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473 U.S. 1301
105 S.Ct. 3467
87 L.Ed.2d 603
OFFICE OF PERSONNEL MANAGEMENT et al.v.AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.No. A-5.
July 5, 1985.
Stay Denied July 18, 1985.
See 473 U.S. 923, 106 S.Ct. 11.
Chief Justice BURGER, Circuit Justice.
1
On October 25, 1983, the Office of Personnel Management (OPM) published in final form new personnel regulations affecting federal employees.1 The new regulations were intended to allow federal agencies to give more weight to merit and less weight to seniority in personnel decisions. The new regulations were to take effect November 25, 1983.
2
On November 12, 1983, Congress adopted House Joint Resolution 413 which, in effect, prohibited OPM and several other federal agencies from expending funds appropriated under that resolution "to implement, promulgate, administer or enforce" the new regulations.2 On November 21, 1983, OPM announced that the new regulations would become effective on November 25, 1983.3 The announcement stated that no expenditure was required for the new regulations to go into effect and that each federal agency would administer and enforce the regulations without the assistance or oversight of OPM. The implementation of the new regulations was stayed on November 23, 1983, however, by the United States District Court for the District of Columbia,4 and that stay was affirmed by the Court of Appeals on April 27, 1984.5 In the Continuing Appropriations Act for 1985, enacted in October 1984, Congress extended the restrictions on the implementation of the new regulations but specifically provided that the restrictions "shall expire on July 1, 1985." Pub.L. 98-473, 98 Stat. 1963, incorporating by reference provisions of H.R.Rep. 98-993, p. 13 (1984).
3
On June 28, 1985—some eight months after Congress had finally fixed the date on which the new regulations would become effective and fewer than 72 hours before that effective date—respondent sought a temporary restraining order blocking implementation of the new regulations from the United States District Court for the District of Columbia. In an opinion delivered from the bench the same day, the District Court denied the requested order, noting that respondent had failed to show that irreparable harm would result from denial of the temporary restraining order. The court found that nothing "of any concrete nature [would occur] in the immediately foreseeable future which would be unable to be redressed in some form or another at some later time should the regulations go into effect."
4
Respondent appealed the decision of the District Court to the Court of Appeals for the District of Columbia Circuit and, at the same time, moved the Court of Appeals to enjoin implementation of the new regulations. On Saturday, June 29, 1985, a motions panel of the Court of Appeals ordered that respondent's emergency motion for injunctive relief be "held in abeyance" and that the District Court hear and decide by July 10, 1985, "any motion for a preliminary injunction." The court ordered "on its own motion," that the effective date of the proposed regulations be stayed until further order of that court. The court observed that respondent "may suffer irreparable injury in the absence of a stay" but did not identify that irreparable injury.
5
On July 2, 1985, OPM filed with me, as Circuit Justice for the District of Columbia Circuit, an application to vacate the order of the Court of Appeals. I granted the application on July 3, reciting in my order that a memorandum opinion would follow.
6
The Court of Appeals correctly acknowledged that the established rule is that denials of temporary restraining orders are ordinarily not appealable. The court nonetheless asserted jurisdiction over the District Court's denial of the temporary restraining order in this case, holding that it falls within an exception to the general rule "because . . . [the new regulations] are now scheduled to become effective before any hearing on the preliminary injunction can be held." The court reasoned that because a hearing could not be held before the regulations went into effect, the District Court's denial of the temporary restraining order was tantamount to a denial of a preliminary injunction.
7
The principal authority relied on by the Court of Appeals in support of this exception to the general rule of unappealability is a footnote in our opinion in Sampson v. Murray, 415 U.S. 61, 86-87, n. 58, 94 S.Ct. 937, 951, n. 58, 39 L.Ed.2d 166 (1974).6 The footnote from Sampson cited by the Court of Appeals merely quotes an opinion of the Court of Appeals for the Second Circuit in Pan American World Airways v. Flight Engineers' Assn., 306 F.2d 840, 843 (1962), to the effect that a temporary restraining order which is continued beyond the statutory period is appealable because it is, in effect, a preliminary injunction. In the present case, however, the District Court denied the temporary restraining order; a temporary restraining order was, therefore, not continued beyond the statutory period. The footnote in Sampson relied on by the Court of Appeals is simply irrelevant.
8
The Court of Appeals also relied on its own opinion in Adams v. Vance, 187 U.S.App.D.C. 41, 570 F.2d 950 (1978), but this reliance is also misplaced. In Adams, the Court of Appeals held that it had jurisdiction over an appeal from a grant of a temporary restraining order because the order in question "did not merely preserve the status quo pending further proceedings, but commanded an unprecedented action irreversibly altering" a delicate balance involving the foreign relations of the United States. Id., at 44, 570 F.2d, at 953. Again, however, in contrast to Adams, the District Court in this case denied the temporary restraining order. Its denial merely allows implementation of regulations in accordance with the express intent of Congress. Only if the District Court granted the temporary restraining order would it have disturbed the status quo. Moreover, the District Court's grant of a temporary restraining order in Adams was extraordinary. It "deeply intrude[d] into the core concerns of the executive branch," id., at 45, 570 F.2d, at 954, and "direct[ed] action . . . potent with consequences . . . irretrievable," id., at 44, 570 F.2d, at 953. The consequences of the District Court's order in the present case were not nearly so grave. And the opinion of the District Court explicitly contemplated a prompt hearing on a preliminary injunction. The District Court's denial of the temporary restraining order here was not in any sense a de facto denial of a preliminary injunction.7
9
The exception fashioned and relied on by the Court of Appeals is not supported by the authority cited; nor is there any independent basis on which jurisdiction could rest. I therefore conclude that the Court of Appeals had no jurisdiction to review the denial by the District Court of respondent's motion for a temporary restraining order. The Court of Appeals should have dismissed the appeal, thereby allowing respondent to proceed in the District Court on a motion for a preliminary injunction.
10
Possibly to ensure that it would retain jurisdiction over the disposition of the preliminary injunction motion which it ordered the District Court to hear and decide, the panel "held in abeyance" the motion for injunctive relief and issued what it termed an "administrative stay," in effect granting respondent more extensive relief than it had sought from the District Court. However, since the Court of Appeals was without jurisdiction over the appeal from the District Court's order denying the temporary restraining order, the motions panel was necessarily without authority to grant such a stay.
11
Accordingly, the order of the Court of Appeals is vacated.
1
5 CFR pts. 300, 335, 351, 430, 431, 451, 531, 532, 540, 551, 771 (1984). For a discussion of the events leading up to the publication of the new regulations on October 25, 1983, see National Treasury Employees Union v. Devine, 236 U.S.App.D.C. 22, 23-24, 733 F.2d 114, 115-16 (1984) ("NTEU").
2
H.J.Res. 413, Pub.L. 98-151, 97 Stat. 964.
3
OPM News Release.
4
National Treasury Employees Union v. Devine, No. 83-3322 (DC Nov. 24, 1983) (temporary restraining order); National Treasury Employees Union v. Devine, 577 F.Supp. 738 (DC 1983).
5
NTEU. In its opinion in NTEU, the Court of Appeals affirmed the judgment of the District Court and declared that the new regulations were "null and void" until the barriers erected by Congress to the implementation thereof are removed. 236 U.S.App.D.C., at 28, 733 F.2d, at 120. Once those barriers are removed, "OPM will be free to . . . implement . . . and enforce the [new regulations]." Ibid.
6
In Sampson, we reversed a decision of the Court of Appeals for the District of Columbia Circuit which upheld a temporary injunction barring the dismissal of a federal employee. We held that loss of income to a dismissed federal employee, even when coupled with damage to reputation resulting from such dismissal, "falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case." 415 U.S., at 91-92, 94 S.Ct., at 953-954.
7
The Court of Appeals also cited to Dilworth v. Riner, 343 F.2d 226, 229-230 (CA5 1965), to support its conclusion that, because the regulations would become effective before a preliminary injunction hearing could be held, the District Court's ruling was immediately appealable. Dilworth simply does not support this conclusion.
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713 N.W.2d 508 (2006)
14 Neb. App. 709
Zachary P. O'HARA, appellant,
v.
DEPARTMENT OF MOTOR VEHICLES, an administrative agency of the State of Nebraska, appellee.
No. A-04-1128.
Court of Appeals of Nebraska.
May 2, 2006.
Phillip G. Wright and Casey J. Symonds, of Wright & Associates, Omaha, for appellant.
*509 Jon Bruning, Attorney General, and Edward G. Vierk for appellee.
INBODY, Chief Judge, and IRWIN and CARLSON, Judges.
CARLSON, Judge.
INTRODUCTION
Zachary P. O'Hara appeals from the judgment of the district court for Douglas County affirming the revocation of his driver's license by the Nebraska Department of Motor Vehicles (Department). Based on the reasons that follow, the appeal is dismissed and the cause is remanded to the district court with directions to vacate its judgment.
BACKGROUND
On February 27, 2004, at approximately 1 a.m., Omaha police officer Scott Buresh was on duty and observed in a parking lot a vehicle that appeared to have been involved in an accident. The vehicle had significant lower front-end damage, and both of its front tires were flat. Buresh testified that he did not recall seeing the vehicle in the parking lot when he had driven by the same location earlier that evening. Buresh approached the vehicle and found O'Hara sitting in the driver's seat listening to the radio. The keys were in the ignition, but the vehicle was not running. During contact with O'Hara, Buresh detected an odor of an alcoholic beverage. Buresh also testified that O'Hara had difficulty standing and walking without assistance. Buresh administered field sobriety tests to O'Hara, and O'Hara demonstrated impairment during the tests.
During Buresh's contact with O'Hara, Omaha police officer Jon Martin arrived at the location. Martin administered a preliminary breath test, and upon completion of such test, O'Hara was arrested for driving under the influence of alcohol and was taken to police headquarters. A chemical test performed at police headquarters indicated that O'Hara had an alcohol concentration of his breath that exceeded the legal limit set forth in Neb.Rev.Stat. § 60-6,196(1) (Supp.2003). Buresh testified that he recorded the test result on a "Sworn Report" form, completed the form, and signed it in the presence of a notary. The Department received the sworn report on March 5, 2004.
On March 4, 2004, O'Hara filed a petition for administrative hearing with the Department, requesting a hearing to contest the revocation of his driver's license. On April 12, an administrative license revocation (ALR) hearing was held before a hearing officer for the Department to determine whether O'Hara was operating or in the actual physical control of a motor vehicle while under the influence of alcohol, in violation of § 60-6,196(1). Buresh and Martin both testified for the Department, describing the events that led to O'Hara's arrest, as previously set forth. The Department also offered the sworn report prepared by Buresh, and it was received into evidence over O'Hara's objection.
On April 16, 2004, the hearing officer entered a document titled "Proposed Findings of Facts, Proposed Conclusions of Law and Recommended Order of Revocation." The hearing officer found that the evidence established that O'Hara was operating and in actual physical control of a motor vehicle while having a breath-alcohol content that exceeded the legal limit in violation of § 60-6,196(1). The hearing officer recommended revocation of O'Hara's driver's license for the statutory period. Directly below the hearing officer's signature on the "Proposed Findings of Fact, Proposed Conclusions of Law and Recommended Order of Revocation" is a section titled "Certificate of Adoption and Order," *510 which purports to be the order of the director of the Department adopting the hearing officer's recommended order. The section specifically states that the director is adopting the hearing officer's recommended order as the official and final order of the director. It further states that O'Hara's driver's license is revoked for 90 days, effective April 27, 2004. The "Certificate of Adoption and Order" is dated April 19, 2004, but it is not signed by the director. O'Hara nonetheless appealed to the district court for Douglas County the Department's order of revocation. On September 22, 2004, the district court entered an order affirming the Department's order of revocation. O'Hara now appeals to this court.
ASSIGNMENTS OF ERROR
O'Hara assigns that the district court erred in (1) failing to find that his due process rights were violated at the ALR hearing, (2) failing to find that his arrest and resultant driver's license revocation were invalid because his vehicle was located on private property, and (3) affirming the Department's order of revocation when on its face it contains no findings of fact, conclusions of law, or order affirming the hearing officer's determination, because it was not signed by the director as required.
STANDARD OF REVIEW
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005); In re Guardianship & Conservatorship of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (2004).
ANALYSIS
We first consider whether the district court had jurisdiction over this matter and, consequently, whether we have jurisdiction. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Malolepszy v. State, supra; Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 N.W.2d 726 (2004).
The jurisdictional question in this case stems from the failure of the director of the Department to sign the order of revocation. As previously stated, the "Proposed Findings of Facts, Proposed Conclusions of Law and Recommended Order of Revocation" was signed by the hearing officer on April 16, 2004. Directly below that signature is the "Certificate of Adoption and Order" section, which purports to be the director's order adopting the hearing officer's recommended order of revocation. However, there is no signature in the space provided above the block containing the director's name and title. The director did sign the "Certificate of Service," which appears on the same page just below the "Certificate of Adoption and Order" section.
Interestingly, O'Hara is the one who raises issue with the missing signature. However, O'Hara does not make a jurisdictional argument, but, rather, argues that the Department's order of revocation is void and cannot be enforced due to the director's failure to sign the "Certificate of Adoption and Order."
The Nebraska Administrative Code requires that "[e]very decision and order rendered by the Director adverse to a party shall be in writing and shall be accompanied by findings of fact and conclusions of law reached by the Director." 247 Neb. Admin. Code, ch. 1, § 021.01 (2001). The question we must address is whether the signature of the director of *511 the Department is required for an order of revocation to be considered rendered by the director. Neb.Rev.Stat. § 25-1301 (Cum.Supp.2004) defines "rendition of a judgment" as "the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action." Under § 25-1301, "rendition of a judgment," i.e., the judge's signature, is a requirement for a final order. Although § 25-1301(2) applies specifically to courts, we cannot discern any reason why a final decision and order by the Department in an ALR proceeding would not require the director's signature in order to be considered "rendered" under § 021.01. We have found no case law that addresses this issue in the context of an administrative decision. However, without the director's signature on the order of revocation, the director has not adopted the recommendations of the hearing officer as the official and final order of the Department, as stated in the "Certificate of Adoption and Order." We conclude that the signature of the director of the Department is required for an order of revocation to be effectively rendered.
Based on the absence of the director's signature on the Department's order of revocation, we conclude that there has been no "decision and order rendered by the Director" in this case, as required by § 021.01. Therefore, there has been no proper revocation of O'Hara's driver's license from which he could appeal to the district court pursuant to Neb.Rev.Stat. § 60-498.04 (Reissue 2004).
As previously stated, the signature of the director of the Department does appear on the "Certificate of Service," which is located on the same page as the "Certificate of Adoption and Order." We conclude that the signature on the "Certificate of Service" does not qualify the document as a whole to be a signed order. The "Certificate of Service" has a separate purpose from that of an order, and the fact that it happens to appear on the same page as the "Certificate of Adoption and Order" does not make the signature effective for purposes of the director rendering an order.
In addition, the record contains an "Order of Administrative License Revocation" dated April 28, 2004. This document, signed by the director of the Department, informed O'Hara of the driver's license revocation and states that "[t]his order is in addition to and does not supersede any prior order issued by the Department of Motor Vehicles." We conclude that the "Order of Administrative License Revocation," although signed by the director, is not a sufficient rendition of judgment, because it was not accompanied by findings of fact and conclusions of law as required by § 021.01.
Consequently, when the district court reviewed the Department's order of revocation and entered the court's order of affirmance, it was without jurisdiction to do so, because there has not been a rendition of judgment by the director of the Department as required by § 021.01. Because the district court lacked jurisdiction to enter its order of September 22, 2004, we do not have jurisdiction over an appeal from such order, and we must therefore dismiss the appeal. See Kroll v. Department of Motor Vehicles, 256 Neb. 548, 590 N.W.2d 861 (1999).
CONCLUSION
The appeal is dismissed for lack of jurisdiction, and the cause is remanded to the district court with directions to vacate its order of affirmance entered on September 22, 2004.
*512 APPEAL DISMISSED, AND CAUSE REMANDED WITH DIRECTIONS.
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Case: 17-30481 Document: 00514354035 Page: 1 Date Filed: 02/20/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-30481
Conference Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 20, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LASANDRA LAVERNE EDWARDS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:16-CR-245-1
Before REAVLEY, CLEMENT, and HO, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Lasandra Laverne
Edwards has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632
F.3d 229 (5th Cir. 2011). Edwards has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous
* 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: 17-30481 Document: 00514354035 Page: 2 Date Filed: 02/20/2018
No. 17-30481
issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
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Futter v Hewlett Sta. Yogurt, Inc. (2017 NY Slip Op 02970)
Futter v Hewlett Sta. Yogurt, Inc.
2017 NY Slip Op 02970
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
MARK C. DILLON, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2016-01026
(Index No. 10897/12)
[*1]Bernice Futter, appellant,
vHewlett Station Yogurt, Inc., defendant, Rinzler Family Limited Partnership, et al., respondents. (Appeal No. 1) Bernice Futter, plaintiff-respondent, Hewlett Station Yogurt, Inc., appellant, Rinzler Family Limited Partnership, et al., defendants-respondents. (Appeal No. 2)
Bornstein & Emanuel, P.C., Garden City, NY (Paul D. Creinis of counsel), for appellant in Appeal No. 1 and plaintiff-respondent in Appeal No. 2.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby of counsel), for appellant in Appeal No. 2.
D'Amato & Lynch, LLP, New York, NY (Arturo M. Boutin and Lenore Benessere of counsel), for respondents in Appeal No. 1 and defendants-respondents in Appeal No. 2.
DECISION & ORDER
Appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered January 7, 2016. The order, insofar as appealed from by the plaintiff, granted that branch of the motion of the defendants Rinzler Family Limited Partnership and Dominion Management Co. which was for summary judgment dismissing the complaint insofar as asserted against them. Insofar as appealed from by the defendant Hewlett Station Yogurt, Inc., the order granted those branches of the motion of the defendants Rinzler Family Limited Partnership and Dominion Management Co. which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against those defendants, and denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the appeal by the defendant Hewlett Station Yogurt, Inc., from so much of the order as granted that branch of the motion of the defendants Rinzler Family Limited Patnership and Dominion Management Co. which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the defendant Hewlett Station Yogurt, Inc., is not aggrieved thereby (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,
ORDERED that the order is modified, on the law, by deleting the provision thereof [*2]denying the motion of the defendant Hewlett Station Yogurt, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and substituting therefor a provision granting that motion; as so modified, the order is affirmed insofar as reviewed, with one bill of costs payable by the plaintiff to the defendants appearing separately and filing separate briefs.
The plaintiff allegedly was injured when she tripped and fell over the threshold of an entrance door at premises leased by the defendant Hewlett Station Yogurt, Inc. (hereinafter HSY). The defendant Rinzler Family Limited Partnership (hereinafter Rinzler) owned the premises, and the defendant Dominion Management Co. (hereinafter Dominion) was the property manager. The plaintiff commenced this action to recover damages for personal injuries against HSY, Rinzler, and Dominion. After discovery, HSY moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Rinzler and Dominion moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied HSY's motion, and granted Rinzler's and Dominion's motion.
"As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property" (Franks v G & H Real Estate Holding Corp., 16 AD3d 619, 620; see Ellers v Horowitz Family Ltd. Partnership, 36 AD3d 849, 850). Here, the plaintiff alleged that the defectively designed threshold should have been modified, and not that it was defectively maintained. Pursuant to the subject lease, Rinzler retained control of the "outside entrance doors to the premises," was responsible for making changes to the subject threshold, and did not convey to HSY any rights in that part of the premises. Consequently, HSY demonstrated its prima facie entitlement to judgment as a matter of law by showing that it had no obligation or right to alter the threshold (see Hernandez v Dunkin Brands Acquisition, Inc., 136 AD3d 980; Hahn v Wilhelm, 54 AD3d 896, 899; Marrone v South Shore Props., 29 AD3d 961, 963). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted HSY's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
The Supreme Court properly granted Rinzler's and Dominion's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Although Rinzler was an out-of-possession owner, pursuant to the subject lease, it retained authority to make changes to the area where the accident occurred (see Davidson v Steel Equities, 138 AD3d 911, 912; Denermark v 2857 W. 8th St. Assoc., 111 AD3d 660, 661; Reyderman v Meyer Berfond Trust #1, 90 AD3d 633, 634; see also Calderon v 88-16 N. Blvd., LLC, 135 AD3d 681, 682). Moreover, Dominion did not submit a copy of its property management contract with Rinzler showing that it did not have any responsibility with respect to the area where the accident occurred (see Lattimore v First Mineola Co., 60 AD3d 639, 642; Bazzicalupo v Winding Ridge Home Owner's Assn., 42 AD3d 415, 416-417). However, Rinzler and Dominion demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the threshold to the entrance of the premises was approximately five inches high and located in a brightly lit area, and therefore open and obvious and not inherently dangerous (see Zeolla v Town of Stanford, 134 AD3d 1100, 1101; Mathew v A.J. Richard & Sons, 84 AD3d 1038, 1039; Katz v Westchester County Healthcare Corp., 82 AD3d 712, 713; Tyz v First St. Holding Co., Inc., 78 AD3d 818, 819; Neville v 187 E. Main St., LLC, 33 AD3d 682, 682-683). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defect was actionable (see Zeolla v Town of Stanford, 134 AD3d at 1101; Neville v 187 E. Main St., LLC, 33 AD3d at 683; Murray v Dockside 500 Mar., Inc., 32 AD3d 832, 833). In his affidavit, the plaintiff's expert architect did not dispute the fact that the premises were constructed in 1924, prior to the enactment of the building code, and cited no requirement that the premises be renovated to meet the building code enacted subsequent to its construction. Further, the Americans With Disabilities Act (see 42 USC § 12000 et seq.) standards, relied upon by the plaintiff's expert, generally do not require renovation of buildings constructed prior to 1991 (see 42 USC § 12183), and the expert cited no evidence that any exceptions to that rule were applicable here. The expert's reliance on standards promulgated by the American Society for Testing and Materials did not raise a triable issue of fact as to the liability of Rinzler and Dominion, since those standards are nonmandatory guidelines, a violation of which would not support a finding of liability (see Cioffi v Klein, 131 AD3d 914, 915; see also Moseley v Philip Howard Apts. Tenants Corp., 134 AD3d 785, [*3]787).
DILLON, J.P., AUSTIN, HINDS-RADIX and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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387 F.Supp. 849 (1974)
Sidney N. WENIGER and General Resources Associates Incorporated, Plaintiffs,
v.
UNION CENTER PLAZA ASSOCIATES et al., Defendants.
No. 71 Civ. 4283 (JMC).
United States District Court, S. D. New York.
December 16, 1974.
*850 *851 Sage, Gray, Todd & Sims, New York City (William J. Allingham and Robert W. Brundige, Jr., New York City, of counsel), for plaintiffs.
*852 Demov, Morris, Levin & Shein, New York City (Irving Bizar and Barbara P. Sugarman-Abrams, New York City, of counsel), for defendants.
OPINION
CANNELLA, District Judge:
Plaintiff commenced this action to recover $249,200 in brokerage commissions in the Supreme Court of the State of New York, New York County, in July of 1971. On October 1, 1971, the action was removed to this court by the defendants on grounds of diversity of citizenship. The trial of this cause was had before the Court, sitting without a jury, on April 8, 9 and 10, 1974. At the close of the trial each of the parties moved for judgment. For the reasons indicated below, plaintiff's motions are granted and defendants' motions are denied.
THE FACTS
Plaintiff Sidney N. Weniger (a citizen of New York) is, and was at all times here relevant, a real estate broker duly licensed by the State of New York.[1] Defendants Sheldon E. Bernstein and Melvin H. Cohn are, and have been at all times here relevant, general partners of the defendant Union Center Plaza Associates, a partnership through which they dealt in the transaction at issue. (None of the defendants is a citizen of or an enterprise having its principal place of business in New York.)
The evidence adduced at trial took one of three forms: (1) the testimony of two witnesses (Plaintiff Weniger and Defendant Cohn); (2) stipulations of the parties; and (3) documentary proof. In this regard, the Court notes at the outset of its discussion that it finds the testimony of Messrs. Weniger and Cohn to be inherently incredible. The Court, having had the opportunity to observe these individuals on the witness stand, is of the view that their respective interests in the outcome of this litigation caused them, to a somewhat substantial degree, to color their testimony. However, the factual questions presented are not, for that reason, difficult to determine. The contemporaneous documentary entries of the parties clearly indicate their intent and their understanding of the relationship between them at a time prior to the instant dispute. A fair reading of the documents, and the law as relevant to them, leads to but one conclusion, namely, that the plaintiff must prevail.
In August 1967, defendants requested that Weniger obtain on their behalf a commitment for a permanent first mortgage loan for the construction of office buildings on certain premises in the District of Columbia known as Union Center Plaza. In connection with such request, a brokerage agreement was entered into between Weniger and defendants. This agreement is composed of two letter-agreements, one dated August 23, 1967 and the other dated August 25, 1967 (hereinafter the "brokerage agreement") (Exhibits 3 and 4). Pursuant to this agreement, defendants agreed to pay Weniger, upon their acceptance of a mortgage loan commitment procured by him, a brokerage commission of 1½% of the amount of such commitment. The agreement provided that Weniger's services were to be deemed fully performed and his commission was to be fully earned when the permanent first mortgage loan commitment procured by him was received and accepted by the defendants. The agreement also specified a schedule for the payment of Weniger's commission. Under this schedule, one-half of the earned commission was to be paid "on signing of commitment" and the other half was to be paid in equal installments "out of first four construction draws, or at final closing, if fewer than four draws take place." The agreement further stated that Weniger was the "sole broker" in the subject transaction, notwithstanding the fact *853 that the defendants acknowledged that he was acting in cooperation with certain other co-brokers pursuant to a separate agreement between Weniger and these individuals. In this regard, it is to be noted that the agreement expressly provided that the fees recoverable thereunder would be paid directly to Weniger.
In addition to the terms indicated above, the August 1967 agreement further provided for the delivery of a $10,000 good faith deposit to Weniger. The agreement stated:
This deposit shall be returned upon execution of a loan or commitment, or upon the denial of the application for such loan or commitment, or at the expiration of 45 business days from date hereof in the event no commitment has been offered on the proposed terms.
(Exhibit 4). As to this provision, the defendants have contended that the time periods specified therein constituted a durational limitation of the brokerage agreement, reading it to mean that the agreement would expire upon the happening of any of the events specified or, at the latest, forty-five business days from August 25, 1967. The Court does not adopt this construction, but rather views this paragraph as bearing only upon the time during which plaintiff might retain the good faith deposit. Equally without probative value is the event of Weniger's return of the $10,000 check, as it adds nothing to the agreement nor does it evidence any intent on his part to terminate the August contract. The Court finds that the August 1967 brokerage agreement was of an unspecified, open-ended duration, hence, performable within a "reasonable" time.
In addition to the provisions concerning Weniger's employment, the brokerage agreement also specified various terms and conditions upon which plaintiff would present defendants' request for a permanent first mortgage commitment to the New York State Teachers Retirement Board. In essence, the agreement provided that plaintiff would seek for defendants a permanent first mortgage loan commitment in the amount of $18,000,000 with interest at 7% per annum, for a term of twenty years, and with debt service of 8.49% constant. The agreement did not, however, either in words or substance, limit Weniger's right to obtain on defendants' behalf or their right to accept, a commitment with terms at variance from those specified in the contract.
On July 31, 1968, after a myriad of intermediate negotiations, and the issuance of informal letters of commitment by the lenders (the specifics of which are not here relevant), a formal commitment for a permanent first mortgage loan was issued to the defendants jointly by the New York State Teachers Retirement Board and the New York City Employees Retirement System. This commitment, which was accepted by Union Center Plaza Associates (per Mr. Cohn) on August 28, 1968, and thereafter amended on September 3, 1968, provided, inter alia, that a permanent first mortgage loan in the amount of $17,280,000 would be issued to the defendant Union Center Plaza Associates jointly by the lenders with interest and like provisions which were at variance with those initially sought by the defendants (and specified in the August brokerage agreement) (interest at 7¼% and debt service constant of 8.75% (city) or 8.55% (state) and with a term of 24 years, 5 months (city) or 20 years (state)) and, in addition, the loan was made subject to "approved leasing" of Union Center Plaza. It is not disputed herein that this commitment was procured through the efforts of Weniger (and his co-brokers). Nor is it the subject of dispute that the joint commitment was never exercised or drawn upon by defendants and that it was ultimately cancelled, unused, by the lenders.
From the facts found by the Court at this juncture, the two principal questions raised herein become apparent. The first is whether the August 1967 brokerage agreement continued in full force and effect between the parties up *854 to and including the point in time at which Weniger procured the formal loan commitment on behalf of the defendants. For the reasons indicated in the next succeeding paragraphs, the Court concludes that such agreement was neither abrogated nor terminated by the parties and that it was extant at such time as the formal loan commitment was issued to and accepted by the defendants. The second question presented, whether the commitment of $17,280,000 which was procured by Weniger and accepted by the defendants constituted sufficient performance under the contract as would give rise to plaintiff's right to commissions, is one of law which is discussed by the Court, infra.
It is not disputed between these parties that during the period of time between their entry into the August brokerage agreement and the issuance of the formal loan commitment numerous negotiations were conducted between them and several modifications of the brokerage agreement were proposed. The exact nature and extent of these proposed modifications need not be set forth in detail as the Court finds them to be just that, proposed modifications of the August agreement which were never accepted by the parties and thus did not attain the force of contract or serve to modify the earlier agreement. In essence, the myriad of papers passed between the parties concerned the schedule of payments of Weniger's commission and not the substance of the underlying agreement (see, e. g., Exhibits 28 and 29). That the defendants considered the August brokerage agreement wholly effective throughout the conduct of this transaction is evidenced by a letter of Mr. Cohn dated May 6, 1968 (Exhibit 31). In such letter, Mr. Cohn made reference to the August agreement and stated:
With regard thereto, this shall confirm that you have fully performed the obligations on your part to be performed in obtaining a mortgage loan commitment for a first mortgage in the sum of $17,280,000 for the above project [Union Center Plaza], to be secured by a mortgage to be given to the New York City Employees' Retirement System and the New York State Teachers' Retirement Board.
Our acceptance of the commitment letter of the New York State Teachers' Retirement Board dated December 6, 1967 (and its subsequent letters of January 12th and 22nd, 1968) and of the commitment letter dated May 1, 1968, of the New York City Employees' Retirement System shall entitle you to payment of your fees as set forth in said letter of August 25, 1967 . . . .
This letter clearly evidences the defendants' state of mind at the time of the transaction at issue and at a time prior to the instant litigation and dispute over Mr. Weniger's brokerage commissions; its probative weight is not to be discounted.[2]
In this regard, the Court finds Mr. Cohn's in-court testimony that "as far as any obligation to pay any commission was concerned I didn't have that until when, as and if this commitment would actually be funded" to be incredible and *855 entirely without support in the other probative evidence. Such self-serving versions of conversations which, unlike other aspects of the case, are not harmonized or enhanced by the contemporaneous documentary proof are not worthy of cognizance by the Court other than in their negation. Thus, the Court unhesitatingly concludes, upon all the relevant and credible evidence, that the August 1967 brokerage agreement remained in full force and effect between these parties throughout the entire course and conduct of the subject transaction.
One final factual issue remains for discussion: the amount of plaintiff's commission, if any, recoverable herein. It is not subject to dispute that such commission, if found to be owing, would be $259,200 (1½% of $17,280,000) and that plaintiff has made a proper demand therefor. Against such sum, plaintiff concedes a partial payment from defendants of $10,000, thus reducing the amount prayed for herein to $249,200. Defendants, however, allege further payment or consideration to Weniger for his services in the instant transaction. The Court finds that this is not so. All and any consideration flowing from defendants to plaintiff, apart from the $10,000 specified above, arise from other, independent dealings between these parties and are without effect upon the amount of the claim asserted herein.
DISCUSSION
I. IS WENIGER THE PROPER PARTY PLAINTIFF?
The defendants mount a two-fold challenge against the propriety of Weniger's bringing of this lawsuit. First, they assert that he is not the real party in interest and that "indispensable" parties are absent from this litigation. Second, defendants claim that Weniger's asserted non-compliance with the pleading and proving requirements of the New York statutes regarding the licensing of real estate brokers bars his recovery herein.
As to the first of these claims, the provisions of Fed.R.Civ.P. 17 and 19, read in conjunction with the substantive law of New York, are controlling. With respect to Rule 17, Professor Moore has stated "that the true meaning of real party in interest may be summarized as follows: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced." 3A J. Moore, Federal Practice ¶ 17.07 at 221 (2 ed. 1974). In this regard, Rule 17(a) states: "Every action shall be prosecuted in the name of the real party in interest. . . . [A] party with whom or in whose name a contract has been made for the benefit of another . . . may sue in his own name without joining with him the party for whose benefit the action is brought . . . ." Thus, in light of the provisions of the August 1967 agreement, as well as the law applicable to a determination of the substantive rights of the co-brokers (discussed infra), the Court concludes that Weniger is the real party in interest to this controversy. The contract sued upon was made in plaintiff's name, and his alone, and the co-brokers are, at best, third party beneficiaries thereto. Infra, at pp. 856-857.
Similar consideration must be given to the provisions of Rule 19. Subdivision (a) of that rule provides in pertinent part:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest.
*856 In this diversity of citizenship case, the application of Rule 19 is governed by the decision of the Supreme Court in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed. 936 (1968), wherein the Court held "that in a diversity case the question of joinder is one of federal law. (Citations omitted.) To be sure, state-law questions may arise in determining what interest the outsider actually has (citation omitted), but the ultimate question whether, given those state-defined interests, a federal court may proceed without the outsider is a federal matter." Id. at 125 n. 22, 88 S.Ct. at 746. In construing the Court's holding in Provident Tradesmens case, Professors Wright and Miller have summarized the rule applicable herein in these terms:
State law clearly determines the nature of an individual's interest in a particular controversy or in the subject matter of a dispute. But the federal rules and the precedents construing them govern whether the absentee's particular interest, as defined by state law, should be treated as making his joinder desirable or imperative in an action in a federal court. This means that although state decisions as to the nature of a particular legal interest are controlling, state classifications or the labels to be applied to absent persons are not binding on a federal court.
7 C. Wright and A. Miller, Federal Practice and Procedure § 1603 at 27-28 (1972). Thus, it is incumbent upon the Court, at this juncture, to determine what, if any, rights or interests are possessed by Weniger's non-joined co-brokers under the substantive law of the State of New York.
As was noted above, the August 1967 brokerage agreement entered into between Weniger and the defendants states that Weniger was to be regarded as the "sole broker" thereunder and, although Weniger's co-brokers (except for Mr. Chelius) were named therein, they were not made parties to the agreement nor did they execute the involved documents. While it is obvious that plaintiff did in fact enter into an agreement with these co-brokers to divide his commissions with them, there is no evidence whatsoever of any arrangement between the defendants and the co-brokers regarding the payment of commissions and there exists no evidence which might tend to lead the Court to such conclusion. Thus while it is undoubtedly true, that these persons have an interest in any fund which Weniger might ultimately obtain from the defendants, it is apparent to this Court that whatever claim such persons may have to the proceeds of this litigation is against Weniger under their agreements with him and is collectible from him and is not with or against the defendants. On these facts, the co-brokers cannot be said to be Weniger's partners or joint obligees under the August 1967 agreement but, at best, third party beneficiaries of that contract who, as such, are not to be regarded as indispensable parties. 7 C. Wright and A. Miller, supra § 1613 at 128. The defendants have not advanced any sound reason whatever to support the contention that these persons are "indispensable" within the meaning of Rule 19.
Nor can these co-brokers be said to be possessed of any substantive right or interest under the law of New York. The New York cases make the proposition clear that, absent a contract or other authorization, such persons have no substantive rights against the principal broker's employer. Magoba Management, Inc. v. Central Zone Property Corp., 1 Misc.2d 760, 147 N.Y.S.2d 656 (Sup.Ct.1955); Hosinger & Bode, Inc. v. Lembo, 142 N.Y.S.2d 583 (Sup. Ct.1955). See also, E. Biskind & C. Barasch, Law of Real Estate Brokers, § 65 at 160-61 (1969);[3] 6 N.Y.Jur., Brokers *857 § 28 at 283 and § 134 at 441 (1959 and Supp.1974). This view is not a peculiar proposition of New York law, rather, the lack of any right or interest of co-brokers in circumstances such as at bar is recognized in other jurisdictions as well.
Appellants first contend that indispensable parties were not made plaintiffs, in that the evidence disclosed that appellees had an agreement with others, not parties to the action, to divide the commission due under the contract . . .. [W]e will not assume that other brokers were indispensable parties . . .. The instant action is one to recover on a contract under which appellees and no others are entitled to a commission for services rendered, and the fact they may have agreed to divide the commission with other brokers who assisted them did not make such assisting brokers indispensable parties to an action on the contract. They were not parties to the contract and could not have maintained any action on it. [Emphasis added.]
Harrington v. Propulsion Engine Corp., 172 Kan. 574, 241 P.2d 733, 739-740 (1952). See also, 12 Am.Jur.2d, Brokers § 165 at 905-06 (1964). As the Court is of the conclusion that the appropriate parties to this action are presently at bar and that the plaintiff's co-brokers are without any substantive right or interest against the defendants which would require their joinder in this lawsuit, defendants' motion to dismiss this action for want of plaintiff's compliance with Rules 17 and 19 of the Federal Rules of Civil Procedure is hereby denied.[4]
The second aspect of defendants' contentions going to the question of parties to the instant suit is premised upon the New York statutes concerning the licensing of real estate brokers. Defendants *858 assert that a broker, who has acted in concert with other brokers and who brings a suit to recover real estate brokerage commissions arising out of such transactions, must plead and prove the licensing of his co-brokers before a recovery can be had by him, and that Weniger, in the instant case, may not have a recovery herein owing to his failure to so allege and prove.
The statutes relied upon by defendants to support this position are §§ 442 and 442-d of the New York Real Property Law, which provide in pertinent part:
§ 442. Splitting commissions
No real estate broker shall pay any part of a fee, commission or other compensation received by the broker to any person for any service, help or aid rendered in any place in which this article is applicable, by such person to the broker in buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate, unless such a person be a duly licensed real estate salesman regularly employed by such broker or a duly licensed real estate broker or a person regularly engaged in the real estate brokerage business in a state outside of New York. . . .
§ 442-d. Actions for commissions; license prerequisite
No person, copartnership or corporation shall bring or maintain an action in any court of this state for the recovery of compensation for services rendered, in any place in which this article is applicable, in the buying, selling, exchanging, leasing, renting or negotiating a loan upon any real estate without alleging and proving that such person was a duly licensed real estate broker or real estate salesman on the date when the alleged cause of action arose.
While it is undoubtedly true, as the above recited statute (§ 442-d) makes clear, that a broker bringing suit upon a real estate brokerage transaction may not have a recovery absent his pleading and proving due licensing in the State of New York, such is not an issue in the present case. Weniger has proved to the full satisfaction of this Court that he was at the time of the instant transaction a duly licensed real estate broker. Rather, the question raised by the defendants is whether Weniger must also plead and prove the licensing of his co-brokers. The Court is of the view that New York law does not so require.
In this regard, the Court finds the cases relied upon by the defendants to be inapposite. While such cases, particularly Judge Mansfield's decision in Meltzer v. Crescent Leaseholds, Ltd., 315 F.Supp. 142 (S.D.N.Y.1970), aff'd, 442 F.2d 293 (2 Cir. 1971), properly hold that a licensed broker who has acted in concert with an unlicensed broker is to be denied his fee because of the participation of an unlicensed person in the transaction (as such denial best effectuates the purposes of § 442), they do not speak to the pleading and proving requirements contained in § 442-d. See also, Kennedy v. Huntington Hartford, 31 A.D.2d 616, 295 N.Y.S.2d 751 (1st Dept.1968); Investors Security Corp. v. Praver, 145(49) N.Y.L.J. at 14 Col. 3F (Sup.Ct. March 14, 1961) (Hofstadter, J.); cf. Strout Realty v. Phillipson, 49 Misc.2d 435, 267 N.Y.S.2d 752 (Allegany County Ct.1966); Vin Clair v. Kall & Kall, Inc., 23 Misc.2d 568, 196 N.Y.S.2d 237 (Dist.Ct.1960); 6 N.Y.Jur., Brokers §§ 95 and 98. The Court finds sufficient compliance with the statutory scheme to have been made by a plaintiff-broker (or plaintiff-brokers), when he pleads and proves at trial his own licensing at the time of the transaction in issue. The Court declines to read the pleading and proving requirements of § 442-d into the provisions of § 442 concerning the splitting of commissions. The legislature did not so provide and a fair reading of the statutory scheme (these statutes are penal in nature and thus, should be strictly construed, Reiter v. Greenberg, 21 N.Y.2d 388, 391, 288 N.Y.S.2d 57, 60, 235 N.E.2d 118 (1968); *859 Myer v. Jova Brick Works, Inc., 38 App.Div.2d 615, 326 N.Y.S.2d 321 (3rd Dept.1971)) embraced in these sections does not so require. If an employer seeks to avoid liability to a broker on grounds of such broker's entry into a commission-splitting arrangement with a non-licensed co-broker in violation of § 442, such employer, in the opinion of this Court, must raise the issue either by means of the affirmative defense of illegality, Fed.R.Civ.P. 8(c), asserted by its answer or by means of a motion to dismiss the complaint, Fed.R.Civ.P. 12(b). Cf., Atlas v. Wood, 33 Misc.2d 543, 226 N.Y.S.2d 43, 46 (Sup.Ct.), aff'd mem., 17 A.D.2d 821, 232 N.Y.S.2d 743 (2nd Dept.1962); Brener & Lewis, Inc. v. Fawcett Publications, Inc., 197 Misc. 207, 90 N.Y.S.2d 853 (Sup.Ct.1949), aff'd mem., 276 App.Div. 994, 95 N.Y.S. 2d 598 (1st Dept.1950); Bishop Estates, Inc. v. Murphy, 41 Misc.2d 719, 246 N. Y.S.2d 73 (Dist.Ct.1964). In this regard, the defense of an action for brokerage commissions upon an asserted violation of § 442 by the plaintiff broker is no different from the defense of any other action upon a contract alleging the violation of a statute as bar to recovery; illegality must be affirmatively asserted by the party seeking to invoke it. See e. g., Brearton v. De Witt, 252 N.Y. 495, 170 N.E. 119 (1930). In the instant case, the defendants did not raise the issue of illegality arising from the alleged non-licensing of plaintiff's co-brokers by either of the means outlined above and, accordingly, they are now barred from seeking relief as to this claim.
In reaching the foregoing conclusion, the Court has found guidance for the decisional process in the views expressed by the Supreme Court of Arizona in a similar situation arising under a statute of similar import.
Defendants further urge that where several real estate brokers and salesmen are to participate in the compensation arising from a real estate transaction, it is not sufficient to allege that only one of them in whose name the action to collect part of the compensation is brought was a qualified real estate broker at the time the claim arose, but that the complaint must allege that all those participating were qualified and licensed, irrespective of whether they have an interest in the litigation. We do not so construe the statute. While the obvious purpose of the statute is to protect the public from the harmful results of dealing with unlicensed persons, the language employed refers only to the plaintiff's qualifications.
Weir v. Galbraith, 92 Ariz. 279, 376 P.2d 396, 398-399 (1962). See also, Farragut Baggage & Transfer Co. v. Shadron Realty Inc., 18 Ariz.App. 197, 501 P.2d 38, 42 (Ct.App.1972); Foley v. Hassey, 55 Wyo. 24, 95 P.2d 85 (1939); cf., Weinstein v. Berry, 88 N.Y.S.2d 152 (Sup.Ct.1949); Meyer Cohen Realty v. Sador Building Co., 97(4) N.Y.L.J. at 77, Col. 3T (City Ct. Jan. 6, 1937) (Geismar, J.). And see generally, Annot., 8 A.L.R.3d 523 (1966).
II. CAN WENIGER RECOVER COMMISSIONS HEREIN?
By way of summary, to this point the Court has concluded: (1) that Weniger is the proper party plaintiff to this action and has complied with the New York licensing statutes in bringing his case before the Court; (2) that the August 1967 brokerage agreement governs the determination of the rights and liabilities of the parties in this action; and (3) that Weniger did procure on the defendant Union Center Plaza Associates' behalf and that defendant, by Mr. Cohn, did accept a formal commitment for a permanent first mortgage loan in the sum of $17,280,000 issued jointly by the New York State Teachers Retirement Board and the New York City Employees Retirement System. Thus, the sole issue remaining for disposition by the Court is whether such commitment as was issued to and accepted by the defendants constituted sufficient performance by Weniger under his contract as to entitle him to recover the brokerage commissions specified therein. The *860 Court finds that such recovery should be allowed.
In the general course of events, a mortgage broker's employment and performance thereunder is governed by the terms of his contract with the employer or, absent such, by the common law of New York.
There are varying types of employment of a mortgage broker, and correlatively varying degrees of performance required of him. These types of employment, which mirror the stages of a mortgage transaction, range from the most minimal obligations to the fully consummated loan.
A mortgage broker may thus be employed, in ascending order of obligation:
(1) To "negotiate" a loan;
(2) To procure the acceptance of the borrower's application for a loan;
(3) To procure a commitment by the lender;
(4) To procure acceptance of the commitment by the borrower;
(5) To procure the consummated loan.
The broker's right to compensation matures when the stipulated event has occurred. Thus an employment "to negotiate" a loan requires the broker only to find a lender ready, able and willing to lend on terms set by the borrower and need not wait until the transaction is completed. In the third and four [sic] instances, supra, commission is earned when the lender has issued a commitment or when it has been counter-accepted by the borrower again without the necessity of the consummation of the loan. It is only when the broker stipulates that a completed loan is a condition to the earning of compensation and that such consummation must take place to entitle him to his commission and, even here, if the borrower is at fault the condition is excused.
E. Biskind & C. Barasch, supra, § 75 at 59-60 (Supp.1973). In the instant case, Weniger's employment comes within the terms of the third and fourth categories recited above, in that the August 1967 agreement provided:
You [defendants] expressly warrant that my [plaintiff] services in procuring a loan commitment are fully performed at the time such commitment is received and accepted by you. . . . (Exhibit 3).
Thus at such point in time as Weniger procured the joint commitment of the State Teachers Board and the City Retirement System for a permanent first mortgage loan and this commitment was accepted by defendant Union Center Plaza Associates, his work, under the terms of the contract, was complete and his right to compensation thereunder had fully accrued. See, e. g., Smith v. Peyrot, 201 N.Y. 210, 94 N.E. 1098 (1911); Eichenbaum v. Taxicab Independent Owners' Auto Mutual Cas. Co., 136 Misc. 58, 240 N.Y.S. 499 (City Ct.1930). As was well stated by Justice Hogan in Grace v. Norwich Green Homes, Inc., 144 N.Y.S.2d 62, 63 (Sup.Ct.1955):
Where the mortgage broker has procured commitments and these are accepted by the developer, the former has performed all of the services required of him and the developer's obligation accrues at that time, unless the employment contract between the parties otherwise specifies.
See also, Sonnenblick-Goldman Corp. v. Murphy, 420 F.2d 1169 (7 Cir. 1970); Dubin-Weston, Inc. v. Palladino, 73 Civ. 4147 (JMC) (S.D.N.Y. April 4, 1974) (Cannella, D. J.); 6 N.Y.Jur., Brokers § 125 at 424-29.
In this regard, the fact that the commitment which issued to and was accepted by the defendants, $17,280,000, differed from the commitment initially sought by them, $18,000,000, does not, in this Court's view, serve to deprive the broker of his right to compensation under the contract.
The fact that the parties [lender and borrower] . . . ultimately agree on terms which differ from *861 those which the [borrower] gave the broker in employing the latter does not preclude recovery of the commission to which the broker is otherwise entitled. Where a broker instead of procuring a person who is ready, able, and willing to accept the terms his principal authorized him to offer at the time of his employment, procures one who makes a counter offer more or less at variance with that of his employer, the latter is at liberty either to accept the proposed party upon the altered terms or to decline to do so. If he accepts he is legally obligated to compensate the broker for the services rendered, subject to such change from the amount originally agreed upon as the variation demands, but if he refuses he incurs no liability therefor.
6 N.Y.Jur., Brokers § 111 at 397. Accord, Gilder v. Davis, 137 N.Y. 504, 33 N.E. 599 (1893); O'Glee v. Trigg, 271 F.Supp. 121, 125-126 (E.D.Ark.1967) (restating the common law rule); 12 Am.Jur.2d, Brokers § 185 at 925-26.
Similarly, the Court finds defendants' reliance upon Ivor B. Clark, Inc. v. Boston Road Shopping Center, Inc., 24 Misc.2d 84, 207 N.Y.S.2d 582 (Sup.Ct.1960), unavailing in the present case. The defendants point to that portion of the loan commitment which makes it subject "to approved leasing" and assert that such provision renders the commitment conditional, hence unenforceable as a contract and therefore, that plaintiff, having failed to procure an enforceable commitment, can have no recovery herein. In the view of this Court, however, the formal commitment which was issued to and accepted by the defendant Union Center Plaza Associates constituted a valid and enforceable contract. Indeed, the term "to approved leasing" was given a definite and certain meaning by the parties. This is reflected in a letter dated July 31, 1968 by Mr. Cohn to the lenders which clearly evidences their understanding with regard to the term "approved leasing" (Exhibit 18).[5] Unlike the Ivor B. Clark case, the instant commitment did not require "defendant and the lending institution to agree in the future as to the open, essential elements of the transactions," thus rendering it "too indefinite to be enforced," and not sufficient to constitute a binding commitment. 207 N.Y.S.2d at 589. Here, there was plainly a meeting of the minds of the parties as to what the term "approved leasing" meant, and, indeed, such phrase had been inserted in the document at the insistence *862 of the defendants, as they considered the previous reference to General Services Administration leasing inappropriate (and, perhaps, unlawful). As the Court of Appeals for the Seventh Circuit well stated in Sonnenblick-Goldman Corp. v. Murphy, 420 F.2d at 1173 n. 7:
The holding in Clark, Inc. v. Boston Road Shopping Center, 24 Misc.2d 84, 207 N.Y.S.2d 582 (1960), cited by defendant, is inapposite to the instant case. In Clark, the court held that a requirement in the contract entered into between the Shopping Center and the lender, which conditioned the loan on the former's obtaining satisfactory leases, rendered the contract unenforceable since the court interpreted "satisfactory" as meaning subjectively acceptable to both parties. In the instant case, however, the contract between Heller and defendant provided for "reasonable" reserves, thus eliminating the subjective qualification which was fatal to the contract in Clark. Moreover, in Boston Road Shopping Center, Inc. v. Teachers Ins. & Annuity Assoc., 13 A.D.2d 106, 213 N.Y.S.2d 522, 526 (App.Div.1961), aff'd 11 N.Y.2d 831, 227 N.Y.S.2d 444, 182 N.E.2d 116 (1962), a higher court, in a case involving the same loan commitment as in Clark, held that the contract was enforceable since reasonableness was implicitly included in its terms.
So too, in the instant case (in light of the Cohn letter dated July 31, 1968), the Court finds the term "approved leasing" to have been divested of any subjective import. To the extent that Justice Amsterdam's decision in Ivor B. Clark is otherwise inconsistent with the position adopted herein, this Court declines to follow it as not properly reflecting the present state of New York law. See, e. g., Boston Road, supra; Richard Bruce & Co. v. J. Simpson & Co., 40 Misc.2d 501, 243 N.Y.S.2d 503 (Sup.Ct.1963); 1A A. Corbin, Corbin on Contracts § 161 and § 165 (1963 and Supp.1971). In any event, the defendants accepted the commitment as issued by the lenders and, having done so, may not now be heard to quarrel with its terms as predicate for denying Weniger his just due. See, discussion, supra.
Lastly, the fact that the mortgage loan procured by Weniger was never consummated or "closed" by the defendants and the lenders does not serve to defeat the broker's right to commissions as specified in the August 1967 agreement. In this regard, the agreement (Exhibit 4) provided that Weniger's commission would be deemed earned "upon acceptance" of a commitment by the defendants. However, the contract further stated that plaintiff would accept payment of his compensation "¾ per cent on signing of commitment, balance in equal parts out of first four construction draws or at final closing, if fewer than four draws take place." On the basis of the latter quoted provision, defendants contend that if plaintiff is entitled to any payment under the agreement, such should be limited to the ¾% available to him upon the signing of the commitment, as it is not subject to dispute that the later specified events did not transpire.
The law of New York concerning the issue presently under consideration is well settled. The general rule is that unless the broker and his employer have expressly stipulated to the contrary, the broker is entitled to his compensation upon completion of his obligations under the contract of employment, irrespective of whether or not the commitment negotiated is ever consummated. However, as is indicated above, the parties to a brokerage agreement are free to vary this general rule to any extent and they may properly condition the broker's right to compensation upon the happening of a specified event, such as closing, or upon any other occurrence. These principles have been summarized *863 by the New York Court of Appeals in the following terms:
[I]t is a well-settled rule in this State that in the absence of an agreement to the contrary, a real estate broker will be deemed to have earned his commission when he produces a buyer who is ready, willing and able to purchase at the terms set by the seller (see, e. g., Hecht v. Meller, 23 N.Y.2d 301, 296 N.Y.S.2d 561, 244 N.E.2d 77; Levy v. Lacey, 22 N.Y.2d 271, 292 N.Y.S.2d 455, 239 N.E.2d 378; Wagner v. Derecktor, 306 N.Y. 386, 118 N.E.2d 570; O'Hara v. Bronx Consumers Ice Co., 254 N.Y. 210, 172 N.E. 472; Colvin v. Post Mtge. & Land Co., 225 N. Y. 510, 122 N.E. 454; Reis Co. v. Zimmerli, 224 N.Y. 351, 120 N.E. 692; Davidson v. Stocky, 202 N.Y. 423, 95 N.E. 753; Smith v. Peyrot, 201 N.Y. 210, 94 N.E. 662; Gilder v. Davis, 137 N.Y. 504, 33 N.E. 599). Thus, in Hecht (supra) we sustained a broker's claim to a commission notwithstanding the fact that the contract between buyer and seller was unenforceable due to the Uniform Vendor and Purchaser Risk Act (General Obligations Law, Consol. Laws, c. 24-A, § 5-1311). As the court wrote (Hecht, 23 N.Y.2d, supra, at p. 305, 296 N.Y.S.2d at p. 563, 244 N.E.2d at p. 79): "At the juncture that the broker produces an acceptable buyer he has fully performed his part of the agreement with the vendor and his right to commission becomes enforcible [sic]. The broker's ultimate right to compensation has never been held to be dependent upon the performance of the realty contract or the receipt by the seller of the selling price unless the brokerage agreement with the vendor specifically so conditioned payment. (See, e. g., Levy v. Lacey, supra, 22 N.Y.2d p. 274, 292 N.Y.S.2d 455.) As we stated in Gilder v. Davis (supra, 137 N.Y. p. 506, 33 N.E. p. 600): `If from a defect in the title of the vendor, or from a refusal to consummate the contract on the part of the purchaser for any reason, in no way attributable to the broker the sale falls through, nevertheless the broker is entitled to his commissions, for the simple reason that he has performed his contract.'" [Emphasis in original] The parties are, of course, free to provide otherwise by agreement. For example, they can condition the seller's liability on the closing of title or require the broker to supply a buyer to purchase the property at a specified price "with terms to be arranged." In the former case the broker would not earn a commission if the deal were not consummated (see Levy v. Lacey, supra, 22 N.Y.2d, at p. 274, 292 N.Y.S.2d at p. 457, 239 N.E.2d at p. 379) and in the latter situation, there would be no commission if terms were not arranged (see Kaelin v. Warner, 27 N. Y.2d 352, 318 N.Y.S.2d 294, 267 N.E 2d 86, decided Jan. 13, 1971). It should be observed, however, that even where the broker and seller expressly provide that there shall be no right to a commission unless some condition is fulfilled, and the condition is not performed, the seller will nevertheless be liable if he is responsible for the failure to perform the condition (Levy v. Lacey, supra, 22 N.Y.2d at p. 276, 292 N.Y.S.2d at p. 459, 239 N.E.2d at p. 381, compare with Warnecke v. Countrywide Realty, 29 A.D.2d 54, 285 N. Y.S.2d 428, affd. 22 N.Y.2d 823, 292 N.Y.S.2d 917, 239 N.E.2d 656, mot. for rearg. den. 22 N.Y.2d 972). [Emphasis Added.]
Lane-The Real Estate Department Store v. Lawlet Corp., 28 N.Y.2d 36, 42-43, 319 N.Y.S.2d 836, 840-841, 268 N.E.2d 635 (1971) (and the cases therein cited). See also, Trade Properties, Inc. v. Ziminski, 75 Misc.2d 606, 348 N.Y.S.2d 476 (Sup.Ct.1973); 6 N.Y.Jur., Brokers §§ 113 and 114; 3A A. Corbin, supra § 768.
Thus, the question here raised resolves into whether, by virtue of the "deferred" payment provision of their agreement, the parties at bar agreed to *864 condition Weniger's fee, otherwise clearly owing as of defendant's acceptance of the commitment, upon the happening of the specified events, construction draws or closing. While this Court is not wholly persuaded that the intent of the parties was to so condition the commission, as opposed to simply deferring its payment as an accommodation to the defendants' financial weaknesses,[6] we here assume arguendo that they did. Such an assumption, however, does not affect the result otherwise pertaining on these facts.
As the Court of Appeals indicated in Lane, even in instances where the parties have conditioned payment of a broker's compensation upon the happening of a designated event, the employer "will nevertheless be liable [to the broker] if he is responsible for the failure to perform the condition."
As was pointed out above, however, such an agreement [a condition precedent] will not absolve the seller of the obligation of paying a commission where the sale fails of completion through the seller's own fault . . .. [I]t must be noted that our decisions discussing when a condition in a brokerage agreement that title actually close will be deemed waived speak of "fault" (see, e. g., Colvin v. Post Mortgage & Land Co., 225 N.Y. 510, 516, 122 N.E. 454, 455), "defendant's own wrong" (Wagner v. Derecktor, supra, 306 N.Y. p. 391, 118 N.E. 2d p. 573), "waiver" or "active conduct of the conditional promisor, preventing or hindering the fulfillment of the condition" (Amies v. Wesnofske, supra, 255 N.Y. [156] p. 163, 174 N.E. [436] p. 438), and the vendor's "refus[ing] to perform his obligations under the contract of sale" (Stern v. Gepo Realty Corp., 289 N.Y. 274, 277, 45 N.E.2d 440, 442).
Levy v. Lacey, 22 N.Y.2d 271, 276, 292 N.Y.S.2d 455, 459 (1968).
In the instant case, the Court finds as fact that the events specified in the payment provision of the brokerage agreement failed to occur solely as the result of defendants' conduct and their failure to consummate the permanent mortgage loan procured by Weniger. Thus, the Court finds defendants to be at fault in the failure of the conditions precedent to plaintiff's commission, in that they failed or refused to make certain "good faith deposits" required by the lenders under the loan commitment and otherwise acted in a manner inconsistent with their obligations thereunder, thereby causing the lenders to terminate the commitment in September 1969. Such being the case, defendants cannot now invoke the conditions precedent recited in the August 1967 agreement as a bar to plaintiff's claim.
If a promisor himself is the cause of the failure of performance of a condition upon which his own liability depends, he cannot take advantage of the failure. [Citations omitted.] "It is a well settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself." Young v. Hunter, 6 N.Y. 203, 207. "It is as effective an excuse of performance of a condition that the promisor has hindered performance as that he has actually prevented it." Williston on *865 Contracts, vol. 2, § 677. The American Law Institute, in its "Restatement of the Law of Contracts" (Tentative Draft No. 6, § 289), under the heading "Excuse of Condition by Prevention or Hindrance," says: "If a promisor prevents or hinders the occurrence of a condition, or the performance of a return promise, and the condition would have occurred or the performance of the return promise been rendered except for such prevention or hindrance, the condition is excused, and the actual or threatened non-performance of the return promise does not discharge the promisor's duty." The doctrine is purely one of waiver; active conduct of the conditional promisor, preventing or hindering the fulfillment of the condition, eliminates it and makes the promise absolute.
Amies v. Wesnofske, 255 N.Y. 156, 162-163, 174 N.E. 436, 438 (1931). See also, Kooleraire Service & Installation Corp. v. Bd. of Educ., 28 N.Y.2d 101, 320 N. Y.S.2d 46, 268 N.E.2d 782 (1971); Schefler v. Livestock & Cas. Ins. Co., 44 A.D.2d 811, 355 N.Y.S.2d 608 (1st Dept.1974); 3A A. Corbin, supra §§ 768 and 769. The condition having failed upon the defendants' own conduct and through no fault of the plaintiff, Weniger may now recover his commission as prayed for in the complaint.
CONCLUSION
For the reasons stated above, the Court finds and concludes that plaintiff, Sidney N. Weniger, is entitled to recover brokerage commissions from the defendants, jointly and severally, in the sum of $249,200, together with interest and costs as prayed for in the complaint. The Court further finds and concludes that the defendants' counterclaim should be, and it hereby is, dismissed.
The foregoing constitute the findings of fact and conclusions of law of the Court pursuant to Fed.R.Civ.P. 52(a).
Submit an order and decree in conformity herewith.
NOTES
[1] The other named plaintiff, General Resources Associates Incorporated, is no longer a party to this action. The case was dismissed as to it upon motion by the defendants (without objection by plaintiffs) at the conclusion of plaintiff's case.
[2] At trial, the Court admitted Exhibit 31 into evidence as part of the res gestae of the case, giving defendants leave to move post-trial that the exhibit be stricken. In support of such motion defendants have cited White v. Empire Mutual Insurance Co., 59 Misc.2d 527, 299 N.Y.S.2d 998 (Civ.Ct. 1969) and Mach Manufacturing Co. v. Donovan, 86 N.J.L. 327, 91 A. 310 (N.J.Ct.Err. & App.1914), as well as numerous cases concerning statements made in attempts to effectuate a settlement of a controversy or dispute. The Court finds such authorities to be inapposite. The Cohn letter preceded the commencement of the instant controversy and is properly a part of the evidence in this case. See, e. g., Frese v. Gaston, 82 U. S.App.D.C. 173, 161 F.2d 890 (1947); Slater v. Citizens' Savings Bank, 242 App.Div. 238, 271 N.Y.S. 323 (1st Dept.1934).
In this regard, as the Court finds exhibits 43 and 44 unnecessary for the proper resolution of the controversy and, therefore, has not considered them in reaching a disposition of the claims raised, it does not pass upon defendants' motions with respect to them.
[3] A broker with whom property is listed may not delegate his authority without his principal's consent, but this rule does not operate to prevent a broker from cooperating with another licensed broker. Such cooperation does not involve a delegation of authority. But, unless the retained broker's principal consents to the retention of an assisting sub-broker, only the originally retained broker may sue his principal for commissions, since the sub-broker's rights accrue as a result of his arrangement with the principal broker, and not with the principal broker's employer.
A sub-broker or associated broker may, of course, be employed with the knowledge, consent and approval of the principal, and in such instance privity of contract either exists or may be assumed. [Footnotes omitted.]
E. Biskind & C. Barasch, supra. In the instant case, the August 1967 brokerage agreement provided that Weniger was "the sole broker in this transaction acting in cooperation with C. B. Murray, Donald Adams and Leonard Wilkes pursuant to a separate agreement." The agreement further provided that "the rights of participation, if any, and any fees payable for services rendered of C. B. Murray, Donald Adams, Leonard Wilkes and/or Associated Mortgage Companies, Inc., is includible in the commissions agreed to be made [in this agreement] . . . and that they [the co-brokers] have no independent right of commission over and beyond the agreements above." In regard to such provisions, the Court finds that while the defendants acknowledged Weniger's co-operation with these individuals and their status as his co-brokers, they specifically provided that any rights possessed by the sub-brokers to commissions arising from the involved transaction would be derivative from Weniger's rights and not independent rights against the defendants. Thus, the Court concludes that, as formulated, the brokerage contract afforded rights against the principal for commissions only to Weniger. However, even if this were not the case and, instead, the agreement were construed as meaning that the co-brokers were "employed with the knowledge, consent and approval of" the defendants, thus in privity of contract with defendants, such would not alter the result herein. Their rights under the contract would remain derivative through Weniger and they could not, on such state of facts be considered as "indispensable" to a fair disposition of this litigation.
[4] In this regard, defendants' reliance upon 28 U.S.C. § 1359 is entirely misplaced. That section, which provides that "[a] district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court" cannot be availed of by a defendant who, by his own action in removing a case from state to federal court, has thereby invoked the jurisdiction of the federal court.
[5] Exhibit 18 provides in pertinent part:
In accepting the commitment the undersigned fully understand and agree that the phrase "subject to approved leasing" as employed in said commitment is intended, and shall mean, that the Lender shall have sole and unreviewable discretion to determine whether Tenants and the leases are acceptable in all respects, including but not limited to as to Tenants the identity and financial responsibility of the Tenant; and as to leases whether all of the terms of the leases are so acceptable in all respects, including but not limited to, the term of the lease; the rents payable; the services to be rendered by the Landlord; the noncancellability of the lease and escalation for increased taxes and operating costs. The undersigned understand that the Lenders would not deem leases acceptable unless: (i) the rentals for all office space in the South Building, which shall be rented as a unit, would be at a rate of at least $1,060,000 per annum (or if less, then the Tenants shall have assumed operating expenses normally borne by the Landlord to render the rentals an equivalent of such rate); (ii) that the rentals for all office space in the North Building, which shall be rented as a unit would be at a rate of at least $1,635,235 per annum (or if less, then the Tenants shall have assumed operating expenses normally borne by the Landlord to render the rentals the equivalent of such rate); (iii) that leases for such office space would be for a term of twenty (20) years without right to cancel earlier except in relation to destruction or eminent domain; (iv) that there would be escalation approximately every five (5) years for increased taxes and increased operating expenses.
