted to cure
by providing a so-called better bag. The Township provided
Interboro with two reasonable options for curing the defective
delivery, neither of which Interboro performed. …
[T]his Court agrees that the testimony supports the statement that
during the December 15, 2013 conference call the Township told
[Interboro’s President] that Interboro could cure the default by
either providing bags that conformed to the RFP or the sample
bags. (Exhibit P-20; N.T. 4/5/17 at 56-59). … [Interboro’s
President] did not offer to perform either of the proposed cure
methods, but instead offered to provide a bag that in his mind was
better than the sample bags. (N.T. 4/5/17 at 59-60). The
Township was certainly not required to accept whatever type of
bags Interboro felt like supplying after ignoring the RFP.
Tr. Ct., Slip Op., 3/26/18, at 15, 21 (emphasis added). This Court cannot disturb the fact-finder’s
supported determinations, which arise from its resolution of evidentiary conflicts and issues of
credibility. Commonwealth v. Parente, 956 A.2d 1065 (Pa. Cmwlth. 2008).
18
Commonwealth v. Parente, 956 A.2d 1065 (Pa. Cmwlth. 2008). As a reviewing
court, we may not reweigh the evidence or substitute our judgment for that of the
fact-finder. Id. The fact-finder is free to believe all, part or none of the evidence
presented. Id.
After reviewing the record, the parties’ briefs, and the law in this area,
we see no need to elaborate on the trial court’s thorough and thoughtful opinions.
The issues presented were ably resolved in the comprehensive opinions of the
Honorable Allison Bell Royer. Therefore, we affirm on the basis of the trial
court’s opinions in the matter of Interboro Packaging Corporation v. West
Whiteland Township (Dkt. No. 2014-02781-CT, filed August 28, 2017 and March
26, 2018) (C.P. Chester).
ROBERT SIMPSON, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Interboro Packaging Corporation, :
Appellant :
: No. 473 C.D. 2018
v. :
:
West Whiteland Township :
ORDER
AND NOW, this 4th day of January, 2019, the order of the Court of
Common Pleas of Chester County is AFFIRMED upon the opinions of the
Honorable Allison Bell Royer in Interboro Packaging Corporation v. West
Whiteland Township (Dkt. No. 2014-02781-CT, filed August 28, 2017 and March
26, 2018) (C.P. Chester).
ROBERT SIMPSON, Judge
| {
"pile_set_name": "FreeLaw"
} |
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3275
(D.C. No. 6:12-CR-10174-JTM-1)
PHILIP ANDRA GRIGSBY, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
_________________________________
Philip Grigsby, a federal prisoner proceeding pro se,1 appeals the district
court’s order denying his request to modify an order prohibiting him from contacting
his children. We conclude that the district court acted well within its discretion.
Accordingly, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment isn’t binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
1
We liberally construe pro se pleadings, but we won’t act as Grigsby’s
advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Background
Grigsby pleaded guilty in 2013 to nine charges related to the production and
possession of child pornography and one charge of being a felon in possession of a
firearm. The district court sentenced Grigsby to 260 years in prison. At the request of
their mother, the district court included two separate provisions in its judgment
prohibiting Grigsby from contacting his two children—one of whom was a victim of
Grigsby’s crimes. The district court imposed one of these provisions as a special
condition of supervised release and the other as a standalone order accompanying
Grigsby’s prison sentence.
On direct appeal, Grigsby only challenged the substantive reasonableness of
his sentence. We affirmed. See United States v. Grigsby, 749 F.3d 908, 908–09 (10th
Cir. 2014). Grigsby has since unsuccessfully filed multiple 28 U.S.C. § 2255 motions
to vacate his sentence. See United States v. Grigsby, 715 F. App’x 868, 869 (10th
Cir. 2018) (unpublished). Late last year, Grigsby filed a motion in district court
requesting that it modify the order preventing him from contacting his children while
in prison. Grigsby explained that he was five years into his sentence and had
completed a number of psychological, vocational, and religious programs. In light of
his progress, he asked the district court to modify the order to allow him to
communicate with his children under the Bureau of Prison’s supervision.
The district court commended Grigsby on his progress but concluded that it
wasn’t “appropriate to remove the no[-]contact order.” R. 94. The district court
elaborated that Grigsby didn’t “present any evidence that his participation in the
2
programs [was] to the point where his treatment providers [were] recommending
contact with his children.” Id. Moreover, it explained that Grigsby didn’t “present
any information showing that contact with his children would be in their best
interest.” Id. Grigsby appeals.
Analysis
Initially, to ensure that the district court had jurisdiction to hear Grigsby’s
motion to modify, we must resolve how to classify that motion. The district court
didn’t specify how it interpreted the motion, but the parties treat it as a motion to
modify Grigsby’s conditions of supervised release. See 18 U.S.C. § 3583(e). Yet
Grigsby makes clear in his motion and his briefing on appeal that he’s challenging
the district court’s order that he not contact his children while in custody—that is,
he’s challenging the district court’s standalone order instead of the condition of
supervised release. And because the plain language of § 3583 deals only with
conditions of “supervised release after imprisonment,” it doesn’t govern the no-
contact order that Grigsby challenges. § 3583 (emphasis added).
As this is not a § 3583 motion, it must be one of two things: (1) a second or
successive § 2255 motion, or (2) a Federal Rule of Civil Procedure 60(b) motion
seeking relief from a civil judgment. We conclude that Grigsby’s motion is the latter.
The district court’s no-contact order is a civil injunction pursuant to its ancillary
jurisdiction—not a part of Grigsby’s sentence that he must attack under § 2255.2 See
2
If the motion were the former, then the district court would have lacked
jurisdiction to rule on it because Grigsby didn’t seek our permission to file a second
3
United States v. Morris, 259 F.3d 894, 900–01 (7th Cir. 2001) (upholding order
forbidding defendant from contacting child victim as exercise of district court’s
inherent power to protect administration of justice in criminal matters); cf. United
States v. Wingfield, 822 F.2d 1466, 1470 (10th Cir. 1987) (explaining that district
courts exercising criminal jurisdiction have ancillary jurisdiction over the “case or
controversy in its entirety”). Accordingly, we read Grigsby’s motion as a motion for
relief from judgment pursuant to Rule 60(b)(5), which allows relief from a judgment
when “applying it prospectively is no longer equitable.” See United States v.
Holland, 214 F.3d 523, 526 (4th Cir. 2000) (explaining ancillary motion in criminal
case should be treated as civil if it concerns private injury instead of guilt and
punishment); cf. United States v. Morales, 807 F.3d 717, 722 (5th Cir. 2015) (treating
criminal defendant’s post-conviction motion to modify discovery protection order as
civil motion for purpose of Federal Rule of Appellate Procedure 4).
We review the denial of a Rule 60(b) motion for abuse of discretion and
reverse only “if a definite, clear[,] or unmistakable error occurred below.” Jackson v.
Los Lunas Cmty. Program, 880 F.3d 1176, 1191 (10th Cir. 2018) (quoting Zurich N.
Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)). Grigsby first argues
that the district court should have granted him relief because he has made substantial
progress towards his rehabilitation in prison. We cannot conclude that the district
or successive § 2255 motion. See § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th
Cir. 2008) (“A district court does not have jurisdiction to address the merits of a
second or successive § 2255 . . . claim until this court has granted the required
authorization.”).
4
court unmistakably erred when it determined that Grigsby’s progress doesn’t warrant
modifying the no-contact order. Given the severity of Grigsby’s crimes,3 it was
reasonable for the district court to require more concrete evidence that contact
between Grigsby and his children would be in the children’s best interest before
modifying the no-contact order.4
Grigsby next argues that the no-contact order is an unconstitutional restraint
on his right to familial association. But Rule 60(b) affords him no relief on that
ground. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)
(explaining that Rule 60(b) relief may not be granted on arguments and supporting
facts available at time of judgment). Grigsby should have raised this argument on
direct appeal. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000) (“A Rule 60(b) motion is not intended to be a substitute for a direct appeal.”).5
Grigsby also argues that his mother has been prevented from seeing his
children (her grandchildren). But the district court didn’t unmistakably err by
3
In affirming Grigsby’s sentence on direct appeal, “[w]e decline[d] to recount
the heinous facts underlying [his] convictions.” Grigsby, 749 F.3d at 909 n.2. We
likewise decline to do so here. But we note that the district court gave Grigsby the
statutory maximum prison sentence “because, among other things, his crimes
involved (1) a family member who had not attained the age of twelve years and
(2) material that portrayed sadistic or masochistic conduct or other depictions of
violence.” Id. at 909 & n.2.
4
Even if we interpreted this as a § 3583(e) motion, we would agree with the
government that the district court didn’t abuse its discretion and reach the same
conclusion. See United States v. Begay, 631 F.3d 1168, 1170 (10th Cir. 2011)
(reviewing § 3583(e) motion for abuse of discretion).
5
As the government argues, Grigsby also couldn’t raise this argument in a
§ 3583(e) motion. See United States v. Lussier, 104 F.3d 32, 35 (2d Cir. 1997)
(holding that legality of condition of supervised release may only be challenged on
direct appeal or as collateral attack under § 2255).
5
declining to amend the no-contact order on these grounds. The no-contact order only
applies to Grigsby—not his mother. Thus, this alleged inequity doesn’t stem from the
district court’s order, and modifying the order wouldn’t alleviate it. Accordingly, we
affirm the district court’s order denying Grigsby’s request to modify the no-contact
order.
As a final matter, Grigsby asks us in his reply brief to strike the government’s
brief because it includes a statement of the issues, a statement of the case, and a
statement of the standard of review, all of which Grigsby says are unnecessary under
Federal Rule of Appellate Procedure 28. See Fed. R. App. P. 28(b) (specifying that
appellees’ briefs need not contain statements of issues, case, or standard of review
“unless the appellee is dissatisfied with the appellant’s statement”). We interpret
Grigsby’s reply brief as a motion to strike, which we deny. Rule 28(b) merely
clarifies that appellees aren’t required to include these statements in their briefs; it
doesn’t forbid them from doing so.
Entered for the Court
Nancy L. Moritz
Circuit Judge
6
| {
"pile_set_name": "FreeLaw"
} |
Filed 7/21/14 P. v. Burrough CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B247287
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA120802)
v.
NYKAZA DEWHITE BURROUGH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin
Filer, Judge. Affirmed.
Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Pamela C.
Hamanaka, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Nykaza Dewhite Burrough was convicted by a jury of attempted robbery and
misdemeanor battery. On appeal Burrough contends the trial court erred in admitting
evidence of a prior uncharged robbery, the prosecutor committed misconduct on multiple
instances during closing argument and the court misunderstood the scope of its discretion
in setting the amount of the restitution fine. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information charged Burrough with attempted first degree robbery of a public
1
transit operator (Pen. Code, §§ 211, 664), attempted carjacking (§§ 215, subd. (a), 664)
and misdemeanor battery (§ 243.3). It was specially alleged Burrough had suffered two
prior convictions for a serious or violent felony under the three strikes law (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i)) and two prior serious felony convictions (pleaded and
tried together) within the meaning of section 667, subdivision (a)(1). Burrough pleaded
not guilty and denied the special allegations.
2. Trial
According to the evidence at trial, on November 7, 2011 Burrough boarded a bus
in Compton operated by the Los Angeles County Metropolitan Transit Authority. At the
end of the route, after all the other passengers had left, Burrough approached Oscar
Mayorga, the driver, and said, “Do me a favor.” “Let me have money.” When Mayorga
said he did not carry money with him, Burrough persisted, demanding “Let me see your
pocket.” Burrough pushed Mayorga, held him down so he could not move and
demanded, “Let me have your wallet.” Mayorga refused. Burrough then tried to reach
into Mayorga’s right rear pants pocket. Finding nothing in the pocket, Burrough again
asked, “Where’s the money? Where’s your wallet?” Frustrated, Burrough then said he
was going to take the bus and drive it away. As Burrough tried to sit in the driver’s seat,
Mayorga flipped a switch disabling the bus. Mayorga quickly got out of the bus and
called the Los Angeles County Sheriff’s Department. When sheriff’s deputies arrived,
1
Statutory references are to the Penal Code unless otherwise indicated.
2
they found Burrough in the driver’s seat of the bus trying to start the bus. A video
recording of the incident from a surveillance camera installed in the bus was played for
the jury.
The prosecutor, over Burrough’s objection, introduced evidence that in September
2001 Burrough had approached the driver of an ice cream truck, pointed something at
him that appeared to be a gun and demanded money. The driver gave him $400. After a
pretrial hearing pursuant to Evidence Code section 402, the court ruled the evidence was
admissible to show intent and its probative value was not outweighed by any prejudicial
effect. The court also provided a limiting instruction to the jury on its use of this
2
evidence.
Burrough did not testify. His theory of defense was that he had been under the
influence of several drugs at the time of the offense and could not have formed the
specific intent necessary to find him guilty of attempted robbery or carjacking.
Toxicology tests showed Burrough had amphetamine, cocaine and marijuana in his
system at the time of the incident.
Burrough also argued he was mentally ill and, absent proper medication, unable to
form the specific intent to commit the offenses. He presented evidence that, while at the
hospital following the incident, a consulting psychiatrist prescribed an antipsychotic
medication and a mood stabilizer to calm Burrough’s agitation. Burrough argued such
powerful medicines would not have been prescribed absent an indication and history of
some mental illness. Sheriff’s deputies who saw Burrough at the hospital several days
2
The court instructed the jury in accordance with CALCRIM No. 375 that, if it
found by a preponderance of the evidence that Burrough had committed the prior
uncharged offense, it may consider the evidence solely for the purpose of deciding
whether Burrough “acted with the intent to commit a robbery in this case (OR) [¶] [t]he
defendant’s alleged actions were the result of mistake or accident. [¶] In evaluating this
evidence, consider the similarity or lack of similarity between the uncharged offenses and
charged offenses. [¶] Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime.”
3
later found him to be acting disoriented and paranoid. Burrough asked them, “Did you
catch the guys who were chasing me?”
Burrough’s brother testified Burrough had suffered with some form of unidentified
mental illness since he was a child. He became quickly agitated and paranoid when he
did not take his medication. Burrough’s counsel also emphasized portions of the video
recording showing Burrough walking up and down the aisle of the bus several times prior
to the robbery showed Burrough apparently agitated each time the bus stopped. He
argued the evidence supported his theory Burrough was mentally ill and paranoid.
3. The Verdict and Sentence
The jury acquitted Burrough of attempted carjacking; it found him guilty of
attempted robbery and misdemeanor battery. In a bifurcated bench trial the court found
the special allegations true. The court dismissed one of the two prior serious felony
convictions pursuant to section 1385 for the purpose of sentencing under the three strikes
law only, sentenced Burrough to nine years in state prison and imposed statutory fees,
fines and assessments.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of
Burrough’s Prior, Uncharged Robbery
a. General principles governing evidence of uncharged misconduct
California law has long precluded use of evidence of a person’s character (a
predisposition or propensity to engage in a particular type of behavior) as a basis for an
inference that he or she acted in conformity with that character on a particular occasion:
3
Evidence Code section 1101, subdivision (a), “prohibits admission of evidence of a
person’s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.”
3
Evidence Code section 1101, subdivision (a), provides, “Except as provided in this
section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.”
4
(People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Indeed, “‘[t]he rule excluding
evidence of criminal propensity is nearly three centuries old in the common law.’”
(People v. Falsetta (1999) 21 Cal.4th 903, 913.)
4
Evidence Code section 1101, subdivision (b), clarifies, however, that this rule
“does not prohibit admission of evidence of uncharged misconduct when such evidence is
relevant to establish some fact other than the person’s character or disposition.” (Ewoldt,
supra, 7 Cal.4th at p. 393; accord, People v. Jones (2013) 57 Cal.4th 899, 930; People v.
Edwards (2013) 57 Cal.4th 658, 711; see People v. Falsetta, supra, 21 Cal.4th at p. 914
[“the rule against admitting evidence of the defendant’s other bad acts to prove his
present conduct was subject to far-ranging exceptions,” citing Evid. Code, § 1101, subd.
(b)].) “‘[E]vidence of uncharged crimes is admissible to prove, among other things, the
identity of the perpetrator of the charged crimes, the existence of a common design or
plan, or the intent with which the perpetrator acted in the commission of the charged
crimes [citation] . . . only if the charged and uncharged crimes are sufficiently similar to
support a rational inference of identity, common design or plan, or intent. . . .’” (People
v. Carter (2005) 36 Cal.4th 1114, 1147.) The least degree of similarity between the
uncharged act and the charged offense is required to prove intent. (Ewoldt, at p. 402;
Jones at p. 930.) “For this purpose, the uncharged crimes need only be ‘sufficiently
similar [to the charged offenses] to support the inference that the defendant . . . probably
harbor[ed] the same intent in each instance.’” (People v. Kipp (1998) 18 Cal.4th 349,
371; accord, Ewoldt, at p. 403.)
In addition to its relevance to an issue other than predisposition or propensity, to
be admissible under Evidence Code section 1101, subdivision (b), the probative value of
4
Evidence Code section 1101, subdivision (b), provides, “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.”
5
the evidence of the uncharged crimes “must be substantial and must not be largely
outweighed by the probability that its admission would create a serious danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (People v. Kipp, supra,
18 Cal.4th at p. 371; accord, People v. Carter, supra, 36 Cal.4th at p. 1149.)
The trial court’s determination of the admissibility of evidence of uncharged
offenses is reviewed for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 369
[“[o]n appeal, the trial court’s determination of this issue, being essentially a
determination of relevance, is reviewed for abuse of discretion”].) Likewise, whether the
probative value is outweighed by the prejudicial effect of the evidence is subject to
abuse-of-discretion review. (People v. Davis (2009) 46 Cal.4th 539, 601; People v. Gray
(2005) 37 Cal.4th 168, 202.)
b. The uncharged robbery was admissible to prove intent
Burrough contends evidence of his uncharged robbery of an ice cream truck driver
a decade earlier was too remote and too dissimilar—it involved a gun and no evidence of
drug use or mental instability—to be relevant to the issue of his intent during the instant
offense. As the trial court recognized in admitting the evidence, however, Burrough’s
5
intent at the time of the offense was the critical issue in the case. The defense theory
was that Burrough’s crime was driven by mental illness and drug consumption. Evidence
of the uncharged robbery against another commercial driver years earlier was offered in
direct contravention of that position, suggesting that in both instances Burrough intended
to commit a robbery against the driver of a commercial vehicle. While not identical, the
offenses were sufficiently similar to meet the relatively minimal standard required by
Evidence Code section 1101, subdivision (b). (See Ewoldt, supra, 7 Cal.4th at p. 403;
5
At the Evidence Code section 402 hearing, the court stated, “We’re going to have
two extreme versions, at least as far as mental requirement, [of] what was going on and
what was happening at the time. The People are going to say he certainly intended to
take the bus and commit[] the thefts, and obviously there’s going to be a different
argument from the defense. . . . [W]hat was going on in his head, what his intentions
were and what he was intending to do at the time he was acting, is going to be the, if not
one of the key issues for this jury.”
6
People v. Kipp, supra, 18 Cal.4th at p. 371.) The trial court’s determination such
evidence was admissible and not sufficiently remote as to be more prejudicial than
probative was well within its discretion. (See People v. Cole (2004) 33 Cal.4th 1158,
1194; People v. Whisenhunt (2008) 44 Cal.4th 174, 205 [prior uncharged violent act
between seven and 10 years earlier was admissible to show intent; “we cannot conclude
that the passage of time significantly lessened the probative value of the evidence”].)
2. The Prosecutor’s Comments During Closing Argument Do Not
Compel Reversal
a. Governing law on prosecutorial misconduct
“‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution only when it comprises a pattern of conduct so “egregious that it infects the
trial with such unfairness as to make the conviction a denial of due process.”’”
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it involves “‘“the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.”’”’” (People v. Navarette (2003) 30 Cal.4th 458, 506; accord, People v. Morales
(2001) 25 Cal.4th 34, 44.) To determine whether misconduct has occurred, the reviewing
court evaluates how the remarks would, or could, have been understood by a reasonable
juror. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1302 [“[i]f there is a
reasonable likelihood that the jury would understand the prosecutor’s statements as an
assertion that defense counsel sought to deceive the jury, misconduct would be
established”].)
b. “I’m in the truth business” — Burrough’s failure to object to the
comment results in forfeiture of that argument on appeal
At the beginning of closing argument the prosecutor, Adewale Oduye, stated, “[I]t
is my burden to prove this case to you beyond a reasonable doubt, and that’s a burden
that I do not shy away from. Because when people ask me what business I’m in, I tell
them that I’m in the truth business. That’s my business, . . . to present the evidence and
7
present the truth to you. That’s the business I’m in, and part of that is to present the law
to you.”
Burrough contends the comment about being in the “truth business” amounted to
improper vouching for the veracity of the People’s witnesses and improper expression of
the prosecutor’s belief in their credibility. (See People v. Turner (2004) 34 Cal.4th 406,
432-433 [“A prosecutor may make ‘assurances regarding the apparent honesty or
reliability of’ a witness ‘based on the “facts of the record and the inferences reasonably
drawn therefrom.”’ [Citation.] But a ‘prosecutor is prohibited from vouching for the
credibility of witnesses or otherwise bolstering the veracity of their testimony by
referring to evidence outside the record.’”]; People v. Martinez (2010) 47 Cal.4th 911,
959 [same].) We agree the comment was improper, but Burrough did not object at trial;
and there is no indication an objection would not have been sustained or that a clarifying
instruction would not have cured any harm that may have occurred. Accordingly,
Burrough has forfeited this claim on appeal. (People v. Redd (2010) 48 Cal.4th 691, 734
[“‘[t]o preserve a claim of prosecutorial misconduct for appeal, a defendant must object
and seek an admonition if an objection and admonition would have cured the harm’”];
People v. Jones (2003) 29 Cal.4th 1229, 1260.)
c. Prosecutor’s remark concerning nontestifying defendant’s demeanor
Arguing Burrough had not been mentally ill during the incident, the prosecutor
told the jury to consider Burrough’s demeanor as he sat in court: “He’s not jumping up
and down. So, is he on his meds now? And if he is, what would explain when he talked
to the cops when he’s in the hospital for four days. All of a sudden he’s acting
paranoid?” Burrough contends this statement was improper for two reasons: (1) It
constituted a reference to facts not in evidence; and (2) it amounted to a comment on his
failure to testify in violation of Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229,
14 L.Ed.2d 106].
Unless a defendant puts his or her courtroom behavior at issue, it is improper
during the guilt phase of a trial for the prosecutor to comment on the demeanor of a
nontestifying defendant. (People v. Blacksher (2011) 52 Cal.4th 769, 840 [“[i]t is
8
misconduct, however, for a prosecutor to comment on a nontestifying defendant’s
courtroom demeanor or behavior during the guilt phase of the trial”]; People v. Smith
(2007) 40 Cal.4th 483, 524 [same]; People v. Heishman (1988) 45 Cal.3d 147, 197
[same]; People v. Garcia (1984) 160 Cal.App.3d 82, 91 [evidence of nontestifying
defendant’s demeanor is irrelevant since demeanor evidence “is only relevant as it bears
on the credibility of a [testifying] witness”]; cf. People v. Duncan (1991) 53 Cal.3d 955,
977 [prosecutor did not commit misconduct by briefly commenting on nontestifying
defendant’s calm demeanor in courtroom; “prosecutor was entitled to point out that
modest behavior in the courtroom was not inconsistent with violent conduct under other
less structured and controlled circumstances”].)
Although Burrough did not object to the comment when made, the court inserted
its own objection at a sidebar conference, telling the prosecutor, “[W]hen you said the
best evidence is to look at the defendant in court[,] [h]e hasn’t been acting out, he hasn’t
been doing anything. That is not evidence, and that clearly I think was an improper
statement because the jury cannot consider the defendant’s conduct sitting there in court
as evidence. That’s evidence against him which is what you seem to invite them to do.
And the other thing that concerns me is you said this refutes his claim he’s taking
medications when, in fact, you know he’s being medicated and that’s why he’s sitting
there as docile as he is.” The court told the prosecutor it would consider how best to
remedy any harm caused by the remark. Soon thereafter, the court provided a curative
instruction: “Let me just remind you that evidence comes from this witness stand and
[the] witness stand only and the attorneys’ conduct, Mr. Burrough’s conduct in the
courtroom, my staff’s conduct in the courtroom, my conduct in the courtroom, that’s not
6
evidence. Evidence comes only from this witness stand.”
Considering the record as a whole, prosecutor Oduye’s comment, although plainly
improper, does not compel reversal. The remark, reasonably interpreted, amounted to a
6
The court denied a subsequent motion for mistrial by defense counsel, concluding
its curative instruction had remedied any harm likely to have resulted from the comment.
9
comment on facts “outside the record,” that is, facts not subject to consideration by the
jury. Nonetheless, the court cured any associated harm when it instructed the jury
specifically that Burrough’s conduct in the courtroom was not evidence and could not be
considered by them in determining whether he was guilty of the crimes charged. (See
People v. Delgado (1993) 5 Cal.4th 312, 331 [jury presumed to follow court’s
instructions]; People v. Ochoa (1998) 19 Cal.4th 353, 427 [when claim of misconduct is
based on arguments or comments prosecutor made to the jury, the question of prejudice is
determined by “‘whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion’”]; People v.
Morales (2001) 25 Cal.4th 34, 47.) The court’s prompt, diligent and thorough actions
amply dispelled any possible prejudice that may have otherwise resulted from the
prosecutor’s remark.
Burrough alternatively contends the statement concerning his courtroom demeanor
amounted to an improper comment on his failure to testify in violation of Griffin v.
California, supra, 380 U.S. at pages 613 to 614 (state may not use defendant’s silence as
evidence of his guilt). (See People v. Garcia, supra, 160 Cal.App.3d 82, 93.) Burrough
did not object on this ground, nor was it raised during the sidebar with the court when it
sua sponte expressed its concern. Accordingly, it has been forfeited. (People v. Mincey
(1992) 2 Cal.4th 408, 446 [failure to object on grounds of Griffin error forfeits argument
on appeal].) The argument is also without merit. Oduye’s comment, although an
improper invitation for the jury to consider facts not in evidence, did not in any way
implicate Burrough’s election not to testify; Burrough does not cite any relevant authority
to suggest otherwise.
d. Prosecutor’s remark suggesting Burrough failed to prove something
During closing argument the prosecutor argued, “Voluntary intoxication does not
mean let me get on drugs and then I [can] do whatever I want to do and then I can come
to court and say I don’t know what I was doing. That’s not what the law allows for. It
does not allow for that. And like I said before, the question is [Burrough] has to show he
had no idea—” The defense interjected an objection, stating, “I don’t have to show
10
anything.” The court sustained the objection and admonished the jury, “I told you [in my
instructions] which party has the burden of proof.”
Burrough contends the remark improperly shifted the burden of proof to him to
present a defense. That argument, unsuccessful in connection with his motion for
mistrial in the trial court, fails here for the same reason. Although the remark suggested
the defendant bore the burden of proof, the trial court immediately sustained the defense
objection and properly referred the jury to its instructions that the prosecution bore the
burden to prove each element of the offense beyond a reasonable doubt. Any possible
prejudice was promptly and adequately cured.
e. Prosecutor’s remark allegedly denigrating defense counsel
Burrough contends the prosecutor denigrated his defense counsel and accused her
of fabricating a defense when he remarked during closing argument, “What I want you to
think about is the things she’s saying. It’s kind of like when you have—you’re boiling
spaghetti and you throw it on the wall to see if it sticks. She’s throwing everything she
possibly can on the wall to see if it sticks. First, it’s he didn’t form the intent because he
has a mental disease, but wait it could be also that it was because he was on meth and on
weed and on some other drug. Or it could be because the doctor said he did an evaluation
and he spoke to the defendant and the defendant, who is mentally impaired, [and] so-
called out of his mind tells the doctor, doctor, this is my medical history. It all started
when I was nine years old and that’s when my mental disease started. And I suffer from
paranoia, schizophrenia. She’s throwing things to the wall to see if it sticks.” The trial
court overruled Burrough’s objection and reminded the jury, “Keep in mind what the
attorneys say is not evidence. You’re to follow my instructions on the law.”
A prosecutor commits misconduct when he or she disparages defense counsel or
accuses counsel of fabricating a defense without factual support. (See People v. Cash
(2002) 28 Cal.4th 703, 731 [“[i]t is misconduct for the prosecutor in argument to impugn
the integrity of defense counsel or to suggest defense counsel has fabricated a defense”];
People v. Bemore (2000) 22 Cal.4th 809, 846 [same].) The prosecutor’s remarks here
were neither personally disparaging nor suggestive of a fabricated defense. To the
11
contrary, when considered in context, the prosecutor simply highlighted the theories of
the defense—voluntary intoxication and mental illness—and questioned the evidence
supporting them. (See People v. Medina (1995) 11 Cal.4th 694, 759 [prosecutor’s
statement that “‘any experienced defense attorney can twist a little, poke a little, try to
draw some speculation, try to get you to buy something’” was not misconduct; it
suggested neither a fabrication of a defense nor constituted an attack on counsel’s
integrity]; People v. Redd, supra, 48 Cal.4th at p. 735 [comment concerning defense
counsel’s “speculation” was proper comment on evidence or lack thereof].)
In sum, the record demonstrates the prosecutor in closing argument made some
proper remarks, others improper and a few close to the line. More significantly, it shows
a trial court carefully monitoring the proceedings and curing, both sua sponte and
following an objection, any potential for harm. Whether considered separately or
cumulatively, none of the remarks preserved by objection and identified and addressed on
the merits, when viewed together with the trial court’s prompt remedial action, so
infected the trial as to warrant reversal.
3. The Trial Court Did Not Misunderstand Its Discretion To Impose a Lesser
Restitution Fine
Section 1202.4, subdivision (b), requires the court to impose a restitution fine in
every case where a person is convicted of a crime “unless it finds compelling and
extraordinary reasons for not doing so and states those reasons on the record.” At the
time of the offense, subdivision (b)(1) vested the court with the discretion to determine
the amount of the fine, so long as the amount was not less than $200 or more than
7
$10,000. (See Stats. 2011, ch. 45, § 1.) Former subdivision (b)(2) suggested (but did
not require) a calculation to use in setting the fine: “In setting a felony restitution fine,
the court may determine the amount of the fine as the product of two hundred dollars
7
Section 1202.4, subdivision (b), has since been amended to increase the statutory
minimum amount of the mandatory restitution fine from $200 to $240 starting January 1,
2012; to $280, starting January 1, 2013; and to $300, starting January 1, 2014. (See Stats.
2012, ch. 873, § 1.5.)
12
($200) [(the minimum fine pursuant to paragraph (1))] multiplied by the number of years
of imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.” (Ibid.)
After sentencing Burrough to nine years in state prison, the court stated, “There’s
a mandatory restitution fine, $1,800. That’s pursuant to the formula that’s laid out in
Penal Code section 1202.4(b).” The defendant objected but did not direct his objection to
the amount of the fine. The court overruled the objection stating, “I’ve noted that. I’m
going to follow the statute. And I have imposed the minimum of $1,800 that can be
collected from your prison earnings. And there also is a parole revocation fine of $1,800
pursuant to Penal Code section 1202.45. That will be stayed.”
Burrough acknowledges the amount of the fine was statutorily authorized, but
contends the court misunderstood the scope of its discretion to set a lesser fine. The
court, he argues, erroneously believed the statute mandated, rather than authorized, the
$1,800 amount. In fact, the statute permitted the court to select any fine within the $200
to $10,000 range. Although Burrough’s interpretation of former section 1202.4,
subdivision (b)(1) and (2) is correct, his characterization of the record is not. Burrough’s
objection, directed to the imposition of the fine rather than the amount, led the court to
8
explain the fine was mandatory. The court then stated it was electing to proceed in
accordance with the statute. Nothing in this record suggests the court misunderstood its
discretion under former section 1202.4, subdivision (b).
8
If counsel had intended to object to the amount of the fine, it was not
accomplished with the clarity required to preserve that objection for appeal.
13
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
SEGAL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14
| {
"pile_set_name": "FreeLaw"
} |
#27235-rev & rem-LSW
2015 S.D. 56
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
GRANT RUSH, Plaintiff and Appellant,
v.
JULIE RUSH, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
TRIPP COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN F. TRANDAHL
Judge
****
BROOKE D. SWIER SCHLOSS
SCOTT R. SWIER of
Swier Law Firm, Prof. LLC
Avon, South Dakota Attorneys for plaintiff
and appellant.
STEPHANIE E. POCHOP
KELSEA K. SUTTON of
Johnson Pochop & Bartling, LLC
Gregory, South Dakota Attorneys for defendant
and appellee.
****
CONSIDERED ON BRIEFS
ON APRIL 20, 2015
OPINION FILED 07/01/15
#27235
WILBUR, Justice
[¶1.] Grant Rush filed an action for divorce in Tripp County, South Dakota.
The circuit court dismissed the action for lack of personal jurisdiction and,
alternatively, on the basis of the forum non conveniens doctrine. We reverse and
remand.
Background
[¶2.] Julie and Grant Rush were married on January 6, 1990, in
Montgomery County, Pennsylvania. They have two adult sons, both of whom are
alleged to be disabled. Julie, Grant, and their two sons resided together in
Philadelphia, Pennsylvania, until as late as June 29, 2012. Shortly after June 29,
2012, Grant left the marital home without notice to Julie or their children and
moved into his mother’s home in Winner, South Dakota. Julie and the children
continued to reside at the marital home in Pennsylvania.
[¶3.] On July 25, 2012, Julie filed a “Uniform Support Petition” in
Pennsylvania seeking child and spousal support. Pennsylvania law authorizes child
support for disabled adult children. The circuit court in this action stated, “In a
significant difference from South Dakota law, under Pennsylvania law[,] parents
may have an ongoing legal duty to provide child support for an adult child who has
a physical or mental condition at the time the child reaches 18 and that prevents
the adult child from becoming self-supporting[.]” On July 30, 2012, five days after
Julie filed her Uniform Support Petition, Grant filed for a divorce in Tripp County,
South Dakota. Grant alleged that he was a resident of Winner, South Dakota, for
purposes of personal jurisdiction. Grant mailed a copy of the summons and
-1-
#27235
complaint, as well as notices of admission of service, to Julie the same day he filed
for a divorce—July 30, 2012. Julie signed an admission of service on August 17,
2012.
[¶4.] On April 4, 2014, Julie filed a motion to dismiss the divorce action for
lack of personal jurisdiction. The circuit court conducted a hearing on May 6, 2014,
and issued findings of fact and conclusions of law on October 2, 2014. The court
dismissed the divorce action “for lack of jurisdiction and on the grounds of the forum
non conveniens doctrine.” In support of dismissal for lack of personal jurisdiction,
the court found “Grant was unable to credibly establish many of the primary
hallmarks of true South Dakota residency at the time he filed for divorce in this
state.” At the time Grant filed for a divorce on July 30, 2012, Grant did not own any
real property in South Dakota. He did not have a South Dakota issued driver’s
license nor was he registered to vote in South Dakota. There was no evidence that
Grant had any long-term plans to move to South Dakota before he filed for divorce.
He did not advise important creditors, such as his medical care providers, that he
was moving to South Dakota. The financial affidavit he filed with his divorce
complaint indicated he was unemployed at the time he filed for divorce.
Characterizing Grant’s move to South Dakota, the court stated, “Grant’s move . . .
was sudden and part of an ‘escape plan’ that he kept from his wife.”
[¶5.] Furthermore, the circuit court found, “Under the forum non conveniens
doctrine, Pennsylvania is the more appropriate and convenient forum for this
divorce matter.” The court noted that there is “a pending, first-filed family law
action in [Pennsylvania] where there is clear jurisdiction over both parties, and it
-2-
#27235
relates to at least some of the issues that would be addressed in this divorce
proceeding[.]” The court found that private interest and public interest factors
“clearly point in favor of trial in the alternative forum and support the conclusion
that South Dakota is an inconvenient forum for this divorce action.” The court
concluded, “In consideration of justice, fairness and convenience to the parties, the
witnesses and the courts, this [c]ourt is declining to exercise jurisdiction in this
divorce action on the basis of South Dakota’s forum non conveniens doctrine.”
Grant appeals and raises the following two issues for our review:
1. Whether the circuit court erred in dismissing Grant’s
divorce action for lack of personal jurisdiction.
2. Whether the circuit court erred in dismissing Grant’s
divorce action based on the doctrine of forum non
conveniens.
Standard of Review
[¶6.] “We review findings of fact ‘under the clearly erroneous standard of
review.’” Pieper v. Pieper, 2013 S.D. 98, ¶ 12, 841 N.W.2d 781, 785 (quoting
Schieffer v. Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d 627, 633). “The trial court’s
findings of fact are presumed correct and we defer to those findings unless the
evidence clearly preponderates against them.” Parsley v. Parsley, 2007 S.D. 58,
¶ 15, 734 N.W.2d 813, 817 (quoting City of Deadwood v. Summit, Inc., 2000 S.D. 29,
¶ 9, 607 N.W.2d 22, 25). “Conclusions of law, however, are reviewed de novo, with
no deference to the court’s ruling.” Leonhardt v. Leonhardt, 2014 S.D. 86, ¶ 15, 857
N.W.2d 396, 400 (citing Summit, 2000 S.D. 29, ¶ 9, 607 N.W.2d at 25).
-3-
#27235
Analysis
[¶7.] 1. Whether the circuit court erred in dismissing Grant’s
divorce action for lack of personal jurisdiction.
[¶8.] Grant argues that he was a resident of South Dakota at the time he
filed for a divorce in Tripp County, South Dakota, and that the circuit court clearly
erred when it dismissed his divorce action for lack of personal jurisdiction. SDCL
25-4-30 provides:
The plaintiff in an action for divorce or separate maintenance
must, at the time the action is commenced, be a resident of this
state, or be stationed in this state while a member of the armed
services. Subsequently, the plaintiff need not maintain that
residence or military presence to be entitled to the entry of a
decree or judgment of divorce or separate maintenance.
(Emphasis added.)
Commencement of Action
[¶9.] In order for the circuit court to have personal jurisdiction over this
divorce action, Grant must have been a resident of South Dakota “at the time the
action [was] commenced.” Id. An action is commenced in this state when the
summons is served on the defendant. SDCL 15-2-30. Generally, service of process
is made by delivering a copy of the summons to the defendant personally. See
SDCL 15-6-4(d)(8). However, “[n]otwithstanding any other provision of law, a
summons may be served upon a defendant in any action by mailing a copy of the
summons, two copies of the notice and admission of service, conforming
substantially to the form provided for in § 15-6-4(j), and a return envelope, postage
prepaid, addressed to the sender.” SDCL 15-6-4(i). See also Parsley, 2007 S.D. 58,
¶ 22, 734 N.W.2d at 819 (“A summons is properly served upon a defendant in any
-4-
#27235
action by mailing a copy of the summons and two copies of the notice and admission
of service, assuming a copy of the admission of service is signed and returned by the
party being served.”).
[¶10.] Grant filed for a divorce and mailed a copy of the summons, two copies
of the notice and admission of service, and a return envelope, postage prepaid,
addressed to him on July 30, 2012, in compliance with SDCL 15-6-4(i). Julie signed
the admission of service on August 17, 2012. Therefore, this divorce action was
commenced on August 17, 2012—not on July 30, 2012. An action is not commenced
under SDCL 15-6-4(i) when a plaintiff merely mails a copy of the summons and
complaint to the defendant. Instead, an action is commenced either when the
defendant is personally served or the defendant signs the admission of service. See
SDCL 15-2-30 (“An action is commenced as to each defendant when the summons is
served on him . . . .” (emphasis added)).
[¶11.] The plain language of SDCL 15-6-4(i) confirms that Grant’s divorce
action commenced on August 17, 2012. That statute indicates that if the defendant
does not sign the admission of service within 20 days of mailing, the plaintiff must
secure personal service. See SDCL 15-6-4(i) (“The notice and admission of service
shall set forth that the failure to sign and return the admission of service within
twenty days after the date of mailing without good cause will result in the court
ordering the person so served to pay the costs of personal service.” (emphasis
added)). The practical effect of this requirement is that service is not perfected until
-5-
#27235
the defendant signs the admission of service or is personally served. * “We have
recognized that ‘proper service of process is no mere technicality: that parties be
notified of proceedings against them affecting their legal interests is a “vital
corollary” to due process and the right to be heard.’” JAS Enters., Inc. v. BBS
Enters., Inc., 2013 S.D. 54, ¶ 13, 835 N.W.2d 117, 123 (quoting R.B.O. v. Priests of
the Sacred Heart, 2011 S.D. 86, ¶ 7, 807 N.W.2d 808, 810). “Service of process
advises a party that ‘a legal proceeding has been commenced’ and warns ‘those
affected to appear and respond to the claim.’” Id. (quoting R.B.O., 2011 S.D. 86, ¶ 9,
807 N.W.2d at 810). Simply placing the summons and complaint in the mail under
* Other jurisdictions, in construing statutes similar to SDCL 15-6-4(i), have
reached the same conclusion that an action is not commenced by mailing the
summons and complaint. See Young v. Mt. Hawley Ins. Co., 864 F.2d 81, 82
(8th Cir. 1988) (per curiam) (agreeing with the majority position that “if the
acknowledgment form is not returned, the formal requirements of mail
service are not met and personal service must be obtained”); Coons v. St. Paul
Cos., 486 N.W.2d 771, 775 (Minn. Ct. App. 1992) (holding that an action is
not commenced until the defendant acknowledges the receipt of the summons
and complaint); Langowski v. Altendorf, 812 N.W.2d 427, 433 (N.D. 2012)
(“[S]ervice . . . is complete at the time of actual delivery and not when a
summons is placed in the mail[.]”). The Coons decision involved a Minnesota
statute substantially similar to SDCL 15-6-4(i). The court agreed that the
statute “makes it clear that mailing a summons and complaint does not
commence the action.” Coons, 486 N.W.2d at 775 (quoting 1 David Herr &
Roger S. Haydock, Minnesota Practice § 3.3 (1985)). Furthermore, the court
noted that “[b]ecause the defendant is accordingly given the power to let the
statute of limitations run before acknowledging receipt, or even simply to not
acknowledge receipt, service by mail should be avoided at any time near the
end of the period of limitations.” Id. (quoting 1 Herr & Haydock, supra, §
3.3). The court further warned that “[b]ecause effective service under rule
4.05 requires the cooperation of defendants, plaintiffs should secure the
cooperation of defendants before attempting service, or else plaintiffs should
choose another method of service.” Id.
-6-
#27235
SDCL 15-6-4(i) does not notify or warn a defendant of proceedings against him.
Therefore, the circuit court erred when it concluded that the divorce action
commenced when Grant mailed Julie a copy of the summons on July 30, 2012.
Instead, the divorce action was commenced when Julie signed the admission of
service on August 17, 2012. As a result, in order to confer personal jurisdiction on
the circuit court under SDCL 25-4-30, Grant must have been a resident of South
Dakota on August 17, 2012.
Residency
[¶12.] The Legislature has not defined “resident” as it is used in SDCL 25-4-
30. In Parsley, we said that “[i]t follows that the residence must be an actual
residence as distinguished from a temporary abiding place[.]” 2007 S.D. 58, ¶ 17,
734 N.W.2d at 818 (quoting Snyder v. Snyder, 35 N.W.2d 32, 33-34 (Iowa 1948)).
Importantly, the residence “must not be a residence solely for the purpose of
procuring a divorce[.]” Id. (quoting Snyder, 35 N.W.2d at 34); see also Yost v. Yost,
72 N.W.2d 689, 694-95 (Neb. 1955) (recognizing the principle that a plaintiff does
not establish residency for purposes of a divorce action when the sole purpose for
the residency is to obtain the divorce).
[¶13.] In Parsley, we upheld the circuit court’s conclusion that the plaintiff,
Duane Parsley, was a resident of South Dakota. 2007 S.D. 58, ¶ 19, 734 N.W.2d at
818-19. In that case, “[t]he circuit court heard abundant evidence that Duane had
lengthy ties to South Dakota[.]” Id. ¶ 19, 734 N.W.2d at 818. The plaintiff
introduced evidence that he listed Jones County, South Dakota, as his county of
residence when filing federal income tax returns. Id. ¶ 18, 734 N.W.2d at 818.
-7-
#27235
Duane had acquired real property in South Dakota “with intentions of constructing
and establishing a home for his family.” Id. He had registered vehicles in South
Dakota, obtained a South Dakota driver’s license, and registered to vote. Duane
further testified and introduced evidence of his participation in community
activities and organizations in South Dakota. We concluded that these facts
supported the circuit court’s finding of residency and that “there is nothing to
indicate that Duane established this residency for purposes of obtaining a divorce.”
Id. ¶ 19, 734 N.W.2d at 818-19.
[¶14.] Likewise, Grant has demonstrated that he was a resident of South
Dakota on August 17, 2012. Similar to Parsley, Grant obtained a South Dakota
driver’s license on August 3 and registered to vote in the state on August 6. The
record further shows that Grant moved to South Dakota on or around June 29,
2012, and resided in South Dakota for over 45 days before he commenced this
action. Grant began to receive his mail in Winner, South Dakota, on July 1. Grant
obtained a South Dakota telephone number on July 5 and opened a South Dakota
bank account with First Fidelity Bank of Winner and made a deposit on July 9.
Grant also found employment at Community Connections in Winner, South Dakota.
He introduced a copy of his first paycheck from Community Connections for the pay
period of July 24 to August 6.
[¶15.] The circuit court expressed concern that Grant may have attempted to
establish residency for the sole purpose of obtaining a divorce in South Dakota
under more favorable child support laws. Unlike Pennsylvania, South Dakota has
no provision requiring that Grant support his adult children. But, simply because
-8-
#27235
of that fact, Grant should not be prevented from obtaining residency in South
Dakota. There is substantial evidence in the record that Grant established actual
residency in South Dakota by August 17, 2012, for purposes other than obtaining a
divorce. Therefore, the circuit court erred when it concluded that it did not have
personal jurisdiction over the parties in this proceeding.
[¶16.] 2. Whether the circuit court erred in dismissing Grant’s
divorce action based on the doctrine of forum non
conveniens.
[¶17.] Having concluded that the circuit court had personal jurisdiction to
hear the divorce action, we next consider whether the circuit court erred in
dismissing the divorce action under the doctrine of forum non conveniens. The
court stated, “There is a pending, first-filed family law action in that state where
there is clear jurisdiction over both parties, and it relates to at least some of the
issues that would be addressed in this divorce proceeding if it were to be tried in
Tripp County, South Dakota.” Thus, the court concluded, “Under the forum non
conveniens doctrine, Pennsylvania is the more appropriate and convenient forum
for this divorce matter.”
[¶18.] In Lustig v. Lustig, 1997 S.D. 24, ¶ 12, 560 N.W.2d 239, 244, we said
that “[n]o margin within SDCL 15-5-11(3) and [SDCL] 25-4-30.1 grants our courts
the means to dismiss divorce actions, properly commenced first in South Dakota, in
favor of another state’s jurisdiction.” We reaffirmed this conclusion in Langdeau v.
Langdeau, 2008 S.D. 44, ¶ 18, 751 N.W.2d 722, 729. The record is clear that there
is no pending divorce proceeding in Pennsylvania. At most, there is a pending
support action. The rule in Lustig and Langdeau plainly states that “[c]ircuit courts
-9-
#27235
may not refuse to hear divorce proceedings properly commenced first in South
Dakota, in favor of another state’s jurisdiction.” Langdeau, 2008 S.D. 44, ¶ 18, 751
N.W.2d at 729 (emphasis added) (citing Lustig, 1997 S.D. 24, ¶ 14, 560 N.W.2d at
245).
[¶19.] We further reject Julie’s argument that Rothluebbers v. Obee, 2003
S.D. 95, 668 N.W.2d 313, controls our application of the forum non conveniens
doctrine in this case. Julie contends that we should apply Rothluebbers to this case
instead of Lustig and Langdeau. In Rothluebbers, we stated that “the doctrine of
forum non conveniens is alive and well in the State of South Dakota.” Id. ¶ 7, 668
N.W.2d at 317. But Rothluebbers involved a personal injury action rather than a
divorce action. Based on that distinction, we expressly stated in Rothluebbers that
Lustig did not control the application of the forum non conveniens doctrine because
“Lustig was a divorce and child custody case.” Id. ¶ 6 n.2, 668 N.W.2d at 317 n.2
(acknowledging that circuit courts may not “dismiss divorce actions, properly
commenced first in South Dakota, in favor of another state’s jurisdiction” (quoting
Lustig, 1997 S.D. 24, ¶ 12, 560 N.W.2d at 244)). Consequently, because Grant
properly commenced the divorce action in South Dakota and no divorce action had
ever been commenced in Pennsylvania, the circuit court erred by dismissing this
action.
[¶20.] We reverse and remand.
[¶21.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
-10-
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick Fisher Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
April 23, 1996
TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RE: 95-2033, Texaco, Inc. v. Hale
April 8, 1996 by Judge Porfilio
Please be advised of the fillowing correction to the captioned decision:
Page 2, counsel for the defendants-appellees name is incorrectly listed as Lisa M.
Enbfield and should be corrected to read Lisa M. Enfield.
Please make this correction to your copy.
Very truly yours,
Patrick Fisher,
Clerk
By:
Barbara Schermerhorn
Deputy Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
Filed 4/8/96
TENTH CIRCUIT
TEXACO, INC.; TEXAS-NEW MEXICO
PIPELINE,
Plaintiffs-Appellants,,
v.
ALBERT HALE, successor to Peterson
Zah as President of the Navajo Nation;
DAVID C. BRUNT, successor to
Nelson Gorman and Stella Saunders as
Commissioner of the Navajo Tax
Commission; VICTOR JOE, successor to
Nelson Gorman and Stella Saunders as
Commissioner of Navajo Tax
Commission; BRUCE KEIZER, successor
No. 95-2033
to Nelson Gorman and Stella Saunders as
Commissioner of the Navajo Tax
Commission; JOE SHIRLEY, successor to
Nelson Gorman and Stella Saunders as
Commissioner of the Navajo Tax
Commission; LEE BERGEN, successor to
Nelson Gorman and Stella Saunders as
Commissioner of the Navajo Tax
Commission; DERRICK WATCHMAN,
member, Navajo Tax Commission;
STEVEN BEGAY, successor to Derrick
Watchman as Executive Director of the
Navajo Tax Commission,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-87-0124 JC)
Bradford C. Berge, Campbell, Carr & Berge, P.S., Santa Fe, New Mexico, for Plaintiffs-
Appellants.
Paul E. Frye (Lisa M. Enfield; Herb Yazzie, Attorney General; Marcelino R. Gomez; and
C. Joseph Lennihan, Navajo Nation Department of Justice, with him on the
briefs), Nordhaus, Haltom, Taylor, Taradash & Frye, LLP, Albuquerque, New Mexico,
for Defendants-Appellees.
Before PORFILIO, MCWILLIAMS, and ALARCON,* Circuit Judges.
PORFILIO, Circuit Judge.
Honorable Arthur L. Alarcon, Senior Circuit Judge for the United States Court of
*
Appeals for the Ninth Circuit, sitting by designation.
This case involves the application of the tribal exhaustion
doctrine to a taxation dispute involving land located outside
Navajo Reservation borders but within Navajo Indian Country.
Texaco, Inc. and Texas-New Mexico Pipeline (Appellants) seek
federal declaratory relief against the Navajo Tax Commission and
officials of the Navajo Tribe and the Navajo Tax Commission (the
Tribe). We considered a prior appeal by Appellants in Texaco, Inc.
v. Zah, 5 F.3d 1374 (10th Cir. 1993) (Zah I), and remanded the case
to the district court with specific instructions. Here, following
the district court’s reconsideration of the issues on remand,
Appellants appeal the second dismissal of their claim. We affirm.
Appellants conduct business activities within Navajo Indian
Country.1 Since 1978, the Tribe has imposed an Oil and Gas
Severance Tax on Texaco and a Business Activity Tax on Texas-New
Mexico Pipeline for their activities occurring within Navajo Indian
Country but outside the formal boundaries of the Navajo
Reservation. In 1987, Appellants filed suit in the United States
District Court for the District of New Mexico seeking a declaratory
injunction to prohibit Tribal taxation of Appellants’ business
activities occurring outside the formal boundaries of the Navajo
Reservation. However, the district court dismissed Appellants’
complaint without prejudice after finding Appellants failed to
Texaco possesses several mineral leases within Navajo Indian Country while Texas-New
1
Mexico Pipeline owns and operates an interstate pipeline crossing Navajo Indian Country.
-4-
exhaust tribal remedies before seeking a federal forum.
In Zah I, we considered two issues. First, Appellants
contended the Tribe lacked jurisdiction to hear the dispute. We
rejected that argument, holding “whether tribal courts have
jurisdiction over non-Indians in civil cases ‘should be conducted
in the first instance in the Tribal Court itself,’” Zah, 5 F.3d at
1376 (quoting National Farmers Union Ins. Cos. v. Crow Tribe of
Indians, 471 U.S. 845, 856 (1985)), unless one of the three
exceptions to the tribal exhaustion rule is applicable.2 We
further held those exceptions were inapplicable to Appellants’
case.
Second, Appellants’ argued even if the Tribe had jurisdiction,
the federal court should not have been deprived of its jurisdiction
to determine the propriety of taxing Appellants’ activities
occurring outside the Navajo Reservation. In response, we noted
the importance of comity and referred to the federal concerns
behind the tribal exhaustion rule. We then stated, in reference to
activities arising on reservation lands, “we have characterized the
tribal exhaustion rule as ‘an inflexible bar to consideration of
the merits of the petition by the federal court.’” Zah, 5 F.3d at
1378 (quoting Granberry v. Greer, 481 U.S. 129, 131 (1987)).
2
In National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985),
the Supreme Court held tribal courts should determine whether they have jurisdiction over non-
Indians in civil cases unless the “assertion of trial jurisdiction ‘is motivated by a desire to harass
or is conducted in bad faith,’ or where the action is patently violative of express jurisdictional
prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity
to challenge the court’s jurisdiction.” Id. at 856 n.21 (citations omitted).
-5-
However, we further noted:
When the dispute involves non-Indian activity occurring
outside the reservation ... the policies behind the
tribal exhaustion rule are not so obviously served.
Under these circumstances, we must depend upon the
district courts to examine assiduously the National
Farmers factors in determining whether comity requires
the parties to exhaust their tribal remedies before
presenting their dispute to the federal courts.
Id. Because the district court failed to examine those factors, we
were unable to determine whether the district court abused its
discretion. As a result, we vacated the district court’s order and
remanded the case “for further examination of the comity factors
articulated in National Farmers.” Id. Those factors are: (1)
furtherance of “the congressional policy of supporting tribal self-
government;” (2) promoting the “orderly administration of justice;”
and (3) obtaining “the benefit of tribal expertise.” Id. at 1377-
78 (citing National Farmers, 471 U.S. at 856-57).
On remand, after making a point by point analysis of the
National Farmers factors, the district court concluded abstention
was appropriate and again dismissed Appellants’ case. Appellants
now appeal, contending, despite the limited remand in Zah I, the
district court’s decision must be reversed for three reasons.
First, they assert the district court’s National Farmers analysis
was improper. Second, they argue the district court erred in
assuming Appellants consented to tribal jurisdiction. Third, they
maintain the district court, and this court in Zah I, erroneously
held Indian Country defined the boundaries of the Tribe’s civil
-6-
jurisdiction.
We start from the premise that the scope of the district
court’s jurisdiction was narrow following remand. The only matter
returned to the district court was the “assiduous examination” of
the National Farmers comity factors. Cf. Sierra Club v. Lujan, 949
F.2d 362, 365 (10th Cir. 1991)(a limited remand circumscribes the
scope of the issues for litigation to those defined in the remand
order). Likewise, the only issue before us is whether that
examination was performed.
Appellants argue the district court could not properly analyze
the National Farmers factors on remand without an evidentiary
hearing and further discovery because there were factual issues in
dispute. Quoting Williamson v. Tucker, 645 F.2d 404, 414 (5th
Cir.), cert. denied, 454 U.S. 897 (1981), Appellants contend, when
faced with a motion to dismiss raising factual issues, “the
plaintiff should have an opportunity to develop and argue the facts
in a manner that is adequate in the context of the disputed issues
and evidence.” Here, Appellants assert they “vigorously contested”
the Tribe’s allegation that all of their business activities
occurred within Indian Country. Appellants also contend they
contested the Tribe’s allegation that Appellants consented to
tribal jurisdiction by contract. Under this court’s decision in
Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th
Cir. 1995), Appellants argue the district court was required to
allow further development of the facts to determine whether any of
-7-
the dispute occurred in Indian Country and the extent to which the
dispute lay within an independent Indian community.
These questions, however, were not within the scope of the
remand. The case was not postured as though the district court was
just commencing consideration of a motion to dismiss. More
importantly, however, in Zah I, Appellants conceded the disputed
land fell within the definition of Navajo Indian Country as well as
Indian Country. Zah, 5 F.3d at 1376, n.3.
Nevertheless, Appellants now argue Watchman required the
district court to make preliminary factual findings which, in turn,
required further discovery in this case. Even though we stated in
Watchman, “the application of the [tribal abstention] doctrine may
differ outside the formal boundaries of a reservation,” Watchman,
52 F.3d at 1537, we also noted, “[t]he facts and circumstances of
each individual situation will determine whether comity requires
abstention in that particular instance.” Id.
Contrary to the circumstances of this case, however, in
Watchman, one of the issues contested throughout the proceedings
was whether the area subject to Indian taxation was Indian Country.
Naturally, on remand the district court was instructed to determine
the appropriate community of reference and to make detailed factual
findings to determine whether the area was in fact a dependent
Indian community. Id. at 1546. Thus, under the circumstances, it
was appropriate in Watchman for the district court to further
develop the facts to reach its conclusion on remand.
-8-
In this case, however, the district court was not required to
further develop the facts because they had been conceded in Zah I.
Moreover, even in their original complaint Appellants did not seek
a declaration of what portion of the land constituted Indian
Country. The relief they sought was a declaration that “the
imposition and enforcement of the Navajo Oil and Gas Severance Tax
and the Navajo Business Activities Tax on Plaintiffs’ activities
beyond the borders of the Navajo Reservation [is] illegal, invalid
and void.”
We believe the circumstances of this case make Watchman
inapposite. In short, Watchman simply does not require fact-
finding hearings when the operative fact issues have been resolved
through other means.
Appellants make no other challenge to the district court’s
National Farmers analysis. Our review of the district court’s
careful and detailed consideration of the circumstances leads us to
conclude its judgment is free of error on this issue.
Appellants next argue the district court erroneously assumed
certain facts as true. We review the district court’s factual
findings for clear error. Steiner Corp. Retirement Plan v. Johnson
& Higgins of California, 31 F.3d 935, 939 (10th Cir. 1994), cert.
denied, 115 S.Ct. 732 (1995). “A finding of fact is ‘clearly
erroneous’ if it is without factual support in the record or if the
appellate court, after reviewing all the evidence, is left with a
definite and firm conviction that a mistake has been made.” Raydon
-9-
Exploration, Inc. v. Ladd, 902 F.2d 1496, 1499 (10th Cir. 1990).
Appellants contend the district court erred in assuming all of
their activities occurred within Indian Country. Appellants argue
they sought to show the district court, on remand, that some of
their business is conducted on land that is not part of a dependent
Indian community. Appellants also assert Indian Country is not
synonymous with Navajo Indian Country. However, as discussed
above, this is a latter day change of position from Appellants’
previous concession that the disputed land was within the
definition of both Navajo Indian Country and Indian Country. Even
had the scope of the remand allowed the district court to consider
this issue, it was entitled to rely upon Appellants’ concession,
and they are now without a basis for objection.
Appellants also assert the district court erred in assuming
Appellants entered contractual relationships with the Tribe and
“acknowledged the authority of Navajo Law and its application to
the extraction activities.” Appellants argue the contracts were
limited to activities and facilities within the Navajo Reservation.
Nevertheless, the Tribe points to contractual language in which
Texas-New Mexico Pipeline agreed to resolve disputes by applying
“the laws of the Navajo Nation ... in the conduct of all activities
of [Texas-New Mexico] within the Navajo Nation.” Again, this issue
is beyond the scope of the remand. Nevertheless, the district
court did not, as suggested by Appellants, find Texaco was a party
to this agreement. The court simply viewed the agreement as
“another consideration” for determination of the Tribe’s taxing
- 10 -
power. The district court further found, although that agreement
did not include Texaco, the business dealings of both Texaco and
Texas-New Mexico Pipeline with the Tribe, including mineral leases
with individual Navajo allotment owners, were sufficient to subject
Texaco to the jurisdiction of the Navajo Nation as well.
After viewing the record as a whole, we conclude there is
factual support for the trial court’s findings on both issues. The
district court did not clearly err.
AFFIRMED.
- 11 -
| {
"pile_set_name": "FreeLaw"
} |
Gentile v Gentile (2017 NY Slip Op 02972)
Gentile v Gentile
2017 NY Slip Op 02972
Decided on April 19, 2017
Appellate Division, Second 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 April 19, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
HECTOR D. LASALLE
BETSY BARROS, JJ.
2015-09524
2016-06668
(Index No. 5389/11)
[*1]Steven J. Gentile, appellant,
vGarrett Cobb Gentile, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY (Robert A. Spolzino and Meredith J. Kenyon of counsel), for appellant.
Johnson & Cohen, LLP, Pearl River, NY (Martin T. Johnson of counsel), for respondent.
Sharon M. Kantrowitz, New City, NY, attorney for the child.
DECISION & ORDER
Appeals by the father from (1) an order of the Supreme Court, Rockland County (Victor J. Alfieri, Jr., J.), entered July 23, 2015, and (2) an order of that court dated May 11, 2016. The order entered July 23, 2015, insofar as appealed from, without a hearing, in effect, denied that branch of the father's motion which was to modify the custody provisions of the parties' judgment of divorce so as to award him sole custody of the parties' child, and set forth a new visitation schedule for the parties. The order dated May 11, 2016, insofar as appealed from, modified the visitation schedule set forth in the order entered July 23, 2015, and directed that the father pay the costs of the child's summer camp for 2015 and 2016.
ORDERED that the order entered July 23, 2015, is reversed insofar as appealed from, on the law, without costs or disbursements; and it is further,
ORDERED that the order dated May 11, 2016, is modified, on the law, by deleting the provision thereof modifying the visitation schedule set forth in the order entered July 23, 2015; as so modified, the order dated May 11, 2016, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Rockland County, for a hearing on that branch of the father's motion which was to modify the custody provisions of the parties' judgment of divorce so as to award him sole custody of the parties' child, and a new determination of that branch of the father's motion thereafter; and it is further,
ORDERED that pending the hearing and new determination, the provisions of the order entered July 23, 2015, as modified by the order dated May 11, 2016, regarding custody and visitation of the parties' child, shall remain in effect.
The parties were married in 2005, and have one child, born in September 2007. In 2010 the parties entered into a separation agreement which provided that they would have joint physical and legal custody of the child, and further provided a visitation schedule. The father commenced this action for a divorce in 2011. After a nonjury trial, addressing the parties' grounds for divorce and the parties' applications for modification of the custody provisions set forth in the separation agreement, the Supreme Court, in a decision dated January 25, 2013, determined that the custody arrangement set forth in the parties' separation agreement would remain in effect. A judgment of divorce, entered July 8, 2013, provided that the parties would have joint physical and legal custody of the child, with each party having visitation with the child as set forth in the separation agreement.
By order to show cause dated November 1, 2013, the father moved, inter alia, to modify the custody provisions of the parties' judgment of divorce so as to award him sole custody of the child. In an affidavit in support of the motion, the father alleged that on October 31, 2013, he observed the mother, who had a history of alcohol abuse, to be in an intoxicated condition. The police were called and responded, and the mother could not tell the officers where her other child, who was then 18 months old, was located. The mother was transported to the hospital, where she could not provide police officers or hospital staff with her live-in boyfriend's cell phone number or work number. The father further alleged that the mother's blood alcohol content was determined to be over .35%. Pending the determination of the father's motion, the Supreme Court awarded the father temporary sole custody of the child.
Between November 13, 2013, and September 5, 2014, the parties appeared before the Supreme Court on various dates, and the court appointed Dr. Raymond A. Griffin to complete a forensic chemical dependency evaluation report regarding the mother.
By order entered July 23, 2015, based on the conferences held and Dr. Griffin's forensic report, the Supreme Court, without a hearing, inter alia, in effect, denied that branch of the father's motion which was to modify the custody provisions set forth in the parties' judgment of divorce so as to award him sole custody of the parties' child, and set forth a new visitation schedule for the parties. By order dated May 11, 2016, the court, inter alia, modified the visitation schedule set forth in the order entered July 23, 2016. The father appeals.
"In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child" (Matter of Fallarino v Ayala, 41 AD3d 714, 714; see Matter of O'Shea v Parker, 116 AD3d 1051; Nusbaum v Nusbaum, 106 AD3d 791, 793; Matter of Ross v Ross, 68 AD3d 878, 878). A parent seeking a change of custody is not automatically entitled to a hearing; rather, he or she must make some evidentiary showing of a change in circumstances demonstrating a need for a change of custody in order to insure the child's best interests (see Matter of O'Shea v Parker, 116 AD3d at 1051-1052; Nusbaum v Nusbaum, 106 AD3d at 793; Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641; Matter of Ross v Ross, 68 AD3d at 878).
Here, the father made the necessary showing entitling him to a hearing regarding that branch of his motion which was to modify the custody provisions of the parties' judgment of divorce (see Nusbaum v Nusbaum, 106 AD3d at 793; Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d at 641; Matter of Ross v Ross, 68 AD3d at 878). Furthermore, the record does not demonstrate that the Supreme Court possessed adequate relevant information to enable it to make an informed and provident determination as to the child's best interests so as to render a hearing unnecessary (see S.L. v J.R., 27 NY3d 558, 563; Nusbaum v Nusbaum, 106 AD3d at 793; Matter of Schyberg v Peterson, 105 AD3d 857, 858; Matter of Riemma v Cascone, 74 AD3d 1082, 1083). "A decision regarding child custody should be based on admissible evidence" (S.L. v J.R., 27 NY3d at 564). Here, in making its determination, the court relied on information provided at the court conferences, and the hearsay statements and conclusions of the forensic evaluator, Dr. Griffin, whose opinions and credibility were untested by either party (see id.).
Accordingly, the Supreme Court erred when it, in effect, denied that branch of the [*2]father's motion which was for an order modifying the custody provisions set forth in the judgment of divorce so as to award him sole custody of the child, and set forth a new visitation schedule for the parties, without first conducting a hearing to ascertain the child's best interests (see id.; Nusbaum v Nusbaum, 106 AD3d at 793; Galanti v Kraus, 85 AD3d 723, 724).
The father's remaining contention is without merit.
Accordingly, we remit the matter to the Supreme Court, Rockland County, for a hearing on that branch of the father's motion which was to modify the custody provisions set forth in the judgment of divorce so as to award him sole custody of the child, and a new determination of that branch of the motion thereafter.
BALKIN, J.P., HALL, LASALLE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-5-2007
Wallace v. Wray
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3346
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Wallace v. Wray" (2007). 2007 Decisions. Paper 1677.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1677
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3346
JOHN WALLACE; MARGARET WALLACE, Wife;
HEATHER WALLACE, Daughter, Child #1;
COSETTE WALLACE, Daughter, Child #2; GRACE WALLACE, Daughter, Child #3;
DANIEL WALLACE, Son, Child #4; FAITH WALLACE, Daughter, Child #5;
JOY WALLACE, Daughter, Child #6; JOSHUA WALLACE;
SAMUEL WALLACE, Son, Child #8; DAVID WALLACE, Son, Child #9;
JONATHAN WALLACE, Son, Child #10;
VICTORIA WALLACE, Daughter, Child #14
v.
CHRISTOPHER WRAY, Office of the Attorney General;
JOSHUA HOCHBERG, Office of the Attorney General;
BRUCE OHR, Office of the Attorney General;
PATRICK L. MEEHAN, United States Attorney's Office;
MRS. FARNAN, United States Attorney's Office;
ROBERT S. MUELLER, III, Federal Bureau of Investigation;
JOHN C. ECKENRODE, Federal Bureau of Investigation;
JAMES P. DOOLIN, JR., Federal Bureau of Investigation;
UNKNOWN FEDERAL DEFENDANTS
John Wallace,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 05-cv-6773
(Honorable James T. Giles)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 18, 2007
Before: SCIRICA, Chief Judge, SMITH and CHAGARES, Circuit Judges
(Filed: February 5, 2007)
OPINION OF THE COURT
PER CURIAM.
Appellant John Wallace was convicted in the Lehigh County, Pennsylvania Court
of Common Pleas of endangering the welfare of his children in violation of 18 Pa. Cons.
Stat. Ann. § 4304. On appeal, the Superior Court held, in a 2-1 decision, that the
evidence was sufficient to support the conviction, his wife’s acquittal on the same charge
did not constitute an impermissibly inconsistent verdict, and the code enforcement officer
was qualified to testify as an expert witness. See Commw. v. Wallace, 817 A.2d 485 (Pa.
Super. Ct. 2002).1 The children were removed from the care of their parents by the
Lehigh County Office of Children and Youth Services (“CYS”), and adjudicated
dependent by the state courts.
1
The dissenting judge wrote:
I believe the conviction of John Wallace is the result of an abuse of prosecutorial
discretion by the district attorney in seeking a criminal solution for circumstances
which are properly the subject of civil court remedies. This ill-considered
prosecution has led to a conviction where the evidence is insufficient.
Id. at 494 (Cavanaugh, J., dissenting). He concluded that squalid conditions in the home
alone, without evidence of physical or sexual abuse or evidence that a parent had failed to
intervene to prevent abuse, death, or an imminent threat of death, could not support a
conviction under the case law. Id. at 495.
2
Wallace wrote to United States Attorney Patrick L. Meehan and sent him various
materials, seeking a prosecution of the state court trial and appellate judges involved in
the termination of his parental rights. He sent copies to the Criminal Division of the
Department of Justice (“DOJ”), and he hand-delivered copies to Bernadette Farnan, the
criminal duty paralegal on duty in the U.S. Attorney’s Office. Wallace was advised by
letter by both the U.S. Attorney’s Office and the DOJ that the information he submitted
did not indicate a violation of federal law. Wallace then sued these federal officials for
money damages, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), in United States District Court for the Eastern District of
Pennsylvania, alleging that they violated his civil rights. The District Court granted the
defendants’ motion to dismiss, and dismissed the complaint in an order entered on June
16, 2006. Wallace appeals.
We will affirm. The complaint was properly dismissed by the District Court.
The decision whether or not to initiate a federal criminal investigation or prosecute a case
is completely discretionary with federal law enforcement authorities and is absolutely
immunized from a suit for damages. Imbler v. Pachtman, 424 U.S. 409 (1976). All of the
prosecutors – defendants Christopher Wray, Bruce Ohr, Patrick Meehan, and Joshua
Hochberg – are covered by this immunity. Farnan’s conduct in assisting Wallace as a
walk-in visitor, and Agent Doolin’s conduct in advising him that the information he
submitted did not indicate a federal violation, did not violate any clearly established
3
constitutional rights of Wallace, and these individuals are therefore immunized from suit
by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Finally, liability in a civil rights action cannot be imposed absent personal involvement.
See Rizzo v. Goode, 423 U.S. 362, 375-77 (1976). Wallace alleged no facts to show that
Robert Mueller or John Eckenrode were personally involved in the events which gave rise
to this action.
We will affirm the order of the District Court dismissing the complaint.
4
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4393
MONTIQUA JARVELL BRYANT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
David A. Faber, Chief District Judge, sitting by designation.
(CR-02-215)
Submitted: February 27, 2004
Decided: April 6, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Michael Mills, MILLS & WILLEY, New Bern, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BRYANT
OPINION
PER CURIAM:
Montiqua Jarvell Bryant was convicted of witness tampering, in
violation 18 U.S.C. § 1512(b)(3) (2000), and making a false statement
to a federal agent, in violation of 18 U.S.C. § 1001 (2000). On appeal,
he alleges the district court erred in denying his Fed. R. Crim. P. 29
motion for acquittal. He also claims the district court improperly
applied the cross-reference provision in the United States Sentencing
Guidelines, § 2B1.1(c)(3) (2002).
Where, as here, a motion for acquittal was based on insufficient
evidence, "[t]he verdict of a jury must be sustained if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
Bryant argues that when he told Ricky Carraway that if anyone
asked about the gun purchases to say that he did not know anything,
he was merely instructing Carraway to tell the truth. Bryant further
argues that he did not make a false statement to a federal agent
because he did not know William Boyd by his proper name or by the
name "Cheeseburger." We must assume that the jury resolved these
issues in the Government’s favor. See United States v. Wilson, 115
F.3d 1185, 1190 (4th Cir. 1997). We find that there is substantial evi-
dence, taking the view most favorable to the Government, to support
the jury’s verdict. United States v. Glasser, 315 U.S. at 80.
Bryant next argues that the application of the USSG § 2B1.1(c)(3)
cross-reference was in error. We review de novo a district court’s
legal interpretation of a guideline. United States v. Souther, 221 F.3d
626, 628 (4th Cir. 2000).
Bryant was convicted of violating 18 U.S.C. § 1001 by making a
false statement to a federal agent "in connection with the investigation
of various firearms offenses, including straw purchases and interstate
transportation of firearms." (J.A., Vol. I at 18). For such a violation,
USSG § 2B1.1 provides the applicable guideline offense level. See
USSG App. A; USSG § 2B1.1.
UNITED STATES v. BRYANT 3
In pertinent part, USSG § 2B1.1(c)(3) provides that if "the defen-
dant was convicted under a statute proscribing false, fictitious, or
fraudulent statements or representations generally (e.g., 18 U.S.C.
§ 1001 . . .); and [ ] the conduct set forth in the count of conviction
establishes an offense specifically covered by another guideline in
Chapter Two (Offense Conduct), apply that other guideline." USSG
§ 2B1.1(c)(3). The introduction of the indictment, Count One, and
Count Two all reference Bryant’s involvement with firearm offenses.
Therefore, the probation officer applied the guidelines for firearm vio-
lations under USSG § 2K2.1. Since Bryant’s conduct, as set forth in
the count of conviction, established a firearm offense specifically cov-
ered in USSG § 2K2.1, the district court correctly adopted the proba-
tion officer’s application of the cross-reference. See USSG
§ 2B1.1(c)(3).
Finding no error, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-1327 (RMC)
)
REGENERATIVE SCIENCES, LLC, )
CHRISTOPHER J. CENTENO, M.D., )
JOHN R. SCHULTZ, M.D., and )
MICHELLE R. CHEEVER, )
)
Defendants. )
)
____________________________________)
MEMORANDUM OPINION
Drs. Christopher J. Centeno and John R. Schultz developed the Regenexx™
Procedure, by which they use stem cell therapies to aid healing for their orthopedic patients.
They formed Regenerative Sciences LLC (“Regenerative”) for this endeavor, at which Michelle
R. Cheever is the Laboratory Director. They are all now facing an enforcement action by the
Food and Drug Administration (“FDA”), which charges them with “causing articles of drug to
become adulterated” and “misbranded” within the meaning of the Federal Food, Drug, and
Cosmetic Act (“FFDCA”), 21 U.S.C. § 301 et seq. Compl. [Dkt. 1] ¶ 1. Defendants respond
that they practice medicine wholly within the State of Colorado and under its oversight and that
the Regenexx™ Procedure is not a “drug” subject to regulation by the federal government.
Defs.’ Opp. to Pl.’s Mot. for Summ. J. [Dkt. 26] (“Defs.’ Opp”) at 1.
1
It is a close question but ultimately the Court concludes that the Regenexx™
Procedure is subject to FDA enforcement because it constitutes a “drug” and because a drug that
has been shipped in interstate commerce is used in the solution through which the cultured stem
cells are administered to patients. This acknowledged connection to interstate commerce renders
the Regenexx™ Procedure subject to the FFDCA even though the doctors themselves are
practicing medicine under Colorado law. Summary judgment will be granted to the United
States and an injunction will be issued precluding the continued use of the Regenexx™
Procedure without compliance with the FFDCA.
I. FACTS
Drs. Centeno and Schultz practice together and jointly own the Centeno-Schultz
Clinic in Broomfield, Colorado. Drs. Centeno and Schultz are also the majority shareholders of
Regenerative, which owns the Regenexx™ Procedure and exclusively licenses the Clinic to use
it. Ms. Sheever serves as Regenerative’s Laboratory Director. Regenerative and the Clinic are
related companies and operate as one business. The Regenexx™ Procedure is a non-surgical
procedure for patients suffering from moderate to severe joint, muscle, tendon or bone pain due
to injury or other conditions. Am. Answer Countercls. [Dkt. 16] (“Countercls.”) ¶ 3.
The Regenexx™ Procedure begins with a licensed physician taking a
small bone marrow sample from the back of a patient’s hip through a
needle. Blood samples are also taken from a vein in the patient’s arm.
These samples are then sent to the Regenerative laboratory which is also
in Broomfield, Colorado, just a few miles from the Clinic where the
mesenchymal stem cells (MSCs) are isolated from the bone marrow and
then grown to greater numbers. This process uses the natural growth
factors found in the patient’s blood to grow the MSCs.
After approximately 2 weeks, the expanded stem cells are sent to the
University of Colorado affiliated Colorado Genetics Laboratory for
testing. . . .
2
Once the cells pass quality assurance testing, they are placed back into
the patient’s injured area (i.e. knee, hip, rotator cuff), typically 4-6 weeks
after they were removed. The stem cells then begin to repair the
patient’s degenerated or injured area. The repair process usually takes
between 3-6 months but many patients demonstrate marked
improvement within 1-3 months.
Countercls. ¶¶ 5-10. In August 2010, when this matter began, the Regenexx™ Procedure
constituted about one-third of the procedures performed by the Clinic. Defs.’ Opp. at 15.
Of critical importance here is the process by which Regenerative expands the
mesenchymal cells taken from a patient’s bone marrow and delivers a syringe with the cells in
solution to the Clinic.
1. A doctor at the Clinic obtains a tissue sample from the patient’s
bone marrow by inserting a needle into the hip bone and drawing a thick
blood like liquid into a syringe; the sample is then sent to the laboratory.
2. The marrow sample is centrifuged to separate out fractions of the
bone marrow and the middle layer (“buffy coat”) is taken off with a
pipette.
3. The cells from the buffy coat are placed in a plastic flask and kept
in a warm environment to incubate with the patient’s own blood platelets
that contain growth factors, as well as a nutrient solution. Over a few
days, the mesenchymal stem cells adhere to the plastic flask while the
rest of the cells do not adhere.
4. The non-adherent cells are discarded and the mesenchymal stem
cells are collected using Trypsin, an enzyme, to detach the cells from the
plastic flask.
5. The process is repeated to grow the cells.
6. The cells undergo a visual inspection by the Colorado Genetics
Laboratory to make sure that there are no genetic mutations or other
genetic problems. The treating doctor then approves the cells.
3
Defs.’ Opp., Ex. 7 [Dkt. 26] (Centeno Decl.) ¶¶ 13-24; see also Compl. ¶ 11. “[T]he expanded
cells, along with a drug product that has been shipped in interstate commerce1 and other
additives, are placed into syringes. Regenerative Sciences [sends] the filled syringes in sterile
bags to the Clinic, where they are injected into patients.” Compl. ¶ 11; see Answer ¶¶ 11 & 13
(admitting this fact).
In a letter dated July 25, 2008, the FDA notified Regenerative that the FDA
believed that the cell product used in the Regenexx™ Procedure constituted a drug under the
FFDCA and a biological product under the Public Health Service Act, 42 U.S.C. § 262
(“PHSA”). Further, the FDA stated that because Regenerative had not obtained the necessary
approvals for the cell product, its actions in this regard were possibly unlawful. Countercls.
¶¶ 20 & 21; Pl.’s Mot. for Summ. J. [Dkt. 19] (“Pl.’s Mot.”) at 13.
FDA investigators inspected Regenerative between February 23, 2009 and April
15, 2009. Compl. ¶ 31; Countercls. ¶ 24. That inspection showed that the laboratory did not
operate in conformity with current good manufacturing practice (“CGMP”).2 See 21 U.S.C.
§ 351(a)(2)(B) and 21 C.F.R. Parts 210-211; see also 21 C.F.R. Parts 600-680. When the 2009
inspection concluded, the FDA investigators issued a list of observations that identified a series
of alleged CGMP violations. Compl. ¶ 31.
FDA investigators again inspected Regenerative between June 2, 2010 and June
16, 2010. Countercls. ¶¶ 26, 27. That inspection also revealed alleged CGMP violations, which
the investigators catalogued in a list of observations. Compl. ¶ 32.
1
The “drug product” is not identified except in sealed documents as Defendants claim it is
confidential commercial information. See Pl.’s Mot. at 12 n.14.
2
CGMP “assure[s] that [a] drug meets the requirements of [the statute] as to safety and has the
identity and strength, and meets the quality and purity characteristics, which it purports or is
represented to possess.” 21 U.S.C. § 351(a)(2)(B).
4
While the initial FDA inspection was ongoing, Regenerative filed a complaint
against the FDA in United States District Court for the District of Colorado, alleging that the
FDA did not have the jurisdiction to regulate autologous3 use of stem cells. Regenerative
Sciences, Inc. v. FDA, Civ. No. 1:09-cv-00411-WYD-BNB [Dkt. 1] (D. Colo. Feb. 26, 2009)
(“Regenerative I”). On March 26, 2010, the district court granted the FDA’s motion to dismiss
on ripeness grounds. Regenerative I, Civ. No. 1:09-cv-00411-WYD-BNB [Dkt. 42] (D. Colo.
Mar. 26, 2010). Regenerative then filed a notice of appeal with the United States Court of
Appeals for the Tenth Circuit on March 29, 2010.4 Regenerative I, Civ. No. 10-1125 (10th
Cir.).
On June 22, 2010, Regenerative filed a complaint in this Court challenging FDA’s
determination that Regenerative is a drug manufacturer. Regenerative Sciences, Inc. v. FDA,
Civ. No. 1:10-cv-01055 [Dkt. 1] (D.D.C. June 22, 2010) (“Regenerative II”). On July 6, 2010,
Regenerative filed a motion for a temporary restraining order in this Court. Regenerative II, Civ.
No. 1:10-cv-01055 [Dkt. 9] (D.D.C. July 6, 2010). Pursuant to a Stipulated Order, the parties
agreed to litigate the entire dispute in this Court. Defs.’ Opp. at 19-20. Accordingly,
Regenerative agreed to dismiss the pending actions in the District of Colorado and the Tenth
Circuit, as well as withdraw its motion for a temporary restraining order in this Court. Stip.
Order [Dkt. 10] at ¶ 11. Regenerative also agreed to stop using the Regenexx™ Procedure
during the pendency of this litigation. Id. at ¶ 6. FDA has filed a motion for summary judgment,
as well as a motion to dismiss Defendants’ counterclaims.
3
“Autologous use means the implantation, transplantation, infusion, or transfer of human cells or
tissue back into the individual from whom the cells or tissue were recovered.” 21 C.F.R.
§ 1271.3.
4
On June 30, 2010, Regenerative filed a motion to stay the Colorado case pending its appeal.
Regenerative I, Civ. No. 1:09-cv-00411-WYD-BNB [Dkt. 53] (D. Colo. June 30, 2010).
5
II. LEGAL STANDARDS
A. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011). Moreover, summary judgment is properly granted against a party who “after adequate
time for discovery and upon motion . . . 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 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255; Talavera, 638 F.3d at 308. A nonmoving party, however, must
establish more than “[t]he mere existence of a scintilla of evidence” in support of its position.
Anderson, 477 U.S. at 252. In addition, the nonmoving party may not rely solely on allegations
or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the
nonmoving party must present specific facts that would enable a reasonable jury to find in its
favor. Id. If the evidence “is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
B. Motion to Dismiss
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give the defendant fair notice of what the . . . claim is and the
6
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citation omitted). Although a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is “plausible on its face.” Twombly, 550
U.S. at 570.
A court must treat the complaint’s factual allegations as true, “even if
doubtful in fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal
conclusions set forth in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a
motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits or incorporated by reference, and matters about which the
court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir.
2007).
III. ANALYSIS
The question presented here is whether the Regenexx™ Procedure constitutes a
drug (or biologic product) subject to FDA regulation or whether it is merely an intrastate method
of medical practice subject only to the laws of the State of Colorado. FDA asserts that the
Regenexx™ Procedure constitutes the manufacturing, holding for sale, and distribution of an
unapproved biological drug product. Moreover, FDA claims that Defendants have violated the
FFDCA’s prohibition on adulteration and misbranding a drug with their Regenexx™ Procedure.
On the other hand, Defendants argue that the Regenexx™ Procedure constitutes the practice of
medicine as defined by Colorado law and that the FDA lacks jurisdiction to regulate it.
7
Defendants also assert that the Regenexx™ Procedure occurs entirely intrastate and is not
covered by the Commerce Clause or the FFDCA, which limit federal power to interstate
commerce.
A. Federalism and the Commerce Clause
Defendants insist that the FDA’s complaint must be understood within the
constitutional principles of federalism and the limits of the Commerce Clause. They urge the
Court to apply the “assumption that the historic police powers of the States were not to be
superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.”
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (internal quotation marks and citations
omitted). By long tradition, the health and safety of the people is left to the States as matters of
local concern. Id. at 475. Accordingly, Defendants state that Congress has left the practice of
medicine to the States to regulate. FDA does not disagree with these principles but asserts that
their exercise of jurisdiction over Defendants’ Regenexx™ Procedure is a permissible exercise
of federal power under the Commerce Clause.
Congress may regulate the practice of medicine or rather, certain aspects of it,
when it does so pursuant to its Commerce Clause powers. Congress has the power “[t]o regulate
Commerce . . . among the several states . . . .” U.S. Const. art. I, § 8, cl. 3. The United States
Supreme Court has defined three categories of activity that may be regulated by Congress
pursuant to its Commerce Clause power: (1) “channels of interstate commerce,”
(2) “instrumentalities of interstate commerce, or persons or things in interstate commerce,”
(3) “those activities having a substantial relation to interstate commerce,” or “those activities that
substantially affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995).
The [FFDCA] rests upon the constitutional power resident in
Congress to regulate interstate commerce. To the end that the
8
public health and safety might be advanced, it seeks to keep
interstate channels free from deleterious, adulterated and
misbranded articles of the specified types. It is in that interstate
setting that the various sections of the Act must be viewed.
United States v. Walsh, 331 U.S. 432, 434 (1947) (internal citations omitted). The FFDCA
provisions at issue in this case require an interstate commerce nexus, ensuring that regulation
under the FFDCA is consistent with the Commerce Clause. 21 U.S.C. § 331(k) (applying only if
the drug is held for sale “after shipment in interstate commerce”). Thus, the question here is one
of statutory interpretation – whether Defendants’ cell product is subject to the terms of the
FFDCA.
B. The Regenexx™ Procedure is a “Drug” Under the FFDCA
1. Definition of a “Drug”
The best place to start when interpreting a statute is the language of the law itself.
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“As in all statutory construction cases,
we begin with the language of the statute.”). The FFDCA defines “drug” to mean “articles
intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease” or
“articles (other than food) intended to affect the structure or any function of the body of man or
other animals.” 21 U.S.C. § 321(g)(1)(B)&(C). Based on this definition, whether an “article” is
a “drug” depends on its “intended use.” Whitaker v. Thompson, 353 F.3d 947, 953 (D.C. Cir.
2004) is binding precedent on this point:5 under the FFDCA, “classification of a substance as a
‘drug’ turns on the nature of the claims advanced on its behalf.”6 Further, “it is well established
5
The Court asked the parties “why the Court should not read the definition of ‘device’ at 21
U.S.C. § 321(h) as informing and restricting the definition of ‘drug’ at 21 U.S.C.
§ 321(g)(1)(B)&(C)” and is now persuaded to adopt the direct language of the statute without
interpretation. Order to Show Cause [Dkt. 42].
6
See also United States v. Writers & Research, Inc., 113 F.3d 8, 11 (2d Cir. 1997) (“Regardless
of the classification of a drug, if an article is intended for use in the diagnosis, cure, mitigation,
9
that the intended use of a product, within the meaning of the [FFDCA], is determined from its
label, accompanying labeling, promotional claims, advertising, and any other relevant source.”
Action on Smoking & Health v. Harris, 655 F.2d 236, 239 (D.C. Cir. 1980) (internal quotation
marks and citations omitted); see 21 C.F.R. § 201.128 (“The words intended uses or words of
similar import in §§ 201.5, 201.115, 201.117, 201.119, 201.120, and 201.122 refer to the
objective intent of the persons legally responsible for the labeling of drugs. The intent is
determined by such persons’ expressions or may be shown by the circumstances surrounding the
distribution of the article . . . .” (emphasis added)); Estee Lauder, Inc. v. FDA, 727 F. Supp. 1, 2
(D.D.C. 1989) (“Courts have held that the decision as to whether a product is a drug depends on
its ‘intended use,’ which can be determined from objective evidence such as the product’s
current and past containers, instructions, and advertisements.”).
FDA also regulates biological products under the PHSA, 42 U.S.C. § 262. A
“biologic product” is defined by the PHSA as any “virus, therapeutic serum, toxin, antitoxin,
vaccine, blood, blood component or derivative, allergenic product, protein (except any
chemically synthesized polypeptide), or analogous product . . . applicable to the prevention,
treatment, or cure of a disease or condition of human beings.” 42 U.S.C. § 262(i)(1). A product
may be both a drug and a biological product. See, e.g., CareToLive v. von Eschenbach, 525 F.
Supp. 2d 952, 957 (S.D. Ohio 2007).7 Except for some licensing distinctions, the FFDCA
applies in full to a biologic product licensed under the PHSA. 42 U.S.C. § 262(j); see
treatment, or prevention of disease in man it is defined as a drug.”); Nat’l Nutritional Foods
Ass’n v. Mathews, 557 F.2d 325, 333 (2d Cir. 1977) (“The vendors’ intent in selling the product
to the public is the key element in this statutory definition.”).
7
See also United States v. Loran Med. Sys., Inc., 25 F. Supp. 2d 1082, 1084-1087 (C.D. Cal.
1997) (holding that a cell product made from neonatal rabbit and human fetal cells was both a
drug and a biological product).
10
CareToLive, 525 F. Supp. 2d at 957 (“Biological products . . . are generally subject to the same
statutory and regulatory requirements that apply to drugs.”).
Defendants’ website and pleadings describe their “intended use” for the
Regenexx™ Procedure. Defendants promote the Regenexx™ Procedure to treat a variety of
orthopedic conditions and injuries. On the Regenerative Sciences’ website, www.regenexx.com,
Defendants describe the Regenexx™ Procedure as “an Alternative to Traditional Surgery” that
can treat “[f]ractures that have failed to heal, joint cartilage problems, partial tears of tendons,
muscles, or ligaments, chronic bursitis, avascular necrosis of the bone, and lumbar disc bulges.”
See Answer ¶ 16.b.
Defendants’ pleadings confirm their intentions to use the Regenexx™ Procedure
for “mitigation” and “treatment,” among others, of disease and injury. They explain how the
“stem cells . . . begin to repair the patient’s degenerated or injured area,” Countercls. ¶ 10; how
the Regenexx™ Procedure is “for the treatment of orthopedic injuries and arthritis,”
Regenerative II, Civ. No. 1:10-cv-01055 [Dkt. 1] (D.D.C. June 22, 2010) (Compl. ¶ 14); and
how “[t]he Procedure is for the treatment of musculoskeletal and spinal injury.” Regenerative I,
Civ. No. 09-cv-00411-WYD [Dkt. 1] (D. Colo.) (Compl. ¶ 16). These statements of “intended
use” fully satisfy the statutory definition for a “drug.” Similarly, Defendants’ admissions that the
Regenexx™ Procedure is based on mesenchymal stem cells derived from the patient’s bone
marrow (Countercls. ¶ 5) and that it is intended to treat orthopedic conditions fully satisfy the
definition of “biological product” under the PHSA because it is a “blood, blood component or
derivative, . . . or analogous product . . . applicable to the prevention, treatment, or cure of a
disease or condition of human beings.” 42 U.S.C. § 262(i); see Pl.’s Mot., Ex. C (Shannon
11
Dec.) ¶ 9. In sum, the cell product used in the Regenexx™ Procedure meets the statutory
definition for both a “drug” under the FFDCA and a “biological product” under the PHSA.