[6] If the payment schedule specified in the August 1967 agreement is viewed as simply that, a payment schedule and not a condition precedent to Weniger's right to a commission, it is then clear that the fact that the mortgage loan procured by Weniger was never consummated by the defendants and the lenders could not serve to defeat Weniger's claim, as he then must be viewed as having earned his fee upon the defendants' acceptance of the commitment. This is so, because the agreement, viewed in such fashion, did not require Weniger to procure a completed loan on the defendants' behalf, but rather, merely to procure a loan commitment which was accepted by the defendants. See, e. g., Dubin-Weston v. Palladino, supra; Lane-The Real Estate Department Store, Inc. v. Lawlet Corp., supra; Hecht v. Meller, 23 N.Y.2d 301, 305, 296 N.Y.S.2d 561, 563, 244 N.E.2d 77, 78 (1968); Smith v. Peyrot, 201 N.Y. at 214, 94 N.E. at 663; E. Biskind & C. Barasch, supra, at 60.
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80 B.R. 27 (1987)
In the Matter of Margot GURST.
Civ. A. No. 87-2065, Bankruptcy No. 85-0048OK.
United States District Court, E.D.Pennsylvania.
October 23, 1987.
Martin N. Ghen, Doylestown, Pa., for Philadelphia Consumer Discount Co. and Norwest.
Irwin Trauss, Community Legal Services, Philadelphia, Pa., for Margot Gurst.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
This is an appeal from an order of the bankruptcy court sustaining the objection of a creditor, Philadelphia Consumer Discount Company ("PCDC"), to a proof of claim filed in its name by the debtor, Margot Gurst, pursuant to 11 U.S.C. § 501(c), dismissing the proof of claim, 70 B.R. 467. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a). In re Amatex Corp., 755 F.2d 1034, 1039-41 (3d Cir.1985); Matter of Tarnow, 749 F.2d 464 (7th Cir.1984).
The debtor filed this Chapter 13 proceeding on February 8, 1985, and her Chapter 13 statement and plan on March 15, 1985. In her schedules, the debtor listed separate loan obligations to PCDC and Norwest Consumer Discount Company ("Norwest"). The parties have agreed that PCDC is the successor in interest to the Norwest claim and is asserting that claim as well as a separate claim on its own behalf.
Norwest filed its proof of claim as a secured creditor on March 25, 1985 in the amount of $4353.00. On April 29, 1985, PCDC filed objections to the confirmation of the debtor's Chapter 13 plan. In its objections, PCDC asserted, inter alia, that the debtor inaccurately listed PCDC's claim as a "class 3" unsecured claim, that the PCDC claim was secured by a mortgage, and attached a copy of the mortgage in the amount of $7656.48.
On July 25, 1985, PCDC was granted relief from the automatic stay without prejudice to the debtor seeking reinstitution of the stay. Similarly, on August 13, 1985, an order was entered modifying the automatic stay as to Norwest and granting Norwest leave to enforce its mortgage against the property of the debtor.
Since the meeting pursuant to 11 U.S.C. § 341 was originally scheduled on October 24, 1985, the last day for filing proofs of claim was January 22, 1986. Bankruptcy Rule 3002(c).
On February 13, 1986, the debtor filed a motion objecting to Norwest's proof of *28 claim. In its objections the debtor asserted, inter alia, that the mortgage upon which Norwest based its claim to secured status was rescinded pursuant to the Truth in Lending Act rendering it void, and that the debtor had a set off against Norwest under the Truth in Lending Act based on Norwest's failure to provide her with proper disclosures.
On April 1, 1986, PCDC filed its formal proof of claim as a secured credit in the total amount of $10,728.60. Thereafter, the debtor filed an adversary proceeding against PCDC in September 1986 seeking a determination as to the amount and validity of the proof of claim filed by PCDC. The debtor objected to the PCDC proof of claim as untimely and asserted that the mortgage upon which the PCDC claim was based was rescinded pursuant to the Truth in Lending Act thereby rendering the mortgage void and converting PCDC's secured claim to an unsecured claim. The debtor also asserted various set offs so as to reduce PCDC's claim to zero.
On October 16, 1986, a hearing was held by the bankruptcy court on the debtor's objections to various proofs of claim. At that time based on the relief from the automatic stay granted to Norwest and PCDC, the bankruptcy court entered orders on October 16 and 17, 1986 granting the motions of PCDC and Norwest to withdraw their proofs of claim. The bankruptcy court also dismissed the debtor's complaint in the adversary proceeding against PCDC as moot "without prejudice to either party to raise any claims or defenses against the other in any other proceeding in this or any other court." The record of the October 16, 1986 hearing clearly reflects that counsel for the debtor did not object to the withdrawals of the Norwest and PCDC proofs of claim.
Thereafter, on November 20, 1986, the debtor filed a proof of claim in the name of PCDC in its own capacity and as successor to the claim of Norwest pursuant to section 501(c) in the amount of one cent ("the one cent claim"). PCDC filed an objection to the one cent claim filed in its name by the debtor.
In its order dated February 25, 1987, with an accompanying opinion, the bankruptcy court sustained the creditor's objection to the debtor's proof of claim on the basis of its untimeliness since the proof of claim had been filed some ten months after the bar date of January 22, 1986. The bankruptcy court held that a debtor filing under section 501(c) should be accorded some short and reasonable time beyond the bar date established by Rule 3002(c) where circumstances justify a late filing and lack of prejudice is established. However, the bankruptcy court found that the circumstances of this case did not justify a late filing and that lack of unfair prejudice had not been established by the debtor.
In this appeal from the bankruptcy court's February 25, 1987 order, the debtor asserts that the bankruptcy court used the wrong date in determining the timeliness of her section 501(c) one cent claim. Specifically, the debtor contends that the bankruptcy court should have used October 16 and 17, 1986 (the dates of the orders allowing the withdrawal of the PCDC and Norwest proofs of claim), rather than the bar date of January 22, 1986, in determining the timeliness of her section 501(c) one cent claim. The debtor contends that the one cent claim was filed within a reasonable period of time since it was filed within approximately 34 days of the bankruptcy court's orders permitting the withdrawal of the proofs of claim of Norwest and PCDC.
Bankruptcy Rule 8013 provides:
On an appeal the district court or bankruptcy appellate panel may affirm, modify, or reverse a bankruptcy court's judgment, order, or decree or remand with instructions for further proceedings. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.
The clearly erroneous standard does not apply to conclusions of law, and this Court must make an independent determination as to questions of law. In re Gillen, 69 B.R. 255 (E.D.Pa.1986); In re Philadelphia *29 Athletic Club, 20 B.R. 328 (E.D.Pa.1982); In re Hollock, 1 B.R. 212 (M.D.Pa.1979).
Bankruptcy Rule 3002(c) provides: "In a ... Chapter 13 individual's debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors pursuant to § 341...." This rule establishes the "bar date". Generally, proofs of claim filed after the bar date are untimely and will be disallowed.
Section 501(c) provides that if a creditor does not file a timely proof of claim, the debtor may file a proof of claim in the name of the creditor.
Prior to the amendment of Bankruptcy Rule 3004, the district and bankruptcy courts were almost unanimous in holding that a debtor has a reasonable time after the bar date to file a proof of claim on behalf of a creditor who has failed to file a timely proof of claim. In re Middle Plantation of Williamsburg, Inc., 48 B.R. 789, 800-01 (E.D.Va.1985); In re Eckols, 77 B.R. 345 (Bankr.D.N.H.1987); In re Allen, 68 B.R. 523 (Bankr.D.N.M.1986); In re Kies, 67 B.R. 309 (Bankr.D.Nev.1986); In re Solari, 62 B.R. 31 (9th Cir. BAP 1986); In re Gingery, 48 B.R. 1000, 1005 (Bankr. D.Colo.1985); In re Starkey, 49 B.R. 984, 988-89 (Bankr.D.Colo.1984); In re D.A. Behrens Enterprises, Inc., 33 B.R. 751 (Bankr.M.D.Pa.1983); In re Higgins, 29 B.R. 196, 199-200 (Bankr.D. Iowa 1983). Contra In re Thurston, 52 B.R. 71 (D.Colo. 1983); In re Schneider, 51 B.R. 196 (D.Colo.1984).
Most of these decisions have recognized that since a debtor will not know if a creditor has filed a timely claim until the expiration of the bar period, debtors should be given a reasonable period of time within which to file a section 501(c) proof of claim. Solari, supra. The amendment to Bankruptcy Rule 3004 (prior to August 1, 1987) specifically provides that a debtor may file a section 501(c) claim on behalf of a creditor within 30 days after the expiration of the bar period. See W.L. Norton, 6 Norton Bankruptcy Law and Practice, Cumulative Supplement (June 1987). The law is clear therefore that a debtor (prior to August 1, 1987) had a reasonable period of time after the bar date within which to file a proof of claim on behalf of a creditor provided that the circumstances justified a late filing and that there was no prejudice to the party opposing the filing. Therefore, there appears to be no question that the bankruptcy court was correct in its application of the law. Furthermore, this Court finds that the determination of the bankruptcy court was not clearly erroneous when it found that the debtor's filing of the section 501(c) proof of claim was untimely on the ground that the claim was filed some 10 months after the bar date and about 34 days after the orders permitting the withdrawal of the PCDC and Norwest proofs of claim.
Assuming that PCDC and Norwest filed timely proofs of claim, it would appear that the debtor in this case was not authorized pursuant to section 501(c) to file a proof of claim in the name of PCDC and Norwest. By its language, section 501(c) limits a debtor filing a proof of claim in the name of a creditor to the situation where "a creditor does not file a proof of such creditor's claim."
This Court will therefore affirm the February 25, 1987 order of the bankruptcy court.
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336 F.2d 914
VALLEY TELECASTING CO., Inc., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee,Tele-Broadcasters of California, Inc., Intervenor.
No. 18092.
United States Court of Appeals District of Columbia Circuit.
Argued February 10, 1964.
Decided May 22, 1964.
Mr. Reed Miller, with whom Mr. Paul A. Porter, Washington, D. C., was on the brief, for appellant.
Mr. Daniel R. Ohlbaum, Associate General Counsel, Federal Communications Commission, with whom Messrs. Max D. Paglin, General Counsel at the time the brief was filed, and Howard Jay Braun, Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. Henry Geller, General Counsel, and Mrs. Ruth V. Reel and Mr. Joel H. Levy, Counsel, Federal Communications Commission, also entered appearances for appellee.
Messrs. Leonard H. Marks, Stanley B. Cohen and Roy F. Perkins, Jr., Washington, D. C., were on the brief, for intervenor.
Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.
McGOWAN, Circuit Judge:
1
This appeal is from an order of the Federal Communications Commission dismissing, without an evidentiary hearing, appellant's petition for rehearing. The petition was filed after the Commission had granted intervenor a permit to construct new facilities which would allegedly be competitive with appellant. The issues raised concern the extent to which an existing licensee is entitled to an evidentiary hearing, when it alleges such competition but enters its objection for the first time in a post-grant pleading. This court has recently had occasion to deal with this problem in a closely-related context. Springfield Television Broadcasting Corp. v. F.C.C., 117 U.S.App.D.C. 214, 328 F.2d 186 (1964). What was there said is largely dispositive of this case, but we think it desirable to consider the issues presented by this appeal in the light of the particular facts involved. As in Springfield, we affirm the Commission's order.
2
* The propriety of the Commission's action in this case is to be appraised in its statutory setting, and especially against the background of the developing Congressional purposes in this area. For many years the Federal Communications Act (48 Stat. 1064 (1934), as amended, 47 U.S.C. § 151 et seq.) made express provision for the filing of objections to new licensing authority only after the initial grant. Before 1960, Section 309 (c) embodied a specific post-grant procedure for protecting grants of authority made without a hearing; and, although a pre-grant effort to resist the new application would presumably be entertained by the Commission, the failure of the Act to provide, in terms, for this possibility inevitably resulted in the practice of bringing forward objections after the Commission had determined that the authority sought accorded with the public interest, convenience, and necessity.
3
The deficiencies of such a procedure in terms of the rational and efficient functioning of the administrative process are obvious. Congress sought to remedy this situation in 1960 by repealing Section 309(c) and enacting new Section 309(d), which, for the first time, created machinery for the voicing of objections before, rather than after, the grant of the authority in question. 74 Stat. 890 (1960). Under that provision any one having an interest may file a petition to deny the application prior to the grant of an application without hearing or prior to the commencement of hearing on such application. Depending upon the substantiality and materiality of the matters asserted in such petition, the Commission may grant the application with or without hearing.
4
Existing side by side with Section 309 (d) is a wholly separate procedure, which has obtained from the inception of the Act, for seeking rehearing of any Commission order. Section 405 provides that any person, whether or not a party to the proceeding, aggrieved or adversely affected by any Commission action, may petition for rehearing of such action. This section expressly provides that the Commission has discretion to grant such a rehearing "if sufficient reason therefor be made to appear"; and also states that rehearings thereunder "shall be governed by such general rules as the Commission may establish, except that no evidence other than newly discovered evidence, evidence which has become available only since the original taking of evidence, or evidence which the Commission * * * believes should have been taken in the original proceeding shall be taken on any rehearing." The Commission has in fact issued regulations relating to reconsideration under this section of the Act, and the pertinent ones for our purposes are set forth in the margin.1 In the interest of orderly procedure, they establish certain standards which are to govern the granting of petitions filed under Section 405. These standards are designed to accommodate the public interest in the unusual case. They demand either that a good reason be given why a pre-grant opposition was not utilized or a pleading of facts which, if shown to be true, clearly point to an injury to the public sufficient to outweigh considerations of administrative orderliness. Thus, these standards have no direct relationship to pleading standards governing pre-grant petitions.
5
That the aim of these regulations is a legitimate one and well within the range of Congressional contemplation is clear from our opinion in Springfield.2 There Judge Wright, speaking for the court, said:
6
"Congress, in amending Section 309 of the Act, obviously intended that oppositions to applications to grant construction permits should be filed before the grant, rather than after, as in the prior procedure. In reporting this amendment, the House Committee on Interstate and Foreign Commerce stated:
7
"`* * * The committee wishes to make clear that, in any situation where a petition to deny could have been filed by a party in interest prior to grant, the normal standards with respect to petitions for rehearing will apply, so that (1) no matter may be raised in a petition for rehearing which could have been raised with reasonable diligence by a petition to deny, and (2) any matter that was raised in a petition to deny and disposed of by the Commission need not be considered or discussed in detail if it is raised again.'
8
Thus, while in amending Section 309 Congress did not provide for a mandatory pre-grant procedure, it fully anticipated that under the amendment this would be the normal procedure, and that when a party for the first time appears in the proceeding with a petition for reconsideration, he should show why he has withheld the facts, or was unable in season to obtain the facts, on which he relies. Certainly `[w]e cannot allow the appellant to sit back and hope that a decision will be in its favor, and then, when it isn't, to parry with an offer of more evidence. No judging process in any branch of government could operate efficiently or accurately if such a procedure were allowed.' Colorado Radio Corp. v. Federal Communications Com'n, 73 App.D.C. 225, 227, 118 F.2d 24, 26 (1941)."
9
Congress clearly recognized that sound regulation has procedural as well as substantive elements, and that "the public interest, convenience, and necessity" comprehends both. Orderliness, expedition, and finality in the adjudicating process are appropriate weights in the scale, as reflecting a public policy which has authentic claims of its own. We examine, against this background, the facts giving rise to this appeal.
II
10
The petitioner, Valley Telecasting Company, owns and operates television station KIVA on Channel 11 in Yuma, Arizona.3 On July 5, 1962, an applicant known as Tele-Broadcasters sought authority to build a new television station on Channel 7 in El Centro, California. Two months later another applicant, KXO-TV, requested the same authority. This conflict was eliminated when, on November 5, 1962, the first application was amended to substitute Channel 9 for Channel 7. The applications elicited no objections from any quarter; and, after examining them, the Commission granted them without hearing on April 10, 1963.
11
On the following May 9, Valley came into the matter for the first time by filing petitions for reconsideration of the April 10 grants.4 It asked the Commission to hold an evidentiary hearing on the issues raised by its allegations, which generally centered around the ability of the Yuma-El Centro area to support any new television operations whatever. Although Valley made a number of allegations responsive to the requirement in the Commission's Rule 1.84(b) (renumbered to 1.106(b)) that a non-party filing a petition for reconsideration state "with particularity the matter in which * * * his interests are adversely affected," the petitions ignored the accompanying requirements that they "show good reason why it was not possible for [petitioner] to participate in the earlier stages of the proceeding." Similarly, with respect to the evidentiary rules set forth in Rule 1.84(c) (renumbered to 1.106(c)), there was no effort by petitioner to bring itself within either subparagraph (1) or (2), i. e., facts arising since the last opportunity to present them or later discovered, without fault, for the first time. Valley urged, rather, that the facts alleged were so compelling that their consideration is, within the meaning of subparagraph (3), required "in the public interest."
12
The Commission, after considering the petitions, papers filed in opposition thereto by the new licensees, and replies by petitioner, denied the petitions. It noted that Valley had not exercised its right under Section 309(d) to file a petition to deny the applications and to present its objections to them in advance of action by the Commission. It noted further that Valley had made no effort to show "good reason" under the applicable Rule why this had not been done; and, from the pleadings before it, the Commission found no such reason to exist. Lastly, the Commission found the factual assertions of Valley insufficient to require, within the meaning of Rule 1.84(c) (3), a hearing in the public interest.
III
13
The argument pressed upon this appeal by Valley essentially is that, whatever its sins in terms of timeliness, the Commission's primary function is to safeguard the public interest and not to punish delinquency. Since the Commission has, however dilatorily, been placed on notice of the injury to the public interest inherent in the grant of the two new applications, it is asserted that the Commission must now set the matter down for hearing and re-examine its earlier action in the light of the evidence Valley proposes to adduce. The injury to the public is said to lie in the inevitable destruction or degradation of Valley's existing service by reason of the incapacity of the market to support more than one station. Valley points to our holding in Carroll Broadcasting Co. v. F. C. C., 103 U.S.App.D.C. 346, 258 F.2d 440 (1958), as making this kind of injury the occasion for a public hearing by the Commission. In Carroll we did hold that an existing licensee is entitled to the opportunity to present proof that the entry of a new competitor would, by reason of the leanness of the available market, raise the spectre of destroying or damaging the present service in the area, resulting in an injury to the public. But we are not here concerned with Valley's general right to a hearing. Nor are we concerned with whether Valley would have been entitled to a hearing on the economic issue had it intervened before the grant. We are, rather, concerned with what the Commission may require of post-grant petitions before it must afford a public hearing and engage in a lengthy re-evaluation of the public interest determination, which it has already once made. And we are concerned with whether the Commission has abused its discretion in concluding that this petition was not sufficient.
14
As we have already stated, and as we held in Springfield, the rules and standards used by the Commission are reasonable and well within the Congressional mandate. Moreover, we cannot, on this record, say that there was an abuse of discretion in the application of these rules. In stating this conclusion, we do not need to speculate as to what the Commission would or should have done if this issue had been tendered to it by a pre-grant petition to deny under Section 309(d), or had the Commission treated this as a pre-grant petition. We think, however, that Congress has manifested unmistakably a purpose to advance a policy of finality in administrative litigation. The Commission, as the instrument of that as well as of the other policies embodied in the Act, is authorized to proceed with due regard for all. This may on occasion be a task of considerable difficulty, calling for discriminating judgments of the most exacting nature. But these are committed in the first instance to the Commission, and our function in reviewing them is understandably a limited one.
15
We do not consider that the Commission here denied Valley's petition solely because, in the matter of timeliness, it was out of keeping with regulations validly promulgated under a statute not unconcerned with timeliness. We do consider that the Commission measured Valley's allegations of injury to the public interest by a more exacting standard than might have been appropriate at an earlier stage in the proceeding. This we think it was entitled, if indeed not required, to do.
16
In leaving the Commission's order undisturbed, we do not think it necessary to repeat the process of detailed analysis which led to the Commission's conclusion. We note, however, some matters of obvious relevance. Valley's service area extended from its home location in Yuma, Arizona, into California's Imperial Valley where, fifty miles from Yuma, El Centro is located. Valley was not subject to competition from any other TV stations, either directly or indirectly, since Valley was the only licensed station in the area and it also owned the community antenna television systems. Valley's fundamental claim was that its California sales were essential to its continued ability to exist — an ability thrown in question by substantial operating losses in the early years of its life. Its own showing, however, was that, although more latterly it had been operating on an increasingly profitable basis, this trend coincided with one of declining California revenues relative to those derived from Arizona. This appears from information supplied by Valley in respect of its fiscal years ending in March of 1960, 1961, and 1962. It did not submit figures for the year ending March 31, 1963, although presumably these were available. Neither did its figures include those relating to the results of the community antenna television systems owned and operated by it throughout the service area in controversy here. In short, we cannot say that these post-grant pleadings clearly require a hearing to avoid the possibility of a serious injury to the public.
17
Affirmed.
Notes:
1
Rules and Regulations of the Federal Communications Commission Section 1.84(b), 47 CFR 1.84(b) (1963 Supp.) (renumbered on November 18, 1963, as Section 1.106(b); see 28 Fed.Reg. 12422):
"Except where the Commission has denied an application for review without specifying reasons therefor, any party to the proceeding, or any other person aggrieved or whose interests are adversely affected by any action taken by the Commission or by the designated authority, may file a petition requesting reconsideration of the action taken. If the petition is filed by a person who is not a party to the proceeding, it shall state with particularity the manner in which he is aggrieved or his interests are adversely affected by the action taken, and shall show good reason why it was not possible for him to participate in the earlier stages of the proceeding." Section 1.84(c), 47 CFR 1.84(c) (1963 Supp.) (renumbered on November 18, 1963, as Section 1.106(c); see 28 Fed. Reg. 12422):
"A petition for reconsideration which relies on facts which have not previously been presented to the Commission or to the designated authority, as the case may be, will be granted only under the following circumstances:
"(1) The facts relied on relate to events which have occurred or circumstances which have changed since the last opportunity to present such matters;
"(2) The facts relied on were unknown to petitioner until after his last opportunity to present such matters, and he could not through the exercise of ordinary diligence have learned of the facts in question prior to such opportunity; or
"(3) The Commission or the designated authority determines that consideration of the facts relied on is required in the public interest."
2
328 F.2d at 188-189
3
The record shows also that Valley is in the business of owning and operating community antenna television systems in Yuma, and in the California Imperial Valley communities of El Centro, Brawley, Calexico, and Holtville
4
At the same time Valley asked that the applications be consolidated with each other and with another pending application for the assignment of a recently-issued construction permit for a new television station, KBLU-TV, in Yuma. Although Valley did not oppose the issuance of that license, it did petition to deny the assignment application
| {
"pile_set_name": "FreeLaw"
} |
This version includes the errata dated 20Mar02-e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 00-329
DOUGLAS B. MORGAN , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided March 14, 2002 )
William A. L'Esperance, of Albuquerque, New Mexico was on the briefs for the appellant.
John H. Thompson, Acting General Counsel; Ron Garvin, Assistant General Counsel; Mary
Ann Flynn, Deputy Assistant General Counsel; and Debra L. Leach, all of Washington, D.C., were
on the brief for the appellee.
Before IVERS, STEINBERG, and GREENE, Judges.
STEINBERG, Judge: The appellant, through counsel, seeks review of a September 28, 1999,
Board of Veterans' Appeals (Board or BVA) decision that determined (1) that a Department of
Veterans Affairs (VA) regional office (RO) had properly denied a July 1993 request for an extension
of time to file a Substantive Appeal and (2) that a December 16, 1993, Substantive Appeal was not
timely filed. Record (R.) at 16. The appellant has filed a brief, and the Secretary has filed a brief
in response, to which the appellant has filed a reply. For the reasons that follow, the Court will
affirm the Board's decision.
I. Relevant Background
The veteran, Douglas K. Hayes, served on active duty during World War II in the U.S. Army
Air Corps from August 1942 through September 1945 during World War II. R. at 19. He died in
March 1979 due to complications from diabetes mellitus; service connection was granted in April
1979 (R. at 103) for the cause of his death, apparently on the application of his last wife (see R. at
165, 208 (appellant and VA, respectively, stating that decedent's last wife (the appellant's
stepmother) had received dependency and indemnity compensation (DIC) benefits from 1979 until
her death in 1984)). In November 1992, the appellant, who is the veteran's son, filed a claim with
a VARO for both VA DIC and dependents' educational assistance (DEA) under chapters 11 and 35,
respectively, of title 38, U.S. Code. R. at 34-35. By letters dated December 4, 1992, and December
17, 1992, the RO notified the appellant that these claims were denied. R. at 106, 109. On January
12, 1993, he filed a Notice of Disagreement (NOD) as to those decisions. R. at 117-18. In that
NOD, he stated: "I amend claim submitted for DIC . . . 11/9/92 to include request for [c]hapter 35
. . . [DEA] [b]enefits 11/9/92, as all one claim." R. at 117.
In a May 14, 1993, letter to the appellant, the RO acknowledged receiving the January 1993
NOD and enclosed both a Statement of the Case (SOC) and a blank VA Form 9, Substantive Appeal
to the BVA. R. at 126-35. The RO made no statement in that letter or the SOC in response to the
appellant's attempt to amend his DIC claim to include his DEA claim. See ibid. On July 8, 1993,
he requested, through his veterans' service organization representative, a 30-day extension of time
to reply to the SOC; he cited the death "recently" of his mother (a prior wife of the veteran) as the
basis for that request. R. at 137. The RO responded to that request in a July 26, 1993, letter, which
stated as follows:
This letter is in a [sic] response to a memorandum dated July 8, 1993,
received from Paralyzed Veterans of America, pretaining [sic] to your
request for a 30[-]day extension to perfect your appeal. You have one
year from the date of the letters notifying you of the denial of benefits
in which to perfect your appeal. You must submit VA Form 9 prior
to November 24, 1993, for [c]hapter 35 [e]ducation benefits and
December 17, 1993, for . . . DIC[] benefits.
R. at 140. Again, the RO made no explicit reference to the purported "one claim" amendment. See
ibid.
The appellant submitted a VA Form 9, dated December 16, 1993, as to the denial of both
claims. R. at 142-59. On that VA Form 9, he noted his prior request, based on his mother's death,
for an extension of time to file the Substantive Appeal and stated: "I am turning in my appeal
2
today[,] Dec 16, 1993[,] because it's been hard and on 1/12/93 I amended my DIC & Educational
claim together." R. at 159.
At the appellant's request (R. at 142), the RO conducted a hearing in February 1994 (R. at
163-71). Based on the sworn testimony provided at that hearing and on the evidence that was
referenced in the May 1993 SOC, the VA hearing officer, in a December 1994 decision, determined
that the appellant's DIC claim was properly denied and that the appellant's DEA claim was "not
within the jurisdiction of the [h]earing [o]fficer". R. at 177. As to the DEA claim, the hearing
officer explained:
The claimant was notified on December 4, 1992, of the denial of his
claim for educational benefits. He filed a[n NOD] on December 22,
1992, and was issued a[n SOC] on May 14, 1993. He did not submit
his VA Form 9 . . . until December 16, 1993. As Mr. Morgan failed
to perfect an appeal to the December 4, 1992, decision within one
year of notification, that decision is final and is not within the
jurisdiction of the [h]earing [o]fficer.
R. at 179.
After the RO issued a February 1995 Supplemental SOC (SSOC) (R. at 323-26), the
appellant, on March 31, 1995, filed, through his representative, a Substantive Appeal to the Board.
R. at 333-58. In a statement in support of his appeal, the appellant admitted that his appeal of the
DEA claim was filed "some 12[]days late" and explained, as to his July 1993 request for a 30-day
extension of time, that "[w]hen [he] lost [his] [m]other to cancer, it was all [he] could do to try to
finish [his] appeal on time[;] [e]ven with 5[]months left to spare, [he] knew that [he] needed an
extension of time to finish [his] appeal" and that his "goal was to try to add on 30[]more days to the
5[]months left to perfect [his] appeal." R. at 334.
In a June 30, 1997, decision, the Board requested that the RO "provide the appellant with a[n
SOC] on the issues of (1) whether the July 1993 request for an extension for filing a Substantive
Appeal should have been granted, and (2) whether the December 1993 Substantive Appeal was
timely filed" as to the DEA claim. R. at 377. In the same June 1997 decision, the Board denied the
appellant's DIC claim because it found that he was over age 17 at the time of the veteran's death and
thus lacked the requisite status of "child of the veteran" for purposes of that claim. R. at 380-81.
3
In response to the June 1997 BVA decision, the RO, on January 14, 1998, issued an SOC
deciding that the appellant's December 16, 1993, Substantive Appeal as to the RO's December 4,
1992, denial of his DEA claim was not timely filed. R. at 412. The RO found that such an extension
"should not have been granted . . . [and that b]ecause the appellant's request was only for an
extension to respond to the [SOC], and [because] this request was received well within the time
limits to submit a [S]ubstantive [A]ppeal, the VA letter dated 7-26-93 was merely notifying the
veteran that he had more than thirty days left on his appeal period in which to respond to the [SOC],
and submit a [S]ubstantive [A]ppeal". Ibid. The RO explained that it had "in essence" previously
denied the appellant's July 1993 request for an extension of time to reply to the May 1993 SOC and
that the RO letter sent to the appellant in July 1993 was meant to convey that information. Ibid.
Addressing the second issue specified in the Board's June 1997 decision, the RO stated that the
appellant's submission of the Substantive Appeal as to the denial of his DEA claim was untimely
because it was filed on December 16, 1993, but was due to be filed on or before November 24, 1993.
Ibid.
In the September 1999 BVA decision on appeal, the Board made findings of fact including,
inter alia, the following: (1) In its December 4, 1992, letter, the RO had notified the appellant that
his DEA claim was denied; (2) on May 14, 1993, the RO had issued an SOC to the appellant; (3) in
a July 1993 letter, the appellant had requested a 30-day extension of time for filing a Substantive
Appeal; (4) in July 1993, the RO, "in effect", had denied the appellant's request for an extension of
time; and (5) the appellant's Substantive Appeal was not received within 60 days after the mailing
of the May 14, 1993, SOC, or within one year after the mailing of the December 4, 1992, notification
letter. R. at 6. Based on these facts, the Board concluded that the RO had acted properly when it
denied the appellant's July 1993 extension-of-time request and that the appellant's Substantive
Appeal as to the DEA claim was thus not timely filed. R. at 7. In its analysis, the Board
acknowledged that, although the RO had denied the appellant's DEA claim in a November 24, 1992,
decision, the appellant had not been notified of that decision until a notice was mailed on
December 4, 1992, and that the latter date was the proper date to use in determining the timeliness
of the appellant's Substantive Appeal. R. at 11. The Board then reasoned that, because the granting
of an extension of time to file a Substantive Appeal "lies largely within the discretion of the body
4
to which the decision is committed" and because the proffered basis for this request for an extension
of time (the death of the appellant's mother five months before the expiration of time to file a
Substantive Appeal) does not demonstrate a need for granting the requested 30-day extension of
time, the RO had not acted erroneously in denying the requested extension. R. at 13. Finally, the
Board concluded that the appellant's Substantive Appeal (date stamped by the RO on December 16,
1992) – even if statutorily presumed to have been postmarked and received on December 10, 1993,
see 38 C.F.R. § 20.305 (a), (b) (2001) (computation of time for filing) – was still untimely because
it was received after December 4, 1993. R. at 14-15.
II. Analysis
A. Statutory and Regulatory Authorities
Section 7105(d)(3) of title 38, U.S. Code, provides in pertinent part:
The claimant will be afforded a period of sixty days from the date the
statement of the case is mailed to file the formal appeal. This may be
extended for a reasonable period on request for good cause
shown. . . . The agency of original jurisdiction may close the case for
failure to respond after receipt of the statement of the case, but
questions as to timeliness or adequacy of response shall be
determined by the Board of Veterans' Appeals.
38 U.S.C. § 7105(d)(3). Section 20.302(b) of title 38, Code of Federal Regulations, provides:
(b) Substantive Appeal. Except in the case of simultaneously
contested claims, a Substantive Appeal must be filed within 60 days
from the date that the agency of original jurisdiction mails the
Statement of the Case to the appellant, or within the remainder of the
1-year period from the date of mailing of the notification of the
determination being appealed, whichever period ends later. The date
of mailing of the Statement of the Case will be presumed to be the
same as the date of the Statement of the Case and the date of mailing
the letter of notification of the determination will be presumed to be
the same as the date of that letter for purposes of determining whether
an appeal has been timely filed.
38 C.F.R. § 20.302(b) (2001). Regulatory § 19.34 provides:
Whether a Notice of Disagreement or Substantive Appeal has been
filed on time is an appealable issue. If the claimant or his or her
representative protests an adverse determination made by the agency
5
of original jurisdiction with respect to timely filing of the Notice of
Disagreement or Substantive Appeal, the claimant will be furnished
a Statement of the Case.
38 C.F.R. § 19.34 (2001). Regulatory § 20.303 provides in pertinent part:
An extension of the 60-day period for filing a Substantive Appeal . . .
may be granted for good cause. A request for such an extension must
be in writing and must be made prior to expiration of the time limit
for filing the Substantive Appeal. . . . A denial of a request for
extension may be appealed to the Board.
38 C.F.R. § 20.303 (2001).
Although there is no statutory or regulatory provision that specifically applies to the
extension of the one-year period (from the date of mailing of the notification of the adverse RO
determination being appealed) for filing a Substantive Appeal (as opposed to the 60-day period that
runs from the date of the mailing of the SOC), there is a general regulatory provision for granting
extensions of time, which provides, inter alia:
(b) Extension of time limit. Time limits within which claimants
or beneficiaries are required to act to perfect a claim or challenge an
adverse VA decision may be extended for good cause shown. . . .
Denials of time limit extensions are separately appealable issues.
38 C.F.R. § 3.109(b) (2001).
B. Substantive-Appeal Filing Period for DEA Claim
Absent an extension of time, there is no dispute that the appellant's December 16, 1993,
Substantive Appeal as to the RO's denial of his DEA claim was untimely – that is, it was filed more
than one year after December 4, 1992, the date of the RO's mailing to him of notification of the
adverse RO decision on that claim. See 38 C.F.R. § 20.302(b). Despite the RO's erroneous
statement in its January 1998 SOC, after remand by the Board, that the appellant's Substantive
Appeal was due on November 24, 1993 (R. at 412), see Secretary's Brief (Br.) at 3 n.1 (conceding
RO's error), the appellant and the Secretary are in agreement regarding the dates by which that
Substantive Appeal was due to be filed and when it was actually filed. In fact, in his initial appeal
to the BVA in March 1995, the appellant conceded that his appeal as to the denial of his DEA claim
was untimely filed. R. at 334 (appeal filed "some 12-days late").
6
C. Denial of Request for Extension of Filing Period
The question whether the BVA erred in finding proper the RO's denial of the appellant's
July 1993 extension-of-time request (R. at 16) raises two subissues. First is the Secretary's
contention that "there is no provision in the law allowing for extension of the [one]-year period after
the notice of denial [by an RO] is mailed" and that, therefore, "it was not an abuse of discretion for
the RO to deny [the a]ppellant's request" for an extension that "the applicable statutes or regulations
do not contemplate". Br. at 11.
The Secretary is correct that statutory section 7105(d)(3) does expressly provide for the
Secretary to extend the period for filing a Substantive Appeal only as to the 60-day post-SOC period,
and his regulation at § 20.303 appears to impose a time limit for extension motions only as to
motions to extend the 60-day post-SOC period (the phrase "[a] request for such an extension" in the
second sentence of § 20.303 refers back specifically to the preceding sentence's reference to "[a]n
extension of the 60-day period for filing a Substantive Appeal"). However, regulatory § 20.302(b)
expands upon the 60-day Substantive-Appeal filing period by providing the appellant with the
remainder of the one-year period, after the date of mailing of an adverse RO determination, in which
to file a Substantive Appeal if that one-year period extends beyond the 60-day period.
38 C.F.R. § 20.302(b). The 60-day post-SOC period is inapplicable here because the appellant's
deadline to file his Substantive Appeal as to the denial of his DEA claim was December 4, 1993, the
date one year after the date of the RO's notice of its denial of that claim. His deadline was thus not
July 13, 1993, the date 60 days after the issuance of the May 14, 1993, SOC. Hence, whatever may
be the merit or lack thereof of the appellant's extension-of-time request in this case, that request was
not untimely filed.
The § 20.302(b) regulatory provision of an alternate Substantive-Appeal filing period derives
from the NOD one-year filing period provided in 38 U.S.C. § 7105(b). See Rowell v. Principi,
4 Vet.App. 9, 17 (1993); see also 38 U.S.C. § 501(a)(1) (providing Secretary with authority to
prescribe "regulations which are necessary or appropriate to carry out the laws administered by [VA]
and are consistent with those laws, including . . . regulations with respect to . . . the method of taking
and furnishing [proof and evidence]"). As to that alternate NOD filing period, section 7105(c)
expressly authorizes the Secretary to provide by regulation for exceptions, and, as discussed further
7
below, the Secretary has provided in § 3.109(b) for the granting of such an exception to the one-year
NOD filing period by way of a time extension "for good cause shown". See 38 U.S.C. § 7105(c)
(providing that Secretary may provide for exceptions by regulations not inconsistent with title 38,
U.S. Code); Rowell, 4 Vet.App. at 14-15 (holding § 3.109(b) applicable to NOD filing period).
In light of this analysis, it is troublesome that in this case the Secretary, when addressing the
question of a request to extend the period of time for filing a Substantive Appeal, makes no reference
to § 3.109(b)'s provision for "good cause" extensions of "[t]ime limits . . . for challeng[ing] an
adverse VA decision", particularly given that § 3.109(b) is facially applicable to a request for an
extension of time to challenge an adverse RO decision by filing a Substantive Appeal. See 38 C.F.R.
§ 20.202 (2001) (providing that "[p]roper completion and filing of a Substantive Appeal are the last
actions the appellant needs to take to perfect an appeal"); see generally Roy v. Brown, 5 Vet.App.
554, 559 (Steinberg, J., dissenting). As noted above, assuming that the Secretary's regulatory
establishment of the alternate one-year Substantive-Appeal filing period is within his regulation-
writing authority (and no challenge to that regulation is presented here), see 38 U.S.C. § 501(a)(1),
and to the extent that the Secretary has allowed, through § 3.109(b), for the extension of the one-year
period for filing a Substantive Appeal, such an extension may be granted only for "good cause
shown". 38 C.F.R. § 3.109(b).
Thus, the second subissue concerns the applicable standard of review for determining "good
cause" under § 3.109(b). Before we address that issue, however, there are two preliminary matters
to consider.
1. Argument Regarding Consolidation of DEA Claim with DIC Claim
The appellant has argued that he had obtained an extension of time to file a Substantive
Appeal to the denial of his DEA claim when he filed his January 12, 1993, NOD that sought to
consolidate his DEA and DIC claims to make them "all one claim". R. at 117. However, in the
appellant's July 8, 1993, request for a 30-day extension to reply to the SOC, he made no mention of
this idea of claim consolidation. See R. at 137. When the RO denied his request for a 30-day
extension to reply to the SOC, it again did not refer to or acknowledge his purported consolidation
of his claims. See R. at 140. The only other mention of consolidating the claims was made in his
December 16, 1993, Substantive Appeal: "I am turning in my appeal today Dec[.] 16, 1993[,]
8
because it's been hard and on 1/12/93 I amended my DIC & Educational claim together." R. at 159.
It is clear from the foregoing analysis that the RO never advised him that the claims were
consolidated or made any statement that reasonably could have been construed that way. Moreover,
in its July 26, 1993, letter, the RO stated that it was responding to his 30-day extension request and
it did, without doubt, deny that request by treating the two claims as separate and distinct and giving
separate deadlines for filing Substantive Appeals in response to the SOCs that had denied each claim
separately. R. at 140.
2. Fair-Process Considerations
Notwithstanding the foregoing discussion, however, the RO's denial of an extension of time
to file the appellant's Substantive Appeal was an appealable issue under law and regulation. See
38 U.S.C. § 7105(d)(3) (providing that "questions as to timeliness . . . of response [to SOC] shall be
determined by [BVA]"); 38 C.F.R. §§ 19.34 (providing that whether Substantive Appeal has been
filed on time is an appealable issue), 20.101(c) (providing that "[a]ll claimants have the right to
appeal [to BVA] a determination . . . by [RO] . . . that the Board does not have jurisdictional
authority[,] . . . includ[ing] questions relating to the timely filing of . . . the Substantive Appeal"),
amended by 66 Fed. Reg. 53,339-40 (Oct. 22, 2001), 20.303 (providing that "denial of a request for
extension may be appealed to the Board") (2001). Therefore, the appellant was entitled to notice of
his appellate rights accompanying the notice of that adverse decision, see 38 U.S.C. § 5104(a)
(providing that notice of decision "affecting the provision of [VA] benefits . . . shall include an
explanation of the procedure for obtaining review of the decision"); 38 C.F.R. § 19.30(b) (2001).
The Board in its June 30, 1997, decision regarding the DIC claim clearly recognized the inadequacy
of the process that the RO had afforded to the appellant; the Board stated the following:
In July 1993, the appellant, through his representative, submitted a
request for a 30[-]day extension to reply to the [SOC]. The RO
replied in July 1993 with a letter stating that [it] had received the
appellant's request for a 30[-]day extension. Without allowing or
denying the request, the RO informed the appellant of the original
time limit for filing his appeals, about four-and-one-half months later.
The appellant's Substantive Appeal was received at the RO on
December 16, 1993, twelve days after the one[-]year anniversary of
the notice of denial of the claim regarding [c]hapter 35 benefits. In
February 1994, the appellant presented testimony at a personal
9
hearing before RO personnel. One of the issues on which the
appellant presented argument was entitlement to education benefits
pursuant to [c]hapter 35, United States Code. In a December 1994
decision, the Hearing Officer determined that he did not have
jurisdiction over the claim for entitlement to [c]hapter 35 education
benefits as the appellant had not submitted a timely Substantive
Appeal on the issue. The appellant was notified of that decision in
a[n SSOC], dated February 1995. The [SSOC] provided no laws and
regulations regarding timeliness of appeals, nor did it reflect
consideration of the fact that no action had been taken on the
appellant's request for an extension for filing his Substantive Appeal.
In a letter accompanying the [SSOC], the RO informed the appellant
that if he wanted the issue of timeliness of the Substantive Appeal to
be adjudicated by the Board, all he had to do was write a letter stating
that he disagreed with the determination. It was stated that the issue
would then be before the Board. The appellant responded in March
1995, arguing that he had requested a 30[-]day extension for filing his
Substantive Appeal, assuming that he would be given a total of one
year and thirty days if the extension was granted. As the [SSOC]
merely informed the appellant that his appeal on the [c]hapter 35
issues had not been timely perfected, without providing pertinent laws
and regulations, and without discussing the intertwined issue of
whether an extension should have been granted for Filing the
Substantive Appeal, the Board construes it to be a notice of denial.
Thus, the appellant's March 1995 statement was a[n NOD] with that
finding. The RO is requested therefore to provide the appellant with
a[n SOC] on the issues of (1) whether the July 1993 request for an
extension for filing a Substantive Appeal should have been granted,
and (2) whether the December 1993 Substantive Appeal was timely
filed as to the claim for entitlement to benefits pursuant to 38 U.S.C.
[c]hapter 35.
R. at 376-77.
Thereafter, the RO, by its January 14, 1998, letter, complied fully with the Board's request.
By providing the appellant with the four-page SOC on the denial of the 30-day extension of time to
file his Substantive Appeal and a full statement of his right to appeal that determination to the Board
(R. at 407), which he thereafter did in a timely fashion (R. at 423 (April 7, 1998, Substantive
Appeal)), the Board cured the procedural defect in the case by presenting the appellant with a full
opportunity to contest the RO's denial of an extension of time and in finding that his Substantive
Appeal as to the denial of his DEA claim was not timely. Because we are satisfied that there is no
10
procedural defect associated with this matter any longer, we proceed to a review of the merits of the
BVA decision on appeal
3. BVA's Exercise of Discretion as to Request for Extension of Time
We now address whether the Board abused its discretion in concluding that the RO's denial
of an extension of time beyond December 4, 1993, was proper. The Court has held that there is no
"legal entitlement" to a "good cause" extension under § 3.109(b) and that a "good cause"
determination is a "decision committed to the sole discretion of the Secretary". Corry v. Derwinski,
3 Vet.App. 231, 235 (1992). This standard is highly deferential and has been equated to the abuse-
of-discretion standard. See Tulingan v. Brown, 9 Vet.App. 484, 489 (1996) (Farley, J., concurring)
(stating that 38 U.S.C. § 7261(a)(3)(A) authorizes Court to overturn decisions committed to the
Secretary's discretion that are found to be an abuse of discretion). In this case, the basis for the
appellant's request in July 1993 for a 30-day extension of time to file a Substantive Appeal – that is,
the death of his mother five months before the expiration of the time available to him to file his
Substantive Appeal – does not, on its face, logically justify or support the request. Moreover, the
appellant did not provide, in conjunction with the proffered basis at the time that he requested an
extension, an explanation or specific reasons supporting a basis for the requested extension; all he
said was that his "mother [had] died recently". R. at 137. Five months later, on December 16, 1993,
he described that loss and stated that "it was all I could do to try to finish my appeal on time." R. at
334. Accordingly, given the highly deferential standard of review for good-cause determinations,
see Corry and Tulingan, both supra, the Court cannot conclude that the Board erred in finding that
the RO acted properly in denying the appellant's request for an extension of time to file his
Substantive Appeal.
III. Conclusion
Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the Court holds that the appellant has not demonstrated that the BVA committed error – in its
findings of fact, conclusions of law, compliance with procedural requirements, articulation of
reasons or bases, or consideration of the benefit-of-the-doubt rule – that would warrant reversal or
11
remand under 38 U.S.C. §§ 1310, 5107(b), 7104(a) or (d)(1), 7105(c) or (d)(3), or 7261, or 38 C.F.R.
§§ 3.109(b), 19.34, 20.302(b), or 20.303. Therefore, the Court affirms the September 28, 1999,
BVA decision.
AFFIRMED.
12
| {
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| {
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Filed 12/4/15
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOHNNEISHA KEMPER, D066289
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00094975-
CU-PN-CTL)
COUNTY OF SAN DIEGO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Law Offices of Shawn A. McMillan and Shawn A. McMillan, Stephen D. Daner,
Samuel H. Park, and Dennis B. Atchley, for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, Ricky R. Sanchez and Stephanie
Karnavas, Deputy County Counsel, for Defendants and Respondents.
Five years ago, this court affirmed a judgment terminating Johnneisha Kemper's
parental rights to her daughter, rejecting Kemper's contention that claimed ineffective
assistance by her appointed juvenile dependency attorneys caused the termination of her
parental rights.1 Kemper then brought a legal malpractice action against the same
appointed juvenile dependency attorneys (Thomas Kisiel and Tracy De Soto), their
supervising attorney (Robert Gulemi), and the County of San Diego (County).2 She
alleged defendants' legal representation breached the applicable standard of care and
caused the termination of her parental rights. Defendants moved for summary judgment
based on the collateral estoppel doctrine. The court granted the motion and entered
judgment in defendants' favor.
Kemper appeals. We affirm. Causation is an essential element of a legal
malpractice claim, and Kemper is barred by the collateral estoppel doctrine from
relitigating the issue of whether her juvenile dependency attorneys caused the termination
of her parental rights. We decline Kemper's request that we create a new exception to the
collateral estoppel rule based on an analogy to the writ of habeas corpus procedure
applicable in juvenile dependency cases.
FACTUAL AND PROCEDURAL SUMMARY
I. Summary of Dependency Proceedings
In May 2008, 16-year-old Kemper gave birth to a daughter, NF. When the baby
was less than two weeks old, San Diego police officers removed the child from Kemper's
care. Four days later, the San Diego County Health and Human Services Agency
1 In re N.F. (June 29, 2010, D055922) [nonpub. opn.] (N.F.).
2 The three attorneys were employed by the Office of the Alternate Public Defender,
a division of the County.
2
(Agency) filed a juvenile dependency petition under Welfare and Institutions Code
section 300, subdivision (g), alleging the infant was at substantial risk of harm because
she had been abandoned by the mother; the mother's whereabouts were unknown; and
reasonable efforts to find the parents had been unsuccessful.3 The next day, the trial
court made a prima facie finding on the petition and detained the child in out-of-home
care.
About three weeks later, on June 18, the court held a jurisdiction and disposition
hearing. At the outset, Agency social worker Mark Hood informed the court that the
mother (Kemper) had called his office to say she was on her way to court from Los
Angeles. The court then trailed the matter until 1:30 in the afternoon. When Kemper had
not arrived by 2:10 p.m., the court resumed the hearing, sustained jurisdiction under
section 300, subdivision (g), declared NF a dependent child, and removed her from
parental custody. The court did not appoint counsel for Kemper because she had not yet
appeared in the action.
Shortly after the hearing, Kemper and the baby's alleged father arrived in the
courtroom. The court clerk gave them Hood's phone number. The court scheduled a
special hearing for the next month to appoint counsel for both parents.
3 All further statutory references are to the Welfare and Institutions Code. All rule
references are to the California Rules of Court.
3
On July 15, Kemper appeared at the continued hearing and the court appointed
counsel for her (defendant De Soto).4 De Soto said she had discussed Kemper's
"constitutional, trial and statutory" rights with Kemper, and Kemper understood those
rights. When the court asked about the appointment of a guardian ad litem, De Soto said
she had spoken with Kemper and both she and Kemper believed a guardian ad litem was
not necessary. De Soto requested that the court facilitate services in the Los Angeles area
where Kemper lived, and the Agency's counsel agreed it was appropriate to do so (at least
with respect to ordered therapy). The court spoke directly to Kemper about the
importance of complying with the ordered services in a timely fashion.
About eight months later, in February 2009, the court held a contested six-month
review hearing. Kemper was present and represented by defendant Kisiel. At the
hearing, the Agency submitted two social worker reports, and requested termination of
reunification services based on evidence showing Kemper had only minimally participated
in services and visitation. Kisiel did not present any affirmative evidence or cross-examine
the social workers, but requested the court continue services for Kemper, arguing Kemper's
progress had been sufficient; she had appeared for court hearings; she had made progress in
parenting classes; she had engaged in therapy; and she had made best efforts to comply
with the plan despite living in Los Angeles County.
NF's counsel requested that the court follow the Agency's recommendation,
emphasizing Kemper's repeated failure to participate in reunification services.
4 At the time De Soto's last name was Schmidt.
4
At the end of the hearing, the juvenile court rejected Kisiel's arguments,
terminated reunification services, and set a section 366.26 selection and implementation
hearing. The court found Kemper had received adequate services, but had not made
substantial progress with her case plan and there was no substantial probability of NF's
return to her parents' physical custody in the next six months.
Kemper signed a notice of intent to file a writ petition challenging this order (see
rules 8.450, 8.452), but after Kisiel's supervisor, defendant Gulemi, reviewed the record
and spoke with Kisiel, Gulemi determined there were no viable issues for review. In
March 2009, Gulemi communicated this conclusion to Kemper by letter, and told her to
call him collect if she had any questions or concerns.
This same month, Kemper was arrested and became a dependent of the Los
Angeles County juvenile court, which placed her into foster care. While in foster care,
Kemper gave birth to another child.
Kemper's San Diego County case was then transferred to another attorney in the
same office, Sharon MacGillis. After reviewing the file, MacGillis requested that
supervisor Gulemi transfer the case to an independent attorney, believing there had been
substantial problems with the legal representation in the case. Gulemi declined to
approve the transfer, and instructed MacGillis to instead file a section 388 motion
challenging the factual and legal support for the prior orders and presenting evidence of
Kemper's recent progress in accepting responsibility and taking care of herself.
In May and August 2009, MacGillis filed the section 388 modification petitions,
arguing (1) the court prejudicially erred in failing to appoint a guardian ad litem at the
5
July 2008 hearing; and (2) Kemper's improved circumstances supported an extension of
reunification services or return of the child. On the second ground, MacGillis admitted
Kemper had been "unstable," but argued and presented evidence that her circumstances
had changed because she was now in foster care in Los Angeles, enrolled in school,
attending parenting classes, living with a supportive foster mother, and providing
excellent care to her new second child.
The juvenile court found Kemper made a prima facie case supporting both
grounds for the motions, and then held a combined hearing on the two section 388
petitions and the section 366.26 reference. At this hearing, the court received into
evidence all of the Agency's reports and the minute orders from the prior hearings,
including the detention and jurisdiction hearings. Several witnesses testified, including
Kemper, her foster mother, social worker Hood, and a Riverside County social worker in
Kemper's dependency case. At the conclusion of the evidence and argument, the juvenile
court found that although a guardian ad litem should have been appointed and this "error
was not harmless, . . . the requested modification was not in [the child's] best interests
because [Kemper] could not safely parent [her child]." (N.F., supra, D055922.) The
court thus denied the section 388 motions, and entered a final judgment terminating
Kemper's rights.
Kemper filed a notice of appeal and an appellate attorney was appointed to
represent her.
6
II. N.F. Appellate Decision
On appeal in the N.F. case, Kemper's appellate counsel challenged the orders
denying Kemper's section 388 motions and the judgment terminating her parental rights.
On the section 388 issues, counsel argued the juvenile court abused its discretion in
refusing to return the child to Kemper based on the court's earlier failure to appoint a
guardian ad litem and based on her new and improved circumstances. In challenging the
judgment terminating parental rights, Kemper's counsel argued the judgment was the
result of Kemper's appointed counsel's ineffective assistance in the proceedings below.
Kemper's counsel identified three instances of alleged deficient representation: (1) the
failure to challenge the jurisdictional findings under section 300, subdivision (g); (2)
waiving appointment of a guardian ad litem; and (3) failing to raise these issues in a writ
petition filed after the six-month hearing in which the court terminated reunification
services. (N.F., supra, D055922.)
In June 2010, this court filed N.F., rejecting Kemper's appellate contentions and
affirming the court's section 388 orders and parental-termination judgment. (N.F., supra,
D055922.) On the section 388 issues, we held the juvenile court erred in not appointing a
guardian ad litem and the appointment "may have made a difference in the outcome of
the jurisdiction and disposition hearings," but the juvenile court "acted well within its
discretion" in denying the section 388 motion because a custody change was not in the
child's best interests. (N.F., supra.) We also held the juvenile court did not abuse its
discretion in concluding that Kemper remained unable to safely parent NF and in finding
that Kemper was not a parental figure to NF. (Ibid.)
7
We rejected the ineffective assistance claim on two grounds. (N.F., supra,
D055922.) First, we stated the record "does not affirmatively establish counsel had no
rational tactical purpose" for the alleged deficient performance, and therefore the claim
was not cognizable on appeal. (Ibid.) Second, we stated that "More importantly, we
cannot say the outcome—termination of parental rights—would have been different had
counsel provided what mother believes was effective representation." (Ibid.) We
explained:
"Regardless of counsel's alleged failings . . . , the Agency was
justified in filing a dependency petition, and the court reasonably
assumed jurisdiction of [Kemper's child]. [Kemper] left [her]
newborn . . . without provision for support, and chose her
relationship with father over her relationship with her child. . . .
[Kemper's] ongoing irresponsible behavior and lack of motivation to
participate in services or establish a relationship [with her child]
prevented reunification. Once her situation stabilized and she began
to access services, [Kemper] was never able to show she could
properly parent [her child]. The remedy [Kemper] seeks—
dismissing the petition or placing [her child] with her under a
voluntary services contract—is not a viable option. [¶] Despite the
fact that this case got off track initially when [Kemper] had no
representation, it was ultimately [Kemper's] inability or
unwillingness to reunify with [her child] that caused her to lose her
parental rights. [Kemper's child] is now two years old and has never
lived with [Kemper]. She is thriving in the home of maternal
relatives who want to adopt her. [The child] deserves to have her
custody status promptly resolved and her placement made permanent
and secure." (Ibid.)
III. Kemper's Current Malpractice Action
A. Complaint
Shortly before N.F. was filed, Kemper brought a legal malpractice action against
her two former appointed attorneys (De Soto and Kisiel) and their supervising attorney
8
(Gulemi). She alleged defendants acted below the standard of care by: (1) waiving her
right to a guardian ad litem; (2) submitting and failing to object to jurisdiction, even
though Kemper's whereabouts were known when the petition was filed and Kemper did
not abandon her child; (3) allowing a case plan to be put in place that "was doomed to
fail"; (4) failing to pursue a writ or appeal challenging the court's jurisdiction and
reunification findings; and (5) failing and refusing "to file and/or pursue a writ of habeas
corpus" after the court terminated her parental rights. Kemper also alleged defendants
"failed to communicate with [her] in relation to important aspects of her case, and made
extremely important strategic and tactical decisions and mistakes, as well as critical
omissions . . . ." Kemper alleged that as a "direct and proximate result [of these actions],
[she] permanently lost custody of, and contact with, her infant daughter forever."
Kemper said that she "does not seek to overturn the Juvenile Court orders terminating her
parental rights. Rather, [she] seeks money damages for the injury suffered as a result of
the incompetence of her juvenile dependency counsel."
B. Summary Judgment Motion
Defendants moved for summary judgment based on the collateral estoppel
doctrine. Defendants maintained that the N.F. court found the same claimed ineffective
assistance did not cause the termination of Kemper's parental rights, and under collateral
estoppel rules, Kemper is bound by that finding in her legal malpractice action. In
support, defendants submitted minute orders from the juvenile court proceedings; the
appellate briefs in the N.F. appeal; the reporter's transcripts of the July 15, 2008 hearing
appointing De Soto as counsel; the reporter's transcript of the February 19, 2009 six-
9
month review hearing; and the N.F. opinion. The facts contained in these documents are
summarized above.
C. Opposition to Summary Judgment Motion
Kemper opposed the summary judgment. She argued the collateral estoppel
doctrine was inapplicable because the N.F. court rejected the ineffective assistance claim
based solely on the appellate record, and did not consider additional relevant evidence
that could or would have been submitted in a habeas corpus petition. To support this
argument, Kemper submitted various items of this "additional" evidence.
First, she submitted her own declaration, detailing the underlying circumstances
from her viewpoint. In summary, Kemper said that when she was 15 years old she
became pregnant with NF. At the time, she lived in Compton (in the Los Angeles area)
with her boyfriend and her boyfriend's mother, who was her "legal guardian." Kemper
said she had prenatal care and was prepared to care for and raise her child with the help
of her boyfriend's family and another woman who was living in the same residence.
Although Kemper said she did not live in San Diego (and had never lived in San
Diego), the baby was born in San Diego when she was visiting her biological mother.
Within several days, the baby was taken by police officers when she and her mother had
an argument, even though she was prepared to care for her baby. At the time, she gave
the police officers her Compton address and a phone number contact. Because she had
no place to stay in San Diego, Kemper went back to Los Angeles and then made
numerous unsuccessful attempts to locate her baby. She did not attend the May 29
detention hearing because she was never given notice of this hearing. But later that day,
10
Kemper had a telephone conversation with social worker Hood during which she
confirmed her Compton address and that she was living with her legal guardian. Kemper
said she told Hood she "would do anything to get [her daughter] back" and that she "was
ready, willing, and able to care for [her] daughter." Based on these facts, Kemper
claimed that at the time of the jurisdiction hearing, Hood knew of her whereabouts and
knew she had not abandoned her baby, and should have disclosed this information to the
court.
With respect to the July 15 hearing at which the court appointed De Soto to
represent her, Kemper said: "I . . . told [De Soto] that I did not understand the allegations
being level[ed] against me, what was happening in the juvenile dependency proceedings,
why I had to appear in the juvenile court, and why my baby was still being kept from
me. . . . [¶] . . . [¶] . . . De Soto never explained the function of a Guardian Ad Litem to
me, and never asked whether I needed a Guardian Ad Litem appointed for me . . . . [De
Soto's waiver of a guardian ad litem] was done without my knowledge, understanding, or
consent. . . . [¶] . . . [¶] . . . De Soto did not challenge or deny the allegations contained in
the juvenile dependency petition [or] . . . the fact that I was never provided notice of the
Detention Hearing. . . ."
Regarding attorney Kisiel, Kemper said that Kisiel never explained the status of
the case to her or assisted her with reunification efforts. Kemper additionally said that at
the six-month hearing Kisiel also represented her boyfriend (the presumed father) without
obtaining an informed waiver of a potential conflict. She said that Kisiel did not
challenge the truthfulness of the social worker's statements at this hearing even though
11
she had informed Kisiel of (unspecified) false information in the reports and
(unspecified) material omissions from the reports. Kemper attached the letter she
received from supervisor Gulemi in March 2009 indicating her attorneys would not be
bringing a writ petition to challenge the termination of her reunification services.
Kemper also submitted a July 11, 2009 memorandum from attorney MacGillis to
defendant Gulemi, suggesting that Kemper's prior counsel had been incompetent in
failing to challenge the "bogus" section 300, subdivision (g) jurisdictional finding, and in
failing to file a writ petition after the court denied reunification services at the six-month
hearing. In the memorandum, MacGillis recognized that Kemper had "failed
miserabl[y]" to comply with her reunification plan, but noted Kemper was a minor
herself who needed assistance. The memorandum concludes: "I think that there are huge
problems . . . what to do?" MacGillis attached a " 'Three-alarm fire' " sticker to the
memorandum, reflecting her view that the prior legal representation had been
problematic.
Consistent with this evidence, MacGillis testified at her deposition (taken in the
malpractice action) that shortly after she was assigned to the case, she told supervisor
Gulemi that she thought there was a conflict with continuing the representation because
of the manner in which prior counsel had handled the matter, and she wanted to transfer
the case to independent counsel. Gulemi denied this request and instructed her to remain
on the case and to raise the issues in a section 388 motion, which she did.
Kemper also submitted the deposition testimony of several other individuals,
including social worker Hood and attorneys Gulemi, De Soto, and Kisiel. At his
12
deposition, Hood acknowledged that no Agency social worker ever visited Kemper's
Compton home and that he was aware of Kemper's Compton home address before the
court sustained the jurisdictional allegations of parental abandonment. At his deposition,
Kisiel acknowledged he did not investigate the validity of the jurisdictional finding; he
never interviewed social worker Hood or informed Kemper of her right to challenge the
jurisdictional finding; at the six-month hearing, he did not cross-examine the social
worker or present affirmative evidence; and he was aware Kemper wanted custody of her
daughter to be returned to her. At her deposition, De Soto essentially testified consistent
with the record of the July 15 hearing, and/or that she did not recall specific
conversations with Kemper. At his deposition, Gulemi agreed that his office never
specifically challenged the jurisdictional finding and acknowledged a court may dismiss a
dependency petition if a jurisdictional allegation is untrue. He said he made the decision
that there were no legal or factual grounds to challenge the court's order terminating
reunification services.
Kemper also proffered the expert declaration of Nicole Williams, an attorney who
specializes in juvenile dependency appellate practice. Williams opined that Kemper's
attorneys breached the standard of care in numerous ways, including (1) De Soto failed to
timely challenge the factual basis for the jurisdictional finding; (2) De Soto improperly
waived Kemper's statutory guardian ad litem right; (3) Kisiel failed to present affirmative
evidence or cross-examine the social worker at the six-month review hearing; (4) Gulemi
improperly refused to approve a writ petition challenging the termination of reunification
services; and (5) Gulemi improperly failed to declare a conflict in 2009 and reassign the
13
case to an independent attorney. Williams also opined these errors caused Kemper's
damages, including the termination of her parental rights.
D. Defendants' Reply Papers
In reply, defendants argued that Kemper's submitted declarations, deposition
transcripts, and memoranda were irrelevant to the collateral estoppel issue because the
N.F. court had already rejected the argument that the claimed attorney negligence caused
Kemper's claimed losses (the termination of her parental rights), and therefore she was
barred from presenting new evidence and relitigating the issue. Defendants also
submitted additional portions of Kemper's deposition in which she testified contrary to
her later declaration.
Defendants also raised 62 separate objections to Kemper's evidence. Regarding
Williams's declaration, defendants asserted that Williams's opinions lacked foundation,
were speculative, and constituted improper expert testimony. Regarding Kemper's
declaration, defendants argued her statements lacked foundation, were irrelevant, and
improperly contradicted prior deposition testimony.
Kemper filed 28 separate objections to defendants' evidence (which consisted
primarily of court documents).
E. Trial Court's Ruling
After considering the parties' submissions and conducting a hearing, the court
granted defendants' summary judgment motion, concluding Kemper's malpractice claim
was barred by the collateral estoppel doctrine. The court reasoned that Kemper was
precluded from relitigating the determination made by the N.F. court that Kemper's
14
"parental rights were terminated as a result of her own actions, and not as a result of her
attorneys' conduct." The court also rejected Kemper's arguments that collateral estoppel
does not apply because Kemper did not previously bring an ineffective assistance claim
through a habeas corpus petition, and/or that Kemper's "new legal theories" preclude the
collateral estoppel bar. The court summarily sustained each of defendants' evidentiary
objections, and overruled Kemper's evidentiary objections.
DISCUSSION
I. Summary Judgment Review Standards
A summary judgment motion must be granted if the submitted papers show there
is no triable issue on any material fact and the moving party is entitled to a judgment as a
matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A triable issue of material fact exists only if "the evidence would allow a reasonable trier
of fact to find the underlying fact in favor of the party opposing the motion in accordance
with the applicable standard of proof." (Id. at p. 850.)
The issues on a summary judgment motion are framed by the pleadings. (Hilton
K. v. Greenbaum (2006) 144 Cal.App.4th 1406, 1412.) A moving defendant has the
initial burden to show one or more elements of the plaintiff's cause of action cannot be
established, or that there is a complete defense to the claim. (Garcia v. W&W Community
Development, Inc. (2010) 186 Cal.App.4th 1038, 1041.) If the defendant meets this
burden, the burden shifts to the plaintiff to show the existence of a triable issue. (Ibid.)
"Because a summary judgment denies the adversary party a trial, [the motion]
should be granted with caution." (Colores v. Board of Trustees (2003) 105 Cal.App.4th
15
1293, 1305.) We consider all of the evidence and inferences reasonably drawn from the
evidence, and view the evidence in the light most favorable to the opposing party.
(Aguilar, supra, 25 Cal.4th at p. 843.) We review a summary judgment de novo and are
not bound by the trial court's stated reasons. (Blue Shield of California Life & Health Ins.
Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)
II. Analysis
A. Traditional Collateral Estoppel Doctrine Bars This Action
Collateral estoppel (more accurately referred to as "issue preclusion") "prevents
relitigation of previously decided issues," even if the second suit raises different causes of
action. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).)
Under California law, "issue preclusion applies (1) after final adjudication (2) of an
identical issue (3) actually litigated and necessarily decided in the first suit and (4)
asserted against one who was a party in the first suit or one in privity with that party."
(Id. at p. 825.) The issue preclusion bar "can be raised by one who was not a party or
privy in the first suit." (Id. at p. 824.)
These elements were satisfied in this case.
First, there was a final judgment on the merits in the matter terminating Kemper's
parental rights. The determination of an issue by final judgment in a juvenile dependency
proceeding is conclusive upon the parties or their privies in a subsequent suit. (In re
Joshua J. (1995) 39 Cal.App.4th 984, 993.)
Second, Kemper was a party in the dependency proceeding at the time of the N.F.
appeal. Although the focus of a juvenile dependency proceeding is on the child, a parent
16
has the status of a party in the proceeding. (In re I.A. (2011) 201 Cal.App.4th 1484,
1491.) "[T]he court exercises personal jurisdiction over the parents once proper notice
has been given" and has the authority to enter binding orders adjudicating the parents'
rights to, and relationship with, the child. (Ibid.) A parent's status as a party permits the
parent to assert and protect her own constitutional interest in the companionship, care,
custody, and management of her child. (In re Josiah S. (2002) 102 Cal.App.4th 403,
412.)
Third, the identical issue was actually litigated and decided in the N.F. case. "For
purposes of collateral estoppel, an issue was actually litigated in a prior proceeding if it
was properly raised, submitted for determination, and determined in that proceeding.
[Citation.] . . . [Citations.] 'The "identical issue" requirement addresses whether
"identical factual allegations" are at stake in the two proceedings, not whether the
ultimate issues or dispositions are the same. [Citation.]' " (Hernandez v. City of Pomona
(2009) 46 Cal.4th 501, 511-512.) To apply the collateral estoppel bar, the issue must
have been raised and decided in the prior proceeding. (DKN Holdings, supra, 61 Cal.4th
at p. 824.) But collateral estoppel applies "even if some factual matters or legal theories
that could have been presented with respect to that issue were not presented."
(Bridgeford v. Pacific Health Corp. (2012) 202 Cal.App.4th 1034, 1042, italics added;
see Murphy v. Murphy (2008) 164 Cal.App.4th 376, 401-402; Clark v. Lesher (1956) 46
Cal.2d 874, 880-881.)
Kemper focuses her challenge on the identical-issue element. We find this
challenge to be without merit. The causation issue raised (and decided) in N.F. was
17
whether the alleged deficiencies in counsel's performance caused the challenged result
(the termination of parental rights). (N.F., supra, D055922.) This is the same issue that
Kemper seeks to litigate here: whether the same alleged deficiencies in counsel's
performance caused the alleged loss (the termination of parental rights).
To succeed on an ineffective assistance claim, a parent must show counsel's
representation fell below an objective standard of reasonableness and the deficiency
resulted in demonstrable prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180; In
re O.S. (2002) 102 Cal.App.4th 1402, 1407.) To prove prejudice, the parent must show a
" 'reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.' " (In re Jackson W. (2010) 184 Cal.App.4th 247,
261 (Jackson W.).)
These same elements are required for a legal malpractice claim. To prevail on a
professional negligence claim against an attorney, the former client must prove (1) the
breach of the applicable duty of care; and (2) proximate causation between the conduct
and the resulting injury. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095; Younan
v. Caruso (1996) 51 Cal.App.4th 401, 408-409.) The proximate causation element must
be proved under the " 'but for' test, meaning that the harm or loss would not have
occurred without the attorney's malpractice . . . ." (Viner v. Sweet (2003) 30 Cal.4th
1232, 1235, 1241.) In challenging claimed deficient performance in a prior litigation, the
plaintiff must show causation under the case-within-a-case methodology. (Mattco Forge,
Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-833.) The plaintiff must put
on "a trial within a trial to establish that, but for the lawyer's negligence, the client would
18
have prevailed in the underlying action." (United Community Church v. Garcin (1991)
231 Cal.App.3d 327, 334; see Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 970.)
In the N.F. appeal, Kemper argued her attorneys provided her with ineffective
assistance because they: (1) failed to challenge the jurisdictional finding under section
300, subdivision (g); (2) waived appointment of a guardian ad litem on her behalf; and
(3) failed to raise these issues in a writ petition challenging the court's denial of
reunification services and setting of the section 366.26 hearing (see rule 8.452.) (N.F.,
supra, D055922.) We specifically found that even assuming she could prove her counsel
acted below the prevailing standards on these matters, Kemper did not meet her burden to
show prejudice (causation): "More importantly, we cannot say the outcome—termination
of parental rights—would have been different had counsel provided what [Kemper]
believes was effective representation." (Ibid.) We reasoned that Kemper's own conduct
established that she was unwilling and unable to adequately care for her child and thus
she (and not her counsel) was responsible for the court's termination judgment. (Ibid.)
This conclusion bars relitigation of the causation issue. (See Weiner v. Mitchell,
Silberberg & Knupp (1980) 114 Cal.App.3d 39, 48.) In her malpractice complaint,
Kemper asserts the same negligence grounds that she asserted in her ineffective
assistance claim. The complaint identifies two additional acts of negligence: (1)
allowing a case plan to be put in place that "was doomed to fail"; and (2) after Kemper's
parental rights were terminated, counsel "fail[ed] and refus[ed] to file and/or pursue a
writ of habeas corpus" that would have ameliorated the damages. With respect to the
first claim, this is functionally the same as the failure to challenge the termination of
19
reunification services through a rule 8.452 writ petition; both concern the adequacy of
reunification services and compliance with those services. With respect to the failure to
bring a habeas corpus petition after the termination of parental rights, Kemper did not
allege that any of the defendant attorneys represented Kemper during posttermination
proceedings and therefore they cannot be held responsible for actions taken after the
termination judgment.
In any event, the fact a party asserts new legal or factual theories or new evidence
relevant to an issue previously decided does not affect the applicability of the collateral
estoppel bar. (See Roos v. Red (2005) 130 Cal.App.4th 870, 888; Frommhagen v. Bd. of
Supervisors (1987) 197 Cal.App.3d 1292, 1301 [collateral estoppel applies " 'even though
some factual matters or legal arguments which could have been presented in the prior
case . . . were not presented' "]; Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d
481, 490 ["[O]nce an issue is litigated and determined, it is binding in a subsequent action
notwithstanding that a party may have omitted to raise matters for or against it which if
asserted might have produced a different outcome."].)
Kemper contends these principles do not apply here because she was "restricted"
in the type of evidence she could present to support her ineffective-assistance claim. She
notes that in considering an appeal, a court is limited to considering the evidence that was
presented in the court below. (See In re Carpenter (1995) 9 Cal.4th 634, 646
["[a]ppellate jurisdiction is limited to the four corners" of the appellate record].) She thus
argues that she never had a "full and fair opportunity" to litigate the causation issue in the
N.F. appeal.
20
This argument is factually unsupported. The undisputed evidence shows Kemper
did have a full and fair opportunity to litigate the causation (prejudice) issue. Kemper
was represented by independent counsel in the N.F. appeal, who argued that the prior
counsel's representation caused the termination judgment. If counsel had believed
additional relevant evidence was available and necessary to prove the claim, counsel
could have brought a habeas corpus petition. The courts have recognized that a habeas
petition is the correct vehicle to raise an ineffective assistance of counsel claim in
juvenile dependency cases where the record is unclear whether counsel had reasonable
grounds for the challenged actions or nonactions. (See In re Darlice C. (2003) 105
Cal.App.4th 459, 463 (Darlice C.); In re Carrie M. (2001) 90 Cal.App.4th 530, 533-536
(Carrie M.); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658-1672 (Kristin H.); see
also In re Paul W. (2007) 151 Cal.App.4th 37, 53-55; In re Paul W., supra, at pp. 65-72
(conc. opn. of Bamattre-Manoukian, J.).) Kemper does not contend that her appellate
counsel acted below the standard of care in making the decision not to bring a habeas
petition, or that defendants De Soto, Kisiel, or Gulemi were in any way responsible for
this decision.
Moreover, on our review of the entire record, Kemper has not presented any new
facts on the causation element that were not, or could not have been, presented in the
N.F. appeal. A section 388 modification petition serves as an escape mechanism for
parents who seek to present new information to the court that may not have been
available or adequately presented in a prior juvenile dependency hearing. (See In re
Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Jackson W., supra, 184 Cal.App.4th
21
at p. 258.) Kemper's counsel MacGillis (whose competency is not challenged) took full
advantage of this procedure, including calling Kemper and social worker Hood to testify
to their understanding of the relevant events regarding the factual support (or nonsupport)
for the prior jurisdictional findings; the court's failure to appoint a guardian ad litem; the
adequacy of reunification services; and Kemper's compliance with her reunification plan.
All of the information presented in Kemper's current declaration was available to her at
the time of the section 388 hearing, and we necessarily presume counsel (who is not
alleged to have been negligent) presented this information to the court.
After considering the evidence (including the evidence presented at the combined
section 388/366.26 hearing), the N.F. court concluded that even assuming Kemper's prior
counsel acted below the standard of care, these deficiencies did not cause the termination
of her parental rights. (N.F., supra, D055922.) We explained the evidence
overwhelmingly showed that 16-year-old Kemper was not available to parent her young
child for the first year of the child's life. (Ibid.) Kemper's current evidence presented in
opposition to the summary judgment does not create a factual dispute on this
foundational fact. To the extent Kemper now presents evidence that her proffered expert
(a juvenile dependency appellate attorney) and her prior counsel (MacGillis) disagree
with our prior legal and factual conclusions, these attorney opinions are not facts that can
be used to collaterally attack this court's determinations.
22
B. Kemper's Proposed Exception to the Collateral Estoppel Bar is Without Merit
Kemper alternatively contends this court should create an exception to the
collateral estoppel doctrine based on an analogy to the habeas corpus procedure in
juvenile dependency cases.
In support, Kemper first discusses that review of an ineffective assistance of
counsel claim on appeal is restricted to the appellate record (essentially the evidence
presented in the dependency proceedings), whereas the standards applicable to a habeas
corpus petition in a juvenile proceeding allow the parent to submit extra-record evidence
relevant to the issues. (See Darlice C., supra, 105 Cal.App.4th at p. 463; In re Merrick
V. (2004) 122 Cal.App.4th 235, 255.) Kemper next notes that collateral estoppel
principles generally do not bar a habeas corpus petition in a criminal action after the
litigation of the issue on appeal because additional evidence is permitted in a habeas
proceeding. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) Kemper then
posits that under this "same legal reasoning," an unsuccessful claim of ineffective
assistance of counsel decided on direct appeal in a juvenile dependency proceeding
should not bar a later civil malpractice claim. Put otherwise, Kemper maintains that if a
party is permitted to relitigate an issue by producing additional evidence supporting a
habeas corpus petition filed in a juvenile dependency action, the same party should be
permitted to relitigate the issue by instead producing the additional evidence in a
malpractice action.
We reject this argument. The chain of reasoning is flawed because it is
inconsistent with the specific habeas corpus rules applicable to a juvenile dependency
23
proceeding. Additionally, the proposed rule is incompatible with fundamental public
policies regarding finality of judgments, particularly those involving dependent children.
First, Kemper's assertion that a malpractice action is analogous to a habeas corpus
petition for purposes of collateral estoppel ignores the different factual contexts and
policy objectives of the two types of actions. Permitting a parent to challenge the
effectiveness of his or her counsel in a habeas petition seeks to protect a parent's
fundamental rights by allowing a full examination of the relevant facts before termination
of rights is final. The termination of parental rights implicates a fundamental liberty
interest (Marilyn H., supra, 5 Cal.4th at p. 306), and therefore "significant due process
safeguards have been built into the dependency scheme (id. at p. 307), including a right to
court-appointed counsel for a parent who cannot afford to retain counsel . . . ." (In re
James F. (2008) 42 Cal.4th 901, 904.) "All parties who are represented by counsel at
dependency proceedings shall be entitled to competent counsel." (§ 317.5, subd. (a); see
rule 5.660(d); In re M.P. (2013) 217 Cal.App.4th 441, 454.) This right to counsel
"include[s] the [parent's] right to seek review of claims of incompetence of counsel"
(Kristin H., supra, 46 Cal.App.4th at p. 1662), which necessarily encompasses the
parent's right to challenge counsel's competency in a habeas petition by bringing in new
evidence (id. at pp. 1658-1667).
But to ensure the child's welfare is protected, the parent must file the habeas
corpus petition within the time deadlines for filing an appeal to the particular juvenile
court order or judgment. (Carrie M., supra, 90 Cal.App.4th at pp. 533-534; see Kristin
H., supra, 46 Cal.App.4th at p. 1667.) This timeline protects the significant need for
24
finality in the dependency system. The timeliness rule also reflects that the habeas
procedure in juvenile dependency actions exists not only to safeguard the parent's
fundamental rights but also to ensure the correctness of the result—that the
judgment/order promotes the child's welfare. " 'If counsel's ineffective representation of
the parent has resulted in an inappropriate termination of the parent-child relationship, the
child may have an interest equal to that of the parent's in its restoration.' " (Kristin H.,
supra, 46 Cal.App.4th at p. 1664; see In re Emilye A. (1992) 9 Cal.App.4th 1695, 1707,
fn. 9.) Without a fair hearing (with adequate representation), there may exist questions
regarding whether the child's best interests were served. (Ibid.) "[R]eversal of an order
in a dependency proceeding [because of incompetency of counsel] . . . does not preclude
further dependency proceedings in juvenile court . . . ." (In re Emilye A., supra, 9
Cal.App.4th at p. 1707, fn. 9.) But it does "require[ ] that the proceedings be reconducted
. . . ." (Ibid.; accord, In re Paul W., supra, 151 Cal.App.4th at p. 71 (conc. opn. of
Bamattre-Manoukian, J.).)
A legal malpractice claim is different. Allowing a parent to relitigate the
competency-of-counsel issue in a civil action does not impact the result of the prior
case—parental rights would remain terminated and no new hearings would be conducted.
A malpractice action effectuates the purposes of tort law—to fully compensate a party for
his or her losses—but has no relationship to the core purpose of the juvenile dependency
system: to ensure a child's welfare is protected. The reasons for allowing additional
evidence to be presented through a habeas petition do not exist in a civil malpractice
action.
25
Kemper argues that fairness requires courts to provide a choice to parents who
unsuccessfully assert an incompetence of counsel claim on appeal: the parent can either
file a habeas corpus petition or a civil malpractice claim. The argument is unsound.
A primary purpose of the collateral estoppel doctrine is to prevent inconsistent
judicial rulings. (See People v. Lawley (2002) 27 Cal.4th 102, 163.) There is no
possibility of inconsistent rulings with a habeas corpus petition asserting an
incompetence-of-counsel claim because the petition must be timely brought as part of the
juvenile dependency proceeding. (Carrie M., supra, 90 Cal.App.4th at pp. 533-534.)
That is not the case with a malpractice action. Allowing a malpractice plaintiff to
collaterally challenge factual findings reached in a prior parental termination action could
result in inconsistent judicial conclusions "contraven[ing] ' "a strong judicial policy
against the creation of two conflicting resolutions arising out of the same or identical
transaction." [Citation.]' " (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1204
(Coscia).) This inconsistency is particularly troubling in the juvenile dependency
context, where the outcome could result in a termination of parental rights that could be
later adjudged by a jury to be the result of incompetence of counsel. Allowing for this
potential conflict interferes with the need for stability in family relationships, finality in
judicial decisions, and respect for our judicial system.
Additionally, any rule that would encourage parents to avoid a habeas corpus
petition in favor of obtaining damages for their claimed losses does not serve the interests
of the affected children. A child's best interests are promoted if a parent has competent
counsel. (See Kristin H., supra, 46 Cal.App.4th at p. 1664; In re Emilye A., supra, 9
26
Cal.App.4th at p. 1707, fn. 9.) Thus, it is important that parents utilize the habeas corpus
procedure (before parental rights are terminated) if there is a viable basis for such a claim
and extra-record evidence is necessary to prove the claim. There is no benefit to a child
if a parent (whose parental rights were terminated) successfully proves in a civil
malpractice action that he or she was not properly represented. The parent obtains a
monetary judgment, but the judgment has no effect on the child's wellbeing.
Further, the requirement that a parent is bound by an appellate ruling will prevent
frivolous malpractice claims. The Legislature included numerous safeguards in the
juvenile dependency scheme to prevent the erroneous termination of parental rights,
including when a " 'parent [was] . . . poorly represented.' " (In re Janee J. (1999) 74
Cal.App.4th 198, 208; see Marilyn H., supra, 5 Cal.4th at pp. 307-309.) Given the
personal and emotional issues arising from a parental termination, it is not uncommon for
a parent to blame his or her attorney for the outcome. Permitting a parent to bring a civil
malpractice action to relitigate a factual finding made in the juvenile proceeding would
waste judicial resources and likely lead to a multitude of meritless actions.
The Legislature structured the juvenile dependency system to provide trained
juvenile court judges with broad discretion in making factual and legal conclusions
regarding a child's best interest and in evaluating a parent's ability to care for his or her
child in a safe manner. In this role, a court has the ability and opportunity to assess
counsel's performance and to protect the needs of children and their parents if they are
not being properly represented. Allowing a jury to second-guess this factual
27
determination in a legal malpractice action does not represent beneficial public policy
consistent with the dependency statutes.
Finally, our conclusion is supported by collateral estoppel principles applicable
when a criminal defendant brings a legal malpractice claim against his or her former
defense attorney.
As in juvenile dependency proceedings, a criminal defendant may bring an
ineffective assistance of counsel claim by appeal or by habeas corpus petition, but the
preferred method is by habeas because of the rules permitting extra-record evidence to be
submitted on the issue of the counsel's reasons for the challenged action. (People v.
Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) An appellate court's rejection of a
criminal defendant's incompetency challenge on appeal generally does not preclude a
subsequent habeas petition. (Id. at p. 267.)
But unlike Kemper's proposed rule, the California Supreme Court held that to
prove malpractice by a criminal defense attorney, the former criminal defendant must
satisfy the elements of a civil malpractice claim and prove his or her actual innocence.
(Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536-545.) Of particular relevance
here, the high court also later held that to "establish actual innocence in a criminal
malpractice action," the individual convicted of the criminal offense must first "obtain
reversal of his or her conviction, or other exoneration by postconviction relief[.]"
(Coscia, supra, 25 Cal.4th at pp. 1199-1201.) The Supreme Court explained: "[T]he
requirement of exoneration by postconviction relief protects against inconsistent
verdicts—such as a legal malpractice judgment in favor of a plaintiff whose criminal
28
conviction remains intact—that would contravene ' "a strong judicial policy against the
creation of two conflicting resolutions arising out of the same or identical transaction."
[Citation.]' [Citation.] This requirement also promotes judicial economy. Many issues
litigated in the effort to obtain postconviction relief, including ineffective assistance of
counsel, would be duplicated in a legal malpractice action; if the defendant is denied
postconviction relief on the basis of ineffective assistance of counsel, collateral estoppel
principles may operate to eliminate frivolous malpractice claims." (Id. at p. 1204.)
Accordingly, "an intact conviction precludes recovery in a legal malpractice action."
(Ibid.)
The same reasons apply here to preclude a later malpractice action unless and until
a prior finding of no causation is successfully challenged in the prior dependency action.
C. Kemper's Additional Arguments
Kemper alternatively contends defendants are judicially estopped from asserting
the collateral estoppel bar based on statements made in the appellate oral argument in the
N.F. appeal. During the oral argument, the County's counsel asserted that this court
could not presume incompetence of counsel "absent a record which maybe could have
been brought via habeas corpus, which would give us declarations as to why counsel did
what counsel did." Additionally, Kemper directs us to a remark by one of the appellate
justices to Kemper's appellate counsel, stating "Looks like you're planning on filing a
habeas."
These statements do not preclude defendants from asserting collateral estoppel in
the civil malpractice action. First, other than the County, none of the defendants were
29
parties to the prior action and therefore the County counsel's statements cannot bind
them. Second, as discussed above, the potential availability of a habeas corpus remedy to
bring an ineffective assistance claim does not support an argument that a party has the
right to avoid the collateral estoppel bar in a later civil malpractice action.
Kemper also challenges the trial court's blanket evidentiary rulings. Although we
agree that blanket rulings are generally not helpful to the parties or to the reviewing court
(Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447),
we need not discuss the evidentiary rulings in detail because they were not prejudicial to
Kemper. As discussed above, even assuming we consider the evidence proffered by
Kemper, the summary judgment was proper. Additionally, because the County's
evidence was mainly documents from the prior N.F. action, the court properly overruled
Kemper's objections.5
5 Both parties discuss this court's prior unpublished appellate opinion involving
Kemper's separate federal civil rights action against social workers and police officers
involved with the dependency proceeding. (Kemper v. County of San Diego (Apr. 22,
2013, D059637).) Because this prior opinion resolved different issues and causes of
action, the opinion is not relevant under doctrines of law of the case, collateral estoppel,
or res judicata. As such, it may not be cited or relied upon by the parties. (Rule 8.1115.)
In any event, our decision here is consistent with the prior Kemper opinion.
30
DISPOSITION
Judgment affirmed. The parties to bear their own costs on appeal.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
31
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305 F.Supp.2d 410 (2004)
John MACERA, Plaintiff,
v.
Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.
No. CIV.A. 02-1473-JJF.
United States District Court, D. Delaware.
February 20, 2004.
*411 *412 Gary C. Linarducci, Esquire of Gary C. Linarducci, New Castle, DE, for Plaintiff.
Colm F. Connolly, Esquire, United States Attorney, and Patricia C. Hannigan, Esquire, Assistant United States Attorney, of the Office of the United States Attorney, Wilmington, DE Of Counsel: James A. Winn, Esquire, Regional Chief Counsel, and Margaret J. Krecke, Esquire, Assistant Regional Counsel of the Social Security Administration, Philadelphia, PA, for Defendant.
MEMORANDUM OPINION
FARNAN, District Judge.
Presently before the Court is an appeal pursuant to 42 U.S.C. § 405(g), filed by Plaintiff, John L. Macera, seeking review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Plaintiff has filed a Motion For Summary Judgment (D.I.8) requesting the Court to enter judgment in Plaintiff's favor or in the alternative to remand this matter to the A.L.J. In response to Plaintiff's Motion, Defendant has filed a Cross-Motion For Summary Judgment (D.I.10) requesting the Court to affirm the Commissioner's decision. For the reasons set forth below, Defendant's Motion For Summary Judgment will be granted and Plaintiff's Motion For Summary Judgment will be denied. The decision of the Commissioner dated August 12, 1999 will be affirmed.
BACKGROUND
I. Procedural Background
Plaintiff has filed a total of three applications for disability insurance benefits ("DIB"). Plaintiff's first application was filed on May 5, 1989, alleging disability beginning December 31, 1988. This application was denied initially and upon reconsideration, and further action with respect to this application was not taken.
Plaintiff's second application was filed on December 17, 1991, alleging disability beginning March 7, 1990. This application was denied initially and upon reconsideration and a hearing was requested. Following the hearing, the A.L.J. denied the application, and the United States District Court for the Eastern District of Pennsylvania affirmed the A.L.J.'s decision.
Plaintiff's third application, which was filed on March 10, 1998, is the subject of this appeal. By his application Plaintiff alleged that he was disabled since August 20, 1988, because of high blood pressure, angina, atrial fibrillation, diabetes, knee problems, arthritis, a herniated disc in his neck, carpal tunnel syndrome, a hernia, and a hearing problem. (Tr. 101-104, 126). Plaintiff concedes that res judicata applies by virtue of his previously filed applications to the periods from December *413 31, 1988 through February 21, 1990 and March 7, 1990 through May 3, 1993. For purposes of the instant application, Plaintiff acknowledges that he must show that he became disabled prior to December 31, 1995, the date on which his insured status expired (Tr. 132). Plaintiff contends that he is entitled to disability benefits beginning on May 4, 1993.
With respect to the administrative process, Plaintiff's application was denied initially and upon reconsideration. (Tr. 83-87, 90-93). Plaintiff filed a timely request for a hearing, and the A.L.J. held a hearing on February 22, 1999. (Tr. 33-80). Plaintiff was represented by counsel at the hearing and both he and his wife testified. Following the hearing, the A.L.J. issued a decision on August 12, 1999, denying Plaintiff's claim. (Tr. 15-27). Plaintiff filed an appeal, and the Appeal's Council denied review. (Tr. 8-9). Accordingly, the A.L.J.'s decision became the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).
After completing the process of administrative review, Plaintiff filed the instant civil action pursuant to 42 U.S.C. § 405(g), seeking review of the A.L.J.'s decision denying his claim for DIB. In response to the Complaint, Defendant filed an Answer (D.I.5) and the Transcript (D.I.6) of the proceedings at the administrative level.
Thereafter, Plaintiff filed a Motion For Summary Judgment and Opening Brief (D.I.9) in support of the Motion. In response, Defendant filed a Cross-Motion For Summary Judgment and a combined Opening and Answering Brief (D.I.11) requesting the Court to affirm the A.L.J.'s decision. Thereafter, Plaintiff filed a Reply Brief (D.I.12) to Defendant's Cross-Motion For Summary Judgment. Accordingly, this matter is fully briefed and ripe for the Court's review.
II. Factual Background
A. Plaintiff's Medical History, Condition and Treatment
As of the date he was last insured, Plaintiff was forty-four years old. Plaintiff has a high school education and became a registered plumber. (Tr. 42, 131). During his apprenticeship, Plaintiff was electrocuted, and Plaintiff speculates that the electrocution resulted in his affliction with atrial fibrillation, although doctors have indicated to Plaintiff that they are unsure of its cause. (Tr. 21, 60).
Between November 1973 and August 1988, Plaintiff worked as foreman of a utility group, which maintained the hearing, air-conditioning and power systems at City Hall in Philadelphia. (Tr. 131). Plaintiff's work was heavy because he had to install pumps and pipes. (Tr. 43). Plaintiff stopped working for the city in August 1988, when he was 37 years old. Plaintiff receives a city disability pension of $271.14 per week ($14,099 year).[1] (Tr. 100, 44).
1. Plaintiff's Heart Condition
Plaintiff's primary care physician during the relevant time frame was John R. Walsh, D.O. Plaintiff was diagnosed with atrial fibrillation, and Plaintiff often complained to his physician of palpitations, rapid heart beat or chest pain. However, when Dr. Walsh examined Plaintiff after these episodes, he often noted normal heart sounds. (Tr. 201, 200, 193, 195, 185, 186, 181, 174, 172). Dr. Walsh also noted *414 on several occasions that Plaintiff's atrial fibrillation was stable. (Tr. 191, 187, 176). Although there were occasional highs and lows, Dr. Walsh's progress notes indicate that Plaintiff's blood pressure was primarily within the normal range of about 130/80 with medication. During this time, Plaintiff was 5'8" tall and weighed between 220 and 230 pounds.
Dr. Walsh referred Plaintiff to Jack Garden, M.D., F.A.C.C., a cardiologist, who treated Plaintiff for intermittent atrial fibrillation between November 1994 and January 1996. Plaintiff first presented to Dr. Garden in November 1994 with complaints of palpitations during the night. Dr. Garden noted that a cardiac catheterization and a thallium exercise stress test were normal. (Tr. 401, 492-495). Plaintiff's blood pressure was 140/100 and his heart was in normal sinus rhythm. (Tr. 402). An electrocardiogram showed atrial fibrillation and an echocardiogram showed left ventricular hypertrophy (LVH) with normal wall motion, top normal left atrium and right heart dimensions. (Tr. 402). Dr. Garden recommended that Plaintiff avoid alcohol and caffeine, lose weight and add Lopressor to his medication regimen. (Tr. 402).
In January 1995, Plaintiff reported to Dr. Garden that he was feeling much better and had palpitations less than once a week lasting for about a minute at a time. (Tr. 335). Plaintiff's blood pressure was 140/100, and his cardiac exam was unchanged. (Tr. 335). Dr. Garden prescribed one aspirin a day and increased his dosage of Lopressor. Dr. Garden also reiterated his recommendations for weight loss and dietary restrictions.
In February 1995, Dr. Garden noted that Plaintiff was "looking and feeling extraordinary well." (Tr. 334). Plaintiff had no cardiac symptoms and had been "quite active including a very much enjoyed trip to Las Vegas last month." (Tr. 334). Plaintiff lost 3 pounds, and his blood pressure was 130/80. Plaintiff's cardiopulmonary examination was "unremarkable," and an EKG showed sinus bradycardia. (Tr. 334). Dr. Garden indicated that he was "very pleased with how he is doing." (Tr. 334). Plaintiff's heart rate was 50, and there was no evidence of hemodynamic or symptomatic compromise. Dr. Garden again advised Plaintiff to control his diet and weight, so that his medications could be tapered back. (Tr. 334).
At his March 1995 visit with Dr. Garden, Plaintiff indicated that he had palpitations two weeks earlier, but that his symptoms abated with an increase in his Lopressor. Plaintiff's blood pressure was 140/90 and his cardiac examination was "unremarkable." (Tr. 333).
In July 1995, Dr. Garden noted that Plaintiff was looking and feeling well and that he was almost completely asymptomatic with no palpitations, chest pain, shortness of breath or light headedness. (Tr. 330). Plaintiff lost 9 pounds, and his blood pressure was 100/60. Dr. Garden indicated that he was "delighted with how John was doing" and decreased his dose of Lopressor in light of his lower blood pressure and asymptomatic status. (Tr. 330).
On January 17, 1996, Plaintiff told Dr. Garden that he had episodes of palpitations at Christmas time when he had not been taking his Lopressor. (Tr. 331). Plaintiff gained 12 pounds and his blood pressure was 140/86 in the right arm and 140/94 in the left arm. (Tr. 331). Plaintiff's cardiac examination remained unremarkable and his EKG showed normal sinus rhythm. Dr. Garden noted his belief that Plaintiff's symptoms suggested an "ischemic trigger" and he set up an exercise echocardiogram. (Tr. 331-332). Plaintiff's February 12, 1996 echocardiogram exercise stress test showed good exercise *415 tolerance, normal heart wall motion on exercise and rest and no ischemic changes, ruling out an "ischemic trigger." (Tr. 506). Plaintiff exercised to 12.9 METS.[2] (Tr. 506). Dr. Garden continued to stress that it was urgent for Plaintiff to be compliant with his medications and to control his diet. (Tr. 332).
In June 1996, six months after the expiration of his insured status, Plaintiff was hospitalized at Methodist Hospital for two days with complaints of angina and atrial fibrillation. (Tr. 397-398). Normal cardiac enzymes ruled out a heart attack and an echocardiogram was within normal limits. (Tr. 398, 399). A thallium exercise stress test indicated some inferior wall abnormalities, so Plaintiff was transferred to Jefferson Hospital for cardiac catheterization. (Tr. 398). The results of the cardiac catheterization were normal and showed normal heart wall motion, no narrowing (stenoses) of the coronary arteries, normal left ventricular function and an ejection fraction of 75%. (Tr. 497).
In April 1998, more than two years after Plaintiff's insured status expired, Plaintiff underwent another exercise stress test. The results of this test showed normal blood pressure and no arrhythmia, and Plaintiff exercised to 19.2 METS. (Tr. 412).
2. Plaintiff's Knee Condition
During the relevant time frame, Plaintiff also presented to Dr. Walsh with right knee pain on several occasions (Tr. 196, 187, 174, 173), especially when he was driving a lot. (Tr. 177). Physical therapy alleviated some of Plaintiff's pain (Tr. 185), and Dr. Walsh referred Plaintiff to Dr. Joseph Shatouhy, an orthopedist. In December 1995, Dr. Shatouhy noted swelling in the popliteal space associated with tenderness over the lateral joint line, but no apparent instability of the collateral ligament. (Tr. 317). Dr. Shatouhy ordered x-rays, which showed degenerative changes with some narrowing of the medial joint space (Tr. 264). An MRI of Plaintiff's knee showed degenerative changes and a horizontal tear of the medial meniscus with no ligament or tendon laxity. (Tr. 265).
In February 1995, Dr. Shatouhy discerned no palpable effusion in the right knee, but noted some tenderness. Dr. Shatouhy advised Plaintiff that he could postpone arthroscopy to correct the meniscal tear for as long as he could tolerate any pain he was experiencing. (Tr. 317). Plaintiff eventually had knee surgery in 1998.
3. Plaintiff's diabetes
Plaintiff was also diagnosed with diabetes mellitus. Dr. Walsh prescribed oral medications to treat this condition. (Tr. 171-201). Plaintiff's blood glucose levels were elevated during the relevant time frame, but insulin therapy was not prescribed. (Tr. 51). Dr. Walsh referred Plaintiff to Dr. Albert Maguire, an opthalmologist, who treated Plaintiff for non-proliferative diabetic retinopathy between March 1995 and November 1996. (Tr. 338-343). In March 1995, Dr. Maguire noted an area of macular edema in the left eye. (Tr. 344). By April 1995, Plaintiff underwent successful and uncomplicated laser treatment on the left eye. By June 1995, Plaintiff's macular swelling resolved *416 and he had no progressive retinopathy. (Tr. 342). Plaintiff had no recurrence of macular edema. Dr. Walsh indicated that Plaintiff's vision was 20/15 in the left eye with glasses. (Tr. 188). Despite these problems, Plaintiff has indicated that he has never had any vision problems. (Tr. 52, 65).
4. Plaintiff's Hearing Loss
In 1991, Dr. Walsh referred Plaintiff to Dr. Bruce Romanczuk, an otolaryngologist, for complaints of hearing loss. (Tr. 466-468). Plaintiff underwent an audiogram which showed moderate lower frequency hearing loss and sever high frequency hearing loss. (Tr. 468). In June 1994, Plaintiff presented to Dr. Romanczuk with complaints of occasional tinnitus. Dr. Romanczuk noted normal ear canals, tympanic membranes and tuning fork testing. Dr. Romanczuk diagnosed Plaintiff with high frequency sensorineural hearing loss (Tr. 466), but Plaintiff's speech discrimination was 100%. (Tr. 478).
5. Plaintiff's Other Ailments
Between May 1993 and December 31, 1995, Plaintiff reported to Dr. Walsh with various isolated complaints. Plaintiff complained to Dr. Walsh of a headache on January 5, 1994 (Tr. 194), left calf swelling on March 10, 1994 (Tr. 192), low back pain on January 3, 1995 (Tr. 184), and neck pain on August 30, 1994 and October 6, 1995 (Tr. 190, 175).
6. Medical Opinions in the Record
On April 4, 1995, Dr. Walsh wrote a letter addressed "To Whom It May Concern." In that letter, Dr. Walsh opined that Plaintiff was disabled due to diabetes mellitus with neuropathy and retinopathy and atrial fibrillation with recurrent chest pain. (Tr. 510).
In May and June 1998, two state agency physicians reviewed Plaintiff's medical records for the period between May 4, 1993 and December 31, 1995. Both physicians concluded that Plaintiff was able to perform light work. (Tr. 378-385, 387-394).
On February 18, 1999, three years after Plaintiff's insured status expired, Dr. Garden wrote a note at the request of Plaintiff's counsel that Plaintiff had cardiac conduction system disease which was manifested by cardiac arrhythmia or irregular heart rhythms that required intensive medication for therapy. (Tr. 502). Dr. Garden also opined that Plaintiff might need a pace maker in the near future. On March 1, 1999, Dr. Walsh also wrote a note at the request of counsel stating that Plaintiff had been disabled during the period of 1993 through 1995. (Tr. 509).
On February 15, 1999, Drs. Walsh and Gardener signed identical functional capacity assessment forms. In these forms, the doctors indicated that Plaintiff could only sit for one hour due to knee pain, could never stand and walk and could not lift or carry anything in an eight-hour workday. (475-476, 477-478).
B. The A.L.J.'s Decision
On February 22, 1999, the A.L.J. conducted a hearing on Plaintiff's application for benefits. At the hearing, Plaintiff was represented by counsel. Plaintiff and his wife testified at the hearing about his condition between May 4, 1993 and December 31, 1995. Although Plaintiff had difficulty remembering this time frame, he testified that he thought he had knee pain once a month (Tr. 46), palpitations every day for 10-60 minutes (Tr. 50), and headaches once a week for a day or so (Tr. 54). Plaintiff also testified that he spent a lot of time in bed (Tr. 55) and that he had terrible stiff necks lasting for days (Tr. 56), tingling and numbness in his hands on *417 awakening that lasted for 30 minutes. Plaintiff also testified that his blood pressure was controlled, but that he had hearing problems since 1990, felt dizzy once or twice a week for 15-20 minutes (Tr. 61) and had neck and low back pain that limited his ability to sit. (Tr. 72).
Plaintiff's wife indicated that she could not testify regarding her husband's activities during the week, because she worked full time. However, she testified that his activities were limited on the weekends. (Tr. 78). Plaintiff's wife also testified that Plaintiff had several migraines that kept him in bed all day (Tr. 75-76) and that he did not help her much because of his fibrillation attacks and knee pain. (Tr. 77).
In her decision dated August 12, 1999, the A.L.J. concluded that on the date his insured status expired, December 31, 1995, the medical evidence for the time frame between May 4, 1993 to December 31, 1995 established that Plaintiff had severe knee and cardiac impairments, as well as nonsevere diabetes, hypertension, hearing, neck and visual impairments, but that he did not have an impairment or combination of impairments listed in or equal to one listed in Appendix 1, Subpart P, Regulations No. 4. The A.L.J. also concluded that during this time period, Plaintiff retained the residual functional capacity to perform the full range of sedentary work. Applying the Medical Vocational Guidelines in light of Plaintiff's condition, his residual functional capacity, age, education and work experience, the A.L.J. concluded that Plaintiff was not disabled as of the date his insured status expired.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), findings of fact made by the Commissioner of Social Security are conclusive, if they are supported by substantial evidence. Accordingly, judicial review of the Commissioner's decision is limited to determining whether "substantial evidence" supports the decision. Monsour Medical Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir.1986). In making this determination, a reviewing court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of record. Id. In other words, even if the reviewing court would have decided the case differently, the Commissioner's decision must be affirmed if it is supported by substantial evidence. Id. at 1190-91.
The term "substantial evidence" is defined as less than a preponderance of the evidence, but more than a mere scintilla of evidence. As the United States Supreme Court has noted substantial evidence "does not mean a large or significant amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 555, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).
With regard to the Supreme Court's definition of "substantial evidence," the Court of Appeals for the Third Circuit has further instructed, "A single piece of evidence will not satisfy the substantiality test if the [Commissioner] ignores or fails to resolve a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence ... or if it really constitutes not evidence but mere conclusion." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983). Thus, the substantial evidence standard embraces a qualitative review of the evidence, and not merely a quantitative approach. Id.; Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981).
DISCUSSION
I. Evaluation Of Disability Claims
Within the meaning of social security law, a "disability" is defined as the inability *418 to do any substantial gainful activity by reason of any medically determinable physical or mental impairment, which can be expected to result in death, or which has lasted or can be expected to last, for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). To be found disabled, an individual must have a "severe impairment" which precludes the individual from performing previous work or any other "substantial gainful activity which exists in the national economy." 20 C.F.R. § 404.1505. In order to qualify for disability insurance benefits, the claimant must establish that he or she was disabled prior to the date he or she was last insured. 20 C.F.R. §§ 404.131, Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.1990). The claimant bears the initial burden of proving disability. 42 U.S.C. § 423(d)(5).
In determining whether a person is disabled, the Regulations require the A.L.J. to perform a sequential five-step analysis. 20 C.F.R. § 404.1520. In step one, the A.L.J. must determine whether the claimant is currently engaged in substantial gainful activity. In step two, the A.L.J. must determine whether the claimant is suffering from a severe impairment. If the claimant fails to show that his or her impairment is severe, he or she is ineligible for benefits. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999).
If the claimant's impairment is severe, the A.L.J. proceeds to step three. In step three, the A.L.J. must compare the medical evidence of the claimant's impairment with a list of impairments presumed severe enough to preclude any substantial gainful work. Id. at 428. If the claimant's impairment meets or equals a listed impairment, the claimant is considered disabled. If the claimant's impairment does not meet or equal a listed impairment, the A.L.J.'s analysis proceeds to steps four and five. Id.
In step four, the A.L.J. is required to consider whether the claimant retains the residual functional capacity to perform his or her past relevant work. Id. The claimant bears the burden of establishing that he or she cannot return to his or her past relevant work. Id.
In step five, the A.L.J. must consider whether the claimant is capable of performing any other available work in the national economy. At this stage the burden of production shifts to the Commissioner, who must show that the claimant is capable of performing other work if the claimant's disability claim is to be denied. Id. Specifically, the A.L.J. must find that there are other jobs existing in significant numbers in the national economy, which the claimant can perform consistent with the claimant's medical impairments, age, education, past work experience and residual functional capacity. Id. In making this determination, the A.L.J. must analyze the cumulative effect of all of the claimant's impairments. At this step, the A.L.J. often seeks the assistance of a vocational expert. Id. at 428.
II. Whether The A.L.J.'s Decision Is Supported By Substantial Evidence
By his Motion, Plaintiff contends that the A.L.J.'s decision is erroneous for two reasons. First, Plaintiff contends that the A.L.J. improperly rejected the opinions of Plaintiff's treating physicians. Second, Plaintiff contends that the A.L.J. improperly relied solely upon the Medical-Vocational Guidelines to conclude that Plaintiff was not disabled. The Court will consider each of Plaintiff's arguments in turn.
A. Whether The A.L.J. Erred In Rejecting The Opinions Of Plaintiff's Treating Physicians
The opinion of a treating physician is entitled to controlling weight when it is *419 supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other evidence in the record. Russum v. Massanari, 2002 WL 775240, *5 (D.Del. April 12, 2002); 20 C.F.R. § 404.1527(d)(2). However, the A.L.J. may reject such an opinion, if he or she adequately explains the reasons for doing so on the record. Id.
In this case, each of Plaintiff's treating physicians, Dr. Walsh and Dr. Garden, completed a residual functional capacity assessment for Plaintiff at the request of counsel, one week before Plaintiff's hearing and three years after Plaintiff's disability insured status expired. These assessments were substantively identical in their conclusions and do not indicate that they pertain to the time period at issue in this case, i.e. May 4, 1993 to December 31, 1995.
In her opinion, the A.L.J. considered these opinions, but concluded that they were not supported by the medical evidence in the record and were inconsistent with the contemporaneous treatment notes of both physicians. For example, Dr. Garden was Plaintiff's cardiologist and he never treated Plaintiff for his knee complaints, yet Dr. Garden opined that Plaintiff's limitations were attributable to his knee pain. Further, the record indicates that while Plaintiff had some knee pain, his condition was not very severe or frequent and did not necessitate surgery until 1998. As for Plaintiff's atrial fibrillation, neither Dr. Garden or Dr. Walsh attributed any of Plaintiff's limitations to this condition, and the contemporaneous treatment notes of both physicians during the relevant time indicate that Plaintiff's condition had improved and was controlled well with medication, that his cardiac exams were normal and that he presented infrequently with complaints related to his heart problem. Further, with respect to such "check the box" or "fill in the blank" forms, the Third Circuit has specifically recognized that such assessments are considered "weak evidence at best," particularly where, as here, they are unaccompanied by a thorough written report and are retrospective opinions which are unsupported by evidence of actual disability during the relevant time frame. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993); Potter v. Secretary of HHS, 905 F.2d 1346, 1348-1349 (10th Cir.1990) (recognizing that treating physician may give retrospective diagnosis, but stressing that evidence of actual disability prior to expiration of insured status is required, particularly where disease is progressive).
As for the 1995 opinion of Dr. Walsh that Plaintiff was disabled, the A.L.J. also considered this opinion, but concluded that it was not supported by the record. In his letter, Dr. Walsh opined that Plaintiff was disabled because of diabetes mellitus with neuropathy and retinopathy and by atrial fibrillation with recurrent chest pain. As explained above, the progress notes of Dr. Walsh indicated that Plaintiff had few complaints relevant to his atrial fibrillation during the relevant time period. In addition, there is no evidence in the record that Plaintiff had disabling diabetic neuropathy. Rather, the record indicates that by April 1995, Plaintiff's treating opthalmologist reported that Plaintiff had successful laser treatment for non-proliferative diabetic retinopathy with resolution of macular swelling. (Tr. 343). Plaintiff's opthalmologist also reported that Plaintiff had no complications as a result of the treatment, and there is no record evidence of any recurrence. (Tr. 341-338). Further, Plaintiff testified at the hearing that even though he was diagnosed with diabetic retinopathy, he never had any vision problems and that his condition was something that was discovered by the doctors as a result of a routine eye examination.
*420 It is well-established that a physician's conclusory statements that a claimant is "disabled" or "unable to work" are not binding on the Commissioner, and the Commissioner is not required to give special significance to the source of such an opinion. 20 C.F.R. § 404.1527(e)(1), (3). Further, a physician's diagnosis of an impairment is not sufficient to establish disability unless the impairment is accompanied by functional limitations that preclude working. Petition of Sullivan, 904 F.2d 826, 845 (3d Cir.1990). In his 1995 opinion, Dr. Walsh never identified any functional limitations that would preclude Plaintiff from working, and as discussed above, the record contained no such limitations.
In sum, the A.L.J. thoroughly considered the opinions of Dr. Walsh and Dr. Garden in light of the record evidence and properly concluded that these opinions were not entitled to significant weight. The A.L.J. adequately explained her reasons for rejecting these opinions, and the Court concludes that the findings of the A.L.J. are supported by substantial evidence. Accordingly, the Court concludes that the A.L.J. did not err in her assessment of the opinions of Plaintiff's treating physicians.
B. Whether The A.L.J. Erred In Applying The Medical Vocational Guidelines To Plaintiff's Claim
The Medical Vocational Guidelines or "Grids" may be used at step five of the sequential analysis to determine whether a claimant can perform other work. See Jesurum v. Sec'y of Health & Human Services, 48 F.3d 114, 117 (3d Cir.1995) (citing Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983)). In applying the Grids, the A.L.J. is required to take into consideration the claimant's age, educational level, previous work experience, and residual functional capacity. See 20 C.F.R. § 404, subpt. P, app. 2 (1999). If the claimant suffers from significant non-exertional limitations, such as pain or psychological difficulties, the A.L.J. must determine, based on the evidence in the record, whether these non-exertional limitations further limit the claimant's ability to work. See 20 C.F.R. § 404.1569a(c)-(d). If they do not, the A.L.J. may properly rely on the Grids. If, however, the claimant's non-exertional limitations are substantial, the A.L.J. may only use the Grids as a "framework," and the testimony of a vocational expert is ordinarily used to determine if the claimant can work. See 20 C.F.R. § 404, subpt. P, app. 2, § 200(d)-(e); Santise v. Schweiker, 676 F.2d 925, 935 (3d Cir.1982).
Reviewing the A.L.J.'s decision in light of the applicable law, the Court concludes that the A.L.J. did not err in applying the Grids to Plaintiff's claim. Plaintiff contends that the A.L.J. failed to take into account his atrial fibrillation when she applied the Grids, but Plaintiff's contention is belied by the opinion of the A.L.J. It is apparent that the A.L.J. thoroughly considered the evidence related to Plaintiff's heart condition, as well as Plaintiff's other physical conditions, and concluded that there was no evidence in the record of substantial non-exertional limitations which would preclude Plaintiff from performing the requirements of sedentary work during the relevant time frame.[3]*421 Based on the record, the Court agrees with the A.L.J.'s analysis and concludes that it is supported by the record evidence, which shows that while Plaintiff suffered some instances of palpitations in the period between May 1993 and December 31, 1995, Plaintiff's atrial fibrillation was in large part successfully controlled with medication. Progress notes from Plaintiff's treating physicians during this time frame indicate that Plaintiff was feeling better and doing extraordinarily well, and the results of Plaintiff's cardiac tests and examinations were unremarkable. As the Third Circuit and other courts have recognized, conditions which can be reasonable controlled by medication or treatment are not considered disabling. 20 C.F.R. § 404.1530, see e.g. Warford v. Bowen, 875 F.2d 671, 673 (8th Cir.1989); Brown v. Bowen, 845 F.2d 1211, 1215 (3d Cir.1988); Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987). Further, as to Plaintiff's knee pain and other ailments, the record suggests that Plaintiff's pain was not so severe as to restrict his ability to perform sedentary work. Indeed, the record suggests that Plaintiff delayed knee surgery for several years, and Plaintiff's other complaints were infrequent during the relevant time frame.
In addition, Plaintiff contends that the A.L.J. should have taken the testimony of a vocational expert because Plaintiff suffered from the nonexertional limitation of being unable to tolerate stress as a result of his atrial fibrillation. In support of his contention, Plaintiff directs the Court to the Disability Handbook for the proposition that "patients who suffer from atrial fibrillation poorly tolerate stress." (D.I. 12 at 6). However, the section of the Disability Handbook from which Plaintiff quotes reads slightly different. In pertinent part, the Disability Handbook provides:
With abnormal rhythms, the heart tends to lose its capacity to accommodate the requirements of physical exertion. In general the lower the level of the cardiac pacemaker, the slower is the cardiac rate and the worse the symptoms with the exertion.
These considerations explain the fact that exertional stress is poorly tolerated by patients with acute or chronic abnormalities of cardiac rhythm.
Alan Balsam & Albert P. Zabin, Disability Handbook § 3.22 (1st ed.1990) (emphasis added). Based on this text, it is evident that the "stress" which is discussed in the passage referred to by Plaintiff is "exertional stress" and not the type of non-exertional limitation that would preclude reliance on the Grids.[4] Further, the Court has not located and Plaintiff has not pointed out any record evidence suggesting that Plaintiff had difficulty tolerating the type of stress that would be considered a non-exertional limitation. Accordingly, the record supports the A.L.J.'s finding that Plaintiff did not suffer from any substantial or severe non-exertional limitations. Because Plaintiff did not suffer from any non-exertional limitations that would place additional restrictions on Plaintiff's ability to work, the Court concludes that the A.L.J. was not required to take the testimony of a vocational expert and that the A.L.J. appropriately applied the Grids to find that Plaintiff was not disabled. Santise, *422 676 F.2d at 928, 935 (holding that "[i]f an individual's medical vocational status in fact is described by the grid, the regulations require that a particular decision be reached" and further recognizing that the A.L.J. may take "administrative notice of the general availability of jobs, as opposed to reliance on the identification of tasks by a vocational expert").
C. Summary
In sum, the Court concludes that the A.L.J. did not err in her treatment of Plaintiff's treating physician opinions or in her application of the Grids to direct a finding of "not disabled." As discussed in the context of Plaintiff's legal arguments, the A.L.J.'s findings are supported by substantial evidence from the record. Further, the Court is not unsympathetic to Plaintiff and recognizes that there is evidence in the record indicating that Plaintiff's condition may have worsened in recent years; however, the Court is constrained to consider only the evidence stemming from the narrow time frame at issue in this case. Matullo, 926 F.2d at 244. Because the A.L.J. did not err in her assessment of that evidence, the Court will affirm her decision. Accordingly, the Court will grant Defendant's Motion For Summary Judgment and deny Plaintiff's Motion For Summary Judgment.
CONCLUSION
For the reasons discussed, Defendant's Motion For Summary Judgment will be granted, and Plaintiff's Motion For Summary Judgment will be denied. The decision of the Commissioner dated August 12, 1999 will be affirmed.
An appropriate Order will be entered.
ORDER
At Wilmington, this 20th day of February 2004, for the reasons discussed in the Memorandum Opinion issued this date;
IT IS HEREBY ORDERED that:
1. Defendant's Cross-Motion For Summary Judgment (D.I.10) is GRANTED.
2. Plaintiff's Motion For Summary Judgment (D.I.8) is DENIED.
3. The final decision of the Commissioner dated August 12, 1999 is AFFIRMED.
JUDGMENT IN A CIVIL CASE
For the reasons set forth in the Court's Memorandum Opinion and Order dated February 20, 2004;
IT IS ORDER AND ADJUDGED that judgment be and is hereby entered in favor of Defendant Jo Anne B. Barnhart and against Plaintiff John Macera.
NOTES
[1] The city's determination that Plaintiff was entitled to a disability pension is not determinative for purposes of the Commissioner's decision. 20 C.F.R. § 404.1504; Coria v. Heckler, 750 F.2d 245, 247 (3d Cir.1984).
[2] The ability to exercise to 10 METS is considered to be consistent with the capacity to perform activities like shoveling 16 pound loads for 10 minutes at a time, running at a pace of 6 miles per hour, ski touring at 5 or more miles per hour in loose snow and playing competitive squash and handball. American Heart Association, Exercise Testing and Training of Individuals with Heart Disease or at High Risk for Its Development: A Handbook for Physicians (1975).
[3] Sedentary work requires a claimant to be able to sit, lift no more than 10 pounds at a time and occasionally lift or carry articles like docket files, ledgers and small tools. Sedentary work also requires an occasional amount of standing or walking, which would amount to no more than two hours in an eight hour work day. 20 C.F.R. § 404.1567(a); Social Security Ruling 96-9p.
[4] The Table of Cardiac Arrhythmias in the Disability Handbook does suggest that stress may be a precipitant for atrial fibrillation, but it does not suggest as Plaintiff contends that all individuals with atrial fibrillation poorly handle non-exertional stress. Balsam & Zabin, supra at § 3.22 at 128. As the Court has pointed out and the A.L.J. correctly found, the record does not support that Plaintiff was afflicted with any susbstantial, non-exertional limitations during the relevant time frame.
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-41709
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL ROBERTTO VASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:04-CR-115-ALL)
Before BARKSDALE, STEWART, AND CLEMENT, Circuit Judges.
PER CURIAM:*
Fidel Roberto Vasquez appeals the 96-month sentence imposed
following his guilty-plea conviction and sentence for illegal
reentry following deportation in violation of 8 U.S.C. § 1326.
Vasquez contends the district court violated United States v.
Booker, 125 S. Ct. 738 (2005) when it sentenced him pursuant to a
mandatory application of the Sentencing Guidelines. He also claims
the enhancement of his sentence violated the Sixth Amendment
*
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.
because it was based on facts not admitted by him or proven to a
jury.
As Vasquez concedes, he did not object on these grounds in the
district court. Therefore, our review is only for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th
Cir.), cert. denied, 2005 WL 1811485 (U.S. 3 Oct. 2005) (No. 05-
5556). Accordingly, Vasquez must show obvious error that affects
his substantial rights. See United States v. Mares, 402 F.3d 511,
520 (5th Cir.), cert. denied, 2005 WL 816208 (U.S. 3 Oct. 2005)
(No. 04-9517).
Before applying this standard, we must address Vasquez’s plea
agreement, which contained a provision waiving the right to appeal
other than for: “(a) any punishment imposed in excess of the
statutory maximum; (b) any upward departure from the guideline
range deemed most applicable by the sentencing court; (c)
arithmetic errors in the guidelines calculations; and (d) a claim
of ineffective assistance of counsel”. Vasquez does not explicitly
raise any of these four bases on appeal, and our precedent
forecloses a claim that a sentence given pursuant to the mandatory
guidelines is an upward departure. United States v. McKinney, 406
F.3d 744, 746-47 (5th Cir. 2005).
Neither Vasquez nor the government addresses the effect of the
appeal-waiver, which we may examine sua sponte. See United States
v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); United States v.
2
Rhodes, 253 F.3d 800, 804 (5th Cir. 2001) (disregarding waiver
provision where Government expressly declined to rely on it). In
this instance, we need not do so, because Vasquez’s appeal fails
under the applicable plain error standard of review.
To establish that a Booker error affects substantial rights,
Vasquez must show the district court would have reached a
significantly different result under an advisory Guidelines system.
Mares, 403 F.3d at 521. Vasquez fails to point to anything in the
record indicating the district court would have imposed a different
sentence had it known the Sentencing Guidelines were advisory.
Given the lack of any indication in the record that the district
court would have reached a different conclusion, Vasquez has failed
to establish plain error. See id. at 520-22.
Counsel are cautioned that future failure to brief the effect
of an appeal-waiver may result in sanctions.
AFFIRMED
3
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908 N.E.2d 711 (2009)
TAYLOR
v.
STATE.
No. 45A05-0812-CR-687.
Court of Appeals of Indiana.
June 5, 2009.
BRADFORD, J.
Disposition of case by unpublished memorandum decision. Affirmed.
CRONE J. Concurs.
BROWN, J., concurs.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEFFORY HARRISON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:09-cr-00234-1)
Submitted: April 22, 2014 Decided: April 25, 2014
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Acting Federal Public Defender, Jonathan D.
Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Lisa G. Johnston,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffory Harrison appeals the twenty-four-month
sentence imposed following the revocation of his term of
supervised release. Before this court, Harrison asserts several
bases for his contention that this sentence is plainly
unreasonable. For the reasons that follow, we reject his
arguments and affirm the revocation judgment.
“A district court has broad discretion when imposing a
sentence upon revocation of supervised release.” United States
v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). A revocation
sentence that is both within the applicable statutory maximum
and not “plainly unreasonable” will be affirmed on appeal. *
United States v. Crudup, 461 F.3d 433, 437-38 (4th Cir. 2006).
In determining whether a revocation sentence is plainly
unreasonable, we first assess the sentence for reasonableness,
utilizing “the procedural and substantive considerations”
employed in evaluating an original criminal sentence. Id. at
438.
A revocation sentence is procedurally reasonable if
the district court has considered both the policy statements
*
Harrison concedes that this is the controlling standard of
review in this circuit, but seeks to preserve the issue for
further review by noting the existence of a circuit split as to
the appropriate standard.
2
contained in Chapter Seven of the Sentencing Guidelines and the
18 U.S.C. § 3553(a) (2012) factors identified in 18 U.S.C.
§ 3583(e) (2012). Id. at 439. The district court must also
explain the chosen sentence, although this explanation “need not
be as detailed or specific” as is required for an original
sentence. United States v. Thompson, 595 F.3d 544, 547 (4th
Cir. 2010). A sentence is substantively reasonable if the
district court states a proper basis for concluding that the
defendant should receive the sentence imposed. Crudup, 461 F.3d
at 440.
If, after considering the above, we decide that the
sentence is reasonable, we will affirm. Id. at 439. Only if we
find the sentence to be procedurally or substantively
unreasonable will we evaluate whether it is “plainly” so. Id.
Against these well-established principles, we readily
conclude that Harrison’s sentence is reasonable. The sentence
is within the two-year statutory maximum authorized for the
underlying Class C felony offense that resulted in the
supervised release order. See 18 U.S.C. §§ 3559(a)(3),
3583(e)(3) (2012); 18 U.S.C. § 924(l) (2012). Our review of the
record confirms that the district court considered the advisory
policy statement range of three to nine months’ imprisonment,
the calculation of which was not disputed in the district court
and is not challenged on appeal, and heard the parties’
3
arguments regarding the appropriate sentence to be imposed.
Furthermore, the district court drew upon the § 3553(a) factors
enumerated in § 3583(e) in sentencing Harrison. The transcript
makes clear that, despite the court’s prior lenient treatment
and strong admonitions, Harrison simply could not (or would not)
abide by the terms of his supervised release. The court’s
decision to impose the statutory maximum in this case was driven
by Harrison’s repeated drug use, his ongoing failure to present
himself for drug testing at the pre-assigned time and place, and
his non-compliance with his drug treatment plan. We thus cannot
accept Harrison’s claim that his sentence is “unduly punitive.”
(Appellant’s Br. at 8); see Crudup, 461 F.3d at 440 (holding
that imposition of statutory maximum term of imprisonment was
substantively reasonable, given that the district court
expressly relied on defendant’s “admitted pattern of violating
numerous conditions of his supervised release,” despite numerous
extensions of leniency by the district court).
Harrison also argues that the revocation sentence is
unreasonable because it “does nothing to address the source of
Harrison’s problems on supervised release — his drug use.”
(Appellant’s Br. at 8). But this argument fails to acknowledge
the court’s continuous efforts to aid Harrison in overcoming his
substance abuse issues, all of which he spurned. As the
district court noted, the probation office did everything within
4
its power to help Harrison conquer his addiction, but it was
incumbent upon Harrison to avail himself of the treatment
options secured for and provided to him, which he would not do.
By the time he last appeared in court, there simply was nothing
left for the court to do in this vein.
Finally, Harrison suggests that the purpose of
supervised release — “to ease a defendant’s transition back into
the community” — would have been better served by “[a] much
shorter sentence[.]” (Appellant’s Br. at 9). We reject this
argument as it improperly conflates the purposes that underlie
the imposition of a term of supervised release in the first
instance with the purpose for penalizing the defendant’s
violation of those terms. The revocation sentence is designed
to punish the defendant’s failure to abide by the terms of his
supervised release, see Crudup, 461 F.3d at 438 (“‘[T]he
sentence imposed upon revocation [is] intended to sanction the
violator for failing to abide by the conditions of the court-
ordered supervision.’” (alteration in original) (quoting U.S.
Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt.
3(b))), and the district court’s comments make plain that it
chose the twenty-four-month sentence to sanction Harrison’s
substantial breach of the trust and leniency that the court
previously afforded him.
5
Accordingly, we affirm the revocation judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
6
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ALD-026 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3749
___________
IN RE: RICARDO HERASHIO GATES,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to Civ. No. 02-cv-02262)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
October 27, 2016
Before: MCKEE, JORDAN and RESTREPO, Circuit Judges
(Opinion filed: November 14, 2016 )
_________
OPINION*
_________
PER CURIAM
Ricardo Gates has filed a petition for a writ of mandamus seeking an order
directing the District Court to act on his motion filed pursuant to Federal Rule of Civil
Procedure 60(b). For the reasons below, we will dismiss the petition.
In 2002, Gates filed a petition pursuant to 28 U.S.C. § 2254 challenging his state
court murder conviction. The District Court dismissed the claims as untimely and
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
procedurally defaulted. Although the District Court granted a certificate of appealability
on the issue of the procedural default, we concluded that the claims were untimely,
whether or not they were defaulted. See Gates v. Lavan, No. 03-1764, 116 F. App’x 340,
*2 (3d Cir. Oct. 21, 2004).
On December 29, 2014, Gates filed a Rule 60(b) motion seeking to reopen his
§ 2254 proceedings. He challenged the District Court’s previous determination that his
habeas claims were procedurally defaulted. On January 28, 2016, the District Court
denied the motion as without merit because the claims would still be untimely even if
they were not procedurally defaulted. On September 29, 2016, Gates, apparently
unaware that the District Court had already acted on his Rule 60(b) motion, filed this
mandamus petition complaining of undue delay by the District Court.
Because the District Court has resolved the motion for which Gates seeks a ruling,
there is no effective relief we can grant him, and his request is moot. See In re Cantwell,
639 F.2d 1050, 1053 (3d Cir. 1981) (“[A]n appeal will be dismissed as moot when events
occur during the pendency of the appeal which prevent the appellate court from granting
any effective relief.”). Accordingly, we will dismiss the mandamus petition as moot.
constitute binding precedent.
2
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36 F.3d 1116
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.BW PARKWAY ASSOCIATES LIMITED PARTNERSHIP, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee.
No. 94-5038.
United States Court of Appeals, Federal Circuit.
Sept. 15, 1994.
On Appeal from the United States Court of Federal Claims, in Case No(s). 539-89L.
29 Fed.Cl. 669.
AFFIRMED.
PLAGER, LOURIE, and RADER, Circuit Judges.
Judgment
PER CURIAM.
1
AFFIRMED. See Fed.Cir.R. 36.
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500 F.2d 1400
Sobotkav.Kisen
73-1997
UNITED STATES COURT OF APPEALS Third Circuit
7/2/74
1
E.D.Pa.
AFFIRMED
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805 F.2d 956
55 USLW 2351, 7 Employee Benefits Ca 2675
George M. NACHWALTER and Steven M. Falk, as Trustees of theNachwalter, Christie & Falk, P.A. Profit Sharing Plan andTrust, and as Trustees of the Nachwalter, Christie & Falk,P.A., Pension Plan and Trust, Plaintiffs-Counter Defendants-Appellees,v.Joyce Ellen CHRISTIE, individually and as PersonalRepresentative of the estate of Irwin G. Christie,Defendant-Counter Plaintiff-Appellant.
Nos. 85-5615, 85-6001.
United States Court of Appeals,Eleventh Circuit.
Dec. 9, 1986.
CORRECTED OPINION.
Blank, Rome, Comisky & McCauley, William Berger, Nancy J. Cliff, Stewart A. Merkin, Law Office of Stewart A. Merkin, Miami, Fla., for Christie.
James J. Kenny, Kenny, Nachwalter & Seymour, Miami, Fla., for Nachwalter.
Appeal from the United States District Court for the Southern District of Florida.
Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and ATKINS*, Senior District Judge.
KRAVITCH, Circuit Judge:
1
The issue before this court is whether the trustees of pension and profit sharing plans governed by the Employment Retirement Income Security Act (ERISA), 29 U.S.C. Secs. 1001 et seq., may be estopped from enforcing the written terms of the plans by oral representations they allegedly made to a beneficiary. We affirm the district court 611 F.Supp. 655 and hold that the written terms of the plans cannot be modified by oral agreements. In addition, we hold that appellees are not entitled to fees on appeal.I.
2
This declaratory judgment action was brought by the trustees of two employee benefit plans (the Plans)1 that are sponsored by the law firm of Nachwalter, Christie & Falk, P.A. (the Firm) and governed by ERISA, 29 U.S.C. Secs. 1001 et seq. The trustees sued appellant Joyce Christie, individually and as personal representative of the estate of her deceased husband, Irwin G. Christie, a former participant in the Plans, in order to determine the extent of their liability to her.
3
Irwin was a stockholder, employee, officer and director of the Firm from its inception until November 30, 1980, the effective date of his resignation. Until his resignation, he also was one of the three trustees of the Firm's two employee benefit plans and was one of the principal beneficiaries of the Plans. His interest in the Plans, which is 100% vested, represents approximately 30.35% of the net assets held in trust under the two Plans.
4
Under the terms of the Plans, the date on which an employee withdraws his funds from the Plans also serves as the date for valuing both the Plans' net assets and the employee's share thereof. The Plans provide employees with some, albeit a limited, ability to select between withdrawal/valuation dates. In particular, Irwin could have requested permission to withdraw his funds from the Plans for their value as of June 30, 1980; whether Irwin would have received the funds based on this date was in the total discretion of the Plan Administrator. The district court found, however, that Irwin did not make this written request for an immediate distribution. Instead, Irwin left his funds in the Plans in order to benefit from the increase in the Plans' value that had occurred since June 30, 1980. Pursuant to the Plans, under these circumstances Irwin was not entitled to remove his funds from the Plans until he became a "Withdrawn Participant." This occurred on June 30, 1982. Therefore, under the Plans, June 30, 1982 should serve as the valuation date for determining Irwin's share.