2. The Regulations at 21 C.F.R. Part 1271 Do Not Exempt the Regenexx™
Procedure
The FDA has the authority under the PHSA to enact regulations to prevent the
spread of communicable diseases. Section 361 of PHSA, 42 U.S.C. § 264(a), states that
The Surgeon General, with the approval of the Secretary, is
authorized to make and enforce such regulations as in his judgment
are necessary to prevent the introduction, transmission, or spread
of communicable diseases from foreign countries into the States or
possessions, or from one State or possession into any other State or
possession.
Although this section grants this authority to the Surgeon General, it now rests with the FDA.8
The development of research and medical treatments using human cells, tissues,
and cellular or tissue-based products (human cell or tissue products or “HCT/Ps”) caused the
FDA to announce in 1997 a tiered, risk-based approach for their regulation. See Proposed
Approach to Regulation of Cellular and Tissue-Based Products, FDA Dkt. No. 97N-0068 (Feb.
28, 1997) (http://www.fda.gov/downloads/BiologicsBloodVaccines/
GuidanceComplianceRegulatoryInformation/Guidances/Tissue/UCM062601.pdf. In 2001, after
notice and comment, the FDA issued the first of a set of regulations pertaining to HCT/Ps
pursuant to its authority under section 361 of the PHSA. See Human Cells, Tissues, and Cellular
and Tissue-Based Products; Establishment Registration and Listing; Final Rule, 66 Fed. Reg.
5447 (Jan. 19, 2001) (“Registration Rule”).9 The regulations created a new regulatory
8
See infra Section III. E.
9
See also Eligibility Determination for Donors of Human Cells, Tissues, and Cellular and
Tissue-Based Products; Final Rule, 69 Fed. Reg. 29,786 (May 25, 2004); Current Good Tissue
Practice for Human Cell, Tissue, and Cellular and Tissue-Based Product Establishments;
12
framework for HCT/Ps “to improve protection of the public health without imposing
unnecessary restrictions on research, development, or the availability of new products.” Id. at
5447. Part 1271.3 defines HCT/Ps as “articles containing or consisting of human cells or tissues
that are intended for implantation, transplantation, infusion, or transfer into a human recipient.”
21 C.F.R. § 1271.3(d). Those HCT/Ps that meet the set of criteria listed in 21 C.F.R. § 1271.10
are only regulated under section 361 of the PHSA and Part 1271 of the C.F.R. In contrast, those
HCT/Ps that do not meet these criteria are regulated as “a drug, device, and/or biological
product.” 21 C.F.R. § 1271.20.
One of these criteria is that the HCT/Ps be “minimally manipulated.” 21 C.F.R.
§ 1271.10(a)(1). Minimal manipulation is defined as “processing that does not alter the relevant
biological characteristics of cells or tissues.” 21 C.F.R. § 1271.3(f)(2). Defendants admit that
“[t]he processing of the cultured cell product involves many steps, including selective culture
and expansion of a multitude of different types of blood-forming and rare bone marrow stromal
cells using plastic flasks, additives and nutrients, and environmental conditions such as
temperature and humidity, to determine the growth and biological characteristics of the resulting
cell population.” Pl.’s Statement of Material Facts [Dkt. 19] (“Pl.’s SMF”) ¶ 10; Defs.’ Resp. to
Pl.’s SMF [Dkt. 26] ¶ 10. This admission supports the conclusion that the biological
characteristics of the cells change during the process employed by Defendants, resulting in more
than minimal manipulation of the HCT/Ps originally extracted from the patient. Moreover, the
FDA’s conclusion that the Regenexx™ Procedure does not meet the regulatory definition of
“minimal manipulation” is entitled to “substantial deference.” Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994); see also Petit v. Dep’t of Educ., 675 F.3d 769, 778 (D.C. Cir.
Inspection and Enforcement; Final Rule, 69 Fed. Reg. 68,612 (Nov. 24, 2004) (“Good Practice
Rule”).
13
2012) (citing the deference afforded to an agency’s interpretations of its own regulations); Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1000 (D.C. Cir. 2008) (“The rationale for deference is
particularly strong when the [agency] is evaluating scientific data within its technical
expertise . . . .”) (internal quotations marks and citation omitted) (alteration in original)). As a
result, Defendants fail to meet at least one of the criteria listed in 21 C.F.R. § 1271.10, and the
HCT/Ps in the Regenexx™ Procedure must be regulated as a “drug” under the FFDCA.
C. Defendants Violated 21 U.S.C. § 331(k)
1. The Regenexx™ Procedure Is Subject to the Commerce Clause
The FFDCA prohibits any act “with respect to, a . . . drug . . . , if such act is done
while such article is held for sale (whether or not the first sale) after shipment in interstate
commerce and results in such article being adulterated for misbranded.” 21 U.S.C. § 331(k).
FDA alleges that Defendants have violated § 331(k) by both adulterating and misbranding a
drug. To prevail on this claim, the FDA must first establish that the cell product used in the
Regenexx™ Procedure was both (1) “held for sale” and prior to such sale had been
(2) “ship[ped] in interstate commerce.” The cell product meets both of these requirements.
Concerning the first element, “a doctor who ha[s] held drugs for use in his
practice ha[s] held those drugs for sale within the meaning of [§ 331(k)].” United States v.
Evers, 643 F.2d 1043, 1052 (5th Cir. April 1981); see also United States v. Sullivan, 332 U.S.
689, 697 (1948) (interpreting the statute to cover “every article that ha[s] gone through interstate
commerce until it finally reache[s] the ultimate consumer.”); United States v. Diapulse Corp. of
Am., 514 F.2d 1097, 1098 (2d Cir. 1975) (holding that § 331(k) covers medical devices held by
practitioners used for the treatment of their patients). Defendants create the cell product, the
“drug” in this case, and use it to treat their patients. Such conduct satisfies the “held for sale”
requirement of the statute.
14
Defendants do not contest the “held for sale” requirement but instead argue that
the Regenexx™ Procedure does not meet the “interstate commerce” requirement because the
entire process takes place intrastate at Defendants’ medical facilities in Colorado. The FFDCA
defines “drug” to include “articles intended for use as a component of any article . . . .” 21
U.S.C. § 321(g)(1)(D)(emphasis added). Courts have held that the “interstate commerce”
element is met if any component of that drug moved in interstate commerce. See Baker v.
United States, 932 F.2d 813, 816 (9th Cir. 1991) (“We hold that wholly intrastate manufacturers
and sales of drugs are covered by 21 U.S.C. § 331(k) as long as an ingredient used in the final
product travelled in interstate commerce.”); Dianovin Pharmaceuticals, Inc., 475 F.2d 100, 103
(1st Cir. 1973) (“The appellants’ use of components shipped in interstate commerce to make
vitamin K for injection brought their activities within § 331(k) . . . ). Defendants combine an
antibiotic, doxycycline, with the cell product before the drug is administered to the patients
through a syringe. Pl.’s SMF ¶ 23; Def.’s Resp. to Pl.’s SMF ¶ 23. Defendants do not dispute
that the doxycycline is shipped from out of state to their facilities in Colorado. Id. Therefore,
because a component of the drug in this case is shipped through interstate commerce prior to its
administration to the patient, the “interstate commerce” requirement is also met.
2. Adulteration
The FDA claims that Defendants have adulterated and misbranded their drug in
violation of the FFDCA. Under the terms of the FFDCA, a drug is adulterated “if it is a drug and
the methods used in, or the facilities or controls used for, its manufacture, processing, packing, or
holding do not conform to or are not operated or administered in conformity with current good
manufacturing practice . . . .” 21 U.S.C. § 351(a)(2)(B). “Drugs produced in violation of these
CGMP regulations are deemed to be adulterated without the agency having to show that they are
15
actually contaminated.” John D. Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 514 (D.C. Cir.
1988). Although Defendants claim that the Regenexx™ Procedure is not subject to the FFDCA,
they admit that the procedure does not comply with CGMP. Answer ¶¶ 31, 32. The FDA
performed two separate inspections, one in 2009 and the other in 2010, which revealed a number
of CGMP violations. Id. Having concluded that the cell product used in the Regenexx™
Procedure is a “drug” that is subject to regulation by the FFDCA and that the drug has been
“held for sale after shipment in interstate commerce,” the fact that the Regenexx™ Procedure
does not comply with CGMP renders the drug adulterated in violation of the FFDCA.
3. Misbranding
The FDA also claims that Defendants have violated the FFDCA by misbranding
the cultured cell product. The FDA asserts that the cultured cell product is misbranded because
it is a prescription drug that does not bear the “Rx only” symbol or carry “adequate directions for
use.” Under the FFDCA, a prescription drug is one which “because of its toxicity or other
potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its
use, is not safe for use except under the supervision of a practitioner licensed by law to
administer such drug .” 21 U.S.C. § 353(b)(1)(A). Once Defendants’ cell product is ready to be
used for treatment, it is administered by injection using a type of x-ray device for guidance. Pl.’s
SMF ¶ 13; Def.’s Resp. to Pl.’s SMF ¶ 13. Given the drug’s “method of use” and the “collateral
measures necessary to its use,” administration of the drug can only safely take place under the
supervision of a specially-trained practitioner. Thus, the cultured cell product is a prescription
drug under the terms of the statute.
A prescription drug is misbranded “if at any time prior to dispensing the label of
the drug fails to bear, at a minimum, the symbol “Rx only.” 21 U.S.C. § 353(b)(4)(A). It is
16
undisputed that the label of the cultured cell product does not bear this symbol. Pl’s SMF ¶ 17;
Def’s Resp. to Pl’s SMF ¶ 17. On this basis, Defendants misbrand the cultured cell product in
violation of the FFDCA.
The FDA further alleges that Defendants have misbranded the cultured cell
product because its label does not bear “adequate directions for use,” which the FFDCA requires.
21 U.S.C. § 352(f)(1) . The FDA defines “adequate directions for use” as “directions under
which the layman can use a drug safely and for the purposes for which it is intended.” 21 C.F.R.
§ 201.5. However, a prescription drug by its very definition cannot bear “adequate directions for
use” by a layman. As a result, a prescription drug must qualify for an exemption to avoid
violating the FFDCA’s misbranding provision. See United States v. Articles of Drug, 625 F.2d
665, 673 (5th Cir. 1980) (“Since a prescription drug by definition can be used only under a
physician’s supervision, and is unsuitable for self-medication, such a drug must qualify for a
regulatory exemption created by FDA, pursuant to the authority of section 352(f).”).
There are two principal exemptions to the “adequate directions for use”
requirement for prescription drugs. The statute provides an exemption to the misbranding
provision for prescription drugs if the label contains, inter alia, identifying information regarding
the dispenser, the prescriber, and the patient, as well as “directions for use and cautionary
statements.” 21 U.S.C. § 353(b)(2). This exemption, however, applies only when the drug is
actually dispensed by filling a prescription of a practitioner. Id. The FDA has also created a
regulatory exemption to the misbranding provision, which exempts prescription drugs with a
label bearing, inter alia, information regarding dosage, administration, and ingredients. 21
C.F.R. § 201.100. In contrast to the statutory exemption, the regulatory exemption applies
throughout the distribution process. Id.
17
The label for the cultured cell product contains only the “the patient’s name, date
of birth, laboratory notebook number, cell passage number, day in culture, cell number, number
of cells cryo-preserved, and condition of cell suspension.” Compl. ¶ 34: Answer ¶ 34. The
information on this label does not satisfy the disclosure requirements under either the statutory or
the regulatory exemptions.10 For this reason also, Defendants have violated the misbranding
provision of the FFDCA.
D. The Regenexx™ Procedure Does Not Avoid FDA Regulation Because
Defendants Are Engaged in the Practice of Medicine
Defendants rely heavily on their argument that the FDA cannot regulate the
Regenexx™ Procedure because it constitutes the practice of medicine. However, “[w]hile the
[FFDCA] was not intended to regulate the practice of medicine, it was obviously intended to
control the availability of drugs for prescribing by physicians.” Evers, 643 F.2d at 1048; see also
Loran Med. Sys., Inc., 25 F. Supp. 2d at 1087 (dismissing defendants’ “practice of medicine”
argument because the court concluded that the cell product was a drug and that the FDA
therefore had the authority to regulate its use). There is a difference between a licensed
physician’s use of an FDA-approved drug such as doxycycline in an off-label way, which is
permissible within the “practice of medicine,”11 and adding doxycycline to a cell product to be
administered to patients, which renders the latter a “drug” that has connections to interstate
commerce. The question of interstate commerce is not relevant to the first issue but controls the
10
The FDA has also created a regulatory exemption for “new drugs.” Section 201.115 exempts
a “new drug” from the misbranding provision if “such exemption is claimed in an approved
application.” 21 C.F.R. § 201.115. It is undisputed that Defendants have neither sought nor has
the FDA approved a new drug application for Regenexx™ Procedure. Compl. ¶. 20; Answer
¶ 20. This exemption is therefore also inapplicable.
11
See Wash. Legal Found. v. Friedman, 13 F. Supp. 2d 51, 56 (D.D.C.1998) (“[O]ff-label use of
FDA-approved drugs by physicians is an established aspect of the modern practice of
medicine.”), vacated in part on other grounds, Wash. Legal Found. v. Henney, 202 F.3d 331
(D.C. Cir. 2000).
18
second. Likewise, the fact that off-label use of an FDA-approved drug is permissible within the
practice of medicine does not speak to whether the drug traveled in interstate commerce, which
provides the nexus for regulation under the provision of the FFDCA relevant here.
Where, as here, a product meets the definition of “drug” under the FDCA, it
comes under the ambit of this law and is thus subject to its provisions. This is true even if its
regulation will affect the practice of medicine. Consequently, Defendants’ argument that the cell
product cannot be regulated by the FDA because the Regenexx™ Procedure constitutes the
“practice of medicine” is unavailing.
E. Defendants’ Counterclaims Will Be Dismissed
In addition to its motion for summary judgment, FDA has filed a motion to
dismiss Defendants’ counterclaims. Counterclaims I, II, III, and VII challenge the FDA’s
authority to regulate the practice of medicine. These claims are dismissed for the reasons stated
above. Counterclaims IV, V, and VI concern the following statement in the preamble to 21
C.F.R. § 1271: “We do not agree that the expansion of mesenchymal cells in culture . . . [is]
minimal manipulation.” Registration Rule, 66 Fed. Reg. at 5447. Counterclaims IV and V
allege that this statement is arbitrary and capricious because the underlying science for the
statement was never shared with the public and the statement was issued without considering all
relevant factors. Counterclaim VI alleges that this statement constitutes a legislative rule that
was not issued through notice and comment rulemaking.
Counterclaims IV, V, and VI arise under the Administrative Procedure Act
(“APA”). See 5 U.S.C. §§ 553, 706(2)(A). Accordingly, Defendants can only bring the
challenges in these counterclaims if the statement at issue represents “final agency action.” 5
U.S.C. § 704; see also Trudeau v. FTC, 456 F.3d 178, 188 (D.C. Cir. 2006) (explaining that
19
causes of action under the APA are limited to “final agency action”). To constitute final agency
action, two conditions must be met: (1) “the action must mark the consummation of the
agency’s decisionmaking process” and (2) it “must be one by which rights or obligations have
been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154,
177-78 (1997) (internal quotation marks and citations omitted). The challenged statement does
not meet at least the latter of these two requirements because FDA’s own regulations provide
that statements in a preamble do not carry the force of law. See 21 C.F.R. § 10.85(d)(1) & (j)
(stating that a preamble constitutes an advisory opinion and may be used for illustrative purposes
but “not as a legal requirement”). Indeed, the D.C. Circuit recently held that a statement in a
preamble did “not express a final agency action.” Am. Petroleum Inst. v. EPA, Nos. 10-1079,
10-1080, 2012 WL 2894566, at *9 (D.C. Cir. July 17, 2012). Counterclaims IV, V, and VI are
therefore dismissed.12
Finally, Defendants allege in Counterclaim VIII that the FDA lacks the authority
to enact the “entire regulatory scheme governing stem cells” because the autologous use of stem
cells carries no risk of spreading communicable diseases. As discussed above, “by delegation
from the Surgeon General and the Secretary of Health and Human Services,” FDA may enact
regulations to prevent the spread of communicable diseases pursuant to section 361 of the PHSA,
42 U.S.C. § 264(a). See Good Practice Rule, 69 Fed. Reg. at 68,613. When issuing these
12
FDA moved to dismiss on statute of limitations grounds pursuant to Fed. R. Civ. P. 12(b)(1)
(subject-matter jurisdiction), as well as Fed. R. Civ. P. 12(b)(6) (failure to state a claim). The
D.C. Circuit has not resolved whether the statute of limitations in 28 U.S.C. § 2401(a) is
jurisdictional. See Harris v. FAA, 353 F.3d 1006, 1013 n.7 (D.C. Cir. 2004) (noting uncertainty
regarding whether § 2401(a) is jurisdictional in light of Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89 (1990) but concluding it need not reach the issue). Because the statement in the
preamble does not constitute final agency action and the counterclaims regarding the preamble
must be dismissed for failure to state a claim, the Court does not reach FDA’s arguments that
these counterclaims are barred by the statute of limitations.
20
regulations, FDA carefully explained its determination that the manufacturing of HCT/Ps,
including autologous stem cells, presents a risk of spreading communicable disease:
It is important to recognize that HCT/P manufacturing inevitably
has interstate effects . . . Certain diseases, such as those caused by
the human immunodeficiency virus (HIV) and the hepatitis B and
C viruses (HBV and HCV respectively), may be transmitted
through the implantation, transplantation, infusion, or transfer of
HCT/Ps derived from infected donors . . . Errors in labeling,
mixups of testing records, failure to adequately clean work areas,
and faulty packaging are examples of improper practices that could
produce a product capable of transmitting disease to its
recipient . . . [and] improper handling of an HCT/P can lead to
bacterial or other pathogenic contamination of the HCT/P, or to
cross-contamination between HCT/Ps, which in turn can endanger
recipients.
Id. The FDA has acted within the authority granted by section 361 of the PHSA. Counterclaim
VIII will be dismissed.
IV. CONCLUSION
The FDA seeks a statutory injunction to restrain Defendants’ violations of the
FFDCA. The FFDCA provides this court with the authority “for cause shown to restrain
violations of section 331 of [the FFDCA].” 21 U.S.C. § 332(a). In the case of a statutory
injunction, once the FDA has established a violation, it need only show that there is some
“cognizable danger of recurrent violation.” United States v. W. T. Grant Co., 345 U.S. 629, 633
(1953); see also United States v. Articles of Drug, 825 F.2d 1238, 1248 (8th Cir. 1987) (“A
district court may issue an injunction if it concludes that the injunction is necessary to prevent
future violations.”). FDA notified Defendants that their Regenexx™ Procedure may be in
violation of the FFDCA. It then twice inspected Defendants’ laboratories and found a number of
CGMP violations. Defendants maintained that the FDA could not regulate their cell product and
did not bring their processes into compliance with CGMP. Although Defendants agreed to stop
21
using their Regenexx™ Procedure during the pendency of this lawsuit, there remains a
“cognizable danger of recurrent violation.”
Accordingly, FDA’s motion for summary judgment [Dkt. 19] and motion to
dismiss counterclaims [Dkt. 20] will be granted. In addition, FDA’s request for a permanent
injunction will be granted.13 Memorializing orders accompany this Memorandum Opinion.
Date: July 23, 2012 /s/
ROSEMARY M. COLLYER
United States District Judge
13
Defendants did not assert any opposition to the specific language of FDA’s proposed Order of
Permanent Injunction.
22
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 16 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
JIMMY R. GATEWOOD, JR.,
Plaintiff-Appellant,
No. 98-6392
v. (W. Dist. of Oklahoma)
(D.C. No. 97-CV-1797)
TWYLA SNYDER,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case is before the court on pro se petitioner Jimmy Gatewood’s
application for a certificate of appealability and motion to proceed on appeal in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
forma pauperis. Gatewood seeks a certificate of appealability so that he can
appeal the district court’s denial of Gatewood’s 28 U.S.C. § 2254 habeas petition.
In his petition, Gatewood alleged that Respondents had violated his constitutional
rights in the following two respects: (1) failing to give him good time credits for
time spent in a federal penitentiary serving concurrent federal and state sentences;
and (2) classifying him as a Level I, rather than Level II, prisoner upon his return
to the state penitentiary to complete the remainder of his state sentence, thereby
precluding his ability to earn future good time credits. After the case was
referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C. §
636(b)(1)(B), the magistrate issued a Report and Recommendation (“R&R”)
recommending that Gatewood’s petition be dismissed. In particular, the
magistrate noted that Gatewood had failed to identify any Oklahoma statute or
precedent providing for the earning of good time credits while an Oklahoma
prisoner is in federal custody. Furthermore, the magistrate concluded that
Gatewood did not hold any right or liberty interest in a particular classification
upon returning to the Oklahoma prison system upon completion of his federal
sentence. Upon de novo review, the district court adopted the R&R. The district
court also denied Gatewood a certificate of appealability and denied Gatewood’s
request to proceed in forma pauperis on appeal, finding that the appeal was not
taken in good faith.
-2-
Gatewood is not entitled to appeal the district court’s denial of Gatewood’s
§ 2254 petition unless he first obtains a certificate of appealability. 28 U.S.C. §
2253(c)(1)(A). Gatewood is entitled to such a certificate only if he makes “a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). In
order to satisfy this standard, Gatewood must demonstrate that the issues raised
are debatable among jurists of reason, subject to a different resolution on appeal,
or deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983).
This court has reviewed the R&R, the district court order, Gatewood’s brief
and supporting documents, Gatewood’s application for a certificate of
appealability, and the entire record on appeal. In light of that review, this court
concludes that Gatewood has failed to make a substantial showing of the denial of
a constitutional rights for substantially those reasons stated in the magistrate’s
well-reasoned R&R dated September 2, 1998. Accordingly, we DENY
Gatewood’s application for a certificate of appealability and DISMISS his
appeal. Gatewood’s motion to proceed in forma pauperis is hereby DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,778-01
EX PARTE BRANDON LOVINGOOD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 5668 IN THE 424TH DISTRICT COURT
FROM SAN SABA COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of continuous sexual
abuse of a child and sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.
Applicant contends his plea was involuntary because counsel failed to seek the suppression
of a recording of a telephone call that was taken in violation of Applicant’s Fifth Amendment right
to counsel. Applicant also contends that his plea was involuntary because counsel advised Applicant
incorrectly as to his parole eligibility. Ex parte Moussazadeh, 361 S.W.3d 684, 691–92 (Tex. Crim.
App. 2012); TEX . GOV ’T . CODE § 508.145(a). Applicant has alleged facts that, if true, might entitle
2
him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez,
334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings
of fact. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
It appears that Applicant is represented by counsel. The trial court shall determine whether
Applicant is represented by counsel, and if not, whether Applicant is indigent. If Applicant is
indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent
Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law in regard to Applicant’s
claim that his plea was involuntary. The trial court shall make specific findings as to whether
counsel failed to move to suppress the recorded jail phone conversation. If the court finds counsel
erred, it shall make specific findings as to whether there is a reasonable probability that, but for
counsel’s errors, Applicant would have insisted on a trial. The trial court shall also make specific
findings as to whether counsel told Applicant that he would be eligible for parole in twelve and a
half years, despite a conviction for continuous sexual abuse of a child. If the court finds counsel gave
inaccurate advice as to parole, it should make specific findings as to whether that advice induced
Applicant to plead guilty. The trial court shall also make any other findings of fact and conclusions
of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas
corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
3
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: September 17, 2014
Do not publish
| {
"pile_set_name": "FreeLaw"
} |
741 F.2d 401
239 U.S.App.D.C. 179
Stephen THOMPSON, Appellant,v.William P. CLARK, Secretary of the Interior, et al.
No. 82-1528.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 26, 1983.Decided Aug. 7, 1984.
Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-00535).
Charles A. Price, Washington, D.C., for appellant.
Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., with whom Edward J. Shawaker, Atty., Dept. of Justice, Washington, D.C., was on brief, for appellees. William E. Hill, Jacques B. Gelin and Peter R. Steenland, Jr., Attys. Dept. of Justice, Washington, D.C., also entered appearances for appellees.
Jere W. Glover, Washington, D.C., for amicus curiae, urging reversal.
Before ROBINSON, Chief Circuit Judge, SCALIA, Circuit Judge, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SCALIA.
SCALIA, Circuit Judge.
1
Appellant Stephen Thompson, an independent oil and gas developer, seeks review of the District Court's dismissal of his application for declaratory and injunctive relief against the appellees, Secretary William P. Clark and the Department of the Interior. Thompson v. Watt, Civ. Action No. 82-0535 (D.D.C. Mar. 17, 1982). In that action appellant challenged the validity of a final rule, promulgated by the Secretary, increasing the application and rental fees charged for certain noncompetitive federal oil and gas leases. The principal question presented on appeal is the scope of judicial review of agency action under the Regulatory Flexibility Act of 1980, 5 U.S.C. Secs. 601-612 (1982).
2
* The Secretary of the Interior ("the Secretary") administers the disposal of federal onshore oil and gas lands (i.e., rights to the oil and gas deposits) under authority delegated to him by the Mineral Lands Leasing Act of 1920, 41 Stat. 437, as amended, 30 U.S.C. Sec. 181 et seq. (1982), and the Mineral Leasing Act for Acquired Lands, 61 Stat. 913 (1947), as amended, 30 U.S.C. Sec. 351 et seq. (1982): The law establishes two basic regimes for allocating onshore oil and gas lands: "competitive leases" with five-year terms, for land located within a known geological structure of a producing oil and gas field, 30 U.S.C. Sec. 226(b), (e); and "noncompetitive leases" with ten-year terms, for other lands, 30 U.S.C. Sec. 226(c), (e). Only the latter is at issue in this case.
3
The noncompetitive leasing program consists of two subprograms (established by regulation): the so-called "Over-The-Counter" ("OTC") and "Simultaneous Oil and Gas" ("SOG") Offer systems. The former applies to federal lands which have never been previously leased; the latter to lands whose leases have been cancelled, relinquished, terminated or allowed to expire. 43 C.F.R. Subparts 3111, 3112 (1983). OTC leases are made on a first-come, first-served basis; SOG leases are allocated by lottery. Applications for both must be accompanied by a nonrefundable filing fee, and successful applicants pay an annual per acre rental fee.
4
Filing and rental fees have traditionally been established by regulation, see, e.g., 11 Fed.Reg. 12952, 12953-54, 12960 (1946), with the latter subject to certain statutory minima, see, e.g., 30 U.S.C. Sec. 226(d). Prior to 1981, the filing and rental fees for all noncompetitive leases had been set at $10 and $1 per acre, respectively. 43 C.F.R. Secs. 3103.1-3, 3103.3-2(a) (1980). As a part of the Omnibus Budget Reconciliation Act of 1981, 95 Stat. 357, Congress established a statutory minimum of $25 for the filing fee (which the Secretary promptly implemented, see 46 Fed.Reg. 45887 (1981)), and directed that any increases above $25 be established by regulation. 95 Stat. 748, Sec. 1401(d)(1). The Act also instructed the Secretary to report to Congress on the feasibility of raising the rental fee on OTC and SOG leases from the levels which the regulations currently provided. Id. at 748-49, Sec. 1401(d)(2). On October 29, 1981, the Department published a Notice of Proposed Rulemaking ("NPRM") to increase the filing fee for all noncompetitive leases from $25 per application to $75; and the rental fee for SOG leases from $1 per acre for each year in the life of the lease to $1 per acre for each of the first five years and $3 per acre for each of the last five. 46 Fed.Reg. 53645 (1981).
5
Sections 603 and 604 of the Regulatory Flexibility Act of 1980, 5 U.S.C. Secs. 603, 604, require that when an agency proposes (Sec. 603) and promulgates (Sec. 604) a rule subject to Sec. 553 of the Administrative Procedure Act, 5 U.S.C. Sec. 553 (1982), it shall prepare and make available to the public an initial (Sec. 603) and final (Sec. 604) "regulatory flexibility analysis," describing inter alia the impact of the rule on small entities. The requirement can be eliminated, however, by the agency head's certification, under Sec. 605(b), that the rule "will not ... have a significant economic impact on a substantial number of small entities."1 The Director of the Bureau of Land Management certified to this effect, based upon a report prepared by his agency. U.S. Department of the Interior, Bureau of Land Management, Determination of Effects of Rules (Oct. 22, 1981), Administrative Record ("A.R.") at 1. The NPRM, which was signed by the Assistant Secretary of the Interior with authority over the Bureau of Land Management, included a statement to the same effect. 46 Fed.Reg. at 53645.2
6
Upon publication of this proposed regulation to increase fees and rentals, the Department received 1,854 written comments, which it considered and purported to summarize in its statement promulgating the final rule on January 20, 1982. 47 Fed.Reg. 2864. This published notice included the Assistant Secretary's statement that the agency had determined the rule would not have a significant economic effect on a substantial number of small entities. On February 19, 1982, the rule became effective; five days later, appellant filed this action in district court for declaratory judgment and injunction, under the venue provision of the Administrative Procedure Act governing cases in which no special statutory review proceeding has been provided, 5 U.S.C. Sec. 703.
7
In his complaint, appellant alleged in successive counts that appellees (1) had violated Sec. 558(b) of the Administrative Procedure Act3 by issuing this regulation in a manner not authorized by Sec. 605(b) of the Regulatory Flexibility Act; (2) had violated Sec. 558(b) of the Administrative Procedure Act by issuing this regulation without compliance with the requirements of Sec. 553(c) of that Act;4 and (3) by both of the aforesaid violations, had denied appellant his due process rights under the Fifth Amendment. The District Court dismissed the complaint, concluding that the Department had complied with Sec. 553(c) of the Administrative Procedure Act and that the court lacked jurisdiction to review compliance with Secs. 603-605 of the Regulatory Flexibility Act. The Memorandum Opinion did not separately address appellant's due process claim. Thompson now appeals the denial of his Administrative Procedure Act and Regulatory Flexibility Act claims.
II
8
Appellant's assertion that appellees failed to comply with Sec. 605(b) of the Regulatory Flexibility Act rests upon two contentions, the first directed to substance and the second to procedure: First, that insufficient evidence exists in the record to support the agency's certification that the regulation will have no significant economic effect on a substantial number of small entities. And second, that appellees have disregarded the procedural requirements of Sec. 605(b), primarily by failing to publish the requisite succinct statement of reasons which explains the certification.
9
The threshold issue raised by both contentions is whether (or to what extent) judicial review is precluded by the Regulatory Flexibility Act. See 5 U.S.C. Sec. 701(a)(1). As the Supreme Court has most recently expressed the test that guides our inquiry: "[W]here substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling," but that presumption is overcome whenever "congressional intent to preclude judicial review is 'fairly discernible' in the detail of the legislative scheme." Block v. Community Nutrition Institute, --- U.S. ----, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), quoting Data Processing Service v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 831, 25 L.Ed.2d 184 (1970).
10
The express language of the Regulatory Flexibility Act leaves little to the imagination on the issue of judicial review. Section 611 provides as follows:
11
(a) Except as otherwise provided in subsection (b), any determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review.
12
(b) Any regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or noncompliance of the agency with the provisions of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review.
13
Section 611(a) is dispositive with respect to appellant's substantive claim. The certification that Secs. 603 and 604 do not apply to this rulemaking because the rule will not have a significant economic impact on a substantial number of small entities cannot possibly be understood as anything other than a "determination by an agency concerning the applicability of any of the provisions of this chapter." Similarly, Sec. 611(b) is dispositive with respect to the procedural claim. The alleged failure to publish a statement of reasons as Sec. 605 requires surely calls into question "compliance or noncompliance of the agency with the provisions of this chapter."
14
Appellant seeks to avoid the plain import of Sec. 611 by raising a "logical dilemma," Appellant's Brief at 12, posed by the last sentence of Sec. 611(b), which makes any regulatory flexibility analysis prepared by an agency part of the record subject to scrutiny on review of the final rule. That, according to appellant, compels the interpretation that Congress intended to prohibit only interlocutory review of alleged violations of the Regulatory Flexibility Act; but meant to allow review in connection with judicial examination of the final rule. We do not agree. Even the most subtle and sadistic of draftsmen would not choose to convey the plain notion that review of compliance with the Regulatory Flexibility Act is available only in connection with a challenge to the final rule by saying that review is unavailable, but the regulatory flexibility analysis becomes part of the record when the final rule is appealed. The last sentence of Sec. 611(b) means that the reviewing court will consider the contents of the preliminary or final regulatory flexibility analysis, along with the rest of the record, in assessing not the agency's compliance with the Regulatory Flexibility Act, but the validity of the rule under other provisions of law. Thus, if data in the regulatory flexibility analysis--or data anywhere else in the rulemaking record--demonstrates that the rule constitutes such an unreasonable assessment of social costs and benefits as to be arbitrary and capricious, 5 U.S.C. Sec. 706(2)(A), the rule cannot stand. Moreover, as we said in Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506 (D.C.Cir.1983), a defective regulatory flexibility analysis "may lead a court to conclude that the rule is unreasonable," id. at 538 (emphasis added), and "a reviewing court should consider the regulatory flexibility analysis as part of its overall judgment whether a rule is reasonable and may, in an appropriate case, strike down a rule because of a defect in the flexibility analysis," id. at 539 (emphasis added). For example, if a defective regulatory flexibility analysis caused an agency to underestimate the harm inflicted upon small business to such a degree that, when adjustment is made for the error, that harm clearly outweighs the claimed benefits of the rule, then the rule must be set aside. It is set aside, however, not because the regulatory flexibility analysis was defective, but because the mistaken premise reflected in the regulatory flexibility analysis deprives the rule of its required rational support, and thus causes it to violate--not any special obligations imposed by the Regulatory Flexibility Act--but the general legal requirement of reasoned, nonarbitrary decisionmaking, 5 U.S.C. Sec. 706(2)(A).5
15
The appellant and amicus would resort to the legislative history of the Act for clarification, where they think to find support for their interpretation. Although we find it unnecessary to consider the legislative history in light of the unambiguous language precluding judicial review, see United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575 (1961), we note that, far from supporting appellant's interpretation, it confirms our analysis.
16
The immediate antecedents of the Regulatory Flexibility Act were H.R. 4660, 96th Cong., 1st Sess. (1979), and S. 299, 96th Cong., 2d Sess. (1980), as reported out by the Senate Judiciary Committee, 126 CONG.REC. 21,448-49 (1980). Neither of those bills restricted judicial review of agency compliance with the Act, see H.R.Rep. No. 519, 96th Cong., 1st Sess. 11-12 (1979); S.Rep. No. 878, 96th Cong., 2d Sess. 9-10 (1980), U.S.Code Cong. & Admin.News 1980, p. 2788, and this feature was vigorously opposed by the Administration. The Director of President Carter's Regulatory Council testified that "it is important that any statute not lead to increased litigation," and that "[n]o provision should change the substantive statutory standards for rules or create new grounds for dilatory legal challenges." Regulatory Reform: Hearings on S. 104, S. 262, S. 299, S. 755 and S. 1291, Before the Subcomm. on Administrative Practice and Procedure of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 5 (Pt. 3) (1979) (statement of Peter J. Petkas). Those bills were rejected by the Senate in favor of a substitute offered by Senator Culver on the floor, see 126 CONG.REC. 21,449-51 (1980). The Culver substitute, supported by the Administration, see 126 CONG.REC. 21,452 (1980) (letter of support from Chief Counsel for Advocacy for Small Business); President's Statement on Senate Approval of S. 299, 16 WEEKLY COMP.PRES.DOC. 1508 (Aug. 6, 1980), passed both houses without amendment and constitutes the Act we have before us.
17
Senator Culver's section-by-section analysis of his substitute--the only authoritative legislative history in the record--contains the following discussion of the judicial review provision:
18
Section 611(a) states that agency determinations concerning whether the provisions of the bill apply to any action by the agency--including a decision by the agency head to certify that a rule will not have a significant economic effect on small entities--shall not be subject to judicial review .... [I]t is clearly stated that neither the regulatory flexibility analyses themselves (required by Sections 603 and 604) nor agency compliance or noncompliance with the provisions of this subchapter shall be subject to judicial review, either pursuant to this act, or section 706 (2)(D) of this title, or any other provision of law.
19
....
20
Section 611(b) provides that the contents of the regulatory flexibility analysis shall, to the extent relevant to an issue before the court, be available to and considered by a court when the court is determining the validity of the rule which is the subject of the analysis.
21
126 CONG.REC. 21,457 (1980). Speaking more specifically to the narrow aspect of reviewability immediately involved in the present case, Senator Culver's report said the following:
22
This means, for example, that the decision by an agency with respect to what proposed rules would have a significant economic impact on a substantial number of small entities pursuant to Section 605(b) shall not be subject to judicial review. Thus, the decision regarding when the agency shall conduct a regulatory flexibility analysis remains in the sole discretion of the agency.
23
126 CONG.REC. 21,460-61 (1980).
24
In opposition to this analysis, which is as clear as the language of the statute itself, amicus relies upon various statements made by individual Members of Congress on the House floor. We have examined the record of the House debate and find that all except one of the statements that purportedly support the principle of judicial review in fact do little except track or paraphrase the statutory language (particularly the provision that the regulatory flexibility analysis "shall constitute part of the whole record of agency action in connection with ... review" of the rule)--and accompany that recital with an assertion that this prevents interlocutory appeals (which, under any view of the matter, it unquestionably does) or with a triumphal pronouncement that this is a vindication of judicial oversight. See, e.g., 126 CONG.REC. 24,579 (1980) (statement of Rep. Kastenmeier); id. at 24,581 (statement of Rep. Bedell). Only one statement goes beyond such uninstructive generalization to an assertion that flatly contradicts the analysis we have set forth above: Representative McDade said that if an agency erroneously concludes there is no significant impact on small entities "it is the intent of our committee that the court[s] should strike down the regulation." 126 CONG.REC. 24,583 (1980). McDade, like almost all of those who made floor remarks favoring judicial oversight of compliance with the Regulatory Flexibility Act, was a member of the Small Business Committee which had unanimously endorsed the rejected H.R. 4660, which did not prohibit judicial review. On the point at issue here, his characterization of the effect of the legislation is not reliable. See American Trucking Associations v. ICC, 659 F.2d 452, 459 (5th Cir.1981) (need for caution in relying on legislative commentary, some of which is designed to impress constituents or influence judicial interpretation); accord, National Small Shipments v. CAB, 618 F.2d 819, 828 (D.C.Cir.1980). Representative Danielson, whose Subcommittee on Administrative Law and Governmental Relations of the House Judiciary Committee had considered comprehensive regulatory reform legislation, was quite aware of the importance of the judicial review issue and of the distortion which members of the Small Business Committee were introducing:
25
Comment has been made, as to the subject matter of judicial review, to the effect that judicial review is provided for in this bill. I should like to point out that section 611 on page 15 of the bill provides as follows:
26
[Sec. 611(a)].
27
Insofar as there may be Members who feel that judicial review is encompassed within this bill, I trust that the foregoing reference to the language of the bill itself will set that point straight.
28
126 CONG.REC. 24,590 (1980) (remarks of Rep. Danielson). In the last analysis, we do precisely what Representative Danielson urged his colleagues to do. We rely upon the language of the statute.
29
The clarity of the statutory text and its legislative history is not beclouded by the sentence of Sec. 608(b) which provides that "[i]f the agency has not prepared a final regulatory analysis pursuant to section 604 of this title within one hundred and eighty days from the date of publication of the final rule, such rule shall lapse and have no effect." That sentence is contained within a section entitled "Procedure for waiver or delay of completion," and is meant to describe the consequence that ensues if and when an agency promulgates a rule with a written finding that it is "in response to an emergency that makes timely compliance with the provisions of section 604 ... impracticable." Sec. 608(b). In that situation the emergency rule "lapses" (but is not invalidated ab initio ) unless the regulatory flexibility analysis is produced within 180 days. Obviously, some judicial action may be called for in order to pronounce and enforce the "lapse"--but the judicial determination at issue relates not to "compliance or noncompliance" with the Regulatory Flexibility Act, but to the mere fact that the rule was promulgated on an emergency basis and was not followed by a regulatory flexibility analysis within 180 days. To read this provision as applying to all rules, even those not promulgated on an emergency basis under Sec. 608, would create a strange situation in which sanction for failure to publish a regulatory flexibility analysis due upon promulgation will not be imposed so long as an analysis is published half a year later (which is, it may be noted, well past the deadline for appeal of agency rulemaking under many statutes, see, e.g., 15 U.S.C. Sec. 1394 (1982) (60 days to review National Highway Traffic Safety Administration motor vehicle safety rules))--and even then the sanction will consist not of invalidation of the rule but of mere lapse, i.e., refusal to extend the agency's six-month free ride. It seems to us clear that operation of the sentence in question is limited to the context of the subsection in which it is contained--issuance of rules on an emergency basis. Its function is not to provide judicial review of failure to complete a regulatory impact analysis, contrary to the clear language of Sec. 611; but to relieve agencies of their (nonreviewable) obligation to complete such analyses with respect to emergency rules of six months' duration.
30
To say that an agency's compliance with the Regulatory Flexibility Act is not reviewable as such is not to say that the agency can ignore with impunity the effect of its rules upon small entities. As noted earlier, when an agency prepares regulatory flexibility analyses pursuant to Secs. 603 and 604, the court will consider their contents (including any defects they may contain) "as part of its overall judgment whether a rule is reasonable" under 5 U.S.C. Sec. 553. Small Refiner Lead Phase-Down Task Force v. EPA, supra, 705 F.2d at 539. Moreover, even when an agency decides (rightly or wrongly, and with or without compliance with the requisite procedures) that it need not prepare regulatory flexibility analyses, the impact of the rule upon small entities can be placed at issue in the public comments, and the agency's failure to make adequate response to serious alleged deficiencies in this regard can of course be grounds for reversal. See Home Box Office v. FCC, 567 F.2d 9, 35-36 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). Indeed in the present case, the same issues raised by appellant's substantive challenge under the Regulatory Flexibility Act, unreviewable as such, are reviewed here in connection with appellant's claim that the Secretary failed to consider comments in the record regarding the effect of the rule on small entities. It is to that inquiry that we now proceed.
III
31
Appellant claims that the Department's failure to respond to 1,854 written comments violated its obligation under 5 U.S.C. Sec. 553(c) "to consider all relevant matter submitted by interested persons in connection with [the] rulemaking proceeding." Appellant's Brief at 16. In its promulgation of the final rule the Department acknowledged receipt of the comments, but concluded after what it said was "careful review" that "[m]ost of the comments were simply a statement of opposition or support," and no "substantive views" or "compelling argument[s] [opposed to] the proposed increases" were presented. 47 Fed.Reg. at 2864. The District Court held that the Department had complied with the requirements of Sec. 553(c) and dismissed the count.
Section 553(c) provides:
32
[T]he agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
33
This section has never been interpreted to require the agency to respond to every comment, or to analyse every issue or alternative raised by the comments, no matter how insubstantial. See Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C.Cir.1968). To the contrary, the Supreme Court has emphatically instructed us that:
34
administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that "ought to be" considered and then, after failing to do more, to bring the matter to the agency's attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters "forcefully presented."
35
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978). The failure to respond to comments is significant only insofar as it demonstrates that the agency's decision was not "based on a consideration of the relevant factors," Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). See Home Box Office, supra, 567 F.2d at 36.
36
Here the Department clearly identified the reasons for its action in its Notice of Proposed Rulemaking: "a filing fee of $75 is necessary to ensure the integrity of the leasing system, to decrease casual speculation and to encourage prompt acquisition of leases on Federal lands by those able and anxious to develop .... [T]he increase in the rental fee will encourage more timely exploration for oil and gas and discourage the holding of large inventories of Federal lands for long periods of time." 46 Fed.Reg. 53645 (1981). Those conclusions were based upon Department studies and the economic theory of lotteries. See Final Regulatory Impact Analysis, A.R. at 37; Affidavit of Abraham Haspel, Addendum to Department of Interior Brief.
37
None of the comments singled out by appellant as raising substantial issues contained any meaningful analysis or data refuting the agency's conclusions. A few simply denied the validity of the Department's plausible prediction that application fee increases would (by discouraging disguised multiple filings) promote the integrity of the system. The rest either suggested, again without any serious analysis or data, that the Department consider alternatives, such as phasing in fee and rent increases over time and creating a sliding scale of annual rents based on total acreage, or (the vast majority) complained that the increases would drive out small participants and concentrate leases in the hands of large corporations. With regard to the latter point, the Department's analysis supporting the rule (referred to and made publicly available in the NPRM) noted that most oil and gas developers now acquire their leases, not from the lottery, but in the assignment market--which is composed of land brokers and "casual" speculators who have won leases in the lottery but have no intention of exploiting the land themselves. Far from harming small independent producers, the Department expected the new regulation to help them, since the higher costs of applying for and holding the leases would drive the "casual" speculators out of the lottery. This would greatly increase the chances of a producer's obtaining a lease directly; and even where the producer himself was not the winner, he would find it cheaper and less time-consuming to deal with land brokers than to locate and bargain with "casual" speculators. See Final Regulatory Impact Analysis 9-10, A.R. at 50-51. None of the comments provided data or analysis to establish, or even asserted, that these benefits would not ensue. To the extent they complained that small casual speculators would be eliminated, they brought to the attention of the agency nothing which it had not already considered. The Department not only did not deny that consequence, but hoped to achieve it, since it viewed its mission as the fostering of oil and gas development rather than oil and gas lease speculation. Some of the comments asserted that the eliminated casual speculators would include some who were independent producers as well--but that is neither a startling revelation nor (without some statistics contradicting the Department's estimation that a larger number of winning producers would remain) destructive of the Department's rationale.
38
While the Department's statement, in promulgating the final rule, that "no substantive views [had been] presented," 47 Fed.Reg. at 2864, may have been an exaggeration, it was at least true that nothing had been presented which required some explanation beyond that already contained within the rulemaking record to assure us that "all relevant factors ha[d] been considered," Home Box Office, supra, 567 F.2d at 36. We thus agree with the judgment of the district court that the agency fully complied with the requirements of 5 U.S.C. Sec. 553(c).
39
Judgment affirmed.
1
5 U.S.C. Sec. 605(b) provides as follows:
Sections 603 and 604 of this title shall not apply to any proposed or final rule if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. If the head of the agency makes a certification under the preceding sentence, the agency shall publish such certification in the Federal Register, at the time of publication of general notice of proposed rulemaking for the rule or at the time of publication of the final rule, along with a succinct statement explaining the reasons for such certification, and provide such certification and statement to the Chief Counsel for Advocacy of the Small Business Administration.
2
The certification by the Director of the Bureau of Land Management was not published, as Sec. 605(b) requires; the statement by the Assistant Secretary was published, but was not phrased as a certification
3
5 U.S.C. Sec. 558(b) provides as follows:
A sanction may not be imposed or a substantive rule or order issued except within jurisdiction delegated to the agency and as authorized by law.
4
5 U.S.C. Sec. 553(c) provides, in relevant part, as follows:
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.
5
In Sargent v. Block, 576 F.Supp. 882, 893 (D.D.C.1983), the district court appears to have misinterpreted our Small Refiner opinion, though without any effect upon the outcome since no failure to comply with the Regulatory Flexibility Act was found. Compliance with the Act should not have been reviewed
| {
"pile_set_name": "FreeLaw"
} |
470 F.Supp. 930 (1979)
Shirley B. WESSINGER, Plaintiff,
v.
SOUTHERN RAILWAY COMPANY, Defendant.
Harold W. WESSINGER, Plaintiff,
v.
SOUTHERN RAILWAY COMPANY, Defendant.
Civ. A. Nos. 76-1372, 77-2407.
United States District Court, D. South Carolina, Columbia Division.
February 6, 1979.
*931 Ronald L. Motley, of Blatt, Fales, Bedingfield, Loadholt, Poole, Motley & Richardson, Barnwell, S. C., for plaintiff in each action and M. M. Weinberg, Jr., Weinberg, Bryan, Warner & Brown, Sumter, S. C., for plaintiff in No. 76-1372.
Robert J. Thomas and John Gregg McMaster, of Tompkins, McMaster & Thomas, Columbia, S. C., for defendant in each action.
HEMPHILL, District Judge.
This matter comes before the court for decision, in the form of defendant's Motion In Limine. Said motion contains five points, three of which have already been resolved in a hearing held January 23, 1979. The remaining points, points two and five, are the subject of this Order.
This is a diversity action instituted August 2, 1976 as the result of a trainautomobile collision that occurred on October 10, 1974, at about 11:10 p. m. at a railroad crossing near the city limits of Lexington, South Carolina. By Order issued on January 5, 1978, Harold W. Wessinger's claim for personal injuries received as a result of the collision was joined to that of his wife's, Shirley B. Wessinger, derivative claim for loss of consortium. The matter now proceeds as one, and as both parties have submitted briefs, and made oral argument in the January hearing, the matter now commands this court's decision.
Point five of defendant's motion in limine calls upon this court to reject "the application of Section 58-17-1440, South Carolina Code (1976), sometimes referred to as the `railroad crossing' statute on the ground that such statute is unconstitutional in that it denies the defendant equal protection of the laws" under Article 1, Section 3, of the South Carolina Constitution and the Fourteenth Amendment of the United States Constitution. The section states:
Penalty and damages for injury at crossing not having required signals.
If a person is injured in his person or property by collision with the engine or any car of a railroad corporation at a crossing and it appears that the corporation neglected to give the signals required by the General Railroad Law and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision or to a fine recoverable by indictment, unless it is *932 shown that in addition to a mere want of ordinary care the person injured or the person having charge of his person or property was at the time of the collision guilty of gross or wilful negligence or was acting in violation of the law and that such gross or willful negligence or unlawful act contributed to the injury.
It appears that the original version of Section 58-17-1440 was enacted in 1882, and was the outgrowth of the necessity for legislation to protect the traveling public at highway crossings. The "`Legislature evidently had in mind that injury to person or property was very likely to occur at a railroad crossing unless proper warning of the approach of trains was given to travelers, and intended by the statute to prevent such injury by requiring the railroad to give certain definitely described signals.'" Ford v. Atlantic Coast Line R. Co., 169 S.C. 41, 168 S.E. 143, 172 (1937), aff'd, 287 U.S. 502, 53 S.Ct. 249, 77 L.Ed. 457 (1933). Thus it was required that all trains approaching a crossing sound a whistle or 30 pound bell at least 500 yards before it reached the crossing and continue to sound the bell or whistle until the engine traversed the crossing. Section 58-15-910, South Carolina Code (1976). Plaintiffs assert that the statutory signal was not given and that this failure to signal, contributed to the injury, thus bringing into effect Section 58-17-1440.
It is the railroad's contention that this statute imposes an unconstitutional burden on its exercise of the defense of contributory negligence not imposed on others who may have violated a safety statute, where the violation allegedly contributed to the claimant's cause of action. Thus, it says that a railroad which fails, in violation of the statute, to give the statutory signals in approaching a crossing, may not defend against a claim arising out of a collision at such crossing by a defense of simple contributory negligence, but only by a defense of gross contributory negligence on plaintiff's part. The railroad continues by pointing out that in the case of a highway accident arising out of a violation of a highway safety statute by an operator of a car or truck, the claim of plaintiff may be defeated by proof of simple contributory negligence if the jury concludes that the statutory violation was not wilful. This difference in treatment between violations of safety statutes by railroads and others traveling upon a public highway, is, plaintiffs argue, within the General Assembly's right to make reasonable classifications of persons and property for public purposes and they cite in support the decision of Ford v. Atlantic Coast Line R. Co., 169 S.C. 41, 168 S.E. 143 (1932), aff'd, 287 U.S. 502, 53 S.Ct. 249, 77 L.Ed. 457 (1933).
Ford was decided by a court sitting almost fifty years ago. Since that time, it is important to note that a great change in highway dangers has occurred. As the court was sitting fifty years ago, automobile travel was still in its infancy. Relative to the automobiles of today, autos of today, autos of the 1920s and 1930s made poor comparisons to their swifter and more powerful locomotive counterparts, plying America's rail system. As America's road system increased in mileage and quality, so did the automobile. Advanced automotive technology spawned increased speeds and made interstate travel a practical and viable proposition. With this extension came the development and expansion of the trucking industry. The railroads who had up to this time enjoyed a position as the sole long distance land carriers, were now faced with stiff competition from these more mobile and efficient units. Today trucking plays an important part in the nation's economy, having joined the ranks of major carriers along with, and in some cases surpassing, the railroads. Large tractor-trailer rigs carrying explosive materials, such as natural gas, present a very real and dangerous hazard on today's crowded highways. Not only trucks present hazards, the modern automobile capable of high speeds reflects an instrument of great danger, and potentially great injury. In light of the above, the court is mindful that every statute and its constitutional validity must be resolved not by conditions as they existed at the time the statute was enacted, but by conditions as they exist at the time the statute's *933 constitutional validity is put in issue.[1] That was cogently declared in Georgia Southern and Florida Ry. v. Seven-Up Bottling Co., 175 So.2d 39, 40 (Fla., 1965), an authority recently approved by the Supreme Court of South Carolina.[2] In approving Georgia Southern, the South Carolina Supreme Court in effect held that under modern conditions railroads were to be placed in the same classifications as all users of the highways with claims arising out of highway accidents resulting from violations of highway safety statutes, and that the equal protection clause would not permit the railroads to be subjected to a different or harsher treatment. The Court in Marley v. Kirby, 245 S.E.2d 604, 605 (S.C., 1978) states:
The constitutional guarantee of equal protection of the laws requires that all persons be treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. Thompson v. S. C. Commission on Alcohol & Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976); 16 Am.Jur.2d, Constitutional Law § 488. While the General Assembly has the right to make reasonable classifications of persons and property for public purpose, Hunt v. McNair, 255 S.C. 71, 177 S.E.2d 362 (1970), the classification must not be purely arbitrary and must rest upon some reasonable basis. Duke Power Company v. Bell, 156 S.C. 299, 152 S.E. 865 (1930); American Trust Co., Inc. v. S. C. State Board of Bank Control, 381 F.Supp. 313 (D.C.S.C.1974); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
This, however, is exactly what Section 58-17-1440 does. It denies to the railroad the opportunity to defeat a claim of damages arising out of a crossing accident where it is asserted that the railroad failed to give the statutory signal, by proof of contributory negligence, but requires to defend in such cases that contributory wilfulness be shown. This is not the rule when highway safety statutes are violated by the operators of trucks or cars. In light of the South Carolina Supreme Court's ruling in Marley, it seems clear that any difference in classification as to both liabilities and defenses between railroads and others, such as users of the highways, can no longer withstand constitutional challenge under the equal protection clause.[3]
In summary, whatever the rule may have been 50 years ago when Ford was decided, the day is long passed for treating violations of safety statutes by a railroad any differently from violations by a trucker or automobile driver, and as such, Section 58-17-1440 is invalid under the equal protection clause.
Defendant's second point concerns the admissibility of certain expert testimony by plaintiff's experts. The experts have testified by way of deposition that the railroad crossing at which Harold Wessinger was struck was dangerous and should have been protected by an active protection device. Defendant contends such testimony should be excluded, and in support, proposes several arguments, of which the first in effect states that it owes a duty of safety *934 only to fifty (50%) percent of the travelling public, and seems the most significant. Needless to say if this was the case, it would in effect change the entire character of negligence law.
"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances." McClure v. Price, 300 F.2d 538 (4th Cir. 1962) (applying South Carolina law.) As pointed out in the opposing brief, by following defendant's reasoning, it would only need to protect the most skilled drivers and sacrifice the remainder, who because of age, infirmity, long periods of driving, or some other reason, cannot react as quickly as the other half of the population. By analogy, the manufacturer of a dangerous product would not be negligent if it placed on the product a warning that would be adequate for only half of the consumers. Under South Carolina law as espoused in Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969); Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971) (apply South Carolina law of negligence), manufacturers must anticipate all risks that are reasonably foreseeable from the use of its product. Certainly, the consequences of a collision with a train are severe and as such railroads should not be exempt from the requirements of reasonable foreseeability and reasonable care. As was stated in Robison v. Atlantic Coast Line R. Co., 179 S.C. 493, 184 S.E. 96, 101 (1936), the duty of care "must be commensurate with the risk and danger involved."
Having considered all defendant's arguments, the court feels that point two should be denied. In denying this point the court feels that many of defendant's arguments are best left for trial, where the matter can be pursued on cross examination.
In summary, defendant's motion objecting to the application of South Carolina Code Section 58-17-1440 (1976) on the grounds that it violates the Equal Protection Clause, is sustained. Defendant's second motion objecting to the admissibility of testimony by plaintiff's experts is denied.
AND IT IS SO ORDERED.
NOTES
[1] Nashville Chattanooga & St. Louis Railways v. Walters, 294 U.S. 405, 415, 55 S.Ct. 486, 79 L.Ed. 949 (1934); Gallagher v. Evans, 536 F.2d 899 (10th Cir. 1976).
[2] Marley v. Kirby, 245 S.E.2d 604, 606 (S.C. 1978).
[3] The court in Marley, which struck down the automobile comparative negligence statute, Section 15-1-300 (1976), states:
We recognize the validity of comparative negligence statutes of general application. Such statutes violate neither the due process nor equal protection clause and are enacted pursuant to the police power of a state. Am. Jur.2d, New Topic Service, Comparative Negligence, § 4. However, a comparative negligence statute applying only to a limited class of defendants is unconstitutional. The Florida Supreme Court has struck down a comparative negligence statute applying only to railroads. Georgia Southern & Florida Ry. Co. v. Seven-Up Bottling Company, 175 So.2d 39 (Fla.1965).
The limitation of the operation of the South Carolina statute to motor vehicle accidents renders the provision constitutionally defective. We cannot perceive the rational justification for singling out persons injured in automobile accidents as different from all others injured in negligent torts.
| {
"pile_set_name": "FreeLaw"
} |
159 P.3d 1 (2007)
QUALITY ROCK PRODUCTS, INC., a Washington corporation, and Eucon Corporation, an Idaho corporation, Respondents/Cross-Appellants,
v.
THURSTON COUNTY, a municipal corporation and political subdivision of the State of Washington, and Black Hills Audubon Society, Inc., a Washington nonprofit corporation, Appellants/Cross-Respondents.
No. 34128-0-II.
Court of Appeals of Washington, Division 2.
February 7, 2007.
*2 Elizabeth Petrich, Olympia, WA, David Alan Bricklin, Devon N. Shannon, Bricklin Newman Dold LLP, Seattle, WA, for Appellants/Cross-Respondents.
Gregory Jack Dennis, Michael C. Simon, Landerholm, Memovich, Lansverk & Whitesi, Vancouver, WA, David J. Ward, Greenberg Traurig LLP, Phoenix, AZ, Dawn Findlay Reitan, Inslee Best Doezie & Ryder PS, Katherine F. Weber, Bellevue, WA, for Respondents/Cross-Appellants.
PART PUBLISHED OPINION
ARMSTRONG, J.
¶ 1 A Thurston County hearing examiner granted a special use permit (SUP) to Quality Rock Products, Inc. and Eucon Corporation (collectively "Quality Rock") to expand gravel mining operations at their Thurston County mine. On review, the Board of County Commissioners (Board) remanded the matter to the hearing examiner to determine the proposed use's effect on the Black River. The hearing examiner, after considering a report and testimony from Quality Rock's expert, again conditionally approved the SUP. The Board again reversed the hearing examiner's decision and denied the SUP, ruling that Quality Rock failed to show that the proposed expansion would have no *3 significant adverse impact on the surrounding environment, specifically the Black River. Quality Rock then filed an action under the Land Use Petition Act (LUPA), chapter 36.07 RCW, seeking to reinstate the hearing examiner's decision. Quality Rock also sued for damages and attorney fees and sought a declaratory judgment allowing it to operate an asphalt plant at the mine site. The superior court reversed the Board's ruling and reinstated the hearing examiner's decision.
¶ 2 Thurston County and the Black Hills Audubon Society now appeal and Quality Rock cross-appeals the superior court's order dismissing its claims for damages and attorney fees and its request for a declaratory judgment. We hold that the Board did not err in finding that Quality Rock failed to show that the proposed use was consistent with Thurston County's comprehensive plan goals and that its proposed use would not significantly impact the Black River. Accordingly, we reverse and reinstate the Board's decision denying the SUP. We affirm the trial court's dismissal of Quality Rock's damage and declaratory relief claims.
FACTS
¶ 3 Quality Rock owns a 151-acre site in Thurston County that is adjacent to a national wildlife refuge's designated boundaries and approximately 500 feet east of the Black River. The area's geological conditions cause the groundwater under Quality Rock's site to flow toward and recharge the Black River. Quality Rock currently operates a gravel mine on 26 acres of the 151-acre site under a permit the County granted to the mine's previous owners. The Department of Natural Resources has designated those 26 acres as a Mineral Resource Land of Long Term Commercial Significance. The site's remaining 125 acres do not share that designation.
¶ 4 The Washington State Department of Ecology (DOE) lists the Black River as "water quality impaired" under section 303(d) of the Clean Water Act. Administrative Record (AR) at 346. Low flows are partially at fault for the Black River's water quality impairment. The Black River is one of the last large, intact riparian systems in the Puget Sound area, and the U.S. Fish & Wildlife Service is actively acquiring properties along portions of the Black River to preserve the existing wetland system and the habitat for migratory birds and fish and other species. Because of the Black River's low volume in the summer months, DOE closes the river to any additional water takings from July 1 to September 30. WAC 173-522-050.
¶ 5 Shortly after acquiring the site, Quality Rock applied to the County for a SUP, seeking to expand its mineral extraction operation from the originally permitted 26 acres to 151 acres, replace a concrete batch plant, install a new asphalt plant, and recycle concrete and asphalt. Quality Rock proposed to expand the mine in several phases. In phases one through three, Quality Rock plans to excavate above the groundwater table. Quality Rock then plans to excavate below the groundwater table in phases four through six. Excavation phases four through six would create a 75-acre lake.
¶ 6 The hearing examiner approved Quality Rock's SUP subject to 25 conditions. Condition "Y" of the hearing examiner's first decision stated, "The last three phases of the operation shall be subject to further review including detailed analysis of the impact of groundwater to the site, the aquifer and the Black River. This information shall be presented at a public hearing at the appropriate time." AR at 362. Black Hills appealed the hearing examiner's decision to the Board, and Quality Rock appealed certain conditions that the hearing examiner imposed.
¶ 7 After a closed-record appeal, the Board remanded the matter to the hearing examiner with directions for Quality Rock to perform a "detailed analysis" of the mine expansion's impact to the groundwater, aquifer, and the Black River. AR at 3223-24. The Board stated that several of the hearing examiner's findings, conclusions, and conditions necessitated remand "for the purpose of conducting a detailed analysis of the impact to the groundwater, aquifer and the Black River, called for in condition Y, prior to the issuance of the SUP, because if there are problems that can't be mitigated it may alter the entire approval of the project which *4 should be done up front and not several years down the road." AR at 3224.
¶ 8 Quality Rock hired Pacific Groundwater Group to perform an additional hydrogeological analysis to address the Board's concerns. As part of Pacific Groundwater Group's analysis, it installed four monitoring wells, excavated three pits to examine the upper 18 feet of geologic materials, measured water levels in wells and surface water bodies, measured stream flows at two locations, conducted an aquifer test, developed a groundwater flow model of part of the Ashley Creek[1] groundwater basin, and "assessed effects of aggregate extraction on groundwater and surface water." AR at 41. Robert Mead, the County's expert hydrogeologist, concluded that the materials Quality Rock submitted, including the Pacific Groundwater Group report, "adequately address the Hearing[] Examiner's issues." AR at 2489.
¶ 9 The hearing examiner's decision on remand incorporated most of the factual findings and all of the conclusions from the first hearing. The hearing examiner entered additional factual findings relating to the Board's concerns and entered conclusions based on those findings. Based on his findings and conclusions, the hearing examiner again approved the SUP, subject to conditions. Black Hills appealed the decision to the Board. Quality Rock did not cross-appeal the conditions the hearing examiner imposed in approving its SUP on remand.
¶ 10 The Board again denied Quality Rock's SUP, determining that (1) "the proposed location for the gravel mine is not appropriate due to the gravel mining operations' significant adverse impacts on the surrounding sensitive environment[,] . . . [and (2)] the proposed gravel mine is not consistent with the comprehensive plan policies on the natural environment." AR at 3229. The Board stated that based on the hearing examiner's findings and the lack of findings regarding impacts to the Black River, the examiner's ultimate conclusion that the project's proposed location was appropriate was not supported by substantial evidence.
¶ 11 Quality Rock filed a LUPA petition seeking review of the Board's decision and filed a complaint for money damages and declaratory relief. The trial court reversed the Board and reinstated the hearing examiner's decision. It also denied Quality Rock's damages and attorney fee claims, finding that the Board did not arbitrarily, capriciously, or unlawfully reverse the hearing examiner's decisions.
¶ 12 The trial court stated that the hearing examiner was the highest fact finder entitled to deference and that the court "reviews the record to determine if the determination made by the trier is supported by substantial evidence when viewing the record as a whole." Report of Proceedings (RP) at 119. It ruled that "[t]he [B]oard, by failing to take issue with the [Hearing Examiner's] findings of fact, accept[s] those facts as verities." RP at 118. It then determined that, viewing the record as a whole, "the hearing examiner's decision[] . . . [is] extensive and . . . supported by . . . substantial evidence." RP at 119. Additionally, the trial court stated that although the hearing examiner mislabeled some findings of fact as conclusions of law, his conclusions of law were "appropriate applications of the law." RP at 120.
¶ 13 The County and Black Hills appeal the trial court's decision. Quality Rock cross-appeals the trial court's denial of its damages claims and the court's failure to rule on Quality Rock's motion for declaratory judgment.
¶ 14 The principal issue on appeal is whether the Board erred in ruling that Quality Rock failed to demonstrate that its proposed use was consistent with the County's comprehensive plan's goals and that its proposed special use would not significantly adversely impact the environment.
ANALYSIS
I. STANDARD OF REVIEW
¶ 15 LUPA governs review of land use decisions. See Wenatchee Sportsmen *5 Ass'n v. Chelan County, 141 Wash.2d 169, 175, 4 P.3d 123 (2000). A land use decision is "a final determination by a local jurisdiction's body . . . with the highest level of authority to make the determination, including those with authority to hear appeals[] on . . . [a]n application for a project permit." RCW 36.70C.020(1)(a). In this case, the Board, functioning as an appellate body, had the County's highest level of decision making authority. TCC[2] 2.06.070, .080; TCC 20.60.020 (Table 2). Accordingly, we review the Board's decision, not the hearing examiner's.
¶ 16 We limit our review of the Board's decision to the record before the Board. HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 483-84, 61 P.3d 1141 (2003) (citing King County v. Wash. State Boundary Review Bd., 122 Wash.2d 648, 672, 860 P.2d 1024 (1993)). We may grant relief to Quality Rock, as the party seeking relief under LUPA, only if Quality Rock establishes one of RCW 36.70C.130(1)'s six standards. Under the facts of this case, Quality Rock must establish that:
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
. . .
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision.
RCW 36.70C.130(b), (d), (e).
¶ 17 Standards (b) and (e) present questions of law that we review de novo, giving deference to the Board's specialized knowledge and expertise. Pinecrest Homeowners Ass'n v. Glen A. Cloninger & Assoc's., 151 Wash.2d 279, 290, 87 P.3d 1176 (2004) (citing Isla Verde Int'l Holdings v. City of Camas, 146 Wash.2d 740, 751, 49 P.3d 867 (2002)); see also Cingular Wireless, L.L.C. v. Thurston County, 131 Wash.App. 756, 768, 129 P.3d 300 (2006) (citing HJS Dev., Inc., 148 Wash.2d at 468, 61 P.3d 1141).
¶ 18 Under standard (d)'s "clearly erroneous application" test, we apply the law to the facts and overturn the land use decision only if we have a "definite and firm conviction" that the decision maker committed a mistake. Citizens to Pres. Pioneer Park, L.L.C. v. City of Mercer Island, 106 Wash. App. 461, 473, 24 P.3d 1079 (2001) (citing Schofield v. Spokane County, 96 Wash.App. 581, 586, 980 P.2d 277 (1999)).
II. BURDEN OF ESTABLISHING RCW 36.70C.130(1)'s ENUMERATED ERRORS
¶ 19 Black Hills argues that Quality Rock, as the party seeking relief from a land use decision, has the burden of establishing one of RCW 36.70C.130(1)'s enumerated errors on appeal. Quality Rock argues that "[i]t is unclear from the case law" whether the party appealing from the highest fact finding level, or the party appealing from an appellate body, bears the burden of proof on appeal. Reply Br. of Respondent at 8. Quality Rock maintains that because the County and Black Hills lost before the hearing examiner, they bear the burden of proof on appeal, regardless of "whether that appeal is to the [Board], [the] Superior Court, or to this Court." Reply Br. of Resp. at 10. Quality Rock is mistaken.
¶ 20 Quality Rock bases its position on its belief that "[Black Hills] was the party seeking relief from the land use decision." Reply Br. of Resp. at 9. But as we have discussed, the Board, and not the hearing examiner, entered the land use decision in this case. And RCW 36.70C.130(1) provides potential grounds for relief from a land use decision. Here, Quality Rock filed a LUPA petition in Mason County Superior Court seeking review of the Board's denial of its SUP.
¶ 21 On appeal, the party who filed the LUPA petition bears the burden of establishing one of the errors set forth in RCW 36.70C.130(1), even if that party prevailed on its LUPA claim at the superior court. See Tahoma Audubon Soc'y v. Park Junction *6 Partners, 128 Wash.App. 671, 681, 116 P.3d 1046 (2005) (citing Pinecrest, 151 Wash.2d at 288, 87 P.3d 1176).[3] Thus, although Quality Rock partially prevailed before the superior court, it still bears the burden of establishing that one of RCW 36.70C.130(1)'s enumerated standards provides relief from the Board's decision.
¶ 22 In any event, the question of who has the burden of proof is not significant here because we are reviewing a legal decision. To obtain a SUP, Quality Rock had the burden of showing that its proposed use complies with the County's zoning code. TCC 20.54.040. The zoning code requires that the use comply with the comprehensive plan and that it is appropriate in the proposed location. TCC 20.54.040(1), (3). And this requires a showing that the proposed use will not result in substantial or undue adverse effects on the natural environment. TCC 20.54.040(3)(a). The hearing examiner found that Quality Rock had carried its burden of proof. The Board accepted the hearing examiner's findings but disagreed with his legal conclusion that Quality Rock's proposal complied with the County's zoning code. The question on appeal is whether the Board erred in ruling that Quality Rock's evidence failed to establish that its proposed use posed no threat of substantially harming the environment.
III. THURSTON COUNTY'S CODE AND THE BOARD'S DECISION
¶ 23 Under the Thurston County Code, "[e]ach zoning district lists special uses that, because of their special impact or unique characteristics, can have a substantial adverse impact upon or be incompatible with other uses of land." TCC 20.54.010. The code also provides a review process for evaluating a proposed special use's location, scale, compatibility with rural character, and development characteristics as well as its impact on adjacent properties and the community as a whole. TCC 20.54.010, .040, .060, .070. Because county officials often cannot determine the proposed uses in advance, the County requires compliance with general and specific development standards for these special uses as a prerequisite to permit approval. TCC 20.54.010, .040, .070. ("In addition to the specific standards set forth hereinafter with regard to particular special uses, all uses authorized as special uses shall meet the following standards"); Cingular, 131 Wash. App. at 775, 129 P.3d 300 (citations omitted). Thus, for the Board to approve its SUP, Quality Rock had to meet both the specific standards applicable to mineral extraction and the general standards applicable to all special uses. TCC 20.54.040, .070(21); Chapter 17.20 TCC.
¶ 24 TCC 20.54.040 provides the general standards applicable to Quality Rock's proposed project. TCC 20.54.040(1) states that all proposed special uses "shall comply with the Thurston County Comprehensive Plan and all applicable federal, state, regional, and Thurston County laws or plans." And the general standard in TCC 20.54.040(2) requires "[t]he proposed use [to] comply with the general purposes and intent of the applicable zoning district regulations and subarea plans." Additionally, "[n]o application for a special use shall be approved unless a specific finding is made that the proposed special use is appropriate in the location for which it is proposed." TCC 20.54.040(3). The decision making authority must base that finding, in part, on the following criteria:
Impact. The proposed use shall not result in substantial or undue adverse effects on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare.
TCC 20.54.040(3)(a).
¶ 25 When the Board remanded this case to the hearing examiner, it asked for a "detailed *7 analysis of the impact to the groundwater, aquifer and the Black River." AR at 3224. Quality Rock produced a hydrogeologic analysis report ("report" or "study") and a supplemental report from Pacific Groundwater Group addressing groundwater issues. Quality Rock argues that the supplemental report shows that the proposed expansion would have very little impact to water quality and quantity.
¶ 26 Quality Rock points to a portion of the study that says the resulting 75-acre lake would result in an "estimated reduction in groundwater recharge at the pit lake [of] approximately 5 to 9 [percent] of the current groundwater flow beneath the mine[, which is] equivalent to the withdrawal of a few domestic wells."[4] AR at 2507. The report says that "[i]n comparison to the water budget of the Black River valley, however, the change is extremely small." AR at 2507. Missing from this analysis, however, is any assessment of this withdrawal's effect on the Black River's flow volume, particularly during the peak production, dry summer months.
¶ 27 Quality Rock admits that it did not conduct site specific analysis from the area downgradient of the mine, but it maintains that it did not need to because (1) TCC 17.20.200 does not require that data; (2) that data was unnecessary in any event because Pacific Groundwater Group assumed that all water flows through the site into the Black River; and (3) Robert Mead, the County's expert hydrogeologist, never requested any such information and deemed the Pacific Groundwater Group studies appropriate and conclusive on all water issues that the Board remanded. Quality Rock argues that by "assuming that 100 [percent] of the groundwater flowing through the site reaches the Black River, [Pacific Groundwater Group] projected the maximum impact to that system." Br. of Respondent at 25. Thus, Quality Rock argues, "Site specific studies downgradient of the mine were [unnecessary]." Br. of Respondent at 25.
¶ 28 But none of this directly answers the Board's concern about the specific impact the increased mining would have on the Black River. In addressing the problem of increased water evaporation from the new lake, Pacific Groundwater Group concluded that "[i]n comparison to the water budget of the Black River valley, however, the change [from previous evaporation to new] is extremely small." AR at 2507. The Board was clearly looking for more than this. The hearing examiner's findings document the Black River's fragile condition, particularly during the dry months, which are also the high-volume mining months. So sensitive is the river during these months that the State has closed it to further water takings. The Board was properly concerned with knowing the exact impact, as far as science can demonstrate, that the increased mining would have on the river. An "extremely small" conclusion does not meet this concern. Rather, it removes from the Board the ability to decide on its own whether the increased evaporation would significantly impact the river.
¶ 29 In addition, Pacific Groundwater Group did not investigate Quality Rock's 5,000 gallon-per-day well presently on the property. Quality Rock contends that because the well is legal and it has the right to draw 5,000 gallons per day from it, the County lacks authority to regulate, restrict, or prohibit Quality Rock's use of the well. Quality Rock misses the point. Quality Rock had the burden of showing that its expanded operation would not significantly impact the river. And even if some of its present water use would be protected under an expanded mining operation, the Board was entitled to know the impact on the river of present water use combined with new water use. *8 Again, Quality Rock, through Pacific Groundwater Group's study, did not provide the specific information the Board needed to evaluate the total impact.
¶ 30 Finally, Quality Rock's failure to present sufficient information on the critical question is reflected in the hearing examiner's findings. The examiner entered findings on the expected effects on neighbors' wells and Ashley Creek, the expected evapotranspiration changes caused by the 75-acre lake, and the general effect to the underlying aquifer. But he made no findings as to the specific effect the project would have on the Black River.
¶ 31 The Board's decision to deny Quality Rock's SUP is consistent with TCC 20.54.040(3)(a)'s requirement that the County will not grant a SUP without a showing that the proposed special use will not cause substantial adverse impacts to the environment. In ultimately denying Quality Rock's SUP application, the Board stated that several of the hearing examiner's factual findings "clearly establish that there is a hydraulic link between the groundwater on site and to the water quality impaired Black River[,] . . . [and that] the proposal [poses] a significant risk to groundwater." AR at 3230-31. The Board also noted that although it had remanded for study of the impacts to the Black River, "the hearing examiner did not make any findings on impacts to the Black River." AR at 3231. Based on the hearing examiner's findings and the lack of findings addressing impacts to the Black River, the Board ruled that the record did not support the conclusion that the proposed project "will not have an adverse impact on the surrounding environment, including the Black River." AR at 3231.
¶ 32 The Board also explained that the proposed expansion was not consistent with the comprehensive plan's natural environment policies on (1) protecting wildlife habitat for important species and protecting unique and rare habitats, (2) recognizing the hydrologic continuity between ground and surface water, (3) protecting groundwater aquifers, fish and wildlife habitat, and recreational functions of streams, and (4) protecting streams from adverse impacts of activities occurring adjacent to their waters or within their watersheds by avoiding degradation of water quality.
¶ 33 Quality Rock takes issue with the brevity of the Board's finding with respect to compliance with the comprehensive plan's policies. But the Board's decision lists several of the hearing examiner's factual findings that show inconsistencies between the proposed project and the comprehensive plan's policies on the natural environment. For instance, the Board noted the hearing examiner's findings that (1) the Black River refuge surrounds the subject property, (2) the U.S. Fish & Wildlife Service is actively acquiring properties along the Black River to preserve the existing wetland system that provides a habitat for migratory birds and fish and other species, (3) groundwater beneath the site flows from east to west, toward the Black River, (4) the Black River is water quality impaired, and (5) the Black River is considered to be one of the last large, intact riparian systems in the Puget Sound area.
IV. ALLEGED RCW 36.70C.130 ERRORS
1. Decisions Outside the Board's Authority or Jurisdiction RCW 36.70C.130(e)
¶ 34 We may grant Quality Rock relief from the Board's decision if Quality Rock establishes that the decision "is outside the [Board's] authority or jurisdiction." RCW 36.70C.130(1)(e). Quality Rock argues that the Board acted outside of its authority and jurisdiction because the County's Mitigated Determination of Nonsignificance (MDNS) was final and binding, and the Board's decision contradicts the MDNS.
¶ 35 Quality Rock reasons that because the County's responsible official determined that, as mitigated, the project "does not have a probable significant adverse impact upon the environment[,]" the County is now "bound by its own final determination that the project did not have probable significant adverse environmental impacts." Br. of Respondent at 29. Citing Lakeside Indus. v. Thurston County, 119 Wash.App. 886, 83 P.3d 433 (2004), and Wenatchee Sportsmen Ass'n, 141 Wash.2d 169, 4 P.3d 123, Quality Rock contends *9 that the County's and Black Hills's failure to appeal the MDNS bars the Board from determining that the project has a significant adverse impact on the surrounding environment. Thus, Quality Rock argues, the Board acted outside of its authority and jurisdiction when it disregarded the "binding conclusion" and declared that the project would have "`significant adverse impacts on the surrounding sensitive environment.'" Br. of Respondent at 29 (quoting CP at 475); see RCW 36.70C.130(1)(e).
¶ 36 Neither Lakeside nor Wenatchee Sportsmen Association stands for the proposition that the failure to appeal an MDNS bars the Board from determining that the project has significant or undue adverse impacts. Quality Rock is correct that a party who wants to appeal a SEPA determination, such as an MDNS, must appeal that decision along with the underlying government action subject to SEPA. State ex rel. Friend & Rikalo Contractor v. Grays Harbor County, 122 Wash.2d 244, 249, 857 P.2d 1039 (1993). But no Washington court has held that a party must appeal a SEPA decision, such as an MDNS, to validate a challenge to the permit itself.
¶ 37 The MDNS is a "threshold determination." AR at 631. The MDNS expressly notes that "[t]he issuance of this Determination of Nonsignificance does not constitute project approval. The applicant must comply with all applicable requirements of Thurston County Departments and/or the Hearing Examiner prior to receiving permits." AR at 631. Moreover, the MDNS requires Quality Rock to obtain a SUP. And to get the SUP, Quality Rock had to show that its proposed use would not result in substantial or undue adverse affects to the natural environment. TCC 20.54.040(3)(a). The County issued the MDNS without access to most of the information that the hearing examiner and the Board ultimately based their decisions on. For instance, Quality Rock's response to the environmental checklist that it completed to obtain the MDNS did not even identify the Black River as a surface water body in the proposed expansion's vicinity. The MDNS did not bind the Board to a determination that the proposed expansion would not result in significant adverse impacts to the natural environment.
2. Clearly Erroneous Application of the Law to the Facts RCW 36.70C.130(1)(d)
¶ 38 Under LUPA, we may grant Quality Rock relief from the Board's decision if Quality Rock establishes that the decision "is a clearly erroneous application of the law to the facts." RCW 36.70C.130(1)(d).
¶ 39 Quality Rock argues that the Board misapplied the law to the facts because the Board applied the wrong criteria in denying Quality Rock's SUP. Specifically, Quality Rock maintains that the Board erroneously applied TCC 20.54.040(3)'s "appropriate location" criteria to the facts when the Board concluded that the proposed expansion would result in "significant adverse impacts" rather than "substantial or undue adverse effects," per TCC 20.54.030(3)(a).
¶ 40 In denying Quality Rock's SUP, the Board stated that "the proposed location for the gravel mine is not appropriate due to the gravel mining operations' significant adverse impacts on the surrounding sensitive environment." AR at 3229. The Board also stated that "the proposed gravel mine is not consistent with the comprehensive plan policies on the natural environment," that "the proposal does pose a significant risk to groundwater," and that "the hearing examiner's ultimate conclusion that the proposed location of the project is appropriate and that the project will not have an adverse impact on the surrounding environment, including the Black River, and community is not supported by the evidence in the record." AR at 3229, 3231.
¶ 41 The Board's statements adequately convey the Board's basis for denying the SUP. Further, TCC 20.54.040(3) does not require the Board to use the exact phrase "substantial or undue adverse effects" in explaining its decision. And the Board's language accurately reflects its core decision that Quality Rock failed to show the absence of a substantial adverse or harmful impact to the environment. Quality Rock has not persuaded us that the Board clearly misapplied *10 the law. Mercer Island, 106 Wash.App. at 473, 24 P.3d 1079 (citing Schofield, 96 Wash. App. at 586, 980 P.2d 277).
3. Erroneous Interpretation of the Law RCW 36.70C.130(1)(b)
¶ 42 As previously mentioned, we may grant Quality Rock relief from the Board's denial of its SUP if Quality Rock establishes that the Board's decision "is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise." RCW 36.70C.130(1)(b).
¶ 43 Quality Rock contends that the Board erroneously interpreted the law when it concluded that the hearing examiner's mitigating conditions were inadequate. But the heart of the Board's decision was that Quality Rock failed to show the project's true impact of its proposed SUP on the Black River. And if the Board did not know the full impact, it could not test the adequacy of the hearing examiner's mitigating conditions. Thus, because Quality Rock failed to provide an accurate measure of the risk, the Board did not err in rejecting mitigating factors.
¶ 44 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: HOUGHTON, C.J., and HUNT, J.
NOTES
[1] Ashley Creek is a stream that flows through a portion of Quality Rock's property and empties into the Black River.
[2] Thurston County Code.
[3] Quality Rock's attempt to distinguish Tahoma Audubon, 128 Wash.App. 671, 116 P.3d 1046, on the ground that no Board reviewed the hearing examiner's decision fails because there the losing party before the hearing examiner filed a LUPA petition in the superior court. Tahoma Audubon, 128 Wash.App. at 677, 116 P.3d 1046. The court stated that "burden [of establishing one of the errors set forth in RCW 36.70C.130(1)] remains with the petitioning party on appeal, even if that party prevailed on its LUPA claim." Tahoma Audubon, 128 Wash.App. at 677, 116 P.3d 1046 (citing Pinecrest, 151 Wash.2d at 288, 87 P.3d 1176). Quality Rock filed the LUPA petition; it is the petitioning party.
[4] The County and Black Hills criticize the analysis because Pacific Groundwater Group compared the new lake evapotranspiration rate with a forested land's evapotranspiration rate. The area is not forested and more water flows through bare land than forested land to an underlying aquifer. Pacific Groundwater Group used the forested land comparison, assuming that the land would be returned to a vegetated state "after mining is completed." AR at 2503. The County and Black Hills point out that Pacific Groundwater Group's estimated loss to the aquifer is low because of this. Moreover, Quality Rock may not be complete with the mining for years.
| {
"pile_set_name": "FreeLaw"
} |
452 N.E.2d 434 (1983)
Nickie L. TWYMAN, Petitioner-Appellant,
v.
STATE of Indiana, Respondent-Appellee.
No. 2-183A3.
Court of Appeals of Indiana, First District.
August 18, 1983.
Rehearing Denied September 30, 1983.
*435 Susan K. Carpenter, Public Defender, Paul Levy, Deputy Public Defender, Indianapolis, for petitioner-appellant.
Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for respondent-appellee.
RATLIFF, Judge.
STATEMENT OF THE CASE
Nickie L. Twyman appeals from the denial of his petition for post-conviction relief under Indiana Rules of Procedure, Post-Conviction Rule 1. We affirm.
FACTS
In May of 1974, Nickie L. Twyman was arrested on a charge of robbery. An information was filed on May 15th charging William Twyman with the robbery. Nickie Twyman was in fact the person arrested on this charge. William is Nickie's brother who was then twenty years old. At the time, Nickie was three months short of seventeen. Nickie Twyman appeared in the Criminal Court of Marion County, Division Two, and pleaded not guilty. At no time did he reveal either his true age or identity to the court although he testified he told his lawyer. Later, pursuant to a plea agreement, the charge was reduced to assault and battery with intent to commit a felony,[1] and Nickie pleaded guilty on July 24, 1974, receiving an indeterminate sentence of one to ten years. At the guilty plea hearing, Nickie twice told the court he was twenty years old. At his sentencing hearing on July 29, 1974, Nickie stated, in response to the court's question, that he knew of no reason why the court should not enter sentence on his guilty plea. Nickie's identity as the person who committed the offense clearly was established at the guilty plea hearing by the testimony of the victim and the arresting officers. Nickie served the sentence imposed.
In 1978, and again in 1980, Nickie was convicted of burglary. In the 1980 charge, an additional count charging him with being an habitual offender[2] was added and his sentence was enhanced by thirty years for a total sentence of forty years. The 1974 conviction is one of the underlying felonies supporting the habitual offender charge. He appealed the habitual offender determination challenging only the sufficiency of the evidence of identification of him as the same person as the William Twyman whose prior convictions were the basis for the habitual offender adjudication. Our supreme court affirmed. Twyman v. State, (1982) Ind., 431 N.E.2d 778.
Twyman then filed this petition for post-conviction relief on June 23, 1982, asserting for the first time his juvenile status in 1974, and attacking the 1974 conviction on the ground the court lacked jurisdiction to accept his guilty plea and to enter sentence. The state answered that Twyman's claim for post-conviction relief was barred by the failure to assert his claim from July 29, 1974, to the filing of the petition in June of 1982.
Following a hearing on the petition, the trial court entered its findings of fact and conclusions of law denying post-conviction relief on the ground that "[t]he issue raised by the Petitioner has been waived for purposes of Post-Conviction Relief under the doctrine of laches because the issue has been available to Petitioner since July 29, 1974." Record at 70.
ISSUES
The issues in this case, which we have restated in the interests of clarity, are:
*436 1. Was Nickie Twyman's 1974 conviction void because the court lacked jurisdiction to accept the guilty plea and to impose sentence?
2. Did the court err in determining that Twyman had been guilty of laches thereby waiving the issue presented in this petition?
DISCUSSION AND DECISION
Issue One
Twyman argues that because of his juvenile status and lack of a waiver from juvenile court in July 1974, the Criminal Court of Marion County lacked subject matter jurisdiction to accept his guilty plea and to enter sentence. Thus he contends his 1974 conviction is void and cannot form the basis for his enhanced sentence as an habitual offender.
If the jurisdictional problem posed by Twyman is one of lack of subject matter jurisdiction, we agree that subject matter jurisdiction cannot be conferred by consent, agreement, waiver, fraud, or laches. To resolve this problem we first must examine the basic concept of jurisdiction and its elements. Then we must consider the effect, if any, of Twyman's misrepresentation of his age and of his delay in asserting his true age.
Jurisdiction is the legal power to entertain any matter or proceeding, and the power to act must be derived from the Constitution or from some statute. Farley v. Farley, (1973) 157 Ind. App. 385, 300 N.E.2d 375, trans. denied (1974). Jurisdiction, in this state, embraces three essential elements: (1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (3) jurisdiction of the particular case. State ex rel. Dean v. Tipton Circuit Court, (1962) 242 Ind. 642, 181 N.E.2d 230; State ex rel. Gilbert v. Circuit Court of Koscuisko County, (1960) 241 Ind. 122, 170 N.E.2d 51; Farley. Subject matter jurisdiction concerns whether or not the particular court has jurisdiction over the general class of actions to which the particular case belongs. Pund v. Pund, (1976) 171 Ind. App. 347, 357 N.E.2d 257; Brendanwood Neighborhood Association, Inc. v. Common Council, (1975) 167 Ind. App. 253, 338 N.E.2d 695, trans. denied (1976). Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred by the consent or agreement of the parties. Carpenter v. State, (1977) 266 Ind. 98, 360 N.E.2d 839; City of Marion v. Antrobus, (1983) Ind. App., 448 N.E.2d 325. Neither can an objection to subject matter jurisdiction be waived. Carpenter; Shanholt v. State, (1983) Ind. App., 448 N.E.2d 308 (transfer pending).
"Jurisdiction of the particular case refers to the right, authority and power to hear and determine a specific case within that class of cases over which a court has subject matter jurisdiction." Antrobus, 448 N.E.2d at 329. A court can have jurisdiction over an entire class of actions but not have jurisdiction over a particular case within that class because of the facts of that particular case. Public Service Company of Indiana, Inc. v. Decatur County Rural Electric Membership Corp., (1977) 173 Ind. App. 198, 363 N.E.2d 995, trans. denied. Objections to the trial court's jurisdiction of the particular case may be waived by not raising them at the earliest opportunity. Antrobus; Shanholt; 7 I.L.E. Courts § 7 (1958).
Jurisdiction of the person refers to the particular parties who are brought before the court, and the right of that particular court to exercise jurisdiction over those parties. Farley. Objections to jurisdiction of the person may be waived by failure to assert them in a timely manner. Vogelgesang v. Metropolitan Board of Zoning Appeals, (1973) 157 Ind. App. 300, 300 N.E.2d 101, trans. denied (1974); Ind.Rules of Procedure, Trial Rule 12(H).
Having made these general observations concerning jurisdiction and its elements, we turn now to a determination of whether or not the criminal court, where there had been no waiver from the juvenile court, lacked subject matter jurisdiction in the 1974 charge against Twyman. Or, if there was a jurisdictional defect, was it merely lack of jurisdiction of the person or lack of *437 jurisdiction of the particular case. Inextricably interwoven into that determination is the effect, if any, of Twyman's deliberate misrepresentation of his age.