5
Joyce Christie alleges, however, that Irwin and the trustees orally agreed that Irwin could remove his assets on June 30, 1981, and argues that this date should be the valuation date. There is nothing in the Plans that would permit use of the June 30, 1981 valuation date. And while the Plans do contain provisions that would have allowed Irwin to request that the Plans be amended to change the valuation date, Irwin did not pursue, and the Firm did not make, such an amendment.
6
The controversy over the valuation date erupted as a consequence of the trustees' June 30, 1981 investment of a substantial portion of the Plans' funds in marketable securities held in street name by First State Securities Corp. (First State). First State engaged in unauthorized transactions on behalf of the funds between June 30, 1981 and July 24, 1981. As a result, the net assets in the Plans plummeted; Irwin's share fell from $196,770.72 on June 30, 1981 to $83,364.46 on June 30, 1982.
7
After the drop in the Plans' value, trustees Nachwalter and Falk notified Irwin that he would be paid pursuant to the Plans, with the value of his assets determined as of June 30, 1982. Irwin objected, asserting that the trustees had agreed to the June 30, 1981 valuation date. Irwin died on January 8, 1982. Joyce, Irwin's beneficiary under the Plans in the event of his death, sought to recover the benefits based on the June 30, 1981 valuation date, claiming that the trustees of the two Plans are estopped from enforcing the written terms of the funds by the alleged oral agreement with her husband to employ June 30, 1981 as the valuation date. The trustees claimed that the proper valuation date is June 30, 1982 and brought the instant declaratory judgment action. The district court ruled in the trustees' favor and held that the June 30, 1982 valuation date governs on the ground that under ERISA neither oral agreement nor informal exchange may be used to modify the written terms of the Plans. The court made no findings regarding the existence of the alleged oral agreement.2 Pursuant to a pretrial stipulation, the district court also awarded attorney's fees to the trustees.
II.
8
The main issue on appeal is whether written employee benefit plans governed by ERISA may be modified by oral agreements.3 This issue is one of first impression in this circuit; to our knowledge, no other federal circuit court has ruled on this question.
9
Appellant argues that this court should employ the doctrine of estoppel to enforce the alleged oral modification of the Firm's two ERISA-governed employee benefit plans. Appellant cannot prevail on this claim. Appellant does not cite a single case under either ERISA or a related federal labor law in which a federal circuit court has enforced an oral agreement that modifies the terms of an employee benefit plan.4 In fact, appellant concedes that in this case ERISA preempts state common law doctrines such as estoppel.5 See Phillips v. Amoco Oil Co., 799 F.2d 1464, 1470 (11th Cir.1986) (ERISA preempts state common law causes of action as they relate to employee benefit plans); see also Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1147 (4th Cir.1985); Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 326-28 (2d Cir.1985); Blau v. Del Monte Corp., 748 F.2d 1348, 1356 (9th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). Instead, at oral argument appellant contended that since Congress intended the federal courts to fashion a body of federal common law to govern ERISA cases, see Holland, 772 F.2d at 1147 n. 5; Scott v. Gulf Oil Corp., 754 F.2d 1499, 1501-02 (9th Cir.1985), we should create a federal common law doctrine of estoppel which permits oral modification of ERISA-protected Plans.
10
Appellant's argument fails, however, as it is based on a misunderstanding of the proper use of federal common law. The claim that Congress intended for the federal courts to create a body of federal common law to govern ERISA cases does not, as appellant suggests, give a federal court carte blanche authority to apply any prevailing state common law doctrine it chooses to ERISA cases. A federal court may create federal common law based on a federal statute's preemption of an area only where the federal statute does not expressly address the issue before the court. See C. Wright, Law of Federal Courts Sec. 60, at 283-84 (3d. ed. 1976); see also Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456-57, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957). Furthermore, even when it is appropriate for a federal court to create federal common law, it may use state common law as the basis of the federal common law only if the state law is consistent with the policies underlying the federal statute in question; see Lincoln Mills, 353 U.S. at 457, 77 S.Ct. at 918; Scott, 754 F.2d at 1502; federal courts may not use state common law to re-write a federal statute.
11
Applying these principles, we conclude that we cannot create federal common law in this case because ERISA specifically addresses the issue before this court. ERISA expressly requires that employee benefit plans be "established and maintained pursuant to a written instrument." 29 U.S.C. Sec. 1102(a)(1). We agree with the district court that this requirement that ERISA plans be "maintained" in writing precludes oral modifications of the Plans; the common law doctrine of estoppel cannot be used to alter this result. Cf. Mo-Kan Teamsters Pension Fund v. Creason, 716 F.2d 772, 777 (10th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984) (oral modification of collective bargaining agreement prohibited by Labor Management Relations Act); San Pedro Fishermen's Welfare v. Di Bernardo, 664 F.2d 1344, 1345 (9th Cir.1982) (Labor Management Relations Act's requirement that the terms of a welfare trust fund be set forth in writing precludes oral modification); Lewis v. Seanor Coal Co., 382 F.2d 437, 443-44 (3d Cir.1967) (same), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968).6
12
The conclusion that under ERISA oral modifications of employee benefit plans are impermissible is buttressed by the observation that Congress expressly prohibited informal written amendments of ERISA plans. ERISA requires that each plan shall "provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan." 29 U.S.C. Sec. 1102(b)(3). By explicitly requiring that each plan specify the amendment procedures, Congress rejected the use of informal written agreements to modify an ERISA plan. See Johnson v. Central States, Southeast and Southwest Areas Pension Funds, 513 F.2d 1173, 1174-75 (10th Cir.1975) (benefits may not be enforced according to a booklet and letter that are inconsistent with the terms of a written pension plan). Reading the "written agreement" provision of subsection 1102(a)(1) in light of subsection 1102(b)(3)'s requirement of formal written amendments procedures necessitates our conclusion that subsection 1102(a)(1) of ERISA precludes oral modifications of employee benefit plans.
13
Furthermore, even if we were to apply federal common law in this case, we would not create federal common law to permit oral modifications of these Plans. Federal common law must be consistent, not only with the language, but also with the policies of the federal statutory scheme in question. See Lincoln Mills, 353 U.S. at 456-57, 77 S.Ct. at 918; Scott, 754 F.2d at 1502. A central policy goal of ERISA is to protect the interests of employees and their beneficiaries in employee benefit plans. Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983); Scott, 754 F.2d at 1501. This goal would be undermined if we permitted oral modifications of ERISA plans because employees would be unable to rely on these plans if their expected retirement benefits could be radically affected by funds dispersed to other employees pursuant to oral agreements. This problem would be exacerbated by the fact that these oral agreements often would be made many years before any attempt to enforce them. In fact, the importance of strictly adhering to the written terms of employee benefit plans is nowhere better illustrated than in a case such as this: here appellant seeks to benefit from an alleged oral agreement made by a former trustee and former co-owner of the Firm, a man who could be expected to know, and to follow, the written terms of the Plans. Enforcing this agreement would operate to the detriment of other beneficiaries of the Plans and would endow Irwin with a range of options under the Plans--in particular, the ability to select a valuation date--that is not available to the other beneficiaries. Thus, appellant has neither equity nor the law on her side. The district court's refusal to permit oral modification of the Plans is affirmed.
III.
14
Appellees contend that they should receive attorney's fees on appeal. Before trial, the parties stipulated "that the prevailing party or parties would be entitled to reasonable attorney's fees ..." the amount of fees to be "assessed on the basis of affidavits submitted after the conclusion of the trial when the outcome is known." Although the pre-trial stipulation does not provide for awarding attorney's fees on appeal, appellant does not assert that this stipulation precludes the awarding of these fees. Nor does appellant contest appellees' implicit assumption that ERISA permits the awarding of attorney's fees on appeal. Instead appellant argues on the merits that such an award would be inappropriate in this case because the appeal was not taken in bad faith and has merit. We must address appellees' implicit assumption that we can award fees on appeal under ERISA, however, before we can consider whether we should award them in this case.
15
Section 502(g) of ERISA, 29 U.S.C. Sec. 1132(g), governs the awarding of attorney's fees. It provides in pertinent part that: "[i]n any action under this subchapter ... by a participant, beneficiary or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. Sec. 1132(g)(1). Statutory provisions for attorney's fees such as this generally allow the award of fees for the costs of appeal. See Newhouse v. Robert's Ilima Tours, Inc., 708 F.2d 436, 441 (9th Cir.1983) (under the Fair Labor Standards Act attorney's fee awards may include fees for appellate services); Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 & n. 11 (9th Cir.1982) (under section 4 of the Clayton Act fee awards may include fees for time spent on appeal). Nothing in the broad language of subsection 1132(g)(1) suggests that Congress intended to limit the fee awards in ERISA cases to those incurred at trial. In fact, the statement in subsection 1132(g)(1) that fee awards are to be determined by "the court," as opposed to "the district court," suggests that Congress intended for circuit courts also to make fee awards. We therefore hold that subsection 1132(g)(1) allows the recovery of attorney's fees and costs incurred in an appeal. See Secretary of Department of Labor v. King, 775 F.2d 666, 670 (6th Cir.1985) (per curiam); Operating Engineers Pension Trust v. Charles Minor, 766 F.2d 1301, 1305 (9th Cir.1985); Carpenters Southern California Administrative Corp. v. Russell, 726 F.2d 1410, 1417 (9th Cir.1984); Ford v. New York Central Teamsters Pension Fund, 642 F.2d 664 (2d Cir.1981) (per curiam); see also Plumbers' Pension Funds v. Domas Mech. Contractors, 778 F.2d 1266, 1271 (7th Cir.1985) (attorney's fees on appeal awarded under subsection 1132(g)(2)(D) of ERISA).
16
Having determined that this court may award attorney's fees on appeal, we also must determine what standard should govern such an award. Unlike fee shifting provisions in other statutes, subsection 1132(g)(1) does not indicate what criteria should govern a court's determination of when to make fee awards and the legislative history furnishes no guidelines. See Note, Attorney's Fees Under ERISA: When Is An Award Appropriate?, 71 Cornell L.Rev. 1037, 1042, 1050 (1986) [hereinafter Note, Attorney's Fees Under ERISA]. Virtually all circuits, including this one, have adopted five factors as the "nuclei of concerns" that should govern a district court's determination of whether to award attorney's fees at the trial stage. Note, Attorney's Fees Under ERISA, supra, at 1042; see, e.g., McKnight v. Southern Life and Health Insurance Co., 758 F.2d 1566, 1571-72 (11th Cir.1985); Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir.1980). These factors, which should guide but not control the district court's decision, are: (1) the degree of the opposing parties' culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorney's fees; (3) whether an award of attorney's fees would deter other persons acting under similar circumstances; (4) whether the parties requesting attorney's fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties' positions. Iron Workers, 624 F.2d at 1266; see McKnight, 758 F.2d 1571-72; Fine v. Semet, 699 F.2d 1091, 1095 (11th Cir.1983).7
17
We hold that these five factors also should guide appellate courts' determinations of whether to award fees on appeal. See Russell, 726 F.2d at 1417. In applying these criteria, however, courts should bear in mind ERISA's essential remedial purpose: to protect the beneficiaries of private pension plans. See Dennard v. Richards Group, Inc., 681 F.2d 306, 319 (5th Cir.1982). Adherence to this policy often counsels against charging fees against ERISA beneficiaries since private actions by beneficiaries seeking in good faith to secure their rights under employee benefit plans are important mechanisms for furthering ERISA's remedial purpose. Id.; accord Leigh v. Engle, 727 F.2d 113, 139 n. 39 (7th Cir.1984); Operating Engineers, 766 F.2d at 1305; cf. Note, Attorney's Fees Under ERISA, supra, at 1055-56 (arguing that ERISA policy concerns would be served by making it more difficult for ERISA defendants to obtain fee awards than it is for ERISA plaintiffs).
18
Applying the Iron Workers factors to the case before us, we conclude that the trustees are not entitled to fees on appeal. Appellant's claim was neither frivolous nor pursued in bad faith; thus the first factor weighs in appellant's favor. We do not have sufficient evidence to apply factors two and three. And although appellee relies on factor four, application of this factor also counsels against awarding fees on appeal because this case was one of first impression and "resolved a significant legal question regarding ERISA itself."8 See Iron Workers, 624 F.2d at 1266. Finally, although it would appear that under the relative merits test of factor five appellee should receive fees, the application of this factor does not alter our conclusion. There was no case law by this or any other circuit court on the issue of whether oral modifications of ERISA plans are permissible. In such circumstances we will not employ our determination that appellant's claim is incorrect as a basis for assessing fees against her. See Leigh, 727 F.2d at 139 n. 39. We hold that appellees are not entitled to receive attorney's fees on appeal.9
19
AFFIRMED.
*
Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern District of Florida, sitting by designation
1
One plan was a pension plan and the other was a profit sharing plan
2
The trustees agree that Irwin wanted the June 30, 1981 valuation date but contend that they told him that payment would be pursuant to the Plans
3
We do not, and need not, reach the issue of whether there was an oral agreement to use June 30, 1981 as the valuation date
4
As support for her claim that the district court should have applied the doctrine of estoppel appellant cites Kann v. Keystone Resources, Inc., 575 F.Supp. 1084 (W.D.Pa.1983). Kann is inapposite to the issue in this case. Kann did not involve an oral modification of an ERISA plan. Kann involved the application of estoppel to prevent the trustees of an ERISA plan from denying to a former employee benefits to which he was entitled under ERISA merely because the payments to the Plan were not formally authorized as allegedly was required under corporation law. Id. at 1090. Thus, unlike here, in Kann estoppel was applied in order to enforce the written terms of the ERISA plans. Id. 1093-94. Kann, therefore, does not provide support for appellant's position that estoppel can be used to override the terms of a written ERISA plan
5
29 U.S.C. Sec. 1144(a) provides in pertinent part that: "[e]xcept as provided in subsection (b) of this section, the provisions of this subchapter ... shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title."
6
Di Bernardo, 664 F.2d at 1344 and Lewis, 382 F.2d at 437, concern Sec. 302(c)(5) of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 186 (1981). The written agreement requirement for pensions under the LMRA is similar to the written agreement requirement of ERISA, 29 U.S.C. Sec. 1104(a)(1). See Hugh v. Overly, 445 F.Supp. 946, 947 n. 1 (W.D.Pa.1978)
7
Other circuits have endorsed similar guidelines. See, e.g., Russell, 726 F.2d at 1415; Marquardt v. North American Car Corp., 652 F.2d 715, 717 (7th Cir.1981); Eaves v. Penn, 587 F.2d 453, 465 (10th Cir.1978)
8
The fact that appellees brought this suit as a declaratory judgment action instead of waiting for appellant to sue to enforce the oral agreement in a coersive suit suggests that appellees also thought that appellant's claim was not frivolous and that it presented an unresolved legal question
9
Our decision not to allow fees on appeal does not affect appellees' award of fees at the trial level
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692 F.2d 151
223 U.S.App.D.C. 427
U. S.v.Belt
82-1704
UNITED STATES COURT OF APPEALS District of Columbia Circuit
10/27/82
1
D.C.D.C.
AFFIRMED
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541 U.S. 1069
WILLIAMSONv.UNITED STATES.
No. 03-9916.
Supreme Court of United States.
May 24, 2004.
1
C. A. 4th Cir. Certiorari denied. Reported below: 85 Fed. Appx. 943.
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11-3063-ag
Lin v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of August, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 ____________________________________
13
14 MIAO CHEN, AKA MAO CHEN V. HOLDER 11-58-ag
15 A077 293 499
16 ____________________________________
17
18 JAN SHING LIN, AKA JIAN-XIN LIN,
19 LEE CHING CHEN, AKA LI-QIN CHEN
20 v. HOLDER, 11-226-ag
21 A070 115 803
22 A070 115 804
23 ____________________________________
24
25 GUO MOU LI v. HOLDER, 11-363-ag
26 A070 901 706
27 ____________________________________
28
29
04302012-11-22
1 CHUNMEI CHEN v. HOLDER, 11-1230-ag
2 A096 266 559
3 ____________________________________
4
5 DI DI QIU v. HOLDER, 11-1358-ag
6 A073 604 510
7 ____________________________________
8
9 LU QIANG LIN v. HOLDER, 11-1449-ag
10 A073 189 038
11 ____________________________________
12
13 CAI YUN WU v. HOLDER, 11-1557-ag
14 A200 115 826
15 ____________________________________
16
17 LING LIU DONG, AKA LIN LU DONG v. 11-2207-ag
18 HOLDER,
19 A078 299 082
20 ____________________________________
21
22 MIN TONG ZHENG v. HOLDER, 11-2251-ag
23 A078 227 081
24 ____________________________________
25
26 MING DUAN CHAN, AKA MING DUAN ZHAN, 11-2506-ag
27 AKA MING DUAN ZHANG v. HOLDER,
28 A077 957 616
29 ____________________________________
30
31 CHI-HSUN CHEN, AKA QI XUN CHEN 11-2558-ag
32 v. HOLDER,
33 A076 810 625
34 ____________________________________
35
36 YING XUE LIN v. HOLDER, 11-3063-ag
37 A077 281 071
38 ____________________________________
39
40 UPON DUE CONSIDERATION of these petitions for review of
41 Board of Immigration Appeals (“BIA”) decisions, it is hereby
04302012-11-22 2
1 ORDERED, ADJUDGED, AND DECREED that the petitions for review
2 are DENIED.
3 Each of these petitions challenges a decision of the
4 BIA denying a motion to reopen. The applicable standards of
5 review are well-established. See Jian Hui Shao v. Mukasey,
6 546 F.3d 138, 168-69 (2d Cir. 2008).
7 Petitioners, all natives and citizens of China, filed
8 motions to reopen based on their claims that they fear
9 persecution because they have had one or more children in
10 the United States in violation of China’s population control
11 program. All of the petitioners argued that changed country
12 conditions regarding the enforcement of China’s population
13 control population should excuse the untimely filing of
14 their motions. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
15 § 1003.2(c).
16 For largely the same reasons as this Court set forth in
17 Jian Hui Shao, 546 F.3d 138, we find no error in the BIA’s
18 decisions. See id. at 158-72. Moreover, the BIA did not
19 err in declining to credit the petitioners’ individualized
20 and unauthenticated evidence in light of the agency’s
21 underlying adverse credibility determinations. See Qin Wen
22 Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).
04302012-11-22 3
1 In Miao Chen v. Holder, No. 11-58-ag, the BIA did not
2 err in finding that petitioner failed to demonstrate
3 material changed country conditions regarding the treatment
4 of Christians in China sufficient to excuse the untimely
5 filing of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
6 In Min Tong Zheng v. Holder, No. 11-2251-ag, the BIA did not
7 err in finding that petitioner’s medical condition did not
8 constitute a valid exception to the time limitation
9 applicable to his motion to reopen. See 8 U.S.C.
10 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3).
11 For the foregoing reasons, these petitions for review
12 are DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in these petitions
14 is VACATED, and any pending motion for a stay of removal in
15 these petitions is DISMISSED as moot. Any pending request
16 for oral argument in these petitions is DENIED in accordance
17 with Federal Rule of Appellate Procedure 34(a)(2), and
18 Second Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
04302012-11-22 4
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NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3167
PERRY A. MERCIER, JR.,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
___________________________
DECIDED: October 12, 2005
___________________________
Before NEWMAN, MAYER, DYK, Circuit Judges.
PER CURIAM.
Petitioner Perry A. Mercier, Jr., (“Mercier”) seeks review of the decision of the
Merit Systems Protection Board (“Board”), affirming his removal from his position as
Maintenance Worker Supervisor by respondent, the United States Department of
Justice, Federal Bureau of Prisons (“Agency”). Perry A. Mercier v. Dept. of Justice, No.
DA0752030405-I-1 (M.S.P.B. Feb. 9, 2005). We affirm.
BACKGROUND
On June 18, 2002, Mercier was arrested and charged with the following crimes:
(1) “unlawful carrying of a weapon while under the influence of alcohol”; (2) “actual
physical control of a motor vehicle while under the influence of intoxicating liquor”; and
(3) “lewd acts with a child under the age of 16.” App. 5.
As part of a plea arrangement, Mercier pled nolo contendere to the first two
charges. He also pled nolo contendere to a third charge, “outraging public decency,”
which replaced the more serious crime, “lewd acts with a minor.”
Mercier was removed from his position on April 16, 2003, for “Criminal
Misconduct.” App. 5. He timely appealed to the Board. On December 1, 2003, the
administrative judge (“AJ”) affirmed the agency’s action. On February 9, 2005,
Mercier’s petition for review was denied, and the AJ’s initial decision became the final
decision of the Board. Mercier timely filed his petition to this court on April 14, 2005.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s decision must be affirmed unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule or regulation; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483
(Fed. Cir. 1998).
To sustain the removal, the agency was required to prove three elements: (1)
that the charged conduct occurred; (2) that there was a nexus between the conduct and
the efficiency of the service; and (3) that the penalty imposed was reasonable. See 5
U.S.C. §§ 7513(a), 7701(c)(1)(B) (2000); Pope v. U.S. Postal Serv., 114 F.3d 1144,
1147 (Fed.Cir.1997).
The Board’s conclusion that the criminal misconduct occurred is supported by
substantial evidence. Mercier conceded that at the time of the arrest, he was
intoxicated and was behind the wheel and in control of the vehicle. He also conceded
05-3167 2
that a loaded weapon was in the vehicle while he was intoxicated. Finally, he admitted
that a 14-year old girl was with him in the car, and that he kissed her shortly before the
arrest. Although Mercier disputed the nature and the extent of the activity that took
place in the car with respect to the minor, the Board chose not to credit Mercier’s
evidence, and instead credited the minor’s written statement to the police indicating that
Mercier had “repeatedly kiss[ed] and tr[ied] to kiss the minor female” for 20-25 minutes
before the arrest. App. 11. These findings are supported by substantial evidence.
We also sustain the Board’s conclusions that there is a nexus between Mercier’s
misconduct and his employment, and that Mercier’s removal was not an unreasonable
penalty. The Board found that “the warden and the other employees ha[d] lost trust and
confidence in the appellant because of his criminal misconduct,” and that “the criminal
misconduct involved was of such a nature and seriousness that it does adversely affect
the appellant’s and other correctional officers’ job performance inside the prison
environment.” App. 14-15. These findings provide substantial evidence for the Board’s
conclusions.
On review to this court, and apparently before the Board as well, Mercier raised
the affirmative defense of handicap discrimination based upon his alcoholism. The
Board did not explicitly address this defense. A "handicapped person" is one who: (1)
has a physical or mental impairment which substantially limits one or more of such
person's major life activities; (2) has a record of such an impairment; or (3) is regarded
as having such an impairment. See 29 C.F.R. § 1630.2(g). To establish an affirmative
defense of handicap discrimination because of drug or alcohol dependence, an
employee must prove that he suffers from an addiction, and that the addiction caused
05-3167 3
his misconduct. See Kye v. Defense Logistics Agency, 64 M.S.P.R. 570, 573 (1994),
aff'd sub nom. King v. Erickson, 89 F.3d 1575 (Fed. Cir. 1996); Toone v. Veterans
Admin., 38 M.S.P.R. 262, 264-65 (1988). The use of drugs or alcohol alone is
insufficient to establish an addiction. Toone, 38 M.S.P.R at 265. In order to establish
an addiction, a petitioner must present expert evidence showing a pattern of drug
dependence that existed at the time of the misconduct at issue, which may include the
following: (1) objective clinical findings, such as test results and observations of physical
signs; (2) medical diagnoses based on evaluation; and (3) evaluation and assessment
by a non-medical expert in the field of drug rehabilitation. See Avant v. Dep’t of Navy,
60 M.S.P.R. 467, 478 (1994); Tierney v. Dep’t of Navy, 44 M.S.P.R. 153, 156 (1990);
Brinkley v. Veterans Admin., 37 M.S.P.R. 682, 685 (1988).
While the Board did not specifically address Mercier’s disability defense, that
error, if there was error, was harmless since petitioner’s claim was not supported by
expert evidence. Apparently, the only expert evidence in the record is an “Evaluation
Report” from Dr. G. Richard Kishur, based on “a comprehensive psychosexual
evaluation” of Mercier. App. 58. The report lists “Alcohol Abuse/Dependence” under
the heading “Diagnostic Impressions,” and states “[Mercier] presents himself as having
a significant problem with alcohol abuse and has taken steps to address this problem.”
App. 64. This report is insufficient. Expert opinions that are based on self-reports,
rather than “clinical evaluations of observations of the appellant's physical symptoms,”
are given little weight. Avant, 60 M.S.P.R. at 478. Moreover, the expert report does not
conclude that petitioner’s criminal conduct was the result of alcoholism. We conclude
that Mercier submitted insufficient expert evidence to support a finding that he suffered
05-3167 4
from a drug dependence that caused his misconduct. Nor is the evidence sufficient to
require imposition of a penalty other than removal.
CONCLUSION
For the foregoing reasons, the Board’s decision is affirmed.
COSTS:
No costs.
05-3167 5
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Lawson III-G v. State
IN THE
TENTH COURT OF APPEALS
No. 10-96-169-CR
GILBERT LAWSON III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court # 8512-A
OPINION ON
SUA SPONTE ABATEMENT OF APPEAL
A jury found Gilbert Lawson III guilty of attempted murder and assessed punishment of ten
years' incarceration, probated for ten years and a $10,000 fine. He appealed from his conviction.
Although the transcript was filed in this court on August 27, 1996, no statement of facts followed.
On September 4 our clerk notified him that the statement of facts had not been timely filed and
that, absent a motion for an extension of time to file the statement of facts, we would consider the
appeal on the transcript alone. Tex. R. App. P. 53(m). In the same letter, he was given thirty
days to file a brief. After he failed to timely file a brief, our clerk sent him a letter, dated October
8, requesting that a brief be filed within ten days. Id. 74(l)(2). No brief has been filed.
Therefore, this appeal is abated and the trial court instructed to conduct a hearing to
determine: (1) why a statement of facts has not been filed; (2) whether Lawson desires to proceed
with the appeal; (3) whether Lawson is now indigent; and (4), if Lawson is not indigent, whether
he has failed to make necessary arrangements for filing a brief. Id. 53(m), 74(l)(2), 83. If
Lawson no longer wishes to pursue an appeal, he must sign and file a motion to dismiss, expressly
requesting withdrawal of his notice of appeal and dismissal of this proceeding. Id. 59(b).
If Lawson is indigent, the trial court shall take such measures as may be necessary to assure
effective representation of counsel, which may include the appointment of new counsel. Id.
53(m), 74(l)(2). However, if he desires to proceed pro se, the trial court is directed to determine,
on the record, his ability and capacity to knowingly and intelligently waive his right to counsel.
Hathorn v. State, 848 S.W.2d 101, 122-23 (Tex. Crim. App. 1992), cert. denied, ___ U.S. ___,
113 S.Ct. 3062, 125 L.Ed.2d 744 (1993); Ex parte Davis, 818 S.W.2d 64, 66-68 (Tex. Crim.
App. 1991).
The trial court shall forward a record of the hearing, with its findings of fact and conclusions
of law, to the clerk of this court within twenty-one days of the date of this order.
PER CURIAM
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Appeal abated
Order issued and filed November 20, 1996
Do not publish
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84 A.2d 588 (1951)
ELLIOTT et al.
v.
STATE FISH & GAME COMMISSION.
No. 1794.
Supreme Court of Vermont. Washington.
November 6, 1951.
*589 Ezra S. Dike, Bristol, for plaintiffs.
Clifton G. Parker, Atty. Gen., and Frederick G. Mehlman, Deputy Atty. Gen., for defendant.
Before JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ., and HUGHES, Superior Judge.
JEFFORDS, Justice.
This is a petition brought under V.S. 47, §§ 6570 and 6571 requesting, in effect, that additional protection than that provided by statute be given to trout and black bear in the county of Addison. A hearing was duly held on the petition which resulted in two orders. These orders are numbered 24 and 25. The former gives additional protection to trout in that county and the latter such protection to black bear.
The present petitioners (hereinafter called the plaintiffs) appealed from these orders by a petition under the provisions of V. S. 47, § 6572 to the court of chancery of Washington county. By agreement and stipulation of the parties the hearing on the appeal was had upon the bill filed by the plaintiffs and the answer filed by the commission. *590 After such hearing a decretal order was entered by the chancellor dismissing the petition of the plaintiffs and the temporary injunction which restrained the commission from putting into effect the above mentioned orders was dissolved. The case is here on exceptions of the plaintiffs.
The first exception briefed by the plaintiffs is to the refusal of the chancellor to make findings of fact. The ground of this exception as stated in the bill of exceptions is that such findings are required by statute.
By agreement and stipulation of the parties the hearing was had on the bill and answer. In its answer the defendant denied the allegations contained in three paragraphs of the plaintiffs' bill. The plaintiffs claim that there were thus disputed issues of fact in the case making necessary findings of fact.
The plaintiffs in their brief do not point out specifically the claimed statute made a basis of their ground for the exception. Neither do they point out which of the allegations are of facts. Certainly all of them are not such and the defendant says that none which were denied were factual. We will assume for present purposes that some of the allegations which were denied were of facts and we will overlook the somewhat deficient briefing of the plaintiffs in support of this exception.
No replication was filed to the answer. This being so, the facts set forth in the answer, if well pleaded must be taken as true and if the facts so stated constitute a full defense, the bill must be dismissed. Deerfield River Co. v. Wilmington Power & Paper Co., 83 Vt. 548, 551, 77 A. 862; Dyer v. Dean, 69 Vt. 370, 372, 37 A. 1113. There is no suggestion that such facts were not well pleaded.
The situation thus presented to the chancellor was that of facts alleged by the defendant to be taken by him as true and certain facts alleged by the plaintiffs which were denied. It is apparent that he could not make findings as to the denied facts except upon the taking of evidence. Such taking was waived by the plaintiffs when they agreed to have the case decided only on the bill and answer. It follows that the chancellor had as a basis for his order only such facts as were alleged in the bill and not denied and thus to be taken as true, chancery rule No. 21, § 2, and those which were alleged in the answer and not denied by a replication and to be so taken. The chancellor could only have found that the undenied facts alleged by both parties were true. This would have been a useless act, the performance of which the law does not require. The setting of a case for hearing on bill and answer is the equivalent of a demurrer to the answer. 19 Am.Jur., Equity, par. 278; 30 C.J.S., Equity, § 471, note 72. Here, as in the case of a demurrer, the undenied pleaded facts control.
The case of Raithel v. Hall, 99 Vt. 65, 70, 130 A. 749, cited by the plaintiffs in support of this exception is not in point. That case was heard by the chancellor on oral evidence. The statute cited in the opinion G.L. 1511, now V.S. 47, § 1302, which is the one apparently referred to in their ground for this exception does not here apply as it has to do with controverted questions of fact heard by a chancellor on oral testimony.
This exception is not sustained.
The next exception briefed is to the order of the chancellor on the ground that it is not supported or warranted by the pleadings or supported by findings.
At the close of the hearing which resulted in the orders above referred to the chairman of the commission made the following statement: "Inasmuch as there was no opposition to either of the petitions this commission has granted both of these petitions. I think you are making a forward step in conservation and certainly are in accord with the other three counties in the state."
The only claim of error briefed by the plaintiffs in support of this exception is based on the first sentence of the above quotation. They say that it is obvious that the petitions were granted by default; that it clearly appears from the record that the reason for granting the petitions was that no one appeared in opposition to them.
There was no denial of the answer by way of replication. Thus the facts therein set forth, if well pleaded, must be taken as *591 true. Deerfield River Co. v. Wilmington Power & Paper Co., supra; Dyer v. Dean, supra. The defendant in its answer set forth in detail what transpired at the hearing from which the orders in question resulted. The evidence there taken is fully recited. In addition, in its answer the defendant alleges that consideration was given by it to its records relating to claims for damage caused by bear in Addison county. These claims covered the years 1941 to 1949 inclusive. The records showed that for the last 3 years of the period covered there had been no such claims made. The plaintiffs make no claim that these evidentiary facts were not well pleaded. They admit in their brief that the evidence pleaded could show, as they claim, that the orders were not properly made or, as the defendant claims, that they were proper.
In each of the orders it is stated that the commission has determined that for the public good and for the preservation of trout in one order and of black bear in the other, additional protection for such fish or animal is necessary in Addison county and therefore the orders are made.
In view of the foregoing facts and circumstances we do not believe that the statement of the chairman should be given the force and meaning contended for. Facts were pleaded to support each of the orders. In the case of the order relating to black bear it is shown that in its making consideration was given to records of the commission. In each of the orders it is stated that the commission has determined, as the reasons for issuing the orders, that they are for the public good and for the preservation of the subject matters of the orders. These reasons are in substantial compliance with those set forth in V.S. 47, § 6570 as the basis for such orders. It seems to us to be inconceivable that the commission as a basis for its determination wrongfully disregarded all of the evidence heard by it and what appeared from its own records and issued the orders on no factual basis but only because no one appeared in opposition. The language used by the chairman in closing the hearing was not well chosen but, for the reasons stated, it is not to be taken literally. This exception is not sustained.
The third and final exception briefed by the plaintiffs is to the chancellor's order. The ground of this exception is that "the order is invalid because it is based on V.S. 47, §§ 6570-6574 inclusive which are unconstitutional delegations of power by the Legislature to the defendant commission to regulate hunting and fishing." It is unnecessary to set forth in full these sections. For present purposes it is sufficient to say, as already indicated, that they authorize the fish and game commission upon a petition and after a hearing thereon to give protection, in addition to that afforded by chapter 279 of V.S. 47, to any species of game bird, quadruped or fish. If the commission determines that such additional protection should be given for the reasons stated in the statutes it "may regulate or prohibit the taking of such species as the public good may require." It is provided that the commission may make an order applying to any county or any part thereof.
The constitutional provision which the plaintiffs claim is here violated is § 63 of chapter 2 of our constitution which reads as follows: "The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly."
The plaintiffs say that in the case of hunting and fishing the constitution provides that all the regulations are to be made and provided by the General Assembly. In other words, they claim that the Legislature, because of the wording of § 63, cannot legally delegate any authority or power to the fish and game commission to make such regulations. This is their sole ground here relied upon in support of the exception now under consideration.
The only case cited us by either party and the only one which we have been able to find where this question was squarely raised is that of State v. Hall, 96 Vt. 379, 119 A. 884. In that case the question apparently *592 was raised but it was not passed upon as it was not necessary that it be decided in order to make a final determination of the case. No cases were cited and we found none from other jurisdictions where like wording of constitutional provisions have been construed.
We do have cases, however, which are a help in determining the answer to this question. The most important of these is State v. Theriault, 70 Vt. 617, 41 A. 1030, 42 L.R.A. 673. In that case a statute, V.S. 4568, was claimed to be unconstitutional in that it amounted to a taking of private property for public use without compensation. The statute authorized the fish and game commissioners, when they placed fish in a pond or stream, to prohibit fishing therein, or in specified portions thereof, for a term of years, and provided that waters when so stocked should be treated as public waters, etc. The statute was held not unconstitutional, but as a reasonable exercise of the police power of the state. See State v. Niles, 78 Vt. 266, 272, 273, 62 A. 795.
We quote from the opinion in the Theriault case beginning at 70 Vt. the bottom of page 620, 41 A. at page 1031: "Article 2, c. 1, of the constitution of Vermont, provides: `That private property ought to be subservient to public uses when necessity requires it, nevertheless, when any person's property is taken for the use of the public, the owner ought to receive an equivalent in money.' If the act infringes this constitutional provision, the legislature had no authority to enact it, and it is without legal validity. But this provision of the constitution must be read in connection with its other provisions, and especially must be considered with article 5, c. 1, of the constitution of Vermont, which declares: `That the people of this state by their legal representatives have the sole, inherent, and exclusive right of governing and regulating the internal police of the same;' and section 40 (now section 63) of chapter 2 of the constitution of Vermont, reading: `The inhabitants of this state shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not enclosed; and in like manner to fish in all boatable and other waters (not private property) under proper regulations to be hereafter made and provided by the general assembly.' Hence the question for consideration is, whether the act of the fish and game commissioners, definitely and specifically authorized and performed by and under V.S. § 4568, is a taking of a right belonging to the owner of the land over which the brook flows, for the use of the public; or whether it is a regulation of his use of that right, under section 40 of chapter 2 of the constitution of Vermont, and an exercise of the right of governing and regulating the internal police of the people of the state, reserved to their representatives by article 5, chapter 1, of the constitution of Vermont."
In State v. Niles, supra, 78 Vt. at page 273, 62 A. at page 797, it is stated: "The granting of licenses by the fish and game commissioners to nonresident hunters to kill deer within this state is within the proper exercise of the police power of the state, provided it does not discriminate in their favor and against resident hunters, without classification."
In Hazen v. Perkins, 92 Vt. 414, at page 420, 105 A. 249, at page 251, it is said: "The power of proper regulation of common fishery in such public waters is by the Constitution reserved to the General Assembly (Const. c. 2, § 63); and, in the exercise of the police power, it may adopt such measures, within constitutional limits, as it deems necessary for the preservation of such public property and the common rights therein."
The significance of these cases is that they show this Court has held that the Legislature has the authority in the exercise of the police power granted it under article 5, chapter 1 of our constitution to delegate duties and power to the fish and game commission to make proper regulations concerning matters within its jurisdiction.
It is clear from our cases that the police power reserved to the Legislature under article 5, chapter 1, can properly be delegated in matters concerning the protection or preservation of the public morals, health, safety and welfare. State v. Quattropani, 99 Vt. 360, 133 A. 352; State v. *593 Morse, 84 Vt. 387, 80 A. 189, 34 L.R.A.,N.S., 190; State Board of Health v. Village of St. Johnsbury, 82 Vt. 276, 73 A. 581, 23 L.R.A.,N.S. 766. The first of these cases had to do with an order made by the state board of health. It is stated 99 Vt. at page 362, 133 A. at page 353: "That the public health is a proper subject for police power protection, and that that power can lawfully be delegated to the state board of health, are both unquestioned and unquestionable." The Morse case also had as its subject matter a regulation of the same board. It is stated, 84 Vt. on pages 393 and 394, 80 A. on pages 189 and 191: "The power (police) may lawfully be delegated to municipalities, to local or to state boards * * * and, when so delegated, the agency employed is clothed with power to act, as full and efficient as that possessed by the Legislature itself."
In none of the cases to which we have referred, or in any others which we have read in our consideration of the present question, has it even been suggsted that the language relied upon by the plaintiffs in § 63 of chapter 2 of our constitution places any restriction on the power of the Legislature to delegate the making of regulations to the fish and game commission.
The established rule is that every presumption is to be made in favor of the constitutionality of an act of the Legislature and it will not be declared unconstitutional without clear and irrefragable proof that it infringes the paramount law. State v. Auclair, 110 Vt. 147, 156, 4 A.2d 107. An act is never to be construed as unconstitutional if a reasonable construction can be placed upon it which will render it valid. In re Cornell, 111 Vt. 454, 460, 18 A.2d 151.
If we were to hold as the plaintiffs say we should, in respect to § 63 of chapter 2 of our constitution the effect would be not only to hold the statutes in question to be unconstitutional but also all statutes which delegate any power to make regulations to the fish and game commission or to the director of the commission. The result of such a holding would be that the purpose for which the commission was created would be largely if not wholly destroyed. The Legislature would be forced to pass laws covering every matter which could be called a regulation of fish and game affairs, no matter how small. It is unreasonable to suppose that the framers of the constitution contemplated or desired that such a situation as this should be brought to pass when they drafted the section now under consideration. It is reasonable to suppose, and we so hold, that they did not mean that the regulations referred to in § 63 must be promulgated by the Legislature itself but that they did mean and intend that regulations, proper in the sense that they complied with constitutional requirements, might be made by the Legislature through a delegation of the power to make such regulations to a body or person given jurisdiction by the Legislature over matters pertaining to fish and game, the subject matters of section 63.
As we have seen, statutes delegating the making of regulations concerning fish and game are from their nature police power statutes. Although in neither the Theriault, Niles or Perkins cases, supra, was the question raised as to whether section 63 of chapter 2 of the constitution barred the Legislature from delegating police powers reserved to it by article 5 of chapter 1 of the constitution to matters pertaining to fish and game, the statements and holdings in these cases, particularly those in the Theriault case, indicate strongly that they would have held as we have on this question if it had been presented. We can think of no reason why the framers of the constitution should have considered that the Legislature should not have the same power of delegation in respect to fish and game matters as it has to other matters properly to be regulated under article 5 of chapter 1 of the constitution.
It might be noted in conclusion that any question in regard to order number 24 has become largely, if not wholly, moot because of the passage at the last session of the Legislature of the act now designated as Temporary No. 74 which has substantially the same subject matter as the order.
The decretal order is affirmed.
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782 F.2d 1042
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.STOJILKO KAJEVIC, Petitioner-Appellant,v.BENJAMIN F. BAER, ET AL., Respondents-Appellees.
84-1498
United States Court of Appeals, Sixth Circuit.
12/9/85
ORDER
1
BEFORE: KEITH and KENNEDY, Circuit Judges; and UNTHANK, District Judge.*
2
Kajevic appeals pro se from the district court's judgment denying his petition for a writ of habeas corpus. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
3
Kajevic is incarcerated at the federal prison in Milan, Michigan. He was convicted by a jury in a federal district court in Chicago of various offenses related to a conspiracy by Serbian nationalists to bomb locations where Yugoslavian officials could be found. Kajevic's habeas corpus petition challenges a decision by the federal Parole Commission to deny him parole. The district court found all of Kajevic's issues to be without merit and denied the writ.
4
On appeal, Kajevic raises four issues: that federal law enforcement officials cooperated with the Yugoslavian Secret Police to bring about the denial of Kajevic's parole, that the Commission abused its discretion by relying on false information, that the Commission's decision was influenced by media pressure, and that the Commission incorrectly changed Kajevic's offense severity rating. The first issue was not raised in the district court and will not be considered on appeal. Ruip v. United States, 555 F.2d 1331, 1337 (6th Cir. 1977).
5
Concerning the second issue, the district court found that a report by the United States District Attorney provided the basis for the Parole Commission's decision. Therefore, there was no abuse of discretion when Kajevic was denied parole. Adams v. Keller, 736 F.2d 320, 324 (6th Cir. 1984). The court also held that the national media attention concerning Kajevic's case was properly used to vest original jurisdiction in the National Commissioners but did not effect the substantive decision made by those Commissioners. Christopher v. United States Parole Commission, 589 F.2d 924, 932 (7th Cir. 1978). Finally, the district court held that because Kajevic was sentenced under 18 U.S.C. Sec. 4205(b)(2) does not mean that he was automatically entitled to parole after service of one-third of his sentence. That subsection only guarantees parole eligibility, not actual release. United States v. Addonizio, 442 U.S. 178, 188-89 (1979); accord, Hayward v. United States Parole Commission, 659 F.2d 857, 860-61 (8th Cir. 1981), cert. denied, 456 U.S. 935 (1982); Shahid v. Crawford, 599 F.2d 666, 669-70 (5th Cir. 1979). We agree with these conclusions of the district court.
6
The judgment of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.
*
The Honorable G. Wix Unthank, U.S. District Judge for the Eastern District of Kentucky, sitting by designation
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448 F.2d 401
Edward Alfred SMEDBERG, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 71-2555.
United States Court of Appeals, Fifth Circuit.
August 24, 1971.
Edward A. Smedberg, pro se.
Anthony J. P. Farris, U. S. Atty., Houston, Tex., for respondent-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
DYER, Circuit Judge:
1
By § 2255 motion, Smedberg challenges the District Court's judgment of conviction entered after he pled guilty to violating 26 U.S.C.A. § 4744(a)(2). Smedberg asserts that Leary v. United States, 1968, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, should be retrospectively applied and that he has not effectively waived his fifth amendment privilege. The District Court denied his petition. The application for leave to appeal in forma pauperis is granted, and we affirm.
2
In a Memorandum and Order of Dismissal, the District Court stated:
3
It might be well to say in passing that after the Supreme Court's decisions in Marchetti v. U. S., 390 U.S. 39 [88 S.Ct. 697, 19 L.Ed.2d 889], Grosso v. U. S., 390 U.S. 62 [88 S.Ct. 709, 19 L.Ed.2d 906], and Haynes v. U. S., 390 U.S. 85 [88 S.Ct. 722, 19 L. Ed.2d 923], the Honorable Ben C. Connally, Chief Judge of this Court, and the undersigned Judge, decided that in view of the last three decisions mentioned, the Marihuana Tax Act might be subject to the same claim of privilege as it turned out that it was in the Leary decision, and we both started warning defendants charged with the Marihuana Tax Act of this possible availability of their claim of privilege against self-incrimination.
4
Being endowed so perspicaciously, the District Court informed Smedberg at his arraignment that he could possibly claim his right against self-incrimination and that the marihuana tax count, § 4744(a), might not be enforceable. Both Smedberg and his counsel acknowledged that they understood what the court had said. Smedberg nevertheless said that he wished to voluntarily waive his fifth amendment right and plead guilty.
5
The record plainly shows that Smedberg elected to proceed on the tax count (count three) as he did to avoid trial on two other counts of the indictment — charging him with smuggling (count one) and with receiving and concealing marihuana (count two), both in violation of 21 U.S.C.A. § 176a — for which the penalties are more severe. As usual, the Government dismissed these counts after Smedberg's plea to the tax count.
6
Marchetti, Grosso, and Haynes were decided on January 29, 1968. On June 10, 1968, the Supreme Court granted certiorari in Leary to consider, among other things:
7
I. Whether the registration and tax provisions in 26 U.S.C. Sections 4741(a), 4742 and 4744(a), as applied to Petitioner, violate his privilege against self incrimination protected by the Fifth Amendment to the United States Constitution and his rights thereunder as amplified by this Court in three recently decided cases: Marchetti v. United States, 390 U.S. 39 [88 S.Ct. 697, 19 L.Ed.2d 889] (1968); Grosso v. United States, 390 U.S. 62 [88 S.Ct. 709, 19 L.Ed.2d 906] (1968); and Haynes v. United States, 390 U.S. 85 [88 S.Ct. 722, 19 L.Ed.2d 923] (1968).
8
392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362.
9
In Leary, supra at 27, 89 S.Ct. at 1543, the Supreme Court said:
10
There remains the further question whether the petitioner's claim of privilege was timely and whether it was waived. * * * Petitioner's trial occurred before our decisions in Marchetti, Grosso and Haynes * * *.
11
The record in this case convincingly shows that the District Court on September 16, 1968, drew to the attention of Smedberg and his counsel the present likelihood of a valid defense to the tax count, but that Smedberg chose to waive his privilege and be sentenced under that count rather than risk a conviction under the other counts. Smedberg's waiver was knowingly and understandably made. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.
Affirmed.1
Notes:
1
The disposition we make of this case makes it unnecessary for us to consider the retrospective application ofLeary, as we did in Harrington v. United States, 5 Cir. 1971, 440 F.2d 1190.
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378 F.3d 839
Charles DAVENPORT; Brent Johnson, individually and on behalf of all others similarly situated, Appellants,v.FARMERS INSURANCE GROUP; Illinois Farmers Insurance Company; Paul Peterson; Does 1 through 50, Appellees.
No. 03-3307.
United States Court of Appeals, Eighth Circuit.
Submitted: May 12, 2004.
Filed: July 28, 2004.
Appeal from the United States District Court for the District of Minnesota, Paul A. Magnuson, J.
Richard A. Lockridge, argued, Minneapolis, MN (Robert K. Shelquist and Matthew R. Salzwedel of Minneapolis, MN on the brief), for appellant.
Christopher Morris, argued, Minneapolis, MN (Lewis A. Jemele, Jr., and Charles E. Lundberg of Minneapolis, MN on the brief), for appelee.
Before WOLLMAN, HEANEY, and MURPHY, Circuit Judges.
HEANEY, Circuit Judge.
1
Plaintiffs Charles Davenport and Brent Johnson brought this suit on behalf of themselves and others similarly situated, alleging that Defendants Farmers Insurance Group, Illinois Farmers Insurance Company, Paul Peterson, and Does 1 through 50 (collectively referred to as Farmers) violated the Minnesota Insurance Fair Information Reporting Act (MIFIRA) by collecting and disclosing their personal information without first providing them notice and securing their written authorization. Farmers moved to dismiss for failure to state a claim, arguing that the federal Fair Credit Reporting Act (FCRA) preempted the MIFIRA. Although the district court found that the FCRA did not preempt the MIFIRA, it nonetheless granted Farmers' motion, concluding that the MIFIRA did not require Farmers to notify the plaintiffs or obtain their written authorization before gathering their personal information. We affirm in part and reverse in part.
BACKGROUND
2
Since the district court decided this matter based on a motion to dismiss, we recite the facts as alleged in the complaint, viewing them in the light most favorable to the plaintiffs. Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir.2002). Charles Davenport and Brent Johnson1 are both Minnesota residents who have purchased property and automobile insurance policies from Farmers for over ten years. Farmers sells insurance, and is licensed to do business in Minnesota. Within the last five years, Farmers obtained the plaintiffs' personal information, including credit reports, for purposes unrelated to any claims made by them. Farmers did not provide Davenport or Johnson any notice of its intent to procure this information, nor did it receive written authorization from Davenport or Johnson to do so.
3
On February 3, 2003, Davenport and Johnson filed suit on behalf of themselves and others similarly situated, alleging violations of Minnesota law. Specifically, they argued that Farmers violated the MIFIRA by collecting and disclosing personal information about policyholders and potential policyholders without first notifying them or receiving written authorization to procure such information. Farmers moved to dismiss for failure to state a claim, arguing that federal law preempted the MIFIRA because the FCRA allows the collection and disclosure of such information without any notice to or authorization from consumers. The district court determined that the MIFIRA was not preempted by the FCRA, but that the MIFIRA did not provide the plaintiffs any relief because it allowed disclosure of personal information without written authorization where such disclosure was permitted by another law, such as the FCRA. Accordingly, the district court granted Farmers' motion, and this appeal followed.
ANALYSIS
4
We review the district court's order dismissing a complaint for failure to state a claim de novo, granting no deference to its interpretation of either federal or state law. Raz v. United States, 343 F.3d 945, 947 (8th Cir.2003) (per curiam) (citations omitted). "When considering a motion to dismiss, we take the complaint's material allegations as true and liberally construe the complaint in the plaintiff's favor." Rucci v. City of Pacific, 327 F.3d 651, 652 (8th Cir.2003).
5
Minnesota, through the MIFIRA, regulates the collection and disclosure of consumers' personal information by insurance companies doing business in the state. See generally Minn.Stat. §§ 72A.494-72A.505. The federal government, through the FCRA, also governs the collection, retention, and use of consumer information, including credit reports. See generally 15 U.S.C. §§ 1681-1681x. Where state law is inconsistent with the FCRA "with respect to the collection, distribution, or use of any information on consumers," the FCRA preempts state law, but "only to the extent of the inconsistency." 15 U.S.C. § 1681t(a).
6
The plaintiffs first contend that Farmers violated the MIFIRA by failing to notify them before obtaining their personal information, including credit reports.2 According to the MIFIRA, insurance companies doing business in Minnesota must notify applicants and policyholders if the company intends to obtain their personal information, and must state its purpose in collecting such information. Minn.Stat. § 72A.494, subds. 1, 4. The FCRA also regulates the use of personal information such as credit reports, by those who use the reports, such as insurance companies. See, e.g., 15 U.S.C. § 1681m (detailing the duties and obligations of users of consumer reports). The FCRA does not, however, specifically require insurance companies to notify consumers before obtaining their personal information, nor does it affirmatively permit the procurement of such information without first providing notice to consumers. Farmers would have us hold that the MIFIRA is inconsistent with the FCRA simply because the MIFIRA regulated a matter not addressed by the FCRA. We decline to interpret Congress's silence with regard to any notice requirement to signify its intent to prohibit states from enacting their own regulations on the issue.
7
Federal law may preempt state law in three instances: 1) where Congress expressly indicates that the law is meant to preempt state law; 2) where federal law and state law conflict; and 3) where federal law occupies the entire legislative domain of an issue. Bank of Am. Nat'l Trust & Sav. Ass'n v. Shirley, 96 F.3d 1108, 1112 (8th Cir.1996). "When Congress has spoken expressly, however, the preemptive scope of the federal law is governed entirely by the express language." Id. (quoting Weber v. Heaney, 995 F.2d 872, 875 (8th Cir.1993)). The FCRA makes clear that it is not intended to occupy the entire regulatory field with regard to consumer reports. See 15 U.S.C. § 1681t(a) (stating the FCRA "does not annul, alter, affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, except to the extent that those laws are inconsistent with any provision of [the FCRA]"); Credit Data of Ariz., Inc. v. Arizona, 602 F.2d 195, 197 (9th Cir.1979); Lin v. Universal Card Servs. Corp., 238 F.Supp.2d 1147, 1152 (N.D.Cal.2002); Hughes v. Fidelity Bank, 709 F.Supp. 639, 640-41 (E.D.Pa.1989). On the contrary, the statute plainly limits its preemption of state regulations "only to the extent of the inconsistency" with those regulations. 15 U.S.C. § 1681t(a). Moreover, the Federal Trade Commission (FTC) issued commentary on the FCRA in order to clarify any doubt regarding its meaning. 16 C.F.R. § 600.1(b). This commentary reiterates that the FCRA was not intended to usurp the entire field of consumer report law: "State law is pre-empted by the FCRA only when compliance with inconsistent State law would result in violation of the FCRA." 16 C.F.R. Pt. 600, App. § 622. In fact, the FTC included an example of a permissible state regulation which bears close resemblance to the facts before us: "A State law requirement that an employer provide notice to a consumer before ordering a consumer report ... would not be pre-empted, because a party that complies with such provisions would not violate the FCRA." Id. We find this commentary particularly analogous since employers and insurance companies are treated similarly with respect to the acquisition of consumer reports under the FCRA. Compare 15 U.S.C. § 1681b(a)(3)(B) (permitting a consumer reporting agency to release a consumer report for employment purposes) with 15 U.S.C. § 1681(a)(3)(C) (permitting same for purpose of underwriting insurance for the consumer).
8
As the district court correctly noted, the FCRA allows consumer reporting agencies to furnish consumer reports to insurance companies for the purpose of underwriting insurance involving that consumer without first getting the consumer's permission. 15 U.S.C. § 1681b(a)(3)(C). The plaintiffs have never maintained, however, that Farmers is a consumer reporting agency. Indeed, Farmers agrees that "[i]n the context of the allegations in Plaintiffs' Complaint, Farmers is considered a user of consumer reports." (Appellee's Br. at 5.) The fact that the FCRA does not require consumer reporting agencies to notify insurance consumers that their reports may be examined is irrelevant to the issue of whether states may require insurance companies, as users of the reports, to provide notice before obtaining those reports. Farmers directs us to the FTC commentary stating that an insurance company may "obtain a consumer report to decide whether or not to issue a policy to the consumer, the amount and terms of coverage, the duration of the policy, the rates or fees charged, or whether or not to renew or cancel a policy." 16 C.F.R. Pt. 600, App. § 604(3)(C). Farmers suggests that this lends support to its argument that the FCRA relieves them of any obligation to provide notice to consumers prior to procuring their consumer reports. We disagree. This section of the commentary merely reaffirms that the FCRA allows insurance companies to obtain the reports for the purpose of insurance underwriting; it does not speak at all to the issue of notice. The MIFIRA's requirement that insurance companies notify consumers before collecting their personal information does not conflict with the FCRA and is consistent with relevant FTC commentary regarding supplemental state laws. We therefore find that the MIFIRA's notice provisions are not preempted by the FCRA.
9
The district court agreed that the plaintiffs' notice claim was not preempted by federal law. Rather, it turned to a subdivision of the MIFIRA stating that "[p]ersonal or privileged information may be disclosed without a written authorization if permitted or required by another law." Minn.Stat. § 72A.502, subd. 6. Reasoning that the FCRA clearly permitted disclosure of such information, see 15 U.S.C. § 1681b(a)(3)(C), it found the MIFIRA inapplicable.
10
We find the district court erred in dismissing the plaintiffs' claims in their entirety based solely on subdivision 6 of Minnesota Statute section 72A.502. First, subdivision 6, by its own terms, only applies to claims alleging the improper disclosure of personal information. Minn.Stat. § 72A.502, subd. 6. Moreover, subdivision 6 is a limitation of liability for acts that would otherwise constitute violations of Minnesota Statute section 72A.502. An allegation that an insurer failed to provide consumers notice before collecting personal information is distinct from a claim that the insurer improperly disclosed that information. Each is governed by separate sections of the MIFIRA. Compare Minn.Stat. § 72A.502 (regulating the practice of insurance companies disclosing personal information) with Minn.Stat. § 72A.494 (requiring insurance companies to notify consumers prior to collecting such information). Thus, while subdivision 6 of section 72A.502 allows Farmers to disclose consumers' personal information when another law permits such disclosure, it does not absolve Farmers of responsibility for failing to provide notice pursuant to section 72A.494 before collecting that information.
11
We next address the plaintiffs' claims that Farmers violated the MIFIRA by collecting and disclosing their personal information without first obtaining their written authorization. According to the MIFIRA,
12
An insurer, insurance agent, or insurance-support organization must not disclose any personal or privileged information about a person collected or received in connection with an insurance transaction without the written authorization of that person except as authorized by this section. An insurer, insurance agent, or insurance-support organization must not collect personal information about a policyholder or an applicant not relating to a claim from sources other than public records without a written authorization from the person.
13
Minn.Stat. § 72A.502, subd. 1.
14
To the extent that the plaintiffs maintain that Farmers violated the MIFIRA not getting their written permission before disclosing their personal information, the claim merits little discussion. As noted above, the MIFIRA allows personal information to be "disclosed without a written authorization if permitted or required by another law." Minn.Stat. § 72A.502, subd. 6. As contemplated by the MIFIRA, disclosure of such reports is permitted by another law-the FCRA. This is so because when Farmers is disclosing the plaintiffs' personal information, it is no longer a user of the reports, but is furnishing the reports to others. Under limited circumstances, the FCRA permits furnishers of consumer reports to release them to third parties without obtaining consumers' written authorization. 15 U.S.C. § 1681b. Since the disclosure of the plaintiffs' personal information is "permitted ... by another law," Minn.Stat. § 72A.502, subd. 6, Farmers was not required to obtain the plaintiffs' written permission before furnishing the information to others. We affirm the portion of the district court's order finding the plaintiffs failed to state a claim under the MIFIRA for the unauthorized disclosure of their personal information.
15
While subdivision 6 of Minnesota Statute section 72A.502 yields to the FCRA with regard to the disclosure of personal information, it does not address the collection of that information. The MIFIRA speaks in mandatory language: insurers "must not collect personal information about a policyholder or an applicant not relating to a claim from sources other than public records without a written authorization from the person." Minn.Stat. § 72A.502, subd. 1. As with the plaintiffs' claim that Farmers did not adequately notify them before obtaining their personal information, the FCRA is silent as to the issue of whether Farmers is permitted to collect such information without first obtaining written permission. Here, too, we decline to read Congress's silence as evidence it intended to preempt a state law which does not directly conflict with the FCRA. Accord 15 U.S.C. § 1681t(a). With no statement from either the FCRA or the MIFIRA exempting Farmers from liability, we find the district court erred in holding that the plaintiffs did not state a claim under the MIFIRA for Farmers' failure to obtain written authorization before collecting their personal information.3
CONCLUSION
16
The plaintiffs appeal the district court's order dismissing their suit for failure to state a claim under the MIFIRA. We agree with the district court that the MIFIRA is not preempted by the FCRA. We further find, however, that the plaintiffs have sufficiently alleged that Farmers violated the MIFIRA by obtaining and collecting their personal information without first notifying them or procuring their written authorization to do so. We reverse the district court's judgment to the contrary, and remand for proceedings consistent with this opinion.
Notes:
1
Davenport and Johnson purport to represent a class of those similarly situated. Reference to the two named plaintiffs applies equally to the putative class unless otherwise noted
2
At oral argument, Farmers suggested that the plaintiffs' so-called "notice" claim was not properly raised by the plaintiffs in their complaint. Paragraph 3 of the complaint, however, alleges that Farmers "unlawfully obtain[ed] ... the private financial, credit, and other confidential and personal information of its policy holders and applicantswithout notice to plaintiffs." (J.A. at 2 (emphasis added)). Particularly in light of our directive to "liberally construe the complaint in the plaintiff's favor," Rucci, 327 F.3d at 652, we find Farmers's contention to be without merit.
3
Since the filing of this suit, the MIFIRA has been amended to state that no written authorization is required for
the collection and use of a numeric product referred to as an insurance score or credit score that is used by a licensed insurance agent exclusively for the purpose of underwriting or rating an insurance policy, if the agent informs the policyholder or prospective policyholder requesting the insurance coverage that an insurance score or credit score will be obtained for the purpose of underwriting or rating the policy.
Minn.Stat. § 72A.501, subd. 2(c). Farmers contends that this amendment simply clarifies that its conduct was always permitted under the MIFIRA, but has provided no authority for this proposition. Moreover, the plaintiffs have alleged Farmers unlawfully obtained their personal information, a universe of data larger than the "numeric product referred to as an insurance score or credit score" referred above. See Minn.Stat. § 72A.491, subd. 17 (defining personal information to broadly include any information "from which judgments can be made about an individual's character, habits, avocations, finances, occupation, general reputation, credit, health, or any other personal characteristics").
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117 F.Supp. 729 (1953)
HOLLIDAY
v.
PACIFIC ATLANTIC S. S. CO.
No. 1582.
United States District Court D. Delaware.
October 29, 1953.
*730 *731 Henry A. Wise, Jr., Wilmington, Del., and Abraham E. Freedman, Philadelphia, Pa., for libellant.
William Prickett, Wilmington, Del., and Thomas E. Byrne, Jr., Philadelphia, Pa., for respondent.
RODNEY, District Judge.
This was a libel filed by the widow of Clinton Holliday as his administratrix under the provisions of the Jones Act.[1] There were no children. The action was based upon the death of Clinton Holliday allegedly attributable to the respondent.
The decedent died February 18, 1942. The libel was not filed until January 24, 1945. Discovery process and other causes prevented a hearing until November, 1947. This hearing was had and testimony taken upon the questions of:
(a) alleged negligence of the respondent or the unseaworthiness of the boat as the cause of the traumatic injury which resulted in the death of Holliday;
(b) negligence on the part of respondent in failing to provide reasonable medical care after such injury;
(c) damages recoverable by the libellant if the liability of the respondent was established.
Proceedings to reopen the case, further discovery process, and other matters prevented action by the court until 1951. For none of the delays, so far as it appears, has the court been responsible.
*732 On July 9, 1951 the District Court made its findings and filed its opinion. 99 F.Supp. 173. It found that the charge of unseaworthiness had not been sustained. The District Court held that the respondent was not guilty of failing to provide reasonable medical care. No finding was, of course, made upon the adequate record as to the damages suffered by the libellant. On appeal the United States Court of Appeals for the Third Circuit, in Holliday v. Pacific Atlantic S. S. Co., 197 F.2d 610, 613, on the record as established in the District Court, sustained the finding of the District Court that the evidence did not show the negligence of the respondent or the unseaworthiness of the boat as the cause of the traumatic injury which resulted in death. The Court of Appeals, however, on the record before it and as established in the District Court, felt that the respondent was negligent in failing to provide reasonable and timely medical treatment and concluded that the libellant was entitled to judgment. The judgment of the District Court in favor of the respondent was vacated and the cause remanded with directions to determine the amount of libellant's damage and to enter judgment accordingly.
Thus the matter is in this court to obey the mandate of the Court of Appeals "to determine the amount of libellant's damage and to enter judgment accordingly." The libellant sought to reopen the case as to damages and to take testimony anew upon that subject. The respondent objected and contended that as the record as established would have been sufficient to assess damages if the original trial had resulted in a judgment for libellant, so damages, under the mandate, should be ascertained from that record.
As a matter of convenience to the then attending counsel and witnesses and subject to the objection of the respondent, the additional testimony was taken to be used or not used as the court should subsequently determine.
Two matters are thus presented:
A. In obedience to the mandate of the Court of Appeals to "determine the damages," should such damages be determined upon the record theretofore established or should the testimony be reopened and new evidence admitted?
B. The ascertainment of the damages after determination of the testimony upon which such ascertainment was to be had.
A. From the authorities certain general principles may be called governing the action of the lower court after a remand from an appellate court.[2]
It seems clear from all the authorities that the mandate from the reviewing court is to be strictly followed within the compass of the mandate. Where the mandate requires something to be done of a final nature, the action of the lower court may be in the manner of a ministerial act of compliance. Where the mandate remands the case to the lower court "with directions" to accomplish a certain act, but without indicating how such act shall be performed, there exists a large measure of discretion in the performance. As said in Sprague v. Ticonic Nat. Bank, 307 U. S. 161, 168, 59 S.Ct. 777, 781, 83 L.Ed. 1184, "While a mandate is controlling as to matters within its compass, on the remand a lower court is free as to other issues."
In the present case and without recognizing any right on the part of the libellant to have additional evidence taken but in the exercise of sound judicial discretion, I have concluded that the additional and supplemental testimony shall be admitted in connection with the testimony heretofore taken. This is largely because there has elapsed the period of over ten years from the time of the fatal occurrence and almost six years from the original trial.
B. Arrival at a just and fair amount of damages in the present case is not to *733 be had without many difficulties. So many imponderables are presented that the difficulties are increased.
Recovery is sought under the Jones Act.[3] Under that Act the personal representative of a seaman may recover for his death as a result of personal injury and statutes regulating the right of action for death in the case of railway employees are made applicable. We are thus remanded to the Federal Employers' Liability Act, 45 U.S.C.A § 51 et seq., relied on by the libellant.
The libellant claims two causes of action: (a) an action under 45 U.S.C.A. § 51; and (b) an action under 45 U.S.C. A. § 59. These will be considered in order.
(a) Under 45 U.S.C.A. § 51 recovery may, in case of death, be had by the personal representative of the deceased for the "benefit" of the widow. It is too clear for discussion that under this section the amount of recovery is based upon and limited by the pecuniary loss sustained by the beneficiary under the section.[4] In Dow v. Carnegie-Illinois Steel Corp., 165 F.2d 777, 779, the Court of Appeals of this Circuit stated that the "benefit" as mentioned in the Act "is the amount which the jury finds the dead man would have given to his wife * * * had he lived." The earnings of the deceased, as such, are not of primary importance and are considered only as they bear upon the question of pecuniary assistance or contribution rendered by the deceased to the beneficiary.
The amount of pecuniary contribution of the deceased to his then wife and the consequent financial loss to his wife or widow must in turn be divided into two distinct periods. The first period would embrace the time from the death of the deceased to the time of the ascertainment of damages. This is the amount receivable at the present time and based upon the determination of payments from the death to the date of ascertainment of damages, and this would not be subject to the ascertainment of present worth of such sum. The second period would embrace the financial loss the widow would reasonably be expected to suffer in the future based upon reasonable expectancy of life. These losses have not yet occurred and payment now will be subject to further consideration.[5]
The deceased was a cook on the steamer Peter Kerr. At the time of his death his basic pay was $137.50 per month and he was entitled to the benefit of a war-time bonus of almost 100% from a period shortly after World War II started and until the bonus was discontinued by proper authority. The deceased had made an allotment of $65 per month to be paid to his then wife by the steamship authorities from the money due to him. The widow testified at the first trial that the deceased made other payments to her and that his total contributions (allotment and other payments) were not less than $100 per month. This was substantially all of the testimony at the first trial concerning the pecuniary contribution made by the decedent to the beneficiary. At the second trial the widow baldly stated that the deceased gave her 75% of his income. Using this as a basis and with no other evidence of increased pecuniary allotment or payments, the claim is made for 75% of all the greatly increased income from bonus, raise of wages and overtime which the deceased, it is claimed, would have enjoyed had he lived. For this I see no basis either in law or in fact. I am of the opinion that the proven payments should be adopted and the increased income arising from bonus, increased wages and overtime considered in arriving at the probable amount of payments that would have been made by the deceased had he lived. This I have done and, after considering the bonus, increased wages and overtime the deceased might have enjoyed had he lived, I have arrived at a *734 figure which represented the payments that the deceased may reasonably have been presumed to have made to or for his wife. This consideration of bonus, increased wages and overtime very considerably increased the proven amount of contributions.
I have in view of all the circumstances adopted the figure of $150 a month as the reasonable and probable amount in allotments or payments to be made to the widow from the date of death to the date of ascertainment of damages, viz., April 30, 1953, a period of 11 years, 2 months. This amount I have computed at $20,100. To this amount should be added the amount of damages for future support and to this I must give some attention.
The ascertainment of the amount of damages which will compensate the libellant for future loss of pecuniary benefits is beset with many difficulties. "The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased."[6]
The consideration of future pecuniary benefits which might reasonably be expected to have been received by the widow must necessarily include some thought of the reasonable expectancy of life of the deceased. For this reason mortality tables were introduced at both trials by the libellant. These tables differed materially as to their figures and, indeed, this difference was one of the factors influencing the court to admit the additional testimony so that the court would, in its consideration, have the benefit of all contentions and information.
Mortality and annuity tables are not fixed rules to be followed implicitly. An expectancy of life as shown by a mortality table is not a fixed multiplicand to be used with an amount of support as a multiplier in order to definitely arrive at a gross amount of future support. As said in Thompson v. Camp, 6 Cir., 163 F.2d 396, 403, "Mortality and annuity tables are merely guides to assist the jury in reaching its verdict; they do not furnish rules which the jury is required to follow. The various factors which are present in any particular case making the tables less applicable than they otherwise would be, are also to be considered by the jury." See also Haidacker v. Central R. Co. of N. J., D.C., 52 F.Supp. 713, 715.
Among the factors to be considered, among others, in dealing with mortality tables is the possibility that the deceased would not be able to work at his usual occupation during all the remaining years of his life and up to the moment of termination of his life expectancy and the possibility that his earning power would decrease with advancing age. Indeed, some authorities cited by the defendant view "work expectancy" rather than "life expectancy" the proper basis.
The hazardous nature of the occupation, if any, is also to be considered. In the present case the deceased was a cook on a merchant vessel. War had just broken out and enemy submarines and bombers were taking a heavy toll of such vessels. The deceased, because of the nature of his occupation, was being paid a bonus of 100% of his normal pay, which seemingly was based upon its hazardous nature. The very boat, Peter Kerr, on which the deceased was working at the time of his death was itself reputedly subsequently bombed and lost.
That persons engaged in hazardous occupations do not necessarily enjoy the same expectancy of life as those engaged in non-hazardous duties seems clear. Indeed, some courts acted upon actuarial figures that life expectancy of a railroad engineer or brakeman was materially less than that of an ordinary person.[7]
*735 Mortality tables were introduced in both trials by the libellant showing the life expectancy of the deceased. There is high authority for the principle that the courts take judicial knowledge of standard mortality tables and their contents.[8] Several of these tables widely used in appropriate activities have been consulted.
In view of all the circumstances I have concluded that the widow might reasonably have been expected to receive from her husband some benefits in the form of pecuniary payments for the period of 18 years from the date of his death. Whether these payments would have continued at the rate heretofore adopted or be subject to adjustment due to advancing age is problematical. Of this period of 18 years, 11 years and 2 months have already been considered to the date of trial, viz., April 30, 1953, leaving 6 years and 10 months for the computation of future losses.
The amount to be awarded the libellant for future losses of pecuniary benefits is not, however, to be arrived at by the mere ascertainment of the monthly payments and the expectancy of life. The present value of the aggregate future payments must be ascertained and for this purpose annuity figures are utilized showing different interest calculations upon which such present value is ascertained. The cases vary from the adoption of 2% for extremely conservative estimates to the legal rate in the community in which the trial is had. The adoption of the reasonable rate should involve the personality of the party interested and his or her capacity and knowledge of business affairs to provide a reasonably safe investment. The libellant in the present case has not been shown to be unusually skilled in the financial or investment field and, as to her, a reasonably safe percentage should be adopted. This percentage in view of all factors, incuding U. S. Government bonds of 3¼%, I have fixed at 4%.
Upon this basis the present value of the future losses would be $10,746.
A compilation of the foregoing figures, therefore, would show an award to the libellant for past and future losses under 45 U.S.C.A. § 51 of $30,846.
(b) The libellant seeks also a recovery of damages under 45 U.S.C.A. § 59. Insofar as applicable here this section provides that "any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow * * *."
The libellant contends that under this section there is a right of action based on the economic value of the balance of the decedent's unexpired normal expectancy of life as well as a right of action for damages for the pain and suffering experienced by the deceased. The contention is made for the preservation of the record rather than an expectancy of its present adoption for the Court of Appeals of this Third Circuit in Hickman v. Taylor, 170 F.2d 327, determined precisely to the contrary and this is binding on me.
Insofar as the present case is concerned the recovery of damages under Sec. 59 is to be based upon the pain and suffering sustained by the deceased while he lived and which, by virtue of the section, survives to the present libellant. It is, of course, both useless and untimely to point out the somewhat unusual divergent purposes of the original act shown by Sec. 51, based as it is on the pecuniary loss of the beneficiary and Sec. 59 which concerns no measure at all of *736 financial loss to the beneficiary. Such, however, is the law. There is something incongruous, however, in close relatives seeking to greatly increase their own financial profit by the enhancement or magnifying the pain and suffering sustained by the deceased unless, indeed, the damages might be considered in the nature of exemplary or punitive damages and there is no evidence whatever in this case to sustain such a theory. In this case the claim of the libellant for the pain and suffering of the deceased has been increased over threefold beyond that claimed at the first trial and upon precisely the same evidence.
This court and the Court of Appeals have held that the respondent was not guilty of any negligence in the cause of injury from which the decedent died. The liability of the respondent grows out of its failure to provide that measure of timely medical service that, under the circumstances, its duty required it to render. The Court of Appeals has indicated that some fifteen or more hours elapsed after this duty clearly arose. What portion of pain and suffering occurred after this duty arose is difficult to determine. The facts of pain and suffering are rather restricted. The accident seems to have happened on February 2 or February 3, 1942. The decedent was working on February 5 or 6. One witness testified without definite relation to time as to the very severe amount of pain suffered before the decedent was removed to the hospital on February 8, after which no testimony exists.
Even in the absence of any testimony as to pain and suffering I would feel constrained to find and to hold that very considerable pain and suffering did exist and for this a judgment must be given. I have awarded the sum of $1,500.
A compilation of all the amounts considered in this memorandum results in an award to the libellant of $32,346.
Costs are awarded to libellant.
NOTES
[1] 46 U.S.C.A. § 688.
[2] The authorities are in part collected in 2 R.C.L. p. 289; 13 Cyc.Pl. & Pr. p. 835; 4 C.J. p. 1220; 5 C.J.S. Appeal and Error, §§ 1965, 1973, pp. 1510, 1529; 3 Am.Jur. p. 736.
[3] 46 U.S.C.A. § 688.
[4] See cases collected in 45 U.S.C.A. § 51, note 877.
[5] Mobile & O. R. Co. v. Williams, 221 Ala. 402, 129 So. 60, 66.
[6] Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 489, 36 S.Ct. 630, 631, 60 L. Ed. 1117.
[7] Jones v. Kansas City So. Ry. Co., 143 La. 307, 78 So. 568; Mobile & O. R. Co. v. Williams, 221 Ala. 402, 129 So. 60, 67; Sibert v. Litchfield & M. Ry. Co., Mo.Sup., 159 S.W.2d 612, 618.
[8] City of Lincoln v. Power, 151 U.S. 436, 14 S.Ct. 387, 38 L.Ed. 224; Southern Pac. Co. v. De Valle Da Costa, 1 Cir., 190 F. 689; Commissioner of Internal Revenue v. Meyer, 6 Cir., 139 F.2d 256; Black v. United States, D.C., 74 F.Supp. 62; Chamberlayne, Ev., Sec. 859c; 1 Jones on Ev., 2d Ed., Sec. 453; Ann. Cas. 1914C, 685.
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FILED
United States Court of Appeals
Tenth Circuit
October 29, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-6108
v. (D.C. No. 98-CR-00061-R-2)
(W.D. Okla.)
RODNEY ALPHONZE
ARCENEAUX,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, KELLY, and McCONNELL, Circuit Judges. **
Defendant-Appellant Rodney Alphonze Arceneaux appeals the district
court’s denial of his motion under 18 U.S.C. § 3582(c)(2) to modify his sentence.
Mr. Arceneaux pled guilty to possession of cocaine base with intent to distribute,
21 U.S.C. § 841(a)(1), and was sentenced to 292 months’ imprisonment and five
years’ supervised release. He appealed his sentence and this court affirmed.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
United States v. Arceneaux, No. 99-6049, 2000 WL 136150 (10th Cir. Jan. 26,
2000) (unpublished). He later sought relief pursuant to 28 U.S.C. § 2255; the
district court denied the motion and we denied a certificate of appealability.
United States v. Arceneaux, 26 Fed. App’x 894, 2002 WL 189058 (10th Cir. Feb.
7, 2002). Thereafter, on motion by the government pursuant to Fed. R. Crim. P.
35, the district court (in September 2000) reduced Mr. Arceneaux’s sentence to
220 months. Mr. Arceneaux’s projected release date is July 13, 2019.
On April 17, 2008, Mr. Arceneaux filed a motion for resentencing under 18
U.S.C. § 3582(c)(2), pursuant to Amendment 706 of the Sentencing Guidelines.
Thereafter, he filed a counseled motion for reduction of sentence joined at least in
part by the government. Mr. Arceneaux and the government agreed that
Amendment 706 was applicable, that the revised Guideline calculation would
result in a Guideline range of 235 to 293 months, and that a proportional
reduction in his sentence would result in a sentence of 176 months. 1 R. Doc. 258
at 2. Mr. Arceneaux sought a sentence of 163 months (235 - 72 months),
claiming that the Guidelines were merely advisory, which the government
opposed as contrary to U.S.S.G. § 1B1.10, Application Note 3 (Mar. 3, 2008
Supp.). Id.
On May 1, 2008, the district court denied the motion entirely after
considering the factors set forth in 18 U.S.C. § 3553 and in light of Mr.
Arceneaux’s “lack of institutional adjustment.” 1 R. Doc. 259. Mr. Arceneaux
-2-
contends that the district court erred in denying his motion, leaving in place an
unreasonable sentence in light of the statutory factors enumerated in 18 U.S.C. §
3553(a). He contends that the government never opposed his motion based on
any public safety factors, and that the disagreement between the parties was
whether Mr. Arceneaux’s alternative to computing the proportional reduction was
proper. Aplt. Br. at 11; see also U.S.S.G. § 1B1.10(b)(2)(B) & Application Note
3 (Mar. 3, 2008 Supp.). He further notes that his institutional record was
relatively unexceptional, did not result in additional criminal charges, and none of
the incidents reported were related to controlled substances, alcohol, or dangerous
weapons. Aplt. Br. at 12.
We review the district court’s denial of a motion for resentencing for
abuse of discretion. United States v. Sharkey, No. 08-3115, 2008 WL 4482893
(10th Cir. Oct. 7, 2008). Section 3582(c)(2) permits the district court to reduce a
term of imprisonment if the defendant’s sentence was “based on a sentencing
range that has subsequently been lowered by the Sentencing Commission pursuant
to U.S.C. 994(o) . . . after considering the factors set forth in section 3553(a).”
Factors to be considered under § 3553(a) include, but are not limited to, the
character of the offense and the defendant’s history; the need for the sentence to
protect the public, afford deterrence, and reflect the seriousness of the offense;
and the applicable sentencing range. Under U.S.S.G. § 1B1.10, the district court
plainly may consider post-sentencing conduct. U.S.S.G. § 1B1.10, Application
-3-
Note 1(B)(iii) (Mar. 3, 2008 Supp.).
Given our standard of review, we affirm the district court. First, 18 U.S.C.
§ 3582(c)(2) and U.S.S.G. § 1B1.10 (Mar. 3, 2008 Supp.) grant the district court
discretion on whether to reduce a term of imprisonment based on a sentencing
range that has been subsequently modified. The subsequent modification under
Amendment 706 did not make mandatory a sentencing reduction. Second, in
making its determination, the district court must consider the factors set forth
under § 3553(a). After a review of the record, including the Presentence
Investigation Report and the Preliminary Report for Consideration of Sentence
Reduction Based on Crack Cocaine Amendment, both prepared by the Probation
Office, we note that Mr. Arceneaux has a record of disciplinary infractions
spanning his imprisonment and that the district court’s denial of his motion does
not constitute an abuse of discretion.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-
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634 F.2d 637
U. S.v.Lebish
80-1323
UNITED STATES COURT OF APPEALS Ninth Circuit
11/14/80
1
S.D.Cal.
AFFIRMED
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Filed 9/2/15 OptimisCorp v. Zilberman CA2/8
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 EIGHT
OPTIMISCORP, B256442
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC121529)
v.
LEONID ZILBERMAN et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard A. Stone, Judge. Affirmed.
Ogloza Fortney, Darius Ogloza, David Fortney and Brian D. Berry for Plaintiff
and Appellant.
Robie & Matthai, Edith R. Matthai and Kyle Kveton for Defendants and
Appellants Leonid Zilberman and Wilson Turner Kosmo LLP.
Van Vleck Turner & Zaller, Daniel J. Turner, and Damion D. D. Robinson for
Defendant and Appellant Laura Brys.
******
A SLAPP suit is “a meritless suit filed primarily to chill the defendant’s exercise
of First Amendment rights.” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815,
fn. 2, disapproved of on other grounds in Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68, fn. 5.) In response to SLAPP suits, the Legislature enacted
Code of Civil Procedure section 425.16,1 known as the anti-SLAPP statute, which
permits early dismissal of SLAPP suits. Section 425.16 provides in pertinent part: “A
cause of action against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has established that there is
a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
The test for analyzing an anti-SLAPP motion is well established. “In ruling on an
anti-SLAPP motion, the trial court conducts a two-part analysis: The moving party bears
the initial burden of establishing a prima facie case that the plaintiff’s cause of action
arises from the defendant’s free speech or petition activity, as defined in the anti-SLAPP
statute. [Citations.] If the moving party meets its burden, the burden shifts to the
plaintiff to establish a probability that he or she will prevail on the merits.” (Anderson v.
Geist (2015) 236 Cal.App.4th 79, 84.) The second step is necessary only if the defendant
satisfies its burden on the first step. (Id. at p. 85.)
In the context of a claim for legal malpractice, there is no categorical bar to the
anti-SLAPP statute. (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th
1153, 1170 (Fremont Reorganizing).) But, the anti-SLAPP statute does not apply when
the gravamen of the lawsuit does not concern a statement made in connection with
litigation but instead concerns the breach of a professional duty. (Ibid.) In this lawsuit
alleging legal malpractice and breach of attorneys’ fiduciary duties, the trial court
concluded that the principal thrust was the breach of professional duties, and we agree.
1
All further undesignated statutory references are to the Code of Civil Procedure.
2
We therefore affirm the order denying defendants’ anti-SLAPP motions. We also affirm
the denial of attorney fees OptimisCorp incurred in opposing the anti-SLAPP motions.
BACKGROUND
Plaintiff and appellant OptimisCorp is a privately held Delaware corporation
founded by Alan Morelli, who served as its chief executive officer (CEO). Defendant
and appellant Laura Brys was OptimisCorp’s general counsel from April 2012 to January
2013. Defendant and appellant Leonid Zilberman was appointed by OptimisCorp’s
insurance carrier to represent OptimisCorp after Tina Geller, an OptimisCorp employee,
reported Morelli had sexually harassed her. Zilberman was employed by defendant and
appellant Wilson Turner Kosmo LLP (Wilson).
Zilberman hired independent investigator Nancy Solomon to investigate Geller’s
sexual harassment allegations. Solomon’s investigation revealed that Morelli admitted he
engaged in sexual activity with Geller but disputed the allegations that he initiated the
sexual activity and that he harassed her.2 Solomon concluded that “Mr. Morelli was not
credible in his explanation that Ms. Geller was a sexually aggressive person who
pressured him to have sexual relations and that on occasion he succumbed to such
pressure. As an initial matter, Ms. Solomon did not find [it] inherently plausible that the
CEO could not take action to stop sexual behavior towards him that he found to be
objectionable, particularly given the fact that it occurred multiple times, that he had to
take willful action to stimulate her sexually, and that he received very intimate sexual
touching which required on some level his active participation.” Solomon further
concluded that Morelli engaged in other inappropriate behavior in the workplace.
2
Geller ultimately filed a lawsuit alleging that Morelli forced her to engage in
sexual activity. In OptimisCorp’s opposition to the anti-SLAPP motions, Geller filed a
declaration recanting some of her prior allegations. Zilberman and Wilson seek judicial
notice of Delaware proceedings in which Geller gave testimony consistent with her prior
allegations. We deny the request for judicial notice because the testimony is not relevant
to determining whether the anti-SLAPP statute applies to the claims alleged in the first
amended complaint, the only issue considered in this appeal.
3
During the course of the investigation, Morelli claimed Solomon rushed to
complete her report in advance of a specially called board meeting. He informed
Solomon of his concern and she “assured him that she did not feel rushed.” She provided
a declaration stating that she “assured Mr. Morelli that [she] did not feel rushed by
anyone” and “never told Mr. Morelli that [she] did not have sufficient time to complete
[her] investigation or complete [her] report.” Morelli told Brys he was concerned that the
investigation was rushed, and Brys inquired and learned that Solomon did not require
additional time.
Following Solomon’s investigation, at a specially called board meeting, Zilberman
advised the board to terminate Morelli, and it did. Subsequently, a Delaware court
recognized Morelli as the CEO. Morelli then terminated some of the board members
who had voted to terminate him and replaced them with new board members.
OptimisCorp’s first amended complaint (complaint) alleged causes of action for
legal malpractice and breach of fiduciary duty. OptimisCorp alleged a conspiracy among
Zilberman, Brys and a group of stockholders to oust Morelli and alleged that the
stockholders “co-opted” Brys and Zilberman. According to the complaint, Zilberman
and Brys knew Solomon’s independent investigation had not been completed. Both
failed to supervise the independent investigation based on the applicable standard of care.
Both were aware a board meeting had been improperly called but did not prevent it.
Zilberman gave negligent legal advice at the board meeting. Specifically, he advised
board members to terminate Morelli and informed them if they did not the company
would lose its insurance coverage. Zilberman had a conflict of interest with the insurance
carrier, which paid for the representation of OptimisCorp. Zilberman did not reveal the
full extent of settlement demands from Geller’s counsel to OptimisCorp. Even after
Morelli was reinstated as CEO, both Brys and Zilberman attempted to “strip him of any
powers of direction or supervision.” (Defendants vigorously dispute these allegations but
their merits-based arguments are not relevant to the first step in the anti-SLAPP analysis.
(Freeman v. Schack (2007) 154 Cal.App.4th 719, 733.))
4
Brys, Zilberman, and Wilson filed anti-SLAPP motions, arguing that the lawsuit
should be dismissed. The trial court denied the motions and denied OptimisCorp’s
request for attorney fees. It denied attorney fees because it concluded the motions were
not filed in bad faith.
Zilberman, Wilson and Brys appealed the denial of their anti-SLAPP motions.
OptimisCorp cross-appealed, challenging the denial of its request for attorney fees.
DISCUSSION
“‘Review of an order granting or denying a motion to strike under section 425.16
is de novo. [Citation.] We consider “the pleadings, and supporting and opposing
affidavits . . . upon which the liability or defense is based.” [Citation.] However, we
neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept
as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by the plaintiff as a matter of
law.”’” (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
“A special motion to strike is a procedural remedy to dispose of lawsuits brought
to chill the valid exercise of a party’s constitutional right of petition or free speech.
[Citation.] The purpose of the anti-SLAPP statute is to encourage participation in matters
of public significance and prevent meritless litigation designed to chill the exercise of
First Amendment rights. (§ 425.16, subd. (a).) The Legislature has declared that the
statute must be ‘construed broadly’ to that end.” (Fremont Reorganizing, supra, 198
Cal.App.4th at p. 1165.) The anti-SLAPP statute may apply to prelitigation conduct.
(People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 824.)
To determine whether a cause of action arises from an act in furtherance of the
defendant’s constitutional right of petition or free speech we look to the gravamen of the
claim. (Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 267.) “Moreover, that a
cause of action arguably may have been ‘triggered’ by protected activity does not entail
that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical
consideration is whether the cause of action is based on the defendant’s protected free
5
speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89
(Navellier).)
Courts applying these principles in the context of legal malpractice lawsuits
uniformly have held that the anti-SLAPP statute does not apply to “garden variety”
malpractice claims. (Chodos v. Cole (2012) 210 Cal.App.4th 692, 702-703 [collecting
cases].) “A malpractice claim focusing on an attorney’s incompetent handling of a
previous lawsuit does not have the chilling effect on advocacy found in malicious
prosecution, libel, and other claims typically covered by the anti-SLAPP statute. In a
malpractice suit, the client is not suing because the attorney petitioned on his or her
behalf, but because the attorney did not competently represent the client’s interests while
doing so. Instead of chilling the petitioning activity, the threat of malpractice encourages
the attorney to petition competently and zealously. This is vastly different from a third
party suing an attorney for petitioning activity, which clearly could have a chilling
effect.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1540
(Kolar).) A lawsuit based on an attorney’s breach of professional duties is not a SLAPP
suit even if they occur in the context of litigation and even if “protected speech and
petitioning are part of the ‘evidentiary landscape’ within which the action arose.”
(Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 491, 494.)
For example, recently in Loanvest I, LLC v. Utrecht (2015) 235 Cal.App.4th 496
(Loanvest), the plaintiff company sued its former attorneys for malpractice for allegedly
disregarding the interest of the company to protect the interest of the person who
formerly controlled the company. (Id. at p. 499.) The court explained the relevant
principles in the context of a malpractice lawsuit: the anti-SLAPP statute requires
distinguishing between cases involving clients’ causes of actions against attorneys based
on attorneys’ conduct on behalf of the plaintiff clients, clients’ causes of action against
attorneys based on conduct related to other clients and nonclients’ causes of action
against attorneys. (Id. at pp. 502-503.) The anti-SLAPP statute does not apply to the first
group because “‘it is unreasonable to interpret th[e statutory] language to include a
client’s causes of action against the client’s own attorney arising from litigation-related
6
activities undertaken for that client.’” (Id. at p. 503, quoting PrediWave Corp. v. Simpson
Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1227.) A legal malpractice action
by a former client, “claiming that the attorney breached fiduciary obligations to the client
as the result of a conflict of interest or other deficiency in the representation of the client,
the action does not threaten to chill the exercise of protected rights and the first prong of
the anti-SLAPP analysis is not satisfied.” (Loanvest, at p. 504.)
The allegations here are similar to those in Loanvest, i.e. that Zilberman and Brys
breached their duties to the corporation OptimisCorp. OptimisCorp alleged that Brys and
Zilberman breached their duties in overseeing Solomon’s investigation, advising
OptimisCorp, and advising the board. (The latter concerned only Zilberman.) The
allegations are related to the anticipated litigation in the context of the advice given to
OptimisCorp. The gravamen of the causes of action was not defendants’ exercise of their
right of petition or speech but their alleged failure to properly advise OptimisCorp and its
board. (See Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272,
1274 [concluding that “[a]lthough petitioning activity is part of the evidentiary
landscape” the gravamen of the plaintiff’s claim was that the attorney provided advice
inconsistent with his fiduciary obligations]; see also Navellier, supra, 29 Cal.4th at p. 92
[“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of
action but, rather, the defendant’s activity that gives rise to his or her asserted liability—
and whether that activity constitutes protected speech or petitioning.”].) That anti-
SLAPP statute therefore does not apply. (Castleman v. Sagaser, supra, 216 Cal.App.4th
at pp. 491, 494; see Freeman v. Schack, supra, 154 Cal.App.4th at p. 732.)
The numerous cases relied upon by defendants that do not involve lawsuits by
former clients against their attorneys are not helpful in determining whether this lawsuit
is based on attorneys’ breach of their fiduciary duties or on their engagement in
petitioning activity. Although Peregrine Funding, Inc. v. Sheppard Mullin Richter &
Hampton LLP (2005) 133 Cal.App.4th 658 arguably included claims by a former client
against its attorneys, the Peregrine court did not consider the distinction between a client
and nonclient plaintiff and therefore is not persuasive authority in support of defendants’
7
argument that the anti-SLAPP statute applies to this case. Fremont Reorganizing, supra,
198 Cal.App.4th 1153 is not analogous to this case because there the defendant attorney
was “not acting on behalf” of the former client when he made challenged statements to an
insurance commissioner. (Id. at p. 1171.) While Jespersen v. Zubiate-Beauchamp
(2003) 114 Cal.App.4th 624, 631-632, suggests that a legal malpractice lawsuit involving
petitioning activity could be subject to the anti-SLAPP statute, its dicta has been rejected
(Kolar, supra, 145 Cal.App.4th at p. 1539), and its holding that the anti-SLAPP statute
did not apply to a legal malpractice claim does not assist defendants.
Finally, turning to OptimisCorp’s cross-appeal, the trial court did not abuse its
discretion in concluding that OptimisCorp was not entitled to attorney fees under section
425.16, subdivision(c)(1), which permits fees if a special motion to strike is frivolous or
solely intended to cause unnecessary delay. (See Jespersen v. Zubiate-Beauchamp,
supra, 114 Cal.App.4th at p. 634 [applying abuse of discretion standard].) Defendants’
arguments in the trial court and in this court were not frivolous. They cited authority
arguably supporting their position even though we have found it unpersuasive. The anti-
SLAPP motions were not totally without merit, and there is no evidence that they were
brought for an improper purpose. We therefore reject OptimisCorp’s cross-appeal and
affirm the trial court’s denial of OptimisCorp’s request for its attorney fees in defending
the anti-SLAPP motions.
DISPOSITION
The order denying defendants’ anti-SLAPP motions is affirmed. The denial of
attorney fees to OptimisCorp also is affirmed. Each party shall bear his, her, or its own
costs on appeal.
FLIER, J.
WE CONCUR:
RUBIN, Acting P. J. GRIMES, J.
8
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Order Michigan Supreme Court
Lansing, Michigan
November 13, 2006 Clifford W. Taylor,
Chief Justice
132302 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
_________________________________________ Stephen J. Markman,
Justices
IN RE BRISTOL ELLIS NISWONGER, BILLY
RAY NISWONGER, and BETH ELIZABETH
ANN NISWONGER, Minors.
_________________________________________
DEPARTMENT OF HUMAN SERVICES, f/k/a
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v SC: 132302
COA: 266343
Ingham CC
Family Division: 00-045297-NA
JULIE NISWONGER,
Respondent-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 20, 2006
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 13, 2006 _________________________________________
s1107 Clerk
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744 So.2d 467 (1999)
UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant,
v.
Juan and Julia ROMAY, Alfredo Marti, Adrian Kerti Appellees,
Elvia Rivero, Appellant,
v.
United States Fidelity & Guaranty Company, Appellee.
Nos. 98-648, 98-1460 and 98-325.
District Court of Appeal of Florida, Third District.
August 25, 1999.
Rehearing Denied November 18, 1999.
*468 Adorno & Zeder and Raoul G. Cantero III, and Jonathan D. Colan; William Fawcett (Baltimore, MD), for appellant USF & G.
Ress, Mintz & Truppman and Michael J. Higer and Scott R. Clein; St Louis, Guerra & Auslander P.A. and Charles M. Auslander and Alicia M. Santana, for appellant Rivero.
Ress, Mintz & Truppman and Michael J. Higer and Scott R. Clein, for appellee Romay; Charles M. Auslander and John F. Cosgrove, for appellees Marti and Kerti.
Before SCHWARTZ, C.J., and NESBITT, JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, and SORONDO, JJ.
ON EN BANC CONSIDERATION
JORGENSON, J.
The issues presented by these three cases are identical, and we consider them together, en banc, in order to provide uniform treatment and disposition. In Romay and Marti, the insurer appeals from a nonfinal order granting a petition to compel appraisal. In Rivero, the insured appeals from an adverse summary judgment finding the insured's petition to compel appraisal premature. The present state of the law in this district requires trial courts to grant appraisals under the policies upon the sole condition that the insured files a sworn proof of loss.[1] Today, we recede from that position and hold that the insured must meet all of the policy's post-loss obligations before appraisal may be compelled.[2] Based upon this holding and *469 for the reasons that follow, the trial courts' orders in Romay and Marti granting the insureds' petitions to compel appraisal are reversed and the trial court's order in Rivero granting summary judgment in favor of the insurer is affirmed.
In each case, a home was damaged by Hurricane Andrew in August, 1992. In October, 1992, the insurer, United States Fidelity and Guaranty Co. ("USF & G"), paid each insured's claim. After a period of four to five years, USF & G received notice that the insureds disputed the amount of loss, demanded additional compensation, and intended to invoke the appraisal clause if payment was not made. USF & G responded by advising the insureds that the policy required them to meet certain prerequisites before the appraisal clause was triggered, such as: submit a sworn proof of loss and supporting documents; submit to an examination under oath; and make the property available for inspection. The Romays and Ms. Rivero submitted only an unsworn damage estimate; Mr. Marti submitted nothing until the day the trial judge granted his motion to compel appraisal; he then filed a sworn proof of loss. After receiving USF & G's response, the insureds all filed petitions to compel appraisal.[3]
When a party refuses to arbitrate a dispute in accordance with the policy's arbitration clause, the other party may bring an action to compel arbitration. See Florida Arbitration Code, § 682.03, Fla. Stat. (1995). Appraisal provisions in insurance policies such as the one in the instant case have generally been treated as arbitration provisions. See Gray Mart, Inc. v. Fireman's Fund Ins., 703 So.2d 1170, 1172 (Fla. 3d DCA 1997). See also Florida Farm Bureau Cas. Ins. Co. v. Sheaffer, 687 So.2d 1331, 1333 (Fla. 1st DCA 1997); State Farm Fire & Cas. Co. v. Middleton, 648 So.2d 1200, 1202 (Fla. 3d DCA 1995); Intracoastal Ventures Corp. v. Safeco Ins. Co. of Am., 540 So.2d 162, 164 (Fla. 4th DCA 1989). The insureds contend that USF & G's insistence upon their compliance with the policy's post-loss obligations before considering appraisal is a refusal to arbitrate so as to mandate appraisal. However, before a court can compel a party to participate in arbitration there must first exist an arbitrable issue. See § 682.03, Fla. Stat. (1995); Phillips v. General Accident Ins. Co. of Am., 685 So.2d 27, 29 (Fla. 3d DCA 1996) (interpreting the Florida Arbitration Code, § 682.03, Fla. Stat. (1987) as limiting the courts' consideration of claims for arbitration to 1) whether a valid written agreement exists containing an arbitration clause; 2) whether an arbitrable issue exists; and 3) whether the right to arbitrate was waived); Chicago Ins. Co. v. Tarr, 638 So.2d 106 (Fla. 3d DCA 1994) (quoting Piercy v. School Bd. of Wash. County, 576 So.2d 806 (Fla. 1st DCA 1991)).
Arbitrable issues involved with appraisal, by their nature, are narrowly restricted to the resolution of specific issues of actual cash value and amount of loss. See Preferred Ins. Co. v. Richard Parks Trucking Co., 158 So.2d 817 (Fla. 2d DCA 1963) (comparing the narrow focus of appraisal with the broad character of arbitration which may encompass the disposition of the entire controversy between the parties). It is therefore axiomatic that an arbitrable issue exists between parties whose agreement provides for appraisal when there is a disagreement in the dollar amount of the loss being claimed.
The appraisal clause in the parties' agreement provides: "If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss...." By these terms, the disagreement necessary *470 to trigger appraisal cannot be unilateral. As expressly indicated in the parties' agreement, the failure to agree must be between the "you" and the "we." In other words, by the terms of the contract, it was contemplated that the parties would engage in some meaningful exchange of information sufficient for each party to arrive at a conclusion before a disagreement could exist. See Ferrer v. Fidelity & Guar.Ins. Co., 10 F.Supp.2d 1324 (S.D.Fla. 1998) (finding that the insurer's demand for compliance with all of the policy's post-loss obligations, in response to the insured's request for appraisal, was not a disagreement with the amount of loss but simply a request for further information); Pando v. United States Fidelity & Guar. Co., 11 Fla. L. Weekly Fed. D792, 1998 WL 708619 (S.D. Fla.1998); Terra Indus., Inc. v. Commonwealth Ins. Co. of Am., 981 F.Supp. 581 (N.D.Iowa 1997). See also Jersey Ins. Co. v. Roddam, 256 Ala. 634, 56 So.2d 631 (1951); Boston Ins. Co. v. A.H. Jacobson Co., 226 Minn. 479, 33 N.W.2d 602 (1948); Insurance Co. of N. Am. v. Baker, 84 Colo. 53, 268 P. 585 (1928); Harowitz v. Concordia Fire Ins. Co., 129 Tenn. 691, 168 S.W. 163 (1914); Ohio Farmers' Ins. Co. v. Titus, 82 Ohio St. 161, 92 N.E. 82 (1910); James v. Insurance Co. of Ill., 135 Mo.App. 247, 115 S.W. 478 (1909); Continental Ins. Co. v. Vallandingham & Gentry, 116 Ky. 287, 76 S.W. 22 (1903). But see Prudential-LMI Ins. Co. v. Promenade Condo. Ass'n, No. 98-1603 (S.D.Fla. Oct. 20, 1998) (ruling contrary to Ferrer, 10 F.Supp.2d at 1324 so as to remain consistent with Sierra, 705 So.2d at 119); Sanchez v. Harbor Specialty Ins. Co., No. 98-1365 (S.D.Fla. Feb. 18, 1999). As explained in 14 Couch on Insurance 2d § 50:56 (1982):
This means that the existence of a real difference in fact, arising out of an honest effort to agree between the insured and the insurer, is necessary to render operative a provision in a policy for arbitration of differences. Furthermore, there must be an actual and honest effort to reach an agreement between the parties, as it is only then that the clause for arbitration becomes operative, the remedies being successive. For example, a mere arbitrary refusal to pay the amount demanded, and the offer of a less amount, without any attempt upon the part of the insurer to ascertain and estimate the amount of loss and damage, do not constitute such a disagreement as is contemplated.
Id.
The exchange of information sufficient for USF & G to arrive at a conclusion was also contemplated by the parties. Specifically, the insurance contract places certain post-loss obligations upon the insureds:
2. Your duties after loss. In case of a loss to covered property, you must see that the following are done:
a. give prompt notice to us or our agent;
. . . .
d. (1) protect the property from further damage;
(2) make reasonable and necessary repairs to protect the property; and
(3) keep an accurate record of repair expenses;
e. prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss. Attach all bills, receipts and related documents that justify the figures in the inventory;
f. as often as we reasonably require:
(1) show the damaged property;
(2) provide us with records and documents we request and permit us to make copies; and
(3) submit to questions under oath and sign and swear to them;
g. send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
(1) the time and cause of loss;
*471 (2) the interest of the insured and all others in the property involved and all liens on the property;
(3) other insurance which may cover the loss;
(4) changes in title or occupancy of the property during the term of the policy;
(5) specifications of damaged buildings and detailed repair estimates;
(6) the inventory of damaged personal property described in 2e above;
(7) receipts for additional living expenses incurred and records that support the fair rental value loss; and
. . . .
These obligations are not unduly burdensome or arbitrary and constitute assurance that the insurer will be provided with adequate information on which to base its conclusion.
A provision in the insurance policy addressing lawsuits brought against USF & G states: "No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss." However, the appraisal clause makes no reference to complying with the policy provisions in its discussion of the appraisal process. Nevertheless, such an omission cannot be reasonably interpreted to mean, as the insureds would have us believe, that the insurer did not intend to place any conditions precedent to appraisal; nor can this omission be construed as to create an ambiguity.
Any ambiguity found in an insurance policy is construed strictly against its drafter and liberally in favor of the insured. See Prudential Property & Cas. v. Swindal, 622 So.2d 467, 470 (Fla.1993); Gulf Life Ins. Co. v. Nash, 97 So.2d 4, 9-10 (Fla.1957); Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543, 545 (Fla. 3d DCA 1995). "Ambiguity," in this context, has been defined by the Florida Supreme Court as being a word or phrase which is reasonably susceptible to interpretation in opposite ways. See Friedman v. Virginia Metal Prod. Corp., 56 So.2d 515, 517 (Fla. 1952). We do not agree that the terms of the policy at issue here meet this definition.
No reasonable and thoughtful interpretation of the policy could support compelling appraisal without first complying with the post-loss obligations. If that were so, a policyholder, after incurring a loss, could immediately invoke appraisal and secure a binding determination as to the amount of loss. That determination, in turn, could be enforced in the courts. Under that framework, expressed and agreed-upon terms of the contract, i.e., the post-loss obligations, would be struck from the contract by way of judicial fiat and the bargained-for contractual terms would be rendered surplusage.[4] There exists but one reasonable interpretation of the terms of the policy at issue here: The insured must comply with all of the policy's post-loss obligations before the appraisal clause is triggered. See Restatement (Second) of Contracts § 203 (1981) ("In the interpretation of a promise or an agreement or a term thereof ... (a) an interpretation which gives a reasonable, lawful, and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect ....") (emphasis added).[5]
*472 For the reasons stated above, we reverse the orders in Romay and Marti and remand with directions that the trial court require compliance with the policy's preconditions to appraisal before granting motions to compel appraisal. We affirm the order in Rivero. We recede from our opinion in Allstate Ins. Co. v. Sierra, 705 So.2d 119 (Fla. 3d DCA 1998) and its progeny.
We remand for further proceedings consistent with the views expressed in this opinion.
SCHWARTZ, Chief Judge (specially concurring).
Although I authored (and of course believed in) Sierra and several of its ill-conceived descendants, Judge Jorgenson's unanswerable opinion makes it necessary to recognize this instance as the only exception to my self-description as "often reversed, never convinced."
NOTES
[1] See Allstate Ins. Co. v. Sierra, 705 So.2d 119 (Fla. 3d DCA 1998); Perez v. Allstate Ins. Co., 709 So.2d 591 (Fla. 3d DCA 1998); Llaguno v. ARI Mutual Ins. Co., 719 So.2d 311 (Fla. 3d DCA 1998); Harrah v. Allstate Ins. Co., 721 So.2d 1266 (Fla. 3d DCA 1999).
[2] See the special concurrence of Chief Judge Schwartz.
[3] In Rivero, the trial court entered summary judgment against the insured finding that she failed to comply with conditions precedent to compelling appraisal under the policy. The trial court's order preceded Allstate Ins. Co. v. Sierra, 705 So.2d 119 (Fla. 3d DCA 1998). In Romay and Marti, the trial courts followed the precedent of this court established in Sierra by summarily directing appraisal.
[4] Also, permitting the insured to compel appraisal without first complying with the policy's post-loss obligations would place the insurer at a considerable disadvantage entering the appraisal process. The nature of the post-loss obligations is merely to provide the insurer with an independent means by which to determine the amount of loss, as opposed to relying solely on the representations of the insured. Although it is within the appraiser's power to permit documentary discovery and prehearing depositions of witnesses, such discovery issues are matters of grace and are not compelled by the Florida Arbitration Code. See Florida Arbitration Code, § 682.08, Fla. Stat. (1989).
[5] The construction of the relevant portion of the insurance contract also supports this position. Both the post-loss obligations and the appraisal clause are listed in the same "section" of the contract where each provision is consecutively numbered. The consecutively numbered provisions are arranged such that they follow in a chronological order. This section of the contract places conditions for recovery upon the insured from the time the insured files a claim to the time he receives payment under that claim. It is not surprising that the policy's post-loss obligations are listed prior to the appraisal clause.
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IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 108,394
STATE OF KANSAS,
Appellee,
v.
ISAAC D. WILLIAMS JR.,
Appellant.
SYLLABUS BY THE COURT
1.
Appellate courts review sufficiency of evidence claims in a criminal case to
determine whether a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. In making this determination, appellate courts view the evidence in the
light most favorable to the State, which means the court does not reweigh evidence,
resolve evidentiary conflicts, or make determinations regarding witness credibility.
2.
Inconsistent jury verdicts are not unconstitutional; they can simply be the product
of a jury's mistake, compromise, or lenity and should not necessarily be interpreted as a
windfall to the State at a defendant's expense. But relief may be appropriate where a
guilty verdict on one count logically excludes a finding of guilt on the other—in other
words, where the verdicts are mutually exclusive.
3.
Mutually exclusive verdicts include: (1) those that are a legal impossibility, such
as guilty verdicts on both a greater and its lesser included offense and (2) those that
purport to establish a defendant's guilt for two separate and distinct criminal offenses, the
1
nature of which are such that guilt of one necessarily excludes guilt of the other—that is,
when a conviction as to one of the crimes negates an element of the other.
4.
The elements of aggravated burglary under K.S.A. 2011 Supp. 21-5807(b) and
domestic battery under K.S.A. 2011 Supp. 21-5414 do not negate each other.
5.
An instruction that includes a factual determination made by the district court
invades the province of the jury as the fact-finder and violates a defendant's rights to have
the jury determine his or her guilt or innocence.
6.
A jury instruction stating that the State must prove a defendant used a deadly
weapon and informing the jury of the object that the State has alleged to be the deadly
weapon by saying, "used a deadly weapon, a baseball bat," does not invade the province
of the jury.
7.
Assault and battery are lesser included offenses of aggravated assault and
aggravated battery, respectively. Thus, if sufficient evidence of all of the elements of the
greater offense has been presented by the State, then evidence of the elements of the
lesser included offense has necessarily been presented. Accordingly, an instruction on the
lesser included offense is legally and factually appropriate and should be given by the
district court. But when a defendant failed to object during the trial to the district court's
failure to give the lesser included offense instruction, the defendant must demonstrate
that the failure was clearly erroneous by firmly convincing the appellate court that the
giving of the instruction would have made a difference in the verdict. In a case with
2
overwhelming evidence of the elements of the greater offenses, the district court's failure
to give lesser included offense instructions was not clearly erroneous.
8.
Kansas' aggravated battery statute, K.S.A. 2011 Supp. 21-5413(b)(1)(B), requires
the battery be one where great bodily harm can be inflicted. That requirement is not
unconstitutionally vague.
9.
In conducting a cumulative error analysis, an appellate court aggregates all errors
and, even though those errors would individually be considered harmless, analyzes
whether their cumulative effect on the outcome of the trial is such that collectively they
cannot be determined to be harmless. If any of the errors being aggregated are
constitutional in nature, the cumulative error must be harmless beyond a reasonable
doubt. In making the assessment of whether the cumulative errors are harmless, an
appellate court examines the errors in the context of the record as a whole considering
how the district court dealt with the errors as they arose (including the efficacy, or lack of
efficacy, of any remedial efforts); the nature and number of errors committed and their
interrelationship, if any; and the strength of the evidence.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 4,
2015. Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed November 30,
2018. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district
court is affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.
3
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Isaac D. Williams Jr. raises six challenges to his convictions for
aggravated burglary, aggravated battery, aggravated assault, and domestic battery. We
reject his challenges and hold:
1. Sufficient evidence supports Williams' aggravated burglary conviction
because, when we view the record in the light most favorable to the State, it
contains sufficient evidence for a rational fact-finder to conclude beyond a
reasonable doubt that Williams entered the victim's dwelling without authority;
2. Williams' convictions for aggravated burglary and domestic battery are not
mutually exclusive or logically inconsistent because the elements of one
offense do not nullify those of the other and the jury could have been
convinced beyond a reasonable doubt that Williams lacked authority to enter
the victim's home—a necessary element of aggravated burglary—while also
being convinced beyond a reasonable doubt that he had committed battery
against someone with whom he was living or with whom he had previously
lived;
3. The district court did not invade the province of the jury when it instructed the
jury that the State had to prove Williams committed aggravated assault by
using "a deadly weapon, a baseball bat" because the instructions, when read as
a whole, left for the jury's consideration whether the bat was calculated or
likely to produce death or serious injury;
4
4. Under the facts of this case, the district court erred by failing to instruct on
assault as a lesser included offense of aggravated assault and on battery as a
lesser included offense of aggravated battery, but neither error was clear error
requiring reversal of Williams' aggravated assault or aggravated battery
convictions;
5. Kansas' aggravated battery statute, K.S.A. 2011 Supp. 21-5413(b)(1)(B),
requires the battery be one where great bodily harm "can be inflicted," and that
requirement is not unconstitutionally vague; and
6. Cumulative error did not deprive Williams of a fair trial.
FACTS AND PROCEDURAL HISTORY
On July 24, 2011, Williams called Tanya R. Robinson and told her he planned to
come to her residence after work. Robinson discouraged Williams from coming over, and
an argument ensued. Despite Robinson's discouragement, Williams showed up at
Robinson's home. He knocked on the door, but Robinson did not answer. He continued
knocking for "a long period of time." Robinson finally went to the door, but she did not
let Williams enter. After a verbal exchange, Williams walked away and Robinson locked
the door. Williams soon returned and began pounding on the door. Robinson was talking
on the phone with a friend, who could hear Williams' pounding. Williams then broke a
glass pane on the door and forced it open.
Williams entered the house, grabbed Robinson, strangled her, and "head-butted"
her by hitting his head on her forehead. He then picked up a baseball bat she kept by the
front door for protection. He held the bat above his head and threatened to hit Robinson
5
and damage her possessions. Robinson fled through the front door. Robinson's friend,
who had remained on the phone, called 911.
Police soon arrived. They observed marks on Robinson's neck consistent with
strangulation. Officers questioned Robinson about her relationship with Williams. She
said they were dating and Williams sometimes spent the night. Williams told the officers
he had lived with Robinson for about two weeks. But a search of the home revealed items
consistent only with an overnight stay—a shaving kit and one change of clothes.
Williams told officers he received mail at a different address.
Witnesses testified at trial that Williams and Robinson had purchased furniture
and appliances together, and Williams had placed the electricity and water services at the
address in his name. These utilities were turned on about two weeks before the crimes
were committed, which coincides with Williams' statements to the police that he had
lived with Robinson for two weeks.
The State charged Williams with aggravated burglary, aggravated battery,
aggravated assault, domestic battery, and criminal trespass. The jury convicted him of all
charges except criminal trespass, and the district court sentenced him to 142 months'
imprisonment. The Court of Appeals affirmed his convictions. See State v. Williams, No.
108,394, 2015 WL 8174299 (Kan. App. 2015) (unpublished opinion). We granted
Williams' petition for review. Our jurisdiction is proper under K.S.A. 2017 Supp. 20-
3018(b) (petition for review of Court of Appeals decision).
ANALYSIS
Williams raises seven issues. We have reordered his issues and combined two
lesser included offense issues for our analysis. As reordered and combined, Williams
6
argues: (1) The State failed to present sufficient evidence to support his aggravated
burglary conviction; (2) his convictions for aggravated burglary and domestic battery are
mutually exclusive; (3) the district court erroneously instructed the jury on aggravated
assault when it told the jury the State had to prove Williams used "a deadly weapon, a
baseball bat"; (4) the district court erred in failing to instruct the jury on the lesser
included offenses of assault and battery; (5) Kansas' aggravated battery statute, K.S.A.
2011 Supp. 21-5413(b)(1)(B), is unconstitutionally vague; and (6) cumulative error
deprived him of a fair trial. We reject each argument.
1. Sufficient evidence supports Williams' conviction for aggravated burglary.
Williams argues there was insufficient evidence to support his aggravated burglary
conviction. Our standard for reviewing this claim is well-settled: Appellate courts review
sufficiency claims in a criminal case to determine whether "'a rational factfinder could
have found the defendant guilty beyond a reasonable doubt.'" State v. Dunn, 304 Kan.
773, 821, 375 P.3d 332 (2016). In making this determination, appellate courts view the
evidence in the light most favorable to the State, which means the court "'does not
reweigh evidence, resolve evidentiary conflicts, or make determinations regarding
witness credibility.' [Citations omitted.]" 304 Kan. at 822.
We apply that standard to Williams' argument that the State failed to prove the
offense of aggravated burglary. Aggravated burglary is defined as "without authority,
entering into or remaining within any building . . . in which there is a human being with
intent to commit a felony, theft or sexual battery therein." K.S.A. 2011 Supp. 21-5807(b).
Williams argues the State failed to prove he lacked authority to enter the residence
because he was living or had previously lived there and previously even had a key. Given
these facts, he argues the State had to prove he had established a new residence in order
to prove he no longer had the authority to enter the residence. He asserts it was not
7
enough to show Robinson did not want him to enter the residence and had taken away his
key. To support his argument he states that "the authority to enter is a property right tied
to the status of one's residence." He then argues "the state's laws of residence take on a
legal meaning" and, in Kansas, a change in residency requires "'not only physical or
bodily presence in the new location, but also the intention to abandon the old residence
and adopt another in the new location.' K.S.A. 77-201."
Williams appears to quote from K.S.A. 77-201 to support his argument. But that
statute does not include the quoted language. K.S.A. 77-201 relates to the construction of
statutes and includes definitions of terms often used throughout various statutory codes. It
defines "[r]esidence" to mean "the place which is adopted by a person as the person's
place of habitation and to which, whenever the person is absent, the person has the
intention of returning." K.S.A. 77-201, Twenty-third. The statute also provides some
guidance for determining residence: "When a person eats at one place and sleeps at
another, the place where the person sleeps shall be considered the person's residence."
K.S.A. 77-201, Twenty-third. This statute does not, on its face, support Williams'
contention that the State had to prove his intent to abandon Robinson's home as his
residence and to adopt a new residence. And he cites no authority for his assertion that
"the authority to enter is a property right tied to the status of one's residence." Failure to
support a point with pertinent authority or show why it is sound despite a lack of
supporting authority or in the face of contrary authority is like failing to brief the issue.
See State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015).
More significantly, the aggravated burglary statute does not require the State to
prove (or disprove) a burglar's residence. Instead, the State needs to prove the burglar
lacked authority to enter or remain in the residence. See K.S.A. 2011 Supp. 21-5807(b).
As the Court of Appeals stated: "The State only needs to present enough evidence to
prove each element of the crime, as prescribed by statute." Williams, 2015 WL 8174299,
8
at *4 (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 [1970];
State v. Rupert, 247 Kan. 512, 514-15, 802 P.2d 511 [1990]). Thus, Williams "requires
too much." 2015 WL 8174299, at *4.
The Court of Appeals also pointed out that this court has not stated a test for
determining whether a person enters or remains in a home "without authority," as that
phrase is used in the aggravated burglary statute. 2015 WL 8174299, at *5. But such a test
is hard to devise because the determination is fact-specific.
Generally, social guests, even those sleeping at the residence, do not have property
rights in the residence. See State v. Talkington, 301 Kan. 453, 477, 345 P.3d 258 (2015)
(recognizing that social guests do not have property rights that can serve as a basis for
standing to object to a search). In the aggravated burglary context, this is significant
because someone with a property interest—as an owner or lessee, for example—has the
right to exclude others from the property. See Black's Law Dictionary 1410 (10th ed.
2014) (defining "property" as: "Collectively, the rights in a valued resource such as land,
chattel, or an intangible. It is common to describe property as a 'bundle of rights.' These
rights include the right to possess and use, the right to exclude, and the right to
transfer."). But the one with property rights might grant permission for the defendant to
enter or remain on the property, in which case the guest has authority and the State fails
to prove an aggravated burglary. See State v. Franklin, 280 Kan. 337, 345-46, 121 P.3d
447 (2005) (defendant testified she had permission to enter, stored her car in the home's
garage, and kept clothes in the home); State v. Harper, 246 Kan. 14, 19-20, 785 P.2d
1341 (1990) (defendant had been given keys to the building).
The State presents a closer question when both the defendant and the victim have a
property interest. There, under the facts of some cases, we have held the State did not
prove a lack of authority. See State v. Vasquez, 287 Kan. 40, 59-60, 194 P.3d 563 (2008)
9
(State failed to show defendant lacked authority to enter his home when wife had not
served a restraining order).
Where, as here, the State did not present direct evidence about the property
interests of the two parties, a close question exists. Evidence established that Williams
might have a property interest in some furnishings and appliances, and he was paying
some utilities. But those facts do not establish that he had a property right in the
residence. Although we cannot look to direct evidence of Williams' property right in the
residence, there is circumstantial evidence that he lacked authority to enter the property.
A forcible entry has been one circumstance Kansas appellate courts have viewed as a
circumstances showing a defendant did not have authority to enter. See State v. Birth,
37 Kan. App. 2d 753, 776-77, 158 P.3d 345, rev. denied 284 Kan. 947 (2007) (victim's
testimony that the defendant had pushed his way into the home sufficient to uphold
aggravated burglary conviction even though the defendant testified he had been allowed
in); see also State v. King, 308 Kan. 16, 28, 417 P.3d 1073 (2018) ("'even the gravest
offense can be based entirely on circumstantial evidence and the inferences fairly
deducible therefrom.'") (quoting State v. Robinson, 306 Kan. 1012, 1023, 399 P.3d 194
[2017]).
Here, the State presented circumstantial evidence that Robinson had to give
permission in order for Williams to enter and that Williams recognized or acquiesced in
her right to exclude him. Robinson testified that Williams did not live with her and she
had taken back his key a few days before the incident. This suggests she had the right to
give and revoke permission. Williams called and talked about dropping by, which
suggests he did not perceive he had a right to demand access to the residence. And
Robinson asked Williams not to come over on the night of the incident and refused to let
him in when he knocked on her door. Significantly, Williams did not try to enter, even
though the door was initially unlocked. Once Robinson answered the door, she told
10
Williams to leave and then locked the door. When Williams returned, he broke the door
open to gain entry—evidently he did not have a key.
Based on this evidence, a rational fact-finder could conclude beyond a reasonable
doubt that Williams entered the house without authority.
2. Williams' convictions for aggravated burglary and domestic battery are not
mutually exclusive.
Williams also argues the jury reached inconsistent and mutually exclusive verdicts
when it convicted him of both aggravated burglary and domestic battery. He
acknowledges aggravated burglary and domestic battery "are not per se mutually
exclusive." But he argues the convictions are mutually exclusive under the facts of this
case. On the one hand, he points out that to prove aggravated burglary, the State had to
prove he entered Robinson's residence without authority. On the other hand, to prove
domestic battery the State had to prove he lived with or had previously lived with
Robinson. He argues these factual elements mean his aggravated burglary conviction
directly conflicts with his domestic battery conviction. His factual arguments overlap
those he made in the prior issue.
As to his legal argument, Williams acknowledges that "[t]he United State Supreme
Court has repeatedly found that inconsistent jury verdicts are not unconstitutional."
Indeed, in United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984),
the United States Supreme Court reaffirmed its long-standing holding that "'[c]onsistency
in the verdict is not necessary.'" Powell, 469 U.S. at 62 (quoting Dunn v. United States,
284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 [1932]). Applying that holding, the Court
held a jury's acquittal of a defendant on charges for conspiracy to possess cocaine with
intent to distribute and possession of cocaine with intent to distribute did not require
reversal of her convictions of using a telephone to facilitate those offenses. The Court
11
reasoned, in part: "'The most that can be said . . . is that the verdict shows that either in
the acquittal or the conviction the jury did not speak their real conclusions, but that does
not show that they were not convinced of the defendant's guilt.'" 469 U.S. at 64-65
(quoting Dunn, 284 U.S. at 393). The Court pointed out that inconsistent verdicts could
be the product of a jury's "mistake, compromise, or lenity" and "should not necessarily be
interpreted as a windfall to the Government at the defendant's expense." 469 U.S. at 65.
Williams relies on one sentence from Powell to support his argument. That
sentence, found in a footnote, states: "Nothing in this opinion is intended to decide the
proper resolution of a situation where a defendant is convicted of two crimes, where a
guilty verdict on one count logically excludes a finding of guilt on the other." 469 U.S. at
69 n.8. Williams argues this means mutually exclusive verdicts cannot stand. In Williams'
petition for review, he cites this court's decision in State v. Hernandez, 294 Kan. 200, 273
P.3d 774 (2012), in which this court found two convictions were legally inconsistent.
In Hernandez, the State had charged the defendant with aggravated indecent
liberties with a child. The district court instructed the jury that if it did not find the
defendant guilty of that offense, it should consider whether the defendant had committed
attempted aggravated indecent liberties with a child. The jury returned guilty verdicts for
both the charged crime and its lesser included offense of an attempt to commit the crime.
The Hernandez court noted several other cases where this court had held a defendant
could not be convicted of both the greater and lesser crime under Kansas law. Hernandez,
294 Kan. at 204-05. The inconsistent verdicts in Hernandez presented "a legal
impossibility." 294 Kan. 200, Syl. ¶ 1, 207.
Beyond the situation of a verdict on both the offense and an attempt to commit the
offense, this court has not been called upon to explore fully the meaning of Powell's
footnote 8. Before the Court of Appeals, Williams argued the court should be guided by
12
the North Carolina Supreme Court's application of the footnote, citing State v. Mumford,
364 N.C. 394, 400-01, 699 S.E.2d 911 (2010). On review, however, Williams argues
Hernandez rather than Mumford.
Here, however, Williams does not present a Hernandez or Mumford issue because
his argument does not relate to convictions for a charged offense and its lesser offense.
So we must look beyond Hernandez for guidance, and the North Carolina Supreme
Court's Mumford decision points us to such a path. There, the court contrasted the lesser
included offense situation with the one presented in State v. Speckman, 326 N.C. 576,
580, 391 S.E.2d 165 (1990).
In Speckman, the North Carolina Supreme Court examined the elements of the
crimes of conviction to determine whether the jury's verdicts were mutually exclusive.
The court noted that North Carolina law defines embezzlement as obtaining property
lawfully and then converting it. But a conviction of false pretenses requires the property
be obtained unlawfully. "[S]ince property cannot be obtained simultaneously pursuant to
both lawful and unlawful means, guilt of either embezzlement or false pretenses
necessarily excludes guilt of the other." 326 N.C. at 578.
Other courts follow the same elements-comparison approach as North Carolina.
For example, the Court of Appeals quoted United States v. Maury, 695 F.3d 227, 266
(3d Cir. 2012): "[L]egally impossible verdicts only occur when 'a conviction as to one of
the crimes must negate an element of the other.' (Emphasis added.)" Williams, 2015 WL
8174299, at *3 (quoting Maury, 695 F.3d at 266). And the Court of Appeals concluded
this approach best fits the arguments presented by Williams. 2015 WL 8174299, at *3
(citing additional cases from other jurisdictions).
13
The Court of Appeals then correctly concluded the elements of the two crimes of
aggravated burglary and domestic battery do not negate each other. 2015 WL 8174299, at
*4. As we have discussed, aggravated burglary is defined as "without authority, entering
into or remaining within any building . . . in which there is a human being with intent to
commit a felony, theft or sexual battery therein." K.S.A. 2011 Supp. 21-5807(b). In
contrast, the crime of domestic battery does not have any elements about authority to
enter or remain in a dwelling. Instead, it relates to a battery against a family or household
member and defines those relationships as being past or present. K.S.A. 2011 Supp. 21-
5414(c)(1) (defining family or household member to include "persons who are presently
residing together or who have resided together in the past." [Emphasis added.]).
The Court of Appeals determined the definition of household member gives the
jury the option of finding either: (1) the defendant and victim were residing together at
the time of the offense; or (2) the defendant and victim had previously resided together
but were not residing together at the time of the crime. Because of the second option, it
was legally possible for Williams to enter Robinson's home without authority and to
commit domestic battery. 2015 WL 8174299, at *4. We hold that the elements approach
presents a valid method for determining if verdicts are mutually exclusive.
Williams, however, argues the Court of Appeals erred by applying an elements
test as the sole test. See 2015 WL 8174299, at *3. He asks us to adopt a broader reading
of the Powell Court's footnote and its reference to mutually exclusive verdicts. We need
not burden this decision with a discussion of that possibility because the facts do not
present us with mutually exclusive verdicts. As we have discussed, the State presented
evidence that Williams lacked authority to enter the residence and, while he had lived
there with Robinson, circumstantial evidence supports a conclusion she had revoked his
authority to enter the property. Williams essentially asks us to reweigh facts and to even
14
add facts or make inferences the evidence does not support. We, of course, cannot do any
of those things. See State v. Betancourt, 301 Kan. 282, 290, 342 P.3d 916 (2015).
We conclude Williams has not established mutually exclusive verdicts.
3. The district court did not err in setting out the State's claim that Williams used a
baseball bat as a deadly weapon.
Williams argues the district court erroneously instructed the jury on aggravated
assault. The State charged Williams with committing aggravated assault by using "a
deadly weapon, to wit: baseball bat." At trial, the district court instructed the jury on
aggravated assault by stating, in relevant part:
"In Count 3, the defendant is charged with the crime of aggravated assault. . . .
"To establish this charge, each of the following claims must be proved:
"1. That the defendant intentionally placed [Robinson] in reasonable
apprehension of immediate bodily harm;
"2. That the defendant used a deadly weapon, a baseball bat [emphasis added];
....
"As used in these instructions, the term Deadly Weapon includes any instrument which,
from the manner in which it is used, is calculated or likely to produce death or serious
injury."
Williams argues the district court, by using the language of "the defendant used a
deadly weapon, a baseball bat," "mandated that if the jury found [he] had used a baseball
bat, he used a deadly weapon." The Court of Appeals, citing State v. Sutherland, 248
15
Kan. 96, 804 P.2d 970 (1991), held the specific instruction, as well as the instructions as
a whole, did not tell the jury a baseball bat was per se a deadly weapon. But it cautioned,
"Trial courts should be careful when using a sentence constructed like this one." 2015
WL 8174299, at *8.
A multi-step process applies to our review of claimed errors relating to jury
instructions. We must first decide whether the issue has been preserved. Second, we
analyze whether an error occurred. This requires a determination of whether the
instruction was legally and factually appropriate. We exercise unlimited review of those
questions. Next, if we find error, we conduct a "reversibility inquiry." The standard for
that inquiry depends on whether Williams objected to the instruction during the trial.
State v. Williams, 295 Kan. 506, Syl. ¶¶ 4, 5, 286 P.3d 195 (2012). Because Williams did
not object, we apply the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3).
Under that standard, an appellate court assesses whether it is "firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred." 295
Kan. at 516. Williams has the burden to establish reversibility, and in examining whether
he has met that burden we make a de novo determination based on the entire record. 295
Kan. at 516.
We first note that the parties have not discussed whether the judge even needed to
include the reference to the baseball bat in the instruction, so that question is not before
us. Instead, Williams focuses on the wording and sentence structure of the instruction
requiring the State to prove "the defendant used a deadly weapon, a baseball bat." He
argues the wording is legally inappropriate because, as this court said in State v. Stieben,
"[a]n instruction that includes a factual determination made by the trial court 'invades the
province of the jury as the factfinder' and violates the defendant's rights to have the jury
determine his or her guilt or innocence." 292 Kan. 533, 537, 256 P.3d 796 (2011)
16
(quoting State v. Brice, 276 Kan. 758, 772, 80 P.3d 1113 [2003]). The question here is
whether the instruction made a factual determination.
As the Court of Appeals pointed out, this court's decision in Sutherland, 248 Kan.
96, addressed a similar question and suggests that the instruction here did not determine
an issue of fact for the jury. The Sutherland jury instruction stated the jury had to find
"'Sutherland was armed with a deadly weapon, to wit: a knife.'" 248 Kan. at 99. This
court held the words "to wit: a knife" did not instruct the jury that a knife was a deadly
weapon. Instead, they explained that the State had to prove a knife was a deadly weapon.
248 Kan. at 100-01.
The Sutherland court distinguished that wording from an instruction in State v.
Colbert, 244 Kan. 422, 425, 427, 769 P.2d 1168 (1989), where this court held the district
court invaded the province of the jury by instructing that "'a firearm is a deadly weapon
as a matter of law.'" 244 Kan. at 427. The Sutherland court explained:
"There, the instruction expressly directed the jury that a gun was a deadly weapon. Here,
the jury was instructed that an element of the crime the jury had to find was that [the
defendant or an accomplice] 'was armed with a deadly weapon, to-wit: a knife.' This
instruction places the burden on the State to prove the knife is a deadly weapon and does
not instruct the jury that it is a deadly weapon." 248 Kan. at 100-01.
Later, faced with an instruction much like the one in Colbert, this court in Brice
once again held a district court had invaded the province of a jury. There, the State had
charged the defendant with aggravated battery after he fired a gun and shot the victim.