The applicable statutes in effect in 1974 provided that the juvenile court shall have exclusive original jurisdiction, absent waiver, in all cases in which a child was alleged to be delinquent. Ind. Code § 33-12-2-3 (Burns' Code Ed. 1973, since repealed). A delinquent child was defined, inter alia, as a child under eighteen years of age who had committed an act which would be a crime not punishable by death or life imprisonment if committed by an adult. Ind. Code § 31-5-7-4 (Burns' Code Ed. 1973, since repealed). This statute has been held to give exclusive jurisdiction to the juvenile court over all persons under eighteen except in certain specified cases not involved here. Blackwell v. State, (1970) 255 Ind. 100, 262 N.E.2d 632. It was further provided that, under certain circumstances, the juvenile court could "waive jurisdiction and order such child held for trial ... [in] the court which would have jurisdiction of such offense if committed by an adult." (Emphasis added.) Ind. Code § 31-5-7-14 (Burns' Code Ed. 1973).[3]
Although our courts on occasion have used the term "subject matter jurisdiction" in reference to juveniles charged with crime in an adult court, Blythe v. State, (1978) 268 Ind. 97, 373 N.E.2d 1098; Seay v. State, (1975) 167 Ind. App. 22, 337 N.E.2d 489; a closer examination of the language employed by our supreme court in several cases leads to the conclusion that the problem is one of jurisdiction of the person rather than jurisdiction of the subject matter. For example, it has been held that a criminal court cannot obtain jurisdiction of a juvenile offender until there is a waiver from the juvenile court. Hicks v. State, (1967) 249 Ind. 24, 230 N.E.2d 757. "Before a criminal court can obtain jurisdiction over a juvenile offender charged with an act which would amount to a crime if committed by an adult, the juvenile court must properly waive its exclusive jurisdiction over the juvenile." (Emphasis added.) Edwards v. State, (1967) 250 Ind. 19, 22, 231 N.E.2d 20, 21, reh. granted as to sufficiency of waiver order, 250 Ind. 23, 234 N.E.2d 845 (1968). "The juvenile court's jurisdiction is exclusive with respect to children charged with crimes (citation omitted). Even if the court finds the prerequisites for waiver to exist ... it retains discretion to keep the child within the juvenile system." (Emphasis added.) Trotter v. State, (1981) Ind., 429 N.E.2d 637, 642. In a case involving the propriety of a waiver order, our supreme court stated that an improper waiver voids subsequent criminal action, but found the waiver proper. The court there stated that "[t]he juvenile waiver statute, Ind. Code § 31-5-7-14 (Burns 1979 Supp.), provides that the juvenile judge may waive jurisdiction over a child over fourteen years if the court finds [the relevant statutory prerequisites to exist.]" (Emphasis added). Shepard v. State, (1980) Ind., 404 N.E.2d 1, 3. The previously quoted language from Blackwell also supports the view that the question is one of jurisdiction of the person. That the issue involved is one of jurisdiction of the person was stated clearly by Justice Givan in his dissenting opinion in State ex rel. Atkins v. Juvenile Court of Marion County, (1969) 252 Ind. 237, 247, 247 N.E.2d 53, 58, where he stated:
"That portion of the statute giving exclusive jurisdiction to the juvenile court and requiring other courts with criminal jurisdiction to transfer the juvenile cases to the juvenile court is a transfer of jurisdiction of the person and thus a limitation on the court's right to try the juvenile for a crime without first sending the matter to the Juvenile Court." (Emphasis added.)
The majority in Atkins held that an indictment or affidavit in criminal court as to a juvenile is a nullity and "gives the criminal court no jurisdiction of the persons named therein or of the cause." Atkins at 252 Ind. at 243, 247 N.E.2d at 56. We think *438 the language employed by the majority in Atkins refers not to subject matter jurisdiction but rather to jurisdiction of the person and jurisdiction of the particular case. Although we are inclined toward the view that the issue involved here is one of jurisdiction of the person, for purposes of this case it matters not whether it be jurisdiction of the person or of the particular case since objections to either may be waived.
We believe the Criminal Court of Marion County had subject matter jurisdiction both of robbery, the offense originally charged, and assault and battery with intent to commit a felony, the offense to which Twyman pleaded guilty and for which he was sentenced. That court may not have had jurisdiction of the person over Twyman or jurisdiction of the particular case, because of Twyman's juvenile status, but under the particular circumstances of this case and for reasons hereinafter stated, we believe any objection to the lack of either personal jurisdiction or jurisdiction over the particular case has been waived.[4]
Our next inquiry concerns the effect of Twyman's deliberate misrepresentation to the court that he was twenty years old. The only Indiana case which we have found dealing with misrepresentation of age is Cummings v. State, (1969) 252 Ind. 701, 251 N.E.2d 663. In Cummings, the appellant was sixteen. As our supreme court observed, "[t]he only claim that appellant was over eighteen years old was made by appellant herself to the probation officer and during trial when she represented herself to be twenty years old." 252 Ind. at 703-04, 251 N.E.2d 663. The trial court did not conduct any hearing as to her age. The court said further: "Since the appellant was under eighteen years of age and was not charged with a traffic or a capital offense, she was not within the jurisdiction of the circuit court ..." (Emphasis added) 252 Ind. at 704, 251 N.E.2d 663. "Since the circuit court did not have jurisdiction of appellant in this case the said trial court is ordered to grant appellant's belated motion for a new trial and to transfer this cause to the Juvenile Court ..." (Emphasis added) 252 Ind. at 707, 251 N.E.2d 663.
With regard to Cummings, first, we believe the emphasized portions of the foregoing quotations therefrom support our view that the age of the offender, whether juvenile or adult, affects jurisdiction of the person, or, at most jurisdiction of the particular case rather than jurisdiction of the subject matter. Second, Cummings is distinguishable because reasonably prompt action was taken to rectify the error in contrast to the eight year delay in this case.
Courts in other jurisdictions have held that a juvenile who deliberately misrepresents his age as being over the juvenile age waives his or her right to be treated as a juvenile. Penn v. Peyton, (W.D.Va. 1967) 270 F. Supp. 981; Smith v. State, (Fla.App. 1977) 345 So.2d 1080; People v. Henderson, (1971) 2 Ill. App.3d 285, 276 N.E.2d 377; State v. Peterson, (1966) 9 Ohio Misc. 154, 223 N.E.2d 838; Sheppard v. Rhay, (1968) 73 Wash.2d 734, 440 P.2d 422; Nelson v. Seattle Municipal Court, (1981) 29 Wash. App. 7, 627 P.2d 157; Cf. People v. Smith, (1974) 59 Ill.2d 236, 319 N.E.2d 760 (where 16 year old defendant had misrepresented age to police and his true age was discovered immediately after entering guilty plea, trial court acted properly in vacating guilty plea and remanding case to juvenile court. But court approved the holding in Henderson that a deliberate misrepresentation of age and a failure to attempt to rectify for two months amounted to a waiver of rights as a juvenile.) See also Forder v. State, (Tex.Cr.App. 1970) 456 S.W.2d 378, (Defendant told arresting officer he was 17, when in fact he was only 16, and confessed. Under *439 the circumstances, failure to take him before a juvenile court immediately upon arrest and failure to notify his mother before taking his confession was not reversible error.)
Penn is factually quite similar to this case. There, the defendant in a Virginia state court action told the police, his attorney, and the court that he was eighteen. In fact, he was three months short of seventeen. Six years later, he filed a state habeas corpus action, and upon denial, filed a federal habeas action seven years after his conviction. In the federal proceeding he contended he had been deprived of his constitutional rights by the failure to comply with juvenile law procedures. The federal court held he had waived his right to a juvenile investigation. The court observed that under Virginia law failure to conduct the statutory investigation (waiver proceedings) deprives the court of jurisdiction to try the defendant as an adult. But, the court noted, all the cases so holding dealt with situations where the court knew the defendant was under eighteen. In discussing the problem presented in Penn, the court stated:
"Thus, if the trial court here had notice that petitioner was a minor, it is clear the trial court should not have tried petitioner as an adult without conducting the statutory investigation. But in the present case the trial court had no notice that petitioner was a minor, and had been misled by petitioner's assertion that he was 18 years of age.
... .
"This court feels that petitioner waived his right to the statutory investigation by misrepresenting to the trial court that he was 18 years of age. To hold otherwise would place an unconscionable burden on the state courts. To uphold petitioner's contention would require the state courts to conduct an independent investigation to determine the true age of every defendant. Any minor defendant would be able to mislead a court and take his chances on being tried as an adult, and then if unsatisfied with the result, the minor defendant could assert his minority and have the conviction set aside... . In the present case ... this court feels that petitioner waived his rights as a minor by misrepresenting his true age."
270 F. Supp. at 984-85.
In Nelson, a street-wise teenage prostitute deceived the court into believing she was over eighteen, received a suspended sentence, and later asserted her juvenile status when faced with probation revocation, a fact not unlike Twyman's assertion of juvenile status after being sentenced as an habitual offender.[5] The Washington Court of Appeals held she had waived her right to be treated as a juvenile, saying:
"By her intentionally deceptive conduct, she avoided juvenile court where she would have been connected to her record there and treated accordingly. She opted instead to go to adult court where she received a deferred sentence. It was only when it appeared likely she would go to jail because of her probation violations that she claimed her rights as a juvenile. This the law will not countenance."
627 P.2d at 159.
The Illinois Court of Appeals in Henderson said that a "[d]efendant should not be allowed to take her chances in the Criminal Division, and upon an adverse outcome, demand reversal and a new trial in the Juvenile Court." 276 N.E.2d at 378. And, the Ohio court in Peterson observed that a contrary decision "could well cause a high incidence of age misrepresentations with the deceitful party waiting to see how he fares in adult court before disclosing his minority. This not only is fraudulent but would be a *440 ridiculous mockery of the courts." 223 N.E.2d at 840.
Thus, we believe that it would be a mockery of the courts and our judicial system if Twyman, who deliberately deceived the criminal court as to his age and accepted the benefit of a plea bargain substantially reducing the charge, were allowed, eight years later, when faced with an enhanced sentence as an habitual offender, to assert his juvenile status for the first time, and have his conviction vacated. This brings us to the issue of laches as a defense to Twyman's petition for post conviction relief.
Issue Two
While diligence is not necessarily a prerequisite to obtaining post conviction relief, Stutzman v. State, (1981) Ind. App., 427 N.E.2d 724, trans. denied (1982), the trial court may deny such relief on the basis of laches. Hernandez v. State, (1983) Ind. App., 450 N.E.2d 93; Haynes; Stutzman. However, laches must be asserted as a defense by the state in the trial court and cannot be raised for the first time on appeal. Baker v. State, (1980) Ind., 403 N.E.2d 1069; Frazier v. State, (1975) 263 Ind. 614, 335 N.E.2d 623. The petitioner is entitled to an opportunity to present his evidence in avoidance of laches. Frazier. Thus, the Frazier court held it was error to dismiss the petition for post conviction relief on the basis of laches. Accord Haynes. Cf. Hernandez where this court held that trial court could deny such a petition summarily for unreasonable delay in filing the petition. In this case, unlike Frazier and Stutzman, the trial court did hold a hearing on Twyman's petition for post conviction relief. He was not denied an opportunity to explain the delay in filing his petition. The burden of proof in a post conviction proceeding is upon the petitioner to prove the grounds asserted for relief by a preponderance of the evidence. Baker; Rinard v. State, (1979) 271 Ind. 588, 394 N.E.2d 160. Although laches is an affirmative defense, Hernandez; Stutzman, our cases indicate that once the defense is raised by the state, the petitioner must explain his delay in filing. Baker; Hernandez; Stutzman.
The question of laches is one to be determined by the court in the exercise of its sound discretion from the facts and circumstances of the particular case. Frazier; Haynes; Stutzman.
"[Laches] is the neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law should have been done. It is an implied waiver arising from knowledge of existing conditions and an acquiescence in them, the neglect to assert a right, as taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to the other party and thus operating as a bar in a court of equity. [Citation omitted.]"
Frazier, 263 Ind. at 616-17, 335 N.E.2d at 624.
While lapse of time alone does not necessarily constitute laches, Frazier, it nevertheless is a significant factor to be considered with the other circumstances in determining the question of laches. In fact, in Hernandez, this court found a six year delay in the challenge of a guilty plea, without explanation for the delay, sufficient to permit the trial court to deny a post conviction relief petition without a hearing.
In our opinion, the facts and circumstances in this case, including Twyman's deliberate misstatement of his age, his failure to take prompt action to rectify the matter as in Cummings, his failure to challenge the habitual offender determination on any ground other than identification, and his eight year delay in filing his petition for post conviction relief asserting, for the first time, his juvenile status in 1974, justified the trial court in finding him guilty of laches and denying his petition on that ground. A trial court's determination that a petitioner in a post conviction remedy proceeding is barred by laches will be overturned only where there has been an abuse of discretion. Hernandez; Stutzman. We cannot say the trial court abused its discretion.
Judgment affirmed.
ROBERTSON, P.J., and NEAL, J., concur.
NOTES
[1] Ind. Code § 35-1-54-3 (Burns' Code Ed., since repealed) defines the offense of assault or assault and battery with intent to commit a felony and prescribes the penalty.
[2] Ind. Code § 35-50-2-8 (Burns' 1979 Repl.).
[3] All of the juvenile statutes referred to have been repealed and replaced. For current law concerning juveniles see Ind. Code § 31-6-2-1 et seq.
[4] See Hemphill v. Johnson, (1972) 31 Ohio App.2d 241, 287 N.E.2d 828, 829, involving a seventeen year old juvenile charged with prostitution. She appeared and was tried and convicted by the Dayton Municipal Court. She filed a habeas corpus action based upon the exclusive jurisdiction in juvenile court. In affirming the denial of her habeas petition, the court said: "The Dayton Municipal Court clearly had jurisdiction of the subject matter of the action. Hence, the only question of any substance in this appeal is whether a juvenile can waive personal jurisdiction."
[5] We are cognizant that our courts apparently have recognized the right of a person charged with being an habitual offender to challenge the validity of the underlying felony convictions on constitutional grounds, Hall v. State, (1980) Ind., 405 N.E.2d 530; Haynes v. State, (1982) Ind. App., 436 N.E.2d 874, although some question exists as to the precise method for doing so. Haynes. However, a person has no constitutional right to be tried as a juvenile at any age. Broadway v. Beto, (N.D.Tex. 1971) 338 F. Supp. 827, aff'd. sub nom. Broadway v. Texas, 459 F.2d 483 (1972), cert. denied 409 U.S. 1012, 93 S.Ct. 454, 34 L.Ed.2d 307.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 98-3271WM
_____________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Nathaniel M. Graham, * [UNPUBLISHED]
*
Appellant. *
_____________
Submitted: February 9, 1999
Filed: February 18, 1999
_____________
Before FAGG and HANSEN, Circuit Judges, and ROSENBAUM,* District Judge.
_____________
PER CURIAM.
After intercepting a package of cocaine, the police conducted a controlled
delivery in Kansas City, Missouri. When an undercover officer attempted to deliver
the package, Nathaniel M. Graham’s minor child answered the door. Graham, who
was seated directly across the street from the address listed on the package, instructed
the undercover officer to leave the package with Graham’s minor child and an adult
would sign for it later. Following the delivery, the police executed an anticipatory
search warrant and seized the cocaine from Graham as he tried to flee. The district
*
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
court denied Graham’s pretrial motions, and a jury convicted Graham of attempting
to possess cocaine with the intent to distribute. Graham appeals, and we affirm.
Initially, Graham contends the district court erroneously denied his motions to
quash the search warrant and suppress the cocaine and telephone bill seized during
the search. We disagree. The affidavit supporting the search warrant stated the
package contained cocaine and the police would not execute the warrant until after
delivery. Additionally, the search warrant stated the police could seize any evidence
showing occupancy and control of the residence, such as a utility bill. Under these
circumstances, the affidavit established probable cause to search for the cocaine, the
police reasonably relied on the warrant to seize Graham’s telephone bill, and the
district court correctly denied Graham’s motions. See United States v. Bieri, 21 F.3d
811, 815 (8th Cir. 1994); United States v. Tagbering, 985 F.2d 946, 949-50, 950-51
(8th Cir. 1993).
We also reject Graham’s other contentions. Graham argues the district court
wrongly denied his motion to suppress his post arrest statements because the
controlled delivery amounted to police deception and tainted the statements.
Contrary to Graham’s argument, the record shows the police did not resort to coercive
conduct or trickery. The police advised Graham of his Miranda rights three times,
and shortly after Graham waived his rights, he offered voluntary statements. Next,
Graham claims the district court improperly admitted evidence of his earlier drug
activity. The district court denied Graham’s pretrial motion in limine to exclude this
evidence, and his tactical decisions to forego an objection when the Government
offered the evidence at trial, to testify about his drug activity, and to challenge the
credibility of the Government’s witness on cross-examination, precludes review on
appeal. See United States v. Brown, 956 F.2d 782, 787 (8th Cir. 1992). Graham also
contends the police officer’s delivery of the package to Graham’s minor child was
outrageous conduct. Having examined the record, we conclude Graham failed to
show the officer’s conduct was fundamentally unfair. See United States v. Gleason,
-2-
980 F.2d 1183, 1186-87 (8th Cir. 1992). Graham was seated directly across the street
from the house during the delivery, Graham directed the officer to leave the package
with the child, and the officer merely followed Graham’s instructions.
Finally, although we generally do not consider arguments raised in pro se briefs
by a party represented by counsel, see United States v. Blum, 65 F.3d 1436, 1443 n.2
(8th Cir. 1995), we have considered Graham’s pro se arguments and conclude they
are either raised for the first time on appeal, without legal merit, or both.
We affirm Graham’s conviction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-501-CV
WILLIAM EMMANUEL GLENN HARTFIELD APPELLANT
V.
TATIA LYNETTE HARTFIELD APPELLEE
----------
FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION 1 AND JUDGMENT
----------
On May 13, 2009, we notified appellant that his brief had not been filed
as required by Texas Rule of Appellate Procedure 38.6(a). Tex. R. App. P.
38.6(a). We further notified appellant that, in accordance with Tex. R. App. P.
42.3(b), this appeal could be dismissed for want of prosecution unless appellant
or any party desiring to continue this appeal filed with the court on or before
May 26, 2009, a motion reasonably explaining the failure to file a brief and the
1
… See Tex. R. App. P. 47.4.
need for an extension. See Tex. R. App. P. 10.5(b), 38.8(a)(1). We have not
received any response.
Because appellant’s brief has not been filed, we dismiss the appeal for
want of prosecution. See Tex. R. App. P. 38.8(a), 42.3(b), 43.2(f).
PER CURIAM
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DELIVERED: June 11, 2009
2
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1474
In Re: VICTOR WARDELL WRIGHT,
Petitioner.
On Petition for Writ of Mandamus.
(8:06-cr-00038-DKC-1; 8:08-cv-02830-DKC)
Submitted: July 22, 2010 Decided: July 30, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Victor Wardell Wright, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Wardell Wright petitions for a writ of
mandamus, alleging the district court has unduly delayed acting
on his 28 U.S.C.A. § 2255 (West Supp. 2010) motion for a writ of
habeas corpus. He seeks an order from this court directing the
district court to act. Our review of the district court’s
docket reveals that the district court denied Wright’s motion on
May 26, 2010. Accordingly, because the district court has
recently decided Wright’s case, we deny the mandamus petition as
moot. We grant leave to proceed in forma pauperis. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
2
| {
"pile_set_name": "FreeLaw"
} |
46 Mich. App. 558 (1973)
208 N.W.2d 545
PEOPLE
v.
BLEDSOE
Docket No. 13961.
Michigan Court of Appeals.
Decided April 25, 1973.
*559 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Walter W. Turton, Prosecuting Attorney, and R.R. Spillard, Assistant Prosecuting Attorney, for the people.
Stuart M. Israel, Assistant State Appellate Defender, for defendant.
Before: DANHOF, P.J., and HOLBROOK and BASHARA, JJ.
DANHOF, P.J.
Defendant was convicted by a jury of felonious assault, MCLA 750.82; MSA 28.277, and sentenced to a term of three to four years in prison. He appeals. We reverse.
Defendant claims that the trial court committed reversible error in failing to grant his motion to forbid the prosecutor to inquire into the sentencing details of defendant's past criminal record. After the people had rested their case, defendant's trial counsel informed the court in the absence of the jury that defendant would testify in his own behalf. It was acknowledged that defendant had an extensive criminal record and that this record would be brought out on direct examination. Defense counsel then listed defendant's prior convictions and asked the prosecutor if there were any more to be added. The court's ruling on the motion and defense counsel's objection can be quoted from the record:
"The Court: I think his credibility becomes an issue. I don't think that includes character but I do think you are entitled to follow up his convictions as to what happened, his parole violations and so forth. That certainly bears upon the credibility as well as the convictions, in my opinion. That's part of the conviction.
"Mr. Beauchamp: I would like the record to show a standing objection to this. I don't intend to be objecting *560 in front of the jury, but have placed my position on the record and would like to continue my objection.
"The Court: You may have continuing objection to the follow up of his convictions."
Defendant took the stand and testified as to his version of the events surrounding the crime of which he was charged. Defense counsel then brought out all of defendant's prior convictions. On cross-examination, the prosecutor brought before the jury the sentences of some of these prior convictions.
By statute prior convictions may be shown for the purpose of testing the credibility of a witness. MCLA 600.2158; MSA 27A.2158. This statute has been construed by this Court to preclude evidence of prior sentences. People v Nelson White, 26 Mich App 35 (1970); People v Ungurean, 35 Mich App 143 (1971). We hold that it was reversible error to allow the defendant to be cross-examined on the sentencing aspects of his prior convictions.
Defendant contends that it was reversible error for the trial court to allow the defendant over objection to be cross-examined concerning a prior alleged assault upon an individual who was not the victim of the crime alleged in the case at bar. The defendant was not convicted of any crime arising out of that incident. The people justified this cross-examination on the basis of MCLA 768.27; MSA 28.1050 as tending to show the criminal intent of the defendant. Upon retrial, the court should be aware that, even when evidence of prior acts is admissible under this statute, an objection calls for an exercise of discretion to determine whether any probative value is outweighed by potential prejudice. If such evidence is admitted, the jury should be instructed as to its limited use. People v Flansburgh, 24 Mich App 470 (1970). *561 Moreover, we find it difficult to see how a separate assault incident not alleged to be part of the same scheme or plan can shed light on the question of criminal intent. Evidence of prior bad acts cannot be introduced under the statute merely for the purpose of showing a disposition to do a criminal act. People v Chism, 32 Mich App 610, 624 (1971), leave to appeal granted, 387 Mich 760 (1972).
Defendant complains that the trial court erred in denying defendant's motion to omit from the jury's consideration that portion of the preliminary examination transcript which dealt with the district court's finding of probable cause. The confusion at trial on the issue raised here was the result of defense counsel's own ambiguous "stipulation". Upon retrial, if the defendant desires that any portion of the preliminary examination transcript be considered by the trier of fact, he should make his wishes clear to the court.
Reversed and remanded for a new trial.
All concurred.
| {
"pile_set_name": "FreeLaw"
} |
304 U.S. 333 (1938)
NATIONAL LABOR RELATIONS BOARD
v.
MACKAY RADIO & TELEGRAPH CO.
No. 706.
Supreme Court of United States.
Argued April 5, 6, 1938.
Decided May 16, 1938.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
*335 Mr. Charles Fahy, with whom Solicitor General Jackson, and Messrs. Robert L. Stern, Robert B. Watts, and Laurence A. Knapp were on the brief, for petitioner.
*336 Mr. Louis W. Myers, with whom Messrs. Howard L. Kern, Homer I. Mitchell, H.W. O'Melveny, and Walter K. Tuller were on the brief, for respondent.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The Circuit Court of Appeals refused[1] enforcement of an order of the National Labor Relations Board.[2] We granted certiorari because of an asserted conflict of decision.[3]
The respondent, a California corporation, is engaged in the transmission and receipt of telegraph, radio, cable, and other messages between points in California and points in other States and foreign countries. It maintains an office in San Francisco for the transaction of its business wherein it employs upwards of sixty supervisors, operators and clerks, many of whom are members of Local No. 3 of the American Radio Telegraphists Association, a national labor organization; the membership of the local comprising "point-to-point" or land operators employed by respondent at San Francisco. Affiliated with the national organization also were locals whose members are exclusively marine operators who work upon ocean-going vessels. The respondent, at its San Francisco office, dealt with committees of Local No. 3; and its parent company, whose headquarters were in New York, dealt with representatives of the national organization. Demand was made by the latter for the execution of agreements respecting terms and conditions of employment *337 of marine and point-to-point operators. On several occasions when representatives of the union conferred with officers of the respondent and its parent company the latter requested postponement of discussion of the proposed agreements and the union acceded to the requests. In September 1935 the union pressed for immediate execution of agreements and took the position that no contract would be concluded by the one class of operators unless an agreement were simultaneously made with the other. Local No. 3 sent a representative to New York to be in touch with the negotiations and he kept its officers advised as to what there occurred. The local adopted a resolution to the effect that if satisfactory terms were not obtained by September 23 a strike of the San Francisco point-to-point operators should be called. The national officers determined on a general strike in view of the unsatisfactory state of the negotiations. This fact was communicated to Local No. 3 by its representative in New York and the local officers called out the employes of the San Francisco office. At midnight Friday, October 4, 1935, all the men there employed went on strike. The respondent, in order to maintain service, brought employes from its Los Angeles office and others from the New York and Chicago offices of the parent company to fill the strikers' places.
Although none of the San Francisco strikers returned to work Saturday, Sunday, or Monday, the strike proved unsuccessful in other parts of the country and, by Monday evening, October 7th, a number of the men became convinced that it would fail and that they had better return to work before their places were filled with new employes. One of them telephoned the respondent's traffic supervisor Monday evening to inquire whether the men might return. He was told that the respondent would take them back and it was arranged that the official should meet the employes at a downtown hotel and make a statement to *338 them. Before leaving the company's office for this purpose, the supervisor consulted with his superior, who told him that the men might return to work in their former positions but that, as the company had promised eleven men brought to San Francisco they might remain if they so desired, the supervisor would have to handle the return of the striking employes in such fashion as not to displace any of the new men who desired to continue in San Francisco. A little later the supervisor met two of the striking employes and gave them a list of all the strikers, together with their addresses, and the telephone numbers of those who had telephones, and it was arranged that these two employes should telephone the strikers to come to a meeting at the Hotel Bellevue in the early hours of Tuesday, October 8th. In furnishing this list the supervisor stated that the men could return to work in a body but he checked off the names of eleven strikers who he said would have to file applications for reinstatement, which applications would be subject to the approval of an executive of the company in New York. Because of this statement the two employes, in notifying the strikers of the proposed meeting, with the knowledge of the supervisor, omitted to communicate with the eleven men whose names had been checked off. Thirty-six men attended the meeting. Some of the eleven in question heard of it and attended. The supervisor appeared at the meeting and reiterated his statement that the men could go back to work at once, but read from a list the names of the eleven who would be required to file applications for reinstatement to be passed upon in New York. Those present at the meeting voted on the question of immediately returning to work, and the proposition was carried. Most of the men left the meeting and went to the respondent's office Tuesday morning, October 8th, where on that day they resumed their usual duties. Then or shortly thereafter, six of the eleven in question took their places and resumed *339 their work without challenge. It turned out that only five of the new men brought to San Francisco desired to stay.
Five strikers who were prominent in the activities of the union and in connection with the strike, whose names appeared upon the list of eleven, reported at the office at various times between Tuesday and Thursday. Each of them was told that he would have to fill out an application for employment; that the roll of employes was complete, and that his application would be considered in connection with any vacancy that might thereafter occur. These men not having been reinstated in the course of three weeks, the secretary of Local No. 3 presented a charge to the National Labor Relations Board that the respondent had violated § 8 (1) and (3) of the National Labor Relations Act.[4] Thereupon the Board filed a complaint charging that the respondent had discharged, and was refusing to employ, the five men who had not been reinstated to their positions, for the reason that they had joined and assisted the labor organization known as Local No. 3 and had engaged in concerted activities with other employes of the respondent, for the purpose of collective bargaining and other mutual aid and protection; that by such discharge respondent had interfered with, restrained, and coerced the employes in the exercise of their rights guaranteed by § 7[5] of the National Labor Relations Act and so had been guilty of an unfair labor practice within the meaning of § 8 (1) of the Act. The complaint further alleged that the discharge of these men was a discrimination in respect of their hire and tenure of employment and a discouragement of membership in Local No. 3, and thus an unfair labor practice within the meaning of § 8 (3) of the Act.
*340 The respondent filed an answer denying the allegations of the complaint, and moved to dismiss the proceeding on the ground that the Act is unconstitutional. The motion was taken under advisement by the Board's examiner and the case proceeded to hearing. After the completion of its testimony, the Board filed an amended complaint to comport with the evidence, in which it charged that the respondent had refused to re-employ the five operators for the reason that they had joined and assisted the labor organization known as Local No. 3 and engaged with other employes in concerted activities for the purpose of collective bargaining and other mutual aid and protection; that the refusal to re-employ them restrained and coerced the employes in the exercise of rights guaranteed by § 7 and so constituted an unfair labor practice within § 8 (1) of the Act. The amended complaint further asserted that the refusal to re-employ the men discriminated in regard to their hire and tenure of employment and discouraged membership in Local No. 3 and thus amounted to an unfair labor practice under § 8 (3) of the Act. The respondent entered a general denial to the amended complaint and presented its evidence. At the conclusion of the testimony, the Board transferred the cause for further hearing before the members of the Board at Washington, and after oral argument and the filing of a brief, made its findings of fact.
The subsidiary or evidentiary facts were found in great detail and, upon the footing of them, the Board reached conclusions of fact to the effect that Local No. 3 is a labor organization within the meaning of the Act; that "by refusing to reinstate to employment" the five men in question, "thereby discharging said employes," the respondent by "each of said discharges," discriminated in regard to tenure of employment and thereby discouraged membership in the labor organization known as Local No. 3, and, by the described acts "has interfered with, restrained, *341 and coerced its employes in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act." As conclusions of law the Board found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of § 8, subsections (1) and (3), and § 2, subsections (6) and (7)[6] of the Act. It entered an order that respondent cease and desist from discharging, or threatening to discharge, any of its employes for the reason that they had joined or assisted Local No. 3 or otherwise engaged in union activities; from interfering with, restraining or coercing its employes in the exercise of the rights guaranteed by § 7 of the Act; offer the five men immediate and full reinstatement to their former positions, without prejudice to rights and privileges previously enjoyed, and make each of them whole for any loss of wages due to their discharge; post notices that the respondent would not discharge or discriminate against members of, or those desiring to become members of, the union, and keep the notices posted for thirty days.
As permitted by the Act, the Board filed in the Circuit Court of Appeals a transcript of the record of its proceeding, and a petition for enforcement of its order. In its answer the respondent denied the jurisdiction of the court on the ground that the Act violated Article III, and the Fifth, Seventh, and Tenth Amendments, of the Constitution; that the order amounted to an abuse of discretion because arbitrary and capricious, and was not supported by the evidence; that the trial examiner erred in his rulings on evidence; that the Board erred in overruling exceptions to his rulings, and that the Board's findings of fact and conclusions of law were erroneous.
Upon the hearing before the Circuit Court of Appeals, one judge held that the action of the Board was within *342 the power sought to be conferred upon it by the statute but that the grant of power violated the due process clause of the Fifth Amendment, and the award of back pay to the employes, without a jury trial, violated the Seventh Amendment. Another judge held that as the statute defined employes to include a person whose work had ceased "as a consequence of, or in connection with, any current labor dispute," and since there was no allegation, evidence, or finding as to such a dispute, the strikers had ceased to be employes within the meaning of the Act and the respondent's treatment of them could not violate the Act. One judge dissented, holding that the Board's order was within its statutory authority and did not violate the Constitution. A petition and supplemental petition for rehearing were granted and, after argument, the court reaffirmed its former decision. The judge who had previously declared the Board's action within the terms of the statute, but unconstitutional, construed the Act as not intended to work the unconstitutional result of compelling an employer to enter into a contract of employment against his will and, hence, as requiring only that the strikers be reinstated to the position of applicants for employment rather than employes. The other judges adhered to the views they had previously expressed.
The petitioner contends the court erred in holding that men who struck because of a failure of negotiations concerning wages and terms of employment ceased to be employes within the meaning of the statute; erred in not holding it an unfair labor practice, forbidden by the statute, for an employer to discriminate because of union activities in the reinstatement of men who have gone on strike because of a failure of negotiations concerning wages and terms of employment; erred in failing to hold that the Act authorizes the Board to order reinstatement of persons thus discriminated against; and one of the *343 judges erred in holding that the Act, if construed to authorize the Board to require such reinstatement, violates the Fifth Amendment.
On the other hand, the respondent insists that it was not accorded due process of law, because the unfair labor practice charged in the original complaint was abandoned and the action of the Board was based upon a conclusion of fact not within the issues presented; that there is no basis for the Board's order, because there is no finding that the strikers ceased work as a consequence of, or in connection with, any labor dispute, as defined in the statute; that the Act does not empower the Board to compel an employer to re-employ or reinstate those who have abandoned negotiations and gone on strike prior to any unfair labor practice, where the employer, after the strike is effective, and before committing any unfair labor practice, has permanently employed others in place of the strikers; that, if the Act be held to authorize the Board's order, it violates the Fifth Amendment; that Article III of the Constitution requires that the court render its independent judgment upon the quasi-jurisdictional facts upon which the Board's order was based; that the Board's order was, in the light of the facts, so arbitrary and capricious as to warrant the court's refusal to enforce it; and that the case is not properly before us because certiorari was not sought within the time fixed by law.
We hold that we have jurisdiction; that the Board's order is within its competence and does not contravene any provision of the Constitution.
First. Within the thirty days prescribed by the rules of the Circuit Court of Appeals the petitioner moved for a rehearing and for leave, if deemed appropriate, to take further evidence and add the same to the record before the Board. While this application was pending a supplemental petition for rehearing was presented. During the term the court entertained both petitions and granted a rehearing *344 and, after oral argument and submission of briefs, wrote further opinions based upon the petitions for rehearing. We think the court had not lost jurisdiction of the cause; that its final judgment was the order entered upon the petitions for rehearing; and that the three months within which the petitioner must apply for certiorari ran from the date of the order dismissing the petition for rehearing and confirming the original order.
Second. Under the findings the strike was a consequence of, or in connection with, a current labor dispute as defined in § 2 (9) of the Act. That there were pending negotiations for the execution of a contract touching wages and terms and conditions of employment of point-to-point operators cannot be denied. But it is said the record fails to disclose what caused these negotiations to fail or to show that the respondent was in any wise in fault in failing to comply with the union's demands; and, therefore, for all that appears, the strike was not called by reason of fault of the respondent. The argument confuses a current labor dispute with an unfair labor practice defined in § 8 of the Act. True there is no evidence that respondent had been guilty of any unfair labor practice prior to the strike, but within the intent of the Act there was an existing labor dispute in connection with which the strike was called. The finding is that the strike was deemed "advisable in view of the unsatisfactory state of the negotiations" in New York. It was unnecessary for the Board to find what was in fact the state of the negotiations in New York when the strike was called, or in so many words that a labor dispute as defined by the Act existed. The wisdom or unwisdom of the men, their justification or lack of it, in attributing to respondent an unreasonable or arbitrary attitude in connection with the negotiations, cannot determine whether, when they struck, they did so as a consequence of or in connection with a current labor dispute.
*345 Third. The strikers remained employes under § 2 (3) of the Act which provides: "The term `employee' shall include . . . any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, . . ." Within this definition the strikers remained employes for the purpose of the Act and were protected against the unfair labor practices denounced by it.
Fourth. It is contended that the Board lacked jurisdiction because respondent was at no time guilty of any unfair labor practice. Section 8 of the Act denominates as such practice action by an employer to interfere with, restrain, or coerce employes in the exercise of their rights to organize, to form, join or assist labor organizations, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or "by discrimination in regard to . .. tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: . .." There is no evidence and no finding that the respondent was guilty of any unfair labor practice in connection with the negotiations in New York. On the contrary, it affirmatively appears that the respondent was negotiating with the authorized representatives of the union. Nor was it an unfair labor practice to replace the striking employes with others in an effort to carry on the business. Although § 13 provides, "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike," it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, *346 in order to create places for them.[7] The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice nor was it such to reinstate only so many of the strikers as there were vacant places to be filled. But the claim put forward is that the unfair labor practice indulged by the respondent was discrimination in reinstating striking employes by keeping out certain of them for the sole reason that they had been active in the union. As we have said, the strikers retained, under the Act, the status of employes. Any such discrimination in putting them back to work is, therefore, prohibited by § 8.
Fifth. The Board's findings as to discrimination are supported by evidence. We shall not attempt a discussion of the conflicting claims as to the proper conclusions to be drawn from the testimony. There was evidence, which the Board credited, that several of the five men in question were told that their union activities made them undesirable to their employer; and that some of them did not return to work with the great body of the men at 6 o'clock on Tuesday morning because they understood they would not be allowed to go to work until the superior officials had passed upon their applications. When they did apply at times between Tuesday morning and Thursday they were each told that the quota was full and that their applications could not be granted in any event until a vacancy occurred. This was on the ground that five of the eleven new men remained at work in San Francisco. On the other hand, six of the eleven strikers listed for separate treatment who reported for work early Tuesday morning, or within the next day or so, were permitted to go back to work and were not compelled to await the approval of their applications. It appears that all of the *347 men who had been on strike signed applications for reemployment shortly after their resumption of work. The Board found, and we cannot say that its finding is unsupported, that, in taking back six of the eleven men and excluding five who were active union men, the respondent's officials discriminated against the latter on account of their union activities and that the excuse given that they did not apply until after the quota was full was an afterthought and not the true reason for the discrimination against them.
As we have said, the respondent was not bound to displace men hired to take the strikers' places in order to provide positions for them. It might have refused reinstatement on the ground of skill or ability, but the Board found that it did not do so. It might have resorted to any one of a number of methods of determining which of its striking employes would have to wait because five men had taken permanent positions during the strike, but it is found that the preparation and use of the list, and the action taken by respondent, were with the purpose to discriminate against those most active in the union. There is evidence to support these findings.
Sixth. The Board's order does not violate the Fifth Amendment. The respondent insists that the relation of employer and employe ceased at the inception of the strike. The plain meaning of the Act is that if men strike in connection with a current labor dispute their action is not to be construed as a renunciation of the employment relation and they remain employes for the remedial purposes specified in the Act. We have held that, in the exercise of the commerce power, Congress may impose upon contractual relationships reasonable regulations calculated to protect commerce against threatened industrial strife. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48. The Board's order there sustained required the reinstatement of discharged employes. The *348 requirement interfered with freedom of contract which the employer would have enjoyed except for the mandate of the statute. The provision of the Act continuing the relationship of employer and employe in the case of a strike as a consequence of, or in connection with, a current labor dispute is a regulation of the same sort and within the principle of our decision.
Seventh. The affirmative relief ordered by the Board was within its powers and its order was not arbitrary or capricious.
As we have held in National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, the relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress. On the basis of the findings, five men who took part in the strike were discriminated against in connection with a blanket offer to reinstate striking employes. The Board enjoined further discrimination against employes by reason of union affiliation, but it could not grant complete relief in respect of the five men short of ordering that the discrimination be neutralized by their being given their former positions and reimbursed for the loss due to their lack of employment consequent upon the respondent's discrimination. The order is criticized as arbitrary in that it is said to award back pay to date of reinstatement with deductions only for what was earned to the date of the order. We do not so read it, and the Board admits that credit must be given for all sums earned to date of reinstatement, and so construes the order. It is further said that the order arbitrarily and unreasonably requires the notices to be posted to state that respondent will not discharge its reinstated employes for any reason whatever. This clause of the order is inartificially drawn, and counsel for the Board admit that it should be read in connection with the remainder of the order forbidding discharge on the ground of union activity.
*349 Eighth. The respondent was not denied a hearing with respect to the offense found by the Board. The respondent says that it was summoned to answer a complaint that it discriminated by discharging the five men and that, after all the evidence was in, this complaint was withdrawn and a new one presented asserting that its refusal to re-employ the five men was the head and front of its offending. Then it is said that when the Board came to make its finding it reverted to the position that what the respondent did had not been a failure to employ but a wrongful discharge. Thus the respondent claims that it is found guilty of an unfair labor practice which was not within the issues upon which the case was tried. The position is highly technical. All parties to the proceeding knew from the outset that the thing complained of was discrimination against certain men by reason of their alleged union activities. If there was a current labor dispute the men were still employes by virtue of § 2 (3), and the refusal to let them work was a discharge. The respondent says that as the Board failed to find, in so many words, that there was a current labor dispute, its conclusion of fact that the men were discharged has no basis. But the Board found that the strike was called because the strikers were informed that the negotiations for a working agreement in New York were not proceeding satisfactorily. We think its action cannot be overturned for the mere reason that it failed to characterize the situation as a current labor dispute. The respondent further urges that, when the amended complaint was filed and the original one withdrawn, the charge it had to meet was a refusal to re-employ; that the phrase "re-employ" means "employ anew"; that if the Board had found a failure to employ the five men because of discrimination forbidden by the Act, the findings would have followed the complaint, whereas the Board, in its conclusions of fact, referred to respondent's action as "refusal to reinstate to *350 employment" and as a discharge; and the argument is that the findings do not follow the pleadings.
A review of the record shows that at no time during the hearings was there any misunderstanding as to what was the basis of the Board's complaint. The entire evidence, pro and con, was directed to the question whether, when the strike failed and the men desired to come back and were told that the strike would be forgotten and that they might come back in a body save for eleven men who were singled out for different treatment, six of whom, however, were treated like everyone else, the respondent did in fact discriminate against the remaining five because of union activity. While the respondent was entitled to know the basis of the complaint against it, and to explain its conduct, in an effort to meet that complaint, we find from the record that it understood the issue and was afforded full opportunity to justify the action of its officers as innocent rather than discriminatory.
At the conclusion of the testimony, and prior to oral argument before the examiner, the Board transferred the proceeding to Washington to be further heard before the Board. It denied respondent's motion to resubmit the cause to the trial examiner with directions to prepare and file an intermediate report. In the Circuit Court of Appeals the respondent assigned error to this ruling. It appears that oral argument was had and a brief was filed with the Board after which it made its findings of fact and conclusions of law. The respondent now asserts that the failure of the Board to follow its usual practice of the submission of a tentative report by the trial examiner and a hearing on exceptions to that report deprived the respondent of opportunity to call to the Board's attention the alleged fatal variance between the allegations of the complaint and the Board's findings. What we have said sufficiently indicates that the issues and contentions of *351 the parties were clearly defined and as no other detriment or disadvantage is claimed to have ensued from the Board's procedure the matter is not one calling for a reversal of the order. The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights. Compare Morgan v. United States, 298 U.S. 468, 478. The contention that the respondent was denied a full and adequate hearing must be rejected.
Ninth. The other contentions of the respondent are overruled because foreclosed by earlier decisions of this court.
The judgment of the Circuit Court of Appeals is reversed and the cause is remanded to that court for further proceedings in conformity with this opinion.
Reversed.
MR. JUSTICE CARDOZO and MR. JUSTICE REED took no part in the consideration or decision of this case.
NOTES
[1] 87 F.2d 611; 92 F.2d 761.
[2] 1 N.L.R.B. 201.
[3] See Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 91 F.2d 134; National Labor Relations Board v. Bell Oil & Gas Co., 91 F.2d 509; National Labor Relations Board v. Carlisle Lumber Co., 94 F.2d 138; Black Diamond S.S. Corp. v. National Labor Relations Board, 94 F.2d 875.
[4] U.S.C. Supp. II, Tit. 29, § 158 (1) and (3).
[5] U.S.C. Supp. II, Tit. 29, § 157.
[6] U.S.C. Supp. II, Tit. 29, § 152 (6) (7).
[7] Compare National Labor Relations Board v. Bell Oil & Gas Co., 91 F.2d 509.
| {
"pile_set_name": "FreeLaw"
} |
785 F.Supp. 453 (1992)
GILBERT, SEGALL AND YOUNG, Plaintiff,
v.
BANK OF MONTREAL, Defendant.
No. 91 Civ. 3724 (SWK).
United States District Court, S.D. New York.
March 6, 1992.
*454 Gilbert, Segall and Young by Jeffrey E. Livingston, Robert N. Rothberg, Arthur G. Larkin, pro se.
Sullivan & Cromwell, by John L. Hardiman, David B. Kaplin, Penny Shane, New York City, for defendant.
MEMORANDUM OPINION AND ORDER
KRAM, District Judge.
Plaintiff Gilbert, Segall and Young ("GSY") instituted this action for a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 for the purpose of determining its liability under a lease of commercial office space if it vacates the premises prior to the expiration of the term of the lease and makes no future rental payments to defendant Bank of Montreal (the "Bank"). The Bank moves to dismiss GSY's complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(c), on the ground that this Court lacks subject matter jurisdiction. The Bank argues that the instant action does not present an "actual controversy" between the parties as required under § 2201, and therefore is not within the jurisdiction of this Court. GSY opposes the Bank's motion to dismiss, and pursuant to an order of the Court dated November 26, 1991, cross-moves for an order, under Federal Rule of Civil Procedure 15(a), granting GSY leave to serve an amended complaint. For the reasons set forth below, the Bank's motion to dismiss is denied, and GSY's motion for leave to amend its complaint is granted.
*455 BACKGROUND[1]
According to the original complaint, on or about June 3, 1975, GSY and the Bank's predecessor in interest, Colt Industries Inc. ("Colt"), entered into an Agreement of Lease (the "Lease") whereby GSY leased space in 430 Park Avenue for a term of ten years and eight days, from October 23, 1975 through October 31, 1985, for a fixed rent of $149,225 per year. Complaint, at ¶ 6. Article 52 of the Lease initially provided, in relevant part, as follows:
Tenant's liability under this lease shall be limited as follows: $500,000 from the date hereof and during the first lease year, $450,000 during the second lease year, $400,000 during the third lease year, $350,000 during the fourth lease year, $300,000 during the fifth lease year and $250,000 from and during the sixth lease year until the termination of Tenant's obligations under this lease. The limitations on Tenant's liability set forth in this Article shall not apply to any damage or loss for which Tenant is liable under the lease and (i) for which casualty and/or public liability and property damage insurance is obtainable by or available to Tenant through standard policies or (ii) which is caused by the gross negligence or wilful misconduct of Tenant.
Complaint, at ¶ 7.
On or about January 28, 1977, during the second lease year, GSY and Colt entered into an Amendment of Lease Agreement (the "First Amendment") which, among other things, expanded the amount of space subject to the Lease, increased the fixed rent to $231,301 per year effective March 1, 1977, and amended Article 52 to provide, in pertinent part, as follows:
Tenant's liability in the event of any default under this lease shall be limited as follows: $500,000[2] from the date hereof and during the first lease year, $684,000 during the second lease year, $608,000 during the third lease year, $532,000 during the fourth lease year, $456,000 during the fifth lease year and $380,000 from and during the sixth lease year until the termination of Tenant's obligations under this lease. The limitations on Tenant's liability set forth in this Article shall not apply to any damage or loss for which Tenant is liable under the lease and (i) for which casualty and/or public liability and property damage insurance is obtainable by or available to Tenant through standard policies or (ii) which is caused by the gross negligence or wilful misconduct of Tenant.
Complaint, at ¶ 8.
In or about February 1981, the Bank succeeded to Colt's interests as landlord under the Lease, and on or about November 2, 1984, GSY and the Bank entered into a Second Amendment of Lease Agreement (the "Second Amendment"). The Second Amendment, among other things, extended the Lease to October 31, 1990 and increased the fixed rent to $975,000 per year effective November 1, 1985. Complaint, at ¶ 10. The Second Amendment did not amend Article 52. In fact, paragraph 9 of the Second Amendment stated as follows:
The parties agree that the Lease, as hereby amended, is and shall remain in full force and effect.
On or about September 1, 1986, GSY and the Bank entered into a Third Amendment of Lease Agreement (the "Third Amendment") which, among other things, expanded the amount of space subject to the Lease, extended the term of the Lease to October 31, 1996, and increased the fixed rent to $1,339,850 per year effective November 1, 1986, and to $1,593,850 per year effective November 1, 1991. Complaint, at ¶ 12. The Third Amendment did not effect Article 52, but rather provided in ¶ 12 as follows:
*456 The parties agree that the Lease, as hereby amended, is and shall remain in full force and effect.
Complaint, at ¶ 13.
GSY alleges that because of the decline in the value of commercial office space in Manhattan, the rentals provided in the Lease have become excessive in relation to the market for such space. Complaint, at ¶ 16. GSY also claims that Article 52 specifically provides that if GSY ever defaults under the Lease by vacating the premises and ceasing to make further rental payments to the Bank, its liability would be limited to $380,000. Complaint, at ¶ 14. As such, before the $254,000 per annum increase took effect on November 1, 1991, GSY advised the Bank that:
[it] is considering vacating the Premises prior to the expiration of the term of the Lease, making no further rental payments to the Bank after such vacation of the Premises, and after such default, paying the Bank no more than $380,000, as provided under Article 52 for any default.
Complaint, at ¶ 17.
The Bank disagrees with GSY's interpretation of Article 52 of the Lease. It is the Bank's position that Article 52 will not limit GSY's liability to $380,000 if it vacates the premises prior to the expiration of the term of the Lease and makes no further rental payments to the Bank. Rather, according to the Bank, GSY's liability to the Bank will amount "to no less than approximately $8,000,000 minus whatever rental payment the Bank may obtain from a successor tenant of the premises for the balance of the term of the Lease." Complaint, at ¶ 18.
GSY and the Bank conducted discussions concerning GSY's liabilities under the Lease, but were "completely unable to reconcile their different interpretations regarding the applicability and legal effect of Article 52." Complaint, at ¶ 19. Thus, GSY seeks a judicial declaration, pursuant to 28 U.S.C. §§ 2201 and 2202, that its liability to the Bank will be limited to a maximum of $380,000 if GSY defaults and makes no further rental payments to the Bank.
GSY maintains that the Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(2) in that the matter in controversy exceeds the sum of $50,000 exclusive of interest and costs, and is between a citizen of two states and a citizen of a foreign state. GSY also claims that the dispute as to GSY's maximum liability for default under the Lease is an "actual controversy" within the jurisdiction of this Court as required by 28 U.S.C. § 2201, and may be determined by a judgment of this Court.
The Bank moves to dismiss GSY's complaint pursuant to Rule 12(b)(1) and 12(c) on the ground that it does not present an "actual controversy" within the jurisdiction of this Court. Since GSY alleges only that it is considering walking out on the Lease before it expires without making further rental payments, the Bank contends that GSY's request for a declaratory judgment is a classic request for an advisory opinion, which the Court is not empowered to render because the Constitution limits the jurisdiction of the federal courts to "cases and controversies." Defendant's Memorandum In Support Of Its Motion For Judgment On The Pleadings ("Def. Mem. in Support"), at 1-2. GSY opposes the Bank's motion to dismiss and, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, has filed a cross-motion for leave to amend its complaint, together with a proposed amended complaint, on the ground that there are additional allegations relevant to the existence of an "actual controversy" that should be before the Court.
Comparison of the complaint and the proposed amended complaint indicates that the amended complaint primarily seeks to expand and clarify the allegations set forth in the original complaint so that the Court can more easily find the existence of an "actual controversy." For example, the proposed complaint details the efforts GSY made to find new office space, Proposed Amended Complaint, at ¶ 19, 20, 30, 32, and the unsuccessful negotiations between the Bank and GSY concerning a possible rent reduction. Proposed Amended Complaint, at ¶¶ 20-31. It also sets out more completely *457 the parties' disagreement over the effect of Article 52 of the Lease. Proposed Amended Complaint, at ¶¶ 21, 22, 24, 25, 26, 31, 35, 36.
The proposed amended complaint, however, does contain three significant changes. First, the proposed complaint has new language about GSY's intentions with respect to vacating the premises. In the original complaint, GSY asserted that it was "considering vacating the premises prior to the expiration of the term of the Lease, making no further rental payments to the Bank ... and after such default, paying the Bank no more than $380,000 ...," Complaint, at ¶ 17, whereas in its proposed pleading, GSY avers that at a meeting of the partnership on October 8, 1991, GSY adopted the following resolution as reflecting the desires and intentions of the firm in regard to the Lease:
"it is the desire of the firm to vacate the premises at 430 Park Avenue and cease to pay further rent with respect thereto, and, thereupon to occupy new office space at another location under a new lease reflecting current market conditions; and it is the intention of the firm to take the aforementioned steps upon receiving a judgment declaring that its liability ... would be limited to $380,000." Proposed Amended Complaint, at ¶ 34.
Second, the proposed amended complaint more specifically alleges that the Bank and its attorneys, Sullivan & Cromwell, have led GSY to believe that in the event GSY vacates the premises and ceases to pay further rent under the Lease, the Bank will sue GSY for the maximum amount of damages permitted by law in the absence of Article 52. Proposed Amended Complaint, at ¶¶ 32, 38, 39. According to GSY, such damages could be as much as approximately 8 million dollars. Proposed Amended Complaint, at ¶¶ 38, 39.
Third, the proposed amended complaint details GSY's inability to vacate the premises and enter a new lease without first obtaining a judgment as to the effect of Article 52. Proposed Amended Complaint, at ¶¶ 41-44.
DISCUSSION
I. Motion to Amend the Complaint
Rule 15(a) of the Federal Rules of Civil Procedure allows a party to amend the complaint with leave of the court and provides that "leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). In Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), the leading case on this subject, the Supreme Court ruled that this rule shall be construed liberally. The grant or denial of a request to amend, however, is within the discretion of the district court, and there are a number of bases upon which a court may deny a motion to amend. Id. at 182, 83 S.Ct. at 230; see also, Tri-State Judicial Services, Inc. v. Markowitz, 624 F.Supp. 925, 926 (E.D.N.Y.1985). Specifically, a trial court, in its discretion, may deny leave to amend where there exists undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230. In this Circuit, it is well settled that an amendment is considered futile if the amended pleading fails to state a claim, Tri-State Judicial Services, Inc., 624 F.Supp. at 926 (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir.1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir.1974); Johnson v. Partrederiet Brovigtank, 202 F.Supp. 859 (S.D.N.Y. 1962)), or would be subject to a motion to dismiss on some other basis. See, e.g., De Luca v. Atlantic Refining Co., 176 F.2d 421, 424 (2d Cir.1949), cert. denied, 338 U.S. 943, 70 S.Ct. 423, 94 L.Ed. 581 (statute of limitations).
In this case, the Bank argues that the Court should deny GSY's motion for leave to amend the complaint because the amended complaint would be futile; namely, it would not survive a motion to dismiss pursuant to Rule 12(b)(1) or Rule 12(c). Specifically, the Bank contends that amendment *458 would be futile because the "new" allegations of the proposed complaint still do not allege a case or controversy as required by Article III of the Constitution. The Court disagrees, and for the reasons set forth below, finds that GSY's proposed complaint adequately alleges a justiciable controversy.
A. Requirement of an "Actual Controversy"
Article III, § 2 of the United States Constitution limits the subject matter jurisdiction of federal courts to "cases and controversies." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239, 57 S.Ct. 461, 463, 81 L.Ed. 617 (1936). The Declaratory Judgment Act provides that the remedy of declaratory judgments is available only in cases "of actual controversy." It is well settled that this limitation to cases "of actual controversy" is the same as the "case or controversy" requirement. Aetna Life Ins. Co., 300 U.S. at 239-40, 57 S.Ct. at 463-64. As Chief Justice Hughes stated in Aetna Life:
The Declaratory Judgment Act of 1934, in its limitation to "cases of actual controversy," manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word "actual" is one of emphasis rather than one of definition.
300 U.S. at 239-240, 57 S.Ct. at 463. Accordingly, the Declaratory Judgment Act "does not impose a higher threshold for justiciability than the basic Article III requirement that federal courts shall only decide cases or controversies." East/West Venture v. Wurmfeld Associates, P.C., 722 F.Supp. 1064, 1067 (S.D.N.Y.1989) (citing Aetna Life Ins. Co., 300 U.S. at 239-40, 57 S.Ct. at 463-64).
Having determined that the Declaratory Judgment Act does not require a more stringent showing of justiciability than the Constitution, it is necessary to determine what constitutes "an actual controversy," for, as stated above, the District Court is without power to grant declaratory relief unless such a controversy exists.
First, it must be noted that "the difference between an abstract question and a `controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). Thus, the distinction between hypothetical questions and tangible controversies is "one of degree to be determined on a case by case basis." Airship Industries, Ltd. v. Goodyear Tire & Rubber Co., 643 F.Supp. 754, 758 (S.D.N.Y.1986) (citing Nippon Electric Glass Co. v. Sheldon, 489 F.Supp. 119, 121 (S.D.N.Y.1980)).
Although it has been extremely difficult to articulate a convenient and precise standard, the Supreme Court has provided guidance as to what constitutes an "actual controversy" for purposes of the Declaratory Judgment Act. In Aetna Life Ins. Co., the Court stated that:
A "controversy" in this sense must be one that is appropriate for judicial determination. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests (citations omitted). It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts (citations omitted). Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties, ... the judicial function may be appropriately exercised ...
Aetna Life Ins. Co., 300 U.S. at 240-41, 57 S.Ct. at 464. Further, the Supreme Court has indicated that "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties *459 having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co., 312 U.S. at 273, 61 S.Ct. at 512; see, Beacon Construction Co. v. Matco Electric Co., 521 F.2d 392, 397 (2d Cir.1975); Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.1991), cert. denied, ___ U.S. ___, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991).
It is thus clear that an active and genuine dispute between the parties, whatever its heat, does not necessarily amount to a case or controversy, and the requirements of justiciability are not met if the complainant merely alleges that he does not know what course to pursue. M & M Transp. Co. v. U.S. Industries, Inc., 416 F.Supp. 865, 870-71 (S.D.N.Y.1976) (citing Duart Mfg. Co. v. Philad Co., 30 F.Supp. 777 (D.Del.1939)).
B. Existence of an "Actual Controversy"
As stated above, the Bank contends that even if the Court granted GSY leave to amend, the proposed complaint would be dismissed, pursuant to Rule 12(b)(1) or 12(c), on the ground that GSY has still failed to allege an "actual controversy." According to the Bank, the proposed amended complaint does not allege any new facts that have ripened the controversy as GSY has still not abandoned the Premises or made any concrete plans to leave; rather, the new complaint has only new language. GSY has replaced its "considering vacating" verbiage with a statement that it "desires and intends" to vacate the Premises. Defendant's Memorandum in Opposition to Plaintiff's Motion For Leave to Amend the Complaint ("Def. Opp. Mem."), at 1-2. As such, the Bank contends that amendment of the complaint would be futile, and GSY's motion for leave to amend should be denied. The Court disagrees. The proposed amended complaint sufficiently alleges an "actual controversy" within the purview of Article III of the Constitution, and thus GSY's motion for leave to amend is granted.
1. Supporting Authority
American Machine & Metals, Inc. v. De Bothezat Impeller Co., 166 F.2d 535 (2d Cir.1948) ("De Bothezat"), a 1948 Second Circuit case which is closely analogous to the case at bar, is strong authority for the Court's conclusion that an "actual controversy" exists in the present case. In De Bothezat, the parties entered into a contract under which the defendant conveyed to the plaintiff certain patents and physical equipment for the making of fans and other products, and the plaintiff agreed to pay the defendant license fees (not less than $5,000 annually) based on the "net sales" of its products. Id. at 535. The contract contained no expiration date, but provided that the contract could be terminated at any time by the plaintiff on six months notice. Id. at 535. In the event of such termination the plaintiff was to transfer the patents back to the defendant and stop using the name "De Bothezat," which it had agreed to use in its literature and promotional activity while the contract continued. Id. at 535. The contract was profitable for the plaintiff for over ten years, but eventually the plaintiff neither manufactured nor sold any product for which possession of the patents was essential. Thereafter, the plaintiff commenced a declaratory judgment action alleging that he "desire[d] and intend[ed]" to exercise his right of termination under the contract and "desire[d] and intend[ed]" to continue in the business of selling fans and ventilating equipment. Id. at 536.
According to the complaint, however, the defendant had asserted that if plaintiff terminated the contract, it would no longer have the right to continue to manufacture any fans and ventilating equipment. In addition, the complaint alleged that defendant "ha[d] led plaintiff to believe" that upon termination of the contract the defendant would sue plaintiff if it did not cease the manufacture and sale of all fans and ventilating equipment. Id. at 536. Thus, before issuing any notice of termination of the contract, plaintiff commenced an action requesting a declaration of the rights of the parties in order to prevent the possible accrual of avoidable damages. Specifically, *460 plaintiff requested that the court declare the right of plaintiff to continue to manufacture and sell fans and other non-infringing products after termination of the agreement, without the payment of further sums to the defendant. Id. at 536.
The district court failed to render such a declaration as it concluded that no justiciable controversy was presented. It reasoned that the plaintiff has not yet given notice of termination of the contract and may never do so. Id. at 536. According to the district judge:
In this case, if the court should decide that plaintiff might terminate and continue its manufacture and sale of products other than those covered by the patents, plaintiff might and probably would terminate. If the court should decide otherwise, plaintiff would probably continue under the agreement until its termination and no controversy such as now claimed to exist might ever be present. In other words, plaintiff has not elected what it wishes to do and its action might and could render academic the very declaration which it seeks.
Id. at 536.
The Second Circuit, however, reversed, stating that the district court construed the Declaratory Judgment Statute too narrowly. The Second Circuit held:
Before termination, the controversy is one step further from actuality but not so far removed as to present only an abstract question,.... Once the notice of termination is given, it is beyond recall; the dispute between the parties concerns the right of the plaintiff to continue business if that contingency happens. Where there is an actual controversy over contingent rights, a declaratory judgment may nevertheless be granted.
Id. at 536. To make it clear that the contingent nature of the plaintiff's position did not preclude a justiciable controversy, the court went on to say that:
After bringing the contingency to pass it will be too late to avoid an action for damages if the plaintiff acts as he intends by continuing the business. The very purpose of the declaratory judgment procedure is to prevent the accrual of such avoidable damages.
Id. at 536.
Similarly, the facts in this case warrant a finding that an "actual controversy" exists. Like the plaintiff in De Bothezat, GSY is a party to a contract that has become uneconomical, and it "desires and intends" to vacate the premises and cease making further rental payments under the Lease upon receipt of a favorable declaration from the Court. Such "desire and intent" is evident from the resolution adopted by the partnership of GSY on October 8, 1991, which provides that:
It is the desire of the firm to vacate the premises at 430 Park Avenue and cease to pay further rent with respect thereto, and, thereupon to occupy new office space at another location under a new lease reflecting current market conditions; and it is the intention of the firm to take the aforementioned steps upon receiving a judgment declaring its liability in such event would be limited to $380,000.
Proposed Amended Complaint, at ¶ 34.
Moreover, as in De Bothezat, where the parties had different views as to what effect termination would have on plaintiff's right to sell certain products, in this case, there is an actual dispute as to what effect Article 52 will have in the event of a breach by GSY. GSY claims that Article 52 provides that its liability is limited to $380,000 if it defaults under the Lease, whereas during negotiations for a possible restructuring of the Lease, the Bank asserted its belief that Article 52 provides no such limitation. Proposed Amended Complaint, at ¶¶ 22, 24, 25, 31, 35, 36; see also Def. Reply Mem. In Support, at 7* (the Bank's answer alleges that "the parties have put forth differing views as to the interpretation of Article 52 of the Lease").
In addition, as in De Bothezat, the Bank has led GSY to believe that if GSY vacates the premises and fails to make further rental payments, the Bank will sue GSY for the maximum amount of damages permitted by law in the absence *461 of Article 52. Proposed Amended Complaint, at ¶ 38.[3] According to the proposed amended complaint, in the absence of Article 52, the amount of damages could be as much as approximately eight million dollars. Proposed Amended Complaint, at ¶ 39. Thus, as in De Bothezat, unless it can obtain declaratory relief, GSY faces the prospect of significant financial hardship if it carries out its intention to vacate the premises without making further rental payments, and the Bank successfully sues.[4]
De Bothezat also establishes that GSY need not undertake an irrevocable course of action to present a justiciable controversy. It is of course beyond dispute that an "actual controversy" would exist if GSY abandoned the premises or made concrete plans to leave by entering into a lease agreement for space elsewhere. But, to require GSY to take such irrevocable actions as vacating the premises or entering a lease for space elsewherewhich would bind GSY simultaneously to two leases and create the possibility of dual liabilityin order to adequately allege a justiciable controversy would defeat the purpose of a declaratory judgment procedure which is intended to prevent the accrual of avoidable damages. See De Bothezat, 166 F.2d at 536-37 (Declaratory Judgment Act was designed to obviate the peril of a plaintiff having to "act on his own view of his rights" and risking an otherwise profitable business in order to present a justiciable controversy).
*462 Thus, De Bothezat instructs that having alternatives open, even after a declaration by the Court, is not fatal to a claim for declaratory relief, and the Court finds that the present controversy is "of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co., 312 U.S. at 273, 61 S.Ct. at 512.
Despite the above analysis, the Bank contends that De Bothezat is not controlling as it presents a factual situation markedly different from the case at bar. According to the Bank, De Bothezat was a case involving patent rights, not contract rights, and thus falls within the category of cases in which declaratory judgment jurisdiction is most liberally allowed. See Broadview Chemical Corp., v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970). This is clearly not the case. Although De Bothezat involves patents, patents were only discussed by the court in the context of the parties' contractual rights.
The Bank also contends that De Bothezat is distinguishable from the case at bar because in that case, the defendant was threatening to put plaintiff out of business if plaintiff terminated a contract that did not provide it with any commercial benefit, whereas here there has been no attempt to force a competitor out of business. In addition, according to the Bank, in this case, GSY is not alleging that the Lease provides it with no commercial benefit. Finally, the Bank contends that unlike the plaintiff in De Bothezat who was forced to pay an unspecified fee each year that depended on its total sales and was faced with open-ended and indefinite accrual of potential damages by remaining in business, GSY must pay a definite rental for a definite period of time and knows the outside limit of its potential liability.
The Bank is correct that the above factors distinguish the two cases, but its argument that these factors warrant a different result in the present case is untenable as the De Bothezat court did not rely on any of these factors in making its determination that there was a justiciable controversy.
Decisions of federal courts in other circuits also make clear that the present controversy is justiciable under Article III. See, e.g., Keener Oil & Gas Co. v. Consolidated Gas Utilities Corp., 190 F.2d 985, 989 (10th Cir.1951) ("a party to a contract is not compelled to wait until he has committed an act which the other party asserts will constitute breach, but may seek relief by declaratory judgment and have the controversy adjudicated in order that he may avoid the risk of damages or other untoward consequence");[5]Fine v. Property Damage Appraisers, Inc., 393 F.Supp. 1304, 1310 (E.D.La.1975) (party contemplating breach of covenant not to compete entitled to seek declaratory relief as to validity of covenant, since "otherwise plaintiff is left to test it only by his breach of contract, subjecting himself to the risk that the clause be held enforceable and that he suffer the severe consequences of being enjoined from working in a similar line of business for a matter of years").
2. Cases Relied Upon by the Bank
Almost all the cases relied upon by the Bank are inapposite to this case, and merely state blanket principles of declaratory judgment jurisdiction. See, e.g., Coffman v. Breeze Corp., Inc., 323 U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264 (1945) (in preemptive suit to enjoin the enforcement of the Royalty Adjustment Act, based on the alleged unconstitutionality of the Act, the court declined to adjudicate as the complainant had not sought recovery of any royalties); M & M Transport Co. v. U.S. Industries, Inc., 416 F.Supp. 865 (S.D.N.Y.1976) (court determined *463 that dispute between two entities over a tax refund was not justiciable as Internal Revenue Service had not yet determined that a tax refund was due); People of the State of Illinois v. Archer Daniels Midland Co., 704 F.2d 935 (7th Cir.1983) (prosecutor undecided as to whether to prosecute not entitled to declaratory judgment on constitutional question of federal preemption).
Further, although more similar to the case at bar, Perlberg v. Northwestern Mutual Life Ins. Co., 62 F.Supp. 76 (E.D.Pa. 1945), does not compel the conclusion that GSY has failed to allege a justiciable case or controversy. In that case, the plaintiff insured wrote to defendant requesting a calculation of the extended period of insurance in the event he defaulted on his premium payments. Defendant computed that, in the event of default, the insured would be entitled to term insurance for thirty-two days from the date of default. Plaintiff disputed defendant's method of computing the extended term insurance, and thus sought judicial interpretation of the relevant clauses in the policy and a declaration that defendant calculate the extended term insurance in accordance with plaintiff's interpretation of the policy. Id. at 77-78. As of the date of trial, however, the insured had not defaulted in the payment of premiums. The court found that no case or controversy existed and stated that "[u]ntil plaintiff's hypothesis of default becomes an actuality, the differences of the parties will not be ripe for adjudication and a petition for a declaration of rights would be premature." Id. at 78.
Despite the apparent similarities, the De Bothezat court specifically distinguished Perlberg. It stated that the plaintiff in Perlberg "would have been able even in the event of a default to reinstate his policy without penalty." De Bothezat, 166 F.2d at 537. By contrast, a default by plaintiff in De Bothezat, or by GSY in this case, would be irreversible and would subject the parties to significant financial hardship.
For the reasons stated above, the Court finds that the proposed amended complaint sufficiently alleges a justiciable controversy. Accordingly, amendment of the complaint would not be futile, and GSY's motion for leave to amend the complaint is granted. For the same reasons, the Bank's motion to dismiss for lack of subject matter jurisdiction is denied.
II. Discretion to Exercise Declaratory Jurisdiction
Even when justiciability is present in the form of an actual controversy, it is still within the discretion of the Court to decline to hear a declaratory judgment action. Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62 S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942); Great American Ins. Co. v. Houston General Ins. Co., 735 F.Supp. 581, 584 (S.D.N.Y.1990). In deciding whether to render declaratory relief, a court should be guided by the criteria set forth in Broadview Chem. Corp. v. Loctite Corp., 417 F.2d at 998. In that case, the Second Circuit stated that "the two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Id. In addition, "if either of these objectives can be achieved the action should be entertained and the failure to do so is error." Id.
In this case, both objectives will be achieved if the Court issues a declaratory judgment. Declaratory relief will clearly terminate the uncertainty and insecurity giving rise to this proceeding by adjudicating the rights of both parties under Article 52 of the Lease, and it will serve a useful purpose in clarifying and settling the legal relations in issue as there will be no need for future litigation after the Court determines the effect of Article 52 of the Lease.
Conclusion
For the aforementioned reasons, GSY's motion for leave to amend the complaint is granted, and the Bank's motion to dismiss the complaint, pursuant to Rule 12(b)(1) and 12(c), is denied. The Bank shall respond to the amended complaint within *464 twenty days of the date of this order. Further, in its discretion the Court shall proceed with the declaratory judgment action.
SO ORDERED.
NOTES
[1] The facts set forth are those alleged in GSY's original complaint.
[2] Since the first lease year had expired as of the date of the First Amendment, there was no need to amend the limitation amount applicable during the first lease year ($500,000). Plaintiff's Memorandum Of Law In Opposition To Defendant's Motion For Judgment On The Pleadings ("Pl. Opp. Mem."), at 5 n. 1.
[3] Such a suit seems to be the only realistic option for the Bank given its economic interests and interpretation of Article 52.
[4] In its Memorandum in Opposition to GSY's motion for leave to amend the complaint, the Bank seems to attack certain of the above factual allegations set forth by GSY in the proposed amended complaint. Specifically, the Bank suggests that the resolution adopted by GSY was not enacted in good faith and does not reflect the true desires and intentions of GSY. According to the Bank, GSY's real purpose in bringing this suit is to restructure its present Lease, Def. Mem. In Support, at 11, and is hoping the Court will improve its negotiating position by issuing a declaration that liability is limited to $380,000. Def. Opp. Mem., at 7. As evidence in support of this contention, the Bank points to the fact that GSY adopted the resolution after the Bank moved to dismiss the original complaint and just two days before GSY's papers in response to that motion were due. Def. Opp. Mem., at 3. It also points to the fact that at present there is no new space or new lease. Def. Reply Mem. In Support, at 6. Additionally, the Bank, through the Affidavit of Andrew A. Lance ("Lance Aff."), an attorney at Sullivan & Cromwell who participated in the negotiations between the Bank and GSY, states that GSY has created a false impression with respect to the impact of Article 52 on the negotiations between the parties. According to Lance, Article 52 was not the focal point of the negotiations between the parties, nor did Article 52 prevent the parties from successfully renegotiating the Lease. Lance Aff., at ¶¶ 3, 4; see also Def. Opp. Mem., at 3-4.
GSY claims that in determining a motion to dismiss under 12(b)(1) or 12(c), the Court must accept all allegations of the proposed amended complaint as true, and therefore may not consider the Bank's factual arguments and submissions. The Court disagrees.
In considering a factual attack on the jurisdictional allegations of the complaint, i.e., the truth of the jurisdictional facts alleged by the plaintiff is challenged, a court may receive any competent evidence, such as affidavits, in order to determine the factual dispute. 2A Moore's Federal Practice, ¶ 12.07 at 12-46, 12-47. Further, so long as the court permits the plaintiff an opportunity to demonstrate that jurisdiction exists, the court can consider such evidence without converting the motion into one for summary judgment. 2A Moore's Federal Practice, ¶ 12.07 at 12-48.
In this case, however, it is not necessary to postpone decision so that GSY can submit affidavits or other evidence because the Bank has not substantiated its challenge to GSY's jurisdictional allegations. First, the Bank has provided no support for its assertions that GSY is using this suit as a negotiating ploy. The resolution of the partnership unequivocally states that GSY "desires and intends" to vacate the premises and cease paying further rent if the Court renders a favorable judgment, and the Bank proffers no probative evidence to the contrary. According to the proposed amended complaint, GSY has retained a real estate broker to search for new space, Proposed Amended Complaint, at ¶ 19, the broker has presented GSY with a proposal for new space, Proposed Amended Complaint, at ¶¶ 20, 30, and GSY has had architectural drawings prepared for that space. Proposed Amended Complaint, at ¶ 30.
Second, the Bank's assertions that Article 52 was not the focal point of the negotiations and negotiations did not break down because of Article 52 are irrelevant since, under De Bothezat, it is not essential for GSY to establish the existence of such facts to allege a justiciable controversy.
[5] The Bank contends that Keener can be distinguished from the present case because in that case, the defendant presented a clear and unconditional obstacle to the plaintiff's proposed pursuit of an essential aspect of its business. As in De Bothezat, however, the Keener court did not rely on that fact in making its determination that an "actual controversy" existed. In fact, it appears that like the De Bothezat court, the Keener court was concerned more with the broader proposition that a party to a contract should not have to risk substantial damages in order to present a justiciable controversy. Keener, 190 F.2d at 989.
| {
"pile_set_name": "FreeLaw"
} |
Case: 16-30652 Document: 00514030665 Page: 1 Date Filed: 06/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30652 FILED
Summary Calendar June 13, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff - Appellee
v.
DARIEN L. RELIFORD, also known as Big Troy,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CR-317-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Darien L. Reliford pleaded guilty to conspiracy to possess, with intent to
distribute, five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. The district court sentenced him, inter alia, to a within-
Guidelines sentence of 327 months’ imprisonment. Reliford contends his
sentence is substantively unreasonable.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 16-30652 Document: 00514030665 Page: 2 Date Filed: 06/13/2017
No. 16-30652
As Reliford concedes, he did not preserve in district court his
substantive-unreasonableness challenge; nor did he preserve the issues
discussed infra. Therefore, our review is only for plain error. E.g., United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard,
Reliford must show a forfeited plain (clear or obvious) error that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
does so, we have the discretion to correct the reversible plain error, but should
do so only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.
First, the court did not plainly err by considering Reliford’s criminal
history in its sentencing decision, even though that information was factored
into the Guidelines calculation. See United States v. Key, 599 F.3d 469, 475
(5th Cir. 2010). Second, he has not shown his sentence is excessive when
compared to similarly-situated defendants convicted of drug offenses. See
United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006).
Finally, Reliford contends the court did not adequately consider that
much of his criminal history stemmed from substance abuse. This assertion,
however, reflects his mere disagreement with the propriety of his sentence.
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Fields,
637 F. App’x 172, 173 (5th Cir. 2016). Accordingly, Reliford has not rebutted
the presumption that his within-Guidelines sentence is reasonable. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
In short, Reliford fails to show the requisite clear or obvious error.
AFFIRMED.
2
| {
"pile_set_name": "FreeLaw"
} |
Filed 8/14/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CITY OF PASADENA, B254800
Petitioner, (Los Angeles County
Super. Ct. No. BC491467)
v.
SUPERIOR COURT OF THE
STATE OF CALIFORNIA, COUNTY OF
LOS ANGELES,
Respondent;
MERCURY CASUALTY COMPANY,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Joseph R. Kalin, Judge. Petition is
denied.
Richards, Watson & Gershon, Robert C. Ceccon and Saskia T. Asamura;
Michelle Beal Bagneris, City Attorney, and Lesley Cheung, Deputy City Attorney for
Petitioner, City of Pasadena.
No appearance for Respondent.
Law Offices of Robert A. Stutman and Timothy E. Cary for Real Party in
Interest.
During a windstorm in late November 2011, a tree owned by the City of
Pasadena (City) fell on the residence of James O’Halloran. As a result of the damage
caused to the house, the insurer Mercury Casualty Company (Mercury) paid benefits to
O’Halloran pursuant to his homeowner’s insurance policy. Mercury then sued the City
for inverse condemnation and nuisance based on the damages caused by the tree.
The City now seeks a writ of mandate challenging the trial court’s order denying
summary adjudication with respect to these causes of action. The City argues that
summary adjudication should have been granted because (1) the subject tree was not
a work of public improvement such that the City may be held liable for inverse
condemnation, and (2) Mercury failed to submit any evidence that the City was
negligent such that the City may be held liable for nuisance. We disagree and deny the
writ.
FACTUAL AND PROCEDURAL BACKGROUND
More than 5,000 trees in the City were damaged by the windstorm that struck the
City on November 30, 2011, including the tree that fell on O’Halloran’s residence. The
residence experienced extensive damage for which Mercury paid $293,000 in benefits
to O’Halloran.
On September 4, 2012, apparently after being assigned O’Halloran’s claims
against the City, Mercury filed suit against the City for inverse condemnation and
private nuisance alleging that the City was liable for the damages to O’Halloran’s house
2
because it owned the subject tree.1 On October 25, 2013, the City moved for summary
adjudication of each cause of action on the grounds that (1) “a tree is not a work of
public improvement that is the proper subject of an inverse condemnation action,” and
(2) the tree at issue was not a nuisance because “there [wa]s no evidence that the City
negligently maintained the tree.”
With respect to the inverse condemnation cause of action, the City’s separate
statement provided that on November 30, 2011, a tree owned by the City fell on the
residence of Mercury’s insured. In a supporting declaration by the City’s arborist, the
arborist stated that: (1) he managed the maintenance of 60,000 street trees including the
subject tree; (2) the City catalogued these trees in a database; and (3) “[t]he City strives
to enhance the quality of life through the promotion, protection, and balanced
management of . . . trees.” In Mercury’s opposition, it did not dispute any of these facts
or provide additional evidence.
The City’s separate statement also set forth the following facts in support of
summary adjudication of the nuisance cause of action: (1) on November 30, 2011,
hurricane-force winds struck the City; (2) more than 5,500 City trees were damaged by
the windstorm and over 2,000 “uprooted or destroyed”; (3) the subject tree fell onto the
O’Halloran residence that day; (4) the tree was owned by the City; and (5) the City had
pruned the tree in 2005 and 2010. Mercury only disputed the City’s statement regarding
the speed of the winds during the windstorm.
1
Mercury also alleged a cause of action for “dangerous condition o[f] public
property” but later dismissed this claim.
3
On February 13, 2014, the trial court denied the City’s motion on the following
grounds: (1) with respect to the inverse condemnation cause of action, “the evidence
shows that the subject tree is part of a work of public improvement that may properly be
the subject of an inverse condemnation action,” and (2) with respect to the nuisance
cause of action, “negligence is not required to establish nuisance” and the City did not
“submit[] evidence excluding the probability that the public improvement was
a substantial factor in causing the damage.”2 The City sought review of the court’s
order by way of a petition for writ of mandate, and we set an order to show cause.
CONTENTIONS
The City contends that the trial court should have granted summary adjudication
of the inverse condemnation and nuisance causes of action because (1) the subject tree
was not a work of public improvement, and (2) Mercury failed to submit any evidence
that the City was negligent such that it can be held liable for nuisance.
DISCUSSION
1. Applicable Law
“ ‘Summary adjudication of a cause of action is appropriate only if there is no
triable issue of material fact as to that cause of action and the moving party is entitled to
judgment on the cause of action as a matter of law. [Citation.]’ ” (Burch v. Superior
Court (2014) 223 Cal.App.4th 1411, 1416.) A defendant moving for summary
2
Mercury also filed a motion for summary adjudication of the inverse
condemnation cause of action on the grounds that the subject tree was part of “the urban
forest of Pasadena” which is a work of public improvement, and the tree was
a “substantial contributing factor in the damage to the O’Halloran Residenc[e].” The
court’s order denying that motion is not a subject of this writ.
4
judgment must show that one or more elements of the plaintiff's cause of action cannot
be established or that there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2).) “To satisfy this burden, the defendant must present evidence which either
conclusively negates an element of the plaintiff’s cause of action, or which shows the
plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Namikas v.
Miller (2014) 225 Cal.App.4th 1574, 1581.) If the defendant meets this burden, the
burden shifts to the plaintiff to present evidence creating a triable issue of material fact.
(Code Civ. Proc., § 437c, subd. (p)(2).)
We review an order granting or denying summary adjudication de novo.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) In our review, we
“liberally constru[e] the evidence in support of the party opposing summary judgment
and resolv[e] doubts concerning the evidence in favor of that party. [Citation.]” (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
2. The Trial Court Properly Denied Summary Adjudication As to the
Inverse Condemnation Cause of Action Because There Were Triable
Issues of Material Fact as to Whether the Tree Was Part of a
Work of Public Improvement
Inverse condemnation claims arise under Article I, section 19 of the California
Constitution, which provides that “[p]rivate property may be taken or damaged for
a public use and only when just compensation . . . has first been paid to . . . the owner.”
(Cal. Const. art. I, § 19; see Regency Outdoor Advertising, Inc. v. City of Los Angeles
(2006) 39 Cal.4th 507, 516 (Regency Outdoor Advertising).) “[R]ead as a whole, the
‘just compensation’ clause is concerned, most directly, with the state’s exercise of its
5
traditional eminent domain power . . . . [¶] The California Constitution of 1879 added
the phrase ‘or damaged’ to the just compensation provision . . . to clarify that
application of the just compensation provision is not limited to physical invasions of
property taken for ‘public use’ in eminent domain, but also encompasses special and
direct damage to adjacent property resulting from the construction of public
improvements.” (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 376-380)
“To state a cause of action for inverse condemnation, the plaintiff must allege the
defendant substantially participated in the planning, approval, construction, or operation
of a public project or improvement which proximately caused injury to plaintiff’s
property. [Citations]” (Wildensten v. East Bay Regional Park Dist. (1991)
231 Cal.App.3d. 976, 979-980 (Wildensten).)
The sole issue here is whether the City’s public tree, as part of the City’s forestry
program, constitutes a public improvement such that it could provide the basis for an
inverse condemnation claim. “The construction of [a] public improvement is
a deliberate action of the state or its agency in furtherance of public purposes.”
(Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 641.) “[N]umerous []
California cases have stated or assumed from time immemorial that when physical
injury is the incidental consequence of deliberate government action in furtherance of
public purposes, the damaged or destroyed property has been appropriated for ‘public
use,’ and the public has effectively exercised its entitlement to ‘use and enjoyment’ of
the property with compensation. [Citations.]” (Customer Co. v. City of Sacramento,
supra, 10 Cal.4th at p. 415, fn. 7 [emphasis added].) Accordingly, a public
6
improvement for the purposes of an inverse condemnation claim involves
(1) a deliberate action by the state (2) taken in furtherance of public purposes.
There is no “deliberate governmental action” when the purported public
improvement is neither an “instrumentalit[y] of the state nor . . . controlled by the state.”
(Moerman v. State of California (1993) 17 Cal.App.4th 452, 459.) In Moerman, the
plaintiff relied on the theory of inverse condemnation when he sued the state for
damages caused by elk the state had relocated near his property. (Id. at p. 456.) The
court held that the plaintiff’s “attempt to analogize tule elk to a public improvement is
misguided,” as there could be no inverse condemnation where there was an “absence of
control” by the state over the instrumentality that caused the damages. (Id. at p. 458.)
There is also no deliberate action by the state when a governmental entity
“mere[ly] own[s] [] undeveloped land and [has] refus[ed] to stabilize part of the land.”
(Wildensten, supra, 231 Cal.App.3d at p. 979.) In Wildensten, the plaintiff sought to
recover for damages caused to her property by a landslide on adjacent property owned
by the government. (Id. at pp. 978-979.) The court held that “a governmental entity’s
mere ownership of raw land” does not “amount[] to ‘substantial participation’ in
a public project or improvement,” and therefore, the plaintiff had failed to state a cause
of action for inverse condemnation. (Id. at p. 980.)
As to the second element, whether the deliberate governmental action was taken
in furtherance of a public purpose, the California Supreme Court has found that the
planting of trees to beautify public streets benefits the public and serves the public
purpose of improving public roads. (Regency Outdoor Advertising, supra, 39 Cal.4th at
7
pp. 521-523.) In Regency Outdoor Advertising, the Court examined whether
a governmental entity was liable for inverse condemnation based on its planting of palm
trees “as part of [a] highway beautification project,” and found that “ ‘[i]f [a] street is
improved so as to be more useful, or ornamented so as to be more beautiful, the public
is benefited generally . . . . ’ [Citation.]” (Id. at pp. 515, 522.) The court further noted
that “[t]he planting of trees along a road is, in general, fully ‘consistent with [the road’s]
use as an open public street’ [citation], and in fact may enhance both travel and
commerce along the street.” (Id. at p. 522.) “[[T]he government] may plant shade trees
along the road to give comfort to motorists and incidentally to improve the appearance
of the highway. By so doing [the government] aims to make a better highway than
a mere scar across the land would be. . . . [Citations.]” (Id. at p. 521.) In its analysis,
the court assumed that the subject trees were part of a public improvement, but held that
the defendant was not liable for inverse condemnation as no damages had been shown.
(Id. at p. 523.)
As demonstrated in Regency Outdoor Advertising, if the instrumentality that
allegedly caused the plaintiff’s damages (such as a tree) is part of the construction of
a public improvement (such as a highway beautification plan), the public improvement
element of an inverse condemnation claim is satisfied. (See Holtz v. Superior Court
(1970) 3 Cal.3d 296, 304-306 [the plaintiffs adequately stated an inverse condemnation
claim based on damages from excavation connected with the construction of the
defendant’s “rapid transit system”]; Albers v. County of Los Angeles (1965) 62 Cal.2d
8
250, 255 [liability for inverse condemnation found where the plaintiff’s damages were
caused by the placement of dirt in connection with the construction of a road].)
Here, the evidence presented by the City in support of its motion for summary
adjudication did not demonstrate that there was no triable issue of fact as to whether the
subject tree was a part of a public improvement. The City’s separate statement stated
only that, on November 30, 2011, a tree owned by the City fell on the residence of
Mercury’s insured. In the supporting declaration by the City’s arborist, the arborist said
that he managed the maintenance of 60,000 street trees including the subject tree, that
the City catalogued these trees in a database, that he “headed an urban tree maintenance
program,” and that “[t]he City strives to enhance the quality of life through the
promotion, protection, and balanced management of . . . trees.”
This evidence showed that the subject tree was a street tree that was part of
a City program to enhance its residents’ and visitors’ quality of life through the
maintenance of trees in the City. It showed that the City took deliberate actions to
manage the program by cataloging its trees and maintaining them through regular
pruning. In addition, as in Regency Outdoor Advertising, the tree here was part of
a government program to maintain trees along roads and, thus, served the public
purpose of improving public roads. This evidence was sufficient to demonstrate
a triable issue of fact as to whether the tree, as part of the forestry program, constituted
a public improvement.
The City argues to the contrary that the subject tree is not part of a public
improvement because trees are not “deliberately designed and constructed,” quoting
9
Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 263. The Albers court held that
“any actual physical injury to real property proximately caused by the improvement as
deliberately designed and constructed is compensable under article I, section [19], of
our Constitution whether foreseeable or not.” (Id. at pp. 263-264 [emphasis added].) In
this quote, the Albers court set forth the test for proximate causation in an inverse
condemnation claim: damages must be caused by a public improvement as deliberately
designed and constructed. Here, the City has chosen not to appeal the trial court’s
ruling with respect to causation for this cause of action, and only challenges whether the
tree is part of a work of public improvement. Therefore, the Albers proximate cause test
is not relevant to our review.
Since there was evidence demonstrating that the City’s forestry program, of
which the subject tree is a part, is the result of (1) a deliberate governmental action
(2) serving a public purpose, summary adjudication of the inverse condemnation cause
of action was properly denied.
3. The City Failed to Meet Its Burden on Summary Adjudication of
Establishing That Mercury Could Not Show Nuisance
A nuisance is “[a]nything which is injurious to health . . . or is indecent or
offensive to the senses, or an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property.” (Civil Code, § 3479.) Nuisance
liability is not necessarily based on negligence, thus, “one may be liable for a nuisance
even in the absence of negligence. [Citations.]” (Lussier v. San Lorenzo Valley Water
Dist. (1988) 206 Cal.App.3d 92, 103-104 (Lussier); see also Calder v. City Etc. of
10
San Francisco (1942) 50 Cal.App.2d 837, 839 [“ ‘ “a nuisance and liability for injuries
occasioned thereby may exist without negligence” ’ ”].) However, “ ‘where liability for
the nuisance is predicated on the omission of the owner of the premises to abate it,
rather than on his having created it, then negligence is said to be involved.’
[Citations.]” (Lussier, 206 Cal.App.3d at p. 105.)
The City contends that the trial court erred in (1) finding that “negligence is not
required to establish nuisance,” and (2) “disregard[ing] the lack of any dispute of
material fact and lack of evidence supporting any wrongdoing by the City with respect
to the subject tree.” The City is correct that Mercury must show negligence to prevail
on its nuisance cause of action.
Here, the complaint alleged a cause of action for nuisance based on the City’s
alleged failure to “prevent and/or stop the collapse” of the subject tree.3 Therefore,
pursuant to the Complaint’s allegations, the City’s liability for nuisance is predicated on
the City’s failure to abate the nuisance and “negligence is said to be involved.”
(Lussier, 206 Cal.App.3d at p. 105.) However, although the City argues that Mercury
failed to raise a triable issue of fact as to the City’s negligence, this presumes that the
City had met its initial burden on summary adjudication of establishing that Mercury
could not show negligence.
As the party moving for summary adjudication, the City had the initial burden to
present evidence showing that Mercury could not establish an element of its nuisance
3
In Mercury’s discovery responses, it claims that the City should have “performed
appropriate maintenance” on the tree prior to the windstorm.
11
cause of action. The City argued that Mercury could not establish a nuisance claim
based on negligence because there was no evidence the City had negligently maintained
the subject tree as the City had pruned the tree twice in the seven years before the
windstorm. In support of this argument, the City presented the following facts in its
separate statement: that hurricane-force winds struck the City on November 30, 2011,
that more than 5,500 City trees were damaged by the windstorm and over 2,000
“uprooted or destroyed,” that the tree owned by the City fell onto the O’Halloran
residence that day, and that the City had pruned the tree in 2005 and 2010.