The victim's treating physician testified the bullet did not hit any bones, major arteries,
veins, or nerves and caused "'a through and through injury.'" Brice, 276 Kan. at 760. The
district court instructed the jury that the State had to prove the defendant had
"'intentionally caused great bodily harm.'" 276 Kan. at 761. In a separate instruction, the
17
court told the jury: "'As used in these instructions, the term Great Bodily Harm means, a
"through and through bullet wound."'" 276 Kan. at 762. These instructions, according to
the Brice court, had "in effect directed a verdict on an essential element of the aggravated
battery charge." 276 Kan. at 771. Although Brice did not cite either Colbert or
Sutherland, its reasoning and the wording of the instruction parallels that in Colbert. As
opposed to being an instruction that told the jury what the State had to prove—as in
Sutherland—the instructions in Colbert and Brice told the jury what the State had
established.
Most recently, in State v. Sisson, 302 Kan. 123, 130, 351 P.3d 1235 (2015), this
court considered whether a jury instruction that defined "drug paraphernalia" invaded the
jury's province. That instruction read:
"'Drug paraphernalia' means all equipment, and materials of any kind which are
used or primarily intended or designed for use in preparing, packaging, repackaging a
controlled substance.
"'Drug paraphernalia' includes:
(1) scales." 302 Kan. at 129.
Another instruction told the jury the State had to prove the defendant intentionally
possessed the scales with the intent to use drug paraphernalia to distribute cocaine. A
third instruction listed factors for the jury to consider in determining whether an object is
drug paraphernalia.
The Sisson court pointed to the general rule that jury instructions must be
considered as a whole, with no instruction considered in isolation. 302 Kan. at 130-31.
Reading the instructions in their entirety, the Sisson court held the district court did not
invade the province of the jury by instructing that drug paraphernalia includes scales.
Instead, that instruction "simply defined which objects the State was including in its
18
accusation of possessing drug paraphernalia" and "the instructions as a whole . . .
informed the jury that it had to do more than simply find that [the defendant] was the
possessor of scales; it had to find that he was using or intended to use the scale as
paraphernalia for use in distributing controlled substances." 302 Kan. at 132.
The Sutherland and Sisson decisions inform our holding. Here, the district court
did not explicitly state a baseball bat is a deadly weapon. Rather, it stated what the State
had to prove. Using the wording "a deadly weapon, a baseball bat" does not differ in any
material way from the wording of the instruction in Sutherland, even though the
instruction here did not use "to wit" as had the Sutherland instruction. As Black's Law
Dictionary 1719 (10th ed. 2014) explains, "to wit" is "[a]rchaic" and means: "That is to
say; namely." Similarly, as the Court of Appeals noted, here, the district court omitted "to
wit" and instead "use[d] what grammarians call an appositive, a noun (often with
modifiers) set beside another noun to explain or identify it." 2015 WL 8174299, at *8.
The sentence structure essentially said, namely, a baseball bat. Thus, as in Sutherland, the
instruction merely told the jury what the State had to prove. This conclusion finds even
more support given the difference in the instruction at issue from the one in Sutherland.
Specifically, the instruction in Sutherland did not provide a separate definition of
deadly weapon. But here, the district court gave one and did so in the same instruction.
As the Court of Appeals observed, this definition would not "have been needed had the
[district] court intended to tell the jury that the baseball bat had to be considered a deadly
weapon in this case." 2015 WL 8174299 at *8. This reasoning is consistent with our
holding in Sisson, 302 Kan. at 132 ("We credit juries with an ability to understand words
in context.").
Likewise, this reasoning is consistent with the United States Supreme Court's
decision in Carella v. California, 491 U.S. 263, 268, 109 S. Ct. 2419, 105 L. Ed. 2d 218
19
(1989). There, the Court emphasized that "the key issue is whether a presumption set out
in a jury instruction is mandatory, 'that is, whether the specific instruction, both alone and
in the context of the overall charge, could have been understood by reasonable jurors to
require them to find the presumed fact if the State proves certain predicate facts.' 491
U.S. at 265." Sisson, 302 Kan. at 133 (Biles, J., concurring).
State v. Ingham, No. 111,444, 308 Kan. ___, ___ P.3d ___ (No. 111,444, this day
decided), provides an example of instructions, when read as a whole, that could be
understood by reasonable jurors to require them to find a presumed fact if the State
proved certain predicate facts. In Ingham, the defendant was charged with possession or
use of a commercial explosive. The elements instruction first informed the jury the State
had to prove "'Ingham intentionally possessed, manufactured or transported an
improvised explosive device, a commercial explosive.'" 308 Kan. at ___, slip op. at 10.
Like the instruction in this case, this sentence merely informed the jury what the State
had to prove. But the instruction also stated: "'It is not a defense to this crime that Daron
Ingham did not know an improvised explosive device was a commercial explosive.'"
(Emphasis added.) 308 Kan. at ___, slip op. at 10. By telling the jury "'an improvised
explosive device was a commercial explosive'" the instruction moved past informing the
jury what the State needed to prove and informed the jury that the State had proved an
improvised explosive device was a commercial explosive. 308 Kan. at ___, slip op. at 14.
Unlike the Ingham instructions, nothing in Williams' instructions told the jury
what the State had proven. Instead, Williams' jury had to consider whether the manner in
which the baseball bat had been "used [was] calculated or likely to produce death or
serious injury." Only if the jury found those things would it consider the baseball bat a
deadly weapon. See Sutherland, 248 Kan. at 100 (An ordinary object can be a dangerous
weapon if the user intends to convince the victim it is a dangerous weapon and the victim
believes it is.). Likewise, the jury in Sisson had to determine the defendant possessed the
20
scale with the intent to use it as paraphernalia in distributing controlled substances.
Because the jury instruction explained what the State had alleged the deadly weapon used
by Williams to be—a baseball bat—and accurately explained what the jury had to find in
order to determine it was used as a deadly weapon, it did not direct a factual finding in
favor of the State and was not erroneous.
Although we find no error, we agree with the Court of Appeals that district courts
should be cautious in constructing this type of instruction. Specifically, we see how the
use of an appositive without a separate definition could potentially run afoul of Carella.
In addition, the instruction could be worded more clearly. For example, the court could
set out the elements without delineating the State's allegation regarding the nature or
description of the weapon. After listing the elements, the instruction could then state:
The State alleges a [type of deadly weapon alleged (here, a baseball bat)] was used as a
deadly weapon. You must determine whether [type of deadly weapon alleged], from the
manner in which it was used, was calculated or likely to produce death or serious injury.
An object can be a deadly weapon if the user intended to convince a person that it is a
deadly weapon and that person reasonably believed it to be a deadly weapon.
While such an alternative construction might be clearer, that does not mean the
instruction here was erroneous. The complained-of language merely told the jury the
State must prove Williams used a deadly weapon and informed the jury of the specific
object the State alleged was the deadly weapon—the baseball bat. The definition that
followed those statements instructed the jury on the test to apply when judging if the
State had met its burden of proving that Williams had used the baseball bat as a deadly
weapon. The instruction did not invade the province of the jury, and we hold the district
court did not err.
21
4. The district court erred in failing to instruct on lesser included offenses but did not
commit clear error.
Williams argues the district court erred in failing to instruct the jury on assault and
battery as lesser included offenses of aggravated assault and aggravated battery,
respectively. He acknowledges he did not object to the district court's jury instructions or
suggest any additional instructions. He also acknowledges his claim would ordinarily be
subject to review for clear error. But he argues this court should apply a higher standard
of constitutional error because the failure to give the instructions implicates constitutional
rights under both the United States and Kansas Constitutions.
Williams does not fully explain his argument about the United States Constitution
and fails to support it with any authority. We consider the point abandoned. McCain
Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) (a party
waives or abandons an issue by not supporting it with authority).
As to Williams' argument under the Kansas Constitution, he relies on a Mississippi
Supreme Court opinion, Harrell v. State, 134 So. 3d 266 (Miss. 2014). Harrell
interpreted and applied Section 31 of the Mississippi Constitution. That provision, like
Section 5 of the Kansas Constitution Bill of Rights, provides that the right to a trial by
jury is "inviolate." The Mississippi Supreme Court held that "it is always and in every
case reversible error for the courts of Mississippi to deny an accused the right to have a
jury decide guilt as to each and every element." 134 So. 3d at 275. The Court of Appeals
discussed Williams' reliance on Harrell and correctly found it misplaced. 2015 WL
8174299, at *12.
As the Court of Appeals pointed out, the trial court in Harrell instructed the jury
on capital murder but failed to instruct it on the underlying felony. Because the trial court
did not instruct the jury on the elements of the underlying felony, it could not have
22
determined whether the defendant was guilty of every element of the crime charged, thus
violating the defendant's constitutional right to a jury trial. Harrell, 134 So. 3d at 272-73,
275. In contrast, here, the district court instructed the jury on the elements of the crimes
the State had charged. And the jury found the State had established all of those elements
beyond a reasonable doubt. The fact the district court did not instruct the jury on lesser
included offenses of those crimes, the offenses the State could have charged, did not
prevent the jury from determining the necessary elements of the offenses the State
actually charged. Harrell is distinguishable and unpersuasive under these facts, and
Williams' right to a jury trial under the Kansas Constitution was not violated.
Williams alternatively argues the district court committed clear error. As we have
noted in the previous issue, we must first determine whether there was error by
determining if the instructions for assault and battery would have been both legally and
factually appropriate. Then, we will determine whether that error was clear. Williams,
295 Kan. 506, Syl. ¶ 4.
We first consider the legal appropriateness of instructing the jury on assault and
battery as lesser included offenses. As Williams points out, because assault and battery
are lesser included offenses of aggravated assault and aggravated battery, respectively,
they are legally appropriate. See K.S.A. 2011 Supp. 21-5109(b) ("A lesser included crime
is: [1] A lesser degree of the same crime."); State v. Simmons, 295 Kan. 171, 175, 177-
78, 283 P.3d 212 (2012) (battery a lesser included offense of various forms of aggravated
battery); State v. Nelson, 224 Kan. 95, 97, 577 P.2d 1178 (1978) (assault a lesser included
offense of aggravated assault).
As to factual appropriateness, our standard was set out in State v. Haberlein,
296 Kan. 195, 290 P.3d 640 (2012). There, the issue was whether the defendant, charged
with first-degree premeditated murder, was entitled to an instruction on the lesser
23
included crime of second-degree intentional murder. The issue turned on the element of
premeditation. The court set out the threshold for the giving of a lesser included offense
instruction:
"While the evidence of premeditation in this case was extremely strong, there also was at
least some evidence of each of the other elements of first-degree premeditated murder,
and these elements are identical to the elements of second-degree intentional murder.
Thus, at least in theory, the jury could have chosen to convict [the defendant] of second-
degree intentional murder without having its verdict subject to reversal for insufficient
evidence. This means the instruction was factually supported." 296 Kan. at 204.
Accord, e.g., State v. McLinn, 307 Kan. 307, 325, 409 P.3d 1 (2018).
Here, based on the evidence at trial, a jury could have convicted Williams of
assault and battery—the evidence would have been sufficient. Thus, the district court
should have instructed the jury on assault and battery as lesser included offenses.
Even though error occurred, because Williams did not object to the lack of the
instructions during the trial he must establish clear error by firmly convincing us that the
jury would have reached a different verdict had the instruction error not occurred.
Williams, 295 Kan. at 516. To assess whether he has done so, we begin by looking at the
differences between the charged crimes and the lesser included offenses.
The State charged Williams with aggravated battery under K.S.A. 2011 Supp.
21-5413(b)(1)(B). Under that provision, the district court instructed the jury that the State
had to prove Williams "intentionally caused bodily harm to Tanya R. Robinson, in a
manner whereby great bodily harm, disfigurement or death can be inflicted." Virtually
undisputed evidence established that charge. Robinson testified that Williams choked her,
and the responding police officers observed marks on her neck consistent with
24
strangulation. Strangulation can result in great bodily harm or death, and given the
physical evidence, we are not firmly convinced the jury would have convicted Williams
of battery.
As for the charge of aggravated assault, the State charged that Williams knowingly
placed Robinson "in reasonable apprehension of immediate bodily harm, with a deadly
weapon, to wit: baseball bat" under K.S.A. 2011 Supp. 21-5412. The difference between
this charge of aggravated assault and assault centers on whether Williams used a deadly
weapon. Thus, Williams must firmly convince this court the jury would have concluded
the baseball bat was not a deadly weapon if instructed on the lesser included offenses. He
argues a baseball bat is not "a deadly weapon per se; it depends entirely on how it is used,
as evaluated by the jury." He also contends the evidence about the baseball bat "was not
so overwhelming as to only result in a conclusion that it had been used as a deadly
weapon." We disagree. The evidence shows he had already strangled Robinson and then
hit her on the head. When he picked up the bat, raised it in the air, and threatened her, he
escalated the potential for great bodily harm, disfigurement, and even death.
Under these facts, Williams does not firmly convince us the jury would have
reached a different verdict. Williams has failed to establish reversible error.
5. K.S.A. 2011 Supp. 21-5413(b)(1)(B) is not unconstitutionally vague.
As we have stated, K.S.A. 2011 Supp. 21-5413(b)(1)(B) defines aggravated
battery as "knowingly causing bodily harm to another person with a deadly weapon, or in
any manner whereby great bodily harm, disfigurement or death can be inflicted."
Williams argues the words "can be inflicted" render the statute unconstitutionally vague.
25
The United States Supreme Court has explained how vague laws violate the basic
principle of due process:
"First, because we assume that man is free to steer between lawful and unlawful conduct,
we insist that laws give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104,
108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).
This court and the United States Supreme Court have emphasized, however, that
the Constitution does not require "impossible standards," but rather statutory language
that "'conveys sufficiently definite warning as to the proscribed conduct when measured
by common understanding and practices,'" and no more. Hearn v. City of Overland Park,
244 Kan. 638, 640-41, 772 P.2d 758 (1989) (quoting United States v. Petrillo, 332 U.S. 1,
7-8, 67 S. Ct. 1538, 91 L. Ed. 1877 [1947]). "Because of the strong presumption in favor
of the constitutional validity of legislation, statutes are not '"automatically invalidated as
vague simply because difficulty is found in determining whether certain marginal
offenses fall within their language."'" Hearn, 244 Kan. at 641 (quoting Parker v. Levy,
417 U.S. 733, 757, 94 S. Ct. 2547, 41 L. Ed. 2d 439 [1974]).
Applying these principles presents a question of law subject to unlimited review.
State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015), cert. denied 136 S. Ct. 858
(2016). The test to determine whether a criminal statute is unconstitutionally vague is
"(1) whether the statute gives fair warning to those potentially subject to it, and (2)
whether it adequately guards against arbitrary and unreasonable enforcement." 302 Kan.
at 318; State v. Gonzalez, 307 Kan. 575, 580, 412 P.3d 968 (2018). If a statute fails to
26
provide a person of ordinary intelligence with fair notice, then it does not give an
adequate warning. Bollinger, 302 Kan. at 318. The crux of the inquiry is a commonsense
determination of fundamental fairness. 302 Kan. at 318.
This court has yet to apply this test to the "can be inflicted" language in the
aggravated battery statute. Several panels of the Court of Appeals have rejected the
argument, however. See, e.g., State v. Brownfield, No. 115,667, 2017 WL 3668877, at
*2-3 (Kan. App. 2017); petition for rev. filed September 25, 2017; State v. Rodriguez,
No. 110,346, 2015 WL 715528, at *1, 12-13 (Kan. App. 2015) (unpublished opinion),
rev'd in part on other grounds 305 Kan. 1139, 390 P.3d 903 (2017); State v. Owens, No.
110,719, 2015 WL 1122998, at *1, 6 (Kan. App. 2015) (unpublished opinion), rev.
denied 302 Kan. 1018 (2015); State v. Walker, No. 107,878, 2013 WL 3970180, at *1, 6-
7 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1274 (2014); State v.
Landwehr, No. 107,273, 2013 WL 2917879, at *1, 4 (Kan. App. 2013) (unpublished
opinion), rev. denied 298 Kan. 1206 (2013).
In Brownfield, a Court of Appeals panel appropriately rejected a defendant's
argument that State v. Cummings, 297 Kan. 716, 305 P.3d 556 (2013), compelled the
panel to conclude the aggravated battery statute is unconstitutionally vague. As the
Brownfield panel determined, Cummings does not compel this conclusion.
Cummings involved a constitutional challenge to a jury instruction regarding the
elements of the crime of endangering a child—an obviously different crime than
aggravated battery. The Cummings' analysis focused on the portion of the instruction that
informed the jury it needed to determine whether the defendant "'intentionally and
unreasonably caused or permitted [a child] to be placed in a situation in which there was
a reasonable probability that [the child]'s life, body or health would be injured or
endangered.'" 297 Kan. at 722. These words are not part of the aggravated battery
27
statute. Consequently, the Brownfield panel appropriately determined Cummings did not
aid its analysis, and the panel appropriately relied on other decisions that discuss the
wording of the aggravated battery statute.
Also, in Walker, a Court of Appeals panel relied on State v. Chandler, 252 Kan.
797, Syl. ¶ 4, 850 P.2d 803 (1993), and State v. Ultreras, 296 Kan. 828, 852, 295 P.3d
1020 (2013). In those decisions, this court rejected challenges involving the terms
"disfigurement" and "great bodily harm" in Kansas' aggravated battery statute. Walker
held that because the terms "disfigurement," "great bodily harm," and "can be inflicted"
"are defined by their plain and ordinary meanings, it inherently follows that the statute
has given fair warning to those subject to it and gives sufficient guidance to the trier of
fact so as to prevent arbitrary or discriminatory enforcement." 2013 WL 3970180, at *7.
Likewise, in Owens, the Court of Appeals found "can be inflicted" was not
unconstitutionally vague because "'[t]he elements are simple and certainly within
common understanding and practice. The terms of the [aggravated battery] statute are not
so vague that persons of common intelligence must necessarily guess at their meaning
and differ as to their application.'" 2015 WL 1122998, at *6 (quoting State v. Kleber,
2 Kan. App. 2d 115, 119, 575 P.2d 900 [1978]). Similarly, in Rodriguez, the Court of
Appeals held "disfigurement" and "can be inflicted" are not unconstitutionally vague
because they are simple elements which are questions of fact for the jury to consider in
the ordinary sense. 2015 WL 715528, at *12-13; see Landwehr, 2013 WL 2917879, at
*3-4 (holding that the ordinary sense of these terms provides fair warning and is not
susceptible to arbitrary enforcement because jurors use their common knowledge and
experience).
We agree with the Court of Appeals' reasoning in these cases and find that
reasoning consistent with our decisions in Ultreras, 296 Kan. at 851, and Chandler,
28
252 Kan. 797, Syl. ¶ 4. Individuals of ordinary intelligence can understand what is meant
by "can be inflicted." Thus, the statute gives adequate notice. And the phrase gives
sufficient guidance to prevent arbitrary or discriminatory enforcement by prosecutors,
courts, and juries. K.S.A. 2011 Supp. 21-5413(b)(1)(B) is not unconstitutionally vague.
6. No cumulative error
Finally, Williams argues cumulative error deprived him of a fair trial.
"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless. See State v. Colston, 290 Kan. 952, 978-79, 235 P.3d 1234
(2010). In other words, was the defendant's right to a fair trial violated because the
combined errors affected the outcome of the trial? In a cumulative error analysis, '[i]f any
of the errors being aggregated are constitutional in nature, the cumulative error must be
harmless beyond a reasonable doubt.' United States v. Toles, 297 F.3d 959, 972 (10th Cir.
2002).
"In making the assessment of whether the cumulative errors are harmless error,
an appellate court examines the errors in the context of the record as a whole considering
how the district court dealt with the errors as they arose (including the efficacy, or lack of
efficacy, of any remedial efforts); the nature and number of errors committed and their
interrelationship, if any; and the strength of the evidence." State v. Tully, 293 Kan. 176,
205-06, 262 P.3d 314 (2011).
Williams has shown error in failing to give two lesser included offense
instructions. As we have discussed, neither rises to the level of clear error. And because
neither presents a constitutional issue, we apply the harmless error reversibility standard
of K.S.A. 2017 Supp. 60-261—reversal is required when there is a reasonable probability
29
that the cumulative errors affected the verdict. Tully, 293 Kan. at 207. Here, the two
errors, while both relating to lesser included offense instructions, do not overlap and
would not have a cumulative effect on the jury's consideration of the evidence or issues
related to each charge. Given the nature and relationship of the errors, the context in
which they occurred, and the overall strength of the evidence, we hold that Williams was
not prejudiced by cumulative error.
Affirmed.
***
ROSEN, J., concurring: I agree with the majority's conclusions affirming Williams'
convictions. However, I disagree with the majority opinion which finds error by
concluding that the district judge was required to instruct the jury on the lesser included
offenses of misdemeanor assault and misdemeanor battery. As I have stated in numerous
dissents and concurring decisions opining on this issue, K.S.A. 22-3414(3) provides
"where there is some evidence which would reasonably justify a conviction of some
lesser included crime . . . the judge shall instruct the jury as to the crime charged and any
such lesser included crime." See State v. McLinn, 307 Kan. 307, 350-51, 409 P.3d l
(2018); State v. Fisher, 304 Kan. 242, 265-66, 373 P.3d 781 (2016); State v. Qualls, 297
Kan. 61, 73-75, 298 P.3d 311 (2013); State v. Haberlein, 296 Kan. 195, 213-14, 290 P.3d
640 (2012); State v. Tahah, 293 Kan. 267, 280-84, 262 P.3d 1045 (2011); and State v.
Scaife, 286 Kan. 614, 627-31, 186 P.3d 755 (2008).
The majority continues to rely on a theoretical sufficiency test set forth in State v.
Haberlein, 296 Kan. 195, 204, 290 P.3d 640 (2012), in determining whether a lesser
included offense instruction is mandated: "Thus, at least in theory, the jury could have
chosen to convict Haberlein of second-degree intentional murder without having its
30
verdict subject to reversal for insufficient evidence. This means the instruction was
factually supported." Applying such a test renders not only K.S.A. 2017 Supp.
22-3414(3) meaningless but also any factual propriety analysis we require the district
court to undertake. A lessor included offense conviction always meets a sufficiency
standard of a conviction of the greater offense. As I have previously opined, the test set
forth in K.S.A. 2017 Supp. 22-3414(3) is not a theoretical one. Instead, it requires the
trial judge, who has heard the testimony and viewed the evidence in the case, to
determine whether there is "some evidence which would reasonably justify a conviction"
of the lesser included crime. K.S.A. 2017 Supp. 22-3414(3) (Emphasis added.) If our test
is to find in "theory" whether the facts support a lesser included crime, any scenario
limited only by one's imagination would suffice in making the determination on whether
to instruct. Here, apparently no one, including the prosecutor, defense counsel, and the
trial judge who heard the testimony and scrutinized the evidence of strangulation, head
butting, and Williams' holding of a baseball bat above his head in a threatening manner
believed lesser included instructions were warranted. Moreover, as Justice Johnson
astutely points out in his concurring opinion, "In addition to common knowledge and
experience, a reasonable jury would infer that, to be an instrument of protection, the
baseball bat had to be calculated or likely to produce death or serious injury. That aspect
of the case was not a close call." Slip op. at 32.
I would simply find on this record and, consistent with my aforementioned
concurring and dissenting opinions relating to this issue, the trial court did not err in not
instructing the jury on the lesser included offenses of misdemeanor battery and
misdemeanor assault.
NUSS, C.J., and STEGALL, J., join the foregoing concurrence.
31
***
JOHNSON, J., concurring: I would hold that the aggravated assault elements
instruction was erroneous in stating, "[T]he defendant used a deadly weapon, a baseball
bat." The majority opines that a jury would know to drill down into, and harmonize, the
whole packet of instructions, including the elements instruction's definition of deadly
weapon, to discern that the elements instruction really meant to say, "The defendant used
a deadly weapon, alleged to be a baseball bat in this case." But I submit that it is just as
likely, if not more likely, that a conscientious jury would reasonably conclude that it must
find Williams guilty because the essential deadly-weapon element of the crime would be
satisfied by the State simply proving Williams had possession of a baseball bat. Cf. State
v. Sisson, 302 Kan. 123, 133, 351 P.3d 1235 (2015) (Biles, J., concurring). Jurors already
have a Herculean task without having to perform linguistic acrobatics to discern that an
instruction does not actually mean what it plainly says.
Nevertheless, I can concur in the result. Even if the jury had been clearly told to
perform the analytical step of finding that the baseball bat met the definition of a deadly
weapon, the result would have been the same. As the majority recites, the victim kept the
baseball bat by her front door for protection. In addition to common knowledge and
experience, a reasonable jury would infer that, to be an instrument of protection, the
baseball bat had to be calculated or likely to produce death or serious injury. That aspect
of the case was not a close call.
BEIER, J., joins the foregoing concurrence.
32
| {
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12 N.Y.3d 763 (2009)
PEOPLE
v.
TUCKER.
Court of Appeals of New York.
February 5, 2009.
Application in criminal case for leave to appeal denied. (Ciparick, J.)
| {
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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1431-15T2
CHRISTOPHER J. PANICO,
Plaintiff-Appellant,
v.
MEREDITH WINNER, AUSTIN S.
PANDZA, ROBERT SOCKWELL, MARK
K. LEVITSKY, M.D., COHANZICK
ORTHOPEDICS, P.A., SOUTH JERSEY
HEALTHCARE REGIONAL MEDICAL CENTER,
SOUTH JERSEY HEALTH SYSTEM, INC.,
SOUTH JERSEY HOSPITAL, INC.,
and INSPIRA MEDICAL CENTERS, INC.,
Defendants,
and
DANIEL MYERS and GRETCHEN
MYERS,
Defendants-Respondents.
——————————————————————————————————
Argued May 10, 2017 – Decided July 5, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
2290-13.
Jared N. Kasher argued the cause for
appellant (Hockfield & Kasher, LLC,
attorneys; Susan L. Moreinis, on the
briefs).
Robert S. Florke argued the cause for
respondents (Kent & McBride, P.C.,
attorneys; Kelly C. Scheese and John P.
Shea, on the brief).
PER CURIAM
Plaintiff Christopher Panico appeals from the January 2,
2015 summary judgment order dismissing his personal injury
negligence complaint against defendant Daniel Myers, and his
wife, defendant Gretchen Myers (defendants).1 We vacate and
remand, finding genuine issues of material fact as to whether
defendants breached the standard of care.
I.
We discern the following facts from the record, viewing the
evidence in the light most favorable to plaintiff, the non-
moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 405-06 (2014). This case arises from an accident that
occurred on June 3, 2011, when plaintiff suffered a serious leg
injury while using a trampoline at a high school graduation
party. Homeowner Meredith Winner (Winner) held the party at her
residence to celebrate the graduation of her daughter, Amelia.
Plaintiff, then eighteen years old, attended the party along
1
Because plaintiff's claims against all other defendants have
been resolved or dismissed, we refer to Daniel and Gretchen
Myers as "defendants" for ease of reference.
2 A-1431-15T2
with approximately twenty teenage guests. While most of the
guests were at least eighteen years of age, plaintiff believed
at least two of the guests were "under [eighteen]."
Winner testified at deposition that she initially planned
on attending the party and serving as chaperone. However, she
learned of a work obligation for that date, prompting her to
tell Amelia she would have to cancel the party unless Amelia's
grandfather (Winner's father), defendant Daniel Myers, could
attend. Amelia then spoke with her grandfather, who agreed to
attend with his wife. Winner stated she also spoke with her
father about his attending the party, including his role as
chaperone until Winner arrived. Winner said she "would not let
[her] daughter have that party without an adult's supervision."
Winner further stated defendants "knew [the party] was going to
be inside," and Amelia knew the party was to be indoors.
At the time of the party, Winner owned a fourteen-foot
diameter trampoline, located in the backyard of her home.
Although she did not recall having a specific conversation with
Amelia regarding trampoline use at the party, Winner said Amelia
knew "the rules" that "nobody goes on [the] trampoline without
me being there. We had those rules from the day we bought the
trampoline. It's always a supervised situation." Winner
imposed these rules because Amelia and her friends were "not to
3 A-1431-15T2
be trusted, they're kids." She added, "Amelia was the one who
knew the rules, so she had talked to her grandfather prior [to
the party]. They knew it was inside."
The following colloquy occurred at Winner's deposition
regarding defendants:
Q: Did you speak with your father or
Gretchen about the trampoline rules?
A: Not that I recall at that moment, but
in the time we owned the trampoline
it's been discussed.
Q: Were your father and Gretchen aware of
the one[-]person rule on the
trampoline?
A: You'd have to ask them.
Q: Is that something you've ever told
them?
A: Possibly.
. . . .
Q: And was it your expectation that your father and
Gretchen would have prohibited any of the guests
from using the trampoline?
. . . .
A: Yeah. I have supervisors there to make
sure the children aren't doing stupid
things. . . .
She also stated her father was "at my home a lot. . . . He
knew we had a trampoline." Winner further acknowledged that if
4 A-1431-15T2
she had been at the party, "It's safe to say I would not have
allowed anybody on the trampoline."
Despite Winner's rules and her efforts to secure adult
supervision for the party, at some point during the party,
several of the teenage guests went outside to use the
trampoline. According to guest Austin Pandza, he used the
trampoline first by himself. After using it again with guest
Robert Sockwell, Pandza entered the house and suggested the
guests go outside to play a game on the trampoline. Pandza said
plaintiff agreed to play the game, which involved multiple
people on the trampoline. The rules were that a user would be
"out" if he fell down without bouncing back to his feet.
At his deposition, plaintiff testified he had never used a
trampoline before the party. He initially did not want to use
the trampoline, but Pandza "carried" him outside to use it.2
However, after Pandza placed him down by the trampoline,
plaintiff climbed onto the trampoline by himself. Plaintiff
then jumped with Pandza and Sockwell for approximately one
minute. At that point, Pandza jumped toward him, and "his leg
came up and collided with [plaintiff's] leg," causing plaintiff
to feel it "snap." Plaintiff described his injury as an
accident, stating Pandza never intended to harm him.
2
Pandza, a 6'5" football player, weighed approximately 200
pounds at the time of the accident.
5 A-1431-15T2
Plaintiff's leg fracture resulted in multiple surgeries and
the insertion of rods and screws. He eventually developed
reflex sympathetic dystrophy (RSD), a chronic pain syndrome,
resulting in his referral to a pain specialist. According to
plaintiff, his doctor informed him he will "need a pain
specialist pretty much forever because RSD won't go away."
Plaintiff stated defendants were the only adults at the
party. He helped them with the food when they arrived, and they
helped to set up. According to plaintiff, Amelia said her
grandparents were going to "take charge" until her mother
arrived. Plaintiff noted that prior to his accident, he
observed Sockwell and a female guest tell defendants they were
going to use the trampoline, and defendants responded, "Okay."
He also noted defendants "were on the screened porch facing the
trampoline" when Pandza "walked past them . . . carrying me."
Daniel Myers testified he was not responsible for ensuring
the safe use of the trampoline at the party. He said his
daughter asked him to supply refreshments, and he was not a
chaperone but "in a sense" a "guest[] like everybody else." An
attorney licensed in New Jersey and Virginia, he further stated,
"I don't even know what a chaperone is." He denied receiving
instructions to keep the guests safe, but he noted no one
thought the guests would use the trampoline because it was "not
6 A-1431-15T2
part of the party." He claimed to be "[v]aguely" familiar with
trampolines in general, and he "might have been aware" of the
trampoline prior to the accident.
Gretchen Myers testified that prior to plaintiff's injury
she never observed the trampoline in the backyard. She denied
having any conversations with Winner regarding a supervisory
role at the party. She noted she was "[n]ot exactly" a guest,
but she was there to help with food.
In May 2013, plaintiff filed a personal injury complaint
against defendants, Winner, Pandza, Sockwell, and other parties
not relevant to this appeal. Plaintiff alleged, in relevant
part, that Daniel and Gretchen Myers negligently supervised the
"premises" by allowing multiple persons to use the trampoline at
the same time. Plaintiff also alleged defendants negligently
failed to warn him of the dangers associated with multi-person
trampoline use.
Thereafter, the parties engaged in extensive discovery,
including numerous depositions. Plaintiff attempted to schedule
Amelia's deposition, but she was away at college. On September
22, 2014, before the discovery end date, defendants filed a
motion for summary judgment, asserting plaintiff failed to
produce any precedent establishing a "duty requiring
[defendants] to supervise the activities of guests at a private
7 A-1431-15T2
party, particularly when [defendants] had no special
relationship to the plaintiff."
Plaintiff filed a response to defendants' motion on October
7, 2014. Plaintiff argued discovery was not complete, and
contradictory deposition testimony raised issues of facts for a
jury to resolve. Plaintiff also filed a cross-motion for
partial summary judgment on the issue of defendants' liability,
contending defendants breached their duty of care as possessors
of the premises by failing to warn him of the risks of
trampoline use and by failing to prevent him from using it.
Plaintiff further moved to extend discovery. The court granted
this motion on November 7, 2014, extending discovery to March
20, 2015.
On December 19, 2014, the parties appeared before the
motion judge for oral argument on the summary judgment motions.
Following argument, the judge granted summary judgment in favor
of defendants and rendered an oral opinion on the record.
Assuming for the purposes of the motion that defendants were
"host[s]/guest[s]" of the party, the judge relied on Hanna v.
Stone, 329 N.J. Super. 385 (App. Div. 2000), finding,
[Hanna involved] an underage party, under
[eighteen] party, at which parents of the
one child were sued by parents of other boys
who got into a fight. The [c]ourt said the
parents had no obligation to supervise the
friends of the child in the party and that
8 A-1431-15T2
supervision is using reasonable care. That
is the host's duty is to refrain from any
active wrongdoing or any willful injury and
warn of any unknown dangers. And I think
here there has been no showing even
accepting facts as asserted by the
plaintiff.
The judge further concluded defendants owed no duty to warn
plaintiff of the dangers of trampoline use because they "were
not the homeowner[s], and they were not in any better position
than the plaintiff." He also declined to impose a "new duty" on
defendants because "there really wasn't any relationship between
the plaintiff and [defendants] here."
During argument, plaintiff's counsel raised the issue of
Amelia's pending deposition. The judge inquired whether Amelia
would testify to any issues besides whether defendants were
hosts of the party; counsel responded that "[Amelia's] specific
discussions [with defendants] were about the actual trampoline
or any use of the property." The judge determined the
incomplete discovery did not provide a reason to defer his
decision on the cross-motions. Plaintiff then filed a motion
for reconsideration, which the judge denied without oral
argument. This appeal followed.
II.
In deciding a summary judgment motion on appeal, we "review
the trial court's grant of summary judgment de novo under the
9 A-1431-15T2
same standard as the trial court" and accord "no special
deference to the legal determinations of the trial court."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016). Under this standard, we
must grant summary judgment "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as
to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." Ibid.
(quoting R. 4:46-2(c)).
"If there is no genuine issue of material fact, we must
then 'decide whether the trial court correctly interpreted the
law.'" DepoLink Court Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App.
Div. 2007), certif. denied, 195 N.J. 419 (2008), overruled in
part on other grounds, Wilson ex rel. Manzano v. City of Jersey
City, 209 N.J. 558 (2012)). We review issues of law de novo and
accord no deference to the trial judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
We first address whether defendants owed a duty of care to
plaintiff. "To sustain a cause of action for negligence, a
plaintiff must establish four elements: '(1) a duty of care, (2)
10 A-1431-15T2
a breach of that duty, (3) proximate cause, and (4) actual
damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting
Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). The
existence of a duty is a matter of law. Kernan v. One
Washington Park Urban Renewal Assocs., 154 N.J. 437, 445 (1998).
In circumstances where the duty of care "is not well
settled" by our previous case law, we must conduct a "full duty
analysis." Peguero v. Tau Kappa Epsilon Local Chapter, 439 N.J.
Super. 77, 88 (App. Div. 2015) (quoting Desir, Estate of ex rel.
Estiverne v. Vertus, 214 N.J. 303, 317 (2013)). This analysis
considers "the relationship of the parties; the nature of the
attendant risk; the opportunity and ability to exercise care;
and the public policy considerations." Id. at 89. "[W]hether a
duty exists is ultimately a question of fairness." Hopkins v.
Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (quoting Weinberg
v. Dinger, 106 N.J. 469, 485 (1987)).
However, as the motion judge noted, our decision in Hanna
v. Stone guides our analysis in the instant matter. In Hanna,
the defendants hosted a party for their son's fourteenth
birthday at their home; the son invited approximately forty to
fifty teenagers, who mainly congregated in the defendants'
basement. Hanna, supra, 329 N.J. Super. at 388. At the party,
"one boy struck and injured another boy" with whom he had a
11 A-1431-15T2
"history of mutual dislike." Id. at 388, 390. The parents of
the injured boy sued the defendants, asserting the defendants
negligently failed "to properly supervise all visitors and
invitees on the premises for the birthday party." Id. at 389.
In affirming summary judgment in favor of the defendants,
we determined that "parents have no absolute duty to be
constantly present among the teenagers at a social function and
no duty to check the background and relationships of the
invitees." Ibid. However, we rejected the defendants' position
that they only owed the duty of a "social host," which "requires
only that the hosts refrain from willful injury or active
wrongdoing and warn of known risks that are not apparent or
known to the licensee." Ibid. Instead, we found "the duty of
the person conducting [an] activity [on his or her premises],
such as parents sponsoring a party for their son, is 'simply to
use reasonable care in all the circumstances.'" Ibid. (quoting
Copanese v. Martinez, 35 N.J. Super. 118, 122-23 (App. Div.
1955)). We then concluded no reasonable jury could find the
defendants breached this standard of care, and the defendants
had no legal obligation to conduct background checks of the
party guests. Id. at 389-90.
Conversely, applying this standard in the instant matter,
we conclude plaintiff presented sufficient evidence to raise a
12 A-1431-15T2
jury question whether defendants breached the duty they owed to
plaintiff. First, although defendants did not own the home in
question, there was a genuine issue of fact as to whether they
were the de facto "sponsor[s]" of the party in Winner's absence.
Second, the deposition testimony raises clear issues of fact as
to defendants' understanding of their role at the party,
specifically, whether they were bound to supervise the guests
and keep them indoors. Last, there is an issue of fact
regarding the extent of defendants' knowledge of the trampoline
and the house safety rules. We find these issues are material
to whether defendants exercised "reasonable care in all the
circumstances," id. at 389, and therefore, must be decided by a
jury at trial.
We also note the trial judge erred by granting summary
judgment before the parties could depose Amelia. Courts should
refrain from granting summary judgment before discovery is
complete unless "it is readily apparent that continued discovery
would not produce any additional facts necessary to a proper
disposition of the motion." DepoLink, supra, 430 N.J. Super. at
341 (citing R. 4:46-5). Here, we reject the conclusion of the
motion judge that Amelia's deposition would not have revealed
any material facts. Rather, her testimony will likely provide
additional information regarding facts relevant to this case,
13 A-1431-15T2
particularly regarding the extent of defendants' knowledge of
the trampoline and their knowledge of Winner's house rules
regarding its use.
Furthermore, contrary to defendants' assertion, plaintiff's
responsive cross-motion for summary judgment does not preclude
our determination that the motion judge improperly entered
summary judgment. Although "[t]he filing of a cross-motion for
summary judgment generally limits the ability of the losing
party to argue that an issue raises questions of fact," no per
se rule bars the movant from seeking trial as an alternate form
of relief. Spring Creek Holding Co. v. Shinnihon U.S.A. Co.,
399 N.J. Super. 158, 177 (App. Div.), certif. denied, 196 N.J.
85 (2008). Here, while summary judgment in favor of plaintiff
is clearly inappropriate, we find his responsive cross-motion
does not bar the matter from proceeding to trial.
Finally, we comment briefly on Bagnana v. Wolfinger, 385
N.J. Super. 1 (App. Div. 2006), a relevant case addressing
liability for trampoline injuries, which the motion judge found
distinguishable from the instant matter. Plaintiff relied on
this case in his cross-motion for summary judgment, arguing that
as social hosts and temporary possessors of the land, defendants
had a duty to warn plaintiff of the danger posed by the
trampoline.
14 A-1431-15T2
In Bagnana, an adult plaintiff sued the defendant
homeowners after she received an injury "double jumping" with
her husband on the defendants' trampoline at a backyard
barbeque. Id. at 3-4. The plaintiff claimed she was
inexperienced on trampolines, so she sued the homeowners for
failure to warn and make safe the dangerous condition on the
premises. Id. at 3-4, 8. The trial court granted summary
judgment, finding the plaintiff was aware of the "inherent"
dangers associated with trampoline use. Id. at 4. We reversed,
finding the jury should have assessed the relevant
circumstances, including
(1) whether defendants failed to enforce the
manufacturer's rules and prohibitions
pursuant to the User's Manual, (2) whether
defendants removed the yellow warning
placard from the trampoline prior to the
accident, (3) whether defendants may have
condoned or encouraged double jumping by
allegedly failing to object when it occurred
in their presence, and (4) whether plaintiff
was comparatively negligent for failing to
use due care for her own safety.
[Id. at 10.]
In the instant matter, while defendants were not the
homeowners, Winner's testimony indicated she had had discussed
the trampoline rules with defendants "in the time we owned the
trampoline." She further stated her expectation that defendants
would have prohibited the party guests from using the
15 A-1431-15T2
trampoline. We conclude the record contains sufficient evidence
from which a reasonable jury might conclude that defendants knew
or should have known that, as chaperones of the party, there was
a necessity and opportunity for them to have prevented guests
from using the trampoline at the party, or to have limited its
use to one person at a time. In sum, we conclude the record
presents genuine issues of material fact, precluding summary
judgment. We therefore vacate the order granting defendants'
motion and remand for further proceedings.
Vacated and remanded. We do not retain jurisdiction.
16 A-1431-15T2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7217
JAIME ACEVEDO,
Plaintiff - Appellant,
versus
JAMES S. GILMORE, III; HARRY L. CARRICO, Chief
Justice, Supreme Court of Virginia; ROBERT J.
STUMP, Judge, Wise County Circuit Court; FORD
C. QUILLEN, Judge, Wise County Circuit Court;
MOSBY G. PERROW, III, Judge, Lynchburg City
Circuit Court; MARK L. EARLEY, Attorney
General; PAMELA A. SARGENT, Assistant Virginia
Attorney General; CHRISTOPHER G. HILL,
Assistant Virginia Attorney General; ROBERT
BAIN SMITH, Assistant Virginia Attorney
General; CLINTON R. SHAW, JR., Public
Defender; B. LEIGH DREWRY, JR., Esquire;
RONALD J. ANGELONE, Director, Virginia
Department of Corrections; FRED SCHILLING,
Director, Health Services, Virginia Department
of Corrections; J. MICHAEL GAMBLE, Judge,
Amherst County Circuit Court; RICHARD A.
YOUNG, Director, Western Region, Virginia
Department of Corrections; PAGE TRUE, Former
Warden, Red Onion State Prison; D. A. BRAXTON,
Warden, Red Onion State Prison; J. ARMENTROUT,
Assistant Warden, Red Onion State Prison; P.
SAUL, Grievance Coordinator, Red Onion State
Prison; ASSISTANT WARDEN BASS; VICKI PHIPPS,
Red Onion State Prison; DOCTOR OFOHG, Red
Onion State Prison; JANE DOE, Registered
Nurse, Red Onion State Prison; R. FLEMING,
Chief of Security, Red Onion State Prison;
CAPTAIN FLEMING, Red Onion State Prison; S.
FLEMING, Red Onion State Prison; D. FLEMING,
a/k/a Prison Guard Fleming, Red Onion State
Prison; SERGEANT O’QUINN, Red Onion State
Prison; SERGEANT FANNIN, Red Onion State
Prison; GRIEVANCE COORDINATOR SLEENOR;
SERGEANT HILLYARD, Red Onion State Prison;
PRISON GUARD TILLER; PRISON GUARD KILBOURNE;
CARL SYKES, Maintenance, Red Onion State
Prison; SERGEANT WOOD, Red Onion State Prison;
PRISON GUARD DEEL; PRISON GUARD BUSH; COLLINS,
Prison Guard; PRISON GUARD ELY, Red Onion
State Prison; VASS; PHYLLIS HOBBS; DIANAH
ROSE; TAMMY THOMAS; MARY TAYLOR; KENNETH
TAYLOR; LESLIE BAKER; RUVONDA MOOREFIELD;
TERRY BROOKS; LISA YATES; DIANNA YATES; KAVEN
O’FOGH; MAJOR YATES; SERGEANT ROSE; LIEUTENANT
ROSE; T. BAKER; BASS; FLANNERY; B. SPEARS;
NURSE P. ADAMS; A. BRUCE DOTSON; L. KILGORE;
J. CANTRELL; D. LESTER; E. SALYERS; M.
HAMILTON, Correctional Officer; C. STANLEY;
COMMONWEALTH OF VIRGINIA; NURSE MEADE; NURSE
COX,
Defendants - Appellees,
and
STAN K. YOUNG, Warden, Wallens Ridge State
Prison; B. J. RAVILEE, Grievance Coordinator,
Wallens Ridge State Prison; GRIEVANCE
COORDINATOR, RIDER, Wallens Ridge State
Prison; JOHN DOE, Institutional Investigator,
Wallens Ridge State Prison; CAPTAIN HOCKETT,
Wallens Ridge State Prison; LIEUTENANT MEYER,
Wallens Ridge State Prison; SERGEANT KENDRICK,
Wallens Ridge State Prison; PRISON GUARD
KELLY, Wallens Ridge State Prison; PRISON
GUARD FLEENOR; PRISON GUARD SCHLOBOHM; JOHN
DOE, Prison Guard, Wallens Ridge State Prison;
JOHN DOE, Prison Guard 2, Wallens Ridge State
Prison; JOHN DOE, Prison Guard 3, Wallens
Ridge State Prison; SERGEANT HEAD, Wallens
Ridge State Prison; SERGEANT SHORT, Wallens
Ridge State Prison; CORRECTIONAL OFFICER
BROWN; NURSE THOMAS; NURSE HOBBS; NURSE
BALLARD; LIEUTENANT GALLIHAR, PRISON GUARD
GOINS,
Defendants.
- 2 -
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-01-752-7)
Submitted: June 12, 2006 Decided: June 27, 2006
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Jaime Acevedo, Appellant Pro Se. William W. Muse, Assistant
Attorney General, Richmond, Virginia; Mark Edward Frye, PENN,
STUART & ESKRIDGE, Bristol, Tennessee; Frederick A. Rowlett, PENN,
STUART & ESKRIDGE, Abingdon, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 3 -
PER CURIAM:
Jaime Acevedo appeals numerous orders of the district
court and the jury’s verdict in this action filed pursuant to
42 U.S.C. § 1983 (2000). We have reviewed the record and find no
reversible error. Accordingly, 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
- 4 -
| {
"pile_set_name": "FreeLaw"
} |
(2008)
ARCHER DANIELS MIDLAND COMPANY, Plaintiff,
v.
UNITED STATES, Defendant.
Slip Op. 08-40. Court No. 05-00592.
United States Court of International Trade.
April 11, 2008.
OPINION
WALLACH, Judge.
I
INTRODUCTION
This matter comes before the court on Plaintiff Archer Daniels Midland Company's ("ADM") Motion for Partial Summary Judgment, Defendant United States' Cross-Motion for Summary Judgment, and Plaintiff ADM's Response and Cross-Motion. The United States Bureau of Customs and Border Protection ("Customs") classified entries of "deodorizer distillate" in Harmonized Tariff Schedule of the United States ("HTSUS") subheading 3824.90.28 at 7.9% ad valorem. Plaintiff challenges the classification and contends that a 2002 amendment to Heading 3824 renders deodorizer distillate classifiable in Heading 3807 at 0.1% ad valorem, or in the alternative, classifiable in the newly created duty-free provisions of subheadings 3825.61 or 3825.90. Plaintiff filed this action pursuant to 28 U.S.C. § 2632. The court has jurisdiction in accordance with 28 U.S.C. § 1581(a).
II
BACKGROUND
The subject merchandise is a substance commercially known as "vegetable oil distillate" or "deodorizer distillate" ("DOD") and categorized under Chemical Services Abstract ("CAS") Number XXXXX-XX-X. ADM's Interrogatory Resp. ¶¶ 3, 9. DOD is a residue produced during the process of refining soybean oil whereby vacuum distillation is utilized to remove undesirable flavors and odors from an otherwise edible oil. Id. ¶ 3. The product is a chemical mixture composed of 70-80% free fatty acids but also contains sterols and tocopherols and can embody a number of other materials including tocotrienol, squalene and carotenoids. Id. ¶ 8.
Deodorization is the process by which steam strips crude soybean oil from volatile materials under low atmospheric pressure and high temperature. Id. ¶ 10. Physically, DOD is a translucent material with a brown, red, or yellow hue, which is solid at room temperature. Id. ¶ 8. DOD is primarily used for the recovery of tocopherols and phytosterols, both of which are further used for the production of tocopherol-based vitamin E products, purified phytosterols, distilled methyl esters, vegetable distilled fatty acids, mixed vegetable fatty acids, and vegetable oil residue. Id. ¶ 11.
On July 23, 2003, Plaintiff entered DOD through the port of Chicago. Memorandum in Support of Plaintiff's Cross-Motion for Summary Judgment ("Plaintiff's Response") at 1. Customs classified the merchandise in subheading 3824.90.28 as:
Chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: other.
HTSUS 3824.90.28 (2002).[1]
Customs' classification was consistent with the decision of this court in Cargill, Inc. v. United States, 318 F.Supp.2d 1279 (CIT 2004), although amendments had been made to Chapter 38 since the importation of the deodorizer distillate at issue in Cargill. Memorandum in Support of Plaintiff's Motion for Partial Summary Judgment ("Plaintiff's Motion") at 1.
In July 2004 Plaintiff filed a protest with an Application for Further Review contesting Customs' classification of DOD in subheading 3824.90.28. Prior to January 1, 2002, subheading 3824.90.28 covered:
Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: Other.
HTSUS 3824.90.28 (2001) (emphasis added); see also Amended Complaint ¶ 31. In the amended tariff schedule that went into effect on January 1, 2002, the language "residual products of the chemical or allied industries, not elsewhere specified or included" was deleted from the description for subheading 3824.90.28. Amended Complaint ¶ 30. At the same time, Heading 3825 was created. Id. ¶ 33. Heading 3825 of the 2002 Harmonized Tariff Schedule provides for:
Residual products of the chemical or allied industries, not elsewhere specified or included; municipal waste; sewage sludge; other wastes specified in note 6 to this chapter: ...
HTSUS Heading 3825 (2002) (emphasis added).
Plaintiff claimed that DOD would be properly classified in HTSUS 3825.61.00 which covers "[o]ther wastes from the chemical and allied industries: Mainly containing organic constituents." HTSUS 3825.61 (2002), see also Amended Complaint ¶ 18, Plaintiff's Motion at 1. In Plaintiffs Amended Complaint, it also argues for classification in Heading 3807 as "vegetable pitch," and in the alternative classification in subheading 3825.90 as "residual products of the chemical or allied industries" other than the wastes specified in Heading 3825. Amended Complaint ¶¶ 28, 41.
On March 10, 2005, Customs issued Ruling HQ 967288 in which it rejected Plaintiff's proposed classification based on a finding that Heading 3825 is reserved for "environmentally sensitive" or "hazardous" substances and therefore does not apply to DOD. Customs Headquarters Ruling Letter No. 967288 (March 10, 2005) ("HQ 967288"); Amended Complaint ¶¶ 19-21. Customs determined that DOD is clearly a "by-product" of the chemical and allied industries, but classifiable in Heading 3824 as a "chemical preparation" and not in Heading 3825 as a "residual product." HQ 967288 at 6. Customs noted that "residual products" for purposes of Heading 3825 are "tantamount to waste product" and that DOD is not "the unadulterated `leftovers' of a manufacturing process." Id.
In defining the scope of Headings 3824 and 3825, Customs stated that prior to 2002 there had not been a need to distinguish between "chemical preparations" and "residual products" of the chemical and allied industries. HQ 967288 at 4. Customs acknowledged that neither term is defined in the HTSUS or the accompanying Explanatory Notes ("ENs") and therefore looked to the available legislative history for Heading 3825. Id. In the absence of House or Senate reports, Customs reviewed the papers and notes relating to the proposal of Heading 3825 at the 12th session of the Harmonized System Review Sub-Committee and its subsequent adoption by Presidential Proclamation. Id. (citing Presidential Proclamation 7515, 66 Fed.Reg. 66,549 (December 18, 2001)). Customs relied on the Sub-Committee's statements analogizing wastes to residual products of the chemical or allied industries. Id. Moreover, Customs stated that the Subcommittee, at the suggestion of the U.S., only intended to create subheadings for waste products that were "(1) environmentally sensitive and whose trans-frontier movement had to be monitored and (2) which were important in international trade." Id. at 5. Based on this, and on the Sub-Committee's comment that "`residual products of the chemical and allied industries' were in fact so nearly similar to other wastes that they should be classified in this new heading," id., Customs concluded that "residual products" for purposes of Heading 3825 refers only to products "that are environmentally sensitive wastes but can be remediated into a useful product." Id. Furthermore, Customs noted that the examples listed in the ENs of products classifiable in Heading 3825, see n. 4 infra, resemble hazardous waste products and that the ENs to Heading 3824 indicate that not all by-products were intended to be moved from Heading 3824.[2]Id.
On November 29, 2005, Plaintiff timely commenced this action seeking reliquidation of entries of the merchandise in issue and calculation of duties in accordance with Plaintiffs proposed tariff headings. Complaint ¶ 5. Plaintiff filed a Motion for Partial Summary Judgment seeking adjudication on the issue of whether Heading 3825 is limited to environmentally sensitive substances. Defendant cross-moved for summary judgment. Plaintiff responded and also submitted a cross-motion for summary judgment. In September 2006, Plaintiff filed a motion to amend its statement of material facts. Following an in-court conference, the court granted Plaintiffs motion and permitted Defendant to file a sur-reply relating to the amended version of Plaintiffs statement of material facts.
III
STANDARD OF REVIEW
An entry of summary judgment is appropriate when there are "no genuine issues as to any material fact and ... the moving party is entitled to a judgment as a matter of law." USCIT R. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In fact, on a motion for summary judgment, the court "may not resolve or try factual issues." Phone-Mate, Inc. v. United States, 690 F.Supp. 1048, 12 CIT 575, 577 (1988), aff'd, 867 F.2d 1404 (Fed. Cir.1989) (citing Yamaha Int'l Corp. v. United States, 3 CIT 108, 109 (1982)). Further, while a presumption of correctness attaches to Customs' classification pursuant to 28 U.S.C. § 2639(a)(1), "this presumption `is irrelevant where there is no factual dispute between the parties.'" Bousa, Inc. v. United States, 25 CIT 386, 387 (2001) (citing Rollerblade, Inc. v. United States, 112 F.3d 481, 484 (Fed.Cir. 1997)). Here, both parties agree that there are no disputed issues of material fact, and therefore, the court will review, de novo, the scope and meaning of the tariff terms at issue, which are purely questions of law. See Totes, Inc. v. United States, 69 F.3d 495, 497 (Fed.Cir.1995); see also Rollerblade, Inc., 112 F.3d at 483.
Nor is Customs' ruling entitled to deference within the parameters of Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). In Skidmore, the Supreme Court held that an agency's determination, while not controlling on the court, is entitled to deference given the "specialized experience and broader investigations and information" available to the agency. Id. at 139, 65 S.Ct. 161; see also United States v. Mead Corp., 533 U.S. 218, 234, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). The amount of respect afforded "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140, 65 S.Ct. 161. Here, Customs did not use any "specialized expertise" to inform its finding in Ruling HQ 967288 and therefore needs not be afforded deference. Customs' ruling does not have any other characteristics or factors which would give it the power to persuade. Thus, the court has "independent responsibility to decide the legal issue regarding the proper meaning and scope of the HTSUS terms." Franklin v. United States, 289 F.3d 753, 757 (Fed.Cir.2002) (internal citations omitted).
The court employs a two-step analysis when deciding classification cases: "the first step concerns the proper meaning of the tariff provisions at hand.... [T]he second step concerns whether the subject imports properly fall within the scope of the possible headings." Universal Elecs. Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997). The General Rules of Interpretation ("GRI") of the HTSUS and the Additional United States Rules of Interpretation guide the court's classification of goods imported into the United States. JVC Co. of Am. v. United States, 234 F.3d 1348, 1352 (Fed.Cir.2000) (citing Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999)). Absent legislative intent to the contrary, HTSUS terms are construed according to their common and commercial meanings, which are presumed to be the same. North Am. Processing Co. v. United States, 236 F.3d 695, 698 (Fed.Cir.2001). In determining a tariff term's common meaning, the court may rely on its own understanding of the term and may "consult lexicographic and scientific authorities, dictionaries, and other reliable information sources." Carl Zeiss, Inc., 195 F.3d at 1379. The court may also refer to the Explanatory Notes accompanying a tariff heading, which although not controlling, clarify the scope of the HTSUS subheadings and offer guidance in their interpretation. Franklin, 289 F.3d at 758; see also H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582.
IV
ANALYSIS
The issue before the court is whether Customs properly classified deodorizer distillate under subheading 3824.90.28 notwithstanding the fact that the reference to "residual products" of the chemical or allied industries was severed from the heading. See HTSUS 3824.90.28 (2002). Plaintiff proposes that DOD is properly classified under Heading 3807 as "vegetable pitch" or, in the alternative, under Heading 3825 as "other wastes of the chemical or allied industries mainly containing organic constituents" (subheading 3825.61) or as "residual products" of the chemical or allied industries (subheading 3825.90). See Plaintiffs Response at 6.
A
Classification Under Heading 3807
Heading 3807 is an eo nomine[3] provision which provides for:
Wood tar; wood tar oils; wood creosote; wood naphtha; vegetable pitch; brewers' pitch and similar preparations based on rosin, resin acids or on vegetable pitch.
HTSUS Heading 3807 (2002).
The Explanatory Notes accompanying Heading 3807 in pertinent part describe "vegetable pitch" as follows:
(C) Vegetable pitch.
These are residues of the distillation or other treatment of vegetable materials. They include:
(1) Wood pitch (wood tar pitch), a residue of the distillation of wood tar.
(2) Rosin pitch, a residue of the preparation of rosin spirit and rosin oil by distillation of rosin.
(3) Sulphate pitch, a residue after the distillation of tall oil, etc.
These pitches are usually blackish-brown, reddish-brown or yellowish-brown. They generally soften with the heat of the hand. They are used, according to their type, for caulking ships, waterproof-coating of woven fabrics, impregnating woods, preparing anti-rust coatings, as binding materials, etc.
EN 38.07(C) (2002).
Plaintiff argues that the "common and commercial meaning" of vegetable pitch includes deodorizer distillate. Plaintiffs Response at 9. Plaintiff relies on the dictionary definition of "pitch" which states that "pitch, in the chemical-process industries, is the black or brown residue obtained by distilling coal tar, wood tar, fats, fatty acids, or fatty oils." Id. (citing The New Encyclopedia Britannica 474 (15th ed.2002)). Plaintiff analogizes the physical appearance of DOD and its uses to those of pitch and claims that the merchandise at issue falls within the "commercial understanding" of vegetable pitch. Id. at 10. In addition, Plaintiff provides affidavits that attest that DOD mimics the physical description provided in the ENs which characterize vegetable pitch as "blackishbrown, reddish-brown or yellowish-brown" and a substance that "generally soften with the heat of the hand." Id. at 11 (citing Furcich Aff. ¶ 11; Collins Aff. ¶ 5; Hart Aff. ¶ 7).
Plaintiff also argues that the list of uses provided in the ENs is not exhaustive by the use of the term "etc.," but that vegetable pitch has a "number of modern industrial uses," and that DOD is used regularly as a substitute for "tall oil pitch" which is specifically covered by Heading 3807. Id. at 14. With respect to the uses listed in the ENs, Plaintiff argues that fatty acids, such as methyl esters, which are extracted from DOD are further refined and used in the preparation of anti-rust coatings, a use which is listed in the ENs. Id. at 15. Whereas DOD was previously classified under Heading 3824, Plaintiff argues that classification in Heading 3807 is proper because the court is required to classify the product in the tariff heading that either names the product or its specific use. Id. at 16 (citing GRI 3(a)).
Defendant argues that DOD does not fall under Heading 3807 because "pitch" generally is defined as a dark sticky substance derived from various wood tars. Memorandum in Support of Cross-Motion for Summary Judgment ("Defendant's Cross-Motion") at 15-16. Defendant also asserts that while Heading 3807 is an eo nomine and not a "use" provision, each of the definitions listed in the ENs describes various uses of pitch, and none of these correspond to the uses for DOD identified by Plaintiff in its interrogatory responses. Id. at 16. Defendant points out that the proposition that "merchandise must be classified in its condition as imported has been a basic tenet of customs law." Defendant's Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment and Response to Plaintiffs Cross-Motion for Summary Judgment ("Defendant's Response") at 10 n. 12. Moreover, Defendant contends that it does not appear from any of Defendant's research that DOD is ever referred to commercially as "vegetable pitch." Defendant's Cross-Motion at 16.
The "Common and Commercial" Meaning of "Vegetable Pitch" Does Not Encompass Deodorizer Distillate
An eo nomine provision describes goods according to their "common and commercial meaning" and includes, without terms of limitation, all forms of the article. See, e.g., Chevron Chem. Co. v. United States, 23 CIT 500, 505 (1999). "When a tariff term is not defined in either the HTSUS or its legislative history, the term's correct meaning is presumed to be its common meaning in the absence of evidence to the contrary." Timber Prods. Co. v. United States, 417 F.3d 1198, 1201 (Fed.Cir.2005) (citing Rohm & Haas Co. v. United States, 727 F.2d 1095, 1097 (Fed. Cir.1984)). A party who argues that a tariff term should not be given its common meaning "must prove that `there is a different commercial meaning in existence which is definite, uniform, and general throughout the trade.'" Timber Prods. Co. v. United States, 515 F.3d 1213, 1219 (Fed. Cir.2008) (quoting Moscahlades Bros. v. United States, 42 C.C.P.A. 78, 82 (1954)). To the extent that Plaintiff claims the commercial meaning of "pitch" is something other than the common meaning, the question for the court is whether ADM has overcome this presumption.
There is little judicial guidance on the "common and commercial meaning" of "vegetable pitch" for purposes of Heading 3807. Dictionaries do not define the term "vegetable pitch," but give meaning to the term "pitch." The dictionary definition of "pitch" is akin to the language found in the ENs to Heading 3807. For example, The American Heritage Dictionary defines pitch as "[a]ny of various thick, dark, sticky substances obtained from the distillation residue of coal tar, wood tar, or petroleum and used for waterproofing, roofing, caulking, and paving." The American Heritage Dictionary 1380 (3rd ed.1996). Other dictionaries contain similar descriptions, describing pitch as:
A tenacious resinous substance, of a black or dark brown colour, hard when cold, becoming a thick viscid semi-liquid when heated; obtained as a residuum from the boiling or distillation of tar, also from the distillation of turpentine; used to stop the seams of ships after caulking, to protect wood from moisture, and for other purposes.
The Oxford English Dictionary 915 (2d ed.1989); or
[A] soft substance that is obtained by distilling fats, fatty oils, or fatty acids (as from the manufacture of soap or candles), contains polymers and decomposition products, and is used chiefly in varnishes and paints and in floor coverings called also fatty acid pitch, stearin pitch.
Webster's Third New International Dictionary 1724 (3rd ed.1986).
"Vegetable pitch," is simply "pitch" but derived from a vegetable base, such as soy, or as described in the ENs, substances that are "residues of the distillation or other treatment of vegetable materials." EN 38.07(C) (2002). The common uses for "pitch" are, both according to dictionary definitions and the Explanatory Notes, caulking, waterproofing and the like.
For purposes of classifying DOD, it is apparent that the substance also is a residue of the distillation of vegetable materials and that DOD shares certain characteristics with various pitches. For example, Plaintiff has furnished affidavits that attest to the physical characteristics of DOD as a yellowish-brown to reddish-brown substance which is viscous at room temperature or solid at lower temperatures and softens with the warmth of a hand, traits common to various pitches described both in dictionary definitions and in the ENs. See Hart Aff. ¶ 7; Collins Aff. ¶¶ 13-14. While the Explanatory Notes are not exhaustive when listing examples of vegetable pitch, DOD is not wood pitch, rosin pitch or sulphate pitch, as listed in the ENs. See EN 38.07(C) (2002). In fact, there is little similarity between vegetable pitch and DOD other than the fact that both are sticky brown substances that derive from a distillation process.
Moreover, the uses for "pitch" listed in dictionary definitions and in the Explanatory Notes do not comport with any of the applications for which Plaintiff uses DOD or for which DOD can be used. Plaintiff has submitted documentation to suggest that it primarily uses DOD for the recovery of tocopherols and phytosterols which are used in vitamin-E products in the pharmaceutical industry, in dietary supplements and as food additives. ADM Interrogatory Responses at ¶ 11. Other uses include purified phytosterols, distilled methyl esters, mixed vegetable fatty acids and vegetable oil residue. Id. None of these uses resemble caulking, waterproofing, or other commonly described "pitch" uses.
This fact, in conjunction with prevailing case law requiring that goods must be classified in the condition in which they are imported, contradict Plaintiffs proposed classification. Worthington v. Robbins, 139 U.S. 337, 341, 11 S.Ct. 581, 35 L.Ed. 181 (1891) ("The dutiable classification of articles imported must be ascertained by an examination of the imported article itself, in the condition in which it is imported."); see also Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir.1994) (citing United States v. Citroen, 223 U.S. 407, 414-15, 32 S.Ct. 259, 56 L.Ed. 486 (1912)) ("It is well settled law that merchandise is classified according to its condition when imported."). While Plaintiff does not dispute that a product must be classified in its imported form, Plaintiff asserted at oral argument that there is little evidence of things specifically described as "pitch" in the Explanatory Notes being used to do anything in their imported form. Instead, Plaintiff attempts to establish a link between DOD usage and common "pitch" uses, stating that the production of fatty acids is used in the manufacture of printing ink, paints, and varnishes, which in turn are used in anti-rust coatings. See, e.g., Plaintiffs Response at 14-15; see also Hart Aff. ¶ 18. Because products must be classified "as imported," this link is insufficient.