However, the City did not present evidence as to what kind of maintenance it
was required to perform on the tree to prevent damage to O’Halloran’s property.
Liability for negligence is based on a defendant’s breach of its duty of care to the
plaintiff, and damages caused by that breach. (Regents of University of California v.
Superior Court (2010) 183 Cal.App.4th 755, 764.) For the City to meet its burden of
showing that it had not been negligent, it was required to present some evidence that it
had not breached its duty of care. That the City pruned the tree in 2005 and 2010 may
potentially show that the City fulfilled its duty of care, however, to reach this
conclusion, the City must first present some evidence establishing the nature and extent
of its duty of care. As the City failed to do so, it did not meet its burden of showing it
had fulfilled its duty of care with respect to O’Halloran’s property.4 Accordingly, the
4
The City did present other evidence in support of its motion that was not
incorporated into its separate statement. However, “ ‘[t]his is the Golden Rule of
Summary Adjudication: if it is not set forth in the separate statement, it does not
exist.’ ” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337,
12
burden never shifted to Mercury to raise a triable issue of fact as to whether the City had
been negligent in its maintenance of the tree.5
superceded by statute on another ground.) Moreover, even if we considered the
additional evidence outside of the City’s separate statement, there was still no evidence
demonstrating what the City’s duty of care was with respect to this tree.
5
The City also argues on appeal that the trial court erroneously found that
Mercury had raised a triable issue of material fact as to whether, between November 30
and December 1, 2011, “hurricane force winds of between 80 mph and 100 mph struck
the City of Pasadena.” As the City failed to meet its burden as the moving party, we
need not reach this issue.
13
DISPOSITION
The petition is denied. Mercury shall recover its costs in connection with the
writ.
CERTIFIED FOR PUBLICATION
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.
14
| {
"pile_set_name": "FreeLaw"
} |
750 So.2d 521 (2000)
Bobbie F. JETER, Plaintiff-appellant,
v.
Dr. James R. SHAMBLIN, Defendant-appellee.
No. 32,618-CA.
Court of Appeal of Louisiana, Second Circuit.
February 1, 2000.
*522 Davidson, Nix & Jones by Allison A. Jones, Grant E. Summers, Shreveport, Counsel for Appellant.
Mayer, Smith & Roberts by Mark A. Goodwin, Shreveport, Counsel for Appellee.
Before GASKINS, CARAWAY and KOSTELKA, JJ.
CARAWAY, J.
In this medical malpractice action, the trial court sustained defendant's exception of prescription. The trial court held that the doctrine of contra non valentem was inapplicable in this case, and that sustaining the exception of prescription based on La. R.S. 9:5628 did not violate plaintiffs' right to equal protection under the law. From this judgment the plaintiff has appealed. For the reasons set forth below, we affirm in part, vacate in part, and remand.
Facts
In her request for a medical review panel, Bobbie F. Jeter ("Jeter") made the following factual allegations. On or about August 13, 1980, she was admitted to Springhill Medical Center to undergo a gastric stapling procedure. The surgery was performed by Dr. James R. Shamblin ("Shamblin"). Following the procedure, Jeter was kept on a liquid diet; however, when she later attempted to eat solid foods, she began vomiting. Jeter experienced "constant nausea and vomiting" for several months after her operation, and returned to Shamblin for treatment. Shamblin prescribed various medications and maintained her on a pureed diet. After conservative measures failed to relieve Jeter of her nausea and vomiting, Shamblin decided to reverse the gastric stapling. Jeter consented to and underwent the procedure. Shamblin treated Jeter until December 10, 1985, more than twelve years before the filing of this complaint.
Although Jeter's symptoms improved to the point where she could hold food down, she continued to experience stomach problems. In 1995 she began seeing Dr. Wayne Sessions, who unsuccessfully treated her stomach problems for over two years. Eventually she was referred to a gastro-enterologist who performed an endoscopy on September 4, 1997. During this procedure, the gastro-enterologist discovered a staple or "silastic ring" that had "partially eroded into the wall of the stomach." The ring was removed during the endoscopy. The endoscopy was the first time Jeter learned that Shamblin had not removed all of the staples in her stomach.
Jeter's request for a medical review panel was filed on September 8, 1998, within one year of the discovery of the stomach staple. Her claims against Shamblin were alleged in terms of his negligent failure to remove the stomach staple. Her request was met with an exception of prescription filed by Shamblin on November 12, 1998.
In support of the exception of prescription, Shamblin showed that his treatment of Jeter terminated on December 10, 1985. Other than Jeter's petition commencing the medical review panel process and a letter confirming the final date of Shamblin's treatment, there was no other evidence presented to the trial court for its consideration of Shamblin's exception.
The trial court sustained Shamblin's exception of prescription, noting in its judgment that the doctrine of contra non valentem was inapplicable. The judgment also specifically ruled that sustaining the *523 exception under La. R.S. 9:5628 did not violate Jeter's right to equal protection under the law. This appeal followed, and Jeter asserts the following issues for our review: (1) Whether the doctrine of contra non valentem is applicable in this case; (2) Whether Shamblin's actions constitute a "continuing tort," thereby suspending prescription; and (3) Whether La. R.S. 9:5628 is unconstitutional under the facts of this case.
Prescription of Medical Malpractice
The prescriptive period for claims of medical negligence is set forth in La. R.S. 9:5628 which provides, in pertinent part, as follows:
"No action for damages for injury or death against any ... doctor duly licensed under the laws of this state ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect."
This prescription statute for medical malpractice claims states the general one-year period for prescription of tort claims while additionally intending "to restrict the application of the `discovery rule,' or fourth category of contra non valentem, by providing that, regardless of the date of discovery, a claim must be filed at the latest within three years of the alleged act, omission or neglect." Whitnell v. Menville, 540 So.2d 304, 309 (La.1989).
Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription unless the petition reveals prima facie that the claim has prescribed. Bishop v. Simonton, 615 So.2d 8 (La.App. 2d Cir.1993), writ denied, 617 So.2d 908 (La.1993). When the plaintiff's petition shows on its face that the prescriptive period has expired, the burden is on the plaintiff to demonstrate suspension or interruption of the prescriptive period. Lima v. Schmidt, 595 So.2d 624 (La.1992); Bishop, supra. In a medical malpractice action where plaintiff's application for a medical review panel serves initially as her "petition" and suspends the running of prescription, the defendant nonetheless may raise the exception of prescription by initiating a filing in a court of competent jurisdiction and proper venue at any time, even prior to the completion of the review process by the medical review panel. La. R.S. 40:1299.47 B(2)(a).
Discussion
I.
Jeter does not argue that the special discovery rule of La. R.S. 9:5628 is applicable to preserve her claim. That rule clearly embodies, yet limits to three years, the so-called fourth type of contra non valentem, where prescription is suspended for a claim which is not known or reasonably knowable by the plaintiff, and where such ignorance of the plaintiffs claim is not induced by the defendant. Whitnell, supra.
Jeter instead argues that the third category of contra non valentem prevented the tolling of prescription. Under the doctrine of contra non valentem, this third category suspends prescription when the defendant engages in conduct which prevents the plaintiff from availing himself of judicial remedies. Whitnell, supra; Bossier v. Ramos, 29,766 (La.App.2d Cir.8/20/97), 698 So.2d 711, writ denied, 97-2583 (La.12/19/97), 706 So.2d 463; Kavanaugh v. Long, 29,380 (La.App.2d Cir.8/20/97), 698 So.2d 730, writ denied, 97-2554 (La.5/15/98), 719 So.2d 67.
Assuming that the third type of contra non valentem might apply, the Louisiana Supreme Court addressed the issue in Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960, 963:
*524 "Heretofore this court has failed to expressly and directly declare that the third category of contra non valentem applies to medical malpractice cases.... The court has nevertheless examined the applicability of the third category to facts in medical malpractice cases.... Assuming that the third category of contra non valentem does apply to medical malpractice actions under La. R.S. 9:5628, the court will determine whether its application has been triggered under the facts and circumstances of the present case.
The third category of contra non valentem applies when the healthcare provider himself has done some act effectually to prevent the victim from availing himself of his cause of action for medical malpractice.... To trigger application of the third category, a physician's conduct must rise to the level of concealment, misrepresentation, fraud or ill practices."
(Citations omitted, emphasis added.)
In the instant case, Jeter does not allege that Shamblin's conduct rose to the level of intentional concealment, misrepresentation, fraud or ill practices. "In pleading fraud ... the circumstances constituting fraud ... shall be alleged with particularity ..." La. C.C.P. art. 856. At the trial of the exception, no evidence was offered to demonstrate concealment, misrepresentation, fraud or ill practice. The best that Jeter has asserted is that the doctor knew he had placed staples in her stomach, had control over their removal when he reversed the gastric stapling, and did not inform her that any staples remained in her stomach. However, these allegations amount to nothing more than allegations of ordinary medical negligence. Jeter has not alleged or argued that Shamblin knew that he left the silastic ring in her stomach following the second operation. Without such allegation and proof, no showing has been made that Shamblin was ever in a position to thereafter fraudulently misrepresent or conceal the truth of the situation to Jeter.
Accordingly, we conclude that even if the third category of the doctrine of contra non valentem applies in medical malpractice cases, it has no application in this case. This assignment of error lacks merit.
II.
Jeter next argues that prescription did not begin to run until the silastic ring was removed in 1997, because of the "continuing tort" doctrine as announced in South Central Bell Telephone Co. v. Texaco, Inc., 418 So.2d 531 (La.1982) and as applied in Bellard v. Biddle, 98-1502 (La. App. 3d Cir.3/17/99), 734 So.2d 733.
In South Central Bell, supra, the defendant's alleged wrongful conduct was a constant leak from gasoline tanks at a service station, and the continual damage was a progressive deterioration of the plaintiff's underground telephone cables. Accepting this argument, the Louisiana Supreme Court acknowledged the doctrine of continuing tort and stated that where the cause of injury is a continuous one giving rise to successive damages, prescription begins to run from the cessation of the wrongful conduct that causes the damages. Furthermore, the court has more recently stated in discussing the doctrine that "[a] continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act." Crump v. Sabine River Authority, 98-2326 (La.6/29/99), 737 So.2d 720, 728 (emphasis added).
Recent cases of the courts of appeal, including the Bellard case relied upon by Jeter, have tested the continuing tort doctrine in this type of malpractice context with differing results. Bellard v. Biddle, supra (where the surgeon negligently left a piece of rubber tubing inside the victim); In re Medical Review Panel for Claim of Brown, 97-2803 (La.App. 4th Cir.7/1/98), 715 So.2d 1249, writ denied, 98-2020 (La.11/6/98), 728 So.2d 390, certiorari denied, ___ U.S. ___, 119 S.Ct. 1356, 143 *525 L.Ed.2d 518 (1999) (where surgery to remove a mass from the breast of a child resulted years later in the non-development of the breast when the child reached puberty); and Romaguera v. Overby, 97-1654 (La.App. 4th Cir.3/4/98), 709 So.2d 266 (where a doctor failed to fully remove from a patient a subclavian catheter used for chemotherapy). In both the Brown and the Romaguera rulings, the continuing tort theory was rejected as a defense against the three-year discovery rule of the statute while in Bellard a continuing tort was recognized.
From our review of Bellard, we find its reasoning unpersuasive and contrary to the explanations of the continuing tort doctrine by our supreme court. A doctor who has not treated a patient in any manner for over three years has not continued with acts of malpractice. In such case, the patient's suffering is "the continuation of the ill effects of an original, wrongful act," and a claim for such suffering may well be barred by the statute. We therefore choose to follow the analysis of this issue as presented in Brown and Romaguera, and conclude that the doctrine of continuing tort does not apply in this case where treatment had ceased for over twelve years.
III.
Before addressing Jeter's constitutional challenge to the medical malpractice prescription statute, we will consider Jeter's alternative request for an allowance to amend her petition under La. C.C.P. art. 934. That article provides:
"When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed."
In support of her request for an allowance to amend, Jeter cites Whitnell v. Menville, supra. In Whitnell, the patient sued her doctor for an alleged negligent misdiagnosis of a pre-cancerous lesion. The misdiagnosis had occurred over three years prior to the filing of the suit. Finding plaintiff's petition prescribed on its face for the negligence claim, the supreme court nevertheless acknowledged the plaintiffs additional argument beyond the scope of her petition in which she claimed that the doctor actually knew of the pre-cancerous lesion and had "correctly diagnosed" her condition but "failed to disclose" that condition to the plaintiff. Whitnell, 540 So.2d at 310. These newfound allegations changed the tenor of plaintiffs claim from one of negligent misdiagnosis to a claim of intentional concealment. The court therefore allowed for the opportunity to amend the pleadings under La. C.C.P. art. 934.
In this case, we have similarly found that Jeter's negligence claims have prescribed on the face of her petition. As alleged, Shamblin was as ignorant of his negligent act as Jeter. As in the case of alleging fraud in a petition (La.C.C.P. art. 856), Jeter must at least now argue with particularity Shamblin's knowledge of leaving the silastic ring in her, and the intentional concealment of his actions from her, before an allowance for amendment is warranted. She makes no such argument, and she did not elect to question Shamblin at a trial of the exception concerning his knowledge of the silastic ring during the second operation. As the Whitnell court also noted, the plaintiff must at least point out through argument new allegations for "the possibility that the claim has not prescribed." After careful review of this record and her arguments to this court, we find that the need for an amendment to the petition has not been demonstrated. Except for her possible successful attack on the constitutionality of La. R.S. 9:5628 discussed below, Jeter's claims have prescribed.
IV.
In Jeter's last argument, she contends that application of La. R.S. 9:5628 would *526 violate Louisiana's Equal Protection Clause (La. Const. art. I of 1974, § 3) because the statute advances no legitimate state interest in this case. Jeter argues that La. R.S. 9:5628 makes an arbitrary distinction between victims of per se negligence at the hands of healthcare professionals, and victims of per se negligence at the hands of persons other than healthcare professionals. The trial court held that the sustaining of defendant's exception of prescription under La. R.S. 9:5628 did not violate Jeter's right to equal protection.
Once the constitutionality of a statute is questioned, the attorney general must be notified by certified mail of the proceeding and, at his discretion, shall be allowed to represent the interest of the state. La. R.S. 13:4448. Here, Jeter neither alleged the unconstitutionality of La. R.S. 9:5628 in a petition, nor did she notify the attorney general as required by La. R.S. 13:4448. The trial court therefore erred in considering the claim of unconstitutionality and its ruling on that issue is hereby vacated.
Nevertheless, in accordance with La. C.C.P. art. 934 and the jurisprudence, we remand to the trial court for Jeter to specially plead the unconstitutionality of La. R.S. 9:5628 and to give notice to the attorney general. Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291; In Re Medical Review Panel of Harris, 97-1970 (La.App. 1st Cir.9/25/98), 725 So.2d 7.
Conclusion
For the reasons set forth above, the trial court's granting of defendant's peremptory exception of prescription is affirmed, its holding La. R.S. 9:5628 constitutional is vacated, and the matter is remanded to allow plaintiff to amend her petition within two weeks of the finality of this judgment to assert the constitutional issue. Costs of this appeal are assessed to appellant.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
GASKINS, J., concurring in part and dissenting in part.
GASKINS, J., concurring in part and dissenting in part.
I respectfully concur and dissent in the majority's opinion. I agree with everything in the opinion except the conclusion that the case must be remanded for a technically-correct raising of the constitutional issue. The rule that the constitutionality of a statute must be raised in a petition, an exception, a motion or an answer, is based on the reasoning that the opposing side is given due notice of the challenge and an opportunity to respond. Although the constitutional issue was not raised properly in the case sub judice, it was fully addressed by both sides and ruled upon by the court. Further, the attorney general's office was not notified, but the failure is not fatal when, as in this case, the courts have upheld the constitutionality of the statute. Once the failure to notify the attorney general's office is noted, the office should be notified of the issue and given opportunity to submit a brief if the case is reviewed further. I would, therefore, affirm the decision of the trial court.
| {
"pile_set_name": "FreeLaw"
} |
NUMBERS 13-06-676-CV
13-06-683-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
_____________________________________________________________
IN RE: SHARYLAND WATER SUPPLY CORPORATION
____________________________________________________________
On Petition for Writ of Mandamus
_____________________________________________________________
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion Per Curiam
On December 8, 2006, in appellate cause number 13-06-676-CV, relator Sharyland
Water Supply Corporation filed a petition for writ of mandamus, in which it requested this
Court to direct the Respondent, the Honorable Horacio Pena, Jr., presiding judge of the
92nd District Court of Hidalgo County, to vacate his December 5, 2006 "Order Setting
Trials" in trial court cause number C-1373-01-A in the 92nd District Court. Also on
December 8, 2006, relator filed an "agreed" emergency motion, requesting a stay of
"further proceedings" in cause number C-1373-01-A.
On December 12, 2006, in appellate cause number 13-06-683-CV, relator
Sharyland Water Corporation filed a second petition for writ of mandamus, in which it
requested this Court to direct the Respondent, the Honorable Migdalia Lopez, presiding
judge of the 197th District Court of Cameron County, Texas, to vacate her December 12,
2006 order denying relator's Motion to Disqualify/Recuse the Honorable Horacio Pena, Jr.
in trial court cause number C-1373-01-A. Relator also filed an "Emergency Motion for
Stay," requesting a stay of "further proceedings" in trial court cause number C-1373-01-A.
The Court, having considered the petitions for writ of mandamus and requests for
emergency relief in both causes and related documentation, is of the opinion that both
petitions and requests for emergency relief should be denied.
Relator's petition for writ of mandamus and Motion for Stay in appellate cause
number 13-06-676-CV are hereby denied. Relator's petition for writ of mandamus and
Emergency Motion for Stay in appellate cause number 13-06-683-CV are hereby denied.
Per Curiam
Memorandum opinion delivered and filed
this the 14th day of December, 2006.
| {
"pile_set_name": "FreeLaw"
} |
237 F.2d 190
William THEDORF, Plaintiff-Appellant,v.Sam LIPSEY, Defendant-Appellee.
No. 11700.
United States Court of Appeals Seventh Circuit.
Oct. 12, 1956.
James T. Murray, Dougherty, Arnold & Philipp, Suel O. Arnold, Milwaukee, Wis., for appellant.
Van B. Wake, Milwaukee, Wis., Shaw, Muskat & Paulsen, Milwaukee, Wis., of counsel, for appellee.
Before LINDLEY and SWAIM, Circuit Judges, and WHAM, District Judge.
LINDLEY, Circuit Judge.
1
In the district court plaintiff sought to recover damages for personal injuries sustained by him, occasioned, as he claimed, by the negligence of defendant in so operating the latter's automobile on a public highway in Wisconsin, in the night-time, as to cause it to collide with a disabled motorcycle being pushed on the highway by plaintiff and two associates. In answering special interrogatories submitted by the court, the jury found plaintiff and defendant each guilty of 50% of the negligence causing the accident. In such instances, the Wisconsin statute requires a dismissal of the suit. From the judgment entered in accord with this procedure, plaintiff appeals, contending (1) that the trial court should have admitted in evidence a Manual of the Motor Vehicle Department of Wisconsin pertaining to stopping distances of motor vehicles; (2) that the negligence of plaintiff with regard to taillights on the motorcycle, which the jury found to exist, 'could not constitute' proximate cause of the accident, and (3) that the trial court should have instructed the jury of the legal result of their findings of equal comparative negligence. Thus our review does not involve any inquiry as to the credence of witnesses, for the evidence submitted to the jury was conflicting, and, considered in the light most favorable to defendant, as we must view it, affords no justification for weighing it on our part. Our only function is to determine whether the trial court erred in any respect urged.
2
The manual which plaintiff sought to introduce purported to have been issued by the State and contained certain statistics bearing upon stopping distances under various circumstances. It sought to inform motorists of normal expectations in traffic under normal conditions. It was not endowed with the characteristics of a statute; it was not legislative action, but had been issued, apparently, by the Department to supply information and suggestions to the travelling public. It could have had no probative effect upon the question of negligence on the part of defendant. If it was intended by plaintiff's offer to supply the jury with evidence as to what was a safe stopping distance for defendant after he discovered plaintiff and the motorcycle at the time of the accident, it was incompetent for the reason that the opinions, conclusions and statistics included in it were unsworn statements made by parties outside the presence of the court, who were not submitted as witnesses and who could not be cross-examined. It comprised merely ex parte statements of third persons, incompetent for any purpose in the trial of the cause.
3
Plaintiff's argument that his negligence, found by the special verdict to have existed with regard to the taillights on the motorcycle which was struck by defendant, 'could not' constitute proximate cause of the action, raises a question of fact which was for decision by the jury. Whether the plaintiff was negligent, whether defendant was negligent, and whether the negligence of either or both was the proximate cause of the resulting injury, were purely jury questions. In order to say as a matter of law that plaintiff's negligence in failing to have lights upon the motorcycle which could be seen could not have caused the accident we would have to say that this was the only possible, the only inevitable conclusion. Otherwise, we would invade the jury's province, for, in order to prevent plaintiff's negligent conduct from being the causal factor, it must have been clear beyond peradventure that the omission to have adequate light on the motorcycle could not have caused the accident, or that the injury would have occurred just the same, had the plaintiff's negligent act not been committed. Roeske v. Schmitt, 266 Wis. 557, 64 N.W.2d 394. The law of Wisconsin as defined in the cited case is in accord with general jurisprudence to the effect that what is proximate cause is ordinarily a question for the jury, if the evidence is conflicting or if different inferences can be drawn from it. Schultz v. Brogan, 251 Wis. 390, 29 N.W.2d 719. If the evidence is conflicting or, although not contradictory,is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury.
4
There remains the contention that the court should have instructed the jury as to the effect of its finding of comparative negligence upon the part of both plaintiff and defendant. The record discloses, that, during the course of the trial, after the issues of fact had been submitted to the jury, the members of that body requested the court to advise them as to the legal effect of a finding of equal negligence upon the part of the two participants. This the court refused to do, treating the question as one of law to be decided by the court under the Wisconsin statute, after the jury had returned its verdict upon the facts. That this is correct, we have no doubt. Thus, in Ward v. Cochran, 8 Cir., 71 F. 127, at page 134, reversed on other grounds in 150 U.S. 597, 14 S.Ct. 230, 37 L.Ed. 1195, the Court of Appeals for the Eighth Circuit had this to say: 'When the jury are required by the court to return a special verdict, it is both unnecessary and improper to give instructions upon general principles of law applicable to the case, because the jury are supposed to find and report all the material facts without any instructions as to what will be the legal result of their finding. * * * If the verdict returned is a special verdict, erroneous instructions given to the jury touching the rules of evidence that should influence their action may be so far material and important as to justify a reversal * * *.' In Anderson v. Seelow, 224 Wis. 230, at page 239, 271 N.W. 844, at page 845, the court said: 'This court has frequently held that it is error for the court to inform the jury of the effect of their answer to a question upon the rights of the parties, and have not infrequently held that so to inform the jury was reversible error. * * * The sole purpose of a special verdict is to get the jury to answer each question according to the evidence, regardless of the effect or supposed effect of the answer upon the rights of the parties as to recovery. To inform them of the effect of their answer in this respect is to frustrate this purpose.' In Beach v. Gehl, 204 Wis. 367, 235 N.W. 778, 780, the court commented: "It is reversible error * * * (for the court) to inform the jury expressly or by necessary implication of the effect of an answer * * * to a question * * * of the special verdict upon the ultimate right of either party litigant to recover or upon the ultimate liability of either party litigant." We agree with the reasoning of the Eighth Circuit and with that of the Wisconsin courts to the effect that it was not within the province of the jury to consider or determine the legal result of their special findings of fact. That was a question solely for the court.
5
In trials in federal court the procedure upon special verdicts is governed by the Federal Rules of Procedure, 28 U.S.C.A., and not by a state statute. Cohen v. Travelers Ins. Co., 7 Cir., 134 F.2d 378, at page 384; Tillman v. Great American Indemnity Co. of New York, 7 Cir., 207 F.2d 588, at page 593; Gulf Refining Co. v. Fetschan, 6 Cir., 130 F.2d 129, at page 134. Under Rule 49(a), governing procedure involving special interrogatories or special verdicts, the trial judge has the responsibility of applying appropriate legal principles to the facts found by the jury; it is for the court to decide upon the jury's answers, the jury's special verdicts, what the resulting legal obligation is. In such a situation the jury is not entitled to information concerning the legal principles which the judge will apply to their findings. Cate v. Good Brothers, 3 Cir., 181 F.2d 146, at page 149. Such interrogatories must put to the jury only questions of fact from which a legal proposition may be deduced by the court. Carpenter v. Baltimore & O.R. Co., 6 Cir., 109 F.2d 375. Long ago the Supreme Court held that questions of law arising from the facts found by the jury are decided by the court, that the decision of the cause upon the specially found facts is for the court and that the court's judgment is confined to the facts so found. Suydam v. Williamson, 20 How. 427, at page 433, 61 U.S. 427. at page 433, 15 L.Ed. 978. Therefore, whether the district court felt that it should be guided by the decisions of Wisconsin as to state practice, or by the Federal Rules of Procedure as indeed it was, it follows that the jury was entitled to be instructed as to the special questions of fact submitted to them, but not as to the legal result of their findings of fact.
6
Plaintiff sought to impeach the special verdict by affidavits of some of the members of the panel. Jurors may not thus impeach their own verdict. See Skidmore v. Baltimore & O.R. Co., 2 Cir., 167 F.2d 54, at page 60, where the court commented that no one but the jurors can tell what went into the verdict and that they will not be heard to say. The law of Wisconsin is to the same effect. Olson v. Williams, 270 Wis. 57, 70 N.W.2d 10, at page 17.
7
The judgment is affirmed.
| {
"pile_set_name": "FreeLaw"
} |
2014 IL App (1st) 122017
FIFTH DIVISION
March 14, 2014
No. 1-12-2017
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 12507
)
LOVELL POLK, ) Honorable
) Clayton J. Crane,
Defendant-Appellant. ) Judge Presiding.
JUSTICE PALMER delivered the judgment of the court, with opinion
Justice McBride concurred in the judgment and opinion.
Presiding Justice Gordon dissented, with opinion.
OPINION
¶1 Following a jury trial, defendant Lovell Polk was convicted of the Class 2 offense of
unlawful use or possession of a weapon (UUW) by a felon (720 ILCS 5/24-1.1(a) (West 2010))
and he was sentenced to four years and six months in prison. On direct appeal to this court,
defendant contends in his opening and supplemental briefs that (1) the sentence for his UUW by
a felon conviction must be reduced from a Class 2 offense to a Class 3 offense as the State failed
to notify him of its intent to seek an enhanced sentence; (2) he was subject to an improper double
enhancement because the same prior felony conviction was used to prove an element of the
UUW by a felon offense and to elevate it to a Class 2 felony; and (3) his mittimus must be
corrected. For the reasons discussed below, we affirm defendant’s conviction and sentence for
1-12-2017
the Class 2 offense of UUW by a felon, but order that the mittimus must be corrected to exclude
reference to the two counts that were dismissed via nolle prosequi before jury selection. 1
¶2 BACKGROUND
¶3 At trial, Chineetha Curtis testified that on July 25, 2011, she was working as a security
agent for the Chicago Transit Authority (CTA) at the Homan and Congress Blue Line Station in
the city of Chicago. Curtis stated that on that date, defendant approached her and told her that he
had fought with a man and the man had taken his earrings. When he asked whether she knew
who had had been fighting earlier that day, Curtis responded that she did not know. Curtis
testified that defendant then lifted his shirt, revealing a gun inside his waistband. 2 Curtis
testified that defendant stated, "I'm going to bust a cap in his a***." Curtis returned to her kiosk
in the station.
¶4 Curtis testified that as she approached her kiosk, two police officers were walking toward
her kiosk. One of the officers walked toward defendant, who was standing in front of the station,
and the other officer asked Curtis what was wrong. Curtis testified that she pointed at defendant
and told the officer that he had a gun. The officer left and Curtis began to help a customer.
Curtis testified that she then heard an officer yell "freeze"; she turned and saw defendant twist
around and run away from the officers.
¶5 Chicago police officers James Norris and Michael Brosnan each testified that on July 25,
2011, they were in uniform and working special enforcement for the CTA at the Homan station.
Brosnan testified that Curtis got his attention and told him that defendant had a gun in his
1
We note that, in addition the UUW by a felon charge, defendant was initially charged in
the information with two counts of aggravated unlawful use of a weapon, which the State
dismissed by nolle prosequi before jury selection.
2
Curtis identified the gun she saw on defendant as the gun that was admitted into evidence
at trial.
2
1-12-2017
waistband. Brosnan informed Norris of this and they then approached defendant. Brosnan
testified that Norris put his hand on defendant’s shoulder and asked defendant if he had anything
on him that could hurt Norris. Brosnan testified that defendant then "spun around, reached into
his pants pocket as he was crossing Homan Avenue, pulled out a silver automatic handgun and
threw it to the ground." Brosnan was only five feet behind him at the time. Brosnan testified
that they chased after defendant and he was apprehended about a block later.
¶6 Similarly, Norris testified that as he moved closer to defendant perform a protective pat-
down, defendant moved around him and ran west down Homan Avenue. Norris also testified
that he told defendant to drop the gun, and defendant reached into his right pocket as he ran and
dropped a gun in the street; it looked like the gun came from his right pocket or right waistband.
Norris was chasing after defendant and was only about two feet behind him when this occurred.
Norris recovered the gun, which was a silver-plated .380-caliber automatic pistol and continued
to pursue defendant. Norris testified that he subsequently placed the gun, which did not contain
any ammunition, in inventory.
¶7 In addition, Chicago police officer Hanrahan testified that he was driving an unmarked
police car in the vicinity that day when Hanrahan observed defendant run across Homan Avenue
with a uniformed police officer running after him. Hanrahan testified that he followed defendant
in the police car until defendant stopped running due to fatigue. Defendant was arrested and
taken to the station.
¶8 Before resting its case, the State submitted an agreed stipulation to the jury that defendant
had previously been convicted of a felony. The defense then rested without presenting any
evidence. The jury found defendant guilty of UUW by a felon.
¶9 At sentencing, the State argued that defendant had one prior conviction in 2006 for
3
1-12-2017
conspiracy to commit murder, for which he received a seven-year sentence. Defense counsel
argued in mitigation that defendant was a good family man. In announcing defendant’s sentence,
the trial court stated that it had reviewed the presentence investigation and considered the
presentation made by the defendant and "all statutory factors required of this Court for the
sentencing." The trial court sentenced defendant to 4 ½ years' imprisonment, with credit for time
served.
¶10 Defendant’s mittimus set forth his sentence of four years, six months for the offense of
"720-5/24-1.1(a) FELON POSS/USE FIREARM PRIOR," and listed it as a Class 2 felony. The
mittimus also reflected the credit for time served and provided that "counts 2 and 3 merge with
count 1."
¶11 Defendant filed a motion to reconsider and vacate the judgment, which the trial court
denied. Defendant also filed a motion to reconsider his sentence on grounds that the sentence
was excessive given his background and the nature of the offense, but the trial court denied the
motion on June 20, 2012. Defendant filed a notice of appeal the same day.
¶12 ANALYSIS
¶13 In his first argument on appeal, defendant asserts that pursuant to section 111-3(c) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), the State was required
to give notice in the charging instrument of its intent to seek an enhanced sentence, i.e., that it
was charging him with a Class 2 felony. According to defendant, the failure to do so requires
that his conviction be reduced to a Class 3 conviction. In response, the State maintains that
because defendant was charged and convicted of UUW by a felon expressly premised on a prior
forcible felony (conspiracy to commit murder), he could receive only one class of sentence – a
Class 2 – and therefore a Class 3 sentence was unauthorized and the notice provision did not
4
1-12-2017
apply.
¶14 As an initial matter, this court recognizes that there is a split of authority in the First
District regarding this issue. See generally People v. Whalum, 2012 IL App (1st) 110959, pet.
for leave to appeal pending, No. 115582 (filed Jan. 28, 2013); People v. Nowells, 2013 IL App
(1st) 113209, pet. for leave to appeal pending, No. 116839 (filed Oct. 31, 2013); People v.
Pryor, 2013 IL App (1st) 121792, pet. for leave to appeal pending, No. 117276 (filed Jan. 31,
2014 ). We further note that this issue is currently under review by our Supreme Court. People
v. Easley, 2012 IL App (1st) 110023, appeal allowed, No. 115581 (Ill. Mar. 27, 2013).
¶15 We also note that, in the present case, defendant concedes that he failed to preserve this
issue for appellate review, but he argues that his claim of error is nevertheless reviewable
because (1) his sentence is void and may be challenged at any time, (2) the error implicated his
substantial rights and is thus subject to plain error review, and/or (3) his counsel rendered
ineffective assistance in failing to properly preserve the issue and defendant suffered prejudice as
a result. "Where a defendant challenges his sentence as void, *** as defendant does here, we
will review the sentencing issue even though it was not properly preserved for review because a
void sentence can be corrected at any time." Nowells, 2013 IL App (1st) 113209, ¶ 18.
Moreover, forfeited claims of sentencing error "may be reviewed for plain error," and the
defendant has the burden of demonstrating " 'either that (1) the evidence at the sentencing
hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair
sentencing hearing.' " Id. (quoting People v. Hillier, 237 Ill. 2d 539, 545 (2010)). Under plain
error review, we start by reviewing defendant's claim to determine whether any error occurred.
Id. ¶ 20.
¶16 Additionally, this case requires that we interpret statutory language, which presents a
5
1-12-2017
question of law reviewed de novo. People v. Harris, 203 Ill. 2d 111, 116 (2003). We are
mindful that "[i]t is the purview of the legislature to determine what is considered criminal
conduct, to assign penalties for that conduct, and to enact statutory provisions which enhance a
criminal offense or enhance the applicable range of punishment for an offense. [Citation.]
Although the trial court has discretion to impose a sentence, we review this issue de novo
because it involves a question of law. [Citation.]" Nowells, 2013 IL App (1st) 113209, ¶ 21.
¶17 Turning to the statutory language involved in the case at bar, the UUW by a felon statute,
section 24-1.1, sets forth the elements of the offense, along with the potential classifications and
sentences:
"(a) It is unlawful for a person to knowingly possess on or about his person or on
his land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been
convicted of a felony under the laws of this State or any other jurisdiction. This Section
shall not apply if the person has been granted relief by the Director of the Department of
State Police under Section 10 of the Firearm Owners Identification Card Act
***
(e) Sentence. Violation of this Section by a person not confined in a penal
institution shall be a Class 3 felony for which the person, *** shall be sentenced to no
less than 2 years and no more than 10 years and any second or subsequent violation shall
be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of
not less than 3 years and not more than 14 years. Violation of this Section by a person
not confined in a penal institution who has been convicted of a forcible felony, a felony
violation of Article 24 of this Code or of the Firearm Owners Identification Card Act,
6
1-12-2017
stalking or aggravated stalking, or a Class 2 or greater felony under the Illinois
Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control
and Community Protection Act is a Class 2 felony for which the person shall be
sentenced to not less than 3 years and not more than 14 years." (Emphasis added.) 720
ILCS 5/24-1.1(a), (e) (West 2010).
¶18 Based on the above provision, in order to prove the offense of UUW by a felon the State
must establish that a defendant "knowingly possessed a weapon or ammunition and that the
defendant had previously been convicted of a felony." Nowells, 2013 IL App (1st) 113209, ¶ 22
(citing 720 ILCS 5/24-1.1(a) (West 2010)). Our court has recognized that the legislature, as
reflected in the plain language of section 24-1.1, intended to prohibit convicted felons from
possessing dangerous weapons. Id. ¶ 22 (citing People v. Kelly, 347 Ill. App. 3d 163, 167
(2004)). Of particular relevance in the present case is the provision that a "[v]iolation of this
Section by a person not confined in a penal institution who has been convicted of a forcible
felony *** is a Class 2 felony." 720 ILCS 5/24-1.1(e) (West 2010). A "forcible felony"
includes, among other crimes, "first degree murder, second degree murder, *** and any other
felony which involves the use or threat of physical force or violence against any individual." 720
ILCS 5/2-8 (West 2010).
¶19 In addition, section 111-3 of the Code outlines the information required when instituting
criminal charges and for seeking an enhanced sentence:
"Form of charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
7
1-12-2017
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done;
and
(5) Stating the name of the accused, if known, and if not known, designate
the accused by any name or description by which he can be identified with
reasonable certainty.
***
(c) When the State seeks an enhanced sentence because of a prior conviction, the
charge shall also state the intention to seek an enhanced sentence and shall state such
prior conviction so as to give notice to the defendant. However, the fact of such prior
conviction and the State's intention to seek an enhanced sentence are not elements of the
offense and may not be disclosed to the jury during trial unless otherwise permitted by
issues properly raised during such trial. For the purposes of this Section, 'enhanced
sentence' means a sentence which is increased by a prior conviction from one
classification of offense to another higher level classification of offense set forth in
Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not
include an increase in the sentence applied within the same level of classification of
offense." 725 ILCS 5/111-3(a), (c) (West 2010).
¶20 In interpreting this section, the Second Division of this court held in People v. Whalum
that where the State charged the defendant with two counts of UUW by a felon, but did not state
in the charging instrument what class conviction it sought, the State failed to provide the notice
required by section 111-3(c) of the Code that it planned to seek to increase the classification of
offense from a Class 3 to a Class 2. Whalum, 2012 IL App (1st) 110959, ¶ 37. Thus, the Second
8
1-12-2017
Division held that the defendant was consequently entitled to be resentenced for a Class 3 felony.
Id.
¶21 Along similar lines, the defendant in People v. Easley was convicted of UUW by a felon
premised on his prior felony conviction of UUW. Easley, 2012 IL App (1st) 110023, ¶ 16. The
State gave the defendant notice of the prior offense upon which it relied, but did not state its
intention to seek an enhanced sentence pursuant to the " 'any second or subsequent violation shall
be a Class 2 felony' " language in section 24-1.1(e). Id. ¶ 21 (quoting 720 ILCS 5/24-1.1(e)
(West 2008)). On the same day, the Second Division of this court again concluded that, pursuant
to section 111-3(c), the State was required to give notice to the defendant that it intended to
charge him with a Class 2 rather than a Class 3 offense, and therefore, it vacated his sentence and
remanded for resentencing as a Class 3 offense. Id. See also People v. Pryor, 2013 IL App (1st)
121792, ¶ 42 (vacating the defendant's sentence and remanding for resentencing as a Class 3
felony where the State failed to state in the charging instrument that it intended to seek
enhancement from a Class 3 to a Class 2).
¶22 On the other hand, the Fourth Division of this court, in addition to the dissent in the
People v. Pryor case from the Fifth Division, disagreed with the Second Division's holdings in
Easley and Whalum with respect to the interpretation and application of section 111-3(c)
involving a UUW by a felon charge. See Nowells, 2013 IL App (1st) 113209, ¶ 28; Pryor, 2013
IL App (1st) 121792, ¶¶ 49-58 (Palmer, J., dissenting).
¶23 In Nowells, the Fourth Division held that there was no error in sentencing the defendant
to a Class 2 sentence for his UUW by a felon conviction despite the defendant's contention that
the State failed to provide proper notice. Nowells, 2013 IL App (1st) 113209, ¶ 30. The
defendant was convicted of UUW by a felon and sentenced as a Class 2 offender. The
9
1-12-2017
indictment for the UUW by a felon charge was premised on his prior felony conviction of
delivery of a controlled substance. Id. ¶¶ 3, 27. Examining the language of the UUW by a felon
statute, section 24-1.1(e), and section 111-3 of the Code, the Nowells court reasoned:
"In looking at the language of this statute, it is clear to us that the section 111–3(c) notice
provision with which defendant is concerned only applies when the prior conviction that
would enhance the sentence is not already an element of the offense. Specifically, the
language of the section 111–3(c) notice provision itself implies as much when it states
'the fact of such prior conviction and the State's intention to seek an enhanced sentence
are not elements of the offense and may not be disclosed to the jury during trial unless
otherwise permitted by issues properly raised during such trial.' (Emphasis added.) 725
ILCS 5/111–3(c) (West 2010). Therefore, notice is not necessary when the prior
conviction is a required element of the offense, such that only one class of felony
conviction is possible for that offense as alleged in the charging instrument." Nowells,
2013 IL App (1st) 113209, ¶ 26.
¶24 The Nowells court therefore concluded that the notice provision in section 111-3(c) was
not applicable "because the State did not seek to enhance defendant's sentence; as alleged in the
indictment, defendant's Class 2 sentence was the only statutorily allowed sentence available in
this situation." (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. In support, the
court relied on the language of section 24-1.1(e) (720 ILCS 5/24-1.1(e) (West 2010)) ("Violation
of this section by a person *** who has been convicted of *** a Class 2 or greater felony under
the Illinois Controlled Substances Act *** is a Class 2 felony ***") and cited the holding in
People v. Powell, 2012 IL App (1st) 102363, ¶ 12 (concluding the trial court did not
impermissibly enhance the defendant's penalty for his UUW by a felon conviction because the
10
1-12-2017
legislature, in enacting section 24-1.1(e), determined that he committed a Class 2 felony and
established a special penalty range). Nowells, 2013 IL App (1st) 113209, ¶ 27. The Nowells
court found no error because "the record establishes that a Class 2 sentence was the only possible
sentence classification defendant could have received after having been charged with the crime
of UUW by a felon specifically premised on his prior Class 2 felony drug conviction." Id. ¶ 30.
¶25 This court finds that the reasoning in Nowells and the dissent in Pryor to be more
persuasive on this issue. In the case of UUW by felon, the prior conviction is not an
enhancement; it is an element of the offense. Therefore, it defines the offense and establishes its
class. As noted in another recent case from our Second Division, "Illinois law has long held that,
in prosecutions for the offense of UUW by felon, the prior felony conviction is an element of the
offense which must be proven beyond a reasonable doubt by the State before the jury in its case
in chief." People v. McFadden, 2014 IL App (1st) 102939, ¶ 42 (citing People v. Walker, 211
Ill. 2d 317 (2004), for its holding that having a "prior felony conviction is an element of the
offense of our UUW by [a] felon statute and adopting the reasoning of Old Chief v. United
States, 519 U.S. 172 (1997)").
¶26 Defendant fails to account for the underlying logic of Old Chief, adopted by our supreme
court in Walker. As explained by the dissent in Pryor:
"Old Chief and Walker held that, in situations where a prior felony conviction was
an element of the offense and had to be proven before a jury, it was error not to accept a
defendant's offer to stipulate before the jury as to the fact of the conviction. Walker, 211
Ill. 2d at 338, 341 (citing Old Chief, 519 U.S. 172). This was done to lessen the
prejudicial impact of telling the jury about the nature of the prior felony while at the same
time informing the jury of its existence. Walker, 211 Ill. 2d at 341 (citing Old Chief, 519
11
1-12-2017
U.S. 172). If the above-cited provision of section 111-3(c) applied to UUW by felon
prosecutions whereby 'the fact of such prior conviction *** are not elements of the
offense and may not be disclosed to the jury during trial' (725 ILCS 5/111-3(c) (West
2010)), then the Walker decision adopting Old Chief was a wholly unnecessary exercise.
That, of course, is not the case. Those cases were decided because our statute provides
that the fact of the prior felony conviction is an element of the offense that must be
proven before the jury. As section 111-3(c) provides that 'the fact of such prior
conviction *** are not elements of the offense and may not be disclosed to the jury
during trial,' these statutory provisions are incompatible." People v. Pryor, 2013 IL App
(1st) 121792, ¶ 56 (Palmer, J., dissenting).
¶27 Based on our above analysis, we conclude that section 111-3(c) does not apply to UUW
by a felon in this case. Turning to the charging document in case at hand, we note that count I of
the information alleged that on July 25, 2011, in Cook County, defendant committed the offense
of:
"UNLAWFUL USE OR POSSESSION OF A WEAPON BY A FELON
In that HE, KNOWINGLY POSSESED ON OR ABOUT HIS PERSON ANY
FIREARM, AFTER HAVING BEEN PREVIOUSLY CONVICTED OF THE FELONY
OFFENSE OF CONSPIRACY TO COMMIT MURDER, UNDER CASE NUMBER
04CR2953202,
IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 24-1.1(a) OF THE
ILLINOIS COMPILED STATUTES 1992 AS AMENDED ***."
¶28 The record reflects that the charging instrument complied with section 111-3(a) of the
Code. Defendant was provided with notice of the nature of the prior conviction upon which the
12
1-12-2017
UUW by a felon charge was predicated, in addition to the name of the charged offense, the
statutory citation of the offense, the nature and elements of the charged offense, the date and
county of the offense, and the name of the accused. We also note that the information indictment
return sheet listed the UUW by a felon charge as a Class 2 felony. 3 Moreover, defendant does
not argue that he was unaware of what prior felony was serving as the basis for his UUW charge.
Conspiracy to commit murder qualifies as a forcible felony. 720 ILCS 5/2-8 (West 2010).
Accordingly, the charge of UUW by a felon could only be a Class 2 felony. 720 ILCS 5/24-
1.1(e) (West 2010).
¶29 As the Nowells court held, the notice provision in section 111-3(c) was not applicable
here "because the State did not seek to enhance defendant's sentence; as alleged in the
indictment, defendant's Class 2 sentence was the only statutorily allowed sentence available in
this situation." (Emphasis in original.) Nowells, 2013 IL App (1st) 113209, ¶ 27. Thus, in
arguing that he should be resentenced for a Class 3 offense, defendant essentially asks this court
to reduce his sentence to one that is not authorized by the legislature. We decline to do so.
Because the sentence imposed by the trial court was proper, we conclude that no error occurred,
and defendant's sentence is not void. Nowells, 2013 IL App (1st) 113209, ¶ 30. Nor did
defendant receive ineffective assistance of counsel, as counsel was not obligated to advance
meritless arguments. People v. Ivy, 313 Ill. App. 3d 1011, 1018 (2000).
¶30 Defendant contends in his supplemental briefing that he was subjected to an improper
double enhancement because the same prior felony conviction was used to prove an element of
3
At trial, defendant stipulated that he had previously been convicted of a felony; the nature
of the felony was not disclosed to the jury, but outside the jury's presence the court and the
parties discussed the fact that it was a conviction for conspiracy to commit murder.
13
1-12-2017
the UUW by a felon offense and to elevate it to a Class 2 felony. 4 Defendant again concedes that
this claim of error was not properly preserved below, but urges this court's review under the plain
error doctrine. Nowells, 2013 IL App (1st) 113209, ¶¶ 18-20; Hillier, 237 Ill. 2d at 545. See
People v. Powell, 2012 IL App (1st) 102363, ¶ 7 (deciding to review the defendant's forfeited
claim of improper double enhancement in sentencing under the plain error rubric).
¶31 According to the general prohibition against double enhancement, "[a] single factor
cannot be used both as an element of an offense and as a basis for imposing a sentence harsher
than might otherwise have been imposed." People v. Powell, 2012 IL App (1st) 102363, ¶ 8
(citing People v. Phelps, 211 Ill. 2d 1, 11-12 (2004)). "The prohibition against double
enhancements is based on the assumption that, in designating the appropriate range of
punishment for a criminal offense, the legislature necessarily considered the factors inherent in
the offense." Phelps, 211 Ill. 2d at 12. However, an exception to this general rule arises where
"the legislature clearly intends to enhance the penalty based upon some aspect of the crime and
that intention is clearly expressed." Powell, 2012 IL App (1st) 102363, ¶ 8 (citing Phelps, 211
Ill. 2d at 12). The best evidence of such an intention is gleaned from the text of the statute itself.
Id. As the rule against double enhancement "is one of statutory construction," we review this
issue de novo. Phelps, 211 Ill. 2d at 12.
¶32 Defendant is correct in asserting that a single factor cannot be used both as an element of
an offense and as a basis for imposing a sentence harsher than might otherwise have been
imposed, as it would constitute a double enhancement. Powell, 2012 IL App (1st) 102363, ¶ 8.
However, we find that, based on the clear language of section 24-1.1(e), the legislature explicitly
4
We note that this argument must be considered to be in the alternative, as the premise of
defendant's first argument is that the prior felony is not an element of the crime, where here
defendant claims exactly the opposite is the case.
14
1-12-2017
stated its intention to enhance the penalty based on some aspect of the offense. As previously set
forth, section 24-1.1(e) provides in relevant part that a "[v]iolation of this Section by a person not
confined in a penal institution who has been convicted of a forcible felony *** is a Class 2
felony." 720 ILCS 5/24-1.1(e) (West 2010). Accordingly, given this clear directive, we find that
this created an exception to the prohibition against double enhancement. Powell, 2012 IL App
(1st) 102363, ¶¶ 11-17. We agree with the reasoning in Powell that no impermissible double
enhancement occurs when the legislature clearly intends, as it did here, to enhance the penalty
based upon some aspect of the crime and that intention is clearly expressed. Id. See also Easley,
2012 IL App (1st) 110023, ¶¶ 16-22 (finding that the defendant's sentence did not constitute an
improper double enhancement where the defendant's prior conviction of UUW was used to
convict him of the current UUW offense and also to elevate his current UUW conviction to a
Class 2 felony pursuant to section 24-1.1(e) as a "second or subsequent violation").
Accordingly, we conclude that no improper double enhancement occurred in this case.
¶33 Defendant also argues on appeal that his mittimus should be corrected to strike the
language merging the counts into his conviction that were dismissed prior to trial, and to strike
the term "use" from the name of the offense in the mittimus. The State agrees that the language
"counts 2 and 3 to merge with count 1" should be stricken from the mittimus because they were
dismissed via nolle prosequi before jury selection. Accordingly, we direct the clerk of the circuit
court of Cook County to correct the mittimus by removing mention of those counts. See People
v. Harper, 387 Ill. App. 3d 240, 244 (2008) (indicating that this court has the authority to correct
the mittimus at any time without remanding the matter to the trial court). However, we deny
defendant's request to strike the word "use" from the mittimus, as this term was correctly
15
1-12-2017
included. 5 Defendant was tried and convicted for violation of section 24-1.1(a); the offense
defined in that section is entitled, "Unlawful Use or Possession of Weapons by Felons or Persons
in the Custody of the Department of Corrections Facilities." 720 ILCS 5/24-1.1(e) (West 2010).
Given that the language used to denote defendant's UUW by a felon conviction adheres to the
title of the statute itself, it was correct to allow the mittimus to be labeled with this same term.
¶34 CONCLUSION
¶35 For the reasons stated above, the judgment of the circuit court of Cook County is
affirmed. We order that defendant's mittimus be corrected as directed.
¶36 Affirmed; mittimus corrected.
¶37 PRESIDING JUSTICE GORDON, dissenting.
¶38 I must respectfully dissent from the majority's holding, which concludes that defendant
was properly convicted of the Class 2 form of the UUW offense rather than the Class 3 form of
the offense, because the State failed to give him notice that it was seeking to charge him with an
enhanced Class 2 form of the UUW offense, as required by section 111-3(c) of the Code of
Criminal Procedure (725 ILCS 5/111-3(c) (West 2010)).
¶39 The majority reaches this holding by suggesting that an opinion that I recently authored,
People v. Pryor, 2013 IL App (1st) 121792, was wrongly decided. In Pryor, Justice Taylor
concurred with the opinion that I authored and Justice Palmer dissented. In today's opinion,
Justice Palmer, as the author, together with Justice McBride constitute the majority.
¶40 The majority's opinion acknowledges that there is a split in authority among the appellate
courts on this issue and that our supreme court has already accepted this issue for review. For
5
The name of the offense in the mittimus is listed as "FELON POSS/USE FIREARM
PRIOR."
16
1-12-2017
the reasons that I already stated in the Pryor opinion, which I authored just a few months ago, I
dissent here.
17
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
LOVELL POLK,
Defendant-Appellant.
No. 1-12-2017
Appellate Court of Illinois
First District, Fifth Division
March 14, 2014
JUSTICE PALMER delivered the judgment of the court, with opinion.
Justice McBride concurred in the judgment and opinion.
Presiding Justice Gordon dissented, with opinion.
Appeal from the Circuit Court of Cook County.
For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, and Kristen E. Mueller, all of the
State Appellate Defender's Office, of Chicago
For APPELLEE: Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, John E.
Nowak, Assistant State's Attorneys, of counsel).
| {
"pile_set_name": "FreeLaw"
} |
Filed 11/17/14 Prado v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THOMAS PRADO,
Plaintiff and Appellant, E058796
v. (Super.Ct.No. RIC473510)
COUNTY OF RIVERSIDE et al. OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. John W. Vineyard, Mac
R. Fisher, and Daniel A. Ottolia, Judges.1 Affirmed.
Aviles & Associates and Moises A. Aviles for Plaintiff and Appellant.
Kinkle, Rodiger and Spriggs, Bruce E. Disenhouse, and Janine L. Highiet-Ivicevic
for Defendants and Respondents.
1
Judge Vineyard sustained a demurrer without leave to amend. Judge Fisher
ordered the entire action dismissed. Judge Ottolia entered the formal written order of
dismissal.
1
Plaintiff Thomas Prado sued the County of Riverside (County) and others, alleging
that sheriff’s deputies failed and refused to remove trespassers from his property. These
trespassers allegedly harassed Prado and eventually stole or destroyed $379,000 worth of
his personal property.
The operative complaint asserted a single cause of action for violation of federal
civil rights under 42 United States Code section 1983 (section 1983). The trial court
sustained the County’s demurrer, without leave to amend, on the grounds that Prado had
not alleged that the deputies were acting pursuant to a municipal policy or custom and
had not alleged any specific constitutional violation. Prado appeals. We will affirm.
I
FACTUAL BACKGROUND
The following facts are taken from the allegations of the operative complaint.
Prado owns a piece of real property in the County. Some trespassers started living
on his property “in makeshift camp sites.”
Prado repeatedly asked Riverside sheriff’s deputies to remove the trespassers. He
specifically asked the deputies to proceed pursuant to Penal Code section 602,
subdivision (o).2 However, they failed and refused to take any action. Two deputies told
2
This subdivision, as relevant here, makes it a misdemeanor to “[r]efus[e] or
fail[] to leave land . . . belonging to or lawfully occupied by another and not open to the
general public, upon being requested to leave by (1) a peace officer at the request of the
owner, . . . and upon being informed by the peace officer that he or she is acting at the
request of the owner, . . . or (2) the owner . . . .”
2
Prado that “the situation was ‘beyond their job description/responsibilities,’” but it would
warrant an investigation by the gang crime unit, and they would refer it to the gang crime
unit.
The trespassers started to “engage[] in suspicious and/or criminal activities . . . .”
They became hostile and verbally abusive. They threatened Prado and his family with
bodily harm. He avoided going on the property because he was afraid. At some point,
the trespassers stole or destroyed $379,000 worth of his personal property that had been
stored on the property.
According to Prado, the sheriff had instructed his deputies not to enforce the
misdemeanor laws because the county jails were overcrowded. The deputies also did not
enforce the law because Prado “was not ‘rich enough,’ . . . he was Latino, and/or he was
not a regular contributor to the County Supervisor’s campaign . . . .”
Prado further alleged that: “Defendant County and any Defendant in his/her
official and/or individual capacity knowingly, or grossly negligently, or with deliberate
indifference to the rights allegedly violated, conspired to cause to come into being,
maintained, fostered, condoned, approved of, either before the fact or after the fact,
ratified, took no action to correct, an official policy, practice, procedure, or custom of
permitting the occurrence of the categories of wrongs set forth in this pleading, and/or
improperly, inadequately, with deliberate indifference to the constitutional or other
federal rights of persons, grossly negligently, with reckless disregard to constitutional or
other federal rights, conspired to violate civil rights, so that each one of them is legally
3
responsible for all the injuries and/or damages sustained by the Plaintiff pursuant to the
principles set forth in Monell v. New York City Dept. of Social Services and its progeny.
Furthermore, the actions of Defendants City [sic], and County, each follow a policy of
‘no policy’ in protecting the rights of property owners, and that [sic] the individual
Defendants have demonstrated a lack of training and guidance in the protecting of the
constitutional and civil rights regarding the protection of property owners.”
Prado concluded that defendants’ alleged conduct violated due process and equal
protection.
II
PROCEDURAL BACKGROUND
Prado filed the original complaint in this action in 2007. The named defendants
were the County, Sheriff Bob Doyle, Deputy Larson, Deputy Roth, Deputy Holbrook,
Deputy Ortiz, Deputy Cortez, Deputy Cameron, Deputy Jantz, Candace O’Gara, and one
“Erica.”
The County and the other defendants filed answers. Two and a half years later,
however, the County moved for judgment on the pleadings. After the trial court stated a
tentative ruling, Prado requested leave to amend, which the trial court granted.3
3
The County claims that its motion for judgment on the pleadings was
“implicitly granted.” The record does not support this. Rather, the motion for judgment
on the pleadings was mooted by Prado’s request for leave to amend.
4
Prado filed a first amended complaint. The County filed a demurrer. The trial
court sustained the demurrer — with leave to amend as to one cause of action, but
without leave to amend as to all other causes of action.4
Prado then filed a second amended complaint against the same defendants (except
that Erica was omitted).5 It asserted just one cause of action, for violation of federal civil
rights. (42 U.S.C. § 1983.)
The matter was set for trial. Meanwhile, the County filed a demurrer.6 It argued
that:
1. The County had statutory immunity under Government Code section 815.
2. The complaint failed to allege any specific constitutional violation.
3. The complaint failed to allege that defendants were acting pursuant to a policy,
ordinance, regulation, or custom.
The trial court sustained the demurrer without leave to amend. It found “no
authority presented that . . . the sheriff’s department had a duty to arrest the trespassers
. . . .” It also agreed that Prado had failed to allege “a policy, practice, et cetera . . . .”
4
Prado does not contend that it was error to sustain the demurrer to the first
amended complaint. The first amended complaint and the demurrer to it are not even in
the record.
5
The County claims that the individual defendants had been dismissed in
January 2011. The record does not support this. In any event, Prado named them again
in the second amended complaint, filed in March 2011.
6
The individual defendants did not join in the demurrer. However, the
County claimed that it had been “erroneously sued” in their names.
5
On the date set for trial, there was no appearance by any of the parties. The trial
court ordered the entire action dismissed without prejudice.7 It then entered a formal
written order of dismissal.
III
STANDARD OF REVIEW
“‘[T]he state courts of California should apply federal law to determine whether a
complaint pleads a cause of action under section 1983 sufficient to survive a general
demurrer.’ [Citation.] For the purposes of a demurrer to ‘a section 1983 complaint, the
allegations of the complaint are generally taken as true. [Citation.]’ [Citation.] When a
section 1983 complaint is prepared by counsel, ‘“[t]he controlling standard . . . is that an
action may be dismissed for failure to state a claim only if it ‘appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’” Furthermore, a pleading is insufficient to state a claim under the Civil Rights
Act if the allegations are mere conclusions. [Citations.] Some particularized facts
demonstrating a constitutional deprivation are needed to sustain a cause of action under
7
Prado does not contend that the trial court erred by dismissing the entire
action, as opposed to dismissing it solely as against the County. We deem him to have
forfeited any such contention.
In any event, assuming the individual defendants were still parties, the trial court
properly dismissed the action as to them when Prado failed to appear on the date set for
trial. (Code Civ. Proc., § 581, subd. (b)(3).)
6
the Civil Rights Act. [Citations.]’ [Citation.]” (Catsouras v. Department of California
Highway Patrol (2010) 181 Cal.App.4th 856, 891.)
“Our standard of review of an order sustaining a demurrer is well settled. We
independently review the ruling on demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action. [Citation.] In doing so, we
‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their
context. [Citation.] Further, we treat the demurrer as admitting all material facts
properly pleaded, but do not assume the truth of contentions, deductions or conclusions
of law. [Citations.]’ [Citation.]” (Parthemore v. Col (2013) 221 Cal.App.4th 1372,
1378.)
“‘ . . . “We affirm if any ground offered in support of the demurrer was well taken
but find error if the plaintiff has stated a cause of action under any possible legal theory.
[Citations.] We are not bound by the trial court’s stated reasons, if any, supporting its
ruling; we review the ruling, not its rationale. [Citation.]” [Citation.]’ [Citation.]”
(RealPro, Inc. v. Smith Residual Co., LLC (2012) 203 Cal.App.4th 1215, 1219 [Fourth
Dist., Div. Two].)
IV
IN THE ONLY INSTANCE IN WHICH A POLICY OR CUSTOM WAS ALLEGED,
NO CONSTITUTIONAL VIOLATION WAS ALLEGED
One of the grounds of the County’s demurrer was that the complaint failed to
allege any specific constitutional violation. Another was that the complaint failed to
7
allege that defendants were acting pursuant to a policy, ordinance, regulation, or custom.
The trial court sustained the demurrer on both grounds.
Section 1983, as relevant here, provides: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law . . . .”
“Under Monell [v. New York City Dept. of Social Services (1978) 436 U.S. 658],
local governments ‘can be sued directly under § 1983 . . . where . . . the action that is
alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.
Moreover, . . . local governments . . . may be sued for constitutional deprivations visited
pursuant to governmental “custom” even though such a custom has not received formal
approval through the body’s official decisionmaking channels.’ [Citation.] Local
government includes counties as well as cities. [Citations.]
“However, ‘a municipality cannot be held liable solely because it employs a
tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.’ [Citation.] Thus, ‘a local government may not be sued
under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the
8
injury that the government as an entity is responsible under § 1983.’ [Citations.]” (Pitts
v. County of Kern (1998) 17 Cal.4th 340, 348-349.)
Prado’s complaint includes a boilerplate allegation that defendants had “an official
policy, practice, procedure, or custom of permitting the occurrence of the categories of
wrongs set forth in this pleading . . . .” However, this is a legal conclusion, unsupported
by any facts. ‘[A] complaint stating only “bare legal conclusions,” even under notice
pleading standards, is not enough to survive a Rule 12(b)(6) motion. [Citation.]’
(Bissessur v. Indiana University Bd. of Trustees (7th Cir. 2009) 581 F.3d 599, 602; see
also Revene v. Charles County Com’rs (4th Cir. 1989) 882 F.2d 870, 875 [section 1983
claims are properly dismissed where “critical allegations of a municipal policy . . . are
asserted entirely as legal conclusions.”].)
Prado claims that he also pleaded a policy or custom by alleging that some
deputies told him that the matter was “‘beyond their job description . . . .’” In the same
breath, however, the deputies also said the gang crime unit could and should investigate.
Thus, if this was a policy at all, it related solely to who was supposed to investigate; it
was not a policy of failing or refusing to investigate at all.
There is one and only one instance in which Prado has even arguably pleaded a
municipal policy in a nonconclusory manner — when he alleges that the sheriff had
instructed deputies not to enforce the misdemeanor laws because the county jails were
9
overcrowded.8 In this particular instance, however, he has failed to allege a constitutional
violation.
Failure to enforce a state law, standing alone, is not a federal constitutional
violation. “The Constitution generally does not require the state to ‘protect the life,
liberty, and property of its citizens against invasion by private actors.’ [Citation.]
Consequently, the state’s failure to protect an individual from ‘harms inflicted by persons
not acting under color of law’ will not ordinarily give rise to § 1983 liability. [Citation.]”
(Shanks v. Dressel (9th Cir. 2008) 540 F.3d 1082, 1087, fn. omitted; see generally Castle
Rock v. Gonzales (2005) 545 U.S. 748 [police failure to enforce protective order did not
violate due process]; DeShaney v. Winnebago County Dept. of Social Services (1989) 489
U.S. 189 [failure to protect child from parent after abuse reports did not violate due
process].)
We therefore conclude that the trial court properly sustained the County’s
demurrer without leave to amend.
V
FRIVOLOUS APPEAL SANCTIONS
In their brief, defendants request attorney fees as frivolous appeal sanctions. (See
Code Civ. Proc., § 907.)
8
This assumes that the Sheriff was acting as final policymaker on behalf of
the County. (But see Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 839 [in
conducting criminal investigation, sheriff acts for state, not county].)
10
There is a clearly prescribed procedure for obtaining frivolous appeal sanctions; it
requires a timely motion, as well as a declaration supporting the amount of sanctions
sought. (Cal. Rules of Court, rule 8.276.) Because defendants have disregarded this
procedure, we deny their request. (See Summers v. City of Cathedral City (1990) 225
Cal.App.3d 1047, 1074, fn. 22 [Fourth Dist., Div. Two].)
VI
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal against Prado.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
11
| {
"pile_set_name": "FreeLaw"
} |
24 Ill. App.3d 536 (1974)
321 N.E.2d 52
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOSEPH WRIGHT, Defendant-Appellant.
No. 73-296.
Illinois Appellate Court Third District.
December 4, 1974.
*537 James Geis and Stephen Hurley, both of State Appellate Defender's Office, of Ottawa, for appellant.
Martin Rudman, State's Attorney, of Joliet (Patrick McNamara, Assistant State's Attorney, of counsel), for the People.
Reversed and remanded.
Mr. JUSTICE DIXON delivered the opinion of the court:
The defendant, Joseph Wright, was convicted of murder and was sentenced by the Circuit Court of Will County to a term of 14 to 20 years in the penitentiary. He appeals contending that certain instructions were erroneous.
Shortly before the occurrence, Felipe Gutierrez was driving north on Chicago Avenue in Joliet. As he approached the intersection of Chicago and Osgood Avenues, he began to make a right turn onto Osgood. He was unable to complete the turn, however, because another car had stopped on Osgood near the intersection and was blocking the street in front of him. Inside of his vehicle were his mother, wife, sister and three small daughters. He was taking his mother and sister home and was then going to a show with the rest of the family.
Joseph Wright was standing outside the passenger side of the stopped automobile by the curb, apparently talking to the driver. Mr. Gutierrez honked his horn a number of times and, shortly thereafter, the vehicle *538 ahead of him began to move. As it pulled away he too began to move forward, while Joseph Wright, who had been at the curb, began to walk across the street between the two vehicles.
The testimony of the witnesses, with regard to what occurred next, differed from one another.
Mrs. Jonnie Cuffie was driving a car which was parallel to that of Gutierrez, but facing in the opposite direction. She said that Gutierrez put on the brakes to keep from hitting Wright and that after he did so the defendant put his hand on the hood of the car, walked around to the driver's side and kicked the car door with his left foot. At that, she stated, Gutierrez jumped out of his car and, while gesturing with his hands, said, "Man you can't block these streets people have to drive through here." Next, she said the defendant pulled a gun and stepped closer to Gutierrez while muttering a few obscenities. Gutierrez then picked up his left leg and right hand to hit the gun. Wright took two steps backward and Gutierrez took two steps toward him and with the gun pointed toward Gutierrez, Wright shot. She said she heard three or four shots but only saw two fired the second bullet going through the window of her car. Mrs. Cuffie saw no physical contact between Gutierrez and Wright and did not see Gutierrez spit at the defendant. When the gun was fired the first time by defendant it was pointed at Gutierrez's chest and Gutierrez's hands were both at shoulder height with nothing in them and he was not attempting to hit Wright. Further, that he did not reach toward his pocket.
Otis Common, Mrs. Cuffie's 15-year-old son, was sitting in the back seat of Mrs. Cuffie's car. He stated that after Gutierrez braked to avoid hitting Joseph Wright, Wright looked in the windshield said something, walked to the driver's side, and kicked the door making a dent which popped out as Gutierrez got out of the car. The defendant backed up as Gutierrez, raising his hands, hollered at him. The witness said Wright took two steps back, pulled out a gun and shot Gutierrez in the chest. He stated that Mr. Gutierrez neither put his hands near his pocket, nor spit at, nor punched or kicked the defendant. There was nothing in his hands. The barrel of the gun was never pointed up in the air.
Artena Hernandez, also a passenger in the Cuffie car, said that she did not see the defendant touch or kick the Gutierrez vehicle. Rather, she said, Gutierrez slammed the door to his car and advanced rapidly toward the defendant. She was unsure as to whether the defendant took out the gun as Gutierrez was getting out of the car or as Gutierrez was advancing toward him. She said that she did not see the deceased spit at the defendant nor strike any blow at defendant.
Paul Van Duyne, a lathe operator at Caterpillar, was headed south *539 on Chicago and was stopped at the corner of Chicago and Osgood when the occurrence took place. He said his view was unimpaired and that he watched Gutierrez jump out of his car and walk to the rear of it, going after the defendant. Gutierrez, he testified, swung and kicked at the defendant, but failed to make contact. The defendant had his hands up in front of his chest to defend himself, and then reached into his coat and took out a gun. He fired two rapid shots while the gun was pointed at Gutierrez.
Fred Padovich, a steelworker, was a passenger in the Van Duyne car. He wore glasses but did not have them on at the time. He said that he watched Gutierrez get out of the car and move to the rear of it where the defendant was. They appeared to be talking or arguing and it looked as though Gutierrez was going to punch or kick Wright, but he never saw him throw the punch. He said that the defendant then stepped back, took out a gun and shot twice. He did not see the deceased spit at the defendant.
Ampal and Carolyn Gutierrez, the deceased's sister and wife, respectively, testified that the defendant, after walking in front of the car, walked around to the driver's side and kicked it. The deceased, who weighed 120 pounds and was 5 feet 8 inches tall, got out of the car and his sister heard him ask the defendant why he was blocking the road and kicking the car. Both men walked to the rear of the car whereupon, the women said, the defendant pulled a gun and shot him. Ampal Gutierrez heard three or four shots whereas Carolyn heard two. Neither saw blows exchanged nor saw the deceased spit or reach for his pockets.
Joseph Wright testified that after the driver to whom he had been talking pulled away he began to walk across the street toward his car. He heard a loud noise, the Gutierrez car engine, and, being startled, he jumped and threw up his hands. He said that as he continued across the street he heard Mr. Gutierrez say something. Gutierrez then jumped out of his car and asked the defendant what he had said. The defendant responded, "Oh man hold your breath." Gutierrez then stepped toward him and pushed him. Mr. Wright said, "What is this," and Gutierrez again asked what Wright had said. The defendant replied "I said say man hold your breath."
Next, he said, Mr. Gutierrez spit on his coat and he, in response, called him a name. Gutierrez then tried to kick him, but was pushed by the defendant as he did so, and therefore only touched the defendant's groin with his foot. That done, Mr. Wright said, Gutierrez began to fumble at his right coat pocket. Thinking he might be reaching for a gun, the defendant said he pulled out his own gun. He asked Gutierrez if he was going to leave him alone, but Gutierrez went to push him, so *540 the defendant raised his gun upwards and fired. He said that he was not aiming it at Gutierrez. After the shot, Gutierrez backed off and then came back swinging wildly. The defendant stated that he tried to block him and then fired again, though he did not intend to shoot him.
Danny Knight was the driver of the vehicle which had been blocking the street. He pulled his car over to the side of the road and observed Joe Wright walk around the Gutierrez vehicle. He said that Wright was headed north when Gutierrez got out of the car and started chasing him, trying to hit him and kick at him. He said that Wright kept telling Gutierrez to back off and that Gutierrez reached into his pocket at which time he heard a gun go off twice. It was Joe Wright who had the gun.
All witnesses agree that after the shooting Gutierrez walked back to his car and began to drive off. A moment later, though, he slumped over and the automobile ran up onto the curb. Joseph Wright began to walk away from the area but then broke into a run.
Scientific examinations were made of the defendant's coat and shoes. Saliva was found on the front of the Joseph Wright coat, though the saliva could not be positively linked to Gutierrez because of the effect which chemicals in the clothing fibers had had on it. The defendant's shoes and pants were tested and compared against a soil and paint standard taken from the deceased's vehicle. No comparable soil or paint was detected on Mr. Wright's shoes and pants.
Medical testimony established that Gutierrez died as a result of a bullet wound. The path of the bullet was from front to back, slightly to the right and slightly downwards.
Also introduced into evidence were two tape-recorded statements made by the defendant after his arrest. In the first statement, the defendant denied any knowledge of the occurrence. In the second statement, however, he related his involvement in the shooting, describing the events in much the same manner that he did in his testimony.
1, 2 Defendant on appeal complains of certain instructions that were given without objection in the trial court. Defects in instructions are waived unless objection is made in the trial (People v. Kelley, 105 Ill. App.2d 481, 485). However, Supreme Court Rule 451(c) provides that in criminal cases substantial defects in instructions are not waived by failure to make timely objections thereof if the interests of justice require it. (14A I.L.P. Criminal Law § 652 (1968).) One who seeks to avoid waiver of defects in instructions for failure to make specific objection has burden of establishing (a) that the defects in the instruction are substantial, and (b) that the giving of the instruction resulted in denying to the defendant a fair trial and justice. People v. Price, 96 Ill. App.2d 86, 95.
*541 At the conference on instructions it was agreed that the evidence was such as to warrant an instruction on self-defense; on murder; and on voluntary manslaughter.
When the issue involved in self-defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all other elements of the offense. Ill. Rev. Stat. 1971, ch. 38, par. 3-2; People v. Adams, 113 Ill. App.2d 205.
In the instant case the jury was instructed that the State must prove beyond a reasonable doubt that the defendant was not justified in using the force which he used. IPI Criminal, No. 25.05 (issues in defense of justifiable use of force) was given without objection. But they were also instructed in a separate instruction, IPI Criminal No. 7.02 (issues in murder) that they could find the defendant guilty of murder with no requirement that the State prove beyond a reasonable doubt that the defendant was not justified in using the force which he used.
3 The elements or issues of the defense of self-defense should be treated in two ways: first, by definition following the definition of the crime with which defendant is charged (this was done in the instant case) and second, in the same instruction with the issues or elements of the crime and the State's burden of proof. The jury should receive a single instruction covering all of the issues. (IPI Criminal, at 436; IPI No. 25.05.) An example is given at IPI Criminal, at 460. Also see People v. Joyner, 50 Ill.2d 302, 307.
4, 5 When the language of an instruction is inaccurate, and, standing alone, might have misled the jury, others in the series may explain it, remove the error or render it harmless. But that can never be so when instructions are in direct conflict with each other, one stating the law correctly and the other incorrectly. (People v. Miller, 403 Ill. 561, 565.) IPI Criminal No. 7.02 should not have been given. Under the circumstances of this case we believe the defendant's failure to object to IPI Criminal No. 7.02 was not as important with reference to the fundamental fairness of the trial as the requirement that the jury be properly instructed.
Defendant also contends that the jury was given a manslaughter instruction which described the wrong theory and which was inapplicable to the facts of the case and that the one given on the issues did not make sense. He is asserting that when murder is the charge and self-defense is claimed that IPI Criminal No. 7.05 must be given.
Section 9-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9-2) defines two different types of voluntary manslaughter. The first type, described in subsection (a) occurs when at the time of the killing *542 the accused was acting under a sudden and intense passion. Instructions 7.03 and 7.04 of IPI correspond to this theory of voluntary manslaughter.
The second type is described in subsection (b) of section 9-2 thusly:
"(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable."
IPI Criminal No. 7.05 (intentional-belief of justification) and 7.06 (issues) correspond to this theory. The difference between a justified killing under self-defense and one not justified, amounting to voluntary manslaughter, is that in the former instance the belief that the use of force is necessary is reasonable under the circumstances, and in the latter, the belief is unreasonable. People v. Joyner, 50 Ill.2d 302, 307.
In giving the instruction on justifiable use of force the trial court here determined, as a matter of law, that there was sufficient evidence on that issue for the consideration of the jury. When the trial court determined that the facts in evidence justify or require the giving of an instruction on the justifiable use of force, there are, in fact, three alternatives for the consideration of the jury, i.e., (1) murder, (2) that the use of force was justified and self-defense was demonstrated, or (3) that while the defendant might have believed that the use of force was necessary under the evidence, such belief was unreasonable. (People v. Johnson, 1 Ill. App.3d 433, 435; People v. Zertuche, 5 Ill. App.3d 303; People v. Dortch, 20 Ill. App.3d 911, 314 N.E.2d 324. But, also see People v. Humble, 18 Ill. App.3d 446.) In the instant case the jury was never given the opportunity to consider the statutory offense which results when force is used unreasonably as defined in section 9-2(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9-2(b)).
The instruction given in the instant case was a modification of IPI Criminal No. 7.04, the pertinent part of which, as modified, read as follows:
"That where the defendant did so he acted under a sudden and intense passion resulting from serious provocation by Felipe Gutierrez, whom he endeavored to kill, but he negligently or accidentally killed Felipe Gutierrez."
It is unlikely that one could endeavor to kill A and at the same time negligently or accidentally kill A. The committee note to No. 7.04 suggests that "[b]lanks should be filled in with names of decedent and third person as applicable." It is a type of situation when a defendant, acting under a sudden and intense passion resulting from serious provocation *543 by A, whom he endeavors to kill, but negligently or accidentally kills B, that this section of the instruction is applicable.
6 We believe that under the circumstances of this case the defendant's failure to either object or to tender appropriate instructions was not as important to the fundamental fairness of his trial as the requirement that the jury be fully and properly instructed.
For reasons stated the judgment of conviction is reversed and the cause is remanded for a new trial.
Reversed and remanded.
ALLOY and STOUDER, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
766 P.2d 247 (1988)
Victoria S. WILLIAMS and Larry D. Williams, Plaintiffs and Appellants,
v.
Spencer SELSTAD and Dawn Selstad, Defendants and Respondents.
No. 88-190.
Supreme Court of Montana.
Submitted October 11, 1988.
Decided December 13, 1988.
Skaggs Law Firm; Robert H. Skaggs argued, Billings, for plaintiffs and appellants.
Peterson, Schofield & Leckie; K.D. Peterson argued, Billings, for defendants and respondents.
HARRISON, Justice.
This appeal arises from a grant of summary judgment in the District Court of the Thirteenth Judicial District, Yellowstone County, Montana. A motorist was injured when a horse ran onto the county highway located within a herd district. The lower court held these livestock owners owed no duty to the appellants as a matter of law. We affirm.
Appellants allege Victoria Williams was driving on 12-Mile Road near Shepherd, Montana, when a horse owned by the respondents ran onto the highway. In her attempt to avoid the horse, Victoria lost control of her vehicle and was injured. The parties have stipulated that the accident occurred on a secondary county road which is located within a "herd district," but which is not part of the Federal-Aid Primary Highway System.
Appellants argue the respondents negligently failed to maintain fences on their property adjoining 12-Mile Road, and negligently failed to restrain and confine the horse, "thereby permitting said horse to run at large." Appellants also allege that "Defendants knew, or should have known, that their negligence as heretofore described would in fact result in said horse running at large ..." Appellants also rely on the doctrine of res ipsa loquitur.
Respondents moved to dismiss the action. After considering the stipulations, the motion to dismiss was treated by the District Court as a motion for summary judgment. By order and memorandum dated January 20, 1988, the District Court granted respondents' motion. The court held that herd district statutes were designed only to protect other land owners and thus were not exceptions to the open range doctrine.
Although the open range doctrine relieves owners or possessors of livestock *248 of a duty to keep their livestock from wandering onto the roadway, appellants argue that the herd district is a legislative exception to this rule. In support of this theory, appellants note the Legislature has otherwise modified the open range doctrine by preventing livestock from running at large in certain areas through enactment of §§ 60-7-101 through 60-7-205, MCA (state highways which have been designated as part of the National System of Interstate or Defense Highways or as part of the Federal-Aid Primary System). Similarly, they argue, because §§ 81-4-301 through 81-4-309, MCA, provide for the creation of herd districts and penalties for those who "shall willfully permit" livestock to "run at large within any herd district," the no-duty rule no longer applies. We disagree with this conclusion.
Recently we have restated that the law of the open range is the law of Montana and that the exceptions enacted by the Legislature have been carefully crafted. State ex rel. Martin v. Finley (Mont. 1987), 738 P.2d 497, 499, 44 St.Rep. 1050, 1052. We are here confronted with a livestock statute which makes it a misdemeanor to willfully allow livestock to roam at large within a herd district. The question we must answer is whether this statute was intended by the Legislature to impose a duty on livestock owners to keep livestock from wandering onto the roadway within the herd district.
Section 81-4-306, MCA, provides:
(1) Any person who is the owner or entitled to the possession of any horses, mules, cattle, sheep, asses, hogs, or goats, who shall willfully permit same to run at large within any herd district, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $50 or more than $250 for each offense. Each day that each five head or less of such horses, mules, cattle, sheep, asses, hogs, or goats are willfully permitted to run at large shall constitute a separate offense.
(2) Any person who is the owner or entitled to the possession of any bull, stallion, or jackass over 1 year of age who shall willfully permit same to run at large within any herd district shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than $50 or more than $250 for each offense. Each day that such bull be permitted to run at large shall constitute a separate offense.
In order to determine whether the Legislature intended to create a duty to motorists, we look to the plain language of the statute and to the practical implications of imposing such a duty. Initially, we point to the definition of open range as defined in § 81-4-203, MCA, wherein the Legislature specifically included highways:
The term "open range" includes all highways outside of private enclosures and used by the public whether or not the same have been formally dedicated to the public.
Nothing in this definition, or in the herd district statutes removes the no-duty rule of the open range from applying to highways, whether they pass through a herd district or not.
In this case, we agree with the District Court that the herd district statutes were not designed to protect motorists but were only intended to protect landowners and owners of livestock. Recently, in State ex rel. Martin, supra, we examined the open range doctrine and the statutory exceptions which we noted were carefully crafted by the Legislature. Such exceptions include those enumerated under § 60-7-101 et seq., MCA, where the Legislature's goal was to strike a balance between the needs of Montanans who raise livestock and the need to make Montana's highways safer for motorists. Similarly, the Legislature has specifically stated that certain kinds of livestock shall not wander at large on open range. Sections 81-4-204, -207, -208 and -210, MCA.
It is simply not clear that Montana's Legislature intended to create a duty owed to motorists through enactment of the herd district statutes. Appellants point to the Federal District Court's decision in Read v. Buckner (D.Mont. 1981), 514 F. Supp. 281, where, in a similar case, the court refused *249 to grant the defendant's motion for summary judgment. The court agreed with the plaintiff's argument that §§ 81-4-201 and 81-4-202, MCA, create a civil cause of action by a motorist against one who willfully permits swine, sheep or goats to run at large. The court reasoned:
Even if in 1895 the Legislature intended to protect only landowners against damage caused by swine, it is difficult to believe that in 1945 a legislature fully aware of paved roads, automobiles, and accidents did not, by changing the status of sheep and goats, intend that the protection of the law should extend to all who were injured by violations of it. Certainly the language contains no limitations.
Read, 514 F.Supp at 283.
The appellants urge us to accept this reasoning with respect to the herd district statutes. However, we find this reasoning unpersuasive. In fact, such a proposition merely begs the question: If the Legislature was aware of the problems these animals created for motorists, and intended to create civil liability to protect motorists, why did not the Legislature simply put that into the statutes? We should not credit the Legislature with an intent to create a civil duty where there is nothing in the legislation to lead us to that conclusion.
We are not persuaded this was the Legislature's intent because imposing such liability under the herd district statutes would likely result in strange and amorphous liability rules. For instance, liability would result unexpectedly where the herd district is established only for a portion or portions of a year, or where districts are established in a checkerboard fashion along a county road. There are a multitude of scenarios imaginable which illustrate the problems with such a rule and which militate against that construction. We hold the Legislature did not intend to change the open range no-duty rules through enactment of the herd district statutes.
The judgment of the District Court is affirmed.
TURNAGE, C.J., and WEBER, HUNT, McDONOUGH and GULBRANDSON, JJ., concur.
SHEEHY, Justice, dissenting:
It is no credit to our Court that it follows meekly the fundamental errors of past decisions of this Court. When former interpretations of law take away a person's right of remedy, the basic underpinnings of those interpretations are called to account. For if equal justice under the law is the supreme goal of American justice, inequality of right or result defeats that goal. The legislature cannot be blamed for this decision; the legislature rightly determined when and how livestock owners should control their animals at large. It is judge-made law, and not legislative fiat, that applies livestock containment laws to automobiles. Nowhere do those laws make reference to automobiles.
The majority approached this case all wrong. The livestock laws were never intended to determine the rights of motorists vis-a-vis livestock owners arising out of animal-automobile collisions. The objectives of our livestock containment laws are to control unwanted breeding by stray animals, to distinguish between animals on open range and in herd districts, to fix who has a duty to fence between livestock owners and landowners; and to provide for the taking and return of estrays. These statutes have the venerability of antiquity: they preceded modern day vehicular traffic. They were enacted when road traffic consisted essentially of carriages and hay wagons, to which animals at large presented no danger. For their purposes, livestock containment laws have a valid application; for torts not related to their purposes, the livestock containment laws should be disregarded and the ordinary rules of negligence laws should apply. Then the task of the Court would be simple: was the defendant's negligence a proximate cause of the motorist's injuries, and comparatively, did the plaintiff's want of care contribute to her injuries.
Application of livestock containment laws to animal-vehicular collisions, as in this case, creates a hotch-potch of dissimilar *250 results from like incidents: the livestock owner is not liable if the animal is a purebred bull between July 1 and December 1; a mare, filly or jenny; or a cow. But the livestock owner may be liable if the animal is a mixed-breed bull anytime; a purebred bull between December 1 and June 1; a stallion, ridgeling or mule; or a sheep, a pig or a goat. When liability depends on the sex or kind of animal, or the time of the year and not the degree of negligence, the law is awry. Such confounded results say that some animals, at some times, are worth more than people.
How much more simple and concordant with our basic notions of liability it would be if we realized that the livestock containment laws were not applicable here, and decided this case on the well-worn and suitable statute of principle:
... everyone is responsible not only for the results of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.
Section 27-1-701, MCA.
| {
"pile_set_name": "FreeLaw"
} |
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-IA-01877-SCT
AMERISTAR CASINO VICKSBURG, INC.
v.
JIMMY L. DUCKWORTH
DATE OF JUDGMENT: 10/11/2006
TRIAL JUDGE: HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: TIMOTHY D. MOORE
WHITMAN B. JOHNSON
CURRIE GRIFFIN JOHNSON
ATTORNEY FOR APPELLEE: MARK W. PREWITT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED AND REMANDED - 06/19/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. The lawsuit underlying this appeal addresses the Mississippi Gaming Commission’s
(“MGC”) jurisdiction to resolve a dispute arising from a casino’s promotional drawing. The
question presented is whether a promotional drawing (as held by the casino in this case)
constituted a “game” or a “gaming debt,” in which case the MGC enjoys exclusive
jurisdiction as conferred by the Mississippi Gaming Control Act (“MGCA”); or a
“promotional giveaway,” 1 in which case the dispute must be decided under the common law,
as applied in our trial courts.
1
The trial court and the parties’ briefs refer to it as a “raffle.”
STATEMENT OF FACTS AND PROCEEDINGS
¶2. Ameristar Casino Vicksburg, Inc. (“Ameristar”) held a promotional drawing titled
“$190,000 Dream Car Giveaway” which was open only to Ameristar Star Awards
cardholders who obtained entries based on their play at the casino. Players were required to
be present in the casino to win. The entries were placed in a drum, from which ten finalists
were drawn at random. The winner was allowed to spin a prize wheel to determine whether
he or she would win a car or money. Subsequently, Ameristar declared Jimmy L. Duckworth
as the winner and gave him $5,461 in cash and a check for $35,000.
¶3. However, Ameristar stopped payment on the check, contending that Duckworth
received the contest entry form in an unauthorized manner in violation of the rules of the
promotion.2 Duckworth reported this incident to the MGC, which issued a notice of violation
to Ameristar for failing to immediately report the dispute.
¶4. On June 7, 2006, Duckworth filed a complaint in the Circuit Court of Warren County,
seeking payment of the $35,000 check. On June 27, 2006, Ameristar filed a motion to
dismiss, arguing that the MGC had exclusive jurisdiction over any dispute arising from the
Giveaway. The circuit court concluded that the promotional drawing was a “promotional
giveaway,” 1 rather than a “game” or “gaming debt” as defined within the MGCA. Thus,
because promotional giveaways are not covered by the MGCA, the circuit court refused to
relinquish jurisdiction to the MGC. Ameristar appeals the circuit court’s decision. We
2
Ameristar argues in its “Motion to Dismiss Pursuant to Rule 12(b)(1)” that Duckworth did
not earn the ticket and it was not awarded to him by Ameristar. Rather, it was allegedly transferred
to him by his brother. Paragraph 8 of the official rules clearly states that tickets are non-transferable.
2
affirm, albeit substituting “promotional giveaway” for the trial court’s nomenclature “raffle”
for the drawing.
ANALYSIS
¶5. Jurisdiction and statutory interpretation are matters of law and, therefore, we review
de novo a trial court’s rulings on such matters. Grand Casino Tunica v. Shindler, 772 So.
2d 1036, 1038 (Miss. 2000) (citing Wright v. White, 693 So. 2d 898, 900 (Miss. 1997)).
¶6. The outcome of this case is governed by the MGCA, codified at Mississippi Code
Annotated Section 75-76-1, et seq. (Rev. 2000). One portion of the MGCA necessary to
resolve this dispute states:
A claim by a patron of a licensee for payment of a gaming debt not evidenced
by a credit instrument may be resolved by the executive director in accordance
with Section 75-76-159 through 75-76-165, inclusive.
Miss. Code Ann. § 75-76-157(2) (Rev. 2000) (emphasis added).
¶7. Although the statute employs the term “may be resolved” (suggesting concurrent
jurisdiction) rather than “shall be resolved” (suggesting exclusive jurisdiction), this Court
nevertheless has held that “all gaming matters are the exclusive jurisdiction of the Mississippi
Gaming Commission.” Grand Casino Tunica v. Shindler, 772 So. 2d 1036, 1038 (Miss.
2000) (citing Miss. Code Ann. § 75-76-157). Therefore, we consider whether a particular
dispute between a patron and a casino springs from “a gaming debt.” The Act provides the
following definitions:
Except as otherwise provided by law, “game” or “gambling game” means any
banking or percentage game played with cards, with dice or with any
mechanical, electromechanical or electronic device or machine for money,
property, checks, credit or any representative of value . . . or any other game
or device approved by the commission. However, “game” or “gambling
3
game” shall not include bingo games or raffles which are held pursuant to the
provisions of Section 97-33-51.
Miss. Code Ann. § 75-76-5(k) (Rev. 2000) (emphasis added).
¶8. Further, Mississippi Code Annotated Section 75-76-5(l) states that “gaming” or
“gambling” means “to deal, operate, carry on, conduct, maintain or expose for play any game
as defined in this chapter.” Miss. Code Ann. § 75-76-5(l) (Rev. 2000).
¶9. This Court must apply the plain meaning of unambiguous statutes. Richmond v. City
of Corinth, 816 So. 2d 373, 377-78 (Miss. 2002). The statute which controls this case is not
ambiguous and its plain meaning applies. The provisions of the Gaming Control Act clearly
limit the MGC’s jurisdiction to disputes between patrons and casinos arising from gambling
debts.
¶10. Upon review of the record, we agree with the trial court that Ameristar’s giveaway
did not involve gambling, and was not a “game” as defined by the Gaming Control Act. The
giveaway was open to Ameristar cardholders who received tickets to be used in a drawing.
Although the number of entries for the drawing was based upon the amount of play at the
casino, the tickets themselves cost nothing. Also, a free ticket was given to Ameristar
cardholders simply upon showing valid ID.
¶11. The prize was awarded by random drawing. This random drawing clearly is not
“played with cards, with dice, or with any . . . device or machine for money . . . ,” and
therefore, does not fall under the definition of a “game” or “gambling” as per the MGCA.
Accordingly, we classify the drawing as a promotional giveaway and, therefore, subject to
common-law jurisdiction.
4
CONCLUSION
¶12. When applying the plain language of Mississippi Code Section 75-76-1, et seq., to the
facts of this case, Ameristar’s “Giveaway” does not qualify as a “game” or a “gaming
matter,” and the dispute between Duckworth and Ameristar is unrelated to a “gambling
debt.” Thus, the MGC does not have jurisdiction to decide this dispute. Accordingly, the
judgment of the Circuit Court of Warren County is affirmed and this case is remanded for
further proceedings consistent with this opinion.
¶13. AFFIRMED AND REMANDED.
SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, GRAVES,
RANDOLPH AND LAMAR, JJ., CONCUR.
5
| {
"pile_set_name": "FreeLaw"
} |
434 F.2d 1304
168 U.S.P.Q. 71
DEKAR INDUSTRIES, INC., a California corporation, A & EPlastik Pak Co., Inc., a California corporation,Joseph Dekel and Yehochai Schneider, Appellants,v.The BISSETT-BERMAN CORPORATION, a California corporation, Appellee.
No. 25117.
United States Court of Appeals, Ninth Circuit.
Nov. 19, 1970, Rehearing Denied Dec. 17, 1970.
Meyer Berkowitz (argued), Beverly Hills, Cal., Edmond F. Shanahan, Los Angeles, Cal., for appellants.
Ellsworth R. Roston (argued), of Smyth, Roston & Pavitt, Charles H. Schwartz, Los Angeles, Cal., for appellee.
Before HAMLEY and KOELSCH, Circuit Judges, and PLUMMER,* District judge.
KOELSCH, Circuit Judge.
1
Appeal from an order of the district court granting plaintiff (appellee herein) a preliminary injunction restraining defendants (appellants) from misusing plaintiff's alleged trade secrets pending determination of plaintiff's combined actions for unfair competition and patent infringement.1
2
Paragraph numbered '(4)' of the preliminary injunction describes plaintiff's trade secrets as methods and techniques of manufacture of electrolytic cells (coulometers) in quantity and with reliable characteristics. The methods and techniques in turn are described as those for preparing and plating the anodes of electrolytic cells to insure accurate deplating, treating the components to prevent the formation of dendrites in the cells, cleaning the cells of contaminants and stabilizing the cells after assembly. The specific trade secrets are not set forth.
3
Paragraphs numbered '(1)' through '(6)' enjoin defendants from shipping tooling, equipment, electrolytic cells or components anywhere in the world, from establishing manufacturing facilities or arranging financing to produce cells and from disclosing to other persons information concerning the construction of such cells. These acts are enjoined only insofar as they relate to the use of plaintiff's trade secrets. Any acts not involving such secrets are expressly permitted.
4
Defendants seek to have the order granting the preliminary injunction set aside on the grounds that plaintiff failed to identify any trade secrets, that the district court failed to comply with Rules of Civ.P. 52(a) and 65(d), that the district court abused its discretion in granting the preliminary injunction, and that defendants were denied due process in that the district court refused to require plaintiff to allege, or otherwise inform them, of its asserted trade secrets prior to the hearing.
5
The district court found not only that plaintiff possesses a qualified property right in the aforesaid secrets, but also found that the defendant Dekel and one Gene Frick, plaintiff's former employee, gained knowledge of the secrets from plaintiff in confidence; that all the defendants and Frick have entered into a conspiracy to wrongfully exploit these secrets and are presently engaged in carrying it out, all to plaintiff's irreparable economic injury.
6
These findings, in our estimation, fairly comport with all requirements of Rule 52(a); they provide 'a clear understanding of the basis of the trial court's decision, and * * * enable (us) * * * to determine the ground on which the trial court reached its decision.' Irish v. United States, 225 F.2d 3, 8 (9th Cir. 1955);2 in addition, they have support in the evidence and are not clearly erroneous.3
7
Nor does the record manifest any fact or circumstance that at this stage of the proceeding would constitute the award of preliminary injunctive relief an abuse of the district court's broad discretion. The design patent granted plaintiff for the cell itself affords no bar, because it does not cover mass production methods which are the secrets. Components for Research, Inc. v. Isolation Products, Inc., 241 Cal.App.2d 726, 730, 50 Cal.Rptr. 829 (1966). And although Frick himself may have developed some of the secrets, he gave plaintiff a written covenant not to use or disclose them, and this covenant also extends to those whom the court held were conspirators. Servo Corp. of America v. General Electric Co., 337 F.2d 716 (4th Cir. 1964), cert. denied, 383 U.S. 934, 86 S.Ct. 1061, 15 L.Ed.2d 851, reh. denied, 384 U.S. 914, 86 S.Ct. 1333, 16 L.Ed.2d 366; Winston Research Corp. v. Minn. Mining & Mfg. Co., 350 F.2d 134 (9th Cir. 1965). Nor do the Sears-Compco rules4 prevent equitable relief for the misuse of trade secrets by those who are bound by a confidential relationship or by an express or implied agreement to maintain secrecy. Servo Corp. of America v. General Electric Co., supra, 337 F.2d at 724-725.5
8
The injunctive order adequately meets the requirements of Rule 65(d) that it be 'specific in terms' and describe 'in reasonable detail' the acts sought to be restrained. Defendants are fairly informed-- by paragraph 4 of the order-- that the techniques are those employed by plaintiff, with respect to particular components of the cells, at certain clearly specified stages in their manufacture and to achieve particular results. A similar form of description was used in the order upheld by this court in another trade secret case (Winston Research Mfg. Corp., supra), and we deem the description here sufficient. Moreover, Frick, the skilled electro-chemist, and Dekel, the expert tool and die maker, admittedly played major roles in plaintiff's extensive program of research and development that culminated in plaintiffs adopting peculiar methods of processing and manufacturing of cells. It ill behooves Dekel and those in privity with him to now assert they do not know. Ungar Electric Tools, Inc. v. Sid Ungar Co. Inc., 192 Cal.App.2d 398, 404, 13 Cal.Rptr. 268 (1961).6
9
Defendants' due process contention borders on the frivolous. In addition to the facts alleged in the complaint-- if more were needed-- defendants were also informed in advance of the hearing of the specifics of the claims through plaintiff's answers to numerous interrogations and requests for admission, and by affidavits supporting the motion for the preliminary injunction.
10
The remaining errors asserted by defendants are without merit and so lacking in substance that they do not warrant discussion.
11
In sum, we conclude that the injunctive order is valid, and should be affirmed.
12
It is so ordered.
*
Honorable Raymond E. Plummer, Chief Judge, United States District Court, Anchorage, Alaska, sitting by designation
1
The district court had pendent jurisdiction over the unfair competition claim. (28 U.S.C. 1338(b))
2
Additionally defendants urge a local district court rule, supplementary to Rule 52(a) which relates to matters of form. The questioned findings are in substantial compliance
3
Production techniques permitting commercially feasible manufacture are within the generally accepted definition of trade secrets. 4 Restatement of Torts 757; Components for Research, Inc. v. Isolation Products, Inc., 241 Cal.App.2d 726, 728-729, 50 Cal.Rptr. 829 (1966) (stating applicable California law)
4
Compco Corp. v. Day-Brite Lighting Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964)
5
The same observation is valid with reference to two other cases urged upon us by defendants-- Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969) and Beckman Instruments, Inc. v. Technical Development Corp., 433 F.2d 55 (7th Cir. 1970)-- in both, the claims rested on 'straight copying,' no confidential relationship was involved
6
Comparison of this order with the one held invalid in E. W. Bliss Co. v. Struthers-Dunn, 408 F.2d 1108 (8th Cir. 1969), a decision heavily relied upon by defendants tends to support the validity of our conclusion. In Bliss the lower court found simply that plaintiff possessed trade secrets embodied in described electronics devices developed by Bliss. The Court of Appeals, noting that the devices themselves did not constitute the trade secrets, declared: 'these new or different concepts are not specified in the findings of fact or discernible from the context of the order. * * *' In the instant case the district court specified particular production techniques with respect to particular components and stages of assembly
| {
"pile_set_name": "FreeLaw"
} |
Case: 14-7112 Document: 7 Page: 1 Filed: 09/03/2014
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JERRY C. HULSEY,
Claimant-Appellant,
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee.
______________________
2014-7112
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-642, Judge Coral Wong Pi-
etsch.
______________________
ON MOTION
______________________
ORDER
Jerry C. Hulsey moves for leave to proceed in forma
pauperis.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion is granted.
Case: 14-7112 Document: 7 Page: 2 Filed: 09/03/2014
2 HULSEY v. MCDONALD
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s24
| {
"pile_set_name": "FreeLaw"
} |
128 S.E.2d 766 (1963)
258 N.C. 419
Walter BRAY
v.
NORTH CAROLINA POLICE VOLUNTARY BENEFIT ASSOCIATION (an unincorporated association).
No. 458.
Supreme Court of North Carolina.
January 11, 1963.
*769 Page & Page, Rockingham, for plaintiff.
Bynum & Bynum, Rockingham, for defendant.
MOORE, Justice.
The trial judge concluded, as a matter of law, that plaintiff was entitled to retirement benefits under the rules and regulations of defendant Association pertaining to retirement.
The relationship of defendant Association and plaintiff is that of insurer and insured. Williams v. Order of Heptasophs, 172 N.C. 787, 789, 90 S.E. 888. The constitution, by-laws, rules and regulations of a beneficial association operate as a contract and should be reasonably and liberally construed to effectuate the benevolent purpose of the association and the manifest intention of the parties. That construction must be put on the by-laws and rules of the association, taken as a whole, which is most favorable to the members. When the rights of members are involved the by-laws and rules declaring a forfeiture are to be construed so as to prevent a forfeiture if they are reasonably susceptible of such construction. 10 C.J.S. Beneficial Associations § 28, p. 269; 18 Appleman: Insurance Law and Practice (1945), § 10267, p. 575.
The rules of defendant Association provide that "to be eligible to retire and receive benefits of an assessment * * * a member must have had twenty years service as a law enforcement officer, the last ten of which must be continuous service, and have reached the age of fifty." At the time, 1 March 1957, that plaintiff resigned as a game protector on a straight salary basis, withdrew his contributions from the Teachers' and State Employees' Retirement System, and was placed on a "certified temporary" basis at an hourly wage, he had met all of the requirements for retirement benefits. He was 67 years of age and had served continuously for more than twenty-two years as a full-time game protector. But defendant insists that the last ten years of continuous service, to make plaintiff eligible under the rules, must extend to the date of application for retirement benefits. The rules provide that "No member shall receive benefits until July 1, 1960." (Emphasis ours.) We do not agree with defendant's construction of this provision. It merely provides that retirement benefits may not be received before July 1, 1960. There is nothing in the rule respecting "Retirement" which prevented a member from qualifying for the assessment and benefits before that date. It is obvious that the date was fixed to assure a five year waiting period from the date the Association was organized so that there would not *770 be such number of retirements and assessments in the early stages of the Association's existence as would discourage younger officers in seeking and maintaining membership.
But defendant contends that only members could apply for and receive retirement benefits, and that on 6 July 1960 plaintiff was not eligible for membership and was not a member. Defendant relies on the rule that "when any member ceases to be a (full-time) law enforcement officer * * he shall not be eligible to continue membership * * *." For the purposes of this appeal we assume, but do not decide, that under ordinary circumstances this provision would bar plaintiff's right. It must be conceded that plaintiff was not a full-time law enforcement officer after April 1958, and perhaps not after February 1957. However, the trial court ruled that defendant had waived this eligibility rule and was "estopped to deny that (plaintiff) was a member of the Association on July 6, 1960" the date he applied for retirement benefits.
An insurer may waive provisions inserted in the insurance contract for its benefit. Widows Fund of Sudan Temple v. Umphlett, 246 N.C. 555, 99 S.E.2d 791. The pertinent law with respect to waiver is stated in Hicks v. Home Security Life Insurance Co., 226 N.C. 614, 617, 39 S.E.2d 914, 916, as follows: "Waiver of the forfeiture provision in a policy of insurance is predicated on knowledge on the part of the insurer of the pertinent facts and conduct thereafter inconsistent with an intention to enforce the condition. In Coile v. Order of United Commercial Travelers, 161 N.C. 104, 76 S.E. 622, quoted in Paul v. Reliance Life Ins. Co., 183 N.C. 159, 162, 110 S.E. 847, and in Arrington v. Continental Life Ins. Co., 193 N.C. 344, 137 S.E. 1375 it is said * * *: `A course of action on the part of the insurance company which leads the party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.' New York Life Ins. Co. v. Eggleston, 96 U.S. 572, 577, 24 L.Ed. 841; Knickerbocker Life Ins. Co. v. Norton, 96 U.S. 234, 24 L.Ed. 689."
Plaintiff personally appeared before the board of directors of the Association on 21 February 1957 and the board was advised that the employment status of plaintiff would change, effective 1 March 1957, from a permanent salaried employee to an hourly basis. The board permitted plaintiff to continue his membership, subject to reconsideration. The record does not disclose any further action by the board with respect to this matter. Again, on 28 March 1958, plaintiff appeared before and informed the board that "effective March 1, 1957, he resigned as a game protector, on a straight salary basis, withdrew his contributions from the Teachers' and State Employees' Retirement System and since that date has been employed on a `certified temporary' basis." The directors took no action to terminate his membership, but, on the contrary, the Association continued to carry him on its rolls and assessed him in the same manner other senior members were assessed. This continued until he applied for retirement benefits on 6 July 1960. He promptly paid all assessments. These facts are sufficient to support the conclusion that defendant, with knowledge of plaintiff's employment status, waived the forfeiture of membership provision and acted in a manner inconsistent with an intention to enforce the provision.
Defendant further contends that plaintiff forfeited his right to retirement benefits by failing "to notify the Association in writing of any change in employment status." The contention is not sustained. The rule relied on is incorporated in an amendment adopted by the board of *771 directors on 8 October 1959, and set out in full in the factual statement. It is doubtful that this amendment is binding in any way on plaintiff since it was adopted without his knowledge and consent, after he became a member, and was not submitted to and approved by a majority of the members of the Association. Bragaw v. Supreme Lodge, 128 N.C. 354, 38 S.E. 905, 54 L.R.A. 602. But assuming that it was binding on plaintiff after its adoption, it had no retroactive effect and the employment status of plaintiff did not change after its adoption. He could not have been under any duty to give a written notice.
The judgment below orders the Association to assess each person who was a member of the Association on 6 July 1960 and pay the sum collected to the plaintiff. It is probable that some of those who were members on that date have since died, retired, become disabled, or otherwise terminated their membership, and are not now subject to assessment. According to facts stipulated, the Association on 1 July 1960 had "1807 members who were assessable at $1 each, and 153 members who were assessable at $5 each." Plaintiff was therefore entitled to receive $2572. The superior court should order the Association: (1) to forthwith assess all of its presently assessable members who were subject to assessment on 6 July 1960, and pay over the amount collected from the assessments to plaintiff to be credited by him on the amount to which he was and is entitled; (2) to order the Association in its ensuing annual assessment of fees to include a sufficient sum to pay plaintiff the balance due him, under the authority conferred upon the board of directors to assess annual fees for "whatever it considers necessary to carry on the functions of the Association," and to pay such balance to plaintiff when thus collected. The cause is remanded in order that the judgment may be modified in accordance with the foregoing directives.
Modified and affirmed.
| {
"pile_set_name": "FreeLaw"
} |
727 F.2d 1540
221 U.S.P.Q. 1
ROSEMOUNT, INC., Appellee/Cross-Appellant,v.BECKMAN INSTRUMENTS, INC., Appellant/Cross-Appellee.
Appeal Nos. 83-947, 83-1238 and 83-1251.
United States Court of Appeals,Federal Circuit.
Feb. 16, 1984.
Sheldon Karon, Chicago, Ill., argued for appellant/cross-appellee. With him on the brief were Victor G. Savikas, Richard L. Horn, George Vernon, Thomas D. Rosenvein, Chicago, Ill., Robert J. Steinmeyer and Paul R. Harder, Fullerton, Cal.
John F. Flannery, Chicago, Ill., argued for appellee/cross-appellant.
Before MARKEY, Chief Judge, COWEN, Senior Circuit Judge, and BENNETT, Circuit Judge.
MARKEY, Chief Judge.
1
Appeals from a judgment of the District Court, Central District of California, that Rosemount's patent No. 3,440,525 ('525 patent) is valid and infringed by Beckman (No. 83-947), and from a judgment of that court that Beckman's post-trial infringement violated its injunction, but denying damages to Rosemount for that infringement (Nos. 83-1238, 83-1251). We affirm.
Background
2
In 1965, when Charles Cardeiro made the inventions claimed in the '525 patent, Beckman was the leading manufacturer of pH meters, with 40% of the process pH market. Beckman had a continuous development program designed to maintain and preferably increase its market share. Universal Interlock, Inc. (Uniloc), Rosemount's predecessor in interest, began marketing the pH meter of the '525 patent shortly after Cardeiro invented it. By 1975, Uniloc's annual sales of the patented inventions had grown from zero to many millions of dollars, and Uniloc employees had increased from its 5 founders to 170. Uniloc sold $25,000,000 worth of the patented inventions.
3
Beginning in 1966, within a year of Uniloc's first sales, Beckman's engineers and salesmen were sending a stream of reports to Beckman about the superiority of Uniloc's pH meters over Beckman's and those of other manufacturers, about customer preference for the patented pH meters, and about sales lost to Uniloc. The reports and Beckman's internal memos praised the patented pH meters as offering "unique and advantageous features", as preferred by users because of no "downtime" and "complete lack of maintenance", and as "low in price".1
4
Having lost sales of the Model "J" it was selling when Cardeiro made his invention, Beckman unsuccessfully attempted to design and market improved pH meters. After studying designs it found in the prior art, Beckman developed a pH meter embodying Cardeiro's concept in 1968. It modified that design upon issuance of the '525 patent in 1969. By 1973, Beckman found its market share had dropped to 27%, due principally to the advent of the patented pH meter, which had captured 25% of the market and was selling at 10% less than Beckman's pH meter. At that point, after evaluating the pH meters of six manufacturers, including its own and Uniloc's, Beckman elected to make and sell the pH meters found to have infringed claims of the '525 patent.
5
Rosemount sued Beckman on May 4, 1978. Beckman denied infringement and asserted that the '525 patent was invalid under 35 U.S.C. Secs. 102(a), 102(b), 102(e), 102(f), 102(g), 103, and 112. Beckman also asserted invalidity for incorrect naming of an inventor and unenforceability for fraud on the Patent and Trademark Office (PTO) and for unclean hands because Rosemount prosecuted the suit when the art cited by Beckman was not cited in the PTO, because Rosemount's licensing practices were wrongful, and because an element of the invention was not invented by Cardeiro. Beckman counterclaimed for a declaratory judgment that the patent is invalid and not infringed.
6
An eight-day trial was conducted (October 20-28, 1981). Judge Waters filed a succinct but comprehensive Memorandum of Decision on February 2, 1983, (reported at 569 F.Supp. 934), entered 137 findings of fact and 10 conclusions of law, and signed a judgment on February 24, 1983. In those documents, the court held the '525 patent valid, found that Beckman's Models 940/A, 941/A, 940B, 940BF, 960A, 980, and 8700 pH meters (Models 940/A-941/A) infringed asserted claims 1-3, 8, and 12, found Beckman's infringement to have been willful, awarded Rosemount treble damages and its attorney fees, and enjoined infringement. An accounting was stayed pending appeal.
7
On May 13, 1983, Rosemount charged Beckman with violation of the injunction by making and selling another infringing pH meter (Model 960B). The court found infringement and held Beckman in contempt, but declined to award Rosemount damages for that infringement because Rosemount knew of Beckman's sales of the Model 960B throughout the trial and did not include it with the accused Models 940/A-941/A.
The Invention
8
The invention found to have been appropriated is set forth in claims 1-3, 8, and 12:
Claim 1
9
A system for determining the pH of a variable solution comprising:
10
a pH sensitive electrode, including a high impedance material responsive to the hydrogen ion activity of the variable solution and an internal electrical conductor for generating a voltage at said internal conductor indicative of the pH of the variable solution; and
11
a DC amplifier circuit for developing a signal as a function of the voltage developed on said internal conductor, said circuit including a preamplifier stage having a field effect transistor mounted with said electrode and in close proximity to said high impedance material and with its gate terminal connected to said internal conductor to provide a low impedance signal output from its output terminals for transmission to a remote circuit responsive to said low impedance signal output for indicating the pH of the variable solution.
Claim 2
12
The system of claim 1 wherein:said field effect transistor is disposed in a heat exchange relationship with said high impedance material that subjects both said field effect transistor and said high impedance material to substantially the same temperature variations.
Claim 3
The system of claim 2 further comprising:
13
a probe structure engaging said pH sensitive electrode, said field effect transistor being disposed within said probe structure adjacent the pH sensitive electrode, and one end of said internal conductor being connected directly to the gate terminal of said field effect transistor.
Claim 8
The system of claim 1 wherein:
14
said field effect transistor is operated with its drain-to-source bias current at the level where the gain characteristic is independent of temperature variation over an ambient temperature range.
Claim 12
15
In a system for measuring the pH of a circulating solution, an arrangement comprising:
16
a pH sensitive electrode including a material responsive to the hydrogen ion activity of the circulating solution for developing a voltage indicative thereof, a hollow insulating member mounting said material for immersion in said circulating solution, an internal conductor, and a salt bridge solution contained within the hollow insulating member for establishing electrolytic contact between said material and said internal conductor; and
17
an amplifier circuit responsive to the voltage on said internal conductor, said amplifier circuit having a field effect transistor attached to and in close proximity with the insulating member and having its gate electrode connected to said internal conductor and its source and drain terminals connected to provide a low impedance signal indicative of the pH of the circulating solution for transmission to a remote location.
Issues
18
Whether the district court erred in: (1) holding the '525 patent valid;2 (2) finding claims 1-3, 8, and 12 infringed; (3) finding willful infringement and awarding treble damages and attorney fees; (4) holding Beckman in contempt; (5) excluding testimony; (6) declining to award damages for infringement by the Model 960B pH meter.
OPINION
19
Beckman misconceives the role of an appellate court and the nature of the appellate process. The court does not sit to consider evidence de novo, and the appellate process is not a mere academic exercise. Yet Beckman asks us to say the invention "is"3 obvious after considering anew and only the claims and the prior art. Its briefs ignore all facts in the record that objectively establish the circumstances and human events surrounding the birth of the invention and its effect on the industry, as well as many of the fact findings militating against its positions on the issues. The district court's Memorandum Decision is nowhere mentioned in the 78 pages of Beckman's briefs.
20
Appeals in patent cases should not be mere games played with pieces of paper called references and the patent in suit. Lawsuits arise out of the affairs of people, real people facing real problems. So here, the technical problem out of which grew the present litigation was real. It was solved by inventor Cardeiro.
21
When Cardeiro's company began selling his problem-solving product, Beckman was confronted with a serious competitive business problem. Beckman first tried to solve that business problem with its own new designs, and when those failed, by appropriating Cardeiro's invention.
22
None of this real-world history is explicated in Beckman's briefs. An appellant cannot, within the page limitations for briefs, be expected to grapple with each of 137 fact findings. The foregoing history, however, is made clear in these ignored-by-Beckman findings of the district court:4
23
(1) Before Cardeiro's invention, repackaged laboratory pH meters were used in liquid streams of the process industry.
24
(2) The pH meters of (1) had a serious problem of drifting out of calibration. The leading pH meter in the field, Beckman's Model "J", had to be recalibrated as often as every eight hours.
25
(3) Beckman and others made numerous unsuccessful attempts to fill the longfelt need for a solution to the drifting problem.
26
(4) Scaling and corrosion had been a problem in watercooling towers since those towers began operating. No one had ever tried to control the cooling water remotely and automatically because it was known that available pH meters were not reliable for more than a few hours. Constant checking and recalibration of pH meters by a staff of technicians were required and accepted burdens.
27
(5) Three employees of Pacific Telephone Company tried to solve the problem in (4) with a system incorporating a Honeywell pH meter. When that failed, the three approached Cardeiro, who joined them in the recently formed Uniloc.
28
(6) Proceeding contrary to the prior art teachings and ignoring expressions by others that would discourage a search for new inventions, Cardeiro invented the pH meter of the '525 patent.
29
(7) The pH meter of the '525 patent solved the drifting problem. It could be used for a year without recalibration or "standardizing".
30
(8) The pH meter of the '525 patent met with immediate and rapidly growing commercial success. It replaced earlier pH meters and was used where others would not work.
31
(9) Virtually the entire industry converted to the pH meter of the '525 patent. The only major manufacturer of process pH meters not licensed under the '525 patent is Beckman.
32
(10) When Cardeiro made his invention in 1965, Beckman was making its Model "J". Though it had earlier made a space pH meter for NASA (discussed infra ) and others, it modified its Model "J" into the Model 900, which it advertised as the finest in the industry.
33
(11) Beckman at this point was doing all it could to design a pH meter that would preserve its lead in the marketplace. It failed in that effort.
34
(12) When Beckman's employees continued to make reports of sales lost to Uniloc, Beckman purchased a pH meter of the '525 patent and examined and tested it in 1967. Beckman's engineering department said the pH meter of the '525 patent "created a real crisis" at Beckman.
35
(13) Beckman established a project in 1968 to develop a new pH meter, because, as stated in an internal memorandum, "[T]he Beckman units are vulnerable to the Uniloc system...." The project planned to incorporate Cardeiro's concept of locating the input amplifier at the glass electrode.
36
(14) In 1969, after the '525 patent issued, Beckman modified its project pH meter, resulting in the Models 940 and 941 not accused of infringement.
37
(15) Models 940 and 941 continued to lose sales to the pH meters of the '525 patent.
38
(16) In 1973, because of the growing competitive advantage achieved by the pH meters of the '525 patent, Beckman decided to produce and sell the infringing pH meters.
39
Abandoning some of its many trial defenses, Beckman has elected to challenge the judgment here by presenting its view of portions of the evidence relating to issues (1)-(3) listed above, and citations of language in court opinions which Beckman relates to its presentation. Beckman's entire presentation has been fully considered and found without merit, as discussed infra.
40
(1) Validity
41
On appeal, Beckman has somewhat reduced its attack on the '525 patent, asserting invalidity under Secs. 102(a), 102(b), 102(g), 103, and 112.
42
(a) Secs. 102(a), 102(b), 102(g)
43
Beckman bases this three-sided defense on pH meters it produced and sold in 1963-64 to NASA and North American Aviation, Inc. (NAA) for use in space. Those pH meters were never used in space, and, as found by the district court, were never tested in zero gravity. Beckman insists that those pH meters anticipated the Cardeiro invention.
44
Though the parties have at length argued many aspects of these defenses, it is unnecessary to discuss the merits of those arguments here. The district court found that Beckman's "space pH meters" did not include all of the elements of the claimed invention.
45
Rosemount argues that anticipation under Sec. 102 requires identity, citing Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 218 USPQ 781 (Fed.Cir.1983); SSIH Equipment, S.A. v. Int'l. Trade Comm., 718 F.2d 365, 218 USPQ 678 (Fed.Cir.1983); W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed.Cir.1983); and Soundscriber Corp. v. United States, 360 F.2d 954, 175 Ct.Cl. 644, 149 USPQ 640 (1966).
46
Beckman argues that the differences are not patentable distinctions, citing Connecticut Valley Enterprises, Inc. v. United States, 348 F.2d 949, 172 Ct.Cl. 468 (1965); Tri-Wall Containers, Inc. v. United States, 408 F.2d 748, 187 Ct.Cl. 326, 161 USPQ 116, cert. denied, 396 U.S. 828, 90 S.Ct. 78, 24 L.Ed.2d 79 (1969); and In re Smith, 714 F.2d 1127, 218 USPQ 976 (Fed.Cir.1983). Though a non-identical device has been viewed as anticipating when the differences are not patentable distinctions, the result is the same under the more compartmentalized view that differences require application of Sec. 103. Beckman bases its argument, as it bases its argument devoted to Sec. 103 infra, on the assertion that the elements claimed in the '525 patent and not found in its space pH meters, as well as elements found in its space pH meters and not in the claims, are individually found somewhere in the prior art.
47
Beyond the effectively uncontradicted evidence that the space pH meters lacked the "DC amplifier circuit ... including a preamplifier stage having a field effect transistor ... with its gate terminal connected to said internal conductor" set forth in the claims, and beyond the uncontradicted evidence that Beckman employed a chopper in its space pH meters to convert the signal, lies the evidence most telling. It is uncontroverted that Beckman, with a laboratory staff of those skilled in the art continuously seeking an improved pH meter, did not find it obvious in 1965 to so modify its space pH meters as to produce the pH meters claimed in the '525 patent. It is only after learning of Cardeiro's invention, appropriating it, and getting sued for infringement, that Beckman attempts to show how its space pH meters might have been so changed as to remove the differences and to achieve the results achieved by Cardeiro. That approach illustrates the importance of the differences and is incapable of supporting Beckman's burden.
48
Thus Beckman's defenses under Secs. 102(a), (b), and (g) must fail, whether because identity is considered lacking between its space pH meters and the claimed inventions or because the differences between its space pH meters and the claimed inventions are not so inconsequential as to establish that the latter would have been obvious as a whole in 1965.
Sec. 103
49
As above indicated, Beckman's defense under Sec. 103 consists of an effort to establish that each element of the inventions claimed in the '525 patent can be found in one of four places: Cameron patent disclosing a laboratory pH meter; two Zimmerli articles; literature of a parts manufacturer; and the Fein article. The district court found, and we agree, that this prior art array was not more pertinent that that considered by the PTO and was merely cumulative with the considered art.
50
Beckman's effort to establish that each element may be found somewhere in the prior art is unavailing. As this court has held, a combination may be patentable whether it be composed of elements all new, partly new, or all old. Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 220 USPQ 193, 199 (Fed.Cir.1983); Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed.Cir.1983).
51
Fatal to Beckman's cause is its inability at trial and here to cite anything in the prior art items, individually or together, that can be seen as suggesting Cardeiro's solution to the drifting problem. Indeed, the facts of real world experience establish the contrary. The art now extolled by Beckman was available to all skilled in the art, including Beckman's own development staff, yet the solution to the drifting problem found by Cardeiro was not obvious to any of them. The same facts refute Beckman's assertion that the advent of field effect transistors rendered the inventions claimed in the '525 patent obvious.
52
The objective evidence, again composed of real world facts, is worthy of great weight in this case. As found by the district court, that evidence included tremendous commercial success, the filling of a long felt need, failure of others, including Beckman, to solve the problem, copying by Beckman, Beckman's praise of the invention, Cardeiro's departure from expert-accepted principles, and widespread recognition of the invention's significance in the industry. Beckman's argument that a nexus between commercial success and Cardeiro's invention is lacking and its conjecture that some of the commercial success here proven may have been due to elements in non-asserted claims are inadequate to overcome the objective evidence of record.
53
In sum, Beckman's attack on the validity of the patent under Sec. 103 wholly failed to meet the burden imposed on Beckman under 35 U.S.C. Sec. 282.
Sec. 112
54
Beckman attacks the claims as indefinite, primarily because "close proximity" is not specifically or precisely defined. As stated in the district court's Memorandum Decision, "to accept Beckman's contention would turn the construction of a patent into a mere semantic quibble that serves no useful purpose." 569 F.Supp. at 940.
55
Indeed, the devotion of large portions of Beckman's briefs to this defense is difficult to appreciate in light of the record. The district court accepted testimony that one skilled in the art would understand all language in the claims when read in light of the specification, as the claims must be. Caterpillar Tractor Co. v. Berco S.P.A., 714 F.2d 1110, 219 USPQ 185 (Fed.Cir.1983). Beckman is confronted also with its own ease in applying "close proximity" to the prior art at trial and in its briefs here, the use of "close proximity" in the claims of one of its references, its own use of "close proximity" in describing its pH meters, its own witness' statement that he had no trouble understanding the claims of the '525 patent, the specific acceptance of "close proximity" by the examiner and by the industry, and the district court's finding that "close proximity" is as precise as the subject matter permits.
56
Beckman's argument that the district court erred in not upholding its Sec. 112 defense is without merit.
57
(2) Infringement
58
The district court found that the pH meters accused at trial were literal infringements of the asserted claims, and included with its Memorandum Decision, 569 F.Supp. at 940, n. 12, a direct comparison, reading the claims element for element on the accused pH meters.
59
Beckman cites testimony of its witnesses that the accused pH meters do not "use" the temperature compensation advantage of the patented pH meters, and that there is therefore no identity of function or operation. Rosemount, which bore the burden of proof at trial on infringement, cites contrary testimony of its witness, the testimony of a Beckman witness, the literature of the company manufacturing Beckman's input amplifier, the similarity of the accused pH meters to a figure and description in the '525 patent, and the mounting of Beckman's field effect transistor in the dome of the electrode station within one inch of the pH electrode, on the premise that temperature variations would equally affect elements arranged in such "close proximity."
60
As above stated, this court does not sit to reweigh the evidence or to decide which among opposing witnesses is to be believed. On appeal, the burden of establishing clear error in the findings on this fact issue rests on Beckman. In its briefs Beckman attacks only the finding that the close proximity of its field effect transistor to the glass membrane produces between them a heat exchange relationship (stated only in claim 2). Though Beckman says there is no evidence to support that finding, the presumption that elements an inch apart will be similarly affected by temperature, and the presence of other findings on the operation of the accused pH meters render futile the attack on this one finding.
61
Beckman ignores the district court's finding in its Memorandum Decision, 569 F.Supp. at 941, that the accused pH meter "does not perform its function in a substantially different way," and the finding in that Decision that its field effect transistor is in "close proximity to the high impedance material of the electrode." In attacking the district court's findings that the accused pH meters do have the temperature compensation feature Beckman only says it is not "using," and that Beckman does use that feature, Beckman improperly relies on material not in the trial record (proffered but excluded testimony and post-trial submissions--both discussed infra ).
62
In sum, Beckman has wholly failed to establish that the district court's finding of infringement was clearly erroneous. Fed.R.Civ.P. 52(a).
63
(3) Willful Infringement-Damages-Attorney Fees
64
Finding that Beckman knowingly, deliberately, willfully and wantonly infringed because of market pressure and without investigating the validity or scope of the patent, the district court awarded treble damages and attorney fees under 35 U.S.C. Secs. 284 and 285. That award is within the discretion of the district court and will not be overturned absent a clear showing of abuse of discretion. Hughes v. Novi American, Inc., 724 F.2d 122 (Fed.Cir.1984); Raytheon Co. v. Roper Corp., 724 F.2d 951 (Fed.Cir.1983); Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 219 USPQ 569 (Fed.Cir.1983); White Consolidated Ind. v. Vega Servo-Control, Inc., 713 F.2d 788 (Fed.Cir.1983).
65
This court has held that a duty exists to obtain competent legal advice before initiating possibly infringing action. Underwater Devices Inc., supra. This court has also held that willfulness may include a determination that the infringer had no reasonable basis for believing it had a right to do the acts. Stickle v. Heublein, Inc., 716 F.2d 1550, 219 USPQ 377 (Fed.Cir.1983). There was no evidence at trial that Beckman had sought and obtained competent legal advice, and the district court's findings establish that it made the "no reasonable basis" determination required by Stickle.
66
In an effort to show abuse of discretion, Beckman cites in-house memos of the "not invented here" variety from its engineers and executives. In those memos, the authors say they see nothing patentable in Cardeiro's pH meters and that it employed old elements each of which was known to them. Rosemount points to other Beckman in-house memos lauding the Cardeiro invention, which in the form of Uniloc's product produced a crisis level threat to Beckman's leading market share. Nothing in the trial record establishes the presence of the "honest doubt" of validity and infringement referred to in Wilden Pump & Engineering Co. v. Pressed & Welded Products Co., 655 F.2d 984, 213 USPQ 282 (9th Cir.1981).
67
The evidence at trial refutes Beckman's assertion that the accused pH meters were occasioned by the availability of integrated circuits and had nothing to do with any intent to appropriate the invention of the '525 patent.
68
Lastly, Beckman improperly attacks the award as in conflict with "evidence" that was not presented at trial. That "evidence" consists of two ex parte affidavits of in-house counsel with attached opinions and a deposition, all of which were submitted in connection with Beckman's post-trial motion for a new trial.5 The district court thoroughly reviewed that material and found it inadequate, effectively making for the second time its determination that Beckman had no reasonable basis for believing it had a right to do its acts of infringement.
69
Nothing presented here is effective to demonstrate clear error in the finding of willfulness, or in the findings on which the district court based its award, or would justify this court in determining that an abuse of discretion occurred in the award of treble damages and attorney fees in the circumstances of this case.
70
(4) Contempt
71
Beckman's briefs do not challenge the district court's judgment of contempt based on its making and selling the Model 960B pH meter. Assuming reliance on its noninfringement assertions concerning Models 940A/941A, the foregoing affirmance of the district court's findings on those models would require affirmance of the contempt judgment, which rested on the finding that the Model 960B is an equivalent.
72
In support of its defense under Sec. 112, Beckman points out that its Model 960B has the field effect transistor within seven to ten inches of the glass electrode. Beckman says Rosemount's assertion of infringement by Models 940A/941A, where the distance is one inch, and by the Model 960B, where it is seven to ten inches, establishes indefiniteness in the term "close proximity." The district court, however, found Models 940A/941A and 960B equivalent and that all infringe.
73
No basis appears on which the district court's finding that Model 960B is an infringement, or its consequent judgment enjoining further infringement and holding Beckman in contempt may be overturned.6
74
(5) Exclusion of Testimony
75
The district court excluded expert testimony concerning ex parte tests prepared for this litigation by Beckman witness Sowa. The testimony, as described in Beckman's proffer, would describe tests of the accused pH meters and would, says Beckman, establish that it did not use temperature compensation.
76
During discovery, Rosemount served an interrogatory requesting identity of experts Beckman would call at trial, substance of their testimony, etc. Beckman responded that it had not determined who it would call. On Rosemount's motion, the court ordered Beckman to respond and to permit the deposition of its experts. Beckman then identified Dr. Anson, whose deposition was taken. At that deposition, Dr. Anson could not answer Rosemount's questions about the ex parte tests, the results of which had been supplied to Rosemount. When Rosemount asked for and could not obtain identification of any expert that might testify about the tests at trial it stated an intent to object to any such testimony that might be offered.
77
When Beckman offered the testimony on the tests, the district court, after hearing argument, sustained the objection and excluded the testimony. The testimony was offered at an advanced stage in the trial. Beckman's suggestion that a continuance be granted to permit Rosemount to take the witness' deposition was declined. The witness had already testified on the construction of the accused pH meters.
78
Beckman now argues that an abuse of discretion occurred in excluding the testimony, citing the Advisory Committee's Notes to Rule 403. The evidence was excluded, however, not under Rule 403 but under Rules 26(e) and 37(b) Fed.R.Civ.P.
79
Rule 26(e) requires expert identification before trial, as did the discovery order here. The Advisory Committee Notes to Rule 26(e) include:
80
"The duty will normally be enforced ... through sanctions imposed by the trial court, including exclusion of evidence, continuance, or other action, as the court may deem appropriate."
81
Sowa was not identified in response to the court's order, thus implicating Rule 37(b)(2)(B), which authorizes the court in such circumstances to prohibit Beckman "from introducing designated matters into evidence. Beckman says it considered Sowa's testimony on his tests as occurrence not expert testimony. It made the same argument to the district court. Though the court said it did not attribute bad faith to Beckman's counsel, it did not accept counsel's labeling of the testimony. Nor do we. One under a court order to identify its expert witnesses, and specifically requested by opposing counsel to identify who would testify on tests of the accused products, is ill advised to rely on his own characterization of the testimony as a basis for escaping the effect of Rules 26(e) and 37(b)(2)(B).
82
Rosemount cites cases in which the district court's exclusion of testimony was held on appeal not to have been an abuse of discretion. Beckman cites cases in which an exclusion was held an abuse and offers fact distinctions between the present case and those cited by Rosemount. It also says Rosemount was not prejudiced because it knew about the tests and had a rebuttal witness ready, and because, as above indicated, Beckman had suggested a continuance or recess of the trial to permit Rosemount to take Sowa's deposition.
83
The conduct of a trial, granting of continuances and the like, is not, however, solely or entirely a matter of balancing conveniences of the parties. The Federal Rules of Civil Procedure recognize another consideration--the need for the exercise of discretion by the trial court in carrying out its duty of managing the judicial process, the business of the court, and the administration of justice. The proper exercise of that discretion should not be impeded by second guessing at the appellate level, except in those rare instances when a clear abuse of discretion is firmly shown. The principle was well stated in United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir.1980) (discretion will not be disturbed unless appellate court has firm conviction trial court committed clear error of judgment after weighing relevant factors). The district court here weighed the relevant factors and selected from among the sanctions authorized by the Rules. We cannot, in light of all the circumstances, hold that the exclusion of Sowa's testimony on his tests to have been an abuse of discretion.
84
(6) Denial of Damages
85
Beckman informed Rosemount of the Model 960B shortly after the complaint was filed and long before trial. Rosemount's charge that the 960B infringed was made three years after it was first informed. The court, though it enjoined further infringement by the 960B, denied damages to Rosemount for the infringement that occurred during its long silence, finding it reasonable for Beckman to conclude that Rosemount was not going to charge the 960B as an infringement. We agree.
86
Rosemount mistakenly asserts that the court was establishing a rule that all post-complaint infringing products must be accused or the patent holder will be subject to laches. An equitable doctrine, laches and its applicability must be determined in light of the facts of each case. Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734 (Fed.Cir.1984); Advanced Hydraulics, Inc. v. Otis Elevator Co., 525 F.2d 477, 186 USPQ 1 (7th Cir.), cert. denied, 423 U.S. 869, 96 S.Ct. 132, 46 L.Ed.2d 99 (1975).
87
In the present case, nothing impeded Rosemount from filing a supplemental complaint or otherwise notifying Beckman of its intent to accuse the Model 960B. Rosemount correctly cites the general rule that only those acts committed before the complaint is filed may be considered at trial, but cites no reason why it did not file a supplemental complaint as provided for in Rule 15(d), Fed.R.Civ.P. As above indicated, the facts are controlling. Though it is true that Beckman had begun selling the 960B some two months before notifying Rosemount, that fact does not militate against the district court's recognition that Beckman was prejudiced in continuing the sale of that model for almost three years with Rosemount's acquiescence as evidenced by its silence. It is not necessary, as Beckman does, to attribute to Rosemount an ulterior trial strategy. Rosemount's long silence, unexplained before the district court and this court, can hardly rebut Beckman's showing of unreasonableness of the delay. See Leinoff, supra, 726 F.2d at 738. That delay raised equitable considerations respecting Rosemount's right to compensation for infringement by the Model 960B. The district court committed no error in denying Rosemount damages for that infringement.
DECISION
88
The judgments appealed from are in all respects affirmed.
89
AFFIRMED.
1
This last is a real-world refutation of some economists' notion that the existence of a patent on an invention always increases costs to the consumer
2
It is not necessary to hold a patent valid. Here, for example, it would have been sufficient to hold that Beckman had failed to carry its burden of proving facts establishing invalidity, 35 U.S.C. Sec. 282, and to dismiss Beckman's counterclaim, refusing to declare the patent invalid on the same failure of proof grounds. See Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 699 n. 9, 218 USPQ 865, 871 n. 9 (Fed.Cir.1983)
3
The use of "is obvious" improperly focuses on the present. The statute requires that the mind be cast back to "when the invention was made" and requires a determination of whether the invention "would have been obvious" at that time. 35 U.S.C. Sec. 103. The use of "is" may also lead to an improper approach in which the judge determines whether the invention is presently obvious to the judge. The statute requires that the judge, who now knows all about the invention, determine whether the patent challenger's evidence establishes that it would have been obvious when it was made to those skilled in the art who knew only of the prior art
Similarly, Beckman's brief repeatedly and erroneously concentrates on the "purported point of novelty". The question to be answered is whether the subject matter of the invention "as a whole" would have been obvious. 35 U.S.C. Sec. 103.
4
Beckman generally denigrates all of the district court's findings because they were prepared by Rosemount and adopted by the court. That form of attack cannot meet an appellant's burden of showing that a trial court's findings are themselves clearly erroneous in light of the evidence of record. Findings are reviewed, not the judge's manner of producing them. In the present case, for example, each of the court's critical findings is supported by reference to the record. Beckman's implication that the district court blindly adopted Rosemount's proffered findings is refuted, moreover, by the court's Memorandum Decision, 569 F.Supp. 934
5
Rosemount's motion to strike or not consider the post-trial submissions was denied. The court has considered the materials under the abuse of discretion standard applicable to a motion for new trial or for modification of judgment under Rule 60, Fed.R.Civ.P
6
In a footnote to its Sec. 112 argument, Beckman says the injunction order contains no limit to the distance between the field effect transistor and the glass electrode, and that in one version of the Model 960B in its catalog in evidence that distance is ten feet. If there be need for clarification of the injunction order, it is a matter for presentation to the district court
| {
"pile_set_name": "FreeLaw"
} |
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MARKEY V. MARKEY
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).
JEFFREY MARKEY, APPELLEE,
V.
CODI MARKEY, NOW KNOWN AS CODI SLAMA, APPELLANT.
Filed December 26, 2017. No. A-16-1148.
Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.
David P. Kyker for appellant.
Terrance A. Poppe and Andrew K. Joyce, of Morrow, Poppe, Watermeier & Lonowski,
P.C., L.L.O., for appellee.
PIRTLE, RIEDMANN, and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Codi Markey, now known as Codi Slama, appeals from an order of the district court for
Lancaster County which denied her request to modify a provision in the parties’ dissolution decree
regarding what school their minor child can attend and granted in part Jeffrey Markey’s
counterclaim to modify custody. Based on the reasons that follow, we affirm.
BACKGROUND
Codi and Jeffrey are the parents of Caleb, born in November 2009. The parties were
divorced by way of a decree on May 22, 2012. The decree incorporated a parenting plan agreed to
by the parties, which awarded joint legal custody to the parties and physical custody to Codi. The
parenting plan contained a provision which provided that Caleb would attend school at either Crete
-1-
Public School or Lincoln Public Schools unless otherwise mutually agreed upon by the parties. At
that time, Codi was living in Crete, Nebraska, and Jeffrey was living in Lincoln, Nebraska.
Since that time, Codi has remarried and moved to Friend, Nebraska. She and her husband,
Charles Slama bought a home there and had lived in Friend for 2½ years at the time of trial. They
moved to Friend because it was closer to where she and Charles worked. Their home is four or
five blocks from the school.
Codi and Charles have two children together, who were 2 years old and 2 months old at
the time of trial. Charles has a child from a previous relationship, who was 6 years old at the time
of trial. Charles has parenting time with her on a regular basis. The children all treat each other as
brothers and sisters and are protective of each other.
On August 14, 2015, Codi filed a complaint for modification asking to change the school
provision in the decree such that it would allow Caleb to attend school in Friend. On December
17, Jeffrey filed a responsive pleading and counterclaim in which he sought sole custody of Caleb.
Trial was held in May 2016.
In regard to Codi’s request to modify the school provision, the evidence showed that Caleb
attended prekindergarten in Friend, and attended kindergarten in Crete. During Caleb’s
kindergarten year, Codi had to be at work by 6 a.m. so Codi’s husband, Charles, got Caleb ready
for school and then took him to his mother’s house, which is in Dorchester, Nebraska, between
Friend and Crete. Charles’ mother would then transport Caleb to school in Crete. At the time of
trial, Caleb had just completed his kindergarten year.
Jeffrey opposed Caleb attending school in Friend because of the additional distance
between Lincoln, where he continued to live, and Friend versus Lincoln and Crete, and the lack of
security at the school in Friend. He testified that it takes him 50 minutes to drive from his home in
Lincoln to Friend, and 27 minutes to drive from his home to the school in Crete. The distance
between Friend and Crete is 18 miles. He did not elaborate on his concern about the security at the
Friend school.
Codi argued that Caleb would have less time in the car every day if he attended school in
Friend because he will not be going to Crete from Friend every morning and back again, but rather
will be only several blocks from school when he is with Codi. Caleb’s siblings will also eventually
go to school in Friend. Codi further testified that Caleb knows the teachers and the staff at the
Friend school. He also has a lot of friends in the neighborhood and that he has played T-ball with
kids who attend school in Friend.
Codi also testified that when Caleb attended prekindergarten at Friend school, the staff was
attentive to his needs as a result of his cystic fibrosis and she never had any concerns about the
care he received. The school also had a full-time nurse.
Codi stated that when she stipulated to the schools Caleb could attend, she did not know
that she would be moving to Friend. She further testified that she has no intention of moving from
Friend.
In regard to Jeffrey’s request to modify custody, the parenting plan in place provided that
during the school year, Jeffrey was to have parenting time every other weekend from Friday
afternoon to Tuesday morning, and Thursday afternoon to Friday afternoon on the alternating
weeks. However, for the past several years, the parties had been exercising an arrangement where
Jeffrey had parenting time every other weekend from Thursday afternoon to Tuesday morning.
-2-
This resulted in Codi having nine overnights with Caleb and Jeffrey having five overnights with
Caleb in a 14-day cycle. Codi testified that she wanted to continue this parenting arrangement.
Jeffrey sought sole physical custody because he had concerns about Caleb’s daily care,
specifically that Caleb was not getting his full morning treatment regimen for his cystic fibrosis.
Caleb’s cystic fibrosis requires a treatment regimen every morning and evening. He has to do a
“Smart Vest” treatment, in which he wears a vest that vibrates to help loosen the mucus from his
lungs. The vest has two preset programs to choose from, one that lasts for 21 minutes and one that
lasts for 30 minutes. He also uses a breathing machine in which he is administered either a
medicine called Pulmozyme or saline. Caleb also takes two inhalers, as well as antacids and
enzymes. His doctors also recommend that he perform a “huff coughing” exercise to help clear the
mucus from his lungs.
Caleb’s diet primarily consists of a “Boost” drink. He is also administered additional
calories at night through a gastrostomy tube. Caleb also takes vitamins and allergy medication.
The purpose of the treatment regimen is to prevent infection and scarring in the lungs. With the
exception of the daily treatment regimens, Caleb functions like any other child his age. He does
not have any activity restrictions.
Codi’s work hours are from 6 a.m. to 2 p.m. She was working in Friend but the facility she
worked at closed a couple weeks before trial. At the time of trial, she was working the same hours,
but at a job in Crete. Due to Codi’s hours of employment, she relied on Charles to administer
Caleb’s morning treatment regimen, in addition to getting him to school. Charles had been
administering Caleb’s morning treatment regimen for about a year at the time of the modification
trial.
Jeffrey testified that for several months he tracked the time that Caleb’s Smart Vest was
being used with a timing device located on the vest. Jeffrey alleged that based on the timing device,
Caleb was not getting the full amount of treatment on a regular basis. He also noticed that one of
Caleb’s inhalers was lasting longer than it should have if it was given as prescribed. He was also
concerned that Charles does not have Caleb do “huff coughing” in the morning. Further, he was
concerned about a period of time that Codi was without Pulmozyme, the medicine used in the
breathing machine.
Codi testified that Jeffrey did not raise any concerns to her about the Smart Vest treatments
during the time he was monitoring its use. She and Charles both testified that they did not know
about the timer on the vest or how it works.
Codi testified that the medical professionals at the cystic fibrosis clinic at Children’s
Hospital in Omaha have told her that ideally Caleb should have the 30-minute Smart Vest
treatment twice a day, but the shorter 21-minute treatment is fine as long as he is getting the
treatment regularly. She also testified that there was a period of time that she could not get
Pulmozyme. She contacted the cystic fibrosis clinic and was told she could use saline instead. Codi
testified that she has always followed the recommendations of the clinic and if she has any
questions about Caleb’s treatment, she consults the clinic. Caleb also goes to the clinic for a
check-up every 3 months.
Codi testified that Charles has Caleb do the 30-minute treatment 85 percent of the time,
but in her deposition she indicated that he usually does the 21-minute treatment. Charles testified
-3-
that he usually has Caleb do the 30-minute Smart Vest treatment, but sometimes he does the
21-minute treatment.
Codi testified that Charles does not have Caleb do the huff coughing in the morning. She
later clarified that although the huff coughing is not done as part of the morning routine, she has
Caleb do it at random times during the day.
Following trial, the trial court entered an order on September 15, 2016. The court denied
Codi’s request to modify the school provision to allow Caleb to attend school in Friend. In regard
to Jeffrey’s request to modify physical custody, the court did not grant him sole custody but found
that a material change in circumstances existed to warrant a modification in physical custody. The
court ordered that the parties should have joint physical custody, alternating every 7 days with
each parent.
Codi filed a motion to alter or amend and a motion for new trial. The trial court denied both
motions and this appeal followed.
ASSIGNMENTS OF ERROR
Codi assigns that the trial court erred in (1) denying her request to permit Caleb to attend
school in Friend, and (2) finding a material change in circumstances occurred warranting a change
in Caleb’s physical custody.
During oral argument before this court, the parties stated that an agreement had been
reached in regard to where Caleb would attend school and it was no longer a contested issue.
Therefore, the first assignment of error was withdrawn and we do not address it further.
STANDARD OF REVIEW
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of
discretion by the trial court. Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015).
An abuse of discretion occurs when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
Where credible evidence is in conflict on a material issue of fact, the appellate court
considers, and may give weight to, the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another. Pohlmann v. Pohlmann, 20 Neb. App.
290, 824 N.W.2d 63 (2012).
ANALYSIS
Codi assigns that the trial court erred in finding a material change in circumstances
occurred warranting a change in Caleb’s physical custody. The court changed the physical custody
of Caleb from primary custody with Codi to joint physical custody between Codi and Jeffrey,
alternating on a weekly basis. The parties continued to have joint legal custody.
Child custody determinations are matters initially entrusted to the discretion of the trial
court, and although reviewed de novo on the record, the trial court’s determination will normally
be affirmed absent an abuse of discretion. State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68,
871 N.W.2d 230 (2015).
-4-
Ordinarily, custody of a minor child will not be modified unless there has been a material
change in circumstances showing that the custodial parent is unfit or that the best interests of the
child require such action. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). A material
change in circumstances means the occurrence of something which, had it been known to the
dissolution court at the time of the initial decree, would have persuaded the court to decree
differently. Id. The party seeking modification of child custody bears the burden of showing a
change in circumstances. Id. Before custody may be modified based upon a material change in
circumstances, it must be shown that the modification is in the best interests of the child. Id.
Importantly, the best interests of the child are paramount. Steffy v. Steffy, 287 Neb 529, 843 N.W.2d
655 (2014).
Jeffrey sought a modification of custody because he had concerns that Caleb was not
getting sufficient and/or consistent treatment for his cystic fibrosis when he was in Codi’s care.
Caleb had cystic fibrosis at the time of the decree and still does. However, since the decree, Codi
has remarried and her husband, rather than Codi, had been responsible for Caleb’s morning
medication regimen for about a year at the time of trial. Further, there were no other children
involved at the time of the decree and now Codi and Charles have two small children who are also
in Charles’ care in the mornings.
Jeffrey presented evidence to show that Caleb may not always be getting the complete
treatment regimen every morning, specifically in regard to the Smart Vest and the huff coughing,
that there was a period of time where Codi was out of one medicine, and that one of Caleb’s
inhalers was lasting longer than it should if used as prescribed. However, Codi testified that the
treatments administered by Charles were approved by the cystic fibrosis clinic and that she has
always followed the clinic’s recommendations and asked questions when she had them.
The trial court found Jeffrey’s concern about Caleb’s well-being under Codi’s care valid
due to her necessary reliance on Charles to make sure Caleb gets his treatment regimen every
morning. The court further found: “While [Charles] appears to be making a genuine effort to care
for Caleb, it is an incredible burden to place on a step-parent who is also tasked with caring for
two other children, ages two years and two months.”
Neither Codi nor Charles has been neglectful in their care of Caleb. However, Caleb’s
morning care, which includes his time-intensive treatment regimen, has changed from a parent to
a non-parent. We agree with the trial court’s determination that the change in who is overseeing
Caleb’s morning treatment regimen is a material change in circumstances. However, before
custody may be modified based upon a material change in circumstances, it must be shown that
the modification is in the best interests of the child. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015). We consider that next.
Neb. Rev. Stat. § 43-2923(6) (Reissue 2016) requires a court, in determining custody and
parenting arrangements, to consider certain factors relevant to the best interests of the minor child,
including in pertinent part: the relationship of the minor child to each parent prior to the
commencement of the action, the desires and wishes of the minor child, if of an age of
comprehension but regardless of chronological age, when such desires and wishes are based on
sound reasoning; and the general health, welfare, and social behavior of the minor child.
Additionally, a court may consider matters such as the moral fitness of the child’s parents,
including the parents’ sexual conduct; respective environments offered by each parent; the
-5-
emotional relationship between child and parents; the age, sex, and health of the child and parents;
the effect on the child as the result of continuing or disrupting an existing relationship; the attitude
and stability of each parent’s character; and the parental capacity to provide physical care and
satisfy the educational needs of the child. Schrag, supra.
In the present case, there is no evidence of abuse or neglect by either parent, and both
parents are fit. The evidence shows that Caleb enjoys spending time with both parents. Caleb also
enjoys his relationship with his siblings and step-father. As the trial court found, taking Caleb out
of his current home environment with Codi and his siblings and giving Jeffrey full custody may
not be in Caleb’s best interests emotionally. However, the court found that Jeffrey was more
capable of attending to Caleb’s physical care and health. Therefore, the court found that joint
physical custody would be in Caleb’s best interests.
Although under a joint custody arrangement Charles will most likely still be administering
Caleb’s morning treatment regimen during the weeks Codi has custody, it is in Caleb’s best
interests to have one of his parents overseeing the treatments 50 percent of the time. We find no
abuse of discretion in the court’s determination.
CONCLUSION
We conclude that the trial court did not abuse its discretion in modifying custody to joint
physical custody. Accordingly, the order of the district court is affirmed.
AFFIRMED.
-6-
| {
"pile_set_name": "FreeLaw"
} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON REHEARING
NO. 03-12-00761-CV
In re Kenneth Crissup
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
We received from the Travis County District Clerk a pro se petition for writ of
mandamus from Relator Kenneth Crissup, an inmate in the Texas Department of Criminal Justice.
Subsequently, we issued an opinion dismissing the petition for want of jurisdiction. See In re
Crissup, No. 03-12-00761-CV, 2012 WL 5974054, at *1 (Tex. App.—Austin Nov. 30, 2012, orig.
proceeding). However, it appears that Relator’s petition was forwarded to our Court in error. The
record reflects that Relator intended the petition to initiate a proceeding in the Travis County District
Court. Accordingly, we withdraw our opinion dated November 30, 2012 and dismiss the petition.
We direct the Clerk of this Court to forward Relator’s petition to the Travis County District Clerk
for filing.
__________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Dismissed
Filed: January 4, 2013
2
| {
"pile_set_name": "FreeLaw"
} |
192 P.3d 844 (2008)
222 Or. App. 151
Terry W. EMMERT, dba Emmert Development Co., Plaintiff-Respondent,
v.
NO PROBLEM HARRY, INC., an Oregon corporation; and Chao Lin Liu, Defendants, and
Way W. Lee, Defendant-Appellant.
Way W. Lee, Counterclaim Plaintiff,
v.
Terry W. Emmert, dba Emmert Development Co., Counterclaim Defendant.
021111858; A134284.
Court of Appeals of Oregon.
Argued and Submitted April 29, 2008.
Decided September 3, 2008.
*846 Steven W. Seymour, Portland, argued the cause for appellant. With him on the briefs were Timothy J. Resch and Samuels Yoelin Kantor Seymour & Spinrad LLP.
Aaron M. Wigod, Portland, argued the cause and filed the brief for respondent.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.
SCHUMAN, J.
This case involves a dispute between plaintiff, the landlord of a warehouse, and defendant,[1] who had a security interest in merchandise stored in that warehouse. Defendant appeals from a limited judgment awarding plaintiff $220,411 in damages for breach of contract and $84,091.33 in prejudgment interest. He alleges that the trial court erred in ruling that the contract was supported by consideration, that it was not ambiguous, that plaintiff adequately pleaded a claim for prejudgment interest, and that defendant's counterclaims for conversion and intentional interference with economic relations lacked merit. We affirm.
Except as noted, the following facts are undisputed. No Problem Harry, Inc. (NPH) leased space in plaintiff's warehouse. The *847 lease provided that failure to pay rent when due constituted default and that, in the event of default, the landlord could reenter and take possession of the premises. By March 27, 2002, NPH was more than $250,000 in arrears. Plaintiff exercised its option to reenter and took possession by changing the locks. Defendant had a perfected security interest in some of the property in the warehouse, and had already found a buyer for it. In order to gain access to the property and complete that sale, he signed an agreement to pay plaintiff $50,000 toward the satisfaction of NPH's debt and (according to plaintiff) to pay the balance of that debt$220,411by June 15, 2002, in exchange for access to the warehouse. Defendant, as we explain below, contends that he never agreed to pay the $220,411. In any event, defendant was allowed access to the warehouse, sold the goods, and paid plaintiff $50,000 from the proceeds. However, he did not pay the balance of NPH's debt by June 15. Plaintiff brought this action against defendant for breach of the agreement. Defendant argued that the agreement was unenforceable because it was not supported by consideration and because it was fatally ambiguous. He also counterclaimed, arguing that, after June 15, plaintiff had wrongfully blocked access to defendant's property still stored in the warehouse, thereby effecting a conversion and an intentional interference with defendant's economic relations with prospective buyers. As noted above, the court rejected those arguments and entered judgment in favor of plaintiff for $220,411 plus prejudgment interest. This appeal ensued.
Defendant's first assignment of error concerns the following agreement, which defendant signed on May 8, 2002:
"This agreement shall be binding between the undersigned parties herein for the purpose of continuation of a lease dated October, 1999 between Chow [sic] Lin, dba: [NPH] and [plaintiff].
"The parties agree that as of today, the balance of rent and cam charges due and owing unto [plaintiff] by the lessee is approximately $270,411.00.
"The landlord agrees to waive late fees pursuant to the terms of the subject lease up to the execution of this agreement to [defendant] * * *. Subject to delivery [to the warehouse] a certified check for $50,000.00, and an agreement to pay the balance of rent and cam charges accrued under the subject lease on or before June 10, 2002. In the event that the balance is not paid by June 10, 2002, [defendant] agrees to make full payment by June 15, 2002 * * * by 5pm or shall be in default of this agreement.
"This agreement, in no way shall mean any waiver of rights entitled to [plaintiff] for possession * * * in the event of default of this agreement.
"* * * * *
"[Defendant] hereby further declares that he has full security interest in any and all goods at the leased address * * *. [Defendant] further agrees to take full responsibility financially and severally for any and all property * * * upon entrance into the subject property."
Defendant argues that the agreement was unenforceable for two reasons. First, he argues, it was not supported by consideration; he promised to pay plaintiff and received nothing in return. Second, he argues, the agreement is fatally ambiguous. We discuss those arguments in turn.
Defendant argues that plaintiff's stated promises to "continu[e][the] lease" and "waive late fees" fail to constitute sufficient consideration because defendant derived no benefit from those promises; the benefit accrued to NPH, the lessee. Plaintiff responds that continuing the lease benefitted defendant in at least one respect: it allowed him access to his merchandise in the warehouse until June 15, 2002, so that he could sell it. Plaintiff also points out that those promises constitute a detriment to plaintiff in that plaintiff agreed to collect less than he was owed and to forbear exercise of his rights under the lease.
The parties' arguments conflate two distinct issues: whether the agreement was supported by consideration and whether the agreement "expressed" that consideration *848 for purposes of ORS 41.580(1)(b), the provision in the Oregon statute of frauds governing "agreement[s] to answer for the debt * * * of another." We first consider whether the agreement was supported by consideration. Consideration is defined as some right, interest, profit, or benefit to the promisor (here, defendant) or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the promisee (here, plaintiff). Shelley v. Portland Tug & Barge Co., 158 Or. 377, 387, 76 P.2d 477 (1938); Cummings v. Central Oregon Bank et al., 110 Or. 101, 103, 223 P. 236 (1924). "Benefit" means that the promisor has, in return for the promise, acquired some legal right to which he or she would not otherwise have been entitled. Shelley, 158 Or. at 388, 76 P.2d 477. "Detriment" means that the promisee has, in return for that promise, forborne some legal right that he or she would otherwise have been entitled to exercise. Id.
Here, the undisputed facts establish that plaintiff agreed to allow defendant access to defendant's property in the warehouse-a clear benefit to defendant, who already had a buyer for the property-in exchange for defendant's promise to answer for at least part of NPH's $270,411 debt. Defendant concedes as much in his opening brief. ("[Plaintiff] would not allow access to the warehouse unless [defendant] signed the Letter of Agreement.") We therefore conclude that the agreement was supported by consideration. That conclusion, however, does not necessarily answer defendant's statute of frauds claim. That claim is based on the statutory requirement that "[a]n agreement to answer for the debt * * * of another" is "void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged[.]"[2] ORS 41.580(1)(b) (emphasis added). Thus, the undisputed fact that plaintiff agreed to permit defendant access in return for defendant's promise to pay part of NPH's debt, while establishing the existence of consideration, leaves unanswered the question whether that consideration is expressed within the four corners of the agreement itself.
That question presents a legal issue. McInnis v. Lind, 198 Or.App. 139, 146, 108 P.3d 578 (2005). An "express[ion] of consideration" sufficient to comply with ORS 41.580(1) "need not be specific" but must "appear with reasonable clearness from the entire contract." Public Fire Ins. Co. v. Weatherly, 148 Or. 407, 411, 36 P.2d 989 (1934). In this case, the agreement expressly states the following: First, NPH is approximately $270,411 in arrears in its lease and other payments to plaintiff. Second, defendant promises to undertake to pay at least part of that debt. Third, the purpose of the agreementthat is, the reason that defendant is willing to pay off at least part of the lessee's debtis "continuation" of the lease. Fourth, defendant anticipates his "entrance into" the warehouse. Fifth, plaintiff reserves the right to possess the premises "in the event of default" by defendant. From these provisions, it "appear[s] with reasonable clearness," id., that plaintiff, in return for receiving payment on the lease (and only so long as it receives such payment), will "continu[e]" the lease by foregoing its right to possess the premisesthat is, by foregoing its right to lock defendant out. Accordingly, the expression of consideration in the agreement is sufficient to comply with ORS 41.580(1).
Defendant also argues, as part of his first assignment of error, that the agreement is ambiguous on its face because its terms can reasonably be given more than one meaning. Specifically, he focuses on the following provision:
*849 "The landlord agrees to waive late fees pursuant to the terms of the subject lease up to the execution of this agreement to [defendant]. Subject to delivery to [the warehouse] a certified check for $50,000.00, and an agreement to pay the balance of rent and cam charges accrued under the subject lease on or before June 10, 2002."[3]
Defendant concedes that the above provision obligated him to pay plaintiff $50,000, but maintains that it does not further obligate him to pay the balance of the arrearage. He asserts that the language, "[s]ubject to * * * an agreement to pay the balance" is merely an agreement to negotiate, at some future point in time, how the "balance" will be calculated and paid. Plaintiff maintains that the only reasonable interpretation of the provision is that defendant agreed to pay the balance, and the fact that the "balance of rent and cam charges" would need to be calculated does not render the contract unenforceable because "[p]erforming calculations to determine a balance owed pursuant to a Lease is not a term to negotiate." We agree with plaintiff.
A contract provision is ambiguous if it is susceptible to two or more plausible interpretationsthat is, two or more sensible and reasonable interpretationsconsidering the context of the contract as a whole and the circumstances of its formation. Milne v. Milne Construction Co., 207 Or.App. 382, 388-89, 142 P.3d 475, rev. den., 342 Or. 253, 149 P.3d 1212 (2006). Whether the terms of a contract are ambiguous is a question of law. Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019 (1997). We conclude that the trial court did not err in its interpretation. In addition to the disputed provision, the agreement in this case specifies that the "balance of rent and cam charges due and owing unto [plaintiff] is approximately $270,411.00" The agreement later provides, "In the event that the balance is not paid by June 10, 2002, [defendant] agrees to make full payment by June 15, 2002 * * *." (Emphasis added.) Thus, the agreement, viewed as a whole, is subject to only one plausible interpretation, which is that of the trial court: "Defendant * * * promised to pay $50,000.00 down and to pay the balance of the arrearage amount at that time of $220,411.00 on or before June 15, 2002."
In his second assignment of error, defendant argues that the trial court erred in awarding plaintiff prejudgment interest because plaintiff's pleading foundation was inadequate to establish entitlement to such interest. We review the trial court's award of prejudgment interest for legal error. Gerber v. O'Donnell, 81 Or.App. 262, 265-66, 724 P.2d 916 (1986). As explained below, we conclude that the trial court did not err.
In an action at law, a party must specifically plead a foundation for prejudgment interest. Lithia Lumber Co. v. Lamb, 250 Or. 444, 447, 443 P.2d 647 (1968). To do so, that party must (1) request prejudgment interest in the prayer and (2) plead facts sufficient to state a claim for prejudgment interest. Shepherd v. Hub Lumber Co., 273 Or. 331, 349, 541 P.2d 439 (1975). Those facts supporting a party's claim for prejudgment interest must be stated in the body of the party's complaint. See Laursen v. Morris, 103 Or.App. 538, 547, 799 P.2d 648 (1990), rev. den., 311 Or. 150, 806 P.2d 128 (1991) ("[W]ith respect to stating a claim for prejudgment interest, the prayer is not part of the statement of the claim. Only if the facts pleaded are sufficient to state a claim for it may prejudgment interest be awarded."). In Holman Transfer Co. v. PNB Telephone Co., 287 Or. 387, 406, 599 P.2d 1115 (1979), the plaintiff requested prejudgment interest in the prayer but failed to allege an entitlement to that interest in the body of the complaint. The Supreme Court nonetheless held that the plaintiff had pleaded facts sufficient to state a claim for prejudgment interest where it alleged, in the body of its complaint, "the exact amount claimed to be due and the *850 dates during which [the] plaintiff claimed it was deprived of the use of its money." Id.
Plaintiff in this case prayed for prejudgment interest and specified in both the prayer and the body of its amended complaint the amount it claimed it was due exclusive of interest$220,411and the dates during which it was deprived of that sum"as of May 7, 2002." Accordingly, we conclude that the trial court did not err in awarding plaintiff prejudgment interest.
Defendant's final assignment of error concerns the trial court's denial of his counterclaims against plaintiff for intentional interference with economic relations and conversion. On appeal, defendant argues that plaintiff blocked defendant's access to the warehouse between May 8, 2002 and June 15, 2002, the period during which the agreement granting access was in effect. That blockade, according to defendant, interfered with defendant's prospective economic relations and constituted conversion of the goods stored in the warehouse. Plaintiff responds that the trial court found that plaintiff did not block defendant's access, and that that finding is binding on this court unless no evidence in the record supports it. We agree with plaintiff.
We review the trial court's conclusion that defendant "failed to prove * * * all counterclaims" for errors of law. What actually transpired, however, is a question of fact, and the trial court's findings of historical fact, if supported by the evidence, are binding on this court. Or. Const, Art. VII (Amended), § 3; Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Where findings are not made on disputed issues of fact and there is evidence from which those facts could be decided more than one way, we will presume that they were decided in a manner consistent with the trial court's ultimate conclusion. Ball, 250 Or. at 487, 443 P.2d 621.
To state a claim for intentional interference with economic relations, a party must establish (1) the existence of a valid business relationship or expectancy, (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and the damage to economic relations, and (6) damages. Uptown Heights Associates v. Seafirst Corp., 320 Or. 638, 651, 891 P.2d 639 (1995). To state a claim for conversion, a party must establish the intentional exercise of dominion or control over a chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel. Mustola v. Toddy, 253 Or. 658, 663, 456 P.2d 1004 (1969).
In this case, then, to establish the "interference" and "exercise of dominion or control" elements necessary to state his counterclaims, defendant must prove that plaintiff blocked his access to the goods stored in the warehouse between May 8, 2002 and June 15, 2002. That is an issue of fact. Because the record presents conflicting evidence as to whether such blocking occurred and the trial court ultimately concluded that defendant had failed to prove both of his counterclaims, we presume that the court resolved the conflicting evidence in a manner consistent with that conclusion. In other words, we presume that the trial court found that plaintiff did not block defendant's access to the warehouse between May 8, 2002 and June 15, 2002, and at least some evidence supports that finding. We therefore conclude that the trial court did not err in rejecting defendant's counterclaims.
Affirmed.
NOTES
[1] Defendants at trial included No Problem Harry, a corporation; Chao Lin Liu, the owner of the corporation; and Way Lee, who had an interest in some of the property in plaintiff's warehouse. Way Lee is the sole appellant. Throughout this opinion, "defendant" refers to Lee only.
[2] Although the word "void" is used in the statute, it is more accurate to say that an agreement that fails to comply with the statute is unenforceablein that the ordinary legal remedies are unavailablebecause such agreements can actually have an effect on the legal relationship of the contracting parties and third parties, whereas void agreements cannot. See Golden v. Golden, 273 Or. 506, 510, 541 P.2d 1397 (1975) (so stating). Accordingly, we discuss the effect of the agreement's compliance or noncompliance with the statute in terms of enforceability.
[3] There is no dispute that the sentence fragment beginning with "[s]ubject to" is actually an adverbial clause modifying "agrees"in other words, that the period before "[s]ubject to" should be a comma.
| {
"pile_set_name": "FreeLaw"
} |
376 B.R. 897 (2007)
In re Kenneth E. ERWIN and Melissa A. Erwin, Debtors.
No. 07-80143.
United States Bankruptcy Court, C.D. Illinois.
October 1, 2007.
*899 OPINION
THOMAS L. PERKINS, Chief Judge.
This matter is before the Court for confirmation of the Amended Chapter 13 Plan filed by the Debtors, Kenneth E. Erwin and Melissa A. Erwin (DEBTORS). A secured creditor, Americredit Financial Services, Inc. (AFS), objects on the basis that the Amended Plan fails to provide for its secured claim to be paid in equal monthly payments. This Court determines that the equal payment provision, directed at debtors and not Chapter 13 trustees, does not require a trustee's monthly payments to secured creditors to be perfectly equal in amount. Trustees may continue to pay debtors' attorney fees on an accelerated basis despite the resulting increase in secured creditor payments once the attorney is fully paid. For the reasons set forth herein, the Objection will be denied and the Amended Plan will be confirmed.
The DEBTORS filed their Chapter 13 petition on January 26, 2007. Under the Amended Plan, the DEBTORS are to pay the Chapter 13 Trustee (TRUSTEE) $875.00 per month for sixty months for total payments of $52,500.00. Importantly, the DEBTORS proposed `payments to the TRUSTEE are level for the entire term of the Amended Plan.
The Amended Plan calls for the TRUSTEE to pay two secured claims, one to National City Mortgage (NCM) in the amount of $18,999.93 to cure a prepetition arrearage on the DEBTORS' home mortgage, and the second to AFS secured by a 2005 Chevrolet Venture in the amount of $19,382.00 to be paid, with interest at 10.25%, "in prorata payments set forth by the Trustee." Subsequent to the filing of the Amended Plan, the DEBTORS and AFS stipulated that the correct amount of AFS's secured claim is $19,316.26 and that the rate of interest to be paid on the claim is 11.25%. The Amended Plan also provides that the TRUSTEE'S fee and the DEBTORS' attorney fees of $2,484.00 are to be paid by the TRUSTEE. After those claims are paid, the remaining plan payments are to be disbursed to the holders of allowed unsecured claims on a prorata basis, with an estimated dividend of 1%.
AFS objects to confirmation of the Amended Plan claiming that it cannot be confirmed because it violates Section 1325(a)(5)(B)(iii) (referred to as the "equal payment provision"), a recently enacted change to the Bankruptcy Code. Added by BAPCPA,[1] and effective October 17, 2005, the provision in question is as follows:
(a) Except as provided in subsection (b), the court shall confirm a plan if
* * *
(5) with respect to each allowed secured claim provided for by the plan
* * *
(B) (iii) if
(I) property to be distributed pursuant to this subsection is in the form of periodic payments, such *900 payments shall be in equal monthly amounts; and
(II) the holder of the claim is secured by personal property, the amount of such payments shall not be less than an amount sufficient to provide to the holder of such claim adequate protection during the period of the plan.
11 U.S.C. § 1325(a)(5)(B)(iii).[2] The new provision, argues AFS, requires the Amended Plan to state an exact monthly payment amount to be paid to AFS and requires all payments that the TRUSTEE makes to AFS to be in that amount. The effect of this provision, contends AFS, is to render obsolete the prevailing practice in this District of prorata payments to secured and priority creditors.
Initially, AFS also objected on the basis that it was entitled to be paid interest on its secured claim at its contract rate of 21.95% and that the Amended Plan was not proposed in good faith. These objections have since been resolved by the stipulation between the DEBTORS and AFS. It should also be noted that AFS is receiving preconfirmation monthly adequate protection payments from the TRUSTEE as required by Section 1326(a)(1)(C). AFS does not contend that the amount of the payments it is now receiving or the amount that it is scheduled to receive under the Amended Plan is less than required to adequately protect its interest as required by Section 1325(a)(5)(B)(iii)(II) and Section 1326(a)(1)(C). The DEBORS take no position regarding the objection, viewing it as primarily impacting the TRUSTEE'S administration of the Amended Plan.
The TRUSTEE contends that the equal payment provision has no effect on the prorata payment practice. Drawing a distinction between what a plan provides as drafted by a debtor and the practical reality of how payments are actually made by the trustee, the TRUSTEE argues that Section 1325(a)(5)(B)(iii)(I) does not require that each payment made to a secured creditor by a trustee under a confirmed Chapter 13 plan be exactly equal in amount. The TRUSTEE is troubled by the effect such a rule, if binding on him, would have on the payment of attorney fees and on the administration of cases generally.
Bankruptcy courts have addressed the equal payment provision with some consternation. A creative response to the equal payment conundrum was developed in In re DeSardi, 340 B.R. 790, 809-10 (Bankr.S.D.Tex.2006), an opinion addressing the same issue in three different cases. Each debtor filed a plan proposing to retain a secured vehicle and began making preconfirmation adequate protection payments to the lienholder at the rate of 1.5% of the scheduled value of the vehicle, pursuant to a procedure established by local rule. Recognizing that payment in full of the debtor's attorney fees, ordered by local rule to be paid on an accelerated basis, would occur a few months into the plan and result in an increase in the monthly payment amount being paid to the secured creditor, causing the payments to become unequal, each debtor proposed a plan that deferred the commencement of the payments to the secured creditor until the attorney fees were fully paid. The creditors' *901 plan payments were thus scheduled to begin in the sixth, fifth and seventh month of the plan, respectively, remaining equal in amount until the secured claim was paid in full. The debtors asserted that Section 1325(a)(5)(B)(iii)(I) only requires that the payments be level once they begin and that commencement could be deferred to a month of the debtor's choosing so long as the creditor's interest remained adequately protected. The court agreed with the debtors and confirmed the plans. Accord, In re Hill, 2007 WL 499622 (Bankr.M.D.N.C.2007). Contra, In re Denton, 370 B.R. 441 (Bankr.S.D.Ga. 2007).
Three other bankruptcy courts have addressed the equal payment provision in the context of a plan calling for a secured creditor to receive a large balloon payment at the end of the plan, determining with no difficulty that the proposed balloon payment violates the equal payment provision. In re Schultz, 363 B.R. 902 (Bankr. E.D.Wis.2007); In re Lemieux, 347 B.R. 460 (Bankr.D.Mass.2006); In re Wagner, 342 B.R. 766 (Bankr.E.D.Tenn.2006).
The results of these cases are readily explainable when the remedial purpose of the equal payment provision is considered. Prior to BAPCPA, it was not uncommon for some Chapter 13 plans to provide for backloaded payments, such as balloon payments. Another form of backloading involved graduated or step-up payment plans, where the payments started out smaller and increased over time. Secured creditors, particularly those secured by a vehicle, viewed this as unfair, exposing them to undue risk in light of the constant depreciation of their collateral.
Other plans, filed by debtors, whose employment is seasonal, provided for reduced payments or no payments at all during certain months of the year, or called for payments to be made quarterly or semi-annually, rather than monthly, based upon the peculiarities of the debtor's income stream. Secured creditors had similar complaints with those plans.
In response to those creditor concerns, Congress enacted the equal payment provision and a companion provision extending the concept of adequate protection, formerly a preconfirmation requirement, to postconfirmation plan payments. 11 U.S.C. § I325(a)(5)(B)(iii)(II). The equal payment provision prevents debtors from backloading payments to secured creditors or paying them other than on a monthly basis. It is easy to understand why the courts in Schultz, Lemieux, and Wagner had little difficulty denying confirmation of plans that called for balloon payments to secured creditors a plan proposal clearly, intended to be eliminated by the equal payment provision. Likewise, it is easy to understand the struggle of the DeSardi and Hill courts, who were faced not with backloaded plans, but with plans that merely proposed to pay the debtors' attorney fees over a shorter term than the secured claims, something that has always been permitted and is supported by sound policy reasons. In this Court's view, the accelerated payment of debtors' attorney fees was not intended to be precluded by the equal payment provision and construing the provision as having that effect is incorrect.
The debtor's attorney fees, as well as the trustee's fee, accorded a special priority in Chapter 13 cases, must be paid "[b]efore or at the time of each payment to creditors under the plan." 11 U.S.C. § 1326(b). Payment of the fees on an accelerated basis is expressly authorized. This Court authorizes the Chapter 13 trustees to pay the debtor's attorney fees concurrently with creditors but on an accelerated, rather than prorated, basis. The *902 attorney fees are usually paid in full within one year after filing.[3]
In addition to the express authorization for the accelerated payment of attorney fees, Chapter 13 trustees have independent authority and discretion to administer plans, subject to orders of the court and the rules imposed by the United States Trustee in its supervisory capacity over standing trustees. Chapter 13 trustees, simultaneously administering thousands of plans, determine the exact payment terms of each allowed claim[4] With respect to secured claims, the trustee's responsibility is to pay the principal amount of the allowed claim plus interest, which is calculated and paid on a simple interest basis from payment to payment. In re Pokrzywinski, 311 B.R. 846 (Bankr. E.D.Wis.2004). While the trustee is generally charged with distributing the funds received from the debtors as soon as is practicable and in accordance with the plan, 11 U.S.C. § 1326(a)(2), the exact amount and timing of each payment is determined by the trustee. The specific terms of a confirmed plan are binding on the debtor and each creditor, but not on the trustee. 11 U.S.C. § 1327(a). Simply stated, neither the debtor nor any creditor has the right or power to dictate to the Chapter 13 trustee exactly how a claim is to be paid the trustee determines those details.[5]
AFS suggests that the TRUSTEE is bound by the equal payment provision. This Court disagrees. The TRUSTEE'S argument that the equal payment provision is aimed at debtors, not trustees, is well-founded. Bankruptcy Code Sections 1322 and 1325 deal with the contents of plans, delineate the power to modify claims and the limitations on that power. These sections set the guidelines for what a debtor may or must do, and may not do, to get a plan confirmed. The directives pertaining to the trustee's administration of a confirmed plan are set forth in Section 1326. Those directives are few, indicating an intent to repose broad discretion in trustees for the administration of plans. Since the equal payment provision was added to Section 1325, not Section 1326, the Court agrees with the TRUSTEE that it serves as a restriction on how debtors may propose payments, not as a directive as to how trustees must make payments.
The issue before the Court specifically concerns the payment of the DEBTORS' attorney fees. The Amended Plan does not propose for AFS to receive a balloon payment. Neither will the DEBTORS make graduated or step-up or non-monthly payments to the TRUSTEE. The DEBTORS will pay $875.00 each and every month for sixty months. Since the DEBTORS are making level payments for the entire term of the Amended Plan, and AFS will be paid prorata, the proposed treatment of AFS's claim is for payments that are equal in amount. While it is true that the amount of the monthly payment to AFS will increase once the DEBTORS' attorney fees are fully paid, that increase *903 does not result from the terms of the Amended Plan. Rather, the increase results from the Court's Standing Order and the operation of Section 1326(b)(1). See In re Balderas, 328 B.R. 707, 719-20 (Bankr. W.D.Tex.2005) (by imposing a kind of bankruptcy tax on creditor distributions for the payment of attorney fees, Section 1326(b)(1) trumps Section 1325(a)(5)).
AFS also contends that the DEBTORS are required to state in the Amended Plan the exact amount of the monthly payments that AFS will receive. The equal payment provision contains no such requirement. It is up to the TRUSTEE, not the DEBTORS and not AFS, to determine how much AFS will be paid each month.
The equal payment provision is a broad-stroke proscription against abusive payment terms, not a tool to micromanage Chapter 13 trustees. The Amended Plan provides that AFS will be paid a proportional share of the DEBTORS' payments which are equal in amount for the entire sixty-month term of the plan. Backloading of payments or other abusive payment terms are not present. Therefore, the Amended Plan does not violate the equal payment provision.
AFS's objection to confirmation will be denied and the Amended. Plan will be confirmed. This Opinion constitutes this Court's findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. A separate Order will be entered.
ORDER
For these reasons stated in an Opinion entered this day, IT IS, HEREBY ORDERED that the Objection of Americredit Financial Services, Inc., to Confirmation of Debtors' Proposed Chapter 13 Plan is denied and the Amended Plan filed by Kenneth E. Erwin and Melissa A. Erwin on February 8, 2007, is confirmed, with the terms of the Agreed Order entered May 10, 2007, incorporated by reference, including that the secured claim of Americredit Financial Services is allowed in the amount of $19,316.26 with interest payable at 11.25%.
NOTES
[1] The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8.
[2] The Court recognizes that an alternative basis exists for denying AFS's objection in that Seventh Circuit case law supports the view that the provisions of Section 1325(a) are not mandatory conditions that must be satisfied before a Chapter 13 plan may be confirmed. In re Burgess, 143 Fed.Appx. 692 (7th Cir.2005); Matter of Escobedo, 28 F.3d 34, 35 (7th Cir.1994). In this Court's view, however, the result is better justified on other grounds.
[3] The Standing Order adopted by all of the bankruptcy judges in the Central District of Illinois provides that the monthly payments on attorney fees shall be the lesser of (i) 50% of the funds available for distribution or (ii) $250.
[4] As of September 27, 2007, the TRUSTEE was appointed and serving in 2,147 pending Chapter 13 cases.
[5] In general, Chapter 13 trustees are not required to adhere to plan provisions that attempt to provide special treatment for a particular claimant, such as that payments will be made in certified funds or by express mail or on a particular day of each month. The trustees are not beholden to the whims of the parties.
| {
"pile_set_name": "FreeLaw"
} |
898 F.2d 153
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.Joe H. CROWHORN, Petitioner-Appellant,v.Al C. PARKE, Respondent-Appellee.
No. 89-5099.
United States Court of Appeals, Sixth Circuit.
March 21, 1990.
1
Before KENNEDY and ALAN E. NORRIS, Circuit Judges, and PAUL V. GADOLA, District Judge.*
ORDER
2
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Joe Crowhorn appeals from the district court's judgment dismissing his habeas corpus petition brought pursuant to 28 U.S.C. Sec. 2254. Following a jury trial, Crowhorn was sentenced to three years imprisonment for third-degree burglary and ten years as a second-degree persistent felony offender.
4
In this petition, Crowhorn claimed that Kentucky violated the Interstate Agreement of Detainers when it failed to press for immediate prosecution, and that this deprived the Kentucky courts of jurisdiction. He also claimed that he was wrongfully transported across state boundaries. The respondent is the warden at Kentucky State Reformatory. Crowhorn requested injunctive relief.
5
After reviewing the respondent's answer, the magistrate's report and recommendation, and Crowhorn's objections, the district court dismissed the petition because Crowhorn failed to raise a valid ground for habeas relief.
6
Crowhorn raises the same arguments on appeal.
7
Upon consideration, we conclude that the district court correctly dismissed the petition as a violation of the Interstate Agreement of Detainers is not a basis for habeas corpus relief. See Browning v. Foltz, 837 F.2d 276, 283 (6th Cir.1988), cert. denied, 109 S.Ct. 816 (1989).
8
For this reason, the district court's judgment is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.
*
The Honorable Paul V. Gadola, U.S. District Judge for the Eastern District of Michigan, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
774 F.2d 1169
Williamsv.Emerson Elec. Co.
85-1372
United States Court of Appeals,Eighth Circuit.
7/11/85
1
E.D.Mo.
DISMISSED
| {
"pile_set_name": "FreeLaw"
} |
966 F.2d 476
75 Ed. Law Rep. 1026
UNITED STATES of America, Plaintiff-Appellee,v.Robert Alfred ST. THOMAS, M.D., Defendant-Appellant.
No. 91-55427.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 10, 1992.Decided June 4, 1992.
Clifton W. Albright, Albright & Singleton, Los Angeles, Cal., for defendant-appellant.
Michael S. Raab, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: GOODWIN, NORRIS and NOONAN, Circuit Judges.
NOONAN, Circuit Judge:
1
The United States filed a claim asserting that Robert Alfred St. Thomas was indebted to it in the amount of $163,140.05, representing "Health Education Assistance Loans," as evidenced by an attached "Certificate of Indebtedness." The certificate, signed by a claims agent in the Public Health Service, set forth certain facts as to federal scholarship aid to St. Thomas and his asserted breach of contract in regard to them leading to the alleged indebtedness. St. Thomas denied the debt and urged affirmative defenses including laches and estoppel. The district court gave summary judgment for the United States. We now affirm in part, reverse in part and remand.
FACTS
2
In 1977 St. Thomas was a student of Meharry Medical College in Nashville, Tennessee. On August 11, 1977 he received a scholarship award of $11,181.25 for the period July 1, 1977 to June 30, 1978. The scholarship award was by the Public Health and National Health Service Corps (PH/NHSC) under Public Law 92-585, 86 Stat. 1290-1295 (1972).
3
St. Thomas signed an agreement accepting the award, one condition of which was that he agreed "to fulfill the service obligation" as specified by the Public Health Service Act and the pertinent regulations. This condition was part of the printed boilerplate in the award and was also separately typed opposite his name. In the boilerplate the following was added:
4
If for any reason a participant fails to complete an active date service obligation, such participant shall be liable for the payment of an amount equal to the scholarship payment, tuition and other educational fees paid, plus interest at the maximum legal prevailing rate running from the date such payments were made.
5
It was further stated that this amount should be paid to the United States within a three year period beginning on the date on which a breach occurred.
6
St. Thomas also received scholarship aid of $6058 for 1978-1979 and $12,671 for 1979-1980 under a different program, the National Health Service Corps Scholarship Program, 42 U.S.C. § 254l. In receiving these awards St. Thomas was required to enter into a written contract with the Secretary of Health and Human Services (the Secretary) providing that he would serve a "period of obligated service" for at least two years as a provider of primary health services "in a health professional shortage area (designated under § 254e of this title) to which he is assigned by the Secretary as a member of the Corps". 42 U.S.C. § 254l(f). The contract also provided, by statute, a statement of "the damages to which the United States is entitled, under § 254o of this title, for the individual's breach of the contract." Id.
7
Section 254o, which deals with breach of the contract, provides that if the individual "breaches his written contract by failing (for any reason not specified in subsection (a) of this section or § 254p(d) of this title) either to begin such individual's service obligation ... or to complete such service obligation," the United States will be able to recover three times the amount awarded plus the interest "which would be payable if at the time the amounts were paid they were loans bearing interest at the maximum legal prevailing rate." 42 U.S.C. § 254o.
8
"Obligated Service Under Contract" is dealt with under 42 U.S.C. 254m. This statute declares that, except as provided in § 254n, each individual who enters a written contract with the Secretary under § 254l "shall provide service in the full-time clinical practice of such individual's profession as a member of the Corps for the period of obligated service provided in [the] contract." § 254m(a).
9
The rest of section 254m(a), "Obligated Service Under Contract," specifies what the Secretary shall do as to an individual required to provide obligated service. The Secretary is to determine if the individual shall provide such service as a member of the Corps who is an officer or who is a civilian employee of the United States or as a member of the Corps who is not such an officer or employee. The Secretary is to notify the individual of such determination. The period of obligated service is considered to have begun on the date the individual is appointed as an officer or is designated as a member of the Corps who is not an officer or employee or in the case of an individual who has entered into an agreement with the Secretary under § 254n, on the date specified in such agreement, whichever is earlier. § 254m(c). Importantly for our purposes, the Secretary "shall assign" participants to "health professional shortage areas." 42 U.S.C. §§ 254m(d), 254e(a)(1).