Furthermore, there is no indication from Plaintiffs submitted materials, dictionary definitions or any other readily available information that DOD is commercially or commonly known, sold or traded as "vegetable pitch." In fact, in Plaintiffs own words, "the residue of deodorization is a complex mixture of chemicals known commercially as deodorizer distillate." Mayfield Aff. ¶ 12; see also Collins Aff. ¶ 5. Plaintiff has not successfully demonstrated that deodorizer distillate falls within the "common or commercial" meaning of vegetable pitch for purposes of HTSUS Heading 3807 or in the alternative, that a different commercial meaning of the substance exists which is "definite, uniform, and general throughout the trade" within the meaning of Timber Prods. Co., 515 F.3d at 1219.
B
Classification Under Heading 3825
On January 1, 2002, Chapter 38 was amended by Presidential Proclamation and Heading 3825 was created. Presidential Proclamation 7515, 66 Fed.Reg. 66,549 (December 18, 2001). The language of Heading 3825 provides for:
Residual products of the chemical or allied industries, not elsewhere specified or included; municipal waste; sewage sludge; other wastes specified in note 6 to this chapter.
HTSUS Heading 3825 (2002).
The two subheadings at issue, 3825.61 and 3825.90, refer respectively to "Other wastes from the chemical or allied industries: Mainly containing organic constituents" and "Residual products ...: Other." HTSUS 3825.61, 3825.90 (2002). The Explanatory Notes accompanying Heading 3825 list five specific substances pertaining to residual products. These are (1) alkaline iron oxide; (2) residues from the manufacture of antibiotics; (3) ammoniacal gas liquors; (4) spent oxide;[4] and (5) residues from the processing of power plant combustion off-gases.[5] EN 38.25(A)(1)-(4) (2002); EN 38.25(A)(5) (2007).
Note 6 to Chapter 38 which pertains to "other wastes" lists these as: (1) clinical wastes; (2) waste organic solvents; (3) wastes of metal pickling liquors; and (4) other wastes from chemical or allied industries. EN 38.25(D)(1)-(4) (2002).[6] Neither the HTSUS nor the Explanatory Notes define the terms "residual products" or "other wastes from the chemical or allied industries."
Plaintiff argues that DOD is properly classified in Heading 3825 because the relevant language under which DOD had previously been classified was moved to Heading 3825 along with its accompanying Explanatory Notes. Plaintiffs Motion at 1, 12. Plaintiff contends that Heading 3825's applicability is not limited to environmentally sensitive products and that DOD qualifies as "waste" because it is a residual product of the chemical or allied industries. Id.; Plaintiffs Response at 28. Plaintiff contends that the legislative history upon which Customs relied in its denial of Plaintiffs protest is flawed because record discussions and negotiations of the World Customs Organization ("WCO") Sub-Committee may not be used for interpretative guidance of the HTSUS, and, that any such limitation would be arbitrary absent explicit guidance to importers. Plaintiffs Brief at 15. Indeed, Plaintiff points out that certain non-hazardous wastes, such as household and road wastes are included under the definition of "municipal waste" in Note 4 to Chapter 38, and certain toxic wastes are precluded by Note 6 to Chapter 38, negating the proposition that all items classified under Heading 3825 must be environmentally sensitive. Id. at 6-7.
Defendant's argument parallels Customs' interpretation of the scope of the tariff term, and implies a limitation on the applicability of Heading 3825 to environmentally sensitive or hazardous substances. Defendant's Cross-Motion at 20 (citing Ex. E). While acknowledging that the legislative history in question is not legally binding, Defendant's argument relies exclusively on conclusions and recommendations formulated by the Harmonized System Review Sub-Committee concerning the scope of Heading 3825. Id. Defendant argues the absence of any other legislative history and the express agreement by the Sub-Committee that the provision covers only environmentally sensitive waste products, is sufficient to support its position. Id.: Defendant's Response at 13. Defendant suggests that determining whether a substance is environmentally sensitive should be done on a case-by-case basis by an inquiry into whether its "disposal, treatment and transport is controlled to protect the environment." Defendant's Response at 13-14.
1
Heading 3825 is not Limited to "Environmentally Sensitive" or "Hazardous" Substances
GRI 1 states that "classification shall be determined according to the terms of the headings and any relative section or chapter notes ..." GRI 1. The language of Heading 3825 and the accompanying Explanatory Notes do not impose an express limitation on the heading to include only environmentally sensitive or hazardous substances. Plaintiff correctly states that the appropriate legislative history on which this court must rely for interpretive guidance does not impose an environmental limitation on Heading 3825. See, e.g., Plaintiffs Motion at 11; see also EM Indus. v. United States, 999 F.Supp. 1473, 22 CIT 156, 163 (1998) (noting that the WCO's official interpretation of the HTSUS are the Explanatory Notes); Lonza, Inc. v. United States, 46 F.3d 1098, 1109 (Fed.Cir.1995). In fact, the International Trade Commission ("ITC") is obligated by law to keep the HTSUS under continuous review and recommend modifications to the President on an ongoing basis. 19 U.S.C. § 3005(a)-(c). The ITC may take into account decisions issued by the WCO, the WCO's Harmonized System Committee, and U.S. Customs in making their recommendation. See, e.g., Proposed Modification to the Harmonized Tariff Schedule of the United States, Investigation No. 1205-5 (Final), Pub. 3430 at 5 (June 2001).
Here, neither the reports detailing the modification to Chapter 38 nor Presidential Proclamation 7515, contain explicit language that limits Heading 3825 to environmentally sensitive materials. See 66 Fed. Reg. 66,549. Indeed, as Plaintiff points out, "such a major qualification" would most likely warrant a notice and comment period pursuant to 19 U.S.C. § 3005(b). See Plaintiff's Motion at 12. Plaintiff cites to Cummins, Inc. v. United States, 454 F.3d 1361 (Fed.Cir.2006) for the proposition that a WCO opinion may at most be entitled to "respectful consideration," but the court, according to controlling case law, may consult any number of sources to inform its decision concerning the scope of a tariff term, absent unambiguous statutory language and legislative history to the contrary. See, e.g., Carl Zeiss, Inc., 195 F.3d at 1379 (Fed.Cir.1999). Accordingly, the court may look to interpretive guidance where found.
In this instance, it seems clear from the available information that the intent of the Harmonized System Review Sub-committee to the Committee may have been to limit the applicability of Heading 3825 to environmentally sensitive products, or waste products. However, in the formulation and adoption of the provision by the U.S., any such qualification was not adopted. First, it would have been logical to include any such qualification in the statutory language of the HTSUS or, at minimum, in the Explanatory Notes. Second, imposing such a limitation is likely to cause confusion for importers because no objective standards have been set concerning what for example, qualifies as an "environmentally sensitive" or "hazardous" substance for purposes of Heading 3825. Third, no agency was designated to provide any such guidelines, nor is it obvious that all substances detailed in the Explanatory Notes are necessarily environmentally sensitive.[7] Indeed, in an attempt to define what constitutes "environmentally sensitive materials," the government cites to a state sanitation code. Defendant's Response at 13. Such haphazard and varying definitions do not provide adequate guidance to commercial importers of goods seeking to classify chemically complex substances and waste products in Heading 3825, nor is it sufficient that individual substances in the ENs are already regulated the U.S. Environmental Protection Agency ("EPA"), when some are not.[8]
Consequently the scope of Heading 3825 is not limited to substances and products that are environmentally sensitive or hazardous. Congress may wish to amend the provision if it was indeed intended to be limited in such a fashion. However, Federal courts, except in highly unusual circumstances, must decline "to act where Congress has not." Lynteq, Inc. v. United States, 976 F.2d 693, 697 (Fed.Cir.1992) (citing Denkler v. United States, 782 F.2d 1003, 1008 (Fed.Cir.1986)) ("Should Congress wish to extend the [statutory scope], it knows how to do so."). It is not a court's role to read in legislative intent where none is found, or attribute meaning to HTSUS provisions that would result in arbitrary and unpredictable results.
2
Deodorizer Distillate is Not Properly Classified in Subheading 3825.61 as "Waste"
Plaintiffs chief argument for classifying DOD in subheading 3825.61 is that DOD qualifies as a "waste product" under controlling case law. Plaintiff's Motion at 9 (citing Webster's Third New International Dictionary 1931-32, 2580) (3rd ed.2002); Plaintiffs Response at 26-28. Absent a clear definition of "waste" in the HTSUS or the ENs, Plaintiff relies on the court's definition of "waste" in E.T. Horn Co. v. United States, 945 F.2d 1540, 1543 (Fed. Cir.1991). Plaintiffs Response at 26 (citing E.T. Horn Co., 945 F.2d at 1543).
There the court defined "waste" as "manufactured articles which have become useless for their original purpose ... and fit only for remanufacture into something else." Id. Plaintiff also cites to Precision Specialty Metals v. United States, 24 CIT 1016, 1037 (2000) to argue that the court defined waste by a threshold question of whether the merchandise was "purposely produced" or required "re-manufacture" prior to exportation. Id. at 27. Plaintiff notes that oil refineries are "not in business to produce deodorizer distillate for its tocopherol or any other content," and that its relative value, as compared to the primary products derived from soybeans (soybean meal and crude soybean oil), is insignificant. Id. at 5. In fact, Plaintiff characterizes its production of DOD "a reasonable cost recovery effort, akin to recycling spent material." Id. at 6.
Defendant argues that DOD cannot be considered "waste" because it is a "purposely sought by-product" of soybean oil production which is "manipulated to maximize the tocopherol level." Defendant's Cross-Motion at 24; see also Defendant's Response at 17. Defendant challenges Plaintiffs characterization of DOD under E.T. Horn Co., arguing that DOD is not a manufactured article, and that DOD, albeit a residue of soybean oil manufacturing, is a product in its own right which "has an actual use and does not become `useless' even if that use is not exploited." Defendant's Response at 19.
"Waste" is a broad term which is for example defined as "damaged, defective, or superfluous material produced during the or left over from a manufacturing process or industrial operation; material not usable for the ordinary and main purpose of manufacture." Webster's Third New International Dictionary 2580 (3rd ed.2002). This comports with the court's definition of "waste" in E.T. Horn as a "useless" product. E.T. Horn, 945 F.2d at 1543.
Applying E. T. Horn here, Plaintiff fails to demonstrate that DOD is "manufactured", and that despite the multiple applications for which DOD is used the product is "useless" and has to undergo "re-manufacturing" in order to become usable. As the court said, "[because] something is a residue of a process does not automatically render the substance waste, entitled to entry duty-free. Changes in technology or demand can and do render what was once waste matter which is sought for its own sake." Id. Whereas Plaintiff claims that DOD is of little fiscal value as compared with the main oil products it distills, the mere fact that Plaintiff continues to extract DOD for sale is indicative that it is purposely sought, and not merely a waste product "useless for [its] original purpose." Id. Moreover, whether a substance is classifiable as "waste" is not linked to the financial worth of the product. Although it is obvious that DOD is an invariable by-product of soybean distillation, the argument that DOD is not "specifically sought" is refuted by Plaintiffs own admission that "[t]he market demands for vitamin E and other by-products obtained from DOD determines whether ADM will purchase and import DOD from its overseas suppliers." (Hart Aff. ¶ 12). This statement is indicative that Plaintiff not only "comes upon" DOD as a residue of oil distillation, but that DOD is purchased and imported in its own right for a specific and unrelated purpose. Accordingly, the court rejects Plaintiffs proposed classification of DOD in subheading 3825.61.00.
3
Deodorizer Distillate is Not Properly Classified under Subheading 3825.90 as a "Residual Product"
In the alternative, Plaintiff argues that DOD is classifiable as a "residual product" or "byproduct" of the manufacture of soybean oil and that the substance is properly classified under subheading 3825.90. Plaintiffs Motion at 9 (citing Webster's Third New International Dictionary 1931-32, 2580 (3rd ed.2002)); Plaintiffs Response at 28-29. Plaintiff concedes that the term "residual products" is not defined in the HTSUS or the ENs to any relevant section, but advocates that the terms are best construed by their "plain, unqualified meanings." Plaintiffs Motion at 12. In addition, Plaintiff asserts that DOD is properly classified in subheading 3825.90 because it is a "basket provision" which was not intended to be limited to the substances listed in the ENs. Plaintiffs Response at 29.
Defendant argues that the Explanatory Notes limit the scope of subheading 3825.90 to encompass only the residual products listed and therefore precludes classification of DOD in this provision. Defendant's Cross-Motion at 26-27; Defendant's Response at 23. Defendant contends that no language in the subheading indicates that the provision be interpreted as open-ended, and that the specific addition of another substance in 2007, illustrates this. Defendant's Cross-Motion at 26-27.
The question is whether "residual products" under Heading 3825 encompasses DOD. Dictionary definitions speak to "residual products" as a type of "by-products," which currently are also covered by Heading 3824. See EN 38.24(B); see also discussion Section IV(C) infra, In Customs' ruling, it held that "residual products" for purposes of Heading 3825 are "tantamount to waste products," and therefore not inclusive of DOD. HQ 967288 at 5. According to dictionary definitions and the court's articulation in Cargill, the terms "residual products" and "by-products" are often used interchangeably. See Cargill, 318 F.Supp.2d at 1290. Therefore classification of DOD in subheading 3825.90 does not turn on whether the court finds that DOD is a "residual product" or a "by-product." The proper inquiry is whether subheading 3825.90 is a basket provision, and whether the subheading is limited to the substances listed in the accompanying Explanatory Notes.
The Explanatory Notes to subheading 3825.90 list four specific substances under "residual products of the chemical or allied industries," namely alkaline iron oxide, residues from the manufacture of antibiotics, ammoniacal gas liquors and spent oxide, to which a fifth was added in 2007. EN 38.25 (2007). While recognizing that the Explanatory Notes were only meant as a guide in defining HTSUS tariff terms, there is no indication that other residual products were meant to be included in this provision. See Bausch & Lomb v. U.S., 21 CIT 166, 174, 957 F.Supp. 281, 288 (1997) ("[the Explanatory Notes are] generally indicative of proper interpretation of the various provisions of the Convention...."). Whereas subheading 3825.90 mimics the language of a "basket provision"[9] by containing the language "not elsewhere specified or included" and "other," Plaintiffs argument that subheading 3825.90 is a basket provision is not persuasive in light of the limited nature of the language in the Explanatory Notes. The ENs do not contain any language indicating that other substances may be included, as is its function as a basket provision for the merchandise at issue largely negated by the existence of Heading 3824. Heading 3824 specifically provides for chemical mixtures akin to DOD and the ENs explicitly encompass by-products of an unspecified chemical composition. Indeed, the addition of a fifth substance in the 2007 version of the HTSUS, again without the use of terms such as "etc." or other language indicative that the list is inclusive of other, unnamed substances, suggests that the subheading was intended to be limited only to the listed substances. Accordingly, DOD is not properly classified as a residual product under subheading 3825.90.
C
Classification Under Subheading 3824.90.28 is Proper Because DOD is a "Chemical Preparation" Obtained as a By-Product Whose Composition is Not Chemically Defined
Customs classified DOD, entered by Plaintiff, in Heading 3824, subheading 3824.90.28. Subheading 3824.90.28, after its amendment on January 1, 2002, provides for:
Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other.
HTSUS 3824.90.28. (2002).
The Explanatory Notes to Heading 3824 provide in pertinent part:
(B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS
. . .
The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly.
EN 38.24(B) (2002).
Customs' classification was consistent with this court's decision in Cargill v. U.S., 318 F.Supp.2d 1279 (CIT 2004), although the language of Heading 3824 in effect at the time the merchandise in Cargill was entered included a provision for "residual products of the chemical or allied industries." Cargill, 318 F.Supp.2d at 1282. In Cargill the court did not need to distinguish between "chemical products and preparations" and "residual products of the chemical or allied industries," but held that classification in subheading 3824.90.28 was proper because "deodorizer distillate is undisputedly a by-product of a chemical or allied industry." Id. at 1290. Recognizing that the Cargill court was not faced with the issue of whether DOD was best classified as a "by-product" or "residual" product, Customs in its ruling found that the merchandise is more aptly described as a "chemical preparation" in Heading 3824 than a "residual product" in Heading 3825, although it conceded that neither were defined in the HTSUS or the accompanying ENs. HQ 967288 at 4. Customs found that eliminating "residual products" from Heading 3824 did not indicate an intent to preclude by-products from classification in Heading 3824. Id. at 5. Indeed, Customs points to the ENs to Heading 3824 which specifically provide for "chemical products ... obtained as by-products from the manufacture of other substances," and the list provided in the Explanatory Notes in which naphthenic acids are listed as "by-products of the refining of certain petroleum oils and of certain oils obtained from bituminous minerals." Id. (citing EN 38.24(B)(1) (2002)). Customs also offered the dictionary definition of the term "preparation" as "a substance ... prepared for a specific purpose." Id. (quoting Webster's II New College Dictionary 1789 (3rd ed.1991)).
Plaintiff argues that DOD is not classifiable in Heading 3824, because it is better defined as a "waste" or "residual product" in Heading 3825. Plaintiffs Motion at 22. Plaintiff refutes Defendant's distinction between Heading 3824 and 3825 which implies that by-products may be commercially valuable and residual products may not, citing examples of named substances in Heading 3825 that are both valuable and further manufactured substances. Id. at 22-23. Additionally, Plaintiff contends that DOD is of lessened value in light of regulations that require manufacturers to leave higher levels of tocopherol in the edible oil, but that the substance is an unavoidable residue resulting from soybean distillation. Id. at 23-24.[10] Plaintiff argues that the real distinction between Heading 3824 and 3825 turns on whether the "merchandise is useful in its condition as generated in the production of something else." Id. at 24. Plaintiff notes that napthenic acid appears to have an immediate practical application, whereas DOD is prepared from oil residue via the process of steam stripping, and that tocopherols are then further extracted for the use in vitamin-E products. Id. at 24-25.
Defendant argues that Customs properly classified DOD under Heading 3824, its reasoning mirroring that of Customs. Defendant's Cross-Motion at 18. In response to Plaintiffs attempt to distinguish the two headings at issue, Defendant argues that the distinction is not properly illustrated by napthenic acid, as this substance also requires further manufacturing and therefore disproves Plaintiffs theory. Id. at 25. Moreover, Defendant argues that the focus of the court's enquiry must be whether the substance qualifies as a byproduct, as opposed to a waste product. Id.
Classifying merchandise under a "basket" provision is only appropriate when no other tariff terms cover the product more specifically. EM Indus., Inc., 999 F.Supp. 1473, 22 CIT at 165 (1998) ("basket" or "residual" provisions are intended as broad catch-all tariff terms for which "there [are] no more specifically applicable subheadings."). Basket provisions are generally only used where other applicable provisions have been excluded. See Rollerblade, Inc., 282 F.3d at 1354.
Deodorizer distillate is properly classifiable as:
Chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: Other.
HTSUS 3824.90.28.
The Explanatory Notes to Heading 3824 define such products as those "whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances." EN 38.24. Plaintiff submitted affidavits that attest to the fact that "[d]eodorizer distillate is a complex mixture of approximately 10% sterols and steryl esters, and approximately 10% tocopherols (collectively `aromatic'); mixed fatty acids (approximately 70-80%), including glycerides, hydrocarbons, oleic acid, stearic acid, linoleic acid, linolenic acid; and organic compounds including herbicides, pesticides, insecticides, dissolved gases, moisture, and other general impurities." (Mayfield Aff. ¶ 16). Plaintiff conceded that "there are no formal specifications of the composition of DOD, which is dependent on the source of the vegetable material and processing conditions," (Hart Aff. ¶ 8), and that "[t]he residue of deodorization is a complex mixture of chemicals. . . ." (Collins Aff. ¶ 5). These statements suggest that DOD qualifies as a chemical product or preparation with a non-specific chemical composition.
While Plaintiff agrees that DOD is a byproduct of soybean distillation, it contends that not all by-products are classifiable in Heading 3824. Plaintiffs Response at 24-25; see also The American Heritage Dictionary of the English Language (4th ed.2000) (a by-product is "something produced in the making of something else"). This assertion is clearly validated by the creation of Heading 3825, which refers to "residual products" that may also be construed as a type of "by-product." However, because subheading 3825.90 is limited to the residual products listed, classification of DOD in subheading 3824.90.28 is proper. Thus, because DOD is not properly classified in Heading 3807, subheading 3825.61, or subheading 3825.90, and in lieu of a more specific provision, Customs properly classified entries of DOD in subheading 3824.90.28.
V
CONCLUSION
For the foregoing reasons Plaintiffs Motion for Summary Judgment is DENIED, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiffs Response and Cross-Motion is DENIED. Accordingly, Customs' classification of deodorizer distillate, CAS Number XXXXX-XX-X, in HTSUS subheading 3824.90.28 is AFFIRMED.
NOTES
[1] At oral argument, Plaintiff agreed that DOD contains "5 percent or more by weight of one or more aromatic or modified aromatic substances."
[2] The Explanatory Notes to Heading 3824 state, in pertinent part, that:
The chemical products classified here are therefore products whose composition is not chemically defined, whether they are obtained as by-products of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared directly.
EN 38.24(B) (2002).
[3] An eo nomine provision describes goods by name, in contrast to "use" provisions that describe merchandise by their use. Carl Zeiss, Inc.. 195 F.3d at 1379.
[4] (A) RESIDUAL PRODUCTS OF THE CHEMICAL OR ALLIED INDUSTRIES, NOT ELSEWHERE SPECIFIED OR INCLUDED
(1) Alkaline iron oxide for the purification of gas (in particular, coal-gas) containing impure ferric oxide, obtained as a by-product from one of the processes of the extraction of aluminium from bauxite. These byproducts also contain sodium carbonate, silica, etc.
(2) Residues from the manufacture of antibiotics (called "cakes"), with a very low antibiotic content, suitable for use for the preparation of compound animal feeds.
(3) Ammoniacal gas liquors, produced as an aqueous portion settling out from the crude coal tar condensed from coal gas, and also by the absorption of ammonia in the waters used for washing coal. They are usually concentrated before transportation. They are brownish liquids and are used for the manufacture of ammonium salts (particularly ammonium sulphate) and purified and concentrated aqueous solutions of ammonia gas.
(4) Spent oxide. After the water-extraction of the greater part of its ammonia content, coal gas is chemically purified by passing it through a mass usually composed of bog iron ore or of hydrated iron(III)oxide, sawdust and calcium sulphate. This mass re moves from the gas certain impurities (hydrogen sulphide, hydrocyanic acid, etc.). When spent, it contains a mixture of sulphur, Prussian blue, a small quantity of ammonium salts and other substances, and is known as spent oxide. It is usually in the form of powder or granules, greenish to brownish in colour, with a disagreeable odour, and is mainly used as a source of sulphur and cyanides (particularly Prussian blue) and as a fertiliser or an insecticide.
EN 38.25(A)(1)-(4) (2002).
[5] The following was added in 2007:
(5) Residues from the processing of power plant combustion off-gases by so called limestone gypsum flue gas desulphurisation (LG FGD). These residues are solid or in the form of a slurry and can be further processed and used as a substitute for natural gypsum in plasterboard manufacture. However, purified calcium sulphate isolated from these residues, is excluded (heading 28.33).
EN 38.25(A)(5) (2007).
[6] (D) OTHER WASTES SPECIFIED IN NOTE 6 TO THIS CHAPTER
The heading also covers a wide variety of other wastes specified in Note (6) to this Chapter. They include:
(1) Clinical waste which is contaminated waste arising from medical research, diagnosis, treatment orother medical, surgical, dental or veterinary procedures. Such waste often contains pathogens, pharmaceutical substances and body fluids and requires special disposal procedures (e.g., soiled dressings, used gloves and used syringes).
(2) Waste organic solvents generally derived from cleaning and washing processes and containing mainly organic solvents, not fit for further use as presented as primary products, whether or not intended for recovery of the solvents.
Wastes containing mainly petroleum oils or oils obtained from bituminous minerals are excluded (heading 27.10).
(3) Wastes of metal pickling liquors, hydraulic fluids, brake fluids and anti-freezing fluids not fit for further use as presented as primary products. They are generally used for recovery of the primary products.
However, the heading excludes ash and residues from waste of metal pickling liquors of a kind used for the recovery of metals or metal compounds (heading 26.20) and wastes of hydraulic fluids and brake fluids containing mainly petroleum oils or oils obtained from bituminous minerals (heading 27.10).
(4) Other wastes from chemical or allied industries.
EN 38.25(D) (2002).
[7] For example, "municipal waste" is defined in the ENs to Heading 3825 as "waste of a kind collected from households, hotels, restaurants, hospitals, shops, offices, etc ...." EN 38.25(B) (2002). The Explanatory Notes elaborate further on the definition of "municipal waste," noting that such waste "generally contains a large variety of materials such as plastics, rubber, wood, paper, textiles ... and other damaged or discarded articles." The designation of such items as "environmentally sensitive" or "hazardous" is within the discretion of local municipalities; there is no uniform federal standard designating municipal waste as environmentally sensitive.
[8] "Sewage sludge," as identified in the ENs to Heading 3825(C), is covered by specific EPA regulations. Other substances are not. See EN 38.25(C) (2002).
[9] "Basket or residual provisions of HTSUS Headings ... are intended as a broad catchall to encompass the classification of articles for which there is not a more specifically applicable subheading." Rollerblade, Inc. v. United States, 282 F.3d 1349, 1354 (internal citations omitted).
[10] At oral argument, Defendant indicated that it does not dispute this characterization.
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3205
MILWAUKEE CENTER FOR
INDEPENDENCE, INC.,
Plaintiff-Appellee,
v.
MILWAUKEE HEALTH CARE,
LLC, agent of Wellspring of
Milwaukee, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15-CV-1479 — Lynn Adelman, Judge.
____________________
ARGUED APRIL 10, 2019 — DECIDED JULY 8, 2019
____________________
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Milwaukee Health Care, LLC
(MHC) and Milwaukee Center for Independence, Inc. (MCFI)
entered into an agreement in 2014. Per that agreement, MCFI,
a non-profit organization dedicated to providing medical care
2 No. 18-3205
for individuals with brain injuries, would operate a brain-in-
jury center in MHC’s nursing facility. MHC would handle all
billing and collections for the services MCFI provided and,
through a process outlined in the agreement, remit the funds
collected to MCFI (after taking a cut for itself).
But MHC failed to follow through on its obligations under
the contract, redirecting MCFI’s funds to pay its employees
and other creditors instead. MCFI sued MHC for breaching
the contract and brought claims against MHC’s principal,
William Nicholson. The district court, exercising diversity ju-
risdiction, 1 entered summary judgment against MHC for
breach of contract and against Nicholson for conversion and
civil theft. The district court awarded MCFI over $2 million
in damages, interest, and costs against MHC and Nicholson,
jointly and severally. It also awarded MCFI over $200,000 in
attorney’s fees and costs against Nicholson alone.
MHC and Nicholson appeal the judgments against Ni-
cholson. Because we agree with the conclusions of the district
court, we affirm.
I.
William Nicholson was the CEO of “the Congress Compa-
nies,” a collection of businesses involved in the construction
of medical facilities. In 2013, Nicholson and another investor,
1 See 28 U.S.C. § 1332. MCFI is a Wisconsin corporation with its prin-
cipal place of business in Wisconsin. MHC is a Delaware LLC whose
members, William Koski and William Nicholson, are both citizens of
New Jersey. See generally Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir.
1998) (“[T]he citizenship of an LLC for purposes of the diversity jurisdic-
tion is the citizenship of its members.”). The amount in controversy well
exceeds $75,000.
No. 18-3205 3
William Koski, 2 formed MHC to operate the Wellspring of
Milwaukee nursing home, with Nicholson serving as the
managing member. The Wellspring facility was in a building
owned by Milwaukee Healthcare Properties I, LLC (Milwau-
kee Properties), another of Nicholson’s companies. The prop-
erty was subject to a mortgage from Oppenheimer Multifam-
ily Housing and Healthcare Finance, Inc. (Oppenheimer).
The United States Department of Housing and Urban Devel-
opment (HUD) insured the mortgage.
In 2014, MCFI and MHC entered into an agreement
whereby MCFI would operate an 18-bed brain-injury clinic
within the Wellspring facility, the Nexday Brain Injury Rehab
Center (BIRC). The agreement outlined a specific process for
MCFI to obtain compensation for services performed at the
BIRC. MHC would bill and collect from third parties (e.g.,
Medicaid and private insurance companies) for MCFI’s ser-
vices in MHC’s own name and on MHC’s own behalf. MHC
would then place any funds collected for MCFI’s services
(BIRC Collections) into a general account, which was subject
to a control agreement with Branch Banking & Trust Com-
pany. The agreement then required MHC to maintain a spe-
cial checking account with a Milwaukee-area bank (the BIRC
Depository Account) and transfer all BIRC Collections into
that account. On the third business day of every month, MCFI
would submit an invoice to MHC. On the 20th of each month,
MHC would remit to MCFI either the amount of the invoice
or the amount in the BIRC Depository Account, whichever
2 Koski was originally a party to this suit along with Nicholson, but
after the district court dismissed the claims against them in MCFI’s First
Amended Complaint, MCFI did not name Koski as a defendant in its
Second Amended Complaint.
4 No. 18-3205
was less, after taking a cut for itself (the “Wellspring Interim
Daily Rate”). 3
In addition to these terms, the agreement called for MHC
to approach Oppenheimer and HUD about approval for
MCFI to acquire a security interest in the receivables of which
the BIRC Collections would be proceeds. The agreement
notes any such interest would be subordinate to any security
interest held by Oppenheimer, HUD, or an accounts-receiva-
ble lender. The parties do not indicate what Oppenheimer
and HUD thought about MCFI acquiring a security interest in
those receivables, but it is clear MCFI never got one.
In 2015, the parties entered into a renewal agreement con-
taining substantially similar terms.
While the parties operated under these agreements, MHC
suffered significant cash-flow problems. MHC’s financial
woes prompted Nicholson to invest his personal funds multi-
ple times, totaling over $4 million. In an effort to manage
these problems, Nicholson directed the CFO of the Congress
Companies, Ed Tabor, to get involved to “help manage the
cash.”
Under Tabor’s direction, MHC began redirecting BIRC
Collections to make its payroll and pay other creditors, pri-
marily Milwaukee Properties. In 2015, MHC entered into a
line-of-credit arrangement with SCM Specialty Finance Op-
portunities Fund, L.P. (SCM), an accounts-receivable lender.
Under that agreement, MHC placed all the money it collected
3 This round-about way for MCFI to receive its compensation was
apparently a consequence of Wisconsin law, which did not allow MCFI
to bill in its own name.
No. 18-3205 5
(including BIRC Collections) into one of two lock-box ac-
counts (one for government payors, the other for private
payors). Every day, SCM would sweep out all the funds in
those accounts and apply them toward MHC’s outstanding
debt to SCM. MHC would then request a new draw on the
line of credit to obtain operating capital.
MCFI received its last full payment from MHC in March
2015. By the end of that year, MHC owed MCFI over $1 mil-
lion.
MCFI sued MHC in December 2015 and ceased operating
the BIRC in February 2016. In its operative complaint, MCFI
claimed MHC breached the contract and sought to hold Ni-
cholson liable under theories of veil-piercing (to hold him per-
sonally liable for MHC’s breach), conversion, and civil theft.
MCFI maintained Tabor was Nicholson’s agent, so Nicholson
was personally responsible for Tabor’s redirection of the BIRC
Collections.
MHC acknowledged it breached the contract, but Nichol-
son contested his personal liability. The parties filed cross-
motions for summary judgment. In his briefs to the district
court, Nicholson argued (1) MCFI could not pierce the LLC’s
veil, (2) MCFI’s claims for conversion and civil theft
amounted to an impermissible claim for tortious breach of
contract, and (3) MCFI was just another vendor with no par-
ticular interest in the BIRC Collections. However, concerning
his relationship with Tabor, Nicholson “concede[d] that Ni-
cholson was principal, and Tabor was Nicholson’s agent.” 4
4 Defendants’ Response to Motion for Summary Judgment, Doc. 73,
at 23.
6 No. 18-3205
Yet, he maintained nothing either he or Tabor did amounted
to a conversion of the BIRC Collections.
The district court entered summary judgment for MCFI on
its claims for breach of contract, conversion, and civil theft.
After noting Nicholson’s concession of his agency relation-
ship with Tabor, the district court observed Nicholson’s only
defense against MCFI’s tort claims was his argument MCFI
had no interest in the BIRC Collections. The district court con-
cluded MCFI had such an interest, and therefore held Nichol-
son liable for conversion and civil theft. The district court also
held MCFI’s tort claims were not improperly conflated with a
claim for breach of contract.
The parties submitted additional briefing on damages. In
his damages brief, Nicholson tried to walk back his earlier
concession concerning his relationship with Tabor, arguing
he meant to say he was Tabor’s principal inasmuch as he was
Tabor’s superior within MHC, not that Tabor was his personal
agent. The district court rejected that argument outright and
held Nicholson to his concession. The court awarded MCFI
$1,903,452.47, plus interest and costs, against Nicholson and
MHC jointly and severally. It also awarded $198,669.50 in at-
torney’s fees, plus costs, against Nicholson alone. 5
II.
We review the grant of summary judgment de novo.
Spierer v. Rossman, 798 F.3d 502, 507 (7th Cir. 2015). “When
5 The district court also awarded MCFI $33,362.66, plus interest,
against MHC for unreimbursed improvements MCFI had made to the
Wellspring facility.
No. 18-3205 7
reviewing cross-motions for summary judgment, ‘we con-
strue all inferences in favor of the party against whom the mo-
tion under consideration is made,’” that is, the party appeal-
ing the judgment. Med. Protective Co. of Fort Wayne v. Am. Int’l
Specialty Lines Ins. Co., 911 F.3d 438, 445 (7th Cir. 2018) (quot-
ing Schlaf v. Safeguard Prop., LLC, 899 F.3d 459, 465 (7th Cir.
2018)). “Summary judgment is appropriate … if, on the evi-
dence provided, no reasonable juror could return a verdict in
favor of” that party. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir.
2013). Because this is a diversity case, “we apply state sub-
stantive law.” Med. Protective Co., 911 F.3d at 445. Specifically,
we apply Wisconsin law because this case comes to us from
the Eastern District of Wisconsin and neither party disputes
that Wisconsin law applies. See id.
A. Waiver & Concession
Before getting to the merits of this case, we note Nicholson
makes a number of arguments in his briefs to this court that,
as MCFI points out, were not raised to the district court.
Those arguments are waived, and we will not address them.
See Wheeler v. Hronopoulos, 891 F.3d 1072, 1073 (7th Cir. 2018)
(“Failing to bring an argument to the district court means that
you waive that argument on appeal.”).
In addition, Nicholson spends a significant portion of his
brief arguing about his relationship with Tabor. Nicholson
tells us Tabor and he were co-agents, going so far as to argue
he was not Tabor’s principal at all. 6 But all of that is moot
6 “In a relationship of coagency, neither agent is the other’s agent.
Thus, neither is vicariously liable for wrongs committed by the other.
Each coagent owes duties to the common principal.” Restatement (Third)
8 No. 18-3205
given Nicholson’s express concession in his briefing to the
district court “that Nicholson was principal, and Tabor was
Nicholson’s agent.” Nicholson is bound to his admission,
however much he regrets it now. Cf. Soo Line R.R. Co. v. St.
Louis Sw. Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997) (“[J]udicial
efficiency demands that a party not be allowed to controvert
what it has already unequivocally told a court by the most
formal and considered means possible.”). The manner of Ni-
cholson’s concession bolsters that conclusion. Nicholson did
not just concede his relationship with Tabor in some throw-
away line buried in the brief. He expressly stated, at the end
of the section of his brief discussing conversion, that though
he was Tabor’s principal and Tabor was his agent, it did not
matter because MCFI had no interest in the BIRC Collections.
Nowhere in the three briefs Nicholson filed with the district
court before the damages phase does Nicholson argue he is
not personally liable because he had an insufficient relation-
ship with Tabor. Thus, Nicholson cannot argue this is just “a
new twist” on an earlier argument. Cf. United States v. Billups,
536 F.3d 574, 578 (7th Cir. 2008) (concluding the appellant’s
reliance on different authority on appeal was not a new argu-
ment). This is a blatant attempt to contradict what he already
admitted, and we will not allow it.
B. Nicholson’s Remaining Arguments
Setting aside the arguments Nicholson conceded or did
not develop before the district court, we are left with two: (1)
MCFI cannot pursue its claims for conversion and civil theft
of Agency § 1.04 cmt a. Nicholson argues the “common principal” was
MHC.
No. 18-3205 9
because it did not have an ownership interest in the BIRC Col-
lections, and (2) MCFI’s tort claims are simply repackaged
claims for breach of contract. We take each in turn.
1. MCFI’s Ownership Interest
Under Wisconsin law, both conversion and civil theft re-
quire the victim to have an ownership interest in the property
converted or stolen. WIS. STAT. § 895.446(1) (creating a civil
cause of action for victims of theft); WIS. STAT. § 943.20(1)(b)
(defining theft to include the intentional use, transfer, con-
cealment, or retention of possession of money “without the
owner’s consent, contrary to his or her authority, and with in-
tent to convert … to the use of any other person except the
owner”); H.A. Friend & Co. v. Prof’l Stationery, Inc., 720 N.W.2d
96, 100 (Wis. Ct. App. 2006) (listing “intentional control or tak-
ing of property belonging to another” as the first element of
conversion). Nicholson argues MCFI did not have such an
interest in the BIRC Collections; it merely had a right to pay-
ment. See generally Kentuckiana Healthcare, Inc. v. Fourth St. So-
lutions, LLC, 517 F.3d 446, 447 (7th Cir. 2008) (“If you simply
owe someone money and fail to pay it, you have broken a
contract but you have not taken your creditor’s property.”).
He notes MHC billed and collected in its own name and on
its own behalf, the BIRC Collections were held in MHC’s bank
accounts, and MCFI acknowledged other entities could claim
security interests in the BIRC Collections. All of this, he says,
shows MCFI did not have an ownership interest in the BIRC
Collections. We disagree. 7
7 In a related argument, Nicholson contends the BIRC Collections
cannot be subject to a claim for conversion because they were commin-
gled with other funds in MHC’s accounts. In his briefing to the district
10 No. 18-3205
Our analysis on this point begins, and just about ends,
with Methodist Manor of Waukesha, Inc. v. Martin, 647 N.W.2d
409 (Wis. Ct. App. 2002). In that case, Evelyn Martin was a
resident at a Methodist Manor nursing home. Id. at 410. 8 Her
son, Frederick Martin, was a joint holder on her bank account
and would receive “on his mother’s behalf her monthly in-
come from Social Security and other unknown sources.” Id.
at 411 (internal quotation marks omitted). Wisconsin law and
Evelyn’s contract with Methodist Manor required Evelyn to
pay all but $40 of her monthly Social Security income to Meth-
odist Manor on the 15th of each month. Id. at 411 & n.1; see
also WIS. STAT. § 49.45(7)(a) (1999–2000). Nevertheless, Fred-
erick did not forward his mother’s Social Security income to
Methodist Manor, instead using the funds “for himself or oth-
ers.” Martin, 647 N.W.2d at 411.
court, Nicholson’s only argument about commingling in relation to the
tort claims was one sentence in a paragraph asserting MHC was not
MCFI’s “fiduciary or trustee” for the purposes of MCFI’s civil-theft
claim. Whether that was sufficient to avoid waiver of the argument he
makes here is immaterial because the argument fails in any event. Just
because money was “mingled” with other money does not defeat a claim
for conversion. See Regas v. Helios, 186 N.W. 165, 166 (Wis. 1922) (allow-
ing a claim for conversion where the defendant “proceeded to treat the
money as his own by mingling it with his own funds”); Cotton v. Sharp-
stein, 14 Wis. 226, 234 (1861) (“[W]hen [the defendant] so mingles
[money] without authority and then refuses to pay, I am unable to see
why such refusal should not be just as much evidence of a conversion as
though the money were still in a separate parcel.”).
8 Martin was an appeal from a motion to dismiss, so the Wisconsin
Court of Appeals treated the facts alleged in the complaint as true. 647
N.W.2d at 410.
No. 18-3205 11
Methodist Manor sued Frederick for conversion. Id. The
trial court dismissed the complaint, but the Wisconsin Court
of Appeals reversed. The court concluded Methodist Manor,
pursuant to the law and its contract with Evelyn, was “the one
rightfully entitled” to the Social Security income. Id. at 412
(internal quotation marks omitted). Therefore, Frederick was
“under a duty to remit [the Social Security income] to Meth-
odist Manor,” and his failure to do so amounted to a conver-
sion of Methodist Manor’s property. Id. (internal quotation
marks omitted).
Drawing out the similarities between the case before us
and Martin defeats most of Nicholson’s arguments. Nichol-
son says MCFI cannot have an ownership interest in the BIRC
Collections because MHC acquired them in its own name and
on its own behalf. But that was just as true of Evelyn Martin
receiving her Social Security income in her own name and on
her own behalf. Nicholson says MHC owned the BIRC De-
pository Account where the BIRC Collections were stored be-
fore being remitted to MCFI, but the Social Security income in
Martin presumably was also held in the Martins’ bank ac-
count until it was turned over to Methodist Manor. At bot-
tom, the cases are materially indistinguishable. Both in Mar-
tin and here, one party received funds from an outside source
and was required to remit those funds to the other party. If
that was enough to create an ownership interest in Martin, it
is enough here.
Despite the evident similarities between this case and Mar-
tin, Nicholson fights the analogy, pointing instead to Method-
ist Manor Health Center, Inc. v. Py, 746 N.W.2d 824 (Wis. Ct.
App. 2008). Ruth Ann Py was another resident at a Methodist
Manor nursing home. Id. at 826. According to the terms of
12 No. 18-3205
her contract, Py was to pay Methodist Manor $2,450 each
month. Id. Py’s granddaughter, Nadine Ray, had control of
Py’s checkbook and handled her accounts. Id. at 827. At Py’s
request, Ray would deliver large amounts of cash to her
grandmother ranging from $500 to $5,000. Id. Meanwhile, Py
allegedly became deficient in her payments to Methodist
Manor, accruing an outstanding balance of $32,700. Id. at 826–
27.
The Wisconsin Court of Appeals held Methodist Manor
did not have a claim for conversion against Ray. The court
considered Martin “inapposite” because “there [was] no evi-
dence … that Ray received funds that were to be applied to
the cost of Py’s care.” Id. at 828. Unlike the situation in Mar-
tin, there was no evidence Methodist Manor was entitled to
any specific money in Py’s accounts; it merely had a right to
payment. See id. at 830 (citing approvingly the trial court’s
conclusion “Ruth Ann Py owed money to Methodist Manor
for what Methodist Manor provided [her] with” but the
money was Py’s).
The facts of this case are much closer to Martin than they
are to Py. Here, MCFI had more than a generic right to pay-
ment; the agreements entitled MCFI to specific funds MHC
collected for services at the BIRC. Indeed, the parties point to
no provision in the agreements under which MCFI could re-
ceive any funds MHC collected unrelated to the BIRC. Under
the reasoning of Martin, MCFI had an ownership interest in
the BIRC Collections.
We address one other argument Nicholson makes relating
to MCFI’s ownership interest: MCFI could not have a prop-
erty interest in the BIRC Collections because it acknowledged
the receivables from the BIRC, of which the BIRC Collections
No. 18-3205 13
would be proceeds, could be subject to security interests held
by MHC’s creditors, including MCFI itself. See generally WIS.
STAT. § 409.203(6) (“The attachment of a security interest in
collateral gives the secured party the rights to proceeds pro-
vided by s. 409.315 … .”); WIS. STAT. § 409.315(1)(b) (“A secu-
rity interest attaches to any identifiable proceeds of collat-
eral.”). Nicholson points to Wisconsin law that an enforceable
security interest requires the party granting the interest to
have “rights in the collateral or the power to transfer rights in
the collateral.” WIS. STAT. § 409.203(2)(b). He argues if the
BIRC Collections were MCFI’s property, MHC would not
have been able to grant security interests in the receivables.
We are unconvinced. Just because MCFI gave the impres-
sion MHC could grant security interests in the receivables
does not mean MCFI did not have an ownership interest in
the BIRC Collections. If the true owner of property gives the
impression that another is the owner, the true owner cannot
later contest a security interest the other granted in the prop-
erty. See Kloety v. Delles, 45 Wis. 484, 488–89 (Wis. 1878); 68
Am. Jur. 2d Secured Transactions § 203. However, nothing in
that rule serves to negate the true owner’s rights in the prop-
erty—he is just “estopped from showing that a security inter-
est is not valid.” 68 Am. Jur. 2d, supra. Therefore, at most
MCFI’s acknowledgement of the security interests of MHC’s
creditors only estops MCFI from contesting the interests of
those creditors. It does not prevent MCFI from asserting its
ownership of the property against MHC. See Kloety, 45 Wis.
at 489 (“Under these circumstances, we think the plaintiff is
estopped to deny as against [the secured party] that his wife is
the owner of the property.” (emphasis added)).
14 No. 18-3205
2. Contract and Tort
This leaves only Nicholson’s argument that he is not sub-
ject to the tort claims because they conflate tort and contract.
In that regard, “Wisconsin has a long history of attempting to
maintain the distinction between contract and tort claims.”
Butler v. Advanced Drainage Sys., Inc., 717 N.W.2d 760, 773
(Wis. 2006) (Roggensack, J., concurring). But maintaining that
distinction does not preclude the bringing of a tort claim
every time there is a contract between the victim and the tort-
feasor. See Cotton v. Sharpstein, 14 Wis. 226, 228 (1861). Wis-
consin courts only require “a duty existing independently of
the performance of the contract for a cause of action in tort to
exist.” Greenberg v. Stewart Title Guar. Co., 492 N.W.2d 147,
151 (Wis. 1992) (quoting Landwehr v. Citizens Trust Co., 329
N.W.2d 411, 414 (Wis. 1983)); accord Cotton, 14 Wis. at 229
(“[A] party, by entering into a contract with the owner in re-
spect to property, does not thereby incapacitate himself from
wrongfully invading the rights of the owner which exist inde-
pendent of the contract.”). To proceed on a tort claim when
there is a contract, “a contract may create the state of things which
furnishes the occasion of a tort”; it just cannot create “the un-
derlying duty for the tort.” Landwehr, 329 N.W.2d at 414
(quoting Colton v. Foulkes, 47 N.W.2d 901, 903 (Wis. 1951)).
As the district court concluded, the contract between the
parties here “created the state of things” which allowed the
tort to occur; it did not create the duty Nicholson breached.
By the terms of the parties’ agreement, MCFI obtained an
ownership interest in the BIRC Collections. The duty to re-
frain from converting or stealing the BIRC Collections was en-
tirely independent of the contract. It arose from the common
law and Wisconsin statutes, not the contract between MCFI
No. 18-3205 15
and MHC. See Atkinson v. Everbrite, Inc., 592 N.W.2d 299, 301–
02 (Wis. Ct. App. 1999) (“[T]ort obligations are in general ob-
ligations [that are] imposed by law … to avoid injury to oth-
ers.” (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON
ON THE LAW OF TORTS § 92 (5th ed. 1984))). Accordingly, the
presence of a contract between MCFI and MHC does not bar
holding Nicholson liable for the torts. Cf. H.A. Friend & Co.,
720 N.W.2d at 102 (“Van Der Puy had a duty, regardless of
the existence of the contract, not to retain or use money that
belonged to Friend without Friend’s consent or authoriza-
tion.”).
III.
MCFI had an ownership interest in the BIRC Collections
and was entitled to proceed on its tort claims against Nichol-
son, who was personally involved in the wrongful redirection
of those funds through the actions of his agent, Tabor. The
district court’s grant of summary judgment to MCFI is
AFFIRMED.
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REVISED March 19, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 09-10144
FILED
December 10, 2009
Summary Calendar
Charles R. Fulbruge III
Clerk
JASON KYLE RICHARDS
Plaintiff-Appellant
v.
DISTRICT ATTORNEY’S OFFICE, for the 266th Judicial District Court; JOHN
TERRILL, District Attorney of Erath County, 266th Judicial District Court, in
his individual and official capacity; TOMMY BRYANT, Sheriff of Erath County,
in his individual and official capacity; DUBLIN POLICE DEPARTMENT;
CHRIS BAKER, Sargent of The Dublin Police Department, in his individual and
official capacity; JOHN/JANE DOE
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CV-468
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jason Kyle Richards, Texas prisoner # 1037098, appeals the district court’s
dismissal of his pro se, in forma pauperis (IFP) civil rights complaint under
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 09-10144
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). We review de novo the district
court’s dismissal. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Through the vehicle of 28 U.S.C. § 1983, Richards sought DNA evidence
related to his conviction and 20-year sentence for second degree aggravated
sexual assault. The district court determined that Richards’s claims were barred
by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), and Kutzner v.
Montgomery County, 303 F.3d 339 (5th Cir. 2002), the latter of which held that
a petition for habeas corpus relief under 28 U.S.C. § 2254—not § 1983—is the
procedural mechanism by which claims that “necessarily imply the invalidity of
[a plaintiff’s] conviction or sentence” must be brought. Kutzner, 303 F.3d at
340–41 (quoting Heck, 512 U.S. at 486–87) (alteration in original).
We need not resolve whether Kutzner remains good law or Heck bars
Richards’s § 1983 claim for access to DNA evidence because, whether his claims
sound in habeas or § 1983, Richards cannot establish the deprivation of a
constitutional right. There is no freestanding federal constitutional right to
post-conviction access to DNA evidence for testing. Dist. Attorney’s Office for
Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2323 (2009). Moreover, for
purposes of a procedural due process claim, Richards has not demonstrated the
facial inadequacy of Texas’s procedures for post-conviction DNA access, and,
never having invoked the state process available to him, he cannot sustain an
as-applied challenge. Id. at 2321. Accordingly, Richards’s appeal is
DISMISSED.
2
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105 Ga. App. 104 (1961)
123 S.E.2d 711
KELLY, Executrix
v.
GEORGIA CASUALTY & SURETY COMPANY et al.
38483.
Court of Appeals of Georgia.
Decided December 4, 1961.
Rehearing Denied December 13, 1961.
*105 Howard & Storey, James C. Howard, for plaintiff in error.
Maurice N. Maloof, George A. Durden, Smith, Field, Ringel, Martin & Carr, R. E. Lee Field, contra.
*106 BELL, Judge.
1. In Clark v. Kelly, 217 Ga. 449 (122 SE2d 731), the Supreme Court, Chief Justice Duckworth dissenting, in reversing the decision of this court in Kelly v. Ga. Cas. & Surety Co., 104 Ga. App. 167 (121 SE2d 313), held that the present petition stated a cause of action for deceit. In view of this holding the trial court properly overruled the general demurrer.
2. The defendant's motion for judgment notwithstanding the verdict as amended contended, firstly, that the plaintiff cannot recover on the contract because all contracts of insurance must be in writing, and there being no evidence to show that the insurer ever consented for the defendant to be a dual agent and since no contract of insurance was ever issued, the defendant is not liable. This ground is without merit, since the petition was approved by the Supreme Court as stating a cause of action for deceit. Deceit is not an action in contract, nor is it based upon the defendant's agency.
3. The second ground of the motion for judgment notwithstanding the verdict was on the basis that there was no proof of any fraud shown on the part of the defendant. The evidence adduced in the trial substantially supported the allegations of the petition as to the alleged deceit. The conflicts in the evidence were for the jury, which resolved them against the defendant. The trial court did not err in overruling the motion for judgment notwithstanding the verdict.
4. The motion for new trial was properly overruled on the general grounds. Grounds 1, 2, and 3 of the amended motion for new trial, which raise contentions respecting dual agency, that the defendant made no undertaking individually, or was acting as agent for the insurer, are all foreclosed by the Supreme Court's ruling that the petition stated a cause of action against him individually for deceit.
5. Ground 4 of the amended motion for new trial contends that the evidence was insufficient to establish an action for deceit because the question of whether a risk is insured is a question of law, not of fact, and further that there was no moral guilt on the part of the defendant. These were questions decided adversely to the defendant by the Supreme Court in *107 holding that he would be liable for his misrepresentation of the fact that the property was insured when it was not.
6. It is contended that the court erred in charging the law of punitive damages. There is no merit in this contention. Where the petition stated a cause of action for deceit, it is proper to charge the jury on the law of punitive damages (Aderhold v. Zimmer, 86 Ga. App. 204, 71 SE2d 270), since in such a case the question is for the jury whether the aggravating circumstances of the alleged tort warrant the award to the plaintiff of punitive damages. Code § 105-2002.
7. The judgment of this court in Kelly v. Ga. Cas. & Surety Co., 104 Ga. App. 167, supra, is hereby vacated, and the judgment of the Supreme Court in Clark v. Kelly, decided 217 Ga. 449, supra, is made the judgment of this court.
The other assignments of error are without merit or were not argued and are thus deemed abandoned.
Judgments affirmed. Felton, C. J., and Nichols, J., concur.
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886 F.Supp. 770 (1995)
Edward SEGER, Plaintiff,
v.
The DOW CHEMICAL COMPANY, a Delaware corporation, Defendant.
Civ. A. No. 90-S-1773.
United States District Court, D. Colorado.
May 15, 1995.
*771 Dennis W. Hartley, Derry Beach Adams, Colorado Springs, CO, for plaintiff.
C. Michael Montgomery, Peter S. Dusbabek, Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, CO, for defendant.
MEMORANDUM OPINION AND ORDER
SPARR, District Judge.
THIS MATTER comes before the court on Dow's Motion for Summary Judgment, filed February 15, 1995. At a hearing held April 28, 1995, the court granted Dow's motion in part. The court granted summary judgment in favor of Dow and against the Plaintiff on the Plaintiff's Second, Fifth, Sixth, and Seventh Claims for Relief. The court took Dow's motion for summary judgment under advisement as to the Plaintiff's First, Third, and Fourth Claims for Relief. The Plaintiff has conceded that the Third Claim for Relief subsumes the Fourth Claim for Relief, as they are both claims for strict liability under the Restatement (Second) of Torts § 402A. As to the Plaintiff's remaining First and Third Claims for Relief, the court has reviewed the motion, the Plaintiff's brief in opposition, Dow's reply brief, the exhibits, the arguments presented by counsel in open court on April 28, 1995, the entire case file, and the applicable law and is fully advised in the premises.
1. Standard of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). The movant need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994). If the moving party meets this burden, the nonmoving party may not rest upon its pleadings, but must come forward with specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Applied Genetics Int'l. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).
In applying the summary judgment standard, the court construes the factual record and reasonable inferences therefrom in the light most favorable to the party opposing *772 summary judgment. Blue Circle Cement, Inc. v. Board of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir.1994); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). However, the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment. FDIC v. Hulsey, 22 F.3d 1472, 1481 (10th Cir.1994) (emphasis in original). A "material" fact is one that might affect the outcome of the suit under the governing law. An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
2. Preemption under FIFRA
The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C.S. §§ 136 et seq., provides a detailed scheme for regulating the content and format of labels for many chemical products, including herbicides, fungicides, and insecticides, and requires those products sold in the United States to be registered with the Environmental Protection Agency (EPA). In an effort to preserve uniformity of laws concerning labeling, FIFRA specifically mandates that a "State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter." 7 U.S.C.A. § 136v(b) (1980 and Supp.1995).
Section 136v(b) of FIFRA preempts state law claims which constitute "requirements for labeling or packaging in addition to or different from" the labeling and packaging requirements imposed under FIFRA, including any state law claims which would require the trier of fact to determine whether a product was adequately labeled or packaged. See MacDonald v. Monsanto Co., 27 F.3d 1021, 1024-25 (5th Cir.1994); Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993); King v. E.I. Dupont De Nemours and Co., 996 F.2d 1346, 1349 (1st Cir.), cert. dismissed, ___ U.S. ___, 114 S.Ct. 490, 126 L.Ed.2d 440 (1993); Shaw v. Dow Brands, Inc., 994 F.2d 364, 369-71 (7th Cir.1993); Papas v. Upjohn Co., 985 F.2d 516, 518 (11th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993); Arkansas-Platte & Gulf Partnership v. Van Waters & Rogers, Inc., 981 F.2d 1177, 1178-79 (10th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993). Failure to warn claims are preempted by FIFRA because they require the application of state law requirements for labeling and packaging, in conflict with FIFRA. Id.
Dow argues that FIFRA preempts the Plaintiff's First and Third Claims for Relief because, although stated as claims for negligent manufacture and strict liability for defective design, the claims are actually based on a failure to warn. While failure to warn claims are preempted by FIFRA, state law claims that do not implicate requirements for the labeling or packaging of a product are not preempted. See Higgins v. Monsanto Co., 862 F.Supp. 751, 757-59 (N.D.N.Y.1994); Jillson v. Vermont Log Bldgs., Inc., 857 F.Supp. 985, 991-92 (D.Mass.1994); Bingham v. Terminix Intl. Co. L.P., 850 F.Supp. 516, 521-22 (S.D.Miss. 1994); Wright v. Dow Chemical U.S.A., 845 F.Supp. 503, 509-11 (M.D.Tenn.1993); Kennan v. Dow Chemical Co., 717 F.Supp. 799, 811-12 (M.D.Fla.1989); Fisher v. Chevron Chemical Co., 716 F.Supp. 1283, 1287-89 (W.D.Mo.1989). The court must therefore determine whether the Plaintiff's First and Third Claims for Relief would impose or effect different or additional packaging or labeling requirements than the requirements imposed by FIFRA.
3. Plaintiff's Third Claim for Relief Alleging Dowicide 7 Was Unreasonably Dangerous Based on a Defect
In determining the extent of liability of a product manufacturer for a defective product, Colorado has adopted the strict products liability doctrine of the Restatement (Second) of Torts § 402A. Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1244 (Colo.1987) (en banc) (citations omitted); Kern v. General Motors Corp., 724 P.2d 1365, 1366-67 (Colo.App.1986); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983, 987 (1975). Under § 402A of the Restatement, a seller is strictly liable for any product sold "in a defective condition unreasonably dangerous" *773 to the consumer. In Colorado, a manufacturer may not be held strictly liable unless a product is both defective and unreasonably dangerous. Tafoya v. Sears Roebuck and Co., 884 F.2d 1330, 1339 (10th Cir.1989) (citation omitted); CJI-Civ.3d 14:18 (1989); Fibreboard Corp. v. Fenton, 845 P.2d 1168, 1175 (Colo.1993), citing Camacho, 741 P.2d at 1245.
A product may be unreasonably dangerous due to a manufacturing defect, a design defect, or a failure to warn. Camacho, 741 P.2d at 1247. In this case, any failure to warn claim is preempted by FIFRA. The issue in manufacturing defect cases is whether the product as produced conformed with the manufacturer's specifications. The basis for strict liability for design defects is that reasonable care must be used to design a product that is reasonably safe for its intended or foreseeable uses. Camacho, 741 P.2d at 1245, citing W. Prosser The Law of Torts § 96 at 641, 644-45 (4th ed. 1971). In design defect cases, where the product has been manufactured as intended, certain factors should be applied in balancing the risks and benefits of a product to determine whether a product design is unreasonably dangerous. Camacho, 741 P.2d at 1247-48, citing Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410, 414 (Colo.1986).
Although the Third Claim for Relief is allegedly based on a defect that rendered Dowicide 7 unreasonably dangerous to the Plaintiff, the evidence before the court on summary judgment shows that this claim is actually based on a failure to warn theory. In the Plaintiff's Answers to Dow's First Set of Interrogatories, the Plaintiff indicates that his Third Claim for Relief is premised on the failure of the Dowicide 7 label to adequately warn the Plaintiff "as to the dangers the exposure to this chemical could cause." (Exhibit B to Dow's Motion for Summary Judgment pp. 15-16). The court concludes that the true nature of the Plaintiff's Third Claim for Relief is strict liability for failure to warn, a state law claim that is preempted by FIFRA. Dow is entitled to summary judgment on the Plaintiff's Third Claim for Relief.
4. Plaintiff's First Claim for Relief Alleging Dow Was Negligent in Manufacturing Dowicide 7
The arrival of strict liability did not abrogate the right of an injured party also to proceed on a negligence claim. The principles of general product liability law impose a duty on the manufacturer of a product to act reasonably in the design, manufacture, and sale of the product. Halliburton v. Public Service Co., 804 P.2d 213, 216-17 (Colo.App. 1990) (citations omitted). Under a negligence theory, the reasonableness of the manufacturer's conduct must be determined. Halliburton, 804 P.2d at 217, quoting Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo.App.1985).
Plaintiff's claim that Dow was "negligent in manufacturing" appears to be nothing more than a method for establishing a manufacturer's liability based on negligence. See CJI-Civ.3d 14:1 (1989); Stone's Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1114 (Colo.1991). The Plaintiff's First Claim for Relief does not appear to be based on any requirements for labeling or packaging that are preempted by FIFRA. If the Plaintiff can establish a violation of state law that is not predicated on requirements for labeling or packaging that are in addition to or different from those required by FIFRA, that claim is not preempted by FIFRA. See Worm, 5 F.3d at 749; Higgins, 862 F.Supp. at 758; Jillson, 857 F.Supp. at 991-92.
Accordingly, IT IS ORDERED:
1. Dow's Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.
2. Summary judgment is GRANTED on the Third Claim for Relief. Judgment shall hereby enter in favor of Defendant Dow and against Plaintiff Seger on the Third Claim for Relief.
3. Summary judgment is DENIED on the First Claim for Relief.
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 27, 2017
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
_________________________________ Clerk of Court
In re: JARED TRENTON COWEN,
Debtor.
_____________________________ No. 15-1413
WD EQUIPMENT, LLC; AARON
WILLIAMS; BERT DRING,
Appellants,
v.
JARED TRENTON COWEN,
Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:14-CV-02408-REB)
_________________________________
Alexander M. Musz of Cohen & Cohen, P.C., Denver, Colorado, for Defendants–
Appellants.
C. Todd Morse of Morse Law, LLC, Denver, Colorado, for Plaintiff–Appellee.
_________________________________
Before KELLY, McKAY, and McHUGH, Circuit Judges.
_________________________________
McKAY, Circuit Judge.
_________________________________
Plaintiff Jared Trent Cowen’s 2000 Peterbilt 379, a commercial truck, was in
need of repair. To cover the cost, Mr. Cowen borrowed money from Defendant WD
Equipment, which is owned and managed by Defendant Aaron Williams, in exchange
for a lien on the truck and the promise of repayment. After the Peterbilt broke down
again only a few weeks after the repairs, it was towed to a local repair company,
which estimated that fixing the truck again would cost $9,000—more than Mr.
Cowen could afford.
Because his Peterbilt was in the shop, Mr. Cowen could not make installment
payments to WD Equipment. So, in early August, 2013, Mr. Cowen began taking
steps to refinance the loan; he met with his bank and with his parents in an attempt to
secure refinancing, and he exchanged several text messages on August 1 and 2 with
Mr. Williams about paying off the loan. During the course of that exchange,
however, Mr. Williams gave Mr. Cowen several, contradictory responses as to how
much Mr. Cowen would need to pay to settle the debt, and he accelerated the payoff
date several times, before ultimately setting August 6 as the deadline.
Around the same time, Mr. Cowen defaulted on another loan secured by
another one of his trucks, a 2006 Kenworth T600. This loan was owed to Defendant
Bert Dring, the father-in-law of Mr. Williams, who held a purchase-money security
interest in the truck. On July 29, Mr. Dring lured Mr. Cowen under false pretenses to
his place of business to repossess the Kenworth. Mr. Dring asked Mr. Cowen, who
had brought along his young son, to leave the keys in the ignition, engine running,
and to step out of the truck. As Mr. Cowen exited the vehicle, Mr. Dring jumped in,
–2–
grabbed the keys, and declared the truck “repossessed.” When Mr. Cowen asked
what was going on, Mr. Dring told him to take his son and leave—immediately. A
group of five men gathered around Mr. Dring while he brandished a can of mace
above his head and threatened to use it if Mr. Cowen did not leave. Mr. Cowen
pushed his young son behind him to protect him, and the two left the lot on foot.
Three days later, Mr. Cowen received a letter from Mr. Dring giving him ten days to
pay off the Kenworth.
Instead, Mr. Cowen filed a voluntary petition for relief under Chapter 13 of the
Bankruptcy Code on August 6, which was the deadline for paying off the Peterbilt,
and which was within the ten-day cure period for the Kenworth. He notified
Defendants of the filing and requested the immediate return of both trucks. But
Defendants refused: Mr. Williams claimed that he had changed the title to his name
on August 1. (At no time during the text message exchanges on August 1 and 2 did
Mr. Williams ever inform Mr. Cowen of the title change.) And Mr. Dring claimed
that he sold the Kenworth sometime prior to the bankruptcy filing. (Initially, he
claimed he had sold the Kenworth to an unknown Mexican national for cash in an
undocumented sale just days before Mr. Cowen filed for bankruptcy. Later, Mr.
Dring produced bill of sale, purporting to show that he sold the Kenworth to a Mr.
Garcia for $16,000 in cash on August 4.)
About a month later, Mr. Cowen moved the bankruptcy court for orders to
show cause why Defendants should not be held in contempt for willful violations of
the automatic stay. The bankruptcy court granted the motions and ordered
–3–
Defendants to “immediately turn over” the trucks to Mr. Cowen; “[c]ontinuing failure
to turn over the Truck[s],” the bankruptcy court warned, “may result in the
imposition of monetary damages against the Creditors for willful violation of the
automatic stay.” Order on Motion for Order to Show Cause and Order to Turnover
Property of the Estate, Case No. 13-23461 (Bankr. Colo. Sept. 5, 2013).
When Defendants did not comply with the bankruptcy court’s turnover order,
Mr. Cowen filed an adversary proceeding for violations of the automatic stay. A few
months later, the bankruptcy court dismissed the underlying bankruptcy case because,
without the trucks, Mr. Cowen had no regular income, which rendered him ineligible
for Chapter 13 relief. However, the bankruptcy court expressly retained jurisdiction
over the adversary proceeding.
During the adversary proceeding, Defendants again asserted that Mr. Cowen’s
rights in the trucks had been properly terminated by Defendants before the
bankruptcy petition was filed, and so they could not have violated the automatic stay.