10
Section 254n, to which reference is made by § 254m(c), provides that the Secretary "shall release" an individual from his service obligation "if the individual applies for such a release under this section and enters into a written agreement with the Secretary" that the individual will serve in full-time private clinical practice in a health professional shortage area selected by the Secretary. § 254n(a).
11
By letter dated October 23, 1981 St. Thomas was notified that he had been assigned to a position at the Federal Bureau of Prisons to fulfill his service obligation. Because of budget reductions, however, this position became unavailable, and he was informed by letter of December 28, 1981 that he was now reassigned either to the National Health Service Corps or to the Indian Health Service. On March 3, 1982 St. Thomas was notified by letter from the regional office of the Secretary that he had been "assigned to the National Health Service Corps," Region IX, and might now begin the process of identifying a federal or non-federal position in which to fulfill his service obligation. The same notice "strongly encouraged" him to investigate the possibility of serving his obligation "in a private practice status" in the assigned region. He was instructed to contact the regional staff of the Secretary in San Francisco for assistance in matching to a site. He was advised that if he did not match to a site by May 4, 1982 he would be assigned to a site.
12
St. Thomas was not matched to a site by May 4, 1982. No assignment was made. Late in May 1982 the regional office asked him by mailgram to contact the office about his placement plans. On June 11, 1982 he informed the regional office by telephone that he had been offered a position in a clinic in Watts. The regional office sent him an application for a Private Placement Option (PPO). He did not return it. The regional office advised him on July 1, 1982 that he "would be recommended for default." He was so recommended to the central office of the Secretary, and on September 15, 1982 he was informed that he was in default, effective August 6, 1982.
13
On October 28, 1982 St. Thomas telephoned the regional office saying he was employed at a clinic in Watts but had misplaced his PPO application. In early November 1982 he did file a PPO application, which was incomplete. His employment in Watts was terminated on November 30, 1982. St. Thomas' subsequent employment appears to be unrelated to this case.
14
In 1986 a collection agency on behalf of the Secretary offered St. Thomas an agreement by which he could satisfy the monetary obligation caused by the alleged default by serving at a high priority site selected by the Secretary. He did not reply. He was again advised in 1988 that he could serve under a "special repayment program." He again did not reply.
PROCEEDINGS
15
The government filed its complaint in this case March 28, 1990. The government calculated St. Thomas' liability as of February 29, 1988 to be principal of $11,181.25 and interest of $16,936.67 under the Public Health Scholarship Program. In addition, the government calculated that he was liable under the National Health Service Corps Program for principal of $56,187 and interest of $68,997.57.
16
On February 11, 1991 the United States moved for summary judgment, which was granted the same day on the basis of "uncontroverted facts and conclusions of law." The uncontroverted facts include the facts summarized above. By February 11, 1991, St. Thomas' liability was calculated to amount to $211,908.38, with interest accruing daily until entry of judgment.
ANALYSIS
17
Under the Public Health Service Scholarship Training Program St. Thomas had both a statutory and contractual obligation to pay an amount equal to the scholarship payments plus interest if "for any reason" he failed to complete his active duty service application. 86 Stat. 1294. St. Thomas failed to complete his active duty obligation. He is liable under the statute and under the contract that he signed for the principal and interest set by law.
18
St. Thomas' position under the National Health Service Corps program is somewhat different. The provision governing transition between the two scholarship programs, Section 408(b)(2) of the Health Professions Education Assistance Act of 1976, P.L. 94-484, does not import into the earlier program the requirement of assignment to be analyzed below.
19
By statute and contract St. Thomas had an obligation to provide two additional years of service. How he was to perform the service was governed by statute. What he did in no way qualified under § 254n because he never entered into a written agreement with the Secretary to perform his service in private clinical practice in a health professional shortage area. His obligations, therefore, must be measured under § 254m.
20
Section 254m(d) requires the Secretary to assign participants to a health manpower shortage area for service obligations under National Health Service Corps scholarships. The Secretary never assigned St. Thomas to a health manpower shortage area. Even if it might otherwise have sufficed, the assignment to the Bureau of Prisons did not satisfy the statutory duty because it was revoked. Nor did the Secretary ever assign St. Thomas to the Indian Health Service; the December 28 letter stated that it and the NHSC were alternatives. Finally, the assignment of St. Thomas to the National Health Service Corps, Region IX, did not satisfy the assignment requirement. An "area" is a small geographic area such as one part of a city; a population group; or a specific facility. 42 U.S.C. § 254e(a)(1). The three-state Region IX did not qualify. The United States does not argue that any of these assignments sufficed. St. Thomas did not match to a site and obviate the need for the Secretary's assigning him to a health manpower shortage area.
21
The communications between St. Thomas and the Secretary after May 4, 1982 show St. Thomas procrastinating in his commitment to obligated service, but the communications also show the Secretary to be sloppy in his procedures and failing to make a definite assignment of St. Thomas. At no point did St. Thomas reject an assignment made by the Secretary. Consequently, there was no basis for the Secretary to find him in breach of his obligation as of August 8, 1982.
22
In the Secretary's defense, it might be argued that the Secretary was trying to act in a mature and civilized way with a health professional and that St. Thomas' half-promises led the Secretary to think that St. Thomas would eventually file a PPO. However, St. Thomas did not enter into the agreement required for a PPO under § 254n. There was, therefore, no reason for the Secretary to suppose that St. Thomas fell under § 254n. The Secretary was required to act under § 254m.
23
The Secretary administers a statute with specific provisions with a suggestion of almost military precision in the concept of "a corps." The penalty for a physician in breach of the obligated service requirement is a heavy one, far exceeding the actual monetary loss to the United States. The United States expects its beneficiaries to turn square corners in dealing with it. Similarly, the United States is required to turn square corners in dealing with its beneficiaries. The Secretary failed to take the steps necessary to put St. Thomas into default.
24
Accordingly, the judgment of the district court is AFFIRMED as to the amount due under the Public Health Service Training Program and is REVERSED as to the amount due under the National Health Service Corps program. The case is REMANDED for entry of judgment in accordance with this opinion.
| {
"pile_set_name": "FreeLaw"
} |
547 F.2d 428
Lawrence D. BAKER, Appellant,v.Donald D. WYRICK, Appellee.
No. 76-1696.
United States Court of Appeals,Eighth Circuit.
Submitted Dec. 17, 1976.Decided Jan. 10, 1977.
Lawrence M. Berkowitz (argued), Kansas City, Mo., on brief, for appellant.
Neil MacFarlane, Asst. Atty. Gen. (argued), and John C. Danforth (former Atty. Gen.), Jefferson City, Mo., on brief, for appellee.
Before STEPHENSON and HENLEY, Circuit Judges, and MEREDITH, Chief District Judge.*
MEREDITH, Chief District Judge.
This appeal is from an order of the United States District Court for the Western District of Missouri, dismissing appellant's petition for a writ of habeas corpus. The appellant raises three grounds for relief:
(1) the district court erred in holding that the appellant had not fully exhausted his state court remedies with respect to his claim that the prosecutor used his peremptory strikes in the selection of the jury to willfully remove all blacks from the jury panel at appellant's trial and in all similar cases;
(2) the district court erred in denying appellant the right to a hearing in the federal court and in failing to find that the state court procedure for obtaining a hearing was unreasonable and burdensome and denied appellant due process of law, as well as a full, fair, and adequate remedy under 28 U.S.C. § 2254;
(3) the district court erred in denying appellant relief on his claim that Missouri Supreme Court Rule 24.04 is unconstitutional.
We affirm the district court.
The facts of the case are as follows: On November 30, 1971, a three-count information was filed in Jackson County, Missouri, charging appellant, a negro, with two counts of first-degree murder and one count of first-degree robbery. The trial began on May 30, 1972. At the conclusion of voir dire proceedings, appellant filed a motion to discharge the petit jury on the grounds that the state prosecutor deliberately and willfully used the peremptory challenges to strike negroes from the jury panel and that this has been done in case after case, whatever the circumstances, but particularly where the accused was a negro, and that this practice of excluding negroes from a petit jury denied the appellant equal protection of the law and was contrary to the Fourteenth Amendment to the Constitution of the United States. On the petit jury panel of forty-seven, four were negroes and they were stricken by the prosecutor. The state court denied the motion for a new trial and denied a hearing.
On June 1, 1972, appellant was convicted on all three counts and on September 15, 1972, was sentenced to life imprisonment on each murder count and to a term of imprisonment of ninety-nine years on the robbery count, the sentences to run consecutively. Appellant appealed his conviction and sentences to the Missouri Supreme Court. The Missouri Supreme Court affirmed the conviction, holding that under the broad conclusory allegations, without stating more specific facts to support his allegations, appellant was not entitled to a hearing concerning the practice of striking negroes from the jury panel systematically. The Court further held that Missouri Supreme Court Rule 24.04 is constitutional. This rule permits that a defendant be tried on more than one offense at the same trial, and is similar to Rule 8 of the Federal Rules of Criminal Procedure. The Court, however, held section 546.480, R.S.Mo. 1969, was constitutional insofar as it requires consecutive sentences to be imposed on a defendant convicted of more than one offense. The Court then remanded the cause to the state trial court for resentencing and requested that judicial discretion be exercised to determine if the sentences imposed were to be concurrent or consecutive. State v. Baker, 524 S.W.2d 122 (S.Ct.Mo. en banc 1975). The state trial court imposed the same sentences and had them run consecutively.
On June 7, 1976, appellant filed his petition for writ of habeas corpus in the District Court for the Western District of Missouri, and on July 6, 1976, the district court denied the writ of habeas corpus, holding that since the Supreme Court of Missouri had declared unconstitutional section 546.480, R.S.Mo. 1969, that this, in effect was holding in appellant's favor and cured any problems relating to Rule 24.04, by remanding the case to the trial court for resentencing of the appellant. The district court further held that the question of systematic exclusion of negroes from the jury had not been properly presented to the state trial court and dismissed this claim for failure to exhaust state remedies. The district court also held that such a requirement was not burdensome on appellant and that the federal courts should not interfere with state court processes until these matters are squarely presented to the state courts with sufficient facts alleged to give the state courts an opportunity to act properly on complaints.
The record before the state trial court discloses that appellant's counsel was reluctant to verify the motion for a new trial because he was not in possession of sufficient facts to make any specific and factual allegations. Appellant's counsel before this Court stated that he was not in possession of sufficient facts to know whether or not a hearing would be helpful concerning systematic exclusion of blacks, but insisted that such a hearing should be held before the district court rather than before the state court.
The Supreme Court of the United States, in Swain v. Alabama (1965), 380 U.S. 202 at pages 223-24, 85 S.Ct. 824, at page 837, 13 L.Ed.2d 759 held:
We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged. But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.
In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.
1
This Court has followed Swain in United States v. Carter, 528 F.2d 844 (8th Cir. 1975), in holding that in eight out of fifteen cases where some or all blacks were removed from juries by peremptory challenges of the government such was insufficient to come within the standard set out in Swain. This Court in United States v. Nelson, 529 F.2d 40 (8th Cir. 1976), affirmed the district court after the prosecutor had stricken all three black persons from the jury panel.
2
The appellant in this case, if sufficient evidence can be obtained to allege and show that the State of Missouri, through its prosecutor in Jackson County, has violated the rule set out in Swain, may make these allegations specifically before the state trial court by way of a proceeding under Missouri Rule 27.26, which then can be reviewed by the Missouri Appellate Courts, and, in turn, come to the federal system in an orderly manner.
3
Accordingly, we affirm the United States District Court.
*
The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri, sitting by designation
| {
"pile_set_name": "FreeLaw"
} |
253 Minn. 367 (1958)
91 N.W. (2d) 657
IN RE PETITION FOR IMPROVEMENT OF COUNTY DITCH NO. 11, MARTIN COUNTY.
EMIL F. HAGEN AND OTHERS
v.
COUNTY OF MARTIN AND OTHERS. GLENN REED AND OTHERS, APPELLANTS.
No. 37,309.
Supreme Court of Minnesota.
August 8, 1958.
*368 Gaarenstroom & Gaarenstroom, for appellants.
Seifert, Johnson & Hand, for respondents.
*369 MURPHY, JUSTICE.
Appeal from an order of the District Court of Martin County reversing an order of the county board of commissioners.
This proceeding was instituted by a petition filed with the county auditor of Martin County pursuant to M.S.A. 106.501 on September 14, 1954, asking for the improvement and extension of County Ditch No. 11. On August 4, 1955, the county board held the final hearing on the petition. The engineer's and viewers' report then on file showed that, as required by § 106.201, subd. 1, the estimated benefits were more than the estimated damages plus the cost of construction. Accordingly, the county board made and filed its order approving the engineer's and viewers' report establishing the improvement and ordering the county auditor and the chairman of the county board to proceed to advertise for bids and let contracts for the construction of the improvement.
Subsequent to the order establishing the improvement, three appeals were taken to the district court on the question of benefits determined and damages awarded. One appeal was settled and the benefits reduced by the amount of $300. A second appeal was tried before a jury and pursuant to a verdict a judgment was entered reducing benefits $1,130 and increasing damages $3,878. As a result of the third appeal a judgment was entered pursuant to a verdict, reducing benefits $180 and increasing damages $3,660. Certified copies of these judgments were filed with the county auditor. After the judgments were filed, the county auditor's records showed that the estimated benefits were $34,360 and the damages plus the estimated cost of construction were $38,396.49. The auditor then amended the engineer's and viewers' report to reflect the changes in benefits determined and damages awarded as reflected by the judgments entered in the appeals.
Prior to July 3, 1956, after the certified copies of the judgments had been filed with the county auditor, five of the property owners who originally petitioned for improvement of the ditch filed a petition with the county board of commissioners offering to make a gift to Martin County of $4,200 to be credited to County Ditch No. 11 for the construction of the improvement. The purpose of this gift was to adjust the change in estimated figures resulting from the judgments. On July 3, *370 1956, the county board of commissioners made and filed an order accepting the $4,200 gift in behalf of the improvement of the ditch and ordered the county auditor and the chairman of the county board of commissioners to proceed according to law and advertise for bids and let contracts for the construction of the improvement to the ditch.
The objecting property owners appealed from the order of the county board of Martin County dated July 3, 1956, accepting the gift of $4,200 and, being in doubt as to their remedy, also brought certiorari at the same time as relators to review the order of the county board. The appeals and certiorari were submitted to the district court without a jury. The district court reversed the order of the county board and remanded the proceedings to the board for dismissal of the petition. This appeal is from the order of the district court.
The principal question involved in the appeal is this: Where in a drainage proceeding it has been determined by judgment on appeal to the district court that the cost of the improvement will exceed the benefits and damages awarded, does the county board, under the provisions of the applicable statutes, have authority to accept a gift for the amount of the difference and thereafter make a valid order establishing the improvement?
1. At the outset it should be noted that drainage proceedings in this state are purely statutory and their validity depends upon a strict compliance with the provisions of the statute by which they are regulated and controlled. State ex rel. Town of Dovray v. Nelson, 145 Minn. 31, 33, 176 N.W. 181, 182; In re Judicial Ditch No. 12, 227 Minn. 482, 36 N.W. (2d) 336, certiorari denied, 337 U.S. 938, 69 S. Ct. 1514, 93 L. ed. 1743; In re Petition for Repair of County Ditch No. 1, Faribault County, 237 Minn. 358, 55 N.W. (2d) 308; In re County Ditch No. 31 and Judicial Ditch No. 13, Faribault County, 244 Minn. 543, 70 N.W. (2d) 853.
2. In considering the question before us it is necessary to keep in mind the intent of the legislature that no order shall be made establishing a drainage system unless the benefits to be derived from such system are greater than the total estimated cost including damages. This is *371 apparent from the clear provisions of § 106.201, subd. 1,[1] and § 106.201, subd. 2.[2] It is also necessary to keep in mind that § 106.631, subd. 3,[3] plainly provides that when there is an appeal from an order of the board relating to benefits determined and damages allowed, the amount awarded by the jury as finally determined "shall stand for and in the place of the amount from which the appeal was taken." Since the provisions to which we have referred are part of a complete statutory scheme designed to govern the establishment of a drainage system and since they relate to the same subject matter, they are in pari materia and should be construed together. Wold v. Bankers Surety Co. 133 Minn. 90, 92, 157 N.W. 998, 999.
3. The effect of the appeals taken in this case was to nullify the original order establishing the improvement. A prerequisite to a valid order establishing the improvement is that the estimated cost, including damages, shall not exceed the estimated benefits. As a result of the appeals, it was determined that the estimated cost including damages exceeded the estimated benefits of the improvement. Accordingly under the plain provisions of § 106.201, subd. 1, and § 106.631, subd. 3, as applied to the circumstances in this case, the county board had no alternative but to dismiss the proceedings.
*372 4. If we are to follow the authorities which hold that statutory provisions relating to ditch proceedings must be strictly construed, we must likewise hold that the county board did not have authority to accept a gift which would take the place of the reduced benefits to the property owners as determined by the jury. As we have pointed out, the judgments on appeal determining that the damages plus the cost of construction exceeded the benefits ended the proceedings. At that point the order establishing the improvement was nullified and the county board was without authority to take any further steps in the proceedings. The gift to the credit of the ditch fund could not revive a proceeding which had legally terminated.
Moreover, it must be kept in mind that provisions of statutes regulating the construction of public drains which are designed for the protection of landowners must be strictly followed. 6 Dunnell, Dig. (3 ed.) § 2821. In this connection it should be noted that § 106.471, subd. 5, provides that repairs which are to be made to the ditch in the future are to be assessed against the land benefited, based upon the original assessment, apportioned on a pro rata basis. See, In re Repair of County Ditch No. 51, Renville County, 244 Minn. 532, 70 N.W. (2d) 329; In re Petition for Repair of County Ditch No. 1, Faribault County, 237 Minn. 358, 55 N.W. (2d) 308; In re County Ditch No. 31 and Judicial Ditch No. 13, Faribault County, 244 Minn. 543, 70 N.W. (2d) 853. The county board's order of July 3, 1956, would create a basis for valuation for purposes of assessments for repairs which would be out of line with the actual facts. For instance, one of the property owners who contributed $1,182 to the fund would pay assessments on the original amount of benefits determined to his property rather than the apparently true valuation, which would include the amount of his gift. On the other hand, property owners whose benefits were reduced would be assessed on the basis of the higher amount fixed by the viewers rather than on the basis of the actual benefits as determined by the appeals to the district court. We are satisfied that the order of the county board creates a basis for future assessments which would give some property owners preferential treatment and would be prejudicial to others. We do not think that it was the intention of the legislature to permit such inequities to result.
*373 5. The appellants here contend that, after the judgments rendered by the district court in the appeals were filed with the county auditor, the respondents should have proceeded in accordance with the provisions of § 106.241. They argue that the appeal to the district court should be dismissed because the respondents have failed to exhaust their administrative remedies. Section 106.241 relates to proceedings to be taken "Subsequent to the establishment of any drainage system, if no bids are received except for a price more than 30 percent in excess of the engineer's estimate, or for a price in excess of the benefits, less damages and other costs * * *." Under such circumstances the statute provides for a review of the proceedings and a referral back to the engineer and the viewers for further consideration. This provision, however, applies only to the situation where, after the establishment of the drainage system, "no bids are received except for a price more than 30 percent in excess of the engineer's estimate, or for a price in excess of the benefits, less damages and other costs * * *." When the appeals were taken to the district court from the order of August 4, 1955, the proceedings were necessarily stayed pending their outcome. Since the order of August 4, 1955, was nullified by the judgments in those appeals, the respondents were under no obligation to pursue a further review before the board.
6. We cannot agree with the appellants that the respondents could not appeal from the order of the commission dated July 3, 1956, by which it accepted a gift of $4,200 from certain of the petitioners and ordered the county auditor and chairman of the county board to proceed to advertise for bids and let contracts for the construction of the improvement. Under the provisions of § 106.631, subd. 4, any party aggrieved by the order of the board "may appeal to the district court of the county where the proceedings are pending from any order made by the county board dismissing the petition for any drainage system or establishing or refusing to establish any drainage system." (Italics supplied.) Since the order of July 3, 1956, purported to establish the improvement, this statute gave the right of appeal to aggrieved property owners. The statute further provides: "The court shall examine the whole matter and receive evidence to determine whether the findings made by the county board can be sustained. * * * If the court *374 finds that the order appealed from is * * * unlawful, * * * it shall make such order to take the place of the order appealed from as is justified by the record before it or remand such matter to the county board for further proceeding before the board."[4] In discussing this provision of the statute in In re County Ditch No. 1-A, Yellow Medicine County, 233 Minn. 12, 16, 47 N.W. (2d) 592, 594, we said:
"* * * Where the court determines that the evidence is inadequate to sustain the board's findings, it may either remand the matter to the county board for further proceedings there or, in the alternative, make such order as it deems justified to take the place of the order appealed from. Clearly, this would authorize the present order of the district court dismissing the proceedings * * * and accordingly it must be affirmed."
Under the circumstances of the case before us we cannot say that the court erred in reversing the order of the county board of July 3, 1956, and remanding the matter to the county board for dismissal of the petition.[5]
Affirmed.
NOTES
[1] M.S.A. 106.201, subd. 1. "If it shall appear that the benefits are not more than the total cost, including damages awarded, or that the proposed system will not be of public benefit and utility, or that the same is not practicable, the board or court shall so find and the petition shall be dismissed."
[2] § 106.201, subd. 2. "If the board or court shall find that the engineer's and viewers' reports have been made and all other proceedings in the matter had in accordance with law, that the estimated benefits are greater than the total estimated cost, including damages, that the damages and benefits have been duly determined, that the proposed drainage system will be of public utility and benefit, and will promote the public health, that the proposed system is practicable, and that such reports as made or amended are complete, just and correct, then the board or court shall by order containing such findings, establish the drainage improvement as reported or amended, and adopt and confirm the viewers' report as made or amended."
[3] § 106.631, subd. 3. "In all cases of appeal, the amount awarded by the jury as finally determined shall stand for and in the place of the amount from which the appeal was taken."
[4] Section 106.631, subd. 5, provides for appeal to the supreme court.
[5] The trial court recognized the problem of the respondents in its memorandum in the following statement: "It is suggested by the respondents that, since the petitioners have already expended large amounts of money and since the improvement is badly needed, as a matter of justice the County Board should be permitted to apply the gift so as to make the establishment of the improvement possible. There is also something to be said for the proposition that, as a matter of justice, the appellants have a right to have the petition dismissed, especially in view of the statutory provision therefor under the circumstances of this case."
| {
"pile_set_name": "FreeLaw"
} |
367 F.2d 857
D. R. KINCAID, LTD., et al., Appellants,v.TRANS-PACIFIC TOWING, INC., et al., Appellees.
No. 20737.
United States Court of Appeals Ninth Circuit.
Oct. 19, 1966.
Robert M. Rothwell, Hoddick, Rothwell & Chang, Honolulu, Hawaii, for appellants
Anthony B. Craven, Frank D. Gibson, Jr., Henshaw, Conroy & Hamilton, Honolulu, Hawaii, for appellees.
Before BARNES, CECIL* and JERTBERG, Circuit Judges.
BARNES, Circuit Judge:
1
This is an appeal from a final decree in admiralty rendered in the United States District Court for the District of Hawaii. The district court had jurisdiction of the case under 28 U.S.C. 1333. This court has jurisdiction of the appeal under 28 U.S.C. 1291.
2
D. R. Kincaid, Ltd. and Thomas A. Giuli, doing business as Kincaid-Giuli Joint Venture (hereinafter 'Kincaid'), were in the process of constructing a loran station on an atoll (known as Kure Island) in the Pacific Ocean for the United States Coast Guard pursuant to a government contract. Kure Island, like many other Pacific atolls, is a stretch of submerged coral reef, round in shape, extending about four nautical miles in each direction, with less than five per cent above water, which five per cent is a sand dune known as Green Island, some twenty feet high and approximately one mile long, located at the southeast circumference line of the atoll. To provide for the landing of materials and equipment, Kincaid chartered tugs and barges, the tugs being used to tow the barges from Hawaii to Midway to Kure. Outside the reef, the tug released the barge to a vessel operated by Kincaid which would tow the barge into a break in the coral near the southwest tip of Green Island to unload. When empty the barge would be towed out by Kincaid and released to the tug for the journey back to Midway and then to Hawaii.
3
When the construction of the loran station was completed, Kincaid was required to remove his equipment from the island. The same process was to be used, except that an empty barge was to be brought from Honolulu and returned loaded with equipment. Kincaid contracted with Trans-Pacific Towing, Inc. and Brokers, Inc. (hereinafter referred to as 'Trans-Pacific') that the eighty foot tug 'Port of Bandon' would tow an empty barge to Kure from Honolulu via Midway and then tow the loaded barge back to Honolulu, again via Midway.
4
The 'Port of Bandon' completed the first half of the contract by delivering the empty barge to Kincaid at Kure Island on April 21, 1961. Kincaid took the barge into the coral break and began loading it, a process apparently requiring more than one or two days. While waiting for the loaded barge to be returned, the 'Port of Bandon' attached itself to a Coast Guart mooring buoy located approximately 600 yards due south from the 'landing' on Green Island. On the morning of April 22 the tug was forced to leave the buoy because of the arrival of a United States Navy tanker, which had 'priority.' The tug then anchored approximately 1200 yards west and slightly north and approximately 400 yards from shore; and remained there for two days.
5
On April 22, 1961, at noon, the Navy tanker left. On April 23, 1961, a Coast Guard boat, 'The Ironwood,' anchored about half way between the buoy and the tug. It left the anchorage on an emergency call the same day. On April 24 the wind and seas changed and the master of the tug, Captain Locy, decided to move to a better anchorage. In the process of weighing anchor the tug struck her bottom on something beneath the water's surface, and began to take water. The tug was beached, and became a total loss. The barge, however, remained to be towed back to Honolulu. Kincaid demanded that Trans-Pacific perform according to the contract, but Trans-Pacific took the position that its performance was excused by the loss of the tug. Kincaid then chartered another tug which returned the barge, and seeks damages for Trans-Pacific's failure to perform. The trial court found that Kincaid had not proved by a preponderance of the credible evidence that the negligence of the master of the tug had caused the loss of the tug. The court then found that the provisions of the contract with regard to the loss of the vessel excused further performance by Trans-Pacific and entered judgment for the respondent.
6
I. The Exculpatory Provisions.
7
Both parties have argued strenuously about the effectiveness of paragraph 13 of their contractual agreement. Paragraph 13 is exculpatory in its language, and a fair reading of its terms shows that it is in essence a release of Trans-Pacific by Kincaid from any liability for damages arising from the loss of the vessel from any cause, including Trans-Pacific's negligence. Appellants argue that such a release of negligence provision is invalid as contrary to public policy. Appellees take the position that the provision is valid and enforceable. It is our conclusion that this exculpatory provision is invalid as offensive to the sound public policy recognized in the decisions of the Supreme Court of the United States and followed consistently in this circuit.
8
We need look no further for authority than the recent case of Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). In that case the Supreme Court, affirming a tradition going back to The Steamer Syracuse, 12 Wall. 167, 79 U.S. 167, 20 L.Ed. 382 (1871), concluded that a provision releasing the towing vessel from all liability for its negligence is invalid as contrary to an established judicial rule. The decisions of this court have been in accord. E.g., Alaska Commercial Co. v. Williams, 128 F. 362 (9th Cir. 1904); Mylroie v. British Columbia Mills Tug and Barge Co., 268 F. 449 (9th Cir. 1920), aff'd 259 U.S. 1, 42 S.Ct. 430, 66 L.Ed. 807 (1922). Since the contract provision was void to the extent that it limited liability for negligence, we proceed to the real point of this case, 'was there negligence in the handling of the tug 'Port of Bandon'?'
9
II. The Alleged Negligence.
10
Appellants recognize the fact that the burden was upon them, as libellants in the trial court, to prove by a preponderance of the evidence that the loss of the tug 'Port of Bandon' was proximately caused by Trans-Pacific's negligence. The trial court found that the appellants had not done so, and the appellants urge reversal on the ground this finding was error.
11
There are no express findings as such, but we conclude from a careful reading of the entire testimony and the court's opinion that the only negligence charged against Captain Locy of tug 'Port of Bandon' was conduct occurring after the tug left the Navy buoy. He then anchored the tug in sixty feet of water approximately 1200 yards west, and slightly north of the buoy, on a compass line 288 degrees T (or true) from the mooring buoy. A Danforth anchor and about 400' of wire (not chain) were dropped. This was in the lee of the reef and Green Island, at a time when the wind was from the E.N.E., blowing at approximately ten to twenty knots.
12
Various combined legal and factual questions are raised as to what specific negligence was charged or attempted to be proved:
13
(1) Was Captain Locy, acting for appellees, negligent in choosing the spot to anchor, and in anchoring, his tug, after moving from the Navy buoy?
14
(2) Was Captain Locy negligent in not obtaining charts, in not looking at those charts, in the observations made, in the watch maintained, and in the care taken generally to reasonably insure the safety of his tug at such anchorage from noon on April 22, 1961 to the time the wind changed on April 24th, 1961?
15
(3) Was Captain Locy negligent in not taking compass bearings (i.e., with only a hand peloris, were visual bearings sufficient, and were they made)?
16
(4) Was Captain Locy negligent in not going back to the Navy mooring buoy after the Navy tanker left it vacant on April 23rd, 1961, or the morning of April 24th?
17
(5) Was Captain Locy warned by appellants' foreman Smith after the wind started coming up, to go back to the buoy, and, if so, was he negligent in not doing so?1
18
(6) When did the wind change from E.N.E. to E. or E. by S.; and, in view (a) of its change of direction, (b) of the ship's pivotal movement about the anchor, (c) the increase in the wind's velocity, (d) the increase in the size of seas and swells, (e) the shift to the east of seas and swells, (f) the tug's loss of the lee of Green Island, (g) the fact that the stern of the tug swung toward the reef; (h) the necessity of slacking the anchor line before taking it in-- was Captain Locy negligent in failing to 'dog it,' i.e., in failing to move his tug farther to sea from the reef, either to the mooring buoy or to the recommended mooring?In answering these questions, we again state that this court is fully aware the trial judge has wide discretion. Here, he pointed out in his opinion the lack of Captain Locy's experience in towing in tropical areas; his lack of experience in anchoring in coral; his mistake as to when he took photographs; his 'strange lack of memory on many details' (C.T. p. 127), his lack 'of adequate preparation for his testimony' (C.T. p. 128). Yet 'the court believes that Captain Locey was an honest witness, notwithstanding his apparently poor memory and apparent lack of preparation for the trial.' (C.T. p. 128.)
19
A conclusion as to a witness' honesty, of course, is entirely within the province of the trier of fact. He must weigh and determine. With the opportunity the trial court has to judge the credibility of witnesses testifying before him, we, as an appellate court, should not interfere, irrespective of our own opinion as to where the preponderance of evidence might be, unless we are convinced a serious mistake has been made.
20
We are concerned with three statements appearing in the trial judge's opinion, which were the basis of his finding of 'no negligence.' The first and most vital is this:
21
'The tug was on the lee side of the island (Green) protected from the wind, until about noon on April 24, 1961, when the wind got stronger and shifted so that, in order to avoid any danger of being blown ashore, the Captain, Wayne Locey, decided to raise anchor and move.' (C.T. p. 126.)
22
The testimony in the record is uncontradicted that the wind started to get stronger and shifted, at least by daybreak2 (not at noon), on April 24, 1961.
23
The tug stayed on its anchorage until about 1:00 p.m. April 24, 1961. If the wind came up at daybreak, the Captain had six or seven hours to observe, judge, and act. If it came up at about noon he had an hour, or less. How much this misstated fact influenced the trial court's conclusion, we cannot know.
24
Second: 'There is no reliable or presuasive evidence that the tug dragged its anchor. * * *' (C.T. p. 127.) There is evidence that Locy thought it did. Exhibit G, the report of the Coast Guard investigation, discloses that 'Because the wind and sea had picked up and the master thought they might be dragging anchor, he decided to haul in the anchor and either move out to sea or anchor in the lee of the atoll.' On the trial, Locy denied his anchor dragged.3 (R.T. p. 164.) Of course, if this conflict was decided by the trial court by balancing the evidence, then such finding of fact is ordinarily controlling on this court.
Third: The court's opinion stated:
25
'Assuming, for the purpose of discussion, and without inferring it to be true, that Captain Locey was negligent in anchoring where he did on April 22, 1961, such assumed negligence would have related only to the danger of the tug's being blown on the reef. But the evidence strongly indicates that the tug was not blown onto the reef. Although the evidence does not disclose exactly what solid object was encountered by the tug, most probably it was a coral head. It does not appear that the danger of striking a coral head was any greater in the place Captain Locey chose to anchor, than, for example, in the area of the Coast Guard buoy. * * *' (C.T. p. 128.)
26
Whether the tug hit the reef or a coral head or any other unidentifiable object, the tug hit something projecting from the depths which it would not have hit had Captain Locy decided to run for it-- to 'dog it'-- to go to the open sea, before his tug was close to danger.4 An anchorage to the mooring buoy would be farther at sea (by 150 yards) than the 450 yard anchorage, and hence less dangerous. Thus, assuming negligence, we cannot dispose of the issue of proximate cause as readily as it was done in the trial court.
27
Perhaps the statement by Locy at the trial that he did not drag his anchor was more persuasive than his statement to the Coast Guard immediately after the accident; and perhaps Captain Locy need not have considered running to the open sea, but should have, in the required exercise of due care, only have 'run' from his point at the shore end of his 400' anchor line (anchored 450 yards from the barrier reef) to the mooring buoy, anchored 600 yards from that barrier. The determination of these matters, is within the sound discretion of the trial court. But in view of the inaccurate statement of fact, appearing in the court's opinion as to when the wind changed (a matter which we believe to be the single most important fact in determining the issue of negligence), we feel we must, and do, reverse and remand for a new trial.
28
We do not disturb the trial court's conclusion that when Trans-Pacific decided to take advantage of its right to terminate the contract by reason of the loss of its tug, it abandoned its right to layover time. The denial of the counterclaim is affirmed.
29
Remanded.
*
Lester L. Cecil, Senior Circuit Judge, Sixth Circuit, sitting by designation
1
Smith told Locy on April 23, 1961: 'I think you're being a damn fool.' (R.T. p. 21.) Smith testified he told him that he felt he (Locy) was too close to the reef. (R.T. p. 21.) Locy 'did not recall' any such warning (R.T. p. 184), although he did have conversations with Smith (R.T. p. 182), and does not deny he may have had such a conversation with Mr. Smith. (R.T. p. 185, lines 4-6.)
2
The 'daylight' change in velocity and directional shift of wind is twice mentioned as a fact in Exhibit G-- the Coast Guard Investigation Report. Smith (the only eye witness at the trial, other than Locy), testified the changes occurred at or before daylight. (R.T. p. 19.) So did Captain Locy. (R.T. p. 164.)
3
When questioned about his statemtnt to the Coast Guard about whether the anchor was dragging, Locy said:
'Q. * * * the Coast Guard report we are referring to states as follows: 'Because the wind and sea had picked up and the master thought they might be dragging anchor he decided to haul in the anchor and either move out to sea or anchor in the lee of the atoll.' At that time, did you think you might be dragging anchor?
'A. I was beginning to get worried that we were going to stat dragging anchor, and the seas were picking up. It was getting to be very uncomfortable. Also, that there was, also, the posibility that we would start dragging anchor very shortly.
'Q. Did you feel that you were already dragging?
'A. I don't recall if we had drug materially, no.
'Q. I will try again, Captain. Did you feel that you had dragged anchor at all since you had first put down the anchor?
'A. To my knowledge, at this time, I don't recall of it, no.' (R.T. p. 219, lines 4 to 22.)
4
This was one of the safety measures Locy agrees he could have taken. The only expert testimony was that Captain Locy should have 'run' when the wind changed at daylight. (R.T. p. 119.)
| {
"pile_set_name": "FreeLaw"
} |
Case: 16-16580 Date Filed: 06/21/2018 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16580
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cv-21854-RNS
FREDDIE APONTE,
Plaintiff - Appellant,
FANNY APONTE,
Plaintiff,
versus
ROYAL CARIBBEAN CRUISE LINES LTD.,
Defendant,
ROYAL CARIBBEAN CRUISES LTD.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 21, 2018)
Case: 16-16580 Date Filed: 06/21/2018 Page: 2 of 13
Before WILLIAM PRYOR, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Freddie Aponte sued Royal Caribbean Cruises, Ltd. (“Royal Caribbean”), to
recover damages for injuries after he slipped and fell on a puddle of soap in the
restroom of one of Royal Caribbean’s cruise ships. The district court granted
summary judgment to Royal Caribbean, and Aponte appealed. Because genuine
issues of material fact remain in the record, we vacate and remand.
I.
We begin by summarizing the facts in the light most favorable to Aponte.1
Aponte and his wife Fannie were passengers on the Royal Caribbean cruise ship
Freedom of the Seas in May 2014. Late one evening, Aponte and Fannie went to
an upper deck (Deck 5) to get a snack. When they reached the top of the stairs,
Aponte decided to use the restroom.
As Aponte entered the Deck 5 restroom, he saw to his left a crewmember
standing at the sink nearest the door (the “first sink”), dumping water into the sink
from a small, red bucket. Aponte walked past the crewmember and the restroom’s
four sinks—all to his left—to the urinals. He saw nothing on the ground as he
went. The crewmember left the restroom while Aponte was at the urinal. During
1
“[F]or summary judgment purposes, our analysis must begin with a description of the
facts in the light most favorable to the plaintiff.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.
2002).
2
Case: 16-16580 Date Filed: 06/21/2018 Page: 3 of 13
this time, Aponte did not hear any noise other than the door opening and closing.
Notably, he did not hear anything fall to the floor.
Aponte washed his hands in the sink nearest the wall that divided the sinks
from the urinals (the “last sink”). He then decided to use the paper towel dispenser
near the first sink instead of the air dryer to his right. He turned to his left and
started walking toward the dispenser. As he reached out to grab a towel, he slipped
and fell, hitting the countertop with his arm on the way down and then landing on
the floor on his lower back. After he fell, he saw on the floor a puddle of soap
roughly one-and-a-half feet in diameter and a plastic soap bottle. The bottle was
roughly one foot tall and three inches in diameter.
Aponte sued Royal Caribbean, alleging a single count of negligence. 2 He
claimed that, as a result of the accident, he sustained injuries to his neck and back,
which ultimately required two surgeries. He also testified that he suffered nerve
injuries to his right arm that affected him from his wrist to his neck.
On cross-motions for summary judgment, the district court granted Royal
Caribbean’s motion and denied Aponte’s motion. The court determined that Royal
Caribbean was not negligent because there was no evidence that it had notice of
the puddle of soap and because the puddle of soap was an open and obvious
2
Fannie brought a claim for loss of consortium, which the district court dismissed and
which is not raised on appeal. Accordingly, we deem this claim abandoned. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014).
3
Case: 16-16580 Date Filed: 06/21/2018 Page: 4 of 13
condition. The court also found that Aponte “likely” could not establish a causal
link between the fall and his injuries. Aponte now appeals.
II.
Initially, we address a question of the district court’s subject-matter
jurisdiction. See Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee Univ.,
663 F.3d 1304, 1304 (11th Cir. 2011) (“We are obligated to raise concerns about
the district court’s subject matter jurisdiction sua sponte.”). We asked the parties
to address on what basis the court exercised jurisdiction—whether diversity
jurisdiction, 28 U.S.C. § 1332, or admiralty jurisdiction, 28 U.S.C. § 1333—and
whether that basis was adequately alleged in the complaint. After reviewing the
parties’ responses, we conclude, as both parties now agree, that the complaint
invoked and established admiralty jurisdiction.
The district court had admiralty jurisdiction because (1) the alleged tort
occurred on navigable waters, (2) the incident (i.e., injury on a cruise) has the
potential to disrupt maritime commerce, and (3) the general activity giving rise to
the incident (i.e., transporting passengers on a cruise ship) has a substantial
relationship to traditional maritime activity. See Doe v. Celebrity Cruises, Inc.,
394 F.3d 891, 900 (11th Cir. 2004). The complaint’s ineffective jury demand does
not deprive the court of jurisdiction. Cf. St. Paul Fire & Marine Ins. Co. v. Lago
Canyon, Inc., 561 F.3d 1181, 1188 (11th Cir. 2009) (concluding, in an admiralty
4
Case: 16-16580 Date Filed: 06/21/2018 Page: 5 of 13
case, that the court did not err in striking a demand for a jury trial). And the
complaint did not need to comply with Rule 9(h), Fed. R. Civ. P., because that rule
applies only when “both admiralty and some other ground of federal jurisdiction
exist.” Id. Here, the parties are not diverse, so § 1333 is the sole basis for
jurisdiction. With the district court’s jurisdiction established, we turn now to the
merits of the court’s ruling.
III.
We review a district court’s grant of summary judgment de novo,
considering the facts and drawing reasonable inferences in the light most favorable
to the non-moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir.
2009). Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “[G]enuine disputes of facts are those in
which the evidence is such that a reasonable jury could return a verdict for the non-
movant.” Mann, 588 F.3d at 1303 (quotation marks omitted).
We review a district court’s application of its local rules for an abuse of
discretion, finding such abuse only when the plaintiff demonstrates that the district
court made a clear error of judgment. Id. at 1302.
A.
5
Case: 16-16580 Date Filed: 06/21/2018 Page: 6 of 13
We first consider the district court’s apparent decision to exclude certain
evidence cited by Aponte in his response to Royal Caribbean’s motion for
summary judgment under Northern District of Georgia Local Rule 56.1.
Local Rule 56.1 “demands that the non-movant’s response contain
individually numbered, concise, non-argumentative responses corresponding to
each of the movant’s enumerated material facts.” Mann, 588 F.3d at 1302–03
(holding that plaintiffs’ response failed to comply with local rule 56.1 because it
was “convoluted, argumentative, and non-responsive”); see also N.D. Ga. R.
56.1(B)(2)a. In applying Local Rule 56.1 at the summary judgment stage, the
district court should “disregard or ignore evidence relied on by the respondent—
but not cited in its response to the movant’s statement of undisputed facts—that
yields facts contrary to those listed in the movant’s statement.” Reese v. Herbert,
527 F.3d 1253, 1268 (11th Cir. 2008).
A Local Rule 56.1 statement, however, “is not itself a vehicle for making
factual assertions that are otherwise unsupported in the record.” Mann, 588 F.3d at
1303. Therefore, we must still review the materials submitted by the movant “to
determine if there is, indeed, no genuine issue of material fact.” Id. That is, even
where a summary-judgment motion is unopposed or deemed unopposed, the
moving party still bears the burden of showing, based on evidence in the record,
that it is entitled to judgment as a matter of law. Id. In evaluating whether an
6
Case: 16-16580 Date Filed: 06/21/2018 Page: 7 of 13
unopposed summary-judgment motion should have been granted, we “confine our
review of the record to the materials submitted by the [defendant]” in support of its
motion. Id.; Reese, 527 F.3d at 1269 n.26.
In this case, the district court noted multiple instances of Aponte’s failure to
properly oppose Royal Caribbean’s statement of material facts. In some instances,
Aponte’s denial of a fact was paired with a citation to the entirety of a deposition,
rather than with “specific citations to evidence (including page or paragraph
number).” See N.D. Ga. R. 56.1(B)(2)a.(2); Doc. 82 at 4, ¶ 22 (“Denied. . . . (See
[Jamani] Stephen and Corporate Representative’s deposition)”); id. at 5, ¶ 25
(“Denied – disputed fact. (See Corporate Representative deposition)”). In other
instances, Aponte included argumentative statements that did not directly respond
to the fact at issue. See N.D. Ga. R. 56.1(b)(2)a.(2); Doc. 82 at 5, ¶ 31 (“[T]his is
an improper basis to challenge causation as this is a matter of proof for the jury,
and which is supported by Rule 26 disclosures and reports.”).
The district court did not disregard Aponte’s response as a whole, however.
Rather, the court disregarded Aponte’s cited evidence when his response to one of
Royal Caribbean’s facts was inadequate. Altogether, it appears that the court did
not consider three pieces of evidence: (1) the deposition of Jamani Stephen, a
member of the custodial staff on the Freedom of the Seas; (2) the full deposition of
Royal Caribbean’s corporate representative; and (3) a Rule 26 expert report from
7
Case: 16-16580 Date Filed: 06/21/2018 Page: 8 of 13
Dr. Nizam Razack, who opined that Aponte needed surgery as a result of the
injuries he sustained on the cruise ship in May 2014.
We cannot conclude that the district court clearly erred in excluding this
evidence for non-compliance with Local Rule 56.1. See Mann, 588 F.3d at 1302–
03. In conducting our review of the court’s summary-judgment ruling, therefore,
we largely “confine our review of the record to the materials submitted by [Royal
Caribbean]” in support of its summary-judgment motion. 3 See id. at 1303. While
Aponte denies that his response was inadequate under Local Rule 56.1, he also
argues that summary judgment was still inappropriate even if we look solely to the
materials submitted by Royal Caribbean. We consider that question now.
B.
Maritime law governs the liability of a cruise ship for a passenger’s slip and
fall. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015). To
prevail on a maritime negligence claim, a plaintiff must show that “(1) the
defendant had a duty to protect the plaintiff from a particular injury; (2) the
defendant breached that duty; (3) the breach actually and proximately caused the
plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival
Corp., 693 F.3d 1333, 1336 (11th Cir. 2012).
3
Besides the excluded evidence and Aponte’s own deposition, which Royal Caribbean
submitted with its motion, Aponte’s response cited just a few other exhibits, including a
photograph of the restroom. These additional exhibits are not material to our decision.
8
Case: 16-16580 Date Filed: 06/21/2018 Page: 9 of 13
“Under maritime law, the owner of a ship in navigable waters owes
passengers a duty of reasonable care under the circumstances.” Sorrels, 796 F.3d
at 1279 (quotation marks omitted). That standard requires “as a prerequisite to
imposing liability, that the carrier have had actual or constructive notice of the
risk-creating condition.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322
(11th Cir. 1989). Regardless of notice, however, there is no duty to warn of
dangers that are open and obvious. See, e.g., Deperrodil v. Bozovic Marine, Inc.,
842 F.3d 352, 357 (5th Cir. 2016); Samuels v. Holland Am. Line-USA, Inc., 656
F.3d 948, 954 (9th Cir. 2011). Therefore, a cruise-ship operator is not liable if it
did not have notice of the danger or if the danger was open and obvious. See
Keefe, 867 F.2d at 1322; Deperrodil, 842 F.3d at 357.
In granting Royal Caribbean summary judgment, the district court made two
key determinations. First, the court found that Royal Caribbean did not have actual
or constructive notice of the puddle of soap. While Aponte saw a crewmember in
the restroom, the court explained, there was no evidence establishing whether the
puddle was on the floor while the crewmember was there or whether the
crewmember was aware of the puddle or the soap bottle. Second, the court found
that Royal Caribbean had no duty to warn because there was “no dispute that the
puddle of soap was open and obvious,” citing Aponte’s testimony that he
“obviously” would have seen the puddle on the floor had he looked at it.
9
Case: 16-16580 Date Filed: 06/21/2018 Page: 10 of 13
We conclude that there are genuine issues of material fact with respect to
both matters. With regard to notice, a reasonable factfinder could conclude that the
puddle of soap was on the floor before Aponte entered the restroom and while the
crewmember was at the sink. Given Aponte’s description of the soap bottle
(roughly one foot tall and three inches in diameter) and the amount of soap on the
floor (roughly one-and-a-half feet in diameter), it is reasonable to infer both that
the soap on the floor came from the bottle and that Aponte would have heard the
relatively large bottle hitting the floor if it had fallen while he was in the restroom.
Yet Aponte testified that he did not hear anything hit the floor or any noise other
than the door opening and closing when the crewmember left the restroom. These
facts suggest that the soap bottle had fallen to the floor before Aponte entered the
restroom and that the puddle of soap was present on the floor while the
crewmember was dumping water into the first sink.
Further, a reasonable factfinder could conclude that the crewmember knew
or should have known about the puddle of soap. Aponte testified that the
crewmember was standing at the first sink. He also testified that he slipped on the
puddle of soap while reaching out to grab a towel at the dispenser to the left of that
same sink. These facts place the crewmember in the immediate vicinity of a
puddle of soap that was one-and-a-half feet in diameter. Drawing all reasonable
inferences in Aponte’s favor, a factfinder could conclude that the crewmember
10
Case: 16-16580 Date Filed: 06/21/2018 Page: 11 of 13
knew or should have known about the puddle of soap at his feet and either
removed the hazard or warned Aponte of it. Cf. Alterman Foods, Inc. v. Ligon,
272 S.E.2d 327, 330 (Ga. 1980) (“In some cases the proprietor may be held to have
constructive knowledge if the plaintiff shows that an employee of the proprietor
was in the immediate area of the dangerous condition and could have easily seen
the substance and removed the hazard.” (quotation marks omitted)).
We also conclude that there is a genuine issue of material fact as to whether
the condition was open or obvious. To determine whether a condition is open and
obvious, we ask whether a reasonable person would have observed the condition
and appreciated the nature of the condition. See Lancaster v. Carnival Corp., 85
F.Supp.3d 1341, 1345 (S.D. Fla. 2015); Lugo v. Carnival Corp., 154 F.Supp.3d
1341, 1345–46 (S.D. Fla. 2015).
Here, a reasonable factfinder could conclude that the puddle of soap was not
open and obvious to a reasonable person. Aponte described a “clearish” puddle of
soap on the tile of the restroom floor in the area immediately in front of the sinks.
He testified that he did not see anything on the floor when he walked past that area
to the urinals and that he was not looking at the floor when he slipped because he
was looking at and reaching for the paper towel dispenser. Although Aponte
testified that he “obviously” would have seen the puddle of soap if he had looked
directly at it, the fact that the puddle of soap was capable of being observed does
11
Case: 16-16580 Date Filed: 06/21/2018 Page: 12 of 13
not necessarily make it open and obvious to a reasonable person. What a plaintiff
actually perceives is, of course, relevant to the determination of what a reasonable
person would perceive under the same circumstances. But Aponte did not testify
that he saw the puddle and still stepped in it. Rather, his testimony was that he did
not see anything on the floor of the restroom until after he slipped. We cannot
conclude, as a matter of law, that a reasonably prudent person through the exercise
of common sense and the ordinary use of his senses would have clearly seen the
“clearish” puddle of soap on the floor.
Beyond issues of notice and whether the condition was open and obvious,
the district court briefly addressed whether Aponte could establish a causal link
between his fall and his current injuries. The court stated that Royal Caribbean
“likely . . . would prevail on its argument that Aponte failed to show causation.”
But the district court did not actually find that Royal Caribbean met its initial
burden at summary judgment on that issue. See Mann, 588 F.3d at 1303.
Royal Caribbean responds that we can affirm on any ground supported by
the record, and, in its view, it was clearly entitled to summary judgment. We are
not so sure, however. Royal Caribbean’s evidence—the deposition of Dr. Scott
Sherman, who treated Aponte before and after the accident—related to Aponte’s
back and neck injuries and did not address his claimed nerve injuries to his right
arm. In addition, there was some indication from the doctor’s testimony that
12
Case: 16-16580 Date Filed: 06/21/2018 Page: 13 of 13
Aponte’s back problems worsened after the accident, though perhaps not
significantly so. The court also did not decide whether Aponte’s injuries were of
the type requiring expert testimony to establish a causal link or whether a lay jury
could decide the matter based on common knowledge. Given the ambiguities and
unresolved issues in the record, and consistent with our general practice, we
decline to decide this matter in the first instance. See Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1322 & n.4 (11th Cir. 2001) (noting our preference for the district
court to address issues in the first instance).
IV.
For the reasons stated, we vacate the grant of summary judgment in favor of
Royal Caribbean and remand for further proceedings consistent with this opinion.4
VACATED AND REMANDED.
4
Because we find a genuine issue of material fact as to whether Royal Caribbean had
notice of the dangerous condition, we need not and do not consider Aponte’s alternative
argument for holding Royal Caribbean liable in the absence of notice.
13
| {
"pile_set_name": "FreeLaw"
} |
Cite as 2015 Ark. App. 29
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-14-81
HOWARD GRAHAM, D.G. GRAHAM, OPINION DELIVERED JANUARY 28, 2015
JR., NETTIE WHITLOW, BETTY
WILLIAMS, TRAVASTINE AUSTINE,
BLANCHE LUMPKIN, D.K. GRAHAM,
SR., WILLIE PITTARD, LISA APPEAL FROM THE DESHA
McGOWAN, and DANIEL GRAHAM, COUNTY CIRCUIT COURT
JR. [NO. CV-2012-80-3]
APPELLANTS
V.
HONORABLE DOUG SCHRANTZ,
JUDGE
STEVEN ARZO FRENCH, WILLIE LEE
GRAHAM, RUTH ANN GRAHAM,
VESSIE HUDSON, AHIGA HUDSON,
VELMA WOODS, and MAMIE BEAL AFFIRMED
APPELLEES
ROBERT J. GLADWIN, Chief Judge
On September 30, 2013, the Desha County Circuit Court dismissed appellants’
complaint to set aside a sale and cancel a deed. On appeal appellants argue that they have
standing to bring the suit and that they have alleged facts sufficient to state a cause of action.1
We affirm the circuit court’s order dismissing the complaint.
Willie Morse Graham bequeathed 180 acres in Desha County, Arkansas, to her nine
children. Her will stated that the bequeathed property was “to be considered family property
1
This is the second time this appeal has been presented, as rebriefing was ordered on
October 29, 2014, due to omissions in the appellate brief. Graham v. French, 2014 Ark. App.
578.
Cite as 2015 Ark. App. 29
and [could] only be sold by an agreement of all of [her] surviving children.” Six of the nine
children requested a partition of the 180 acres in a 2005 lawsuit filed in Desha County
Circuit Court (Graham I),2 and three children objected to the partition action. Steven Arzo
French was allowed to intervene in Graham I because he was the holder of a lease on the
subject property. Graham I ended with the trial court finding that Willie Graham’s will
provision violated the rule against unreasonable restraints at common law. However, the trial
court found that the will’s terms were consistent with Arkansas Code Annotated section 18-
60-413 (Repl. 2003) regarding partition, which should be strictly construed. Section
18-60-413 requires that no partition or sale of land devised by any last will and testament
shall be made contrary to the intention of any testator. Thus, the trial court denied the
partition complaint in Graham I as contrary to Willie Graham’s will.
On August 17, 2012, appellant Howard Graham, the child of D.G. Graham, who was
one of the nine children of Willie Graham, filed the complaint herein against appellees, the
six heirs of Willie Graham who had sought partition in Graham I and Steven Arzo French.
Appellants sought to set aside a sale and cancel a deed claiming that appellees had acted
contrary to the order entered January 8, 2007, in Graham I by conveying through warranty
deed to Steven Arzo French their undivided 8/9 interest in the 180 acres. Appellants sought
cancellation of the deed as violative of Graham I.
On October 18, 2012, appellees, grantors to the warranty deed, filed a motion to
dismiss alleging that the complaint failed to state facts upon which relief could be granted
2
Graham v. Graham, CIV 2005-212-1, Desha County Circuit Court.
2
Cite as 2015 Ark. App. 29
pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2012). Appellees argued that the
provision of Willie Morse Graham’s will at issue only prevents a sale unless consented to by
“an agreement of all of my surviving children.” They claimed that the surviving children
were named in the will. They argued that Howard Graham, plaintiff, was not a surviving
child, but an heir to D.G. Graham, deceased child of Willie Graham. Therefore, they claim,
Rule 12(b)(6) applied because Howard Graham had no standing to contest the deed he
wanted to set aside. Further, appellees argued that even if Howard Graham could establish
an ownership interest in the property, he would continue to enjoy his undivided share and
any rights of co-tenancy that he ever had. Appellees argued that the deed he wanted set
aside did nothing to change the nature of his ownership interest.
A judgment was filed on September 30, 2013, wherein the trial court considered
appellants’ contention that the grandchildren, or heirs of D.G. Graham, had to consent to
the sale under the provisions of Willie Graham’s will. The trial court determined that the
restriction on the right of alienability was given to her surviving children and that this power
was personal to only those surviving children and not to other heirs. Next, the trial court
considered Arkansas Code Annotated section 18-60-413 and determined that the statute
limits petitions “under this act” to “any persons having any interest in, and desiring a division
of, land held in joint tenancy, in common . . .” The court found that there was no desire
to divide land in the 2007 conveyance to French; instead, there was a conveyance of
undivided shares. Thus, the trial court found no partition, as the conveyance was of the
undivided interest of the heirs, except for D.G. Graham. D.G. Graham’s heirs retained their
3
Cite as 2015 Ark. App. 29
respective undivided interests. Therefore, the trial court dismissed the complaint and
amended complaint with prejudice. Appellants filed a timely notice of appeal, and this appeal
followed.
The proper standard of review of the circuit court’s order is that of a motion for
summary judgment. Rule 12(b) of the Arkansas Rules of Civil Procedure states:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent to such
a motion by Rule 56.
Ark. R. Civ. P. 12(b). Appellants included with their complaint several exhibits, which the
trial court did not exclude from its consideration when it dismissed their complaint with
prejudice. Therefore, the trial court considered matters outside of the pleadings, and the
motion to dismiss was converted to a motion for summary judgment. Morgan v. Turner, 2010
Ark. 245, 368 S.W.3d 888.
Ordinarily, upon reviewing a court’s decision on a summary-judgment motion, we
would examine the record to determine if genuine issues of material fact exist. However, in
a case such as this one, which does not involve the question of whether factual issues exist
but rather an issue of law, we simply determine whether appellees were entitled to judgment
as a matter of law. Smith v. Rebsamen Med. Ctr., Inc., 2012 Ark. 441, 424 S.W.3d 876.
I. Standing
Appellants contend that they have standing to bring this action as heirs of D.G.
Graham. Appellants argue that a claimant who has a personal stake in the outcome of a
4
Cite as 2015 Ark. App. 29
controversy has standing. Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264
S.W.3d 465 (2007). Appellants assert that D.G. Graham was a listed surviving child in Willie
Graham’s last will and testament. Appellants are D.G. Graham’s heirs, and his devise from
Willie Graham passed to them. Appellants contend that they therefore have a personal stake
in the outcome of this controversy and standing to bring this action.
We agree with appellants’ contention that they have standing in this action.
However, the trial court did not make a finding that appellants had no standing. Instead, the
trial court ruled as follows:
In Willie Morse Graham’s Last Will, she specifically named her nine children. She
limited the restriction upon the right of alienability of the sale of the 180 acres to her
surviving children. The Court concludes that this power was personal to only the
surviving children and not to other heirs.
Inasmuch as appellants are seeking to appeal the trial court’s finding that they do not have
the power to restrict the sale of the 180 acres, we do not find appellants’ arguments
convincing. Appellees contend, and we agree, that setting aside the deed conveying the 8/9
interest to French will in no way benefit appellants. Appellants will have the same collective
1/9 interest they had before their complaint was filed and after this suit is over, regardless of
the outcome of the litigation.
Also, appellees contend that the trial court found that the provision in Willie
Graham’s will that appellants are trying to enforce does not include appellants because they
are not children of Willie Graham, but grandchildren. Therefore, because appellants are not
“surviving children,” they have no right to restrict an alienation pursuant to the will.
Appellants have not shown where the trial court misinterpreted the will; thus, appellants have
5
Cite as 2015 Ark. App. 29
not met their burden of demonstrating error. Finally, because this is not a partition action,
Arkansas Code Annotated section 18-60-413 does not apply. Thus, a tenant in common is
not prohibited from conveying his undivided interest in real property pursuant to this
section.
II. Sufficiency of Complaint
Appellants argue that the trial court’s dismissal of their complaint was in error because
they pled sufficient facts to entitle them to the requested relief. The complaint alleged that
the conveyance to French was unlawful in light of the January 8, 2007 trial court order in
the 2005 partition lawsuit. Also, appellants assert that their complaint alleged that Willie
Graham wanted the property to remain in the family unless the surviving children agreed
otherwise. Finally, the complaint alleged that the option contract to purchase the land was
void because the terms of the will prohibited any conveyance absent unanimous consent of
the nine devisees. In reference to the partition statute, appellants cited American Fidelity Fire
Insurance Co. v. Builders United Construction, Inc., 272 Ark. 179, 613 S.W.2d 379 (1981),
where the Arkansas Supreme Court affirmed the lower court’s grant of summary judgment
on the grounds that contracts in violation of a statute are void even though not expressly
declared so. Because appellants neither offer convincing argument nor cite applicable law
to support their arguments, our review is precluded. Adams v. Adams, 2014 Ark. App. 67,
432 S.W.3d 49.
Affirmed.
VIRDEN and HIXSON , JJ., agree.
6
Cite as 2015 Ark. App. 29
McKissic & Associates, PLLC, by: Jackie B. Harris, for appellants.
Stephen L. Tisdale, P.A., by: Stephen L. Tisdale; Melinda French; and William L. Owen,
P.A., by: William L. Owen, for appellees.
7
| {
"pile_set_name": "FreeLaw"
} |
963 N.E.2d 1118 (2012)
INDIANA-KENTUCKY ELEC. CORP.
v.
SAVE THE VALLEY, INC.
Not in source.
Supreme Court of Indiana.
February 7, 2012.
Transfer granted.
| {
"pile_set_name": "FreeLaw"
} |
766 N.W.2d 831 (2009)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Julian Lee NELSON, Defendant-Appellant.
Docket No. 138355. COA No. 281662.
Supreme Court of Michigan.
June 23, 2009.
Order
On order of the Court, the application for leave to appeal the January 8, 2009 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
| {
"pile_set_name": "FreeLaw"
} |
62 F.3d 1433
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Edward L. GUSSIN, Plaintiff-Appellant,v.NINTENDO OF AMERICA, INC., Defendant-Appellee.
No. 95-1051.
United States Court of Appeals, Federal Circuit.
Aug. 3, 1995.
Before RICH, LOURIE, and BRYSON, Circuit Judges.
DECISION
LOURIE, Circuit Judge.
1
Edward L. Gussin appeals from an order of the United States District Court for the Central District of California granting summary judgment that claims 1 and 2 of United States Patent 4,782,335 were not infringed by Nintendo of America, Inc. Gussin v. Nintendo of Am., Inc., 33 USPQ2d 1418 (C.D.Cal.1994). Because we agree that Gussin's "Statement of Genuine Issues of Material Fact" was deficient, the court's finding of lack of literal infringement was based on a proper construction of claims 1 and 2, and prosecution history estoppel prevents a finding of infringement under the doctrine of equivalents, we affirm.
DISCUSSION
2
Gussin was granted U.S. Patent 4,782,335 (the '335 patent) entitled "Video Art Electronic System" on November 1, 1988.1 The invention is directed to an electronic system for drawing and coloring pictures on a conventional television monitor. A user operates the system using three controls. The first moves a drawing cursor on the screen; the second turns the drawing function on and off; and the third determines the color of the drawing when the drawing function is turned on.
3
Nintendo sells the "Super Nintendo Entertainment System" (SNES), a home video game system that allows a user of the system to play an assortment of video game cartridges on an ordinary television monitor. One such game cartridge that Nintendo developed is "Mario Paint." Like Gussin's invention, the Mario Paint cartridge and the SNES allow a user to draw and color pictures on a television monitor. In addition, the Mario Paint cartridge allows the user to compose music and animate pictures.
4
On July 21, 1993, Gussin sued Nintendo for infringement of claims 1 and 2 of the '335 patent. Claims 1 and 2 are independent claims, which read, in relevant part:
5
1. A video art electronic system for drawing and coloring on a conventional color television video monitor including a television screen having predetermined pixels, comprising:
6
a draw switch ...;
7
means including a first joystick to produce first digital signals representing the "X" and "Y" coordinates of a pixel position of a cursor on the video monitors;
8
means including a second joystick to produce second digital signals representing the color of the cursor on the video monitor;
9
a pixel memory comprising a random access memory (RAM) having digital memory addresses corresponding to the pixels and adapted to be read in correspondence with the conventional horizontal and vertical scanning of the video monitor;
10
first connecting means operative when the draw switch is in its first position to connect said first and second digital signals to said pixel memory so that the color and position of the cursor on the video monitor are written into said pixel memory;
11
means to convert output signals from said pixel memory to conventional color television signals; and
12
means to convert said first and second digital signals to conventional color television signals ... [emphasis added].
13
2. A video art electronics system for drawing and coloring on a conventional color television video monitor including a television screen having predetermined pixels, said system comprising a first and second member positionably movable by an operator ... said system further comprising:
14
a draw switch having a first position for invoking said first mode of drawing and coloring on the video monitor and a second position for invoking said second mode of not drawing and coloring on the video monitor;
15
a pixel memory comprising a random access memory, and means operative in said first mode to store the commanded color of the cursor in said pixel memory ... [emphasis added].
16
The court granted summary judgment in favor of Nintendo because Gussin's "Statement of Genuine Issues of Material Fact" was procedurally deficient and violated the court's local rules. In particular, the court found that Gussin "fail[ed] to specifically identify, in an intelligible manner, [the] facts asserted to be disputed and specific evidence in support of those assertions." Gussin, 33 USPQ2d at 1420. The court further held that Nintendo's accused device was not encompassed by claims 1 and 2 because it did not include, inter alia, a pixel memory that stored actual color data as required by the claims. The court also granted summary judgment that Nintendo did not infringe under the doctrine of equivalents because "Gussin simply may not claim equivalency with subject matter he specifically relinquished during prosecution." Id. at 1428. Gussin now appeals.
17
A court must grant summary judgment 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. Fed.R.Civ.P. 56(c). If a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We review the district court's grant of summary judgment de novo.
18
We agree with the district court that summary judgment was appropriate because Gussin's "Statement of Genuine Issues of Material Fact" was deficient. Gussin simply asked nine vague questions that do not set forth evidence that raises a disputed issue of material fact. Moreover, as we analyze below, we agree with the court's alternate conclusion that summary judgment was appropriate because the Nintendo device does not infringe, either literally or under the doctrine of equivalents.
1. Literal Infringement
19
A literal infringement analysis requires two separate steps. First, the claims asserted to be infringed must be construed to determine their meaning and scope. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc). Second, the claims as construed are compared to the allegedly infringing device. Id. To infringe, the accused device must contain every limitation of the asserted claim. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535, 19 USPQ2d 1367, 1369 (Fed.Cir.1991).
20
On appeal, Gussin argues that summary judgment was inappropriate because genuine issues of material fact exist regarding the construction of the asserted claims. In particular, Gussin asserts that the declarations of his experts, the admissions of Nintendo's experts during depositions, and the prosecution history of the '335 patent create genuine issues of material fact precluding summary judgment.
21
This court recently rejected similar arguments concerning claim construction in Markman v. Westview Instruments, Inc., 52 F.3d 967, 34 USPQ2d 1321 (Fed.Cir.1995) (in banc), in which we held that claim construction is a question of law amenable to summary judgment. The alleged conflicting opinions of both parties' experts do not create genuine issues of fact precluding summary judgment as to the meaning of the claims at issue. See Markman, 52 F.3d at 983, 34 USPQ2d at 1333 ("When 'legal' experts offer their conflicting views of how the patent should be construed, ... such conflict does not create a question of fact...."). Therefore, we reject Gussin's argument that summary judgment was inappropriate.
22
Gussin further argues that the court improperly construed the "pixel memory" limitation of claims 1 and 2. We disagree. The court properly construed the claims, based on the specification and prosecution history, to require a pixel memory that stores actual color data, instead of one that stores "pointers"2 to a memory separate from the pixel memory.
23
Both claims 1 and 2 state that the "color data" to be stored in the pixel memory should be the "color of the cursor." Specifically, claim 1 requires a "pixel memory comprising a random access memory (RAM)" into which "the color and position of the cursor on the video monitor are written." Col. 9, 11. 49-58. Claim 2, as amended after reexamination, requires "a pixel memory comprising a random access memory, and means operative in said first mode to store the commanded color of the cursor in said pixel memory." Reexamination Certificate B1 4,782,355, col. 2, 11. 23-25. Thus, both claims require storage of the color of the cursor in the pixel memory rather than permitting the pixel memory to store pointers to color data stored in a separate color memory.
24
The specification and the prosecution history further make clear that the claims, as properly construed, only read on devices that store actual color data in the pixel memory. The patent specification describes the "color data" of the present invention as consisting of "a single six bit data word in which two bits represent the intensity of the color red, two bits represent the intensity of the color blue and two bits represent the intensity of the color green." Col. 5, 11. 64-68, and col. 6, 11. 1-3. As Figure 2 of the patent illustrates, Gussin discloses the use of two memories for storing the color data: a color ROM and a pixel memory. The specification describes the interaction of these two memories:
25
Information as to a picture to be displayed on video monitor 20 is represented electronically by data words stored in the pixel memory 46 at addresses corresponding to the address of the pixels of the video monitor 20.... [T]he position of the joystick 24 determines a six bit color data word from the color ROM 44 which is enabled onto data lines coupled into the pixel memory 46.... [T]he six bit color data word from the color ROM 44 is recorded at the address [in the pixel memory] corresponding to the coordinates of the pixel on the video monitor 20 at which the cursor 18 is located.
26
Col. 6, 11. 16-36. The specification consistently refers to the data that are transferred from the color ROM and stored in the pixel memory as consisting of actual "color data," not a pointer to a separate memory containing the actual color data.
27
The prosecution history further supports a claim construction requiring the storage of actual color data in the pixel memory. During reexamination of the patent, Gussin distinguished his claimed invention from the '867 patent issued to Hill. The '867 patent discloses a home entertainment system that, like the invention disclosed in Gussin's '335 patent, allows a user to draw and paint color images on a conventional television monitor. In its "Office Action in Reexamination," the PTO rejected claim 2 under 35 U.S.C. Sec. 102(b) as being anticipated by the '867 patent. The PTO further rejected claim 1 under 35 U.S.C. Sec. 103 as being unpatentable over the '867 patent in view of other prior art.
28
Gussin filed a "Response to Office Action in Reexamination," in which he distinguished his claims from the '867 patent. Gussin argued:
29
The PTO also fails to understand important differences between the function of the pixel memory in claim 1 of the '335 patent and the pixel memory in Mr. Hill's color palette systems. In Gussin's claim 1, the pixel memory receives and stores digital signals representing the actual color of the cursor. In Mr. Hill's color palette systems, the pixel memory does not receive or store a signal representing the actual color of the cursor. Instead, Mr. Hill's pixel memory receives, and stores a color pointer, namely a signal representing the address of a color in the separate color memory of Hill's color palette systems [emphasis added].
30
In support, Gussin filed the declaration of Hill, the named inventor of the '867 patent, which stated:
31
The devices described in the '335 patent, claims 1 and 2, directly store in a pixel memory the digital value corresponding to the color that the operator has commanded to produce on the screen of a color TV receiver or monitor. The devices described in my '867 patent require an additional color memory to store the digital representation of the color values that the operator creates by mixing together various proportions of the primary colors or by adjusting the hue, saturation and brightness of the signals [emphasis added].
32
Gussin also submitted a declaration in which he argued that claims 1 and 2 were patentable over the '867 patent because "the products described in my '335 patent do not include color memory or color mixing means as described in the '867 patent...."
33
Gussin asserts that these arguments were limited to distinguishing Gussin's claims from the '867 patent based on the use of a separate memory that stores "user-mixed" colors. Gussin therefore argues that the pixel memory limitation should be broadly construed to cover any pixel memory system that stores "pre-mixed" colors. We disagree that Gussin's arguments during reexamination were so limited.
34
While it is true that Gussin distinguished the claimed invention from Hill during prosecution based on the storage of "user-mixed" colors instead of "pre-mixed" colors, Gussin also distinguished the claims from the '867 patent based on the way the pixel memory operates. He consistently argued before the PTO that his invention was distinguishable from the '867 patent because he did not claim a pixel memory that stores a color pointer instead of actual color data. In fact, the examiner specifically noted this distinction when he allowed claim 1:3
35
[N]one of the references ... teach a "random access memory" wherein the "color and position of the cursor on the video monitor are written into said pixel memory ", lines 16 and 24-25 of claim 1. Hill does not store color data into the pixel memory, rather he uses the pixel memory to address a second memory which acts as a color palette [emphasis in original].
36
Gussin argues that the examiner's statement in the March 10, 1993 "Office Action in Reexamination" that the " '335 patent is actually a two-memory system" is inconsistent with our claim construction. To the contrary, the examiner's complete statement adds support to our claim construction:
37
The '335 patent is actually a two-memory system. Figure 2 of the '335 patent shows a color memory 44 ("COLOR ROM") and a "PIXEL MEMORY" 46. Memory 46 of the '335 patent is similar to memory 164 of the '867 patent and memory 44 of the '335 patent is similar to memory 166 of the '867 patent, i.e. one is a pixel memory and the other is a color memory. How these two memories interact is different. In the '867 patent the pixel memory reads data out to the address port of the color memory. The '335 patent reads color data into the pixel memory to be stored. Therefore the '867 patent does not store color cursor data in it's [sic] pixel memory [emphasis in original].
38
The examiner, accepting Gussin's argument in his "Response to Office Action in Reexamination," merely emphasized the difference between how the pixel memory in each system interacts with the rest of its respective system--the key distinction being that "the '867 patent does not store color cursor data in it's [sic] pixel memory." Based on the foregoing, we conclude that claims 1 and 2, as properly construed, require that the pixel memory store actual color data, not merely pointers to color data stored in a separate memory.
39
Finally, Gussin argues that even if the claims require that the pixel memory store actual color data, genuine issues of material fact exist as to whether Nintendo's SNES device meets this limitation. In support, Gussin claims that Nintendo's expert witnesses admitted in their declarations and during depositions that the SNES stores actual color data. However, the declarations indicate instead that the pixel memory in the SNES device stores pointers rather than actual color data, and the deposition testimony relied upon by Gussin is not inconsistent with these declarations. Thus, Gussin has failed to establish the existence of any genuine issue of material fact regarding the operation of the pixel memory of the SNES device.
40
We need not address Gussin's other asserted errors in the district court's claim construction and infringement analysis. Our determination that Nintendo's SNES device does not meet the pixel memory limitation as properly construed is sufficient to cause us to affirm the trial court's grant of summary judgment that Nintendo's device does not literally infringe. See Lantech, Inc. v. Keip Mach. Co., 32 F.3d 542, 547, 31 USPQ2d 1666, 1671 (Fed.Cir.1994) ("For literal infringement, each limitation of the claim must be met by the accused device exactly, any deviation from the claim precluding a finding of infringement.").
2. Doctrine of Equivalents
41
An accused product that does not literally infringe may still infringe under the doctrine of equivalents. However, the doctrine of prosecution history estoppel limits the application of the doctrine of equivalents by preventing a patentee from using the doctrine to recapture subject matter previously surrendered in order to procure issuance of the patent. Southwall Technologies Inc. v. Cardinal IG Co., 54 F.3d 1570, 1579, 34 USPQ2d 1673, 1679 (Fed.Cir.1995). As discussed above, Gussin expressly distinguished his invention from the '867 patent during prosecution of the '335 patent based on two arguments: 1) his invention uses pre-mixed colors, not user-mixed colors; and 2) his invention stores actual color data in its pixel memory, not pointers. As indicated in his reasons for allowance, the examiner allowed the claims based on these distinctions. Therefore, prosecution history estoppel prevents a finding of infringement under the doctrine of equivalents against any device, including Nintendo's SNES device, that uses a pixel memory which stores pointers instead of actual color data. The court's grant of summary judgment of noninfringement under the doctrine of equivalents was proper.
1
On November 20, 1992, the U.S. Patent and Trademark Office (PTO) granted a request for reexamination of the '335 patent in view of several prior art references, including U.S. Patent 4,200,867 (the '867 patent) issued to Hill and entitled "System and Method for Painting Images by Synthetic Color Signal Generation and Control." A reexamination certificate issued on September 21, 1993, indicating that claim 1 had been confirmed and claim 2 had been allowed after certain amendments
2
A "pointer" is "[a] data item that specifies the location of another item." THE NEW IEEE STANDARD DICTIONARY OF ELECTRICAL AND ELECTRONICS TERMS 964 (5th ed. 1993)
3
During reexamination, Gussin added the pixel memory limitation to claim 2. The examiner allowed the claim following Gussin's amendment. We construe the pixel memory limitation in both claims 1 and 2 identically. It is clear from Gussin's "Response to Office Action in Reexamination" and the examiner's "Notice of Intent to Issue Reexamination Certificate" that both Gussin and the examiner construed the pixel memory limitation similarly for both claims 1 and 2
| {
"pile_set_name": "FreeLaw"
} |
13 N.Y.3d 708 (2009)
IZKO SPORTSWEAR CO., INC.
v.
FLAUM.
Court of Appeals of New York.
Decided October 20, 2009.
Motion for leave to appeal denied.
| {
"pile_set_name": "FreeLaw"
} |
818 F.2d 877
Malonev.M.S.P.B.
86-1729
United States Court of Appeals,Federal Circuit.
3/11/87
MSPB
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
771 F.2d 1416
Jeanne Armsted RHODY and Donnell Rhody, Plaintiffs-Appellants,v.STATE FARM MUTUAL INSURANCE COMPANY, Defendant-Appellee.
No. 83-2065.
United States Court of Appeals,Tenth Circuit.
Aug. 30, 1985.
Howard K. Berry, III, Oklahoma City, Okl. (Howard K. Berry, Jr., Oklahoma City, Okl., on briefs) of Berry & Berry, P.C., Oklahoma City, Okl., for plaintiffs-appellants.
Brian M. Dell of Speck & Dell, Oklahoma City, Okl., for defendant-appellee.
Before McKAY, BREITENSTEIN and MOORE, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
1
The issue presented by this diversity action is whether, under Oklahoma conflict of laws rules, Texas or Oklahoma law should be applied to determine the benefits due appellants under an uninsured motorist policy issued by appellee. The precise question to be answered is whether Oklahoma applies the doctrine of lex loci contractus in an action arising from injuries sustained in Oklahoma by an Oklahoma resident who is insured under a policy issued in Texas. We find that, where a contract does not indicate a place of performance, the doctrine applies, and the law of the place where the contract is made governs its interpretation. In this case, the contract is silent as to its place of performance; therefore, Texas law must apply. Accordingly, we affirm the district court's grant of partial summary judgment in favor of appellee as well as its denial of appellants' motion for summary judgment in their favor.
2
Appellants, Jeanne Armsted Rhody and Donnell Rhody, are Texas residents. On March 1, 1981, their son, Donnell Rhody, Jr., was fatally injured in a head-on collision between his car and another automobile in Oklahoma City, Oklahoma. The driver of the second vehicle, an Oklahoma resident, carried no public liability insurance. Appellants filed suit against appellee, State Farm Automobile Insurance Company, seeking to recover benefits under the uninsured motorist coverage included in an insurance policy issued to them by appellee's agent in Texas. State Farm did not dispute its liability under the policy, but it did dispute the amount of recovery.
3
At the time of the accident, Donnell Rhody, Jr., was a resident of the state of Oklahoma. He was employed in Oklahoma during the two and one-half years that he resided in the state. He had an Oklahoma driver's license and garaged his car at his Oklahoma residence. The car was originally purchased in Oklahoma by his mother, appellant Jeanne Armsted Rhody. While title to the automobile remained in the mother's name, the son was in the process of purchasing the automobile at the time of his death.
4
Donnell Rhody, Jr., was insured under his parents' State Farm policy, and his car was listed in the policy along with two other automobiles garaged at appellants' Texas residence. At the time the insurance policy was issued, the State Farm agent from whom appellants purchased the policy knew that the son's car would be garaged at his Oklahoma residence. For each of the three vehicles listed, the policy provided uninsured motorist coverage in the amount of $10,000.
5
This suit was filed because Oklahoma law provides for "stacking" of uninsured motorist coverage. Stacking permits the total amount of uninsured motorist coverage provided for all vehicles listed in an insurance policy to be applied to the damages resulting from an accident involving only one of the vehicles. Texas law makes no provision for stacking. Therefore, if Oklahoma law is applied to determine the proceeds of appellants' uninsured motorist coverage, appellants will receive $30,000, the total amount of coverage provided for the three vehicles listed in their policy.1 Under Texas law, appellants are only entitled to the $10,000 individual coverage provided in the policy for their son's car.
6
Appellants moved the district court to grant summary judgment that Oklahoma law applies to determine their benefits under the insurance policy. State Farm moved for summary judgment that Texas law applies. After determining that Oklahoma conflict of laws rules require the application of the law of the state in which an insurance policy was made and executed, the district court held that Texas law applies. Consequently, the court granted State Farm's motion for summary judgment.
I.
7
The conflict of laws rules of the forum state, Oklahoma, must be applied to determine whether Texas or Oklahoma law governs the interpretation of the appellants' insurance policy. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 1020, 85 L.Ed. 1477 (1941). In the instant case, however, the parties dispute the nature of the rule in Oklahoma to resolve conflict of laws problems in contract cases. State Farm contends that lex loci contractus, which provides that matters bearing upon the interpretation, execution, and validity of a contract are to be determined by the law of the place where the contract is made, has been adopted and repeatedly affirmed by the Oklahoma courts. In addition, State Farm argues that this rule is also embodied in Okla.Stat. tit. 15, Sec. 162 (1971), which states:
8
A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.
9
Since the insurance policy was issued and executed in Texas, State Farm reasons that Texas law must govern its interpretation.
10
Appellants argue that lex loci contractus is outmoded as a conflict of laws rule. Appellants contend that, if the recent trends in the substantive law of Oklahoma are carefully examined, a shift from rigid conflict of laws doctrines like lex loci contractus to an interest or contacts analysis becomes evident. Under the interest analysis approach, the laws of the state with the most significant or substantial relationship to the parties and the transaction underlying the lawsuit must govern the dispute.2 In support of their argument, appellants point to Brickner v. Gooden, 525 P.2d 632 (Okla.1974) in which the Oklahoma Supreme Court adopted the most significant relationship test for the resolution of conflict of laws problems in tort cases. Appellants also rely on Collins Radio Co. of Dallas v. Bell, 623 P.2d 1039 (Okla.App.1980), where that contacts test was adopted in the context of contracts for sales covered by the Uniform Commercial Code. Appellants conclude, under the most significant relationship test, Oklahoma has a greater relationship to the instant dispute than any other state. Thus, Oklahoma law must be applied to determine benefits under their insurance policy.
11
No Oklahoma court has ruled on the precise conflict of laws question presented by the facts in this case. Where there is no authoritative decision of a state court on an issue under purely local law, great deference must be paid to the views of a federal judge who is familiar with the local law and practice. Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Township of Hillsborough v. Cromwell, 326 U.S. 620, 629-30, 66 S.Ct. 445, 451, 90 L.Ed. 358 (1946); Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246 (1944); Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir.1975); Binkley v. Manufacturers Life Ins. Co., 471 F.2d 889, 891 (10th Cir.1973). The Supreme Court has demonstrated reluctance "to overrule decisions of federal courts skilled in the law of particular states unless their conclusions are shown to be unreasonable." Propper v. Clark, 337 U.S. 472, 486-87, 69 S.Ct. 1333, 1342, 93 L.Ed. 1480 (1949). Here, a United States district judge sitting in Oklahoma determined that the Oklahoma courts have not adopted the most significant relationship test in contract actions, despite their application of that test in tort cases and in the context of sales covered by the Uniform Commercial Code. Absent a demonstration that this conclusion is unreasonable, we pay it deference and are reluctant to overrule.
12
Appellants' arguments regarding the existence of a trend in Oklahoma toward the adoption of an interest analysis approach to conflict of laws problems do not compel the conclusion that the district court's application of lex loci contractus is unreasonable. In fact, the district court's holding is consistent with the cases cited by appellants in support of their argument. In Brickner v. Gooden, supra, for example, the Oklahoma Supreme Court adopted the most significant relationship test only in the context of tort actions. Four years after Brickner, the Oklahoma Supreme Court reiterated that in contract actions, the law of the place where the contract is made governs with respect to its nature, validity, and interpretation. Telex Corp. v. Hamilton, 576 P.2d 767, 768 (Okla.1978). Two years after Telex, in Collins Radio Co. of Dallas v. Bell, supra, the Oklahoma Court of Appeals recognized that the rule generally invoked in contract cases is the choice of law rule embodied in Okla.Stat. tit. 15, Sec. 162 (1971). The court, however, chose to apply the most significant relationship test to a contract for a sale covered by the Uniform Commercial Code only because it found the specific choice of law rule provided in U.C.C. Sec. 1-105 superseded the general rule under Okla.Stat. tit. 15, Sec. 162 (1971).
13
After examining the cases upon which appellants rely, we find no indication of a trend toward the adoption of the most significant relationship test in Oklahoma law. Accordingly, we agree with the district court's conclusion that the Oklahoma courts have not adopted the most significant relationship test as the conflict of laws rule for contract actions.
II.
14
Appellants argue that if we reject the most significant relationship test, we must examine the place of performance of the insurance policy, as well as the place where the policy was issued and executed, in determining whose law will apply in the interpretation of the policy. Appellants contend that Okla.Stat. tit. 15, Sec. 162 (1971), should be read to mean the law of the place of performance of a contract governs its interpretation if the contract indicates a place of performance. Only, if the contract is silent as to the place of performance, will the law of the place where the contract was made be applied.
15
Relying on a Montana case interpreting an identical statute, Kemp v. Allstate Insurance Co., 183 Mont. 526, 601 P.2d 20 (1979), appellants conclude that the place of performance of an insurance policy which provides uninsured motorist coverage for an accident occurring anywhere in the United States and Canada is the place where the liability of the uninsured motorist is determined.3 Because Oklahoma is the only forum which could have subjected the uninsured motorist responsible for the death of Donnell Rhody, Jr., to service of process, appellants reason that Oklahoma is the place of performance of State Farm's obligations to appellants.4
16
We believe the language of Okla.Stat. tit. 15, Sec. 162 (1971), compels a reading which restricts application of the law of the place of performance of a contract to cases in which the place of performance is indicated in the contract. Appellants' insurance policy does not indicate a place of performance within the meaning of that statute. An examination of the authorities which address conflict of laws questions commands this conclusion.5 The Oklahoma courts have enforced contract clauses which specifically designate a place of performance or which provide that the law of a particular jurisdiction will apply. Paclawski v. Bristol Laboratories, Inc., 425 P.2d 452 (Okla.1967); Legg v. Midland Savings and Loan Co., 55 Okl. 137, 154 P. 682 (1916). We have recognized the implied intent of contracting parties that the law of a certain jurisdiction control their contractual obligations from their conduct or from certain language in the contract. Mississippi Valley Trust Co. v. Oklahoma Ry. Co., 156 F.2d 283 (10th Cir.1946); Consolidated Flour Mills Co. v. File Bros. Wholesale Co., 110 F.2d 926 (10th Cir.1940). In the context of insurance policies, we have held that the specification of a place for payment of premiums and benefits under the policy signifies the parties' designation of that location as the place of performance of the contract. Monahan v. New York Life Ins. Co., 26 F.Supp. 859 (W.D.Okla.), aff'd, 108 F.2d 841 (10th Cir.1939); Head v. New York Life Ins. Co., 43 F.2d 517 (10th Cir.1930).6 Absent any such specific manifestation of intent to be bound by the laws of a particular jurisdiction, the law of the place where the contract was made governs interpretation of the contract. Telex Corp. v. Hamilton, supra; National Life & Accident Ins. Co. v. Whitlock, 198 Okl. 561, 180 P.2d 647 (1946); Marx v. Heffner, 46 Okl. 453, 149 P. 207 (1915); Hays v. King, 44 Okl. 180, 143 P. 1142 (1914).
17
In the instant case, there is no indication, express or implied, that the parties intended to be bound by the laws of a particular jurisdiction. The record is devoid of evidence that a location for payment of benefits or premiums was specified by the parties. We are not persuaded that the extension of coverage under the policy to encompass the United States and Canada means, as appellants contend, that the parties intended the place of performance to be wherever the insurer's obligation to pay benefits is established. Because no place of performance is indicated, the law of the place where the policy was made must govern the interpretation of uninsured motorist benefits due appellants. The policy was issued to appellants in Texas by State Farm's agent in that state. Thus, the laws of the state of Texas, which do not provide for stacking of uninsured motorist coverage, apply to determine State Farm's liability to appellants.
18
In holding that Texas law applies, we necessarily reject appellant's argument that application of a law which does not provide for stacking of uninsured motorist coverage is inimical to established public policy in Oklahoma. Adoption by the Oklahoma legislature of a provision for stacking uninsured motorist coverage and enforcement of that provision by the Oklahoma courts in cases which do not involve conflict of laws questions do not endow stacking with sufficient prominence to establish it as public policy in Oklahoma. The situation here may be compared to cases in which Oklahoma courts have enforced foreign contracts which would have been clearly illegal if made in Oklahoma. See, e.g., Klein v. Keller, 42 Okl. 592, 141 P. 1117 (1914). Accordingly, the judgments of the district court are affirmed.
McKAY, Circuit Judge, concurring:
19
I fully concur in the court's analysis of Oklahoma law and its affirmance of the judgment. I write separately to express my concern about what I consider an unnecessary citation to cases which adopt the so-called "great deference" rule where unsettled issues of state law are involved. Bishop v. Wood, 426 U.S. 341, 346 n. 10, 96 S.Ct. 2074, 2078 n. 10, 48 L.Ed.2d 684 (1976) ("great deference"); Township of Hillsborough v. Cromwell, 326 U.S. 620, 629-30, 66 S.Ct. 445, 451, 90 L.Ed. 358 (1946) ("great deference"); Huddleston v. Dwyer, 322 U.S. 232, 237, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246 (1944) ("if not indispensable, ... at least a highly desirable and important aid to [the] determination of state law questions"); Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1036 (10th Cir.1975) ("great weight and credence"); Binkley v. Manufacturers Life Ins. Co., 471 F.2d 889, 891 (10th Cir.), cert. denied, 414 U.S. 877, 94 S.Ct. 130, 38 L.Ed.2d 122 (1973) ("clearly erroneous"). This anomolous rule could more accurately be described as "the local judge as expert witness on matters of state law" rule, and in my opinion, is based on a rationale that cannot bear scrutiny.
20
I concede that the majority has stated the "great deference" rule in narrow terms, thus avoiding the indefensible problems created by the rule in its extreme form. In its worst form, the rule suggests that the "clearly erroneous" standard should be applied to rulings on issues of state law by a district court judge. Such an extreme application of the rule not only would undermine the obvious purpose of appeals to a collegial court, where collective consideration is one of the underlying notions, but would have the wasteful effect of leaving an issue unsettled when subsequently considered by parties, lawyers, and other district judges. If, as is true in many cases, either of two interpretations of state law would be rational, we would be required to affirm consecutive conflicting interpretations by two judges sitting in the same state, the untenable effect of which would be to leave the issue of law unsettled until the state court of appropriate authority finally has an opportunity to rule on the issue. Of all the duties of an appellate court, one of the most important is to settle matters before it, not only for the benefit of the parties to the suit but also for the guidance of the public and the trial courts.
21
This mischief results from an unsatisfactory rationale for the rule--i.e., that the trial court is more experienced in matters of state law. Of course, it is not unknown for the inverse to be true, where a state judge or justice is appointed to the federal bench to review an inexperienced district judge. In any event, unless we are to assume some kind of extrajudicial contacts by the trial court, that court is limited to the same menu of state cases that the court of appeals has--even if in greater volume. Thus, the trial judge properly is limited to the same classic analysis derived from the precedents and the facts that confine an appeals court. This is the stuff of which standard law school fare is made. If the trial court has more seasoning in that process for state issues, the benefit of its experience will be conveyed to the appeals court by the trial court's opinion.
22
Properly understood and rationalized, the notion expressed in the old Supreme Court case of Propper v. Clark, 337 U.S. 472, 486-87, 69 S.Ct. 1333, 1341-42, 93 L.Ed. 1480 (1949) calls for us to do nothing different when dealing with issues of state law than what we should be doing in all other cases; we should begin with the presumption of affirmance based on the perfectly sound principle that the first duty of the courts is to settle matters without wasting judicial resources. Thus "great deference" should be paid to the trial court's decision because that which is settled should not be unsettled without substantial reason--not because the trial court is an "expert witness." Indeed, because of experience, particular district judges may come to their appointments with vastly more expertise in some areas of federal law than members of the court of appeals will ever achieve. If the present rationale were sound, the "great deference" rule should be applied in those cases as well. Hence, if there is appellate evil to be corrected, it lies in infidelity to proper deference in all cases, not in a lack of special deference when issues of state law are involved.
23
If all we are saying by repetition of the rule is that there is an important judicial economy in deference, we need not state the rule; we only need to practice it. If more than that is meant, the inevitable effect is to imply that our decision interpreting state law is less than final, an idea to which I cannot willingly assent. State issues often come to us before the state court of last resort has had an opportunity to rule on the issue. Until the state court does rule, our decisions should be just as final and binding on federal trial courts as if we were the court of final jurisdiction on that issue.
24
I suggest that the same problem exists with the growing trend toward treating traditional issues of law (such as contract interpretation) as issues of fact. The public has a right to know that when a construction of particular contract language has been made (often uniform clauses used in many contracts), they can rely on those determinations until overturned by the same process through which other rules of law are overturned. But these issues are not before us. I use them only to illustrate the importance of having appellate rules of review grounded in understandable and defensible theory.
25
I do not understand this panel to be saying that if a trial judge sitting in Oklahoma in a future case considers the arguments raised by the appellant in this case to be "reasonable," we will affirm that judgment as well. With that understanding, I repeat my full concurrence in the court's disposition of the issues in this case.
1
The parties have stipulated that the appellants' damages resulting from the wrongful death of their son exceed $30,000
2
Appellants cite various sections of the Restatement (Second) of Conflict of Laws (1971), including Secs. 145, 188, 191, and 193, for the formulation of the rule they contend to have been adopted by the Oklahoma courts
3
In Kemp, the Montana Supreme Court concluded that Allstate's policies contemplate that an accident covered by the policy in question, which included uninsured motorist coverage, could occur in any state. From this conclusion, the court reasoned that the state in which a judgment against an uninsured motorist is obtained is the place of performance of the insuror's obligations under the contract. We are unpersuaded
4
Unlike the situation presented by Kemp, supra, no judgment was obtained against the uninsured motorist responsible for the accident
5
While many Oklahoma cases do not appear to rest directly on the statute, the majority follow the rule it embodies. See Webster, Contractual Obligations, Conflicts of Law Symposium, 18 Okla.L.Rev. 385 (1965)
6
Both Head and Monahan involved life insurance policies. The policies stated that premiums and benefits were payable at the insuror's head office in New York. The Head case, which was appealed from the U.S. District Court for the Western District of Oklahoma, concerned the death in Oklahoma of the insured, who was in business in Oklahoma. Monahan involved the death of an Arkansas resident
| {
"pile_set_name": "FreeLaw"
} |
214 S.E.2d 630 (1975)
25 N.C. App. 683
Robert E. MYERS, Raleigh, North Carolina, Sales Representative of Hiram Walker, Inc., North Carolina Board of Alcoholic Control Permit No. 38, Petitioner,
v.
Dr. L. C. HOLSHOUSER et al., Respondents.
No. 7510SC52.
Court of Appeals of North Carolina.
May 21, 1975.
Certiorari Denied June 26, 1975.
*634 Ragsdale & Liggett by George R. Ragsdale and James C. Ray, Raleigh, for petitioner-appellee.
Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. James Wallace, Jr., Raleigh, for respondents-appellant.
Certiorari Denied by Supreme Court June 26, 1975.
BROCK, Chief Judge.
We are confronted, at the outset, with a determination of the scope of the investigatory powers of the North Carolina Board of Alcoholic Control: may the Board, even if it has no probable cause, require petitioner to produce relevant business books and records without abridging his constitutional rights under the Fourth Amendment? We conclude that it may.
The Twenty-First Amendment to the United States Constitution grants to the states the right "to legislate concerning intoxicants brought from without the state for use or sale therein, unfettered by the commerce clause." 45 Am.Jur.2d Intoxicating Liquors § 42 (1969). Because of the Twenty-First Amendment and the effect of liquor on the health and welfare of the people, states have broad powers to regulate intoxicants. However, the power to regulate is subject to the United States Constitution and cannot transcend its bounds.
Administrative investigating power is essential not only for law enforcement but also for adjudication, rule-making, and supervision. "There is a peculiar need for an administrative body to provide close surveillance and regulation of the liquor industry because of the numerous and complex problems that arise and the inability of the legislature to anticipate specific problems and to maintain effective continuing supervision." 45 Am.Jur.2d Intoxicating Liquors § 26 (1969). Hence, statutes establishing administrative agencies, both state and federal, necessarily confer broad investigatory powers.
North Carolina General Statute § 18A-15(12) provides:
"The State Board of Alcoholic Control shall have power and authority as follows:
"(12) To grant, to refuse to grant, or to revoke permits for any person, firm, or corporation to do business in North Carolina in selling alcoholic beverages to or for the use of any county or municipal store and to provide and to require that such information be furnished by such person, firm, or corporation as a condition precedent to the granting of such permit, or permits, and to require the furnishing of such data and information as it may desire during the life of such permit, or permits, and for the purpose of determining whether such permit, or permits, shall be continued, revoked, or regranted after *635 expiration dates. No permit, however, shall be granted by the State Board to any person, firm, or corporation when the State Board has reason sufficient unto itself to believe that such person, firm, or corporation has furnished to it any false or inaccurate information or is not fully, frankly, and honestly cooperating with the State Board and the several county and municipal boards in observing and performing all liquor laws that may now or hereafter be in force in this State, or whenever the Board shall be of opinion that such permit ought not to be granted or continued for any cause. Upon the granting of a permit in accordance with this Chapter, the State Board of Alcoholic Control shall notify the county sheriff and county tax collector, and if applicable, the city chief of police and city tax collector, as well as the county alcoholic beverage control officer, whenever an alcoholic beverage control permit of any type is issued within the respective county and/or city;
. . . . .
"The State Board shall have all other powers which may be reasonably implied from the granting of express powers herein named, together with such other powers as may be incidental to, or convenient for, carrying out and performing the powers and duties herein given to the Board."
A primary reason advanced by petitioner for denying the Board access to books and records stems from the fear that such access would permit fishing expeditions into private affairs. In Federal Trade Commission v. American Tobacco Company, 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696 (1924), Justice Holmes, speaking for a unanimous court, stated:
"Anyone who respects the spirit as well as the letter of the 4th Amendment would be loathe to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire . . ., and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime." 264 U.S. at 305-306, 44 S.Ct. at 337.
This position, however, has been eroded by a long line of decisions expanding the scope of an administrative agency's investigatory powers. See Davis, The Administrative Power of Investigation, 56 Yale L.J. 1111 (1947). In Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946), a subpoena duces tecum was issued by the Administrator of the Fair Labor Standards Act. It required the production of
"[a]ll of your books, papers and documents showing the hours worked by and wages paid to each of your employees between October 28, 1938, and the date hereof [November 3, 1943], including all payroll ledgers, time sheets, time cards and time clock records, and all your books, papers and documents showing the distribution of papers outside the State of Oklahoma, the dissemination of news outside the State of Oklahoma, the source and receipt of news from outside the State of Oklahoma, and the source and receipt of advertisements of nationally advertised goods." 327 U.S. at 210 n. 46, 66 S.Ct. at 506.
The Court rejected the argument that administrative investigations involved unreasonable search and seizure in violation of the Fourth Amendment. Without attempting to summarize or accurately distinguish all the cases, the Court stated that the fair distillation, as applied to the production of corporate records and papers in response to a subpoena or order authorized by law and safeguarded by judicial sanction, was that
"the Fourth [Amendment], if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be `particularly *636 described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable." 327 U.S. at 208, 66 S.Ct. at 505.
The holding in Oklahoma Press was buttressed by language in United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950):
"The respondents argue that since the Commission made no charge of violation either of the decree or the statute, it is engaged in a mere `fishing expedition' to see if it can turn up evidence of guilt. We will assume for the argument that this is so.
. . . . .
"We must not disguise the fact that sometimes, . . . the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing, and so it followed neither could anyone else. Administrative investigations fell before the colorful and nostalgic slogan `no fishing expeditions.' It must not be forgotten that the administrative process and its agencies are relative newcomers in the field of law and that it has taken and will continue to take experience and trial and error to fit this process into our system of judicature. More recent views have been more tolerant of it than those which underlay many older decisions." (Citations omitted.) 338 U.S. at 641-642, 70 S.Ct. at 363-364.
. . . . .
"Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest." Id. at 652, 70 S.Ct. at 369.
However, the Court did not completely abandon its position against fishing expeditions, and emphasized that "a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power." Id. at 652, 70 S.Ct. at 369. More recent decisions have been very liberal in expanding an administrative agency's investigatory powers, even to the extent of sanctioning a warrantless administrative inspection of a locked gun storeroom under 18 U.S.C. § 923(g) of the Federal Gun Control Act of 1968, United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and a third party "John Doe" summons issued by the Internal Revenue Service to a bank to discover the identity of a person who had bank transactions suggesting the possibility of liability for unpaid taxes. United States v. Bisceglia, ___ U.S. ___, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975). Cf. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). These cases lead us to the ineluctable conclusion that an administrative agency, in this case the Board of Alcoholic Control, is empowered to conduct inquiries to whatever extent is reasonably necessary to make the power of investigation effective. See Davis, Administrative Law Text, Investigation § 3.02 (3rd ed. 1972).
A second reason advanced by petitioner for denying the Board the right to compel production of his books and records stems from his belief that (1) the Board had no reason to believe he had violated the law when it requested the documents, and (2) its request for the production of the documents was so overbroad as to be impermissibly burdensome.
In United States v. Morton Salt Co., supra, the Court made it clear that the Federal Trade Commission had
*637 "a power of inquisition . . . not derived from the judicial function [but] more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law." 338 U.S. at 642-643, 70 S.Ct. at 364. (Emphasis added.)
In our opinion the Board of Alcoholic Control was not required to have evidence that petitioner had violated its rules and regulations before it undertook an investigation of him. The Board is not bound by traditional probable cause. The purpose of an administrative investigation is to protect the public; therefore, the public's interest in applying more relaxed criteria for administrative investigations is greater than the regulated person's firm's, or corporation's right to privacy. See Note, 58 Geo. L.J. 345, 363 n. 93 (1969). The Board could not perform its duty and determine whether its rules and regulations were being violated if it first had to establish a probable violation as a condition precedent to an investigation. Such a requirement would render the Board's enforcement provisions nugatory.
An order to produce documents is subject, however, to certain bounds. The investigation must be authorized by law and conducted pursuant to a legitimate purpose, United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964); the information sought must be relevant to a lawful subject of investigation, United States v. Powell, supra; the investigative demand must be reasonable and specific in directive so that compliance is not unreasonably burdensome. See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). See also United States v. Morton Salt Co., supra 338 U.S. at 651-652, 70 S.Ct. 357. The practical effect of these requirements is that requests for records will be denied only where they are either extreme, vague, or oppressive, or irrelevant. We hold that the Board's request meets none of these objections. It fully satisfies the tests set forth above.
In reaching the conclusion that the Board can compel petitioner to produce his books and records, we have relied on cases in which subpoenas were issued by administrative agencies for certain documents. The Administrative Procedure Act of North Carolina, set forth in Chapter 150A of the General Statutes, empowers agencies to issue subpoenas upon their own motions or upon written request. G.S. § 150A-27. That Act becomes effective 1 July 1975. N.C. Session Laws 1973, c. 1331, § 4. However, we do not deem harmful the absence of a subpoena in this case. One of the purposes of a subpoena duces tecum is to insure that documents are described with sufficient particularity and with such definiteness that they can be identified without prolonged or extensive search. Vaughan v. Broadfoot, 267 N.C. 691, 149 S.E.2d 37 (1966). G.S. § 18A-55 requires the keeping of accurate records and grants to the Board the right to inspect those records. The order of the Board is sufficiently particular and definite to satisfy the requirement of a subpoena, and the court's conclusion that the order is "so broad as to be unduly burdensome to the petitioner resulting in a substantial denial of his constitutional rights" is error.
In our opinion the Board of Alcoholic Control can conduct, without traditional probable cause, an investigation of petitioner's books and records pertaining to promotional activities in North Carolina for Hiram Walker, Inc. All conclusions of law of the superior court contrary to this are overruled.
Having so concluded, we are left to resolve two issues: whether the refusal of the Board to renew the permit, without a hearing, upon petitioner's refusal to produce his records, deprived petitioner of due process *638 of law, and whether the superior court should have ordered the Board to issue a permit to petitioner.
When petitioner failed to produce his records for respondents' inspection, the Board of Alcoholic Control refused to renew petitioner's permit to operate as a distillery representative. In its declaratory judgment of 20 November 1974, the court found as a fact that the "ABC Board at no time granted, offered to grant or held a hearing in connection with the issuance of its order of February 19, 1974, amounting to a refusal to renew or reissue the permit of Robert Myers." Respondents have not taken exception to this finding of fact. After receiving notification that his permit would not be renewed if he did not comply with the Board's order, petitioner applied to the superior court for a mandatory injunction compelling the Board to issue petitioner a permit. On 1 March 1974 the court granted petitioner the remedy he sought and ordered the Board to issue a permit. The Board complied with the order and issued a permit to operate as a distillery representative until 28 February 1975. On 20 November 1974 the court entered a declaratory judgment in which it again commanded the Board to issue a permit. In the event the Board did not do so, the judgment authorized petitioner "to conduct such business affairs as he was authorized to conduct under Distillery Representative's permit # 38 of March 1, 1973."
Petitioner worked as a distillery representative until the license issued pursuant to the 1 March 1974 court order expired on 28 February 1975. Petitioner did not expect to have his license renewed beyond that date, but the Board did issue another permit licensing petitioner as a distillery representative until 28 February 1976. In a motion filed with this Court, respondents assert that the issuance of the last permit was the result of clerical error. The Board states that it has no plans to revoke the permit, even though it was issued by mistake. Petitioner also filed a motion with this Court, asserting that the action of the Board has "disposed of" the subject matter of this appeal and urging us to find that this controversy has become moot. Against this background, we now turn to the two remaining issues raised by this appeal.
The prevailing view among the states is that "a license to sell intoxicating liquor is not property in any constitutional sense, . . . except where the license is held to be a franchise." 45 Am.Jur.2d Intoxicating Liquors § 117 (1969). However, North Carolina has taken the position that "[a] license to engage in a business or practice a profession is a property right that cannot be suspended or revoked without due process of law." 2 Strong, N.C. Index 2d Constitutional Law § 23 (1967). In State v. Parrish, 254 N.C. 301, 118 S.E.2d 786 (1961), the judgment of a superior court suspending the license of a professional bail bondsman was held void. The bondsman had not violated any provisions of the applicable statute. His conduct had not been the subject of inquiry by the official board of either the county or city, and the bondsman himself had never had a hearing before either board. The court stated that "[t]he granting of such license is a right conferred by administrative act, but the deprivation of the right is a judicial act requiring due process." 254 N.C. at 303, 118 S.E.2d at 788. The Parrish due process requirement has been applied in subsequent decisions of the appellate courts of this State to disciplinary proceedings against attorneys, compare In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962) with In re Bonding Co., 16 N.C.App. 272, 192 S.E.2d 33 (1972), and to revocation of an operational license for massage parlors. See Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974).
We interpret G.S. § 18A-15(12) to require the Board of Alcoholic Control to give notice and an opportunity to be heard to the applicant or permittee before a permit is refused or revoked for failure to produce records as ordered by the Board. In our opinion the Board exceeded its authority in refusing to renew petitioner's *639 permit for 1 March 1974 without notice and an opportunity to be heard. Insofar as the declaratory judgment of the superior court found that "[t]he order of the Board of February 19, 1974, has deprived Robert E. Myers of a property right in his Distillery Representative's Permit # 38 in that it has taken such permit from him by the refusal to renew it, without due process of law," it is affirmed.
We finally consider whether the court should have ordered the Board to issue a permit to petitioner. The hearing in this matter by the superior court was not an appeal under G.S. § 143-315 to review a decision of an administrative agency. The superior court heard this matter in an independent action for a declaratory judgment and a mandatory injunction. Although petitioner prayed for a mandatory injunction, such relief was inappropriate under our holding herein that the Board's statutory power of investigation does not abridge petitioner's constitutional rights. In view of our determination that the statutory investigative authority of the Board is not unconstitutional, the authority of the superior court in this action was limited to a declaration that petitioner is entitled to a due process hearing before the Board, upon its order to produce records, before action is taken to revoke or deny renewal of his permit. Under the circumstances presented upon this appeal, it was error for the superior court to order the Board to issue a permit to petitioner.
Reversed in part.
Affirmed in part.
PARKER and ARNOLD, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
184 B.R. 163 (1995)
In re Frank H. GOWER, Jr., a/k/a Frank Herbert Gower, Jr., a/k/a Bud Gower, Debtor.
Bankruptcy No. 94-8036-9P1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
March 28, 1995.
*164 Philip L. Burnett, Ft. Myers, FL, for debtor.
John D. Emmanuel, Tampa, FL.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT ON OBJECTION TO EXEMPTION
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 case and the matter under consideration is Cross Motions for Summary Judgment on Objection to Exemption which have been filed by Creditors A.G. ANDRIKOPOULOS, GEORGE A. SEIFERT, AND JOHN E. DUNN AND MARJORIE O. DUNN, as Trustees of the Dunn Trust, (hereinafter collectively referred to as the "Creditors"), and by the Debtor, FRANK H. GOWER, JR. The undisputed facts relevant to the resolution of this controversy record are as follows.
The Debtor's father, who is now deceased, was the settlor of the Frank H. Gower Trust which was created and executed in Colorado on July 20, 1967. The trust agreement was amended in its entirety by the Sixth Amendment to Frank H. Gower Trust on July 13, 1973, and was subsequently further amended by the Seventh Amendment on May 30, 1975, and the Eighth Amendment on June 22, 1975.
Article 1-10.1 of the trust agreement is titled "INCOME AND PRINCIPAL DISTRIBUTIONS TO SETTLOR'S SON." This section is testamentary in nature and provides in pertinent part:
From and after the settlor's death the trustee shall pay to, or apply for the benefit of, the settlor's son, Frank H. Gower, Jr., during his life such amount or amounts of net income or principal, or both, of this trust as the trustee (other than the settlor's son) in its discretion may determine to be necessary or advisable to provide for his support, maintenance, health, comfort and welfare, after taking into account his other assets and sources of income. As a guide to the trustee in exercising its discretion under this 1-10.1, it the settlor's desire that his son be provided from the *165 trust with distributions during each calendar year from trust income or principal or both of amounts which will provide his son, after considering his son's other income, with at least $50,000.00 net income . . .
The discretionary nature of the income distribution to the Debtor is further evidenced by Article 1-10.3 which provides that any income not distributed under 1-10.1 during the lifetime of the settlor's son shall be accumulated and added to trust principal.
The trust agreement also contains a spendthrift clause which seeks to protect the trust from the reach of the beneficiaries' creditors. The relevant portion of Article 3-13 provides:
No beneficiary shall have any right to anticipate, transfer or encumber any part of his interest in the trust estate nor shall any part of his interest be liable for his debts or obligations (including alimony) or be subject to attachment, garnishment, execution, creditor's bill or other legal or equitable process . . .
The Debtor filed a Chapter 11 bankruptcy petition in this court on August 18, 1994. In the Schedule of Property Claimed as Exempt filed with this court on September 2, 1994, the Debtor included as exempt property the discretionary income from the Frank H. Gower Trust, scheduled as $8,000.00 per month. According to the Debtor, the trustee is currently disbursing $8,000.00 per month to the Debtor, the same monthly amount which has been regularly disbursed for the past several years. The Debtor claims this monthly stream of income is exempt by virtue of the spendthrift trust provision in the trust agreement and section 541(c)(2) of the Bankruptcy Code. Section 541(c)(2) provides that a restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a bankruptcy case.
The Creditors' objection to this claimed exemption based on section 541(a)(5)(A) of the Code which provides that property of the estate includes:
Any interest in property that would have been property of the estate if such interest had been as interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date
(A) by bequest, devise, or inheritance;
Accordingly, because the $8,000.00 monthly payments result from a testamentary bequest, the Creditors contend that property of the estate properly includes those payments received by the Debtor within 180 days of the date the petition was filed. The Creditors do not contest the validity of the spendthrift trust provision, but contend that income paid to a beneficiary is no longer subject to the protection of the spendthrift provision.
Because the Frank H. Gower Trust was created and is administered in Colorado, this court must look to Colorado nonbankruptcy law to determine what protection is provided under section 541(c)(2) of the Code. Spindle v. Shreve, 111 U.S. 542, 547, 4 S.Ct. 522, 524, 28 L.Ed. 512, 513 (1884). The validity of a spendthrift trust provision was recognized by Colorado's Supreme Court in Snyder v. O'Conner, 102 Colo. 567, 81 P.2d 773 (1938). Colorado has no statutory provisions regulating the existence of spendthrift trusts. Such trusts are therefore governed exclusively by common law. In re Portner, 109 B.R. 977, 987 (Bankr.D.Colo.1989).
The Tenth Circuit Court of Appeals recently explained the legal effects of a common law spendthrift trust. "Under the common law `[a] spendthrift trust . . . does not involve any restraint on alienability or creditors' rights with respect to property after it is received by the beneficiary from the trustee, but rather is merely a restraint with regard to his right to future payments under the trust.'" Guidry v. Sheet Metal Workers Int'l Ass'n, Local 9, 10 F.3d 700, 707 (10th Cir.1993) (quoting George T. Bogert, Trusts, § 40 at 148-49 (6th ed. 1987)). The court further explained:
`[i]t has never been the object of the spendthrift trust to restrain the beneficiary from spending income or principal after it has been paid to him by the trustee, or to restrain his creditors from taking trust income or principal from him after he has obtained it from the trustee.'
Id. at 707 (quoting George T. Bogert, Trusts, § 40 at 149-50).
*166 A case which is factually similar to the matter before this court is In re Kragness, 58 B.R. 939 (Bankr.D.Or.1986). In Kragness, the debtor was the income beneficiary of a testamentary trust which was already established at the time of the debtor's bankruptcy filing. The trust contained a valid spendthrift provision. Nevertheless, the court held that once income is paid to a beneficiary, the income so paid is no longer subject to the protection of the spendthrift provisions contained in the trust. Id. at 944.
The Debtor relies on University National Bank v. Rhoadarmer, 827 P.2d 561 (Colo. App.1991) to defend the challenged exemption. This reliance is misplaced. The beneficiary in Rhoadarmer had a noncumulative right to an annual withdrawal from the trust corpus. However, this discretionary right of withdrawal was not exercised. The court held that property subject to a donee's general power of appointment is available to his creditors only if the power is exercised. Id. at 563.
It is undisputed that the testamentary income distribution to be paid by the Frank H. Gower Trust to the Debtor is discretionary in nature. If the trustee had elected in his discretion to withhold the $8,000.00 monthly payments during the 180 days following the filing of the bankruptcy petition, then clearly Rhoadarmer would dictate that the creditors could not force a distribution. Further, the trust corpus would remain protected by the spendthrift trust provision. However, in contrast to Rhoadarmer, the discretionary distribution was paid out by the Gower Trust.
The facts before the court indicate that the trustee continued to make discretionary monthly payments of $8,000.00 to the Debtor during the 180 day period after the petition was filed. Thus, while section 541(c)(2) preserved the protected status of the spendthrift trust, any funds actually distributed by the trustee to the Debtor within 180 days of the filing of the bankruptcy petition are property of the estate under section 541(a)(5)(A).
In view of the foregoing, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment on Objection to Exemption be, and the same is hereby, granted in favor of the Creditors. The Debtor's claim of exemption is therefore disallowed. To the extent that any monthly income distributions were actually paid to the Debtor by the Frank H. Gower Trust during the 180 days following the date of the petition, such funds are property of the estate and subject to administration by the Trustee.
DONE AND ORDERED.
| {
"pile_set_name": "FreeLaw"
} |
357 F.3d 649
ECO MANUFACTURING LLC, Plaintiff-Appellee,v.HONEYWELL INTERNATIONAL INC., Defendant-Appellant.
No. 03-2704.
United States Court of Appeals, Seventh Circuit.
Argued September 4, 2003.
Decided December 31, 2003.
Rehearing Denied January 21, 2004.
David M. Lockman (argued), Maginot, Moore & Bowman, Indianapolis, IN, for Plaintiff-Appellee.
Christopher Landau (argued), Kirkland & Ellis, Washington, DC, Paul R. Garcia, Kirkland & Ellis, Chicago, IL, for Defendant-Appellant.
Before FLAUM, Chief Judge. and EASTERBROOK and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge.
1
Eco Manufacturing proposes to make a thermostat similar in appearance to Honeywell's well-known circular, convex model with a round dial. Honeywell's model (which it calls "The Round") is on the left, Eco's on the right:
2
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
3
After receiving Honeywell's demand that it cease and desist, Eco filed this action seeking a declaratory judgment that its product would not infringe Honeywell's intellectual-property rights. Honeywell's round thermostat formerly was protected by two patents — a utility patent (No. 2,394,920) that lasted between 1946 and 1963, and a design patent (No. D176,657) that expired in 1970. Honeywell then sought a trademark registration for the shape of this product. The Patent and Trademark Office denied that application, concluding that the shape is functional and thus cannot serve as a trademark. In re Honeywell Inc., 187 U.S.P.Q. 576, 1975 WL 21267 (T.T.A.B.1975), affirmed, 532 F.2d 180 (C.C.P.A.1976). Honeywell tried again a decade later and fared better. This time the agency ruled in its favor, In re Honeywell Inc., 8 U.S.P.Q.2d 1600, 1988 WL 252417 (T.T.A.B.1988), and allowed the registration to be published for opposition. Emerson Electric objected; before this was resolved, however, Emerson and Honeywell reached a settlement and the mark's registration became final in 1990. It is this registration (No. 1,622,108) that, according to Honeywell, prevents any other firm from selling a round thermostat as long as Honeywell continues to make and sell its own product.
4
Honeywell filed a counterclaim seeking equitable relief. This appeal is from the district court's order declining to issue a preliminary injunction that would block Eco from bringing its product to market. 295 F.Supp.2d 854 (S.D.Ind. 2003). Like the Trademark Trial and Appeal Board in 1975, the district court concluded that the shape of Honeywell's thermostat is functional — or, to be precise, that the likelihood of such a finding after a trial on the merits is sufficiently high, and damages are sufficiently easy to calculate if Honeywell turns out to win in the end, that Eco should be allowed to sell its competing product while the litigation proceeds. A product's appearance (often called its "trade dress") can serve as a trademark to the extent that design identifies the product's maker. See 15 U.S.C. § 1127; Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000); Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); W.T. Rogers Co. v. Keene, 778 F.2d 334 (7th Cir.1985). But a functional aspect of the design cannot be trademarked, even if it also (at least before competition breaks out) identifies the product's source. In the district court's view, TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001), treats the grant of a utility patent as showing that the patented feature is functional. After the patent expires, the covered elements of the design are available to all. See Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938). Cf. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 156 L.Ed.2d 18 (2003). Only "arbitrary, incidental, or ornamental aspects" (TrafFix, 532 U.S. at 34, 121 S.Ct. 1255) of the patented product remain available for trademark use, the district court concluded, and the circular shape of Honeywell's thermostat is not just filigree. A spherical section is no more usable as a trademark than a cube or tetrahedron would be.
5
Honeywell's lead argument in this court is that it does not matter whether, or to what extent, the thermostat's shape is functional. That is so, Honeywell submits, because the trademark registration became incontestable in 1996, before Eco brought a competing product to market. Once a mark has been used for five years following registration, it becomes "incontestable". 15 U.S.C. § 1065. Incontestability is "conclusive evidence of the validity of the registered mark and ... the registrant's exclusive right" to use the mark in commerce. 15 U.S.C. § 1115(b). See Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985).
6
The words "incontestable" and "exclusive" sound more impressive than the legal rights that the Lanham Act actually conveys, however. Section 1065 says that even "incontestable" marks must yield to prior users, and that the protection dissipates if the mark becomes generic. Moreover, and more to the point, § 1065 says that a claim based on an incontestable mark may be defeated "on a ground for which application to cancel may be filed at any time under paragraphs (3) and (5) of section 1064 of this title". Section 1064(3) provides that a mark may be cancelled if it is, or becomes, functional. Thus incontestability does not avoid the question whether the thermostat's round shape is functional.
7
As Honeywell sees things, however, resort to the functionality proviso in § 1064(3) is anachronistic. Congress added that particular language to the Lanham Act in 1998, two years after registration No. 1,622,108 passed the five-year mark that made it incontestable. See § 201(b) of Pub. L. 105-330, 112 Stat. 3064 (effective Oct. 30, 1998). To apply a 1998 law to a mark that became incontestable in 1996 would be retroactive, Honeywell insists. New legislation is presumptively non-retroactive, see Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Congress did not designate § 201(b) as one of those rare enactments with retroactive effect.
8
This line of argument assumes that recognition of a functionality defense changed the law. Courts that had addressed the subject before 1998 were divided on the question whether functionality was a ground of cancellation despite its absence from the statutory text. Compare Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863 (8th Cir.1994) (yes), with Shakespeare Co. v. Silstar Corp., 9 F.3d 1091 (4th Cir.1993) (no). The Supreme Court had not spoken — though it later, in TrafFix, raised the possibility that functionally is a constitutionally required limitation on trade dress protection, lest patent protection effectively be of unlimited duration. 532 U.S at 35, 121 S.Ct. 1255. See also Shakespeare, 9 F.3d at 1099 (Niemeyer, J., dissenting). (Because patent law prohibits any unauthorized manufacture or use of the patented product, the product's shape necessarily will denote its origin while the patent lasts; and if this link between form and origin in turn creates trademark protection, then the patent's term lasts indefinitely.) To the extent that Congress codified rather than changed the governing rules, no retroactivity issue arises. We need not decide what the pre-1998 law required, however, because Honeywell misconceives what it means for a statute to be retroactive.
9
A law is retroactive when it alters the legal consequences of completed acts. See Jahn v. 1-800-FLOWERS.com, Inc., 284 F.3d 807 (7th Cir.2002). Changing the rules governing future behavior, by contrast, is a prospective application. This is why, "[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive." Landgraf, 511 U.S. at 273, 114 S.Ct. 1483. Honeywell does not want damages or any other remedy on account of conduct that predated Pub. L. 105-330. It wants prospective relief. Applying the 1998 law to Eco's conduct in 2003 and beyond is entirely prospective. Honeywell invokes the language of "vested rights," but statutes are malleable. All Honeywell ever has had to go on is a statutory rule; it did not have a contract or a license or a judgment — and even a judgment may be modified prospectively when the law underlying it is amended. Compare Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (judgments specifying the consequences of past conduct are unalterable), with Miller v. French, 530 U.S. 327, 341-50, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (prospective relief may change as statutory foundation changes), and Robertson v. Seattle Audubon Society, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) (same). Shortly after Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), Congress changed the statute of limitations to reopen the opportunity to litigate certain securities claims (see 15 U.S.C. § 78aa-1); and, though the Court held in Plaut that this change could not be applied to cases that had been finally dismissed before the amendment, it made clear the propriety of applying the law to litigation in progress or yet to be commenced, even though this meant that some claims were revived after the (original) statute of limitations had run. Likewise Congress could repeal the Lanham Act without infringing anyone's rights, or abolish the difference between incontestable and other marks, or increase to 25 years the time before a mark has the benefits of incontestability. The actual change worked by § 201(b) of Pub.L. 105-330 was more modest, and as we have stressed may not have been a change at all.
10
Thus we arrive at the question whether the shape of Honeywell's thermostat is so clearly non-functional that the district judge abused his discretion by failing to enjoin Eco's competing model. We put the question this way because, on an appeal from the denial of interlocutory relief, appellate review is deferential. The district court was on solid ground to observe that, after TrafFix,
11
[a] utility patent is strong evidence that the features therein claimed are functional. If trade dress protection is sought for those features the strong evidence of functionality based on the previous patent adds great weight to the statutory presumption that features are deemed functional until proved otherwise by the party seeking trade dress protection. Where the expired patent claimed the features in question, one who seeks to establish trade dress protection must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device.
12
523 U.S. at 29-30, 118 S.Ct. 956. Because Honeywell bears a "heavy burden," it is hard to say at this interlocutory stage that the district judge abused his discretion in finding that the burden had not been discharged.
13
This is not to say that it would be impossible for Honeywell to carry its burden. TrafFix gave "an ornamental, incidental, or arbitrary aspect of the device" as a for-instance, and not as an exclusive means to show non-functionality. The hood ornament on a Mercedes, or the four linked rings on an Audi's grille, would exemplify "an ornamental, incidental, or arbitrary aspect of the device" that could survive as a trademark even if they once had been included within a patented part of the auto. Honeywell suggests a different way: Technological change. The transistor was not invented until 1947, the year after Honeywell's utility patent issued. The innards of "The Round" were a complex electro-mechanical linkage. The circular casing and dial may have been related in a functional way to the operating parts. Today many thermostats are solid-state devices controlled by integrated circuits equivalent to thousands of transistors; Eco's model even dispenses with mercury as an element of the temperature sensor. Thus what was once functional may half a century later be ornamental. Passage of time diminishes a utility patent's significance. And there are plenty of other ways to package the necessary controls, as Honeywell reminds us with this illustration: NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
14
Eco responds that "The Round" may be functional simply because some consumers prefer its look, and portions of the district court's opinion imply agreement with this submission. Aesthetic appeal can be functional; often we value products for their looks. See Qualitex, 514 U.S. at 169-70, 115 S.Ct. 1300. Yet an understanding of "aesthetic functionality" as broad as Eco's would destroy protection of trade dress, as we remarked in Keene. It would always be possible to show that some consumers like the item's appearance; then the corner jewelry store could emulate the distinctive Tiffany blue box, which would lose its ability to identify origin. "Beauty lies in the eye of the beholder" therefore cannot by itself establish functionality of trade dress. Perhaps, however, a more complete record may show that consumers' desire for circular thermostats comes from more than familiarity with a shape that Honeywell made famous. After all, Honeywell did not invent the circle (or the wheel).
15
It is not hard to think of three ways in which a round thermostat could be functional, at least in principle. First, rectangular objects may clash with other architectural or decorative choices. Just as a building designed by Ludwig Mies van der Rohe demands controls made from regular or semi-regular polyhedra, so a building designed by Frank Gehry could not tolerate boxy controls. Second, round thermostats (and other controls) may reduce injuries, especially to children, caused by running into protruding sharp corners. Third, people with arthritis or other disabilities may find it easier to set the temperature by turning a large dial (or the entire outer casing of the device) than by moving a slider or pushing buttons on boxes. The record does not contain much along any of these lines, but they are sufficiently plausible to disable Honeywell from prevailing at this preliminary stage, given the burden it bears as a result of the expired patents. Although the three possibilities we have mentioned do not show that roundness is "essential" to a thermostat, that's not required. TrafFix rejected an equation of functionality with necessity; it is enough that the design be useful. The Justices told us that a feature is functional if it is essential to the design or it affects the article's price or quality. 532 U.S. at 33, 121 S.Ct. 1255.
16
Thus the district court did not abuse its discretion in holding that Eco may go forward with a round thermostat — at its own risk, of course, should the decision come out otherwise on the merits. Although we have not endorsed all of the district court's legal analysis, it would be pointless to remand for another hearing on interlocutory relief. The case should proceed expeditiously to final decision; another "preliminary" round would waste everyone's time. It would be especially inappropriate to direct the district judge to issue a preliminary injunction when issues other than functionality remain to be addressed. Eco contends, for example, that Honeywell bamboozled the Patent and Trademark Office when seeking registration during the 1980s, and material deceit would scotch this enforcement action whether or not the trade dress is functional. We do not express any view on that issue, or any ultimate view about functionality; it is enough to say that the record compiled to date adequately supports the district judge's interlocutory decision.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
669 F.Supp.2d 477 (2009)
Charles F. KERCHNER, Jr., et al., Plaintiffs,
v.
Barack Hussein OBAMA, II, et al., Defendants.
Civil No. 09-253 (JBS/JS).
United States District Court, D. New Jersey.
October 20, 2009.
*478 Mario Apuzzo, Esq., Law Offices of Mario Apuzzo, Jamesburg, NJ, for Plaintiffs Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr.
Paul J. Fishman, United States Attorney, by: Elizabeth A. Pascal, Assistant U.S. Attorney, Camden, NJ, for Defendants Barack Hussein Obama, II, the United States of America, the United States Congress, the United States Senate, the United States House of Representatives, Richard B. Cheney, and Nancy Pelosi.
OPINION
SIMANDLE, District Judge:
Under Article II, Section 1, of the Constitution, a person must be a "natural born citizen" to be eligible for the office of President of the United States. Four individuals, believing that President Barack *479 Obama is not eligible for his office on this ground, have filed suit seeking a court order to require various officials to look into their claims and to remove the President from office. Plaintiffs present various arguments for defining the term "natural born citizen" accompanied by allegations of how President Obama does not meet their definition.
This matter is presently before the Court on a motion to dismiss [Docket Item 27] submitted by Defendants President Barack Obama, the United States of America, the United States Congress, the United States Senate, the United States House of Representatives, former Vice-President and President of the Senate Richard Cheney, and Speaker of the House Nancy Pelosi (collectively, "Defendants"). For the reasons expressed below, the Court finds that Plaintiffs Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr. lack standing to pursue their claims and so the Court must grant Defendants' motion to dismiss.
I. BACKGROUND
A. Factual Allegations
Plaintiffs' claims, as set forth in their Second Amended Complaint,[1] arise from allegations that President Obama has failed to sufficiently prove that he is a "natural born citizen" eligible for the presidency and that the legislative branch has failed to sufficiently investigate President Obama's citizenship and place of birth. Plaintiffs all voted in the November 4, 2008 general election for president. (Second Am. Compl. ¶¶ 8-11.) Mr. Kerchner and Mr. Nelsen both took oaths to defend and support the Constitution of the United StatesMr. Kerchner as part of his thirty-three years of service in the U.S. Naval Reserves and Mr. Nelsen as a former member of the Marine Reserves and Army National Guard. (Id. ¶¶ 8, 11.) In addition, Mr. Kerchner states that his is particularly harmed by the alleged uncertainty surrounding President Obama's birthplace because "while currently not statutorily subject to recall, by Executive Order of the President or an act of Congress in extreme national emergency" Mr. Kerchner might be recalled. (Id. ¶ 8.)
Plaintiffs claim violations of the First, Fifth, Ninth, Tenth, and Twentieth Amendments of the Constitution and seek declaratory and injunctive relief, as well as a writ of mandamus and quo warranto. In Court I, Plaintiff Kerchner alleges that the Congressional Defendants violated his First Amendment right to petition because they ignored his requests that they investigate President Obama's citizenship and place of birth. (Id. ¶¶ 200-214.) In Counts II and X, Plaintiffs allege that the Congressional Defendants violated their Fifth Amendment procedural due process rights and their rights under the Twentieth Amendment by failing to conduct an appropriate investigation and hold a hearing regarding President Obama's place of birth. (Id. ¶¶ 215-234, 329-356.) In Counts III and IV, Plaintiffs allege that President Obama violated their substantive due process rights under the Fifth Amendment by holding the office of president *480 without proving that he is a "natural born citizen" and that the Congressional Defendants violated these same rights by permitting President Obama to occupy the office and by failing to adequately confirm that his is a "natural born citizen." (Id. ¶¶ 235-270.) In Count V, Plaintiffs allege that the Congressional Defendants violated their Fifth Amendment right to equal protection by submitting to the requests of citizens who requested a hearing regarding Senator John McCain's place of birth and citizenship, but declining a similar request from Plaintiffs and other citizens regarding President Obama. (Id. ¶¶ 271-282.) In Counts VI, VII, VIII, and IX, Plaintiffs assert their rights under the Ninth and Tenth Amendments to compel President Obama to prove that his is a "natural born citizen" and to compel the Congressional Defendants to conduct appropriate congressional hearings under the Twentieth Amendment to determine whether President Obama is a "natural born citizen." (Id. ¶¶ 283-328.) In Count XI, Plaintiffs seeks a writ quo warranto removing and excluding President Obama from the office of President of the United States because he is not a "natural born citizen." (Id. ¶¶ 357-380.) Finally, in Count XII, Plaintiffs seek declaratory judgment against all Defendants defining "natural born citizen," and compelling the Congressional Defendants to hold a congressional hearing on the question and to remove President Obama from office if they determine he is not a "natural born citizen." (Id. ¶¶ 381-387.)
The harm alleged for all of these constitutional violations is that Plaintiffs have been deprived of their right to know whether President Obama is a "natural born citizen" and to have a president who is truly a "natural born citizen."[2] (Id. ¶¶ 208, 233, 251, 269, 282, 291, 302, 314, 325, 356, 377, 378.)
B. Procedural History
On January 20, 2009, Plaintiffs filed their initial complaints, which they subsequently amended twice. Plaintiffs filed their Second Amended Complaint on February 9, 2009. On June 26, 2009, Defendants filed the present motion to dismiss, in which they argue that Plaintiffs lack Article III standing as well as prudential standing to bring all of these claims before the Court. Defendants argue in the alternative that the United States, the United States Congress, and former Vice-President Cheney and Speaker Pelosi in their official capacities, are entitled to sovereign immunity. Defendants Cheney and Pelosi are also entitled, Defendants argue, to legislative immunity, and Defendants Obama, Cheney, and Pelosi are entitled to qualified immunity as to all of Plaintiffs' claims.
II. DISCUSSION
A. Standard of Review
Defendants move to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P. A determination of proper subject matter jurisdiction is vital, because "lack of subject matter jurisdiction *481 voids any decree entered in a federal court and the continuation of litigation in a federal court without jurisdiction would be futile." Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987). An attack on subject matter jurisdiction can be either facialbased solely on the allegations in the complaint or factuallooking beyond the allegations to attack jurisdiction in fact. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). Where, as here, the challenge to subject matter jurisdiction is facial, the Court must, for the purposes of this motion, take all the allegations in the complaint to be true and construe them in the light most favorable to the Plaintiffs. Id.
B. Article III Standing
Federal courts are courts of limited jurisdiction and may only consider those actions that meet the case-or-controversy requirements of Article III.[3] Essential to Article III jurisdiction is the doctrine of standing. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). To meet the minimal constitutional mandate for Article III standing Plaintiffs must show (1) an "injury in fact," (2) "a causal connection between the injury and the conduct complained of," and (3) that the injury will "likely" be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Plaintiffs' assertion of constitutional standing fails at the first prong, because Plaintiffs cannot establish an "injury in fact" as that phrase has been defined by the Supreme Court. Instead, while Plaintiffs feel themselves very seriously injured, that alleged grievance is one they share with all United States citizens.
An "injury in fact" is defined as "an invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. The Supreme Court has interpreted the requirement that an injury be "concrete and particularized" to preclude harms that are suffered by many or all of the American people. Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130; United States v. Richardson, 418 U.S. 166, 176-77, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220-22, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); Ex Parte Levitt, 302 U.S. 633, 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937). As the Court explained in Schlesinger,
We reaffirm Levitt in holding that standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. It adds the essential dimension of specificity to the dispute by requiring that the complaining party have suffered a particular injury caused by the action challenged as unlawful. This personal stake is what the Court has consistently held enables a complainant authoritatively to present to a court a complete perspective upon the adverse consequences flowing from the *482 specific set of facts undergirding his grievance. Such authoritative presentations are an integral part of the judicial process, for a court must rely on the parties' treatment of the facts and claims before it to develop its rules of law. Only concrete injury presents the factual context within which a court, aided by parties who argue within the context, is capable of making decisions.
418 U.S. at 221, 94 S.Ct. 2925. Consequently, "a plaintiff raising only a generally available grievance about government claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at largedoes not state an Article III case or controversy." Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130.
In the present case, assuming as the Court must that Plaintiffs' allegations are true for the purposes of deciding this jurisdictional motion, the injury, if any, suffered by Plaintiffs is one that would be shared by all the American people. Plaintiffs allege that they have been injured because Defendants have not adequately established that the President is truly a "natural born citizen" and because, according to Plaintiffs, President Obama is not a "natural born citizen" and therefore an illegitimate president. These alleged harms apply equally to all United States residents. In fact, Plaintiffs' complaint repeatedly acknowledges that the injuries they allege are generally applicable to "the people."[4] As explained above, the Supreme Court has consistently held that this generalized harm is not sufficient to establish standing under Article III. Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130.
In an effort to distinguish themselves from the rest of the citizenry, Plaintiffs point out that Mr. Kerchner and Mr. Nelsen have both taken oaths to protect and defend the Constitution. They also suggest that they feel more threatened by the alleged uncertainty surround President Obama's place of birth and citizenship than many citizens. While the Court accepts that Plaintiffs are more concerned about President Obama's birthplace than many citizens and that they likewise feel a greater sense of obligation to bring the present action, Plaintiffs' motivations do not alter the nature of the injury alleged. Plaintiffs state that they have been injured because President Obama's birthplace and citizenship have not been established to their satisfaction; this harm is equally applicable to all American citizens.
Finally, Plaintiffs point to the risk that Mr. Kerchner may be recalled to active duty in the U.S. Naval Reserves by Executive Order of the President or an act of Congress in an extreme national emergency. Under these circumstances, Mr. Kerchner "would need to know whether the President and Commander in Chief who may be giving him orders is in fact the legitimate President and Commander in Chief and therefore obligate him to follow those orders or risk being prosecuted for disobeying such legitimate orders." (Second Am. Compl. ¶ 8.) While the Court has doubts about the particularity of this harm, the Court will not address this issue because the alleged harm is neither actual nor imminent, but rather is impermissibly conjectural. The hypothetical nature of *483 this future injury, conditioned on the occurrence of "an extreme national emergency," is not an "injury in fact" necessary to establish standing. See Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 297 (3d Cir.2003) (an allegation of potential future property loss, should a municipality disallow a present non-conforming use, cannot demonstrate injury in fact for standing purposes because it is conjectural). Without an "injury in fact" necessary for Article III standing, the Court cannot exercise jurisdiction over the present action.[5]
III. CONCLUSION
For the foregoing reasons, the Court will grant Defendants' motion to dismiss for lack of subject matter jurisdiction. The accompanying Order shall be entered.
NOTES
[1] The parties dispute whether Plaintiffs filed their Second Amended Complaint in conformance with Rule 15, Fed.R.Civ.P., and further whether that complaint is a short and plain statement required under Rule 8(a)(2). The Court will address the allegations of the Second Amended Complaint, notwithstanding that it was filed without leave of Court on February 9, 2009. Because the Court concludes that Plaintiffs lack standing to bring these claims, the Court will not address the procedural disputes, and Plaintiffs' belated motion for leave to assert the Second Amended Complaint on July 22, 2009, will be dismissed as moot.
[2] To the extent Plaintiffs also allege that they were injured merely by the government's failure to respond to their petitions requesting investigations and hearings, this is not a cognizable constitutional injury. Plaintiffs "have no constitutional right to force the government to listen to their views." Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 284-85, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984). As the Supreme Court has explained, "Nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues." Id. (citing Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 464-466, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979)).
[3] Plaintiffs cite a Commonwealth Court of Pennsylvania decision, Lawless v. Jubelirer, 789 A.2d 820 (Pa.Commw.Ct.2002), for the proposition that there are exceptions to the standing requirement at issue here. The Court wishes to clarify that Plaintiffs are asserting federal subject matter jurisdiction and consequently the various state court jurisdictional doctrines are inapplicable to this case.
[4] By way of example, Plaintiffs' complaint outlines the various failures to adequately establish President Obama's place of birth "on Behalf of the Plaintiffs and the People." (Second Am. Compl. ¶¶ 84-188.) Plaintiffs identify the "Irreparable Harm" to be suffered as follows: "If Obama is sworn in as President of the United States and Commander in Chief, there will be substantial and irreparable harm to the stability of the United States, its people, and the plaintiffs."
[5] Moreover, had Plaintiffs alleged an "injury in fact" sufficient to satisfy Article III standing, prudential standing concerns would likewise prevent the Court from exercising jurisdiction. The Supreme Court has held that "even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating `abstract questions of wide public significance' which amount to `generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Plaintiffs' claims fall squarely into the category of generalized grievances that are most appropriately handled by the legislative branch. The Court acknowledges Plaintiffs' frustration with what they perceive as Congress' inaction in this area, but their remedy may be found through their vote.
To this extent, it appears that Plaintiffs have raised claims that are likewise barred under the "political question doctrine" as a question demonstrably committed to a coordinate political department. See Baker v. Carr, 369 U.S. 186, 216, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The Constitution commits the selection of the President to the Electoral College in Article II, Section 1, as amended by the Twelfth Amendment and the Twentieth Amendment, Section 3. The Constitution's provisions are specific in the procedures to be followed by the Electors in voting and the President of the Senate and of Congress in counting the electoral votes. Further, the Twentieth Amendment, Section 3, also provides the process to be followed if the President elect shall have failed to qualify, in which case the Vice President elect shall act as President until a President shall have qualified. None of these provisions evince an intention for judicial reviewability of these political choices.
| {
"pile_set_name": "FreeLaw"
} |
NO. 07-11-00274-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 26, 2012
DOUGLAS HOOPES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-DC-10-202780; HONORABLE KAREN SAGE, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Douglas Hoopes, was convicted of making a false report of an
emergency involving a public service1 and sentenced to 415 days in a State Jail Facility.
We affirm.
Appellant=s attorney has filed an Anders brief and a motion to withdraw. Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967). In support of his
motion to withdraw, counsel certifies that he has diligently reviewed the record, and in
his opinion, the record reflects no reversible error upon which an appeal can be
1
See TEX. PENAL CODE ANN. § 42.06(a)(3) (West 2011).
predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling
authorities, there is no error in the trial court=s judgment. Additionally, counsel has
certified that he has provided appellant a copy of the Anders brief and motion to
withdraw and appropriately advised appellant of his right to file a pro se response in this
matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has
also advised appellant of his right to file a pro se response. Appellant has not filed a
response. By his Anders brief, counsel reviewed all grounds that could possibly support
an appeal, but concludes the appeal is frivolous. We have reviewed these grounds and
made an independent review of the entire record to determine whether there are any
arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75,
109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824
(Tex.Crim.App. 2005). We have found no such arguable grounds and agree with
counsel that the appeal is frivolous.
Accordingly, counsel=s motion to withdraw is hereby granted and the trial court=s
judgment is affirmed.2
Mackey K. Hancock
Justice
Do not publish.
2
Counsel shall, within five days after this opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of appellant=s right to file a
pro se petition for discretionary review. See TEX. R. APP. P. 48.4.
2
| {
"pile_set_name": "FreeLaw"
} |
Matter of Enoksen (2018 NY Slip Op 05762)
Matter of Enoksen
2018 NY Slip Op 05762
Decided on August 15, 2018
Appellate Division, Second Department
Per Curiam.
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 August 15, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
MARK C. DILLON
SYLVIA O. HINDS-RADIX, JJ.
2014-07821
2018-09563
[*1]In the Matter of Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, a suspended attorney. Grievance Committee for the Tenth Judicial District, petitioner; Nancy P. Enoksen, respondent. (Attorney Registration No. 4326625)
MOTION by the Grievance Committee for the Tenth Judicial District to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b), based upon her conviction of a felony. By decision and order on motion dated April 21, 2015, this Court, inter alia, immediately suspended the respondent from the practice of law pursuant to former 22 NYCRR 691.4(l)(1)(i), and authorized the Grievance Committee for the Tenth Judicial District to institute a disciplinary proceeding based upon a petition dated December 16, 2014. By decision and order on motion of this Court dated July 16, 2015, upon the motion of the respondent, the disciplinary proceeding was held in abeyance until the conclusion of a pending criminal matter entitled People v Enoksen (Nassau County lower court No. 2015NA006084). The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on July 27, 2005, under the name Nancy Patricia Enoksen.
Catherine A. Sheridan, Hauppauge, NY (Michael Fuchs of counsel), for petitioner.
PER CURIAM.
OPINION & ORDER
On January 29, 2018, after a jury trial before the Hon. Howard Sturim, a Judge of the County Court, Nassau County, under Indictment No. 00911N-2016, the respondent was found guilty of grand larceny in the second degree, in violation of Penal Law § 155.40(1), a class C felony.
On March 20, 2018, the respondent was sentenced to a term of imprisonment of 3⅓ to 10 years, and ordered to pay restitution in the amount of $187,040.
The Grievance Committee for the Tenth Judicial District now moves to strike the respondent's name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4)(b) based upon her felony conviction. Although the respondent was duly served, she has neither opposed the instant motion nor interposed any response thereto.
Pursuant to Judiciary Law § 90(4)(a), the respondent was automatically disbarred and ceased to be an attorney upon her conviction of a felony.
Accordingly, the motion to strike the respondent's name from the roll of attorneys and counselors-at-law is granted, pursuant to Judiciary Law § 90(4)(b), to reflect the respondent's automatic disbarment as of January 29, 2018. In view thereof, on the Court's own motion, the disciplinary proceeding authorized under Appellate Division Docket No. 2014-07821 is discontinued as academic.
SCHEINKMAN, J.P., MASTRO, RIVERA, DILLON and HINDS-RADIX JJ., concur.
ORDERED that the Grievance Committee's motion is granted; and it is further,
ORDERED that pursuant to Judiciary Law § 90(4)(a), the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, a suspended attorney, is disbarred, effective January 29, 2018, and her name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b); and it is further,
ORDERED that the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, shall continue to comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further,
ORDERED that pursuant to Judiciary Law § 90, the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that if the respondent, Nancy P. Enoksen, admitted as Nancy Patricia Enoksen, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 1240.15(f); and it is further,
ORDERED that, on the Court's own motion, the disciplinary proceeding authorized under Appellate Division Docket No. 2014-07821 is discontinued as academic.
ENTER:
Aprilanne Agostino
Clerk of the Court
| {
"pile_set_name": "FreeLaw"
} |
426 N.W.2d 889 (1988)
STATE of Minnesota, Respondent,
v.
Gary Alan COLEMAN, Appellant.
No. C6-87-1662.
Court of Appeals of Minnesota.
June 14, 1988.
Review Denied August 11, 1988.
*890 Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Vernon E. Bergstrom, Chief, Appellate Section, Michael Richardson, Asst. Co. Atty., Minneapolis, for respondent.
C. Paul Jones, State Public Defender, Paul Engh, Sp. Asst. State Public Defender, Minneapolis, for appellant.
Heard, considered and decided by WOZNIAK, C.J., and HUSPENI and NIERENGARTEN, JJ.
OPINION
HUSPENI, Judge.
This appeal is from a judgment of conviction for first and second degree criminal sexual conduct, Minn.Stat. §§ 609.342, subd. 1(a) and 609.343, subd. 1(a). Appellant was sentenced to consecutive 140-month and 21-month sentences. We affirm.
FACTS
Appellant Gary Coleman was charged with an incident of sexual abuse of both R.H., 9 years old, and N.H., 4 years old, occurring at the home of their mother, Jean H., on November 9, 1986. Coleman, a former boyfriend of Jean H., was visiting that night, along with his friend Mark DuBay, at Jean H.'s invitation. Also present was Rick Jazowski, a frequent babysitter of the children.
The adults drank and played cards in the upper level of the house. About 8:30 or 9:00 p.m., the girls went to bed in the lower level. Jean H. testified she later felt ill and went into the living room and lay on the couch. She testified Coleman followed her and kissed her. Coleman then followed her to her bedroom but no sex occurred and Coleman left.
*891 Jazowski testified he saw Jean H. get up from the table and go into the living room, and Coleman follow her. He testified Coleman didn't return and he and DuBay talked for 45 minutes to an hour. They then got up to look for Coleman and found him lying in N.H.'s bed, facing the girl. Coleman, who appeared groggy, rose and went to Jean H.'s bedroom. Jazowski noticed his belt buckle was undone. The next morning Jazowski called Jean H. and told her she should ask her daughters whether anything had happened with Coleman.
Jean H. testified she immediately asked N.H., who would not respond, but did not ask her older daughter, R.H., because she had a girlfriend there. Later that day, however, R.H. volunteered that Coleman had touched N.H. N.H. later told her Coleman had touched her.
N.H. was taken to the hospital for a sexual assault exam. The examiner, Dr. Lukk, testified she observed redness around the vagina that was consistent with sexual assault, and consistent with penetration with a finger. Dr. Lukk testified an internal exam is not done on children that age. On cross-examination, she stated she could not say to a reasonable medical certainty there was penetration.
R.H. testified she was lying on the top bunk when Coleman came down the stairs, saying he had to use the bathroom. Coleman tried to touch her, attempting to pull her legs apart. She testified Coleman touched her private part over her clothes. She then saw him touch her sister, on the lower bunk. She testified the bathroom light was on and she could see Coleman touch N.H.'s private spot, under her clothes. This went on for about 10 minutes. N.H. indicated several times it hurt. Coleman left but came back later and started touching N.H. again. Mark and Rick then came down and found him there. R.H. testified Coleman's belt buckle was undone and that he had given her a ring to keep her from telling.
N.H. testified by videotaped examination. She testified she was sleeping in her bunk bed, in her pajamas. Coleman came in and touched her, putting his finger inside, and it hurt. Then he stopped it. Mark and Rick came to the room and told him they had to go. Coleman was pretending he was asleep.
Coleman testified he had oral sex with Jean H. in her bedroom and was interrupted by DuBay walking in and stating they had to leave. Coleman testified he then went downstairs, where the girls' bedroom was, to go to the bathroom. Coleman admitted going into the girls' bedroom, where he claimed the girls were "jumping around and talking" and he talked and roughhoused with them. He testified he got dizzy and laid down on N.H.'s lower bunk bed, where DuBay and Jazowski found him and woke him up.
Coleman was impeached by seven prior convictions. He had been convicted in 1974 of two counts of kidnapping, two counts of aggravated assault, and one count of unauthorized use of a motor vehicle. The court had ruled he could not be impeached with a 1974 sodomy conviction. The court allowed impeachment by two 1983 convictions, one for burglary and one for attempted theft. Coleman admitted to his prior record on direct examination. He also volunteered he had "gotten into a little trouble" and "served time" when he was married, in the 1960's.
Coleman denied any sexual contact with either child. He testified:
No, I didn't. I never touched them kids. As I said before, I've always been after grownup women. I've always I've never had any young girls that I desired.
The trial court allowed the state to cross-examine Coleman on his 1967 burglary conviction because he had brought it up on direct. The court also ruled the state could ask Coleman about charges he had attempted sexual contact in 1974 with an 11-year-old girl, part of the same incident resulting in his other convictions. The court indicated Coleman had "opened the door" to this inquiry by stating he had never desired young girls. When Coleman was asked if he was trying to sexually assault an 11-year-old girl at the time, he denied it. He was then asked if he had left the home and returned later, the state *892 claiming this was a separate conduct from the first part of the 1974 incident. The court allowed this question over defense objection, and Coleman denied it.
The investigating officer testified to his interviews with both girls. On cross-examination, he testified Jean H. told him R.H. "tends to tell stories once in a while." On redirect, the prosecutor asked him whether he had "the impression she was telling you a story." Defense counsel objected, and the court ruled he could "comment on the witness' affect when she was giving him answers." The prosecutor then asked him "what was her affect * * *?" The officer responded, after the question was repeated, "I felt she was being honest with me through the whole conversation."
Coleman presented the testimony of his housemate, Evelyn Taflinger, and his own testimony, that they found girl's panties in the bed DuBay was using in their house. Defense counsel argued to the jury the possibility Mark DuBay had sexually assaulted the girls. DuBay did not testify, apparently because he was unavailable, and the court granted the state's motion to preclude the defense from bringing out DuBay's prior sex offense.
ISSUES
1. Did the trial court prejudicially err in allowing testimony on the truthfulness of one of the child victims?
2. Did the court prejudicially err in allowing the state to cross-examine appellant concerning an alleged prior attempted assault on a young girl, or a 20-year-old burglary conviction?
3. Was the evidence sufficient to sustain the convictions?
ANALYSIS
1. Testimony as to truthfulness.
Coleman contends the trial court prejudicially erred in allowing Sgt. Hudson, the investigating officer, to testify R.H. was being honest with him in accusing Coleman. Coleman, however, "opened the door" to this opinion testimony by eliciting the statement of Jean H. that her daughter often told stories. See State v. Myers, 359 N.W.2d 604, 611-12 (Minn.1984). We conclude in any event that any error was not prejudicial. See State v. Campa, 390 N.W. 2d 333, 335 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Aug. 27, 1986).
Four factors govern a determination of prejudice caused by a comment on truthfulness of a witness: 1) whether an objection was made; 2) whether the opinion was elicited or volunteered; 3) whether the remark was of a passing nature or relied on or called to the jury's attention; and 4) whether the rest of the evidence of guilt was strong or overwhelming. See State v. Campa, 390 N.W.2d at 335.
Coleman objected to any questioning of Hudson as to the truthfulness of R.H. At a bench conference the court ruled Hudson could be asked about R.H.'s "affect." The prosecutor asked this very question, which does not seem to call for an opinion as to truthfulness. Thus, Hudson's opinion was largely volunteered. The opinion was given at the close of the state's case, but was very brief and was not argued to the jury. Finally, in concluding that any error was nonprejudicial, we note that the evidence of Coleman's guilt was very strong.
2. Impeachment of appellant.
Coleman contends the court prejudicially erred in allowing the state to cross-examine him on a 20-year-old prior conviction, and an incident of alleged attempted sexual abuse of an 11-year-old girl in 1974.
The first contention is without merit. Not only did Coleman refer to the conviction on direct examination, but the cross-examination which elicited the nature of the conviction was brief and the conviction (burglary), was greatly dissimilar to the present charge. Also, it was but one item in a lengthy recital of properly-admitted prior convictions.
The state contends Coleman's 1974 offenses were motivated by an attempt to sexually assault a minor. The court allowed cross-examination on this contention to rebut Coleman's testimony he had never *893 desired or pursued young girls. The questioning proceeded as follows:
Q. Isn't it true that when you were convicted on these two kidnappings, and the two Aggravated Assaults and the Unauthorized Use of a Motor Vehicle, that what that was all about is that you were trying to sexually assault an 11-year-old girl named Diane?
A. No, ma'am.
Q. Well, sir, isn't it true that you left the home with these two women and then later returned?
[Conference at the bench and recess taken]
Q. Mr. Coleman, where we left off is that you denied having had any sexual contact with an 11-year-old girl back in 1974?
A. Yes, ma'am, I did.
Q. Do you deny at a later point going back and trying to get that 11-year-old girl into the car with you?
A. Yes, I do.
A general denial that the defendant has done a particular kind of act, going beyond a denial of the charged offense, does not put in issue his character as to that trait. State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973); see also State v. Martin, 256 N.W.2d 85, 86 (Minn. 1977) (defendant's denial he had used drugs did not place character in issue; drug use not an element of the charged offense). Evidence of specific instances of misconduct by the defendant may be admitted "to contradict the testimony of the defendant or a defense witness." State v. Fader, 358 N.W.2d 42, 46 (Minn.1984). The court in Fader stated:
If defendant had testified on direct that he had never touched any other children, then the evidence clearly would have been admissible to impeach or contradict that testimony.
Id. (evidence determined to be admissible independently as Spreigl evidence); see also State v. Becker, 351 N.W.2d 923, 927 (Minn.1984) (defendant's denial that she had sex with any of her children properly impeached by testimony of son not involved in charged offense).
However, even if this evidence was admissible under Fader, the prosecution had no proof that the prior incident occurred, only a verified complaint (which is not in the record on appeal). The prosecutor's questioning, which tied the alleged assault attempt to Coleman's convictions on the other charges, implied far greater proof than actually existed. The prosecutor, moreover, did not stop upon receiving Coleman's denial. See Minn.R.Evid. 608(b) (specific instances of conduct, to attack credibility, not admissible unless provable by conviction of crime). The prosecutor asked a follow-up question, arguing to the court the 1974 incident was divisible into two parts, each evidencing desire or motive to assault the child. The prosecutor's questioning, however, concerned not Coleman's conduct but his singular alleged motive.
This court has stated:
Prosecutors in sexual abuse cases may not deliberately persist in trying to inject into trial matters which they cannot introduce directly; they must abide by the highest behavior.
State v. Hanson, 382 N.W.2d 872, 875 (Minn.Ct.App.1986), pet. for rev. denied (Minn. Apr. 11, 1986). The prosecution may not have had clear and convincing evidence of the 1974 attempted assault, and did not give a Spreigl notice of this offense. Moreover, the admissibility of even properly-noticed Spreigl evidence rests in part on the state's need for the evidence, a need which does not appear here. See State v. Billstrom, 276 Minn. 174, 178, 149 N.W.2d 281, 284 (1967).
Despite our concern about the manner and extent of this cross-examination, we conclude it did not likely play a substantial role in the jury's verdict. See State v. Crist, 281 N.W.2d 657, 658 (Minn.1979). Both R.H. and N.H. positively identified Coleman, a former boyfriend of their mother's and someone R.H. had known for some years, as the person who abused them. Coleman admitted being in their bedroom and being found by DuBay and Jazowski *894 lying on N.H.'s bed. The medical testimony established that sexual abuse of N.H. had occurred. Although Coleman attempted to show DuBay or Jazowski had committed the abuse, his admission he was found in N.H.'s bed seriously damaged his theory that another committed the offenses.
3. Sufficiency of the evidence.
As discussed above, the evidence that R.H. and N.H. were sexually abused, and that Coleman committed the abuse, was amply sufficient. The girls' testimony was positive and substantially unimpeached, and was corroborated by the medical evidence, Jazowski's testimony, and Coleman's admission that he was found in N.H.'s bed. Their statements to their mother and to police were largely consistent with their trial testimony.
Coleman contends there was insufficient evidence of penetration. However, N.H. testified there was penetration and Dr. Lukk testified the bruising was consistent with penetration. She could not say to a reasonable medical certainty there was penetration because internal exams are not customarily done on children N.H.'s age. Her testimony, however, was sufficient to corroborate that of N.H. that penetration occurred.
DECISION
The trial court did not prejudicially err in allowing testimony on the truthfulness of R.H. The court did not abuse its discretion in allowing cross-examination on appellant's 1967 conviction. Questioning of appellant on the facts underlying the 1974 convictions was harmless error. The evidence was sufficient to sustain the convictions.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
207 Cal.App.2d 526 (1962)
THE PEOPLE, Plaintiff and Respondent,
v.
JEROME A. PIERCE, Defendant and Appellant.
California Court of Appeals.
Sept. 7, 1962.
Flier & Ross, Theodore Flier, Roger Bentley and Norman R. Atkins for Defendant and Appellant.
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Mario A. Roberti, Deputy Attorney General, for Plaintiff and Respondent.
FORD, J.
The appellant was found guilty of the crime of grand theft. (Pen. Code, 487.) In the count upon which *527 he was convicted he was accused of the theft of money belonging to named persons. There was evidence that he had failed to turn over to them the proceeds of the sale by him of their automobile and that he had used the money for his own purposes. His appeal is from the judgment and from the order denying his motion for a new trial.
[1] The sole contention made in the brief filed on behalf of the appellant is that his conviction cannot stand because section 868 of the Penal Code was violated at the preliminary examination in that the court declined to exclude from the hearing the investigating officer, James E. Gibbons, an investigator in the office of the district attorney. [fn. 1] (See People v. Prizant, 186 Cal.App.2d 542 [9 Cal.Rptr. 282].) However, Mr. Gibbons was also the person who signed the complaint. Therefore, under the reasoning of the court in People v. McCain, 200 Cal.App.2d 825 [19 Cal.Rptr. 550], at pages 826-828, there is no merit in the appellant's contention.
The present attorneys for the appellant were substituted for the attorney who tried the case and who prepared the only brief filed on behalf of the appellant. [2] At the oral argument the new counsel raised a contention not mentioned in the appellant's brief. While not required to consider a contention so presented, we have done so. [3] Reference was made to a request by the jury, after it had commenced its deliberations, that the court reread a particular instruction. That instruction was the one numbered 231 in the revised edition of the work entitled California Jury Instructions, Criminal (CALJIC). [fn. 2] The trial judge did not reread all of that instruction, although he used the language of parts thereof. Instead, he gave the jurors factual illustrations of *528 the three types of theft with which the instruction was concerned. At the oral argument before this court the counsel for the appellant criticized the manner in which the trial judge complied with the jurors' request in the following words: "Well, he ... gives the distinctions and gives examples of what he thinks are larceny by trick and device, embezzlement and false pretenses. Then he tells them he is not commenting on the evidence in any way, shape or form, but nowhere does he tell them what the elements are of false pretenses, larceny by trick or device, embezzlement, what has to be present in order to find these particular elements, to come in on this theft situation, and he doesn't tell them that the elements have to be found beyond a reasonable doubt." The point is devoid of merit. When the jury was instructed prior to the submission of the case to it, the whole of CALJIC instruction 231 was read (except for the deletion of the words "or labor"), together with an additional paragraph as noted in footnote 2 of this opinion. Other instructions given were CALJIC 220, which was a definition of theft by larceny, CALJIC 224, which was a definition of theft by embezzlement, CALJIC instruction 226 entitled "Theft by False Pretenses," as modified, and CALJIC instruction 21 which, in the language of section 1096 of the Penal Code, stated the presumption of innocence and the doctrine of reasonable doubt. Under the circumstances, in responding to the jury's request as to CALJIC instruction 231 it was not incumbent upon the trial judge to repeat the other instructions herein noted. No basis for a claim of prejudice has been shown.
The judgment and the order denying a new trial are affirmed.
Shinn, P. J., and Files, J., concurred.
In addition, the instruction contained a concluding paragraph as follows: "However, it is necessary that you all agree as to which of the three types of theft was committed. If you should not be able to do that, the unanimity of decision necessary to warrant a verdict of 'guilty' would be lacking, and it would be improper for you to deliver such a verdict." As to whether it was necessary to include that paragraph in the instruction, see People v. McManus, 180 Cal.App.2d 19, 31-32 [4 Cal.Rptr. 642].
NOTES
[fn. 1] 1. The preliminary hearing was held prior to the effective date of the 1961 amendment of section 868 of the Penal Code which added "the investigating officer" to the list of persons excepted from the rule of mandatory exclusion from the hearing upon the request of the defendant.
[fn. 2] 2. The first paragraph of that instruction was in part as follows: "Sometimes it is difficult to determine which, if any, of three forms of theft the facts of a case show was committed. ... Those three forms of theft are: 1. Embezzlement; 2. Obtaining property ... by false pretense; and 3. Larceny by trick and device."
| {
"pile_set_name": "FreeLaw"
} |
367 Pa. Superior Ct. 79 (1987)
532 A.2d 463
COMMONWEALTH of Pennsylvania, Appellant,
v.
Brian HOFFMAN, Appellee.
Supreme Court of Pennsylvania.
Submitted June 17, 1987.
Filed October 13, 1987.
*80 Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellant.
Shelley Stark, Assistant Public Defender, Pittsburgh, for appellee.
Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
*81 PER CURIAM:
This is an appeal by the Commonwealth from the pretrial court's grant of appellee's motion to suppress a certain recorded conversation and the transcript thereof. Finding the suppression court's reliance upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny to be misplaced, we reverse the order of the suppression court and remand for further proceedings.
We initially note that the Commonwealth has set forth in its statement of jurisdiction that the entry of the suppression order in question substantially handicapped the prosecution, thereby properly invoking the jurisdiction of this court to entertain the appeal from an otherwise interlocutory order. In light of our Supreme Court's holding in Commonwealth v. Dugger, 506 Pa. 537, 545-46, 486 A.2d 382, 386 (1985), we will entertain the within appeal.
The Commonwealth argues that the trial court's suppression order was erroneous for two reasons: (1) appellee's Sixth Amendment right to counsel was not violated by the Commonwealth's interception of his second telephone call to the Commonwealth witness; and, (2) interrogation, as contemplated by Massiah and its progeny, did not occur in the instant case. For the following reasons, we agree with the Commonwealth on both claims.
Appellee was charged with criminal homicide. During a pretrial conference, a potential prosecution witness informed the Commonwealth that she had been at a party with the defendant and his codefendant. The victim arrived at the party with the codefendant, who secured a drink and returned to a truck with the victim. Appellee then entered the kitchen of the house where the party was held and said that they were going to "roll" and kill the victim. Appellee was also reported as saying that he was going to get a knife for that purpose. He showed the witness a knife before he left the party with his codefendant and the victim. A copy of the interview report was immediately given to defense counsel. Within two hours of disclosure of the *82 report, appellee, through a third party, called the witness at home and asked her to change her story. Appellee suggested that if she were asked why her testimony differed from the reported statement, she should indicate that she was forced to make the initial statement by the police. Appellee also indicated that he would call again the following day between 4:00 p.m. and 5:30 p.m. to ensure her cooperation. The witness notified the police of the telephone call, and wiretap procedures were initiated through the District Attorney's Office. Appellee telephoned the witness at 5:20 p.m. on the prearranged date and the conversation was recorded.
The Commonwealth proposed to offer the transcript and/or the tape recording through the direct testimony of the witness as evidence of consciousness of guilt. Defense counsel objected on the grounds that the witness acted as a state agent at the time of the telephone call, that appellant had been charged, arraigned and was represented by counsel, therefore raising the question as to the legality of the offer in light of Massiah and other cases. The suppression court found that the witness interrogated appellee in violation of his Sixth Amendment rights by asking appellee what he wanted her to say and granted the suppression motion.
It is clear that that the Massiah court found that the Sixth Amendment only forbids deliberate elicitation of incriminating remarks. Cf., e.g., Kuhlmann v. Wilson, 477 U.S. 436, 457, 106 S.Ct. 2616, 2629, 91 L.Ed.2d 364, 383 (1986); and United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115, 122 (1980). The activity which formed the basis for the suppression court's order herein does not give rise to deliberate elicitation of incriminating information by appellee.
As enunciated in Kuhlmann v. Wilson, supra, 477 U.S. at 459, 106 S.Ct. at 2630, 91 L.Ed. at 384-385:
. . . the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since "the Sixth Amendment is not violated whenever by luck *83 or happenstance the State obtains incriminating statements from the accused after the right to counsel has attached," [Maine v. Moulton] 474 U.S., [159], at [176], 106 S.Ct. at [477] at 487 [88 L.Ed.2d 481 (1985)], citing United States v. Henry, supra, [447 U.S.] at 276, 100 S.Ct., at 2189 (Powell, J., concurring), a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
In light of the Kuhlmann enunciation, we must determine whether appellee demonstrated to the suppression court that some action was taken which was deliberately designed to elicit incriminating remarks.
As we noted earlier, appellee initiated and followed up on the contact with the witness. It was only after appellee's first telephone call that the witness contacted the authorities and informed them that appellee wanted her to change her testimony. Based upon this information, the authorities decided to record the second telephone conversation which was suggested and initiated by appellee. During the recording of the subject conversation, the certified officer, an Assistant District Attorney, did not listen to appellee's side of the conversation. He only heard the witness' voice. No efforts were made during that conversation to have the witness specifically elicit incriminating information; instead, the witness was instructed to avoid discussion of the trial or the pending charges against appellee. In light of the circumstances surrounding the intercepted conversation, we find that (1) the conversation did not give rise to interrogation as contemplated by Massiah and its progeny; and, (2) appellee's Sixth Amendment right to counsel was therefore not violated by the interception.
In conclusion, we note that we find no merit in appellee's counter-claims that (1) the appeal should be quashed because *84 there is no statutory authorization for the appeal by the Commonwealth; (2) the Commonwealth has taken this appeal in bad faith as a trial delaying tactic; and, (3) the Commonwealth's allegations herein are based upon findings of fact and therefore not appealable. Our initial finding that this appeal is properly before us on its merits disposes of appellee's first counter-claim. As to his second and third, we find no evidence of bad faith on the part of the Commonwealth in exercising its legal right to appeal under these circumstances, and further find that the Commonwealth's allegations are clearly premised upon issues of law and not findings of fact.
The order of the suppression court is reversed, and the matter is remanded for further proceedings. Jurisdiction is relinquished.
| {
"pile_set_name": "FreeLaw"
} |
665 F.2d 1055
U. S.v.Ferguson
81-1215
UNITED STATES COURT OF APPEALS Ninth Circuit
11/4/81
1
S.D.Cal.
AFFIRMED IN PART REVERSED IN PART
| {
"pile_set_name": "FreeLaw"
} |
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Mack B. Yates v. Harris County
Appellate case number: 01-16-00086-CV
Trial court case number: 2014-67727
Trial court: 113th District Court of Harris County
Appellant, acting pro se, has filed a motion for extension of time to file an affidavit of
indigence. We grant the motion. Appellant may file an affidavit in compliance with TEX. R.
APP. P. 20.1 within 10 days of the date of this order.
It is so ORDERED.
Judge’s signature: /s/ Rebeca Huddle
Acting individually
Date: March 1, 2016
| {
"pile_set_name": "FreeLaw"
} |
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-16266
Plaintiff-Appellee, D.C. No. 3:11-cv-01118-LB
v.
MEMORANDUM*
ROBERT MACHINSKI,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding**
Submitted December 14, 2018***
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Robert Machinski appeals pro se from the district court’s summary judgment
in the government’s action to collect unpaid federally reinsured student loans. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Falcon, 805 F.3d 873, 875 (9th Cir. 2015). We affirm.
The district court properly granted summary judgment because Machinski
failed to raise a genuine dispute of material fact as to his student loan liability. See
id. at 876 (setting forth prima facie case and parties’ respective burdens on
summary judgment in an action brought by the United States to recover unpaid
federally reinsured student loans); see also Fed. R. Civ. P. 56(c) (setting forth
evidentiary support required in opposing a motion for summary judgment); Bias v.
Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (affirming summary judgment
where pro se non-moving party presented no evidence creating a genuine dispute
of material fact).
The district court did not abuse its discretion by considering the evidence
submitted by the United States because the evidence was properly authenticated
and was not precluded by the rule against hearsay. See Fed. R. Evid. 801(c)
(defining hearsay); Fed. R. Evid. 803 (enumerating exceptions to hearsay rule);
Fed. R. Evid. 901(a) (authentication requirement satisfied by “evidence sufficient
to support a finding that the item is what the proponent claims it is.”); Fed. R.
Evid. 901(b)(1) (witness testimony satisfies authentication requirement); see also
Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002) (evidentiary
rulings reviewed for abuse of discretion “even when the rulings determine the
outcome of a motion for summary judgment”).
2 17-16266
Magistrate Judge Beeler carefully and thoroughly considered each of
Machinski’s arguments. After her first order granting the government’s motion for
summary judgment, she reconsidered her initial decision and issued a second
detailed order further explaining her analysis and confirming her initial decision.
During this process, Machinski essentially focused on the matters he brings to us
on appeal. Judge Beeler answered each of them in exquisite detail. We find her
analysis and orders to be error-free and correct in every instance.
We do not consider arguments raised for the first time on appeal or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 17-16266
| {
"pile_set_name": "FreeLaw"
} |
405 F.2d 270
Robert J. SCHWARTZ, Plaintiff,v.COMPAGNIE GENERAL TRANSATLANTIQUE, Defendant and Third-Party Plaintiff-Appellant,v.The UNITED STATES of America, DEPARTMENT OF JUSTICE, BUREAU OF IMMIGRATION AND NATURALIZATION SERVICE, Third-Party Defendant-Appellee.
No. 162.
Docket 32648.
United States Court of Appeals Second Circuit.
Argued November 6, 1968.
Decided December 11, 1968.
1
COPYRIGHT MATERIAL OMITTED Thomas H. Healy, New York City (Hill, Betts, Yamaoka, Freehill & Longcope, New York City, on the brief), for defendant and third-party plaintiff-appellant.
2
Peter Martin Klein, Atty., Admiralty and Shipping Section, Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Robert M. Morgenthau, U. S. Atty., Louis E. Greco, Atty. in Charge, New York Office, Admiralty and Shipping Section, Dept. of Justice, on the brief), for third-party defendant-appellee.
3
Before WATERMAN and FEINBERG, Circuit Judges, and LEVET, District Judge.*
LEVET, District Judge:
4
Compagnie General Transatlantique (hereinafter "French Line") has appealed from a judgment by Metzner, D. J., dismissing upon motion a third party claim of the French Line against the third-party defendant, United States of America. We affirm.
THE PRIMARY ACTION
5
The primary action is a claim made by plaintiff, Robert Schwartz, an Immigration inspector employed by the United States, who alleged that on October 28, 1964 he suffered injuries while aboard the SS France, owned by the French Line, in New York Harbor during the course of his official duties. Schwartz alleges that while working in the main lounge clearing passengers for admission into the United States, he was caused to trip and fall by reason of the ship's maintaining its piano platform and the carpeting thereof in a dangerous and defective condition, etc. The claim is based upon negligence.
6
THE THIRD PARTY COMPLAINT AGAINST THE UNITED STATES
7
A third party complaint against the United States was filed by the French Line on May 8, 1967. The French Line alleged jurisdiction based upon the provisions of Title 28 U.S.C.A. §§ 1346(b) and 2671 et seq. and Title 46 U.S.C.A. § 781 et seq. The gist of that complaint is that plaintiff boarded defendant's vessel in the exercise of his official functions; that thereby his employer, the United States, agreed and was obligated by the operation of law to conduct its immigration inspection in a reasonable and proper manner, exercising all supervision and maintaining all equipment in a proper manner; and that the United States warranted that the personnel who boarded defendant's vessel would perform their work in a reasonable and workmanlike manner. The complaint further alleged that the injury to Schwartz was without fault or negligence on the part of the French Line and that if Schwartz sustained injuries as alleged in his complaint these were caused by the "active negligence and breach of third-party defendant," requiring indemnity to the French Line.
THE MOTION BY THE UNITED STATES
8
The United States moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment dismissing the third party complaint. Prior to this motion, the French Line and the United States stipulated that the third party complaint seeks recovery "solely upon an implied contract of workmanlike performance arising out of the status existing" between them on the day the accident happened. It is also noted that the stipulation above mentioned contained this further statement:
9
"The execution of this stipulation is without prejudice to the position of the United States of America that there was not any such implied contract and that there was not any status which gave rise to such an implied contract."
10
In its complaint against the United States, the French Line does not state the nature of the warranty; the complaint states neither what the United States was required to do nor what the United States failed or neglected to do. Although the third party complaint alleged that the third-party defendant, the United States, was "obligated by the operation of law to conduct its function in a reasonable and proper manner and to provide all supervision necessary for the reasonable conduct of its work" (Par. Sixth) and further asserted that if the plaintiff, Schwartz, sustained injuries through any fault other than his own it was caused by failure of the United States to perform its functions in a reasonable manner, etc. (Par. Tenth), not one word of specific fact to sustain these contentions was presented by the French Line.
11
The motion was made upon an affidavit of John J. McKeon, which set forth the official character of the acts in which Schwartz was engaged in the SS France, and further stated that "There was no contract between the Service [i. e., Immigration and Naturalization Service] and Compagnie General Transatlantique or SS France pertaining to the presence of Immigration Inspectors aboard the vessel." The French Line submitted no opposing affidavits.
12
The record on this appeal contains interrogatories by the United States addressed to the French Line and answers by the French Line; but these answers in this instance are not affidavits as required by Rule 56 of the Federal Rules of Civil Procedure. The answers are alleged on "information and belief" and contain these words: "This statement is a mere gratuity on third-party plaintiff's behalf. Further answers shall not be forthcoming * * *." The answers were not verified by the French Line. Such answers may not be considered in opposition to the motion of the United States for summary judgment.1
13
The affidavit submitted by the United States in support of its motion contained no factual statements as to the basis, or lack of basis, of the claim of Schwartz against the French Line. Neither party to this motion has sought judgment on any factual issue with regard to liability of the French Line to Schwartz, and no trial or verdict has yet been had upon the claim of Schwartz against the French Line. The French Line failed to present on the record any evidence indicating the existence of a genuine issue of material fact as to its claim against the United States. Appellant confines its argument to its contention that the complaint states a cause of action. The opinion of Judge Metzner clearly indicates that he dismissed the complaint because it did not state a cause of action.
14
Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment. "A motion for summary judgment may be made solely on the pleadings, when it is so made it is functionally the same as a motion to dismiss or a motion for judgment on the pleadings." 6 Moore's Federal Practice, ¶ 56.02[3], p. 2035. See Mercantile Nat'l Bank at Dallas v. Franklin Life Ins. Co., 248 F.2d 57 (5th Cir. 1957). Summary judgment procedure may be properly invoked for determination of a legal question. Agrashell, Inc. v. Hammons Products Co., 248 F.Supp. 258 (S. D.N.Y.), aff'd 352 F.2d 443 (2nd Cir. 1966).
15
Defendant may move for summary judgment at any time after a pleading stating a claim is served upon him provided it clearly appears that no valid claim against him exists. United States v. William S. Gray & Co., 59 F. Supp. 665 (S.D.N.Y.1945); Myers v. Cromwell, 267 F.Supp. 12 (D.Kansas 1967); Gifford v. Travelers' Protective Assn., 153 F.2d 209 (9th Cir. 1946). Hence, the motion of the third-party defendant was not premature.
CONTENTIONS OF APPELLANT, FRENCH LINE
16
On this appeal the pertinent contentions of counsel for the French Line were:
17
(1) That the motion should have been denied since there is a question of fact concerning the "status" of the shipowner and the government;
18
(2) That an implied warranty of workmanlike service exists which does not depend upon a contractual relationship, does not require privity, and that the alleged warranty "has become a policy instrument used by the courts to allocate losses equitably."
APPEALABILITY
19
The judgment entered upon this motion states, in the words of Rule 54 (b), that there is "no just reason for delay of entry of this judgment." However, the mere fact that a certificate has been issued does not necessarily indicate that the certificate was properly issued. See McNellis v. Merchants Nat'l Bank & Trust Co., 385 F.2d 916 (2nd Cir. 1967); Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339 (2nd Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 146, 11 L.Ed.2d 110 (1963); Panichella v. Pennsylvania R. R., 252 F.2d 452 (3rd Cir. 1958).
20
Recently, this court dismissed an appeal from a judgment, holding that the trial court had abused its discretion in making a Rule 54(b) certification. Campbell v. Westmoreland Farm, Inc., 2nd Cir. 1968, 403 F.2d 939. In that case we said that "there must be some danger of hardship or injustice through delay which would be alleviated by immediate appeal." We also quoted with approval the warning of the Third Circuit that Rule 54(b) orders "should not be entered routinely or as a courtesy or accommodation to counsel. The power which this Rule confers upon the trial judge should be used only `in the infrequent harsh case' as an instrument for the improved administration of justice * * *." Panichella v. Pennsylvania R. R., 252 F.2d 452, 455 (3rd Cir. 1958).
21
The Campbell case may be distinguishable on its facts for a number of reasons; e. g., the dismissal of two of the plaintiffs' three causes of action there still left the same parties in the case, while here dismissal of the third party claim eliminated the government as a party; in Campbell, plaintiffs could not be sure, until the trial of its remaining claim, of the identity of the defendant in the dismissed claims. We are also aware that the emphasis in Campbell that a Rule 54(b) order should be entered only in the infrequent harsh case followed the order in this case. On balance, we do not feel justified in holding that there was an abuse of discretion in this case. However, we note that Rule 54(b) orders usually have the unfortunate effect of delaying the main action; e. g., this case is not presently, and has never been, on the trial calendar; a note of issue and statement of readiness was filed on June 8, 1967, but subsequently withdrawn after objection, June 26, 1967; note of issue was again filed June 20, 1968, but withdrawn by consent on October 4, 1968. We again emphasize that Rule 54(b) orders should not be entered routinely or as a courtesy to counsel and suggest that when such orders are granted, the trial judge marshal the competing considerations and state the ones considered to be most important.
THE OPINION OF THE DISTRICT COURT
22
The District Judge in his opinion granting the motion for summary judgment and dismissing the action pointed out that the claim of the French Line is not founded in tort and that there was no contractual relationship between the French Line and the United States, whereas in cases where a warranty of good workmanship was implied the services concerned were to be rendered pursuant to a contract for the benefit of the vessel. The District Judge found that no warranty could be implied from the status existing between Schwartz and the French Line.
THE IMPLIED WARRANTY CONTENTION
23
The doctrine of an implied warranty of workmanlike service, which is the sole ground urged for recovery of indemnity from the United States, is inapplicable to the present case. Even a liberal interpretation of Supreme Court decisions provides no support for that assertion. The doctrine is usually invoked by a vessel or shipowner to recover an indemnity from a stevedore or other independent expert which had control over, and performed, work which would traditionally have been done by employees of the vessel or owner. Italia Societa, etc. v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964); Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).
24
This warranty doctrine is one of several special rules developed to further a policy of both minimizing accidents to seamen and stevedores which arise out of the hazards of their shipboard occupation and compensating those workers who do fall victim to these accidents. Italia Societa, etc. v. Oregon Stevedoring Co., supra, 376 U.S. at 324, 84 S.Ct. 748. Even if this court were to construe the Italia Societa case to hold that one who undertakes to do a job for a shipowner and is not negligent in any respect nevertheless has an insurer's absolute liability to indemnify for liability to injured workers which the shipowner may incur, we would still not hold that the warranty doctrine can be invoked against the government in the case at bar.
25
In every case advanced by the French Line, the warranting indemnitor had undertaken to perform a business service upon which the indemnitee-owner had ultimately relied. Even if we were to read Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1954) to extend the coverage of the doctrine of seaworthiness to all classes of business visitors aboard the vessel who aid in the preparation of the voyage or further the business of the ship, enlargement of that doctrine to this plaintiff on the principal action is unjustified. Immigration inspection is a statutory function designed to protect the interests of the nation; we cannot agree that its object is to further the business aims of a shipowner where the statute specifically empowers inspectors to board and perform their duties without consent of the owner. The plaintiff was acting in a capacity sanctioned by statute regardless of whether any alleged informal arrangements with the shipowner were entered into by the government.
26
Such an interpretation of the Hawn case would be unwarranted. The Supreme Court seems to have limited the class of those who may avail themselves of the benefits of the seaworthiness doctrine to those doing work "traditionally performed by members of a ship's crew." United N. Y. and N. J. Sandy Hook Pilots' Assoc. v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1958). Clearly, such a standard excludes an Immigration inspector from pursuing remedies based upon a claim of unseaworthiness and that in turn bars the type of action asserted by the French Line.
27
Appellant also asks this court to apply the workmanlike service warranty doctrine beyond its traditional shipowner-stevedore relationship in the interest of implementing an "* * * expressed legal concept of allocation of loss to the interests whose functions involve such risks." French Line brief, p. 8. By way of support of this proposition, French Line cites Ira S. Bushey & Sons, Inc. v. United States of America, 398 F.2d 167 (2nd Cir. 1968). There is no reason to extend the warranty doctrine to non-contractual non-service relationships such as the instant case. Bushey, supra, was a tort action by a dock owner against the government for damages arising out of the negligence of one of its sailors in sinking a drydock to which a government vessel was attached. Contrary to appellant's contention, the court declined to base its decision on an allocation of resources analysis. Instead, it held the government liable on the equitable principle underlying the doctrine of respondeat superior that "* * * a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities." Bushey, supra at 171.
28
Bushey did not involve an indemnity or warranty suit. Though the government was a party, it was a defendant because it was a shipowner engaged in business dealings with plaintiff. In the present instance, the government is operating under a statutory duty with full power to send its Immigration inspectors aboard ships without formal or informal agreements or arrangements with the vessel's owner. 8 U.S.C.A. § 1357. The government can hardly be considered to be performing a service for the shipowner.
29
The courts have recognized that the doctrine of seaworthiness, which creates liability without fault, places an extremely heavy burden of liability on the shipowner. Indemnity is permitted the shipowner because his reliance upon an independent contractor frequently results in the shipowner's vicarious liability for injuries without fault. See DeGioia v. United States Lines Company, 304 F.2d 421 (2nd Cir. 1962).
30
Since any equitable considerations underlying the decision of courts to require indemnity by applying the implied warranty of workmanlike service are ultimately derived from a shipowner's liabilities under the seaworthiness guarantee, where there is no such possible liability, as in this case, there can be no requirement of indemnity under the warranty doctrine.
31
The fact that a shipowner may be found liable to plaintiff due to the ship's negligence is hardly an injustice per se requiring this court to invoke an artificial equitable doctrine of indemnity. The shipowner is obligated to pay plaintiff only if it was negligent and if, as a proximate result thereof, Schwartz suffered injuries; and since the doctrine of comparative negligence seems to apply, the French Line does not pay for the injuries insofar as they may have been caused by plaintiff's own negligence.
Notes:
*
Of the Southern District of New York, sitting by designation
1
Although answers to interrogatories may be considered "so far as they are admissible under the rules of evidence," where such answers are not based upon personal knowledge, such answers have no probative force. State of Maryland for Use of Barresi v. Hatch, 198 F.Supp. 1 (D.Conn.1961). See also S & S Logging Co. v. Barker, 366 F.2d 617 (9th Cir. 1966); H. B. Zachry Company v. O'Brien, 378 F.2d 423 (10th Cir. 1967)
| {
"pile_set_name": "FreeLaw"
} |
992 F.2d 75
UNITED STATES of America, Plaintiff-Appellee,v.Mack DEVANEY, Defendant-Appellant.
No. 92-5645.
United States Court of Appeals,Sixth Circuit.
Argued Jan. 22, 1993.Decided and Filed April 26, 1993.
Michael J. Mitchell, Asst. U.S. Atty. (briefed), Jerry G. Cunningham, U.S. Atty., Ed Schmutzer, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Knoxville, TN, for plaintiff-appellee.
Mack Devaney, pro se.
Tim S. Moore (argued and briefed), Newport, TN, for defendant-appellant.
Before: JONES and SUHRHEINRICH, Circuit Judges; and WELLFORD, Senior Circuit Judge.
WELLFORD, Senior Circuit Judge.
1
Mack Devaney appeals his sentence following a Rule 11 plea agreement concerning his unlawful possession of a firearm as a convicted felon. More specifically, the government charged Devaney with
2
making a false statement to a firearms dealer in connection with the acquisition of a firearm, an offense punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce, that is, a firearm; that is, one loaded Browning model 425RV .380 caliber semiautomatic pistol, serial number 07361, in violation of Title 18 United States Code, Section 922(G)(1) and 924(A)(2).
3
Joint Appendix 20.
4
When called upon by the sentencing judge at the Rule 11 hearing to set forth the government's case, the prosecutor first referred to a 1991 Tennessee state court indictment charging defendant with the theft of a boat valued at more than $1,000 and an "attempt to commit aggravated robbery." The latter state offense centered around the arrest and the finding of Devaney's possession of a concealed (and loaded) weapon, which purportedly was involved in travel, "effecting interstate commerce." Joint Appendix 21. A further reference was made to defendant's prior 1990 conviction in federal court of making a false statement to a federal firearms dealer. Devaney expressed no disagreement with the government's summary of his recent record of offenses, both federal and state, nor to the fact that he was on parole at the time of the federal offense at issue.
5
The district court inquired as to whether Devaney understood that his guilty plea to the federal offense was "not going to help [his] potential of getting out of the state institution on early release," and Devaney responded affirmatively. The district court also advised that his sentence "could be enhanced or increased due to any prior convictions."
6
Following acceptance of the plea agreement, the district court revoked the previous sentence and imposed a new sentence which made no reference to whether the federal sentence would run concurrent with, or consecutive to, his state sentence. The sentence imposed was within the guideline range. It is the consecutive or concurrent aspect of the federal sentence1 that is challenged on this appeal.
7
After imposition of sentence and a brief recess, defendant's counsel raised the issue of whether the federal sentence could be served concurrently with the state sentence. The following exchange took page:
8
DEFENSE COUNSEL: Your Honor, I guess a point of clarification--and if I am wrong on it we would request it, is the running of this time with the state charges.
9
I understand from the probation office that his state sentence that he is serving now would run through the summer of 1995.... We are asking that the federal sentence run concurrent with that.
10
THE COURT: I don't see how I can do that.
11
DEFENSE COUNSEL: So it would be consecutive then?
12
THE COURT: Yes.
13
(emphasis added).
14
Devaney's principal argument is that the district court ordered the sentence to run consecutively because it was under the mistaken assumption that it had no discretion to order the federal sentence to run concurrently with the state sentence. To support this conclusion, the defendant points to (1) the prosecution's statement that Devaney had been cooperative, and (2) the court's statement emphasized above: "I don't see how I can do that."
15
Based upon the overall context of the sentencing hearing, however, we are not persuaded that the district judge was operating under a misapprehension that the federal sentence was mandated to be a consecutive one. We think the more reasonable inference is that the judge simply meant that, under the circumstances, he believed a concurrent sentence was inappropriate.
16
The parties agree that the sentencing judge had discretion to order the sentences to run concurrently, had he thought it appropriate. 18 U.S.C. § 3584. Since we conclude that there is no basis to assume that the district court judge felt he lacked authority to order a concurrent sentence, the only remaining question is whether he abused his discretion by not doing so.
17
There is ample indication in the record that the district court considered the proper factors and circumstances when addressing Devaney's sentence. Title 18, United States Code § 3553 outlines several factors judges should consider when determining a proper sentence, including "just punishment" and "adequate deterrence to criminal conduct." 18 U.S.C. §§ 3553(a)(2)(A), (B). Twice during sentencing, Judge Jordan indicated that the sentence imposed would "afford an adequate deterrence and provide just punishment." During the same discussion, the judge noted that the sentence should run consecutively. Ordering the sentence to run concurrently would have reduced the federal sentence by nearly three-fourths in favor of a defendant who had been on parole when he committed the offense. Therefore, we think it clear that the district judge exercised his discretion with respect to ordering consecutive sentences.
18
Decisions whether to order consecutive or concurrent sentences are reviewed for abuse of discretion. United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2034, 114 L.Ed.2d 119 (1991); see also United States v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989) (employing abuse of discretion standard in downward departure case).
19
Section 5G1.3 of the United States Sentencing Guidelines applies when the court must impose a sentence on a defendant "subject to an undischarged term of imprisonment." In cases such as this, the guideline requires that "the sentence for the instant offense shall be imposed to run consecutively to the prior unexpired term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense." USSG § 5G1.3(c). Devaney does not contend that either the 44 month original sentence or the four month add-on sentence exceeded the limits imposed by the sentencing guidelines, nor was the sentence unreasonable under the circumstances.
20
We note, moreover, that Devaney made no motion for modification of the sentence, following its entry, on the grounds that the district court misunderstood its authority to direct it to be served concurrently with the state sentence. Consequently, we AFFIRM the district court's order that the federal sentence should run consecutively with the state sentence.
21
NATHANIEL R. JONES, Circuit Judge, dissenting.
22
Because I find that it is not clear from the record whether the district court knew it had the discretion to order that Mack Devaney's federal sentences run concurrently with his state sentence, I would remand the case to the district court for further proceedings. As a result, I dissent.
23
The transcript from the sentencing hearing shows that the following took place. First, the court sentenced Devaney. When the court sentenced Devaney for both the firearm charge and for violation of probation, it mentioned that the federal sentences imposed will afford "adequate deterrence and provide just punishment." J.A. at 35, 37.1 Second, the court stated that the federal sentences were to run consecutive with each other. After sentencing Devaney, the court stated:
24
The defendant is currently serving a state sentence. It is ordered that a detainer be lodged against him and upon his release form [sic] state custody that he be remanded to the custody of the United States Marshal Service.
25
Id. at 38-39. Soon thereafter, the court recessed. At some later point, the case was reconvened and the following dialogue took place:
26
MR. HOUSER [Defendant's counsel]: In the Mack DeVaney case, we had maybe a point of clarification and/or a request.
27
THE COURT: All right.
28
MR. HOUSER: Your Honor, I guess a point of clarification--and if I am wrong on it we would request it, is the running of this time with the state charges.
29
I understand from the probation office that his state sentence that he is serving now would run through the summer of 1995.
30
MR. DEVANEY: That is right.
31
MR. HOUSER: That is correct according to Mr. DeVaney and Ms. Candela, and we are asking that the federal sentence run concurrent with that.
32
THE COURT: I don't see how I can do that.
33
MR. HOUSER: So it would be consecutive then?
34
THE COURT: Yes.
35
MR. HOUSER: Very well.
36
THE COURT: Thank you.
37
Id. at 39-40 (emphasis added). After this dialogue, the matter was adjourned.
38
Based on the hearing, it is plausible that the district court did not think that it could impose a federal sentence concurrent with a state sentence. However, it is just as plausible that it did know that it had that option.
39
The court's earlier comments--"adequate deterrence" and "just punishment"--may indicate that the court recognized that the federal sentences could be imposed concurrently or consecutively with the state sentence. It could be that the court thought the federal sentences should run consecutive to any state sentence in order to adequately punish and deter Devaney for his current federal violations. Or the comments could have meant simply that, in light of the applicable guideline range, the sentences are reasonable.
40
The court's later statement makes it more difficult to determine whether the court knew it had the discretion to impose concurrent or consecutive sentences. When the court was specifically asked about the possibility of having the sentences run concurrently, the court's response--"I don't see how I can do that"--may indicate that it did not know that it had that option. The government argues, however, that the statement does not reflect that the court was laboring under a mistaken impression of its sentencing discretion. The government argues that the court was merely informing Devaney that it was not going to give him what he was asking for. Again, both ways of viewing the statement seem plausible.
41
The Sixth Circuit has previously dealt with whether a district court recognized that it had the discretion to impose concurrent or consecutive sentences. In United States v. Stewart, 917 F.2d 970, 971 (6th Cir.1990), the district court had indicated on the record, more than once, that it ordered a consecutive sentence because it felt it had no discretion to order a concurrent sentence. Because the district court explicitly and repeatedly stated that it had no discretionary authority to impose concurrent sentences, this court remanded the case so that the district court could utilize its discretion. Id. at 973. In United States v. Smith, No. 92-5216, 1992 WL 317178, at * 4, 1992 LEXIS 28888, at * 10 (6th Cir. Oct. 27, 1992), "the district court listened to the defendant's arguments for a concurrent sentence and rejected them. Moreover, the district court not only rejected defendant's arguments for a concurrent sentence, it made an explicit statement of its reasons for imposing a consecutive sentence." That panel held that the district court recognized its discretionary authority and used it appropriately. Id.
42
Those two clear-cut cases show the foggy character of the record in this case. Nowhere did the court explicitly say that it had no discretion (although it did come close by saying "I don't see how I can do that"). However, nowhere did the court explicitly state that it realized that it had the discretion to impose concurrent sentences but refused to do so in this case. Because of the murky nature of this case, I would remand the case to the district court so that it could explicitly state whether it knew that it had the discretion to impose concurrent sentences. I find the benefit to the defendant could be potentially great and the inconvenience to the government would be minimal.
1
Judge Jordan observed that the sentence "will afford adequate deterrence and provide just punishment."
1
With regard to the firearms violation, the sentencing court stated, in pertinent part:
... defendant, Mack DeVaney, is hereby committed to the custody of the Bureau of Prisons for a term of 44 months in CR 3-91-105. This term is at the middle of the guideline range. This sentence will afford adequate deterrence and provide just punishment.
J.A. at 35. With regard to the probation violation, the court stated, in pertinent part:
... defendant, Mack DeVaney, is hereby committed to the custody of the Bureau of Prisons for a term of imprisonment of four months. Again this term is in the middle range of the guideline range. The sentence will afford an adequate deterrence and provide just punishment. This sentence will be consecutive to the sentence in CR 3-91-105.
Id. at 37.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the First Circuit
No. 17-1350
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM PINET-FUENTES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
Javier A. Morales-Ramos, on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and John A. Mathews II, Assistant United States
Attorney, on brief for appellee.
April 30, 2018
BOUDIN, Circuit Judge. William Pinet-Fuentes (Pinet)
pled guilty in the district court to a charge of illegal possession
of a machine gun, 18 U.S.C. § 922(o), and was sentenced to 30
months in prison to be followed by supervisory release; a further
condition prescribed by the court was that for the first half year,
Pinet would be subject to electronic monitoring and curfew
restrictions. Pinet's appeal contests both the 30-month sentence
and the release conditions.
Pinet was arrested on September 6, 2016, following an
earlier incident in Yabucoa, Puerto Rico. Pinet sat in a front
passenger seat of a car parked at an abandoned gas station at some
distance from the drug transaction that agents perceived him to be
observing. After a pat down of Pinet revealed that he had two
ammunition magazines in his pocket, he admitted to having a weapon
under the seat; it was a loaded Glock, with an extended magazine,
and was fully automatic. Pinet later conceded that his weapon had
earlier been in his lap and was placed under the seat as agents
approached the car.
Section 922(o) makes it unlawful for any person to
possess a "machinegun," with exceptions, such as military and
police, which do not apply to Pinet. "Machinegun," defined through
cross-references, is not limited to the popular conception
portrayed in movies, but effectively includes any weapon,
including a Glock, capable of fully automatic fire. See 18 U.S.C.
- 2 -
§ 922(a)(4) (noting that machinegun is defined in 26 U.S.C. §
5845).
After Pinet pled guilty, the Probation Officer filed a
pre-sentence report. The ultimate recommended calculation of
Pinet's sentencing range under the guidelines included an upward
adjustment on the premise that the Glock was a stolen firearm.
U.S.S.G. § 2K2.1(b)(4)(A). Pinet disputed the upward adjustment
at the sentencing hearing, as well as the report's recommendation
that for the first six months of supervised release, he be required
to abide by a curfew and submit to electronic monitoring.
At sentencing, the district court adopted, over Pinet's
objections, both the stolen weapon enhancement and the recommended
conditions as to curfew and monitoring. The district court also
imposed the 30-month sentence which was within the range
recommended in the pre-sentence report. The enhancement, the
sentence itself, and the supervised release conditions are all
issues pressed on this appeal. We take them in that order.
Under the sentencing guidelines, much in the sentence
depends on the score or "level" assigned to the defendant. The
level is to be adjusted upward by two levels if the defendant's
firearm was stolen. U.S.S.G. § 2K2.1(b)(4)(A). The district court
makes findings as to such matters under a preponderance of the
evidence standard by which the government must establish the
enhancement; but the district court is not limited by conventional
- 3 -
jury trial evidence rules and--pertinent here--may consider
reliable hearsay not within some settled exception. United States
v. Rodriguez, 336 F.3d 67, 71 (1st Cir. 2003).
The government offered as evidence a police report,
recounting an interview with the original owner, stating that the
weapon had been stolen from his vehicle in January 2015 while he
was at church. Pinet had previously claimed that he had bought
the gun several years prior to the owner's reported loss of it to
theft. The district court accepted the owner's version of events-
-no motive for him to lie was apparent--while Pinet's self-serving
explanation was convenient but not supported by any other evidence.
For the owner to lie to a police officer would have been
unwise and, so far as we can tell, Pinet gave no specifics to
support his own version of events. He says that the owner's claim
that he drove the gun to church is unlikely, but, based on our
frequent review of cases out of Puerto Rico, it is fair to say
guns are common enough. As between the owner's unimpeached
statement and the story told by a defendant with an obvious motive
to fabricate, the district court could choose to credit the owner.
This disposes of Pinet's enhancement claim without the need to
consider the government's further arguments on this issue.
Turning to Pinet's attack on the reasonableness of the
sentence, the guideline range--given Pinet's offense level and
criminal history--was 24-30 months’ imprisonment. Pinet claims
- 4 -
that the district court either did or may well have relied on an
inference that Pinet, sitting in a vehicle cradling an automatic
weapon and looking toward the scene of a drug transaction, was a
party to the transaction. The government concedes that it lacked
evidence to convict Pinet for the drug transaction.
Where there is a controverted matter during sentencing,
the district court is required to rule or find that the matter
will not affect sentencing. Fed. R. Crim. P. 32(i)(3)(B). Here,
the government said that it could not prove Pinet was involved in
the transaction beyond a reasonable doubt but said that the
evidence was enough for the judge to find that his involvement was
proved by a preponderance of the evidence. In substance, the court
resolved the matter favorably to Pinet, albeit by indirection.
When defense counsel pressed the issue, saying it would
be improper for the court to accept that Pinet was part of the
conspiracy being witnessed, the judge replied that he was merely
describing the government's allegation. Counsel replied, "Well as
long as it's an allegation, and I understand that you will not
take it into consideration, that will be fine." The judge then
said, "Anything else?" and moved on.
It is enough to say that the judge appeared to accept
defense counsel's solution; counsel made no further protest; and
nothing said afterwards by the judge suggests that he did hold
Pinet responsible for a new and separate crime. As it happens,
- 5 -
the judge could have ruled that Pinet was responsible for this
second crime and relied directly on it in fashioning the sentence.
But the judge in this case sensibly left defense counsel's proposed
resolution to stand, making the dispute one that "will not affect
the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). That
answers this claim now made on appeal.
Pinet's final challenge is to the conditions governing
the first six months of the three-year period of supervised
release. The evident purpose was to limit during a test period
Pinet's freedom of action and provide authorities with a chance to
see whether Pinet was adapting to his new situation, obeying
standard supervisory release conditions and staying out of
trouble. The district court did not need to describe the obvious
steps in its thinking process. United States v. Colón de Jesús,
831 F.3d 39, 44 (1st Cir. 2016). Here, the district court's
reasoning is inferable from the record. See id. at 44-45 ("[A]n
unexplained condition of supervised release may be upheld as long
as the basis for the condition can be inferred from the record."
(citing United States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir.
2009))).
The district court enjoys wide discretion in setting
conditions for supervised release especially where public safety
may be at risk. United States v. Smith, 436 F.3d 307, 311-12 (1st
Cir. 2006). Even where a defendant's challenge is preserved at
- 6 -
trial, a reviewing court commonly defers to the trial judge who is
likely to be familiar with the defendant. Here the question is
whether the conditions were an abuse of discretion, United States
v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009)(citing United
States v. York, 357 F.3d 14, 19 (1st Cir. 2004)), and we conclude
that no such abuse occurred.
Nothing prevents Pinet after some experience with the
conditions from seeking their adjustment if he can show that the
conditions are a serious impingement on his ability to get and
keep a job or in other respects impose an unreasonable burden.
The judgment of the district court is affirmed.
- 7 -
| {
"pile_set_name": "FreeLaw"
} |
783 F.2d 1316
Yvonne NICOLSON, Plaintiff-Appellant,v.LIFE INSURANCE COMPANY OF the SOUTHWEST, Defendant-Appellee.
No. 85-3518.
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
March 10, 1986.
David L. Colvin, Gretna, La., for plaintiff-appellant.
Phelps, Dunbar, Marks, Claverie & Sims, Virginia N. Roddy, New Orleans, for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, REAVLEY and ROBERT MADDEN HILL, Circuit Judges.
OPINION
ROBERT MADDEN HILL, Circuit Judge:
1
Plaintiff Yvonne S. Nicolson1 appeals from the district court's grant of summary judgment for Life Insurance Company of the Southwest (LICSW). Finding that the insurance policy sued under was not in force on the date of the death of the insured, Roger A. Gifford, because he had previously effected the cancellation of the policy and no grace period applied, we therefore affirm.
I. FACTS
2
There is no dispute among the parties concerning the facts central to this appeal. On or about February 5, 1983, Nicolson and Gifford each completed applications for life insurance which were forwarded to LICSW. LICSW accepted these applications and issued two policies. LICSW issued the policy in question, number 137985 ("the policy"), a one year renewable term life insurance policy, to Gifford; the face amount of the policy was $100,000, the beneficiary was Nicolson, and the effective date was March 15, 1983. LICSW also issued policy number 137984 to Nicolson.
3
Nicolson wrote a check dated February 5, 1983, to pay the first premiums for both policies. Also on February 5, Gifford and Nicolson signed a "request for preauthorized check plan." This authorization provided for LICSW to draw checks on Nicolson's bank account to pay the premiums on the policies, each check to be deposited on the fifteenth day of the month. Pursuant to the authorization, LICSW drew checks on the account for monthly premiums until February 1984.
4
On or about January 28, 1984, Gifford applied for life insurance with the Massachusetts Indemnity and Life Insurance Company (MILCO). Next to a space on the application marked "Existing Insurance" Gifford listed his $100,000 policy with LICSW. Under the heading "Replacement" Gifford checked "yes." MILCO issued a policy to Gifford naming Nicolson as beneficiary. According to Nicolson, following the death of Gifford she received $125,000 in benefits under this policy.
5
Nicolson called her bank and requested them not to pay the LICSW premiums due on February 15, 1984. The bank complied and the check deposited by LICSW for the premium due February 15 was stamped "payment stopped, do not redeposit" and returned by the bank to LICSW on February 22. According to Nicolson, she stopped payment of the premiums because she and Gifford had purchased other life insurance.
6
Gifford and Nicolson also wrote to LICSW to cancel their policies. The letter stated the following:
Re: Cancellation of Policy
7
or Policies
Gentlemen:
8
This is official notification that I am cancelling the following insurance policies with your company as of this date:
Policy # 137985
137984
9
Please forward all cash values, dividends and interest from these policies to the above address. Do not exercise the automatic premium loan provision of my policies to pay any premiums, as I prefer to have all cash benefits sent directly to me.
10
Please do not have an agent contact me. Immediate action on this request will be greatly appreciated.
11
The letter was signed by Gifford and Nicolson. Although the letter was undated, LICSW received it on February 23, 1984. Included with the letter were policies 137984 and 137985. On March 7, 1984, LICSW wrote to Gifford stating "our records have been changed to terminate this policy as of the paid to date, term insurance does not have value." Gifford died on March 10, 1984.
12
On September 21, 1984, Nicolson filed suit in Louisiana state court against LICSW for $100,000, the face amount of the policy. Nicolson claimed the policy was in effect at Gifford's death because of a thirty-one day grace period provided for by the policy and by statute. LICSW succeeded in removing the case to federal court, where diversity jurisdiction existed. On cross-motions for summary judgment, the district court without opinion granted LICSW's motion and entered judgment for LICSW. Nicolson now appeals.
II. DISCUSSION
13
This case was an appropriate one for resolution by summary judgment, because there were no genuine issues as to any material facts. The parties agree that virtually every fact relevant to this appeal is undisputed.2 The dispositive issue is one of law: whether Louisiana law providing for a mandatory thirty-day grace period applies where the insured has affirmatively cancelled his policy.
14
Nicolson argues that two Louisiana statutory provisions require a thirty-day grace period extending coverage beyond the date when coverage would otherwise lapse. Since Gifford died within thirty days after his cancellation of the policy, Nicolson contends that these provisions kept the policy in force and entitled her to recover the face amount of the policy as its beneficiary. One provision requiring a grace period states in relevant part:
15
No policy of life insurance ... shall be delivered or issued for delivery in this state unless it contains in substance the following provision or provisions which in the opinion of the commission of insurance are more favorable to the policyholder:
16
A provision that the insured is entitled to a grace period either of thirty days or, at the option of the insurer, of one month within which the payment of any premium after the first may be made, during which period of grace the policy shall continue in full force, but if a claim arises under the policy during such grace before the overdue premiums or the deferred premiums of the current policy year, if any, are paid, the amount of such premiums, together with interest, not in excess of six per cent per annum, on any overdue premium, may be deducted from any amount payable under the policy in settlement.
17
La.Rev.Stat.Ann. Sec. 22:170(A)(1) (West 1959). Another provision is entitled "Written notice required before lapsing life policies," and states in part:
18
No life insurer shall within one year after default in payment of any premium, installment, loan or interest, declare forfeited or lapsed any policy issued or renewed, and not issued upon the payment of monthly or weekly premiums or for a term of one year or less, for nonpayment when due of any premium, installment, loan or interest, or any portion thereof required by the terms of the policy to be paid, unless a written or printed notice stating:
19
(1) The amount of such premium, installment, loan or interest, or portion thereof due on such policy; and
20
(2) The place where it shall be paid and the person to whom the same is payable, shall have been duly addressed and mailed to the person whose life is insured ... at least fifteen and not more than forty-five days prior to the date when the same is payable.
21
No policy shall in any case be forfeited or declared forfeited or lapse until the expiration of thirty days after the mailing of such notice. Any payment demanded by such notice and made within the time limit shall be taken to be full compliance with the requirements of the policy in respect to the time of such payment.
22
La.Rev.Stat.Ann. Sec. 22:177 (West 1959).
23
The policy itself contained a clause concerning the grace period contemplated by section 22:170(A)(1). It provided the following:
24
We allow each premium after the first one to be paid within 31 days after its due date. These 31 days are called the grace period. The policy remains in effect during the grace period. If the insured dies during this period, the unpaid premium will be deducted from the amount we would otherwise pay.
25
The policy did not have a specific provision concerning cancellation of the policy. Since Gifford died within thirty days of the letter from LICSW acknowledging cancellation of the policy, Nicolson contends that the policy was still in force.
26
The parties agree that Louisiana law governs in this diversity case. In determining the applicability of these statutory and contractual provisions, we must interpret the law as would a Louisiana court. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1128 (1938). However, no reported Louisiana case has addressed the applicability of a statutory grace period when an insured has affirmatively cancelled his policy. When making an Erie guess in the absence of specific guidance from the Louisiana Supreme Court, our predication of state law looks to other sources: (1) lower state court decisions and Supreme Court dicta, (2) the lower court ruling in this case, (3) the general rule on the issue, (4) the rule in other states looked to by Louisiana courts, and (5) other available legal sources, such as treatises and law review commentaries. See Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.1986) (en banc).
27
The long-standing rule applied by Louisiana courts is that an insured has "the irrevocable right to demand the cash surrender value of his policy at any time." Tucker v. Equitable Life Assur. Soc., 174 La. 598, 141 So. 71 (1932); Fowler v. State Insurance Co., 160 So. 139 (La.Ct.App.1935). This rule has been extensively modified by Louisiana's Standard Nonforfeiture Law for Life Insurance, which details the provision of nonforfeiture benefits upon surrender of the policy. See La.Rev.Stat.Ann. Sec. 22:168 (West Supp.1986). However, this statute has not eliminated the Tucker rule that an insured may surrender his policy when he chooses. The insured's right to cancel is recognized in other states as well. E.g., Porter v. J.C. Penney Life Insurance Co., 356 N.W.2d 760 (Minn.Ct.App.1984).
28
The mandatory grace period under Louisiana law does not address itself to a situation, such as the one here, where an insured affirmatively cancelled his policy. Section 22:170(A)(1) speaks of the policy continuing in force during the grace period and "before the overdue premiums or the deferred premiums" are paid. An insured who cancels his policy does not have premiums which are "overdue" or "deferred;" he is instead no longer obligated to pay them. Section 22:170(A)(1) aims to protect an insured whose policy would otherwise lapse upon failure to pay a premium when due. We have found no indication in Louisiana law that this statutory provision was designed to provide an extra month of free insurance to an insured who cancels his policy. See J. Appleman, Insurance Law and Practice Sec. 7959 (rev. ed. 1985) ("A grace period does not contemplate free insurance, but is allowed to permit the insured to have an extension of opportunity within which to pay another premium and thus avoid forfeiture....").
29
No Louisiana court has yet had the opportunity to so construe section 22:170(A)(1), but Tucker indicates that the interpretation we give to it would be approved. In Tucker, decided before the enactment of this section, the insured's life insurance policy had a grace period of thirty days in which default for nonpayment of premiums was waived. The insured in Tucker wrote to the insurance company to cancel his policy and receive back the cash value it had accumulated. The Tucker court determined that the insured, who died during the grace period, had cancelled the policy, and that the beneficiary could not recover the proceeds of the policy. As in Tucker, Gifford took steps to cancel the policy: he expressly asked in writing for termination of the policy and return of any cash value, dividends, or interest (although there were none), he returned the policy to the insurer, and he had Nicolson stop payment of the next premium.
30
This Court, in construing a mandatory grace period provision in a Texas diversity case, has held that where an insured has demanded the cash surrender value of the policy and terminated the insurance, the grace period was inapplicable. See Clairelaine Garden Apartments, Inc. v. Occidental Life Insurance Co. of California, 290 F.2d 456, 459 (5th Cir.1961). Clairelaine stressed the existence of a clause in the insurance contract which gave the insured an irrevocable right to surrender and cancel his policy. Gifford's policy did not contain such a clause. However, whether such a right to cancel is written into the contract, as in Clairelaine, or implied by state law, as here by Tucker, the result is the same. The policy was cancelled and no longer in force, and the grace period was never brought into operation.
31
A Kansas court has more recently come to a similar result. See Bennett v. Colonial Life and Accident Insurance Co., 7 Kan.App.2d 441, 643 P.2d 1133 (1982). In Bennett, the court found that the sole purpose of a contractual grace period was to prevent immediate lapse of the policy upon failure to pay a premium. The Bennett court held that "a grace period applies only to the date when a premium is due and by definition has no application to the terminal date on which an insurance policy expires by its terms or by mutual agreement of the parties." Id. (citation omitted). Although Bennett, as did Tucker, interpreted a contractual grace period rather than a statutory provision such as section 22:170(A)(1), we see no reason why this distinction should make a difference.
32
Other courts have come to contrary results, but it is doubtful that a Louisiana court would follow these cases. See Satery v. Great American Reserve Insurance Co., 278 S.W.2d 377, 380 (Tex.Civ.App.--Waco 1955, writ ref'd n.r.e.); Provident Savings Life Assur. Soc. v. Taylor, 142 F. 709, 713 (3d Cir.1906). These cases were decided on the theory that a statutory grace period is a safeguard for the insured and may not be waived in the absence of consideration. See 14 J. Appleman, Insurance Law and Practice Sec. 7959 (rev. ed. 1985); 6 G. Couch, Cyclopedia of Insurance Law Sec. 32:123 (2d ed. 1985). However, Tucker indicates that a grace period designed to save an absent-minded policyholder has no application where the insured affirmatively cancels, and thus under Louisiana law the issue of waiver never arises.
33
Similarly, section 22:177, requiring written notice from an insurer before lapse or forfeiture of a life insurance policy, is not applicable to the situation at hand. The purpose of this provision is to protect an insured from losing his policy through neglect in paying the premium and to allow him more time to make the payment. See Lester v. Aetna Life Insurance Co., 433 F.2d 884, 888 (5th Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 20 L.Ed.2d 650 (1971). LICSW did not, as the statute contemplated, "declare [the policy] forfeited or lapsed" for nonpayment of a premium. It was Gifford who affirmatively cancelled the policy. It would be pointless to require an insurance company to provide notice to an insured who has already affirmatively requested cancellation; we refuse to hold that the Louisiana statute should be so construed.3
34
AFFIRMED.
1
The judgment of the district court as well as her briefs misspell plaintiff's name as "Nicholson."
2
Nicolson concedes that "[v]irtually every fact can be stipulated for the purposes of this appeal." Nevertheless, later Nicolson argues that a factual issue existed as to Gifford's intent in terminating his LICSW policy. We recognize that all facts and inferences must be viewed in the light most favorable to the party opposing a summary judgment motion. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, we find that all of the factual material indicated that Gifford's intention was to cancel his LICSW policy. His letter to LICSW explicitly asked for cancellation of the policy. Nicolson's deposition testimony also indicated Gifford's desire to cancel. Nicolson has pointed to no facts or inferences which would indicate that Gifford intended anything other than to cancel the policy. There is no evidence that Gifford merely wished to amend the policy. As to Gifford's motive in cancelling the policy, the only evidence on this issue indicates that Gifford wished to drop his LICSW coverage in order to procure coverage from MILCO
3
Because of our disposition of the above issues, the final argument of Nicolson, that she is entitled to recover penalties because of LICSW's unjustified delay in payment of her claim, is without merit. A statutory provision she cites, La.Rev.Stat.Ann. Sec. 22:656 (West Supp.1985), allows an award of interest on an amount due by an insurer if it fails to pay "without just cause." Because Gifford's cancellation of the policy ended LICSW's obligation to pay proceeds upon his death, LICSW had just cause in denying coverage
| {
"pile_set_name": "FreeLaw"
} |
688 F.2d 826
U. S.v.Scalzitti
81-2730, 81-2731
UNITED STATES COURT OF APPEALS Third Circuit
5/17/82
1
W.D.Pa.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit
1-24-2001
Eaves v. Cape May County
Precedential or Non-Precedential:
Docket 00-5096
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001
Recommended Citation
"Eaves v. Cape May County" (2001). 2001 Decisions. Paper 11.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/11
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
Filed January 24, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 00-5096
PAMELA D. EAVES
v.
COUNTY OF CAPE MAY;
WILLIAM E. STURM, INDIVIDUALLY
AND AS AN ELECTED MEMBER AND
DIRECTOR OF THE BOARD OF CHOSEN
FREEHOLDERS OF CAPE MAY COUNTY, NEW JERSEY;
EDMUND GRANT, INDIVIDUALLY AND AS THE
TREASURER OF THE COUNTY OF CAPE MAY;
BOARD OF CHOSEN FREEHOLDERS OF
CAPE MAY COUNTY;
JOHN DOES, I TO X; (fictitious names of
persons or organizations more fully
described herein); jointly severally
and in the alternative
County of Cape May,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 95-cv-04574)
District Judge: Honorable Jerome B. Simandle
Argued September 12, 2000
Before: McKEE, RENDELL,
and STAPLETON, Circuit Judges
(Filed: January 24, 2001)
William M. Tambussi [ARGUED]
Brown & Connery
360 Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Counsel for Appellee
Pamela D. Eaves
Marc I. Bressman [ARGUED]
Budd, Larner, Gross,
Rosenbaum, Greenberg & Sade
200 Lake Drive East
Woodland Falls Corporate Park
Suite 100
Cherry Hill, NJ 08002
Counsel for Appellant
County of Cape May
OPINION OF THE COURT
RENDELL, Circuit Judge.
I. INTRODUCTION
The County of Cape May ("the County") appeals the
District Court's ruling awarding the plaintif f, Pamela Eaves
("Eaves"), post-judgment interest on the Court's award of
$254,248.57 in attorney's fees and expenses fr om August
11, 1998, the date that the District Court first stated that
she was entitled to such an award "in an amount to be
determined pursuant to Fed. R. Civ. P. 54(d)." The legal
issue presented in this employment discrimination action is
whether post-judgment interest on a judgment awarding
attorney's fees and expenses pursuant to 42 U.S.C.
S 2000e-5(k) runs from the date that the District Court
rules initially that the plaintiff is entitled to attorney's fees,
or alternatively, from the date that the District Court
actually quantifies the amount awarded, wher e those
determinations are made at separate times.
Based upon our construction of the applicable federal
post-judgment interest statute, 28 U.S.C. S 1961(a), we hold
2
that post-judgment interest on an attor ney's fee award runs
from the date that the District Court actually quantifies the
award. Accordingly, we will vacate the District Court's
January 27, 2000 order insofar as it awar ded post-
judgment interest from August 11, 1998, and will remand
the matter to the District Court for the entry of an
appropriate order. However, because we find no merit in the
County's other challenges relating to certain rulings made
in the Court's January 27, 2000 order, we will affirm those
rulings without further discussion.1
II. FACTS and PROCEEDINGS
Eaves is an American citizen of Chinese national origin.
She was employed as the Treasurer of Cape May County,
but was demoted to County Comptroller on July 8, 1994.
After Eaves filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") based on
her demotion and an alleged hostile work envir onment, the
County eliminated her County Comptroller position.
Eaves then filed a Complaint in the District Court on
August 30, 1995, alleging that the County, its Boar d of
Freeholders, William E. Sturm and Edmund Grant violated
the Age Discrimination in Employment Act, 29 U.S.C.
SS 621-634 (1998) ("ADEA"), Title VII of the Civil Rights Act
of 1964, 42 U.S.C. SS 2000e to e-17 (1998) ("Title VII"), and
the New Jersey Law Against Discrimination, N.J. Stat. Ann.
S 10:5-1 to -42 (West 1993) ("NJLAD"). On May 1, 1998, a
jury found in Eaves's favor on the Title VII and NJLAD
retaliation claim against the County, but found for the
defendants on the remaining claims.2 On May 11, 1998,
Eaves filed post-trial motions seeking prejudgment interest
_________________________________________________________________
1. In this appeal, the County also challenged the District Court's rulings
with respect to the (1) 25 percent downwar d adjustment of the lodestar
amount given plaintiff 's limited success; and (2) 15 percent contingency
enhancement applied pursuant to the New Jersey Law Against
Discrimination.
2. The jury deliberated only on Eaves's T itle VII and NJLAD claims based
on the demotion, hostile work environment and r etaliation, because the
Court dismissed the additional claims initially pleaded in the Complaint
on defendants' motions for summary judgment and for a directed verdict.
3
pursuant to Title VII, and attorney's fees under Title VII
and the NJLAD. On August 11, 1998, the District Court
entered judgment on the jury verdict in favor of Eaves, and
against the County, for $90,000, together with pr ejudgment
interest in the amount of $12,602.46, "together with
attorney's fees and costs in an amount to be determined
pursuant to Rule 54(d), Fed. R. Civ. P." App. at 5. The order
accompanying the judgment stated that "attor ney's fees and
costs shall be awarded in an amount to be deter mined by
the court upon plaintiff 's presently pending motion." App.
at 8.
On January 27, 2000, the District Court resolved the
outstanding motion for attorney's fees.3 After reviewing
Eaves's counsels' billing records, the Court calculated the
lodestar, reduced it by 25 percent to account for Eaves's
limited success, applied a contingency enhancement of 15
percent under the NJLAD, and quantified the attorney's fee
award. Ultimately, the Court awarded plaintiff 's counsel
$254,248.57 in fees and expenses. It also addr essed the
question of post-judgment interest on the awar d. We
recount the Court's analysis on this point:
In the Judgment entered on August 11, 1998, the
Court entered "judgment in favor of the plaintiff and
against the defendant, County of Cape May, in the
amount of $90,000.00 together with attorney's fees and
costs in an amount to be determined pursuant to Rule
54(d), Fed. R. Civ. P." The amount of fees and related
expenses has, more than 16 months later , been
_________________________________________________________________
3. The motion actually sought attorney's fees, "expenses," and "costs of
suit." The District Court described the "expenses" as including
"deposition transcript fees, expert witness fees, medical reports,
investigation fees, photocopying, and binding." Items designated as
"costs" were those permitted under 28 U.S.C. S 1920, including the filing
fee, trial transcript fees and witness fees. See App. at 10-11.
Ultimately,
the Court allowed post-judgment interest on the combined amount of
attorney's fees and expenses, but not costs. Throughout this opinion, we
will treat the attorney's fees and expenses aspect of the Court's order as
a single attorney's fee award, as it is clear that the Court awarded those
amounts designated as "expenses" as part of the "reasonable attorney's
fee" allowable under 42 U.S.C. S 2000e-5(k). See Abrams v. Lightolier
Inc.,
50 F.3d 1204, 1225-26 (3d Cir. 1995).
4
determined. Since the attorney's fees were determined
as of the judgment date (August 11, 1998), the plaintiff
is also entitled to recover interest upon that sum since
that date, as post-judgment interest accounting for
delay in payment. It was the Court's intent, in entering
the Judgment on August 11, 1998, that the plaintif f
was found to be entitled to recover her attor ney's fees,
with only the amount to be determined. The
accompanying Order will therefore amend the August
11, 1998, Judgment to insert this amount, together
with post-judgment interest from August 11, 1998.
This adjustment further recognizes that plaintiff and
her counsel have been deprived of the benefit of the
payment of this sum since it was due and that the fee
award is calculated upon plaintiff 's counsel's 1998
billing rates rather than current rates.
App. at 56. On the same date, the Court enter ed the
"Amended Judgment" which incorporated its quantification
of the attorney's fee award, and its statement that post-
judgment interest on the jury verdict and the fee award was
to run from August 11, 1998. App. at 58. The County filed
a timely notice of appeal.4
III. DISCUSSION
The County argues that the District Court err ed in
"backdating" the post-judgment interest award on the fee
amount to August 11, 1998, the date the Court or dered
that attorney's fees and costs would be awar ded "in an
amount to be determined" by the Court. It contends that
the Court's decision to award post-judgment interest from
that date ignores the fact that the amount of the award was
not quantified until nearly a year and a half later, and
unfairly penalizes the County because the delay was
apparently caused by court backlog rather than dilatory
_________________________________________________________________
4. The District Court exercised subject matter jurisdiction over the
federal claims pursuant to 28 U.S.C. S 1331, 1343, and over the state
law claims pursuant to 28 U.S.C. S 1367. W e have appellate jurisdiction
pursuant to 28 U.S.C. S 1291, and exer cise plenary review over the
challenged ruling. Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88,
97 (3d Cir. 1993) .
5
tactics on the County's part. The County cites Foley v. City
of Lowell, 948 F.2d 10, 21-23 (1st Cir . 1991), and
MidAmerica Federal Savings & Loan Ass'n v.
Shearson/American Express, Inc., 962 F .2d 1470, 1475
(10th Cir. 1992), in support of its position, claiming that
both decisions held that post-judgment inter est on an
attorney's fee award accrues from the date the amount of
the award is quantified. It further asserts that the Supreme
Court's decision in Kaiser Aluminum & Chemical Corp. v.
Bonjorno, 494 U.S. 827 (1990), is consistent with the
reasoning in Foley and MidAmerica . Appellant's Br. at 15-
16.
Eaves responds that "the majority rule among the circuit
courts of appeals is that post-judgment `inter est accrues
from the date that the party becomes unconditionally
entitled to fees, even if those fees are not yet quantified.' "
Appellee's Br. at 21 (citing Jenkins v. Missouri, 931 F.2d
1273, 1275 (8th Cir. 1991); Mathis v. Spears, 857 F.2d 749,
760 (Fed. Cir. 1988); Copper Liquor , Inc. v. Adolph Coors
Co., 701 F.2d 542, 545 (5th Cir. 1983) (en banc) (per
curiam), overruled in part on other grounds by Int'l
Woodworkers of Am. v. Champion Int'l Corp. 790 F.2d 1174
(5th Cir. 1986), aff 'd sub nom. Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437 (1987)). In other words,
according to Eaves, post-judgment inter est accrues on an
attorney's fee award "from the date establishing the right to
the award, not the date of the judgment establishing its
quantum." Appellee's Br. at 21-22 (citing Mathis, 857 F.2d
at 760). The justification for commencing the post-judgment
interest period from the earlier of two judgments is
grounded in equitable considerations:
"[Postponing the accrual of post-judgment inter est]
would effectively reduce the judgment for attorney's
fees and costs, because a certain sum of money paid at
a certain time in the future is worth less than the same
sum of money paid today. Failing to allow awar ds of
attorney's fees to bear interest would give parties
against whom such awards have been enter ed an
artificial and undesirable incentive to appeal or
otherwise delay payment."
6
Appellee's Br. at 22 (quoting Jenkins, 931 F.2d at 1276).
Eaves claims that these same policy considerations should
guide us in determining the date from which post-judgment
interest should run in this case because the end result--
the delay in receipt of funds rightfully due to her counsel--
is the same, regardless of whether the delay was caused by
the District Court or a litigious defendant.5
Preliminarily, we point out that the County does not
dispute that post-judgment interest under 28 U.S.C.
S 1961(a) accrues on a judgment awarding attorney's fees to
a prevailing party such as Eaves just as it would any other
"money judgment" to which S 1961(a) applies. R.W.T. v.
Dalton, 712 F.2d 1225, 1234-35 (8th Cir . 1983), abrogated
on other grounds by Kaiser Aluminum, 494 U.S. at 834-35;
Spain v. Mountanos, 690 F.2d 742, 748 (9th Cir. 1982); see
Institutionalized Juveniles v. Sec'y of Pub. W elfare, 758 F.2d
897, 927 (3d Cir. 1985) (allowing post-judgment interest to
accrue on attorney's fee award; analysis proceeded on
premise that post-judgment interest on an attorney's fee
award was available); Devex Corp. v. Gen. Motors Corp., 749
F.2d 1020, 1026-27 (3d Cir. 1984) (affirming district court's
holding that post-judgment interest statute applies to
award of costs). Thus, our inquiry is dir ected only to the
date from which post-judgment interest should run where
there ostensibly are two "judgments" pertaining to an
attorney's fee award.
While we have interpreted and applied the federal post-
judgment interest statute on several occasions, 6 we have
_________________________________________________________________
5. We note that the circumstances of this case are unusual in that the
delay between the District Court's first and second orders spanned
approximately seventeen months. Moreover , it is not disputed that the
County did not attempt to delay the Court's quantification of the amount
due, but instead asked the Court several times to enter a final judgment
on Eaves's attorney's fee petition several times throughout the
seventeen-month period.
6. See, e.g., Christian v. Joseph, 15 F.3d 296, 298-99 (3d Cir. 1994)
(finding that Virgin Islands post-judgment interest statute and 28 U.S.C.
S 1961(a) were analogous and stating that, like S 1961(a), Virgin Islands
statute provides for automatic accrual of post-judgment interest); Dunn
v. Hovic, 13 F.3d 58, 60-62 (3d Cir . 1993) (allowing post-judgment
7
not yet confronted the precise question before us in this
case. And, as is evident from the discussion that follows,
there is no consensus among the Courts of Appeals that
have addressed the issue. Eaves correctly states that the
"majority view," which has been adopted by the Courts of
Appeals for the Fifth, Eighth, Ninth, Eleventh and Federal
Circuits, is that post-judgment interest on an attorney's fee
award runs from the date that the district court enters a
judgment finding that the prevailing party is entitled to
such an award, or from the date that, by operation of law,
the prevailing plaintiff becomes entitled to fees, even if the
amount of the award is not fixed in that judgment.
Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 332
_________________________________________________________________
interest to accrue from date of district court's entry of judgment on jury
verdict despite partial remittitur in district court and further
remittitur
of punitive damage award on appeal); Loughman, 6 F.3d at 97-100
(finding that plaintiffs were entitled to post-judgment interest accruing
from date of original judgment rather than fr om date of judgment
entered after damages retrial or fr om date of mandate issued after first
appeal); In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144,
1177-78 (3d Cir. 1993) (stating that S 1961 does not mandate that
judgment from which interest is calculated be final judgment); Bonjorno
v. Kaiser Aluminum & Chem. Corp., 865 F.2d 566, 571-72 (3d Cir. 1989)
(holding that post-judgment interest on damages award began to run as
of date of second jury verdict on damages, which was then vacated and
subsequently reinstated, rather than as of date that jury either delivered
first liability verdict or first damages verdict, or date on which Court
of
Appeals issued mandate), aff 'd in part, rev'd in part, Kaiser Aluminum,
494 U.S. at 827; Poleto v. Consol. Rail Corp. , 826 F.2d 1270, 1280-81 (3d
Cir. 1987) (holding that post-judgment inter est on jury verdict began to
run from date of verdict rather than district court's entry of judgment),
abrogated by Kaiser Aluminum, 494 U.S. at 827; Brock v. Richardson,
812 F.2d 121, 125-26 (3d Cir. 1987) (holding that back pay award under
Fair Labor Standards Act should be presumed to carry post-judgment
interest, unless equities in particular case r equire otherwise);
Institutionalized Juveniles, 758 F.2d at 927 (allowing post-judgment
interest to run from date that district court ruled that plaintiffs were
entitled to fees and awarded quantified amount of fees where court of
appeals affirmed award in part and vacated it in part for recalculation);
Devex Corp., 749 F.2d at 1026 (holding that district court did not abuse
its discretion in awarding post-judgment interest on award of taxable
costs).
8
& n.24 (5th Cir. 1995); Friend v. Kolodzieczak, 72 F.3d
1386, 1391-92 (9th Cir. 1995); BankAtlantic Inc. v. Blythe
Eastman Paine Webber, 12 F.3d 1045, 1052-53 (11th Cir.
1994); Jenkins, 931 F.2d at 1277; Fox Indus. Inc. v.
Structural Pres. Sys. Inc., 922 F .2d 801, 804 (Fed. Cir.
1991); Mathis, 857 F.2d at 760; Copper Liquor, 701 F.2d at
545. In reaching their result, the leading cases have relied
principally upon the policy underlying the post-judgment
interest statute: compensation of the plaintif f (and the
attorney) for the loss of the use of the money. By contrast,
the "minority view," adopted by the Courts of Appeals for
the Seventh and Tenth Circuits, is that, where the district
court enters an order stating that the pr evailing party is
entitled to a fee award but does not quantify the amount of
the award until a later date, post-judgment interest does
not begin to accrue until the Court fixes the amount of the
award.7 MidAmerica, 962 F.2d at 1476 (adopting rule that
post-judgment interest begins to accrue when court enters
judgment setting amount of fees owed based upon
reasoning in Kaiser Aluminum); Fleming v. County of Kane,
898 F.2d 553, 565 (7th Cir. 1990) (awarding interest from
date amount was fixed, stating that "prior to the date the
judgment on attorney's fees was entered, plaintiff 's
attorney's claim for unpaid attorney's fees was unliquidated
and, as such, not entitled to interest"). 8 We do not find the
_________________________________________________________________
7. While the County also cites the First Cir cuit's decision in Foley as
having adopted the "minority view," the court expressly declined to reach
the issue presented here. Foley, 948 F.2d at 22 n.16 ("We do not
undertake to decide here whether postjudgment interest begins to accrue
from the date a judgment expressly and unconditionally establishing a
party's right to attorneys' fees is enter ed or from the date of a
judgment
that establishes the quantum of such fees (in a case where those dates
differ).").
8. Although the Seventh Circuit in Fleming allowed post-judgment
interest to accrue from the date of the district court's quantification of
the attorney's fee award rather than the date that the court ruled that
the prevailing party was entitled to fees, its analysis is not all that
helpful because it is not clear whether the court directly considered the
issue presented in the instant case. The district court in Fleming entered
an order in April 1988 stating that the plaintiff was entitled to
attorney's
fees, and also allowing, among other things, an adjustment to the billing
rate in the form of "adding interest from a date 30 days after the end of
9
reasoning of the courts adopting the "majority view"
persuasive, because they ignore a textual analysis of
S 1961(a) and, instead, base their result on policies they
find to underlie post-judgment interest and attorney's fee
awards. In our view, the correct answer is dictated by the
text of S 1961(a) and by our case law construing the
meaning of the term "money judgment," a common legal
term which we believe is critical to the outcome of this
appeal.
Because "[t]he starting point for interpr etation of
[S 1961(a)] is the language itself," Kaiser Aluminum, 494
U.S. at 835, our analysis begins with the text of the statute,
which provides in pertinent part that
[i]nterest shall be allowed on any money judgment in a
civil case recovered in a district court. Execution
_________________________________________________________________
the month in which the services were rendered." Fleming, 898 F.2d at 563
(emphasis added). The court subsequently enter ed an order quantifying
the fees on June 24, 1988.
On appeal, the court found that the district court erred in awarding
interest from a date 30 days after the end of the month in which the
services were rendered, reasoning that "[p]rior to the date the judgment
on attorney's fees was entered, plaintif f 's attorney's claim for unpaid
attorney's fees was unliquidated and, as such, not entitled to interest."
Id. at 565. The court stated that because the r ecord "clearly indicated"
that the award of attorney's fees was entered on June 24, 1988, post-
judgment interest ran from that date.
Fleming does not provide much guidance because it is not clear from
the opinion whether the plaintiff argued that post-judgment interest
should have been calculated from the April 1988 date on which the court
first determined that the plaintiff was entitled to attorney's fees.
Moreover, although the court of appeals mentioned the fact that until the
"judgment" on attorney's fees is enter ed, the claim for unpaid fees is
"unliquidated," it seems that it made that observation in the context of
rejecting the district court's allowance of interest from 30 days after
the
services were performed rather than from the entry of the "judgment" on
attorney's fees. The court of appeals simply did not consider the
subsidiary issue of which "judgment" that might be. At bottom, we do
not rely on Fleming because, while the court reached a result consistent
with our interpretation of S 1961(a) as applied in the attorney's fee
context, it provided little substantive analysis and did not rely on the
language of the statute to reach that r esult.
10
therefor may be levied by the marshal, in any case
where, by the law of the State in which such court is
held, execution may be levied for interest on judgments
recovered in the courts of the State. Such interest shall
be calculated from the date of the entry of the
judgment. . . .
28 U.S.C. S 1961(a) (emphasis added). "Section 1961(a)
dictates that interest be awarded." Dunn v. Hovic, 13 F.3d
58, 60 (3d Cir. 1993). Given the plain language and
structure of the statute, it is clear that"the judgment"
referred to in the third quoted sentence is the "money
judgment" specified in the first. Thus, by its terms, post-
judgment interest does not begin to run underS 1961(a)
until the district court enters the judgment at issue, i.e.,
the "money judgment."9
This observation is not dispositive, because the pr oblem
in this case is that we arguably have two"judgments," i.e.,
(1) the August 11, 1998 order which stated that Eaves was
entitled to an attorney's fee award, and (2) the January 27,
2000 order which quantifies the amount of the award.
Thus, the pivotal question is whether the August 11, 1998
order qualifies as a "money judgment" such that its entry
by the clerk of the District Court commences the period
from which post-judgment interest begins to run.
Section 1961 does not define the term "money judgment."
Nevertheless, if a statute uses a legal term of art, we must
_________________________________________________________________
9. Although neither party has suggested it, we note that it could be
argued, at least in theory, that the statute is ambiguous as to whether
the "judgment" which triggers the post-judgment interest period has to
have the characteristics of a "money judgment"--the term found in the
first sentence of S 1961(a). However, the structure of S 1961(a) ties the
"judgment" referred to in the thir d sentence back to the "money
judgment . . . recovered in the district court," which, of course,
provides
the legal basis for the award of post-judgment interest under the statute.
Thus in our view, the statute cannot be viewed as ambiguous on this
point. See Smith v. Fid. Consumer Disc. Co., 898 F.2d 907, 910 (3d Cir.
1990) ("[S]tatutory construction should halt at such time as the court
determines the text at issue to be plain and unambiguous") (citing Rubin
v. United States, 449 U.S. 424, 430 (1981)); see also In re Cohen, 106
F.3d 52, 57 (3d Cir. 1997) (rejecting construction of statute that, in its
view, "strain[ed] the structure of the statute as a whole").
11
"presume Congress intended to adopt the term's ordinary
legal meaning." Omnipoint Corp. v. Zoning Hearing Bd., 181
F.3d 403, 407 (3d Cir. 1999) (citing McDermott Intern. Inc.
v. Wilander, 498 U.S. 337, 342 (1991)); see also Zubi v.
AT&T Corp., 219 F.3d 220, 227 (3d Cir. 2000) (Alito, J.,
dissenting) (citing, inter alia, Omnipoint, 181 F.3d at 407,
and Felix Frankfurter, Some Reflections on the Reading of
Statutes, 47 Colum. L. Rev. 527, 537 (1947) ("[I]f a word is
obviously transported from another legal sour ce, whether
the common law or other legislation, it brings its soil with
it.")). In Penn Terra Limited v. Department of Environmental
Resources, 733 F.2d 267 (3d Cir . 1984), we addressed the
meaning of the term "money judgment" in the context of
construing the phrase "enforcement of a money judgment"
found in 11 U.S.C. S 362(b)(5) of the Bankruptcy Code.
Recognizing that Congress failed to provide any guidance as
to the meaning to be afforded to the phrase "enforcement of
a money judgment" as it was used in that pr ovision, we
looked to the established meaning of the ter ms. Id. at 274-
75 ("Its meaning must therefore be gleaned from the
commonly accepted usage and from whatever indications of
congressional intent we find persuasive."). We defined
"money judgment" in that context in the following manner:
In common understanding, a money judgment is an
order entered by the court or by the clerk, after a
verdict has been rendered for [the] plaintiff, which
adjudges that the defendant shall pay a sum of money
to the plaintiff. Essentially, it need consist of only two
elements: (1) an identification of the parties for and
against whom judgment is being entered; and (2) a
definite and certain designation of the amount which
plaintiff is owed by defendant.
Id. at 275 (citing generally 49 C.J.S. Judgments SS 71-82,
which "describ[ed] proper form of money judgments")
(emphasis added).
Since Penn Terra, our resear ch reveals that other courts
have taken a similar approach in determining whether a
particular judgment constituted a "money judgment," and,
in various legal contexts have looked to whether the
judgment at issue required a party to pay a fixed sum. See,
e.g., EEOC v. Gurnee Inns, Inc., 956 F.2d 146, 149 (7th Cir.
12
1992) (where district court entered judgment that awarded
plaintiffs backpay in definite amounts, less applicable
payroll deductions, and directed employer to deduct payroll
taxes and deliver checks to plaintiffs, court rejected
employer's argument that court's judgment was not "money
judgment" under S 1961(a), stating that"the awards did not
lose their character as sums certain simply because they
were subject to the mechanical task of computing payroll
deductions"); In re Commonwealth Oil Ref. Co., 805 F.2d
1175, 1186 (5th Cir. 1986) (following Penn Terra's definition
of "money judgment"); In re V alencia, 213 B.R. 594, 596 (D.
Colo. 1997) (affirming bankruptcy court's entry of money
judgment fixing amount of damages debtor owed in
dischargeability proceeding and noting that bankruptcy
court's equitable jurisdiction allowed it to "r ender a money
judgment in an amount certain"); In r e Dow Corning Corp.,
237 B.R. 380, 386 (Bankr. E.D. Mich. 1999) (in determining
whether order pursuant to S 502(b) of Bankruptcy Code
constituted "money judgment" from which post-judgment
interest would run, court stated "[a]s one might expect, a
`money judgment' consists of three elements: it must be a
judgment; entitling the plaintiff to a specified sum of
money; and such entitlement must be against an
identifiable party"); In re Devitt , 126 B.R. 212, 215 (Bankr.
D. Md. 1991) (holding that bankruptcy court had
jurisdiction to enter "money judgment," i.e., "judgment in
an amount certain," in dischargeability pr oceeding).
We further note that, although not cited by the parties,
we find the Court of Appeals for the Eighth Cir cuit's
opinion in Happy Chef Systems, Inc. v. John Hancock
Mutual Life Insurance Co., 933 F.2d 1433 (8th Cir. 1991),
instructive on this issue. There, as her e, the parties
disputed which of two "judgments" commenced the post-
judgment interest period applicable under S 1961(a). In
Happy Chef Systems, the landlord sought a declaration
that the tenant breached its lease with the landlord, and
was obligated to perform its lease obligations. After the
district court determined that the landlor d was entitled to
a judgment requiring the tenant to perfor m its lease
obligations, the landlord filed a motion seeking
"supplemental relief " under 28 U.S.C.S 2202 in the form of
money damages. On February 21, 1990, the district court
13
entered a judgment and order that the tenant was obligated
to perform its lease obligations. It also granted the
landlord's motion for supplemental relief, but did not
quantify the amount of damages because it believed that
the trial record was not adequate to enter a judgment on
the amount to be awarded. Subsequently, on May 25, 1990,
the district court entered an order which quantified the
landlord's damage award, and awarded post-judgment
interest from February 21, 1990--the date on which the
court first determined that the landlor d was entitled to
supplemental relief under S 2202. Id. at 1435.
On appeal, the Court of Appeals for the Eighth Cir cuit
reversed the award of post-judgment inter est from February
21, 1990. The court held that the district court err ed in
awarding post-judgment interest fr om the date that it first
determined that the landlord was entitled to damages
under S 2202. It stated that "[s]ection 1961(a) does not
provide for interest until a money judgment has been
entered. Therefore, interest at the post-judgment interest
rate should begin on May 25, 1990 [the date the amount
was quantified], not February 21 of that year ." Id. at 1437.
The court's conclusion in Happy Chef Systems supports
our construction of the phrase "any money judgment" in
S 1961(a), which requires that the judgment at issue award
a fixed amount of fees to the prevailing party in order to
trigger the post-judgment interest period. Rather than
finding that the post-judgment interest period commences
from the date that the district court deter mined in a
general sense that the landlord was entitled to a damages
award, the court in Happy Chef Systems stated that
S 1961(a) requires the entry of a money judgment, which, as
we explained in Penn Terra, is commonly understood to
require an award of a fixed sum to the prevailing party. Cf.
In re Burlington N., Inc. Employment Pract. Litig., 810 F.2d
601, 609 (7th Cir. 1986) (rejecting ar gument that plaintiffs
were entitled to post-judgment interest fr om date district
court approved consent decree setting forth plaintiffs' right
to recover reasonable attorney's fee, stating that S 1961(a)
only authorized interest from date of entry of judgment).
And because we read the reference to the "entry of the
judgment" in the third sentence of S 1961(a) as referring
14
back to the "money judgment" specified in the first
sentence of S 1961(a), it necessarily follows that post-
judgment interest begins to run on a judgment awarding
attorney's fees where that judgment fixes the amount owed
to the prevailing party.
We recognize that in Penn Terra, we did not define the
term "money judgment" in the context of a dispute
surrounding the meaning of the term as it is used in 28
U.S.C. S 1961(a). Rather, we wer e interpreting the scope of
11 U.S.C. S 362(b)(5). Nevertheless, given that our
construction of "money judgment" was based on the
common legal meaning ascribed to that term, our definition
in Penn Terra certainly is instructive in ascertaining what
Congress intended in using the same phrase inS 1961(a).
Here, as in Penn Terra, Congr ess has not provided any
definition for the term as it is used inS 1961(a), thus
requiring us to look to the established meaning of that
term. Omnipoint, 181 F.3d at 407 (where statute uses legal
terms of art, we must "presume Congr ess intended to adopt
the term's ordinary legal meaning"); Penn Terra, 733 F.2d at
275 ("Where Congress uses terms that have accumulated
settled meaning under either equity or common law, a court
must infer, unless the statute otherwise dictates, that
Congress means to incorporate the established meaning of
these terms.").
Thus, we are constrained to agree with the County that
S 1961(a) simply does not permit post-judgment interest on
an attorney's fee award to run fr om the date that the court
initially determines that the prevailing party is entitled to
an award if the amount was not also quantified and
included in that judgment. It necessarily follows that the
"money judgment" in this case was not enter ed until
January 27, 2000--the date on which the court quantified
the amount of the attorney's fees and awar ded plaintiff a
fixed sum. Put differently, the August 11, 1998 judgment
stating that Eaves was entitled to an award of attorney's
fees could not have been the judgment triggering the post-
judgment interest period because the Court's statement
that Eaves was entitled to such an award cannot be
considered the functional equivalent of a judicial finding
that the County was liable to Eaves to pay a fixed sum of
attorney's fees.
15
In reaching this conclusion, we have not overlooked the
fact that we stated in Penn Terra that the phrase "money
judgment" commonly refers to a judgment entered upon a
jury verdict, while our analysis in this case imports that
definition into a situation where the "judgment" at issue
actually resolved a motion for attorney's fees, an ancillary
issue to the underlying dispute between the parties. We are
not troubled by this distinction, however , because it is not
disputed that a judgment awarding attor ney's fees
theoretically could qualify as a "money judgment" on which
post-judgment interest could be awarded under S 1961(a),
provided that it has the requisite attributes of a "money
judgment." Given that we treat judgments awarding
attorney's fees as we would any other "money judgment,"
we see no principled basis for according a dif ferent meaning
to the term simply because the award at issue here involves
attorney's fees rather than money damages stemming from
a jury verdict. For our purposes, the essential aspect of our
construction of the term "money judgment" in Penn Terra is
that it must be comprised of "a definite and certain
designation of the amount which plaintiff is owed by
defendant." Thus, it makes no differ ence that the actual
judgment at issue stemmed from a fee petition rather than
a jury verdict.
We further observe that our construction of the phrase
"any money judgment" in S 1961(a) is consistent with the
Supreme Court's analysis in Kaiser Aluminum . There the
plaintiff, Bonjorno, initially secur ed a liability verdict
against the defendant, Kaiser Aluminum, on August 16,
1979. The jury then assessed damages against Kaiser
Aluminum on August 21, 1979, and the district court
entered judgment on the verdict on August 22, 1979.
Ultimately, the district court concluded that the evidence
did not support the damage award and granted Kaiser
Aluminum's motion for a new trial as to damages only. On
December 2, 1981, the jury found in favor of Bonjor no, and
awarded damages. The district court enter ed a judgment on
the second jury verdict on December 4, 1981. Kaiser
Aluminum, 494 U.S. at 830-31.
Shortly thereafter, the district court granted Kaiser
Aluminum's motion for a judgment notwithstanding the
16
verdict as to a portion of the second damages verdict.
However, on appeal, we reversed the court's determination
on that point and reinstated the December 4, 1981
judgment on the second verdict. On remand, the district
court awarded post-judgment interest on the damages
award from December 2, 1981, the date of the second
damages verdict after the retrial. That decision, in turn,
was appealed, and one of the issues raised in the appeal
was whether post-judgment interest ran fr om the date of
the December 2, 1981 verdict or the December 4, 1981
judgment on the verdict, albeit a differ ence of only two
days. See Kaiser Aluminum, 865 F.2d at 571-72 & n.9.
Following our previous opinion in Poleto v. Consolidated
Rail Corp., 826 F.2d 1270 (3d Cir . 1987), we held that post-
judgment interest ran from the December 2, 1981 verdict.
Id. Poleto had looked to the purpose of the post-judgment
interest statute and the structure of Federal Rule of Civil
Procedure 58, and found that both supported a broad
reading of S 1961(a) that allowed post-judgment interest to
run from the date of the verdict wher e there was a delay in
the district court's entry of the judgment on the verdict.
Poleto, 826 F.2d at 1280.
On appeal to the Supreme Court, the Court r ejected the
Poleto rule, grounding its analysis on the plain language of
S 1961(a). In reaching its result, the Court explained:
Those courts that have determined that inter est should
run from the verdict have looked to the policy
underlying the postjudgment interest statute--
compensation of the plaintiff for the loss of the use of
the money--in reaching their conclusion that interest
should run from the date of the verdict despite the
language of the statute.
. . . .
The starting point for interpretation of a statute is
the language itself. . . . Both the original and the
amended versions of S 1961 refer specifically to the
"date of judgment," which indicates a date certain.
Neither alludes to the date of the verdict, and there is
no legislative history that would indicate a
congressional intent that interest run fr om the date of
17
verdict rather than the date of judgment. Even though
denial of interest from verdict to judgment may result
in the plaintiff bearing the burden of the loss of the use
of the money from verdict to judgment, the allocation
of the costs accruing from litigation is a matter for the
legislature, not the courts.
Kaiser Aluminum, 494 U.S. at 834-35.
In the instant case, Eaves makes a policy ar gument
strikingly similar to the one we accepted in Poleto but the
Supreme Court rejected in Kaiser Aluminum. She contends
that we should hold that post-judgment inter est on her
attorney's fee award began to accrue on August 11, 1998,
because the District Court expressly deter mined on that
date that she was legally entitled to a monetary award, and
it ultimately fixed the amount in its January 27, 2000
order. Put differently, Eaves urges that we find in her favor
because, since August 11, 1998, the County has had the
use of the money that the Court eventually fixed as her fee
award on January 27, 2000.
Given the tenor of the Supreme Court's analysis in Kaiser
Aluminum, we are unpersuaded by Eaves's ar gument. Her
contention in this regard is bottomed on the concept that,
beginning on August 11, 1998, the County had the use of
monies to which she was legally entitled. But in Kaiser
Aluminum, the Court was unmoved by the fact that its
denial of post-judgment interest from the date of the verdict
to the date of the entry of the judgment might r esult in the
plaintiff bearing the burden of the loss of the use of his or
her money during the interim. Moreover, the Court
expressly rejected our analysis in Poleto, which, like Eaves's
argument here, looked to the policies behind the award of
post-judgment interest and found that they supported a
broader interpretation of S 1961(a) than the plain language
of the statute allowed.
Here too, we cannot ignore the plain meaning of the term
"money judgment" and its implications in this case simply
because our interpretation of S 1961(a) may result in the
plaintiff 's bearing the burden of the loss of the use of the
attorney's fee funds to which she was legally entitled from
the date that the District Court declared her entitlement to
18
the date that the award was quantified. In our view, the
Court's analysis in Kaiser Aluminum demonstrates that we
are not at liberty to ignore the literal language of S 1961(a),
notwithstanding the fact that the result might be that
prevailing parties suffer adverse consequences from the
district court's delay in fixing the amount of attorney's fees
to be awarded. See MidAmerica, 962 F .2d at 1476 ("[W]e see
no way to square MidAmerica's request for interest on an
unliquidated attorneys' fees award with Kaiser."); see also
Magee v. United States Lines, Inc., 976 F .2d 821, 823 (2d
Cir. 1992) (pointing out that Kaiser Aluminum interpreted
S 1961(a) literally, explaining that "[i]n Kaiser, the Supreme
Court rejected the argument, which the district court
herein apparently found persuasive, that under equitable
principles post-judgment interest should be computed from
the time that the court might have entered judgment, i.e.,
promptly following the jury's verdict."). And reading the
statute literally requires the entry of a"money judgment" to
commence the period of post-judgment interest on an
attorney's fee award, which here occurred on January 27,
2000 when the District Court quantified the amount the
County owed.
In reaching our result, we also ar e informed by a portion
of our analysis in Kaiser Aluminum that was not disturbed
by the Supreme Court on appeal. In the pr oceedings before
us, the plaintiff suggested several dates fr om which the
accrual of post-judgment interest could have commenced,
including August 16, 1979, the date the jury deliver ed its
liability verdict. But as we previously mentioned, we
followed Poleto and agreed with the district court that post-
judgment interest ran from December 2, 1981, the date of
the second damages verdict after retrial. In reaching that
conclusion, we necessarily rejected Bonjor no's suggested
date of August 16, 1979, and, moreover, ruled out the
possibility that post-judgment interest would run from
August 22, 1979, the date of the first damages judgment
that was subsequently overturned on Kaiser Aluminum's
post-trial motion. With respect to those two possibilities, we
explained:
Bonjorno argues that interest should accrue from the
date of the original liability verdict--August 1979--
19
because liability was ultimately affirmed[by the Court
of Appeals]. However, the August 16, 1979 verdict on
liability alone was insufficient under Fed. R. Civ. P.
54(c) to allow or require the court to enter judgment.
Little if any authority supports the position that post-
judgment interest accrues from the date of an
unliquidated verdict or from a judgment vacated by a
district court which is never reinstated, modified or
even appealed. The vast majority of cases which
construe section 1961 to allow interest to run from a
verdict rather than a "judgment" involve verdicts which
include an assessment of damages where judgment is
later entered on the verdict amount. . . . This reasoning
weighs against permitting Bonjorno to r ecover interest
from August 16, 1979 (the date of the unliquidated
liability verdict) or August 22, 1979 (the date of the
first damage verdict which was vacated and never
reinstated, increased, reduced, or even appealed).
Kaiser Aluminum, 865 F.2d at 570-71 (emphasis added).10
_________________________________________________________________
10. This aspect of our holding in Kaiser Aluminum remains intact after
Supreme Court's rejection of the rule we adopted in Poleto. The Supreme
Court specifically rejected the plaintif f 's argument that post-judgment
interest should have run from August 22, 1979, the date the court
entered judgment on the first liability and damages verdicts, because the
damages verdict subsequently was set aside as not supported by the
evidence. Using language from Poleto and our opinion in Kaiser
Aluminum, the Court reasoned that "wher e the judgment was not
supported by the evidence, the damages have not been ascertained in
any meaningful way." Kaiser Aluminum, 494 U.S. at 836; see also id.
(" `[T]he purpose of post-judgment interest is to compensate the
successful plaintiff for being deprived of compensation for the loss from
the time between the ascertainment of the damage and the payment by
the defendant.' ") (quoting Poleto, 826 F.2d at 1280). The Court's
reference to damages being "ascertained" is taken from Poleto and our
opinion in Kaiser Aluminum, both of which r ecognized that damages are
"meaningfully ascertained" once the amount owed to the prevailing party
has been determined in a court proceeding. Poleto, 826 F.2d at 1280
(citing Hooks v. Washington Sheraton Corp., 642 F.2d 514, 618-19 (D.C.
Cir. 1980) (Mikva, J., dissenting)); see also Kaiser Aluminum, 865 F.2d at
570 (noting that, even under rule adopted in Poleto, verdicts which are
sufficient to commence the post-judgment inter est period under
S 1961(a) must include an "assessment of damages").
20
Our reasoning on this point in Kaiser Aluminum weighs
against Eaves's assertion that post-judgment inter est
should run from the date that the district court ruled she
was entitled to fees. For purposes of determining the date
from which post-judgment interest should run, the August
11, 1998 order stating that Eaves was entitled to attorney's
fees and costs is the functional equivalent of the August 16,
1979 unliquidated liability verdict in Kaiser Aluminum
which we found insufficient to commence the post-
judgment interest period under S 1961(a). The import of the
August 11, 1998 order was that the County was liable to
Eaves for some unspecified portion of her attor ney's fees,
but that, as of that date, her claim for those fees was not
"liquidated" because it had not been r educed to a fixed
amount.11 See MidAmerica, 962 F.2d at 1477. Similarly, the
August 16, 1979 liability verdict in Kaiser Aluminum
amounted only to a finding that Kaiser Aluminum was
liable to Bonjorno on the merits of the claim under the
applicable law. Until the damages verdict occurred on
August 21, 1979, the plaintiff 's claim against Kaiser
Aluminum was unliquidated in the sense that the amount
of monetary damages owed had not been fixed. See Poleto,
826 F.2d at 1280 ("The verdict [of liability and damages]
assesses damages up to the time that it is r endered;
however, payment does not occur immediately upon return
of the verdict. Post-judgment interest r epresents the cost of
withholding the amount owed the plaintiff once that sum
has been determined in a court proceeding.") (emphasis
added).
As the Supreme Court's analysis in Kaiser Aluminum
confirms, the pivotal event for the commencement of the
_________________________________________________________________
11. Cf. Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 395-96 (3d Cir.
2000) (explaining that a "fixed or liquidated claim" is one where the
damages are "certain" and stating that pr ejudgment interest on
liquidated claim carries interest at legal rate from time debt becomes
due) (applying Pennsylvania law); E.C. Er nst, Inc. v. Koppers Co., Inc.,
626 F.2d 324, 332-33 (3d Cir. 1980) (determining whether award of
prejudgment interest was appropriate, stating that "only question is
whether the damages were sufficiently fixed to be liquidated," and
finding in plaintiff 's favor because"the sum due could be fixed by fairly
objective means") (applying Pennsylvania law).
21
post-judgment interest period is the entry of the
"judgment," more specifically, the"money judgment" to
which S 1961(a) applies. And, as our discussion in Kaiser
Aluminum demonstrates, the operative judgment must set
forth the court's (or jury's) assessment of monetary
damages arising out of the claim or right giving rise to the
defendant's liability for the amount awarded. Kaiser
Aluminum, 865 F.2d at 570; Poleto, 826 F.2d at 1280; see
In re Lower Lake Erie, 998 F.2d at 1177 (stating that post-
judgment interest compensates plaintiff for loss between
determination of damages and defendant's payment); see
also Turner v. Japan Lines, Ltd., 702 F .2d 752, 756 (9th
Cir. 1983) (explaining that prejudgment interest
accommodates plaintiff for loss from time of breach or
injury to date of ascertainment of damages, i.e. , damages
verdict, and post-judgment interest accommodates plaintiff
for period from date of ascertainment of damages until
payment by defendant), abrogated on other grounds by
Kaiser Aluminum, 494 U.S. at 834-35.
We recognize, of course, that our appr oach in this case is
different from that of the Courts of Appeals for the Fifth,
Eighth, Ninth, Eleventh and Federal Circuits, and thus that
the weight of authority is against our position. W e
nevertheless reject the majority view because, in most
cases, the courts predicated their result on a broader
interpretation of S 1961(a) based primarily on policy
considerations rather than the plain language of the statute.12
_________________________________________________________________
12. We say that "most cases" wer e grounded in policy in view of the fact
that the Eleventh Circuit took a differ ent approach in BankAtlantic v.
Blythe Eastman Paine Webber. Ther e the court held that post-judgment
interest on an attorney's fee award under Fed. R. Civ. P. 37 ran from the
date the district court entered the order establishing the plaintiff 's
right
to recover attorney's fees as a discovery sanction rather than the date
that the district court quantified the amount. See BankAtlantic, 12 F.3d
at 1048. Without mentioning Copper Liquor , Mathis or Jenkins, the court
reasoned that "[t]he proper date upon which interest shall be calculated
for the sanction amount is July 10, 1989, the date of the sanction order"
because Fed. R. Civ. P. 54(a) defined judgment as including "a decree
and any order from which an appeal lies." Id. at 1053. The court's
analysis thus apparently was based on its view that the defendants
could have appealed the initial order awar ding discovery sanctions.
22
Additionally, we find it significant that the initial two cases
espousing the "majority view" preceded the Supreme
Court's literal interpretation of S 1961(a) in Kaiser
Aluminum, which we view as dictating our r esult. See
MidAmerica, 962 F.2d at 1476.
For example, in the initial decision addressing the
question of accrual of post-judgment interest on an
attorney's fee award, the Fifth Cir cuit in Copper Liquor v.
Adolph Coors & Co., held that post-judgment interest on an
award of fees and/or costs runs from the date of the
"judgment establishing the right to fees or costs, as the
case may be."13 See Copper Liquor, 701 F.2d at 545.
_________________________________________________________________
We are unpersuaded by the Eleventh Cir cuit's analysis. First, although
it is true that Fed. R. Civ. P. 54(a) defines "judgment," the definition
provides that it is to be applied to the ter m "as used in these rules,"
and
states only that it "includes" a decree or any order from which an appeal
lies. Thus, the Rule itself does not purport to define "judgment" as used
in statutory provisions such as, for example,S 1961(a), and it thus
leaves room for the possibility that the ter m "judgment" as used in
S 1961(a) could include a district court or der that does not fall within
the
narrow class of a "decree and any or der from which an appeal lies." In
re Lower Lake Erie, 998 F.2d at 1177-78.
Second, and perhaps more importantly, by fashioning a rule that ties
the commencement of the post-judgment interest period to the entry of
the "judgment" as defined in Rule 54(a), the BankAtlantic court
overlooked the fact that S 1961(a)'s use of the term "judgment" in the
third sentence is a shorthand refer ence back to the "money judgment"
specified in the first sentence of that subsection. Thus, in looking only
to Rule 54(a)'s definition of "judgment," the court did not consider what
we see as the real issue--whether the district court's order resolving the
motion for sanctions was, in actuality, a "money judgment," given that
the order did not set a fixed amount of money to be paid to the plaintiff.
While we recognize that the "money judgment" at issue in a given case
also might qualify as a "judgment" for purposes of determining finality
under Rule 54(a), there is no legal basis for concluding that S 1961(a)
can be read as allowing post-judgment inter est only on "judgments" as
defined exclusively by Rule 54(a). Cf. McDonald v. McCarthy, 966 F.2d
112, 115 (3d Cir. 1992) (looking to advisory committee's note to Fed. R.
App. 39 which indicated that reference to"costs" found therein should
be defined according to 28 U.S.C. S 1920).
13. In Devex, we relied upon Copper Liquor to hold that a prevailing party
who is awarded taxable costs is entitled to post-judgment interest on the
23
Notably, however, the court did not pr ovide any reasoning
as to why it adopted the rule that it did, and seemed to rely
on equitable considerations to justify the r esult.14 See id. at
_________________________________________________________________
costs award. Devex, 749 F.2d at 1026. We note, however, that the issue
presented in Devex was not the date fr om which post-judgment interest
should run on an award of costs. Rather , the defendant argued
unsuccessfully that post-judgment interest on an award of costs was not
available at all under S 1961(a). We need not, and do not, address the
open issue of the date from which post-judgment interest would run on
costs taxed pursuant to 28 U.S.C. S 1920, see, e.g., BankAtlantic, 12
F.3d at 1047; Georgia Ass'n of Retarded Citizens v. McDaniel, 855 F.2d
794, 799 (11th Cir. 1988), because the District Court's order in the
instant case did not award post-judgment inter est on its $582 award of
taxable costs, and Eaves has not challenged that ruling.
14. We are aware that the Fifth Circuit has considered whether its ruling
in Copper Liquor was overruled by Kaiser Aluminum, and has determined
that Copper Liquor remains good law. Louisiana Power & Light Co., 50
F.3d at 332. The Fifth Circuit r ead Kaiser Aluminum as consistent with
the result in Copper Liquor based on the Supreme Court's statement that
"where the judgment is not supported by the evidence, the damages have
not been ascertained in any meaningful way." Kaiser Aluminum, 494 U.S.
at 836. The Fifth Circuit explained: "[b]ecause the earlier judgment in
Kaiser was invalid, the party had no entitlement to damages on that
date. Thus, the reasoning in Kaiser is consistent with Copper Liquor's
mandate that interest should not accrue until the party becomes entitled
to the award." Louisiana Power & Light , 50 F.3d at 332.
We agree that on the surface, Copper Liquor can be reconciled with
Kaiser Aluminum to the extent that the Court's statement in Kaiser
Aluminum suggests that until the second damages judgment was
entered, the plaintiff had not established, as an evidentiary matter, that
she was "entitled" to any monetary damages. Nevertheless, our careful
review of the entire discussion in Kaiser Aluminum confirms that, on
balance, the result in that case must be viewed as undermining the
analysis underlying the Copper Liquor rule. First, as we previously
mentioned, the rule in Copper Liquor cannot be squared with the plain
meaning of the term "any money judgment" found in S 1961(a). Second,
and perhaps more importantly, as we indicated in note 10, the Court's
reference to the point at which the damages are "meaningfully
ascertained" came from Poleto, which in turn explained that damages are
"ascertained" at the point at which the sum owed "has been determined
in a court proceeding,"--in that case, by the damages verdict. Poleto, 826
F.2d at 1280. Against the backdrop of Poleto and our opinion in Kaiser
24
544 (observing, in overruling Carpa, Inc. v. W ard Foods,
567 F.2d 1316 (5th Cir. 1978), that"because a dollar today
is worth more than a dollar in the futur e, the only way [a
party] can be made whole is to award him interest from the
time he should have received the money").
Subsequently, in Mathis v. Spears, the Federal Circuit
followed Copper Liquor because, in its view,"the provision
for calculating interest from the entry of the judgment
deters the use of the appellate process by the judgment
debtor solely as a means of prolonging its fr ee use of money
owed. . . ." See Mathis, 857 F.2d at 760. However, the
analysis in Mathis is inapposite given that the rule we have
approved today would not encourage litigants tofile
frivolous appeals of the attorney's fee awar d. Indeed, we
already have held in Institutionalized Juveniles that in
certain circumstances, post-judgment inter est on an
attorney's fee award runs from the date of the original
judgment even if that judgment was modified on appeal.
See Institutionalized Juveniles, 758 F.2d at 927. Thus, the
equitable consideration identified in Mathis is not
implicated, as we are not concerned in this case with the
time period between the judgment in the district court and
the judgment in the court of appeals, but, rather , must
choose between two judgments entered in the district court
for purposes of calculating the post-judgment inter est
amount owed.
_________________________________________________________________
Aluminum, we read the Supreme Court's opinion in Kaiser Aluminum as
simply having extended the "ascertainment of the damages" rationale
first discussed in Poleto to the facts pr esented in that case. Therefore,
rather than viewing that discussion in Kaiser Aluminum solely from the
standpoint of when the plaintiff became "entitled" to damages as an
evidentiary matter, it could be read as also predicated on the fact that
the damages were not "ascertained" until the second judgment because
the first damages verdict had been overtur ned, thus leaving no valid
judicial determination of the sum actually owed to the plaintiff. At all
events, when considered in light of Poleto and our discussion in Kaiser
Aluminum, we are convinced that the Fifth Circuit in Louisiana Power &
Light Co. focused too narrowly on "entitlement" as the key to applying
the "ascertainment of the damage" principle in Kaiser Aluminum in the
attorney's fee context.
25
Moreover, the Eighth Circuit in Jenkins v. State of
Missouri, and the Ninth Circuit in Friend v. Kolodzieczak,
both relied on policy justifications to per mit post-judgment
interest to accrue on an unquantified attor ney's fee
judgment without considering the impact of the plain
language of S 1961(a). See Kolodzieczak , 72 F.3d at 1386;
Jenkins, 931 F.2d at 1273. In Jenkins , for example, the
court observed that the award of interest serves the "make
whole" objective of fee awards in civil rights cases and
cautioned that "if the accrual of post-judgment interest is
delayed until fee awards are quantified,. . . attorneys are
not fully compensated for their successful ef forts, [and]
they may be reluctant to take on complex and expensive
litigation." Id. at 1276-77. The court in Kolodzieczak
similarly observed that allowing post-judgment inter est to
accrue from the judgment establishing the right to fees
ensures that civil rights attorneys ar e fully compensated for
the delay in payment. See Kolodzieczak, 72 F .3d at 1392.15
In our view, however, the rule that we have adopted does
not frustrate the "make whole" objective of attorney fee
awards in civil rights cases. While we r ecognize that our
construction of S 1961(a) limits the amount of post-
judgment interest that accrues on an attor ney's fee
judgment, we do not hold today that post-judgment interest
on an attorney's fee award is not available in general.
Rather, we find only that post-judgment interest does not
begin to run until the court fixes the amount owed--in
other words, it commences upon the entry of the"money
judgment."
Moreover, while the courts in Jenkins and Kolodzieczak
correctly point out the importance of fully compensating
civil rights attorneys who take on complex litigation, the
courts did not consider the fact that the same r esult may
be obtained if the district court applies an appr opriate form
_________________________________________________________________
15. The court in Kolodzieczak actually adopted the district court's
analysis of the legal issues in its entirety. The district court, in turn,
relied upon another district court decision in reaching its conclusion
that post-judgment interest on an attor ney's fee award runs from the
date of entitlement rather than the date of quantification. See
Kolodzieczak, 72 F.3d at 1392 (citing,inter alia, Finkelstein v. Bergna,
804 F. Supp. 1235, 1239 (N.D. Cal. 1992)).
26
of a delay-in-payment adjustment to the lodestar amount in
calculating the fee award. The Supreme Court has equated
the adjustment allowed for the delay in payment in civil
rights cases with an award of prejudgment interest on the
attorney's fee award. See Missouri v. Jenkins, 491 U.S. 274,
282 n.3 (1989); Library of Congress v. Shaw, 478 U.S. 310,
322 (1986). We similarly have explained that the delay-in-
payment adjustment "is designed to compensate the
attorney for the time gap between the actual expenditure of
services and the fee award," and that post-judgment
interest covers the delay in receipt during the period from
the fee determination to payment. Black Grievance Comm.
v. Philadelphia Elec. Co., 802 F.2d 648, 656 (3d Cir. 1986),
vacated and remanded on other grounds , 483 U.S. 1015
(1987). In Keenan v. City of Philadelphia, 983 F.2d 459 (3d
Cir. 1992), we noted that "in granting plaintiffs
compensation for delay, two methods may be used: basing
the fee award on current rates or adjusting the fee based on
historical rates to reflect its present value." Id. at 476.
Indeed, where the plaintiff presents adequate evidentiary
support documenting the costs incurred because of the
delay in receipt of funds, such enhancements ar e permitted
for the very purpose of compensating counsel for the delay
in receipt of the fees until the litigation has concluded. See
Blum v. Witco Chem. Corp., 888 F.2d 975, 985 (3d Cir.
1989); Institutionalized Juveniles, 758 F .2d at 923
(discussing factors informing court's discr etion when
awarding delay in payment enhancement); cf. In re
Burlington N., 810 F.2d at 609 (r ejecting plaintiffs' request
for prejudgment interest to account for delay between filing
of fee petition and judgment awarding attor ney's fees in
part because "[i]n the absence of evidence, we have no basis
on which to conclude that payment based on 1984 rates
compensated lead counsel only for delay in payment up to
that time") (emphasis added). Thus, an appr opriate
adjustment for the delay in payment would ensur e that
attorneys are fully compensated for their efforts and also
would be consistent with S 1961(a)'s r equirement that post-
judgment interest does not begin to accrue until the entry
of the money judgment.16
_________________________________________________________________
16. Although the District Court did not addr ess it, but given its
apparent
concern as to who should bear the cost of delay, we leave open the
27
IV. CONCLUSION
Given the foregoing analysis, we hold that pursuant to 28
U.S.C. S 1961(a), post-judgment interest on an attorney's
fee award runs from the date that the District Court enters
a judgment quantifying the amount of fees owed to the
prevailing party rather than the date that the Court finds
that the party is entitled to recover fees, if those
determinations are made separately. Her e, the District
Court intended to compensate Eaves for the delay in
payment occasioned by court backlog from August 11,
1998, the date of the District Court's judgment stating that
she was entitled to attorney's fees, to January 27, 2000,
the date the Court fixed the amount owed. W e hold that the
District Court erred in awarding post-judgment interest
_________________________________________________________________
possibility that on remand, the Court might consider compensating
Eaves for the delay that occurred in this case by applying our precedents
permitting an adjustment to the lodestar amount to account for the
"delay in payment" factor often present in civil rights cases. See, e.g.
Gulfstream III Assoc., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414,
425-26 (3d Cir. 1993); Keenan, 983 F.2d at 476; Blum, 888 F.2d at 984-
85; Student Pub. Interest Research Group of New Jersey, Inc. v. AT&T Bell
Labs, 842 F.2d 1436, 1453-54 (3d Cir . 1988); Black Grievance Comm.,
802 F.2d at 655-56; Institutionalized Juveniles, 758 F.2d at 923-34. In
pointing out the possibility for such an enhancement on remand, we
have not overlooked the fact that the District Court, on January 27,
2000, calculated the lodestar by using counsels'"current" billing rates
(as of the date of the fee petition in May 1998) rather than their
historical rates charged for services at the time they were rendered, and
that the use of such rates may dictate that no enhancement is
warranted. See Jenkins, 491 U.S. at 284; Institutionalized Juveniles, 758
F.2d at 923 n.41 (dicta); Copeland v. Marshall, 641 F.2d 880, 893 n.23
(D.C. Cir. 1980) (en banc). But see In re Cont'l Illinois Sec. Litig., 962
F.2d
566, 571 (7th Cir. 1992); see also Smith v. Vill. of Maywood, 17 F.3d
219, 221 (7th Cir. 1994). Moreover , while we realize that the District
Court did award a 15 percent contingency enhancement under the
NJLAD, we note that such an enhancement is distinct from an
adjustment to account for a delay in payment. See Pennsylvania v.
Delaware Valley Citizens' Council for Clean Air, 483 U.S. 711, 716 (1987)
("Although delay and the risk of nonpayment ar e often mentioned in the
same breadth, adjusting for the former is a distinct issue that is not
involved in this case. We do not suggest . . . that adjustments for delay
are inconsistent with the typical fee shifting statute.").
28
under S 1961(a) from the entry of the August 11, 1998
order to accomplish that goal, because that or der did not
constitute a "money judgment" from which post-judgment
interest could run.
Accordingly, we will VACATE the District Court's January
27, 2000 order and remand the matter to the District Court
for the entry of an appropriate order consistent with this
opinion. We will also AFFIRM the District Court's rulings
with respect to the other issues the County pr esented in
this appeal.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
29
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.