But the bankruptcy court “did not find the Defendants’ testimony that they had
transferred title before the petition date to be credible.” (App. Vol. II at 248.) It
went on to “find[ ] that they manufactured the paperwork . . . after the bankruptcy
filing.” (Id.) “Defendants likely forged documents and gave perjured testimony” and
“coached their witnesses on what to testify to during [ ] breaks” in an “attempt to
convince the Court that [Mr. Cowen’s] rights in the Trucks had been terminated pre-
bankruptcy.” (Id. at 258.) Additionally, the bankruptcy court held that “even if they
had taken the actions they claim to have taken before the bankruptcy filing,” (id. at
–4–
269), such actions contravened Colorado law, and therefore did not effectively
terminate Mr. Cowen’s “ownership interest in the Trucks,” (id. at 252). And so, the
bankruptcy court concluded, “[f]ailing to return the Trucks violated § 362(a)(3) of
the Bankruptcy Code,” (id.), and it imposed actual and punitive damages under 11
U.S.C. § 362(k)(1).
Defendants timely appealed this decision to the district court, which reversed
on the calculation of damages but otherwise affirmed the bankruptcy court’s order.
Defendants then appealed to this Court, arguing, among other things, that the
bankruptcy court exceeded its jurisdiction, that it lacked constitutional authority to
enter a final judgment in this adversary proceeding, and that the bankruptcy court
misinterpreted § 362—the automatic stay provision. “[T]hough this appeal comes to
us from the district court, we review a bankruptcy court’s decisions independently,
examining legal determinations de novo and factual findings for clear error.” FB
Acquisition Prop. I, LLC v. Gentry (In re Gentry), 807 F.3d 1222, 1225 (10th Cir.
2015). “In doing so, we treat the bankruptcy appellate panel or district court as a
subordinate appellate tribunal whose rulings are not entitled to any deference
(although they may certainly be persuasive).” Nelson v. Long (In re Long), 843 F.3d
871, 873 (10th Cir. 2016) (internal quotation marks omitted). “A bankruptcy court’s
legal conclusions are reviewed de novo, while its factual findings are reviewed for
clear error.” Id.
We address first the bankruptcy court’s jurisdiction. “The jurisdiction of the
bankruptcy courts, like that of other federal courts, is grounded in, and limited by,
–5–
statute.” Celotex Corp. v. Edwards, 514 U.S. 300, 307 (1995). By statute,
bankruptcy courts have jurisdiction to “enter final judgments in ‘all core proceedings
arising under title 11, or arising in a case under title 11.’” Stern v. Marshall, 564
U.S. 462, 474 (2011) (quoting 28 U.S.C. § 157(b)(1)). As we have explained, a
claim for damages under § 362(k)(1) for a violation of an automatic stay is a core
proceeding. Johnson v. Smith (In re Johnson), 575 F.3d 1079, 1083 (10th Cir. 2009)
(holding that a Ҥ 362(k)(1) proceeding . . . is a core proceeding because it derives
directly from the Bankruptcy Code and can be brought only in the context of a
bankruptcy case.” (internal quotation marks and brackets omitted)). Accordingly,
bankruptcy courts can exercise jurisdiction and adjudicate such claims to final
judgment. Id.
Defendants contend, however, that the bankruptcy court erred in retaining
jurisdiction over the § 362(k)(1) adversary proceeding after the underlying
bankruptcy was dismissed. But this argument is foreclosed by Johnson. There it was
argued that “dismissal of the underlying Chapter 13 case divested the bankruptcy
court of jurisdiction over the § 362(k)(1) proceeding.” Id. at 1081. We disagreed:
“Nothing in the Bankruptcy Code mandates dismissal of the § 362(k)(1) proceeding
when the bankruptcy case is closed,” and “[n]o part of § 362(k)(1) suggests that a
claim exists only while the bankruptcy case remains pending.” Id. at 1084. We
explained that “[r]equiring the dismissal of a § 362(k)(1) proceeding simply because
the underlying bankruptcy case has been dismissed would not make sense. A court
must have the power to compensate victims of violations of the automatic stay and
–6–
punish the violators, even after the conclusion of the underlying bankruptcy case.”
Id. at 1083.
Defendants’ attempts to distinguish Johnson are unavailing. They argue that,
unlike in Johnson, this § 362(k)(1) adversary proceeding is “non-core” because the
bankruptcy court “had to determine the disputed possessory interests in [the] assets
pursuant to state law.” (Appellant’s Br. at 36). But “[a] determination that a
proceeding is not a core proceeding shall not be made solely on the basis that its
resolution may be affected by State law.” 28 U.S.C. § 157(b)(3).
Defendants also seem to suggest that Johnson is distinguishable because there
the bankruptcy court decided the automatic stay violation first, which was appealed
(which, in turn, resulted in a remand), and then dismissed the underlying bankruptcy
while the automatic stay violation appeal was pending. (See Appellant’s Br. at 34
(citing Johnson, 575 F.3d at 1081, where we summarized the procedural history of
the case)). But Defendants do not argue, much less persuade, why this discrepancy
undermines the unequivocal holding of Johnson: “a § 362(k)(1) proceeding remains
viable after termination of the underlying bankruptcy case.” Johnson, 575 F.3d at
1084.
Defendants also contend that the bankruptcy court lacked constitutional
authority under Stern v. Marshall to enter final judgment. But Stern dealt with
claims that did not “stem[ ] from the bankruptcy itself” and would not “necessarily be
resolved in the claims allowance process.” Stern, 564 U.S. at 499. A claim under §
362(k)(1) for an automatic stay violation, by contrast, “derives directly from the
–7–
Bankruptcy Code and can be brought only in the context of a bankruptcy case.”
Johnson, 575 F.3d at 1083. Indeed, it necessarily “stems from the bankruptcy itself.”
Stern, 564 U.S. at 499.
A claim for violating an automatic stay is not the “stuff of the traditional
actions at common law tried by the courts at Westminster in 1789.” Stern, 564 U.S.
at 484 (quoting N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 90
(1982) (Rehnquist, J., concurring in the judgment)). To the contrary, “we are
concerned here with the adjudication of a right created by federal statute, rather than
a private, state-created right, like that of concern in Marathon.” Mountain America
Credit Union v. Skinner (In re Skinner), 917 F.2d 444, 449 (10th Cir. 1990) (holding
that a bankruptcy court did not exceed its constitutional authority when it entered
sanctions pursuant to 11 U.S.C. § 362(h), the precursor of § 362(k), for violating an
automatic stay). And so, the bankruptcy court did not exceed its constitutional
authority by entering final judgment in the § 362(k)(1) adversary proceeding.
To the merits. Mr. Cowen filed the adversary proceeding against Defendants
for violating “[s]ection 362, which establishes the automatic stay.” Johnson, 575
F.3d at 1083. “When a debtor files for bankruptcy, section 362 prevents creditors
from taking further action against him except through the bankruptcy court.” Id.
(quoting Price v. Rochford, 947 F.2d 829, 831 (7th Cir. 1991)). To accomplish this,
§ 362 provides in relevant part that a bankruptcy petition “operates as a stay. . . of. . .
any act to obtain possession of property of the estate or of property from the estate or
to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3).
–8–
Below, the bankruptcy court held that “[t]he failure to return the Trucks to
[Mr. Cowen] post-petition constituted a continuing violation of the stay”;
specifically, Defendants “violated § 362(a)(3) of the Bankruptcy Code.” (App. Vol.
II at 252.) As the district court noted, the bankruptcy court applied what appears to
be the majority rule: “that the act of passively holding onto an asset constitutes
‘exercising control’ over it, and such action violates section 362(a)(3) of the
Bankruptcy Code.” Thompson v. Gen. Motors Acceptance Corp., 566 F.3d 699, 703
(7th Cir. 2009); see also Weber v. SEFCU (In re Weber), 719 F.3d 72, 81 (2d Cir.
2013), California Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147,
1151 (9th Cir. 1996), Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773,
775 (8th Cir. 1989), Unified People’s Fed. Credit Union v. Yates (In re Yates), 332
B.R. 1, 4 (B.A.P. 10th Cir. 2005); but see United States v. Inslaw, 932 F.2d 1467,
1474 (D.C. Cir. 1991). Defendants disagree with this interpretation of § 362(a)(3),
and we agree with Defendants.
The majority rule seems driven more by “practical considerations,” Weber,
719 F.3d at 80, and “policy considerations,” Thompson, 566 F.3d at 703, than a
faithful adherence to the text. But “[o]ur interpretation of the Bankruptcy Code starts
where all such inquiries must begin: with the language of the statute itself.” Ransom
v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011) (internal quotation marks omitted).
In this case, it is also where the inquiry ends, “for where, as here, the statute’s
language is plain, the sole function of the courts is to enforce it according to its
–9–
terms.” Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1102–03 (10th Cir.
1991).
Here again is § 362(a)(3), in relevant part: a bankruptcy petition “operates as
a stay. . . of. . . any act to obtain possession of property of the estate or of property
from the estate or to exercise control over property of the estate.” Breaking down the
sentence, “any act” is the prepositive modifier of both infinitive phrases. In other
words, § 362(a)(3) prohibits “any act to obtain possession of property” or “any act to
exercise control over property.” “Act”, in turn, commonly means to “take action” or
“do something.” New Oxford American Dictionary 15 (3d ed. 2010) (primary
definition of “act”). This section, then, stays entities from doing something to obtain
possession of or to exercise control over the estate’s property. It does not cover “the
act of passively holding onto an asset,” Thompson, 566 F.3d at 703, nor does it
impose an affirmative obligation to turnover property to the estate. “The automatic
stay, as its name suggests, serves as a restraint only on acts to gain possession or
control over property of the estate.” Inslaw, 932 F.2d at 1474. Stay means stay, not
go.
The majority rule reads too much into the section’s legislative history. Prior to
the Bankruptcy Amendments and Federal Judgeship Act of 1984, “the Code’s stay
provision only prohibited any act to obtain possession of property belonging to a
bankruptcy estate.” Thompson, 566 F.3d at 702. The 1984 Amendments “broadened
the already sweeping provisions of the automatic stay even further to prohibit
expressly not only ‘acts to obtain possession’ of property of the estate, but also ‘any
– 10 –
act . . . to exercise control over the property of the estate.’” Weber, 719 F.3d at 80
(quoting Pub. L. No. 98–353, 98 Stat. 333, 371). Notwithstanding that “Congress did
not provide an explanation of that amendment,” the majority reads from “the mere
fact that Congress expanded the provision to prohibit conduct above and beyond
obtaining possession of an asset,” that Congress “intended to prevent creditors from
retaining property of the debtor.” Weber, 719 F.3d at 80. “This significant textual
enlargement is consonant with [the majority rule].” Id.
But Congress does not “hide elephants in mouseholes.” Whitman v. American
Trucking Ass’ns, 531 U.S. 457, 468. The amendments are equally “consonant” with
another, less sweeping conclusion. “Since an act designed to change control of
property could be tantamount to obtaining possession and have the same effect, it
appears that § 362(a)(3) was merely tightened to obtain full protection.” In re
Bernstein, 252 B.R. 846, 848 (Bankr. D.D.C. 2000). “[U]se of the word ‘control’ in
the 1984 amendment to § 362(a)(3) suggests that the drafters meant to distinguish the
newly prohibited ‘control’ from the already-prohibited acts to obtain ‘possession,’ in
order to reach nonpossessory conduct that would nonetheless interfere with the
estate’s authority over a particular property interest.” Ralph Brubaker, Turnover,
Adequate Protection, and the Automatic Stay (Part II): Who is “Exercising Control”
Over What?, 33 No. 9 Bankruptcy Law Letter NL 1 (September 2013).
It’s not hard to come up with examples of such “acts” that “exercise control”
over, but do not “obtain possession of,” the estate’s property, e.g., a creditor in
possession who improperly sells property belonging to the estate. Similarly,
– 11 –
“intangible property rights that belong to the estate, such as contract rights or causes
of action are incapable of real possession unless they are reified. Yet, (a)(3)
preserves and guards against interference with them by staying any act to exercise
control over estate property.” In re Hall, 502 B.R. 650, 665 (Bankr. D.D.C. 2014).
If Congress had meant to add an affirmative obligation—to the automatic stay
provision no less, as opposed to the turnover provision—to turn over property
belonging to the estate, it would have done so explicitly. The majority rule finds no
support in the text or its legislative history.
In the end, the best argument for the majority rule is that § 362 should be read
in conjunction with another part of the bankruptcy code—§ 542, the turnover
provision, which provides that any entity “in possession, custody, or control, during
the case of property that the trustee may use, sell, or lease under section 363 of this
title. . . shall deliver” such property to the trustee “unless such property is of
inconsequential value or benefit to the estate.” 11 U.S.C. § 542 (emphasis added).
According to the majority, “Section 542 requires that any entity in possession of
property of the estate deliver it to the trustees, without condition or any further
action: the provision is self-executing.” Weber, 719 F.3d at 79 (internal quotation
marks omitted); but see Hall, 502 B.R. at 654–665. Reading these two sections
together ostensibly furthers “[t]he primary goal of . . . bankruptcy,” Thompson, 566
F.3d at 702, i.e. “to group all of the debtor’s property together,” id., because “[a]s a
practical matter, there is little difference between a creditor who obtains property of
the estate before bankruptcy is filed, or after bankruptcy is filed,” Yates, 332 B.R. at
– 12 –
5. “The ultimate result is the same—the estate will be deprived of possession of that
property,” which is “precisely the result § 362 seeks to avoid.” Id. And so, the
argument goes, “§ 542 provides the right to the return of estate property, while [§
362] provides the remedy for the failure to do so.” Abrams v. Sw. Leasing & Rental,
Inc. (In re Abrams), 127 B.R. 239, 242–43 (B.A.P. 9th Cir. 1991).
But this policy argument, too, is simply not supported by the statute’s text or
its legislative history. Even if the turnover provision were “self-executing” (which
we do not decide), there is still no textual link between § 542 and § 362. And,
contrary to one argument for the majority rule, see id. at 243, bankruptcy courts do
not need § 362 to enforce the turnover of property to the estate. Bankruptcy courts
have “broad equitable powers” under 11 U.S.C. § 105(a), see Scrivner v. Mashburn
(In re Scrivner), 535 F.3d 1258, 1263 (10th Cir. 2008), and can provide equitable
relief as “necessary or appropriate to carry out the provisions of” § 542(a), see id.
(citing 11 U.S.C. § 105(a)). Moreover, § 105(a) “grants bankruptcy courts the power
to sanction conduct abusive of the judicial process.” Id. (internal brackets and
quotation marks omitted); see also Skinner, 917 F.2d at 447 (holding that “section
105(a) empowers bankruptcy courts to enter civil contempt orders,” including for
monetary damages). And so, adhering to the text of the statute, as we must, we adopt
the minority rule: only affirmative acts to gain possession of, or to exercise control
over, property of the estate violate § 362(a)(3).
Today’s decision does not absolve Defendants of liability, however. On
remand, the damages award may be sustainable under the proper application of §
– 13 –
362(a)(3) and under § 105(a), which “grants bankruptcy courts the power to sanction
conduct abusive of the judicial process.” Scrivner, 535 F.3d at 1263. The
bankruptcy court here “found the Defendants’ attitudes while testifying to be
contemptuous of the bankruptcy process, the Debtor, and the Court.” (App. Vol. II at
258). It also found that Defendants “manufactured the paperwork . . . after the
bankruptcy filing.” (Id. at 248.). And it noted that Defendants “likely forged
documents and gave perjured testimony,” and “coached their witnesses on what to
testify to during [ ] breaks.” (Id. at 258). This was all done in an “attempt to
convince the Court that [Mr. Cowen’s] rights in the Trucks had been terminated pre-
bankruptcy.” (Id.) These would qualify as post-petition acts to exercise control over
the debtor’s property in violation of the automatic stay.
We REVERSE the judgement of the district court and REMAND to the
district court, which may remand the case to the bankruptcy court, for further
proceedings consistent with this opinion. We GRANT the renewed motion to seal
volume five of the appendix.
– 14 –
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56 B.R. 479 (1985)
In the Matter of Susan Elizabeth CRAIG, Debtor.
Susan Elizabeth CRAIG, Plaintiff,
v.
LOAN SERVICING CENTER, Defendant.
Bankruptcy No. 85-03528-3, Adv. No. 85-0634-3.
United States Bankruptcy Court, W.D. Missouri, W.D.
December 26, 1985.
*480 Daniel C. Hall, Kansas City, Mo., for plaintiff.
Erlene W. Krigel, Kansas City, Mo., Trustee.
JUDGMENT DISMISSING ACTION WITHOUT PREJUDICE TO ITS POSSIBLE REINSTATEMENT WITHOUT FURTHER FILING FEE IF AND WHEN A STATE COURT JUDGMENT IS RECOVERED
DENNIS J. STEWART, Bankruptcy Judge.
This is an action brought by the plaintiff requesting that the court determine a certain student loan indebtedness to be deemed to be dischargeable in bankruptcy. Formerly, on November 7, 1985, this court issued its order directing the parties to show cause in writing within 15 days why trial and determination of the within action should not be remitted to a state court of competent jurisdiction. It was the reasoning of this court in the show cause order of November 7, 1985, that the action on the debt underlying the dischargeability issue was an action arising under state law within the meaning of Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), which might, with more assurance of an undoubted jurisdictional foundation, be tried in a state court. It was the plaintiff's response to the show cause order, however, that there was no issue concerning liability and that judgment could be entered by default by this court on that issue.
In order for the relief which might be grantable by this court to be effective, however, the governmental agency which guaranteed the loan in question would have to be made a party. Otherwise, relief would not be complete and a circuity of actions not avoided. Therefore, on December 3, 1985, this court communicated to counsel for plaintiff a request for the identity of that governmental unit so that it might have been made a party. It was then counsel's statement that the name of the governmental unit would be produced within 10 days or else the action might be remitted to a state court for trial and determination of the matters of liability and dischargeability.
More than ten days have since elapsed and the name and address of the governmental entity has not been presented to the court. It seems appropriate under such circumstances to permit trial and determination by a state court. The ground of dischargeability vel non which is in issue in this matter is not one which is in the sole and exclusive discretion of the bankruptcy court. Rather, the ground which is made the basis of this action arises under section 523(a)(8) of the Bankruptcy Code, which is not one of the exceptions to discharge which is placed within the exclusive jurisdiction of the bankruptcy court by the provisions of section 523(c) of the Bankruptcy Code. Accordingly, a state court may adjudge, not only the underlying liability, but also the dischargeability question. "(S)tate courts of general jurisdiction have the power to decide cases involving federal . . . rights where . . . neither the Constitution nor statute withdraws such *481 jurisdiction." Boston Stock Exch. v. State Tax Com'n, 429 U.S. 318, 319, n. 3, 97 S.Ct. 599, 602, 50 L.Ed.2d 514 (1977). Although states may, by constitution or statute, refuse to entertain actions arising in bankruptcy,[1] and the federal legislature may restrict actions arising under the federal laws to resolution in federal courts, there appear to be no such restrictions imposed to prevent adjudication of this action in the state courts of Missouri. The plaintiff may thus await the suit of the appropriate parties in state court and raise the discharge in bankruptcy as a defense. See, e.g., Superior Loan Corporation of Buffalo, 476 S.W.2d 144, 145 (Mo.App.1972) ("The pleaded affirmative defense upon which defendants relied was that their debt evidence by the note in suit had been listed properly in schedules filed with their voluntary petition in bankruptcy . . ."). "It is well established that the effect of a discharge may be subsequently litigated in any forum and that the usual practice has been to allow the discharged bankrupt to plead his discharge where he is sued." Robertson v. Interstate Securities Company, 435 F.2d 784, 786 (8th Cir.1971). If the debtor is unable to join the parties who would be necessary for a just adjudication of the issue of dischargeability vel non, this course may be preferable to taking a default judgment in the federal court, only later to be sued by a party in interest.[2] Or, under the principles above recited, the debtor may be warranted in seeking declaratory judgment in the state courts for the purpose of having the discharge declared to be effective with respect to the liability in question. But it seems disadvantageous to proceed to judgment in this court if, for some reason, the appropriate governmental units cannot be joined as proper parties. It is therefore hereby
ORDERED AND ADJUDGED that the within action be, and it is hereby, dismissed without prejudice to possible reinstitution if and when appropriate judgments are issued by a state court of competent jurisdiction.
NOTES
[1] Although Congress has no right to require that state courts entertain bankruptcy cases and bankruptcy-related cases, Mitchell v. Great Works Milling, 2 Story U.S. 648 (C.C.Me.1843), the state courts may entertain such cases in the absence of state constitutional or statutory prohibition.
[2] If the appropriate governmental unit, for some reason, cannot conveniently be joined in this action, it may be preferable for the debtor to await suit by the same unit in an appropriate state court. If the suit is awaited and never filed, then the discharge in bankruptcy is effective as to the underlying debt. "(A) valid discharge in bankruptcy affords a prima facie defense against all debts and the burden of proof then rests on the creditor to show that the debt is nondischargeable." Superior Loan Corp. v. Robie, 476 S.W.2d 144, 148 (Mo.App.1972).
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182 S.E.2d 583 (1971)
279 N.C. 350
STATE of North Carolina
v.
Darlene BUZZELLI.
Supreme Court of North Carolina.
July 30, 1971.
Robert Morgan, Atty. Gen., Howard P. Satisky, Staff Atty., for the State.
Nelson M. Casstevens, Jr., for defendant.
Petition for writ of certiorari to review the decision of the North Carolina Court of Appeals, 11 N.C.App. 52, 180 S.E.2d 472. Denied.
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433 F.3d 378
UNITED STATES of America, Plaintiff-Appellee,v.John Wayne CARDWELL, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Leo Hinson, Defendant-Appellant.
No. 03-4585.
No. 03-4835.
United States Court of Appeals, Fourth Circuit.
Argued September 19, 2005.
Decided December 30, 2005.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED ARGUED: Craig Weston Sampson, Richmond, Virginia; Randy Virlin Cargill, Magee, Foster, Goldstein & Sayers, P.C., Roanoke, Virginia, for Appellants. Thomas Ernest Booth, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Thomas K. Maher, Chapel Hill, North Carolina, for Appellant Leo Hinson. John L. Brownlee, United States Attorney, Donald R. Wolthuis, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.
Before WILLIAMS and MICHAEL, Circuit Judges, and JAMES C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Affirmed in part; vacated and remanded in part by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MICHAEL and Judge DEVER joined.
OPINION
WILLIAMS, Circuit Judge.
1
Leo Hinson and John Cardwell were convicted on various murder-for-hire charges. In addition, Hinson was convicted on a felon-in-possession charge, which was tried at the same time as the other counts. Hinson and Cardwell were each sentenced based, in part, on facts found by the judge. On appeal, Hinson argues that the district court erred in denying his motions to sever and to suppress, Cardwell argues that the evidence was insufficient to sustain his convictions, and both men argue that their sentences violate the Sixth Amendment.
2
For the following reasons, we hold that the district court did not err in denying Hinson's motions to sever and to suppress, that the evidence was sufficient to sustain Cardwell's convictions, and that the district court, which did not have the benefit of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 750-51, 160 L.Ed.2d 621 (2005), plainly violated the Sixth Amendment in mandatorily enhancing Hinson's and Cardwell's sentence based on judge-found facts. We therefore affirm Hinson's and Cardwell's convictions, and, because the district court's sentencing error seriously affects the fairness, integrity or public reputation of judicial proceedings, we vacate their sentences and remand for resentencing.
I. Factual Background
3
In the fall of 1999, federal and state law enforcement agents in the Eastern District of North Carolina began investigating Hinson and Eric Brown on suspicion of drug trafficking. After being contacted by the agents and informed of the investigation, Brown agreed to cooper-ate in the investigation of Hinson. At the agents' direction, Brown met with Hinson and recorded their conversations on three separate occasions in the fall of 2000. Hinson, however, was guarded in these discussions and did not incriminate himself. Hinson later learned of Brown's cooperation with the authorities.
4
Thomas Cole was a methamphetamine dealer. He was familiar with both Hinson and Cardwell, having attempted to sell Hinson and Card-well methamphetamine at some time in the past. In the summer of 2001, Cole was arrested in the Western District of Virginia on unrelated drug trafficking charges and found in possession of documents linking him to Hinson. Like Brown, Cole agreed to assist agents in their investigation of Hinson.
5
Cole contacted Cardwell to arrange a meeting with Hinson, to whom he proposed to give helpful information about the investigation. On October 23, 2001, the three men met in a restaurant in Danville, Virginia. Cole recorded the conversation. Hinson complained of his legal troubles, focusing in particular on Brown. Cole asked if Hinson could "get to" Brown. (J.A. at 367.) Hinson said that Brown needed to be killed, and Cole indicated he would be willing to do it. Hinson asked Cole his price, and Cole said he would do the job for $25,000. Hinson offered him $50,000 and informed Cole he would need to kill Brown's wife as well. The men agreed that Cardwell would give Cole a picture of the Browns and the Browns' address so Cole could carry out the murder.
6
Over the next few months, Cole and Cardwell spoke several times. In these conversations, the two men had coded conversations from which a reasonable juror could have inferred that Hinson had drugs he was willing to sell Cole. More importantly, they also discussed the Browns. Cardwell assured Cole that Hinson was "serious" about killing the Browns and agreed to be the "middleman" in the deal, (J.A. at 393, 536), because Hinson was nervous about dealing with Cole directly due to the North Carolina investigation against him and what he thought was Cole's ongoing drug trafficking. In his duty as middleman, Cardwell agreed to deliver the money from Hinson to Cole after Cole killed the Browns.
7
Cardwell, however, never arranged any drug deals between Hinson and Cole, nor did he give Cole the Browns' picture and address. The agents became frustrated with the investigation and instructed Cole to bypass Cardwell and instead attempt to deal directly with Hinson.
8
On January 29, 2002, Cole and Hinson met at Hinson's home to discuss potential drug deals and the plan to murder the Browns. Hinson instructed Cole to carry out the murders, described the Browns to Cole, provided a way for him to find them, and gave him $1,000 in traveling money. Agents later arranged for a newspaper in the town where the Browns lived to run a false story about the Browns' disappearance. On February 7, 2002, Cole brought the article to Hinson, who, after expressing his satisfaction, burned it to conceal evidence of his link to the (assumed) murders. At that time, Hinson paid Cole $4,000, and agreed to pay some of the balance of the $50,000 by giving him a kilogram of cocaine.
9
Later that evening, sometime between 11:00 p.m. and midnight, Agents High and Sheetz of the Drug Enforcement Administration in Roanoke, Virginia, (the Agents) executed a search warrant of Hinson's residence. When the Agents arrived at Hinson's residence to arrest him, they knocked and announced their presence several times before Hinson came to the door. When Hinson opened the door, he was immediately arrested and told he was under arrest for his participation in the murder-for-hire collusion. Once in custody, Hinson was advised of all his rights and he stated that "he understood [them]." (J.A. at 556.) He did not, however, specifically invoke any of his rights. The Agents searched Hinson's house and discovered a loaded gun.
10
Fifteen to twenty minutes after the arrest, the Agents transported Hinson to Roanoke City Jail, which was approximately two hours away. Hinson was handcuffed with his hands in front of him and placed in the front seat of the Agents' car. An hour-and-a-half or so into the drive, Hinson began talking about farming, and continued to talk for about twenty-to-thirty minutes. As the car approached Roanoke, Agent High asked Hinson why he had not immediately come to the door when they announced their presence. Hinson stated, "if I knew [sic] it was the police, I would have gotten a gun," and "there would have been a gunfight [because I would] rather be killed than go to jail." (J.A. at 560, 622.)
II. Procedural History
11
Hinson and Cardwell were charged in the United States District Court for the Western District of Virginia with (1) solicitation to commit murder, 18 U.S.C.A. § 373 (West 2000), (2) attempted murder of a government witness, 18 U.S.C.A. § 1114 (West 2000), (3) witness tampering, 18 U.S.C.A. § 1512(a)(1)(A) (West 2000), (4) retaliating against a government witness, 18 U.S.C.A. § 1513(a)(1)(B) (West 2000), and (5) conspiracy to murder a government witness, 18 U.S.C.A. § 371 (West 2000) (collectively, the murder-for-hire counts). In addition, Hinson was charged with being a felon in possession of a gun, 18 U.S.C.A. § 922(g)(1) (West 2000). Hinson moved to sever the gun count from the murder-for-hire counts. The district court denied the motion, holding that the counts were related because Hinson's gun possession and involvement in the murder-for-hire cabal were each related to his drug trafficking and that Hinson would suffer no prejudice from the joinder.
12
At trial, Hinson moved to suppress his statement to Agent High that he would have gotten a gun and started a gunfight if he had known police were at the door. Hinson argued that he had not waived his Miranda rights before giving the statement. The district court denied the motion. The jury convicted Hinson on all counts and Cardwell on the solicitation and conspiracy counts. The district court sentenced Hinson to 293 months imprisonment and Cardwell to 131 months imprisonment.
13
Hinson and Cardwell now appeal. Hinson argues that the district court erred in denying his motions to sever and to suppress, Cardwell argues that the evidence was insufficient to sustain his convictions, and both men argue that their sentences violated the Sixth Amendment. We have jurisdiction under 28 U.S.C.A. § 1291 (West 1993) and 18 U.S.C.A. § 3742 (West 2000), and consider these arguments in turn.
III. Joinder and Severance (Hinson)
14
Hinson contends that the district court improperly denied his motion to sever, arguing that (1) the Government improperly joined the gun and murder-for-hire counts in the indictment under Fed.R.Crim.P. 8(a) and, (2) even if joinder was proper, the district court should have severed the gun count from the murder-for-hire counts under Fed.R.Crim.P. 14. The Government argues that (1) the gun and murder counts were properly joined under Rule 8(a) and (2) Hinson was not prejudiced by the district court's failure to sever the counts. Whether offenses in an indictment are improperly joined under Rule 8(a) is a question of law reviewed de novo. See United States v. Mackins, 315 F.3d 399, 412 (4th Cir.2003). If the joinder was proper, a district court's order concerning a motion to sever under Rule 14 is reviewed for abuse of discretion. See id.; United States v. Najjar, 300 F.3d 466, 473-75 (4th Cir.2002); United States v. Akinkoye, 185 F.3d 192, 197-98 (4th Cir.1999).
A. Joinder
15
Rule 8(a) provides that "[t]he indictment . . . may charge a defendant in separate counts with [two] or more offenses if [1] the offenses charged . . . are of the same or similar character, . . . [2] are based on the same act or transaction, or [3] are connected with or constitute parts of a common scheme or plan." We have interpreted the latter two prongs of this rule flexibly, requiring that the joined offenses have a "logical relationship" to one another. United States v. Hirschfeld, 964 F.2d 318, 323 (4th Cir.1992). Such a relationship exists when consideration of discrete counts against the defendant paints an incomplete picture of the defendant's criminal enterprise. See 1A Charles Alan Wright, Federal Practice and Procedure § 143 (3d ed.1999) (noting that joinder is permitted where "the events pertaining to each [crime are] inextricably tied to the others").
16
Rule 8(a) "permit[s] very broad joinder" because of the efficiency in trying the defendant on related counts in the same trial. Mackins, 315 F.3d at 412 (quoting 1A Charles Alan Wright, Federal Practice and Procedure § 141 (3d ed.1999)); see also United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir.2000) ("[C]ourts . . . have a strong interest in favor of joinder of offenses; in particular, joinder of offenses reduces the waste of precious judicial and prosecutorial time in the already overburdened federal judicial system and reduces the burdens on witnesses from testifying at multiple trials."). Rule 8(a) is "not infinitely elastic," however, because unrelated charges create the possibility that a defendant will be convicted based on considerations other than the facts of the charged offense. Mackins, 315 F.3d at 412 (internal quotation marks omitted); see also Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ("An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence."). When the Government does not proffer evidence tending to show a relationship between the charged crimes at a pre-trial hearing on a motion to sever, as it did not here, we examine compliance with Rule 8(a) by looking to the allegations in the indictment and the evidence produced at trial. See Mackins, 315 F.3d at 413; see also United States v. Chramek, 331 F.2d 380, 382 (4th Cir.1964) (same under Fed.R.Crim.P. 8(b)).1
17
Hinson argues that his gun possession and participation in the murder-for-hire scheme were separate and distinct from one another and thus had no logical relationship under Rule 8(a). The Government argues that the gun and murder-for-hire counts were logically related because "the firearm count was based on the seizure of the [gun] during the investigation of the murder-for-hire-scheme." Appellee's Br. at 20.
18
We do not agree with the Government's argument. While discovery of the gun during the murder-for-hire investigation shows a temporal relationship between Hinson's gun possession and the murder-for-hire plot — i.e., that they occurred at the same time — we do not believe that a mere temporal relationship is sufficient to show that the two crimes at issue here were logically related. See, e.g., Mackins, 315 F.3d at 413 (holding joinder of co-incidental counterfeit check and money laundering conspiracies improper where there was no logical relationship between the two); United States v. Singh, 261 F.3d 530, 532-33 (5th Cir.2001) (finding joinder of gun charge with charge for harboring aliens improper despite the fact law-enforcement officers discovered the gun while investigating the defendant for harboring aliens). A contrary holding would effectively read Rule 8(a) to allow limitless joinder whenever the charge resulted from the fruits of a single investigation.
19
In support of its argument, the Government cites, inter alia, United States v. Stokes, 211 F.3d 1039, 1042 (7th Cir.2000) and United States v. Bullock, 71 F.3d 171 (5th Cir.1995). These cases, however, do not help the Government. In Stokes, the Seventh Circuit held that joinder of gun and drug counts was proper where the defendant was arrested in possession of a gun while attempting to purchase drugs. Id. at 1042. The court noted that "where firearms have been discovered along with evidence of a defendant's drug trafficking, joinder of firearms and weapons charges has been approved due to the natural inferences that may be drawn from the contemporaneous possession of guns and drugs." Id. at 1042. Even assuming Stokes is an accurate statement of law with respect to gun and drug counts, we see no similar inference categorically creating a logical relationship between gun and murder-for-hire counts when evidence of gun possession is discovered during a murder-for-hire investigation. While our conclusion might well be different if Hinson were the hired murderer — because of the natural inference that a murderer will use a gun to accomplish his deed — we see no similar inference linking gun possession to the one hiring the murderer. In fact, the more logical inference is that the hirer will not need a gun, because the murderer, not the hirer, will do the killing.
20
Similarly, in Bullock, the Fifth Circuit held that joinder of gun and bank robbery charges was proper where the defendant was apprehended on suspicion of the bank robbery approximately 45 minutes after the robbery and law enforcement officers found a gun in his car. Id. at 174. As the Government correctly notes, just as the Agents found Hinson's gun while investigating him for murder-for-hire, law enforcement officers discovered Bullock's gun while investigating him for bank robbery. But the court in Bullock did not allow joinder simply because of this fact. Rather, it held joinder was proper because "a factfinder could infer that Bullock had the gun so that it would be available to him during the robbery and escape." Id. at 175.
21
Despite the fact that the Agents' discovery of the gun during their murder-for-hire investigation is not alone sufficient to establish a logical relationship between the gun and murder-for-hire counts, we nevertheless believe that joinder of the counts was proper here because additional facts demonstrate that the crimes were logically related to one another. When Hinson was apprehended a few hours after giving Cole partial payment for the Browns' murders, the Agents informed him that he was being arrested because of his participation in the murder-for-hire collusion. Hinson's statement to the Agents that he would have started a gunfight had he known they were coming to arrest him shows that he was willing to use the gun to keep him from going to prison because of his participation in the murder-for-hire plan. These facts make Hinson's case like Bullock: just as joinder of the gun and robbery counts was proper because "a factfinder could infer that Bullock had the gun so that it would be available to him during the robbery and escape," id., joinder of the gun and murder-for-hire counts was proper here because a factfinder could infer from Hinson's statements that he had the gun so that it would be available to him in the event the authorities came to arrest him on murder-for-hire charges. In other words, Hinson's expressed willingness to use the gun to protect himself from suffering the repercussions of his participation in the murder-for-hire scheme supplies a logical connection between the two counts. We therefore conclude that the gun and murder-for-hire charges were properly joined as part of the "same transaction" under Rule 8(a).2
B. Severance
22
Hinson next argues that even if properly joined under Rule 8(a), the district court erred in failing to sever the gun count from the murder-for-hire counts under Rule 14(a) because the jury learned of his status as a felon through the gun charge and was therefore predisposed to convict him on the murder-for-hire counts.
23
Rule 14(a) provides that "[i]f the joinder of offenses . . . for trial appears to prejudice a defendant . . ., the court may order separate trials of counts. . . ." This rule contemplates that joinder under Rule 8(a) can be proper and, at the same time, severance can be required. Such cases, however, will be rare. It is not enough for the defendant to show that severance offers him "a better chance of acquittal." United States v. Reavis, 48 F.3d 763, 767 (4th Cir.1995) (internal quotation marks omitted). Rather, the Supreme Court has admonished that "when defendants properly have been joined under [Rule 8], a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would . . . prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. 933. Similarly, we have stated that reversal under Rule 14 is required only if the defendant shows that requiring him to defend against the joined offenses in the same trial resulted in "clear prejudice." United States v. Acker, 52 F.3d 509, 514 (4th Cir.1995).
24
We assume, for purposes of this appeal, that evidence of Hinson's prior felony would not have been admissible at a trial on the murder-for-hire counts. Undoubtedly, this fact creates the specter that Hinson was prejudiced by the district court's failure to sever. Cf. Zafiro, 506 U.S. at 539, 113 S.Ct. 933 ("[A] risk [of prejudice] might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant."). In this case, however, we do not believe that the potentiality of prejudice materialized into actuality. First, the district court instructed the jury that "[a] separate crime or offense is charged in each count of the indictment. Each charge, and the evidence pertaining to it, should be considered separately." (J.A. at 697.) We have held that a similar charge sufficiently neutralized the possibility that the jury would hold a defendant's felony status against him when considering his guilt on other charges. Mackins, 315 F.3d at 415. See also Zafiro, 506 U.S. at 539-40, 113 S.Ct. 933 ("When the risk of prejudice [from joint trials] is high, a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice."); Bullock, 71 F.3d at 175 ("[The defendant] cannot show that he was prejudiced by the failure to sever the counts, as the court admonished the jury that it could consider [his] prior felony conviction only in connection with the firearm count.").
25
Second, Hinson stipulated to the existence of the prior felony. Keeping the facts about the felony (if not the fact of the felony) from the jury tends to diffuse any passions that would be aroused by specific evidence of the defendant's felonious past. See United States v. Moore, 104 F.3d 377, 382 (D.C.Cir.1997) ("There are several safeguards short of severance that a district court may employ to avoid undue prejudice, including a stipulation as to the existence of the prior felony conviction. . . ." (internal quotation marks omitted)); United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir.1995) (holding that "the risk of prejudice [due to the district court's failure to sever] was mitigated because the prior felony conviction was introduced by stipulation"). Under these circumstances, we conclude that the district court did not abuse its discretion in refusing to sever the counts against Hinson.
IV. Miranda (Hinson)
26
Hinson next argues that the district court erred in admitting into evidence his statement to the Agents about the gun found at his house. We review de novo the district court's legal conclusions on a motion to suppress. See United States v. Guay, 108 F.3d 545, 549 (4th Cir.1997). While we review for clear error the district court's factual findings, id., the district court here made no factual findings. It is, of course, the better practice for the district court to make such findings, but where the district court fails to do so, we assume the district court construed the evidence in the light most favorable to the party who prevails on the suppression motion below. See United States v. Franklin, 323 F.3d 1298, 1300 (11th Cir.2003); United States v. Smith, 543 F.2d 1141, 1145 & n. 11 (5th Cir.1976). On review, we do the same. Franklin, 323 F.3d at 1300 (11th Cir.2003).
27
Statements obtained from the defendant during custodial interrogation are presumptively compelled in violation of the Fifth Amendment's Self-Incrimination Clause and are therefore inadmissible in the Government's case-in-chief. Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Berkemer v. McCarty, 468 U.S. 420, 429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (collecting cases). The Government can overcome this presumption of coercion by showing that law enforcement officers (1) adequately informed the defendant of his Miranda rights3 and (2) obtained a waiver of those rights. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The Government does not dispute that Hinson was interrogated while in custody, and Hinson does not dispute that he was adequately informed of his Miranda rights. We therefore turn our attention to waiver.
28
A defendant may waive his Miranda rights only if he does so "knowingly and voluntarily." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Waiver need not be express, but may be implied from the defendant's actions and words. Id. To determine whether a defendant has waived his Miranda rights, we look to the "totality of the circumstances." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (internal quotation marks omitted). In assessing knowingness, we ask whether the defendant had "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. In assessing voluntariness, we ask whether the defendant's statement was "the product of a free and deliberate choice [or the result of] intimidation, coercion, or deception." Id.
29
Hinson argues that he did not voluntarily waive his Miranda rights. We are not persuaded. The Agents informed Hinson of his Miranda rights, and Hinson indicated that he understood them. He did not, however, invoke those rights at any time. While law enforcement officers must immediately stop custodial interrogation when the defendant asserts his Miranda rights, see Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), they are free to engage in custodial interrogation when they have given Miranda warnings and the defendant does not specifically invoke those rights. See Davis v. United States, 512 U.S. 452, 460, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that law-enforcement officers who have given Miranda warnings may continue to question a defendant even when his request for counsel is equivocal, a holding that also necessarily applies when the defendant makes no request for counsel at all); Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.2000) ("[T]o invoke the right to counsel and prevent further interrogation, a suspect must unambiguously request the assistance of counsel."). Hinson's failure to invoke his rights therefore left Agent High free to interrogate him. If Hinson had wished to exercise his right to remain silent in response to Agent High's question, nothing prevented him from doing so.4 Because Hinson had been fully informed and indicated his under-standing of his Miranda rights, his willingness to answer Agent High's question is as clear an indicia of his implied waiver of his right to remain silent as we can imagine. See United States v. Frankson, 83 F.3d 79, 82 (4th Cir.1996) ("[A] defendant's . . . willingness to answer questions after acknowledging his Miranda rights is sufficient to constitute an implied waiver." (internal quotation marks omitted)). We therefore hold that the district court did not err in admitting into evidence Hinson's statement about his access to the gun and his willingness to use it.
V. Sufficiency of the Evidence (Cardwell)
30
Cardwell argues that the evidence against him was insufficient to sustain his convictions. We must uphold a jury verdict if there is substantial evidence, viewed in the light most favorable to the Government, to support it. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Substantial evidence is that evidence which a "reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc).
31
Cardwell was convicted of conspiracy and solicitation to commit murder in violation of §§ 371 and 373, respectively. To establish a conspiracy under § 371, the Government must prove "(1) an agreement between two or more people to commit a crime, and (2) an overt act in furtherance of the conspiracy." United States v. Ellis, 121 F.3d 908, 922 (4th Cir.1997). "The existence of a tacit or mutual understanding between conspirators is sufficient evidence of a conspiratorial agreement." Id. (internal quotation marks omitted). Proof of the agreement may be established by circumstantial evidence. Burgos, 94 F.3d at 857. It is no defense to a conspiracy charge that one's role in the conspiracy is minor. See United States v. Laughman, 618 F.2d 1067, 1076 (4th Cir.1980) ("Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy." (internal quotation marks omitted)).
32
To establish solicitation under § 373, the Government must demonstrate that the defendant (1) had the intent for another to commit a crime of violence and (2) solicited, commanded, induced or otherwise endeavored to persuade such other person to commit the crime of violence under circumstances that strongly corroborate evidence of that intent. United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir.1994). Payment or promises to remunerate the perpetrator of the underlying crime can be strong corroborative evidence of intent. See United States v. Gabriel, 810 F.2d 627, 635 (7th Cir.1987).
33
We conclude that the evidence was sufficient to support Cardwell's convictions. Cole testified that he and Cardwell discussed the plan to murder the Browns numerous times over the few months following the meeting at the Danville restaurant. During these conversations, Cardwell assured Cole that Hinson was serious about killing the Browns. Because Hinson was under intense investigation, Cardwell agreed to be the middleman between Hinson and Cole, and agreed to deliver the payment for the murder. This evidence is sufficient to show that Cardwell participated in the agreement to kill the Browns. See United States v. Chaverra-Cardona, 879 F.2d 1551, 1555 (7th Cir.1989) (concluding that evidence that the defendant served as a conduit between drug-trafficking ringleader and hitman supported the defendant's conspiracy conviction). In addition, Cardwell's assurances that Hinson was serious and Cardwell's statement that he would serve as the middleman between Hinson and Cole is sufficient to show that Cardwell, at the very least, participated in Hinson's solicitation of Cole.
34
Cardwell maintains, however, that his convictions were improper because (1) he personally did not take an overt act in furtherance of the conspiracy and (2) he was so unhelpful that Cole eventually ended up dealing with Hinson himself. These arguments are without merit. First, each co-conspirator need not take an overt act in order to be convicted of conspiracy so long as one conspirator does so. United States v. Caudle, 758 F.2d 994, 997-998 (4th Cir.1985) (affirming sufficiency challenge to each defendant's conspiracy conviction where only one defendant participated in an overt act); Tabor v. United States, 152 F.2d 254, 258 (4th Cir.1945) (conspiracy requires agreement and overt act committed by "one or more of the conspirators"). Second, Cardwell's unhelpfulness does not amount to a withdrawal from the conspiracy, which requires the defendant to take affirmative actions inconsistent with the object of the conspiracy and communicate his intent to withdraw in a manner likely to reach his accomplices. See United States v. Walker, 796 F.2d 43, 49 (4th Cir.1986). Moreover, because the crime of solicitation is complete when the defendant attempts to persuade another to commit a crime, it is of no moment that Cardwell's assurances did not actually persuade Cole to go through with the Browns' murders. See, e.g., Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1314 (D.C.Cir.2005) ("In criminal law, solicitation is regarded as a freestanding offense: requesting the unlawful act is itself a crime, regardless of whether the request is consummated." (internal quotation marks omitted)). We therefore conclude that the evidence was sufficient to convict Cardwell.
VI. Sentencing Issues (Hinson and Cardwell)
35
Hinson and Cardwell each argue that their sentences violate the Sixth Amendment because the district court mandatorily applied judge-found enhancements in the United States Sentencing Guidelines to enhance their sentences above those authorized by the jury verdict alone. See Booker, 125 S.Ct. at 750-51 (holding that judge-found sentence enhancements mandatorily imposed under the Guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the Sixth Amendment's guarantee of the right to trial by jury); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.2005). Because they did not make this argument to the district court, we review for plain error. See Hughes, 401 F.3d at 547.
36
Under plain error review, the defendant must show that (1) the district court committed error, (2) the error was plain, and (3) the error affected his substantial rights. Id. at 547-55. If the defendant shows that his mandatorily-imposed Guidelines sentence was greater than that authorized by facts admitted by the defendant or the jury verdict alone, he demonstrates a Sixth Amendment error that satisfies these requirements. Id. If the defendant makes this three-part showing, correction of the error nevertheless remains within our discretion, which we should not exercise unless "the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. at 555.
37
We conclude that the district court plainly erred.5 Hinson's base offense level for the murder-for-hire convictions was 28 and for the gun conviction was 24. The district court applied a four-level enhancement on the murder-for-hire convictions based on its finding that the conspiracy and solicitation offenses involved "the offer or the receipt of anything of pecuniary value for undertaking the murder." U.S. Sentencing Guidelines Manual § 2A1.5 (2004). With the enhancement, Hinson's adjusted offense level on the two sets of counts was 33. See U.S.S.G. § 3D1.4. Based on a criminal history category of VI, Hinson's guideline range was 235-293 months. The district court sentenced Hinson to 293 months imprisonment. Without the judge-found enhancement, the combined offense level for the murder-for-hire and gun convictions would have been 30. See U.S.S.G. § 3D1.4. Hinson, however, was a career offender, a fact that would have brought his offense level, again without the four-level enhancement, to 32. See U.S.S.G. § 4B1.1. With a criminal history category of VI, this offense level would have brought Hinson's sentencing range to 210-262.6 Hinson's 293-month sentence therefore violated the Sixth Amendment.
38
Cardwell's base offense level was 28 with a criminal history category of I. This level and category corresponded to a sentencing range of 78-97 months imprisonment. Cardwell, like Hinson, received a four-level enhancement based on judge-found facts under U.S.S.G. § 2A1.5. With this enhancement, his range was 121-151 months imprisonment. The district court sentenced Cardwell to 131 months, and, as with Hinson, thereby committed Sixth Amendment error.
39
Hinson and Cardwell therefore both satisfy the first three requirements of plain error review. Moreover, we conclude that failing to notice the error — which would result in Hinson and Cardwell serving sentences that were unconstitutional — would "seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings." United States v. Gray, 405 F.3d 227, 243 (4th Cir.2005), cert. denied ___ U.S. ___, 126 S.Ct. 275, 163 L.Ed.2d 245 (2005) (vacating and remanding sentence that violated Booker without discussing the magnitude — in terms of additional months — of the district court's sentencing error).7 We therefore vacate Hinson's and Cardwell's sentences and remand for resentencing. In determining Hinson's and Cardwell's sentences on remand,
40
the district court should first determine the appropriate sentencing range under the Guidelines, making all factual findings appropriate for that determination. Hughes, 401 F.3d at 546. The court should consider this sentencing range along with the other factors described in 18 U.S.C. § 3553(a), and then impose a sentence. Id. If that sentence falls outside the Guidelines range, the court should explain its reasons for the departure, as required by 18 U.S.C. § 3553(c)(2). Hughes, 401 F.3d at 546. The sentence must be "within the statutorily prescribed range and . . . reasonable." Id. at 547.
41
Gray, 405 F.3d at 244 n. 10.
Conclusion
42
For the foregoing reasons, we affirm Hinson's and Cardwell's convictions and vacate their sentences and remand for resentencing.
43
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Notes:
1
Because the Government did not make a pre-trial proffer of evidence, we need not decide whether the district court may consider such proffers in ruling on a motion to severCompare United States v. Dominguez, 226 F.3d 1235, 1240-42 (11th Cir.2000) (observing that the district court may consider governmental proffers showing propriety of joinder in ruling on a motion to sever); United States v. Halliman, 923 F.2d 873, 883 (D.C.Cir.1991) (Thomas, J.) (holding same) with United States v. Chavis, 296 F.3d 450, 456-57 (6th Cir.2002) (collecting cases from the Sixth, Seventh, and Ninth Circuits holding that compliance with Rule 8 is assessed by examining the allegations in the indictment alone); United States v. Wadena, 152 F.3d 831, 848 (8th Cir.1998) (holding same); United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir.1988) (holding same).
We note that our case law holding that compliance with Rule 8(a) is determined by examining the indictment and evidence presented at trial is in tension with the cases from other circuits holding that compliance with Rule 8 is determined by examining the indictment alone. Our rule has the benefit of a built-in type of harmlessness review; if the indictment does not allege a sufficient relationship for Rule 8(a) purposes, but the evidence at trial reveals that such a relationship exists, it is difficult to see how the defendant could ever be prejudiced by the technical misjoinder.
2
The Government argues that the gun and murder-for-hire counts were also properly joined under the "parts of a common scheme or plan" prong of Rule 8(a) because Hinson's gun possession and participation in the murder-for-hire plot were each logically related to his drug trafficking. Because we conclude that Hinson's gun possession and participation in the murder-for-hire collusion were part of the "same transaction" under Rule 8(a), we need not address this argument
3
The defendant must be informed of the following: he has the right to remain silent; anything he says can be used against him; he has the right to an attorney; if he cannot afford an attorney, one will be appointed to himMiranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
4
Although Hinson's brief is not entirely clear, it can be read to argue that because he was handcuffed for over two hours in the police car his will was overborne by oppressive custodial conditions. While we do not doubt that oppressive custodial conditions can vitiate the voluntariness of a confession, we also have no doubt that sitting in the front seat of a patrol car with one's hands handcuffed in front of him for two hours does not amount to oppressive custodial conditions
5
As we noted inUnited States v. Hughes, 401 F.3d 540 (4th Cir.2005), "[w]e of course offer no criticism of the district judge, who followed the law and procedure in effect at the time of [Hinson's and Cardwell's] sentencing." Id. at 545 n. 4.
6
Although we consider Hinson's career-offender guideline range under U.S.S.G. § 4B1.1 as the baseline for determining whether the district court committed Sixth Amendment error, we do not hold that all sentences under that section are free of Sixth Amendment errorSee United States v. Collins, 412 F.3d 515, 522-23 (4th Cir.2005) (declining to answer whether the defendant's sentence based on his status as a career offender violated the Sixth Amendment because he conceded the facts giving rise to such designation). Because Hinson did not argue that a sentence imposed under U.S.S.G. § 4B1.1 would have violated the Sixth Amendment, we need not decide the question here.
7
In its opening brief, the Government argued that because the evidence supporting Hinson's and Cardwell's enhancements under U.S.S.G. § 2A1.5 was "overwhelming" and "essentially uncontroverted," we should decline to notice the Sixth Amendment error at sentencingCf. United States v. Cotton, 535 U.S. 625, 633-34, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (declining to notice plain error when indictment failed to allege facts that increased the defendant's statutory maximum sentence where the evidence of that fact was "overwhelming" and "essentially uncontroverted"); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)(same result when the defendant was denied the right to a jury trial on one element of his perjury conviction). Despite the strength of this argument, both in the abstract and on the facts of this case, but see United States v. Oliver, 397 F.3d 369, 380 n. 3 (6th Cir.2005) (holding that Cotton-type analysis does not apply to Booker errors because such errors can easily be remedied by resentencing without producing a windfall to the defendant), and despite the fact we have already held that a Cotton-type analysis applies to a post-Booker Fifth Amendment claim, see United States v. Harp, 406 F.3d 242, 247 (4th Cir.2005), cert. denied ___ U.S. ___, 126 S.Ct. 297, 163 L.Ed.2d 259 (2005) (declining to remand under plain-error review where indictment failed to allege facts used to enhance a defendant's sentence under the Sentencing Guidelines because the evidence in favor of the enhancement was "overwhelming" and "essentially uncontroverted" (quoting Cotton, 535 U.S. at 633, 122 S.Ct. 1781)), the Government expressly abandoned this position at oral argument and in supplemental briefing. Accordingly, we will not consider whether Hinson's and Cardwell's sentences should be remanded under Cotton and Johnson.
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818 F.Supp. 1534 (1993)
Gabriel SCHLOSSER, Plaintiff,
v.
Pamela COLEMAN, et al., Defendants.
No. 90-1406-CIV-T-17B.
United States District Court, M.D. Florida, Tampa Division.
April 20, 1993.
*1535 Gabriel Schlosser, Sarasota, FL, pro se.
Stephanie A. Daniel, Tallahassee, FL, for defendants.
ORDER
KOVACHEVICH, District Judge.
Plaintiff, a former prisoner, commenced this pro se action pursuant to 42 U.S.C. § 1983 on November 8, 1990. On October 21, 1992, the Court ordered Plaintiff to complete and return summons and 285 forms within 20 days. On November 21, 1991, the Court dismissed this case for Plaintiff's failure to complete and return summons and 285 forms within the time allotted.
On December 1, 1992, Plaintiff filed a motion for reinstatement of the case for excusable neglect. On January 7, 1992, the Court stayed ruling on Plaintiff's motion pursuant to Plaintiff's completing summons and 285 forms. The Court stated, "If Plaintiff returns completed summons and 285 forms within 30 days of the date of this order, the Court will grant Plaintiff's motion for reinstatement of the case for excusable neglect and will direct the Clerk to reopen the case."
After the Court granted several motions for extension of time to complete summons and 285 forms, Plaintiff returned the completed forms and the Court ordered the Marshal to serve Defendants on April 29, 1992. Return of service was executed by James Parker and Michael O'Brien. However, service was returned unexecuted as to Pamela Coleman on May 13, 1992.
On May 26, 1992, Defendants Parker and O'Brien filed a motion to dismiss Plaintiff's amended complaint, although the Court had no record of an amended complaint having been filed. The Court ordered Plaintiff to respond to Defendants' motion to dismiss on June 18, 1992.
On July 1, 1992, Plaintiff filed a motion for extension of time to respond to the motion to dismiss. Plaintiff stated that he had been released from prison on June 23, 1992. On July 22, 1992, the Court granted Plaintiff's motion for reinstatement of this case for excusable neglect and granted Plaintiff's motion for an extension of time to respond to Defendants' motion to dismiss. On August 6, 1992, the Court ordered Plaintiff to complete and return a new Affidavit of Indigency. On August 25, 1992, Plaintiff filed a motion to have service of process reattempted on Defendant Coleman and a motion to proceed in forma pauperis. On September 3, 1992, Plaintiff filed a motion to amend the complaint and a memorandum in opposition to the motion to dismiss.
*1536 On September 25, 1992, the Court granted Plaintiff's motion to file an amended complaint but denied Plaintiff's motion to proceed in forma pauperis. The court ordered Plaintiff to pay the $120.00 filing fee.[1] The court also denied Plaintiff's motion to have service of process reattempted on Defendant Coleman because Plaintiff was no longer indigent, and was, therefore, responsible for service.
Plaintiff filed his amended complaint on October 14, 1992. On December 11, 1992, Defendants Parker and O'Brien filed a motion to dismiss Plaintiff's amended complaint. On February 2, 1993, the Court ordered Plaintiff to file his response to Defendants' motion to dismiss the amended complaint. Plaintiff filed his response on March 19, 1993.
Pamela Coleman has not been served. Therefore, the complaint will be dismissed, without prejudice, as to this Defendant, pursuant to Rule 4(j) of the Federal Rules of Civil Procedure.
PLAINTIFF'S ALLEGATIONS
In this action pursuant to 42 U.S.C. § 1983 Plaintiff sues suing Pamela Coleman, Plaintiff's probation officer; Michael O'Brien, an assistant state attorney; and the Honorable James Parker, formerly a circuit court judge in the Twelfth Judicial Circuit of Florida and now a judge on the Second District Court of Appeals of Florida. Plaintiff alleges that the Defendants violated his rights as guaranteed under the Fourth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Specifically, Plaintiff alleges that the Defendants denied him substantive and procedural due process; imposed cruel and unusual punishment; imposed excessive bail; and maliciously prosecuted him for violation of his probation because a false warrant was issued without probable cause.
According to Plaintiff, Ms. Coleman issued a warrant for his arrest for the "technical violation for the nonpayment of monthly supervision fees of $40.00 per month." Plaintiff claims that the probable cause affidavit for this warrant was false because the Florida Department of Corrections records, which Ms. Coleman allegedly did not check before signing the affidavit, stated that all of Plaintiff's monthly supervision payments had been paid. The warrant was further flawed, according to Plaintiff, because Ms. Coleman based the issuance of the warrant on Plaintiff's failure to pay restitution according to the terms of a plea agreement. Plaintiff asserts that Ms. Coleman knew that he was financially unable to pay his restitution and that the plea agreement allowed him to forego his restitution payments.
Plaintiff further alleges that Defendant O'Brien conspired with Ms. Coleman to violate his probation when Defendant O'Brien approved the arrest warrant knowing that the information in the warrant was false and untrue. Plaintiff states that Defendant O'Brien acted as an "advisor" to Ms. Coleman when Defendant O'Brien allowed her allegedly false statements to be used as probable cause for the arrest warrant.
Plaintiff adds Defendant Parker to this alleged conspiracy by asserting that Defendant Parker conspired with the other Defendants to keep Plaintiff in jail without probable cause and that Defendant Parker denied Plaintiff a bail hearing. Plaintiff argues that Defendant Parker knew the warrant was false since the judge had accepted the plea agreement in question. Plaintiff asserts that Defendant Parker's sole reason for approving the warrant was to "teach him a lesson."
At some point, Plaintiff's probation was reinstated. Shortly thereafter, in September, 1988, Plaintiff was arrested on what this Court assumes to be a different warrant from the one previously discussed. According to Plaintiff, Defendant Parker heard this case as well and set bail at $600,000.00. Plaintiff alleges that, in imposing this bail, Defendant Parker denied him access to the courts and the opportunity to defend himself. Plaintiff also alleges that Defendant Parker conspired with Defendant O'Brien to deny him access to the courts when they did not allow him to attend a bond reduction hearing. In sum, Plaintiff alleges that all of the Defendants acted in conspiracy with each other to maliciously allow Plaintiff to be arrested.
Apparently, Plaintiff's liability theory is based on his erroneous interpretation of *1537 his plea agreement. The agreement states in part that Plaintiff was to pay $10,000.00 in restitution by a certain date and that if the money was not paid, the plea was "null and void." Plaintiff argues that this language means that he did not have to pay restitution. A more accurate reading is that Plaintiff had to pay restitution and if he did not, the state was free to prosecute him on the original charges.
Plaintiff seeks punitive and compensatory damages, injunctive relief, and attorney's fees.
STANDARD FOR DISMISSAL
In determining whether to grant a Fed. R.Civ.P. 12(b)(6) motion, the Court primarily considers the allegations in the complaint. For purposes of the motion to dismiss, the complaint is construed in the light most favorable to Plaintiff and its allegations are taken as true. 5 C. Wright and A. Miller, Federal Practice and Procedure § 1357 (1969). A motion to dismiss will be denied unless it appears beyond all doubt that Plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir.1988), reh'g denied en banc, 896 F.2d 479 (11th Cir.1989), and cert. denied, 495 U.S. 957, 110 S.Ct. 2562, 109 L.Ed.2d 744 (1990). The allegations in the complaint must be taken as true for purposes of the motion to dismiss. Id. In the case of a pro se action, moreover, the Court should construe the complaint more liberally than it would formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (per curiam).
After reading Plaintiff's complaint in a liberal fashion, the Court concludes that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. As previously mentioned, Plaintiff bases much of his cause of action on a misinterpretation of his plea agreement. However, even if his interpretation were correct, this Court would dismiss his claims because Plaintiff has failed to specifically allege a conspiracy and because the Defendants are immune from § 1983 claims for damages and injunctive relief.
CONSPIRACY
In § 1983 civil rights actions, a complaint containing conclusory, vague, and general allegations of conspiracy will be dismissed as insufficient. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984); Kearson v. Southern Bell Telephone & Telegraph Co., 763 F.2d 405, 407 (11th Cir.1985), cert. denied, 474 U.S. 1065, 106 S.Ct. 817, 88 L.Ed.2d 790 (1986). In Slotnick v. Staviskey, 560 F.2d 31 (1st Cir.1977), cert. denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978) the court observed that courts insist that plaintiff's state with specificity the facts supporting an allegation of conspiracy in order to control frivolous conspiracy suits under § 1983. The court stated that it "need not conjure up unpleaded facts to support [] conclusory suggestions." Id. at 33. The Eleventh Circuit recently clarified what a § 1983 plaintiff must allege to withstand a motion to dismiss:
To prove a 42 U.S.C. § 1983 conspiracy, a plaintiff "must show that the parties `reached an understanding' to deny the plaintiff his or her rights [and] prove an actionable wrong to support the conspiracy." Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991).
....
[T]he linchpin for conspiracy is agreement, which presupposes communication....
Bailey v. Board of County Comm'rs of Alachua County, 956 F.2d 1112 (11th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 98, 121 L.Ed.2d 58 (1992).
Plaintiff has failed to show that the Defendants reached some sort of understanding. Indeed, according to Plaintiff's allegation, all that the Defendants did was take the usual, required steps to procure an individual's arrest. Plaintiff has failed to describe the nature of the alleged conspiracy, he only claims that one existed. Therefore, Plaintiff's conspiracy allegations are insufficient to state a cause of action and must be dismissed.
*1538 JUDICIAL IMMUNITY
Judges are absolutely immune from § 1983 damage liability for acts committed within their judicial jurisdiction. See McNamara v. Moody, 606 F.2d 621 (5th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980); Humble v. Foreman, 563 F.2d 780 (5th Cir.), reh'g denied, 566 F.2d 106 (5th Cir.1977) (en banc), and overruled in part by Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th Cir.1979).[2] Judges enjoy only qualified immunity for administrative functions. See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (holding that a state judge is not entitled to absolute immunity for the allegedly unconstitutional discharge of a state employee). If a judge's actions are taken pursuant to a judicial function, the judge will not be deprived of immunity even if his actions are in error, malicious, or in excess of his authority. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978).
When Defendant Parker approved the warrant application, set bail, approved the plea agreement, and oversaw the hearings at issue, he was acting pursuant to his judicial functions. Florida Statutes, section 34.13 (1991) states that a county court judge shall issue arrest warrants upon submission of affidavits from the state attorney. Section 903.03(1) provides that county courts have the jurisdiction "to hear and decide all preliminary motions regarding bail...." Thus, the actions Plaintiff alleges Defendant Parker took fall within the judicial function as defined by the relevant state statutes. Defendant Parker's actions cannot be characterized as administrative in nature. Therefore, Defendant Parker is immune from Plaintiff's § 1983 damages claims.
Judges are not immune from § 1983 claims for injunctive relief. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct. 1970, 1980-81, 80 L.Ed.2d 565 (1984).[3] To have standing to seek injunctive relief under Article III of the United States Constitution, a plaintiff must meet three requirements. He must demonstrate that he is likely to suffer future injury, that he is likely to suffer such injury at the hands of the defendant, and that the relief he seeks will likely prevent the injury from occurring. Cone Corp. v. Florida Dept. of Transp., 921 F.2d 1190, 1203-04 (11th Cir.) (citations omitted), cert. denied, ___ U.S. ___, 111 S.Ct. 2238, 114 L.Ed.2d 479 (1991).
In O'Shea v. Littleton, 414 U.S. 488, 493-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674, judgment vacated sub nom. Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974),[4] the Supreme Court stated that the first requirement is designed to ensure that a case or controversy exists and that it is not satisfied by "general assertions or inferences" that individuals will be prosecuted in the future for violations of valid laws. Id. at 497, 94 S.Ct. at 677. The O'Shea Court found that plaintiffs challenging alleged discriminatory bail-setting, jury selection, and sentencing had no standing to seek an injunction because they did not show that they were likely to be arrested again and subjected to the same challenged practices. Id. at 498, 94 S.Ct. at 677. Thus, according to O'Shea, a plaintiff must not only show that he will likely be subjected to a future injury, but that he will be subject to the same type of injury as has already occurred.
In the present case, Plaintiff "requests injunctive relief to prevent Defendant Parker from hearing any further actions of *1539 the Plaintiff in both civil and post conviction appeals...." As in O'Shea, Plaintiff has failed to demonstrate that he is likely to be subjected to the same alleged injury. The fact that Plaintiff's alleged injuries occurred in 1988 and have not been repeated suggests there is little chance of the same injury occurring in the future. Thus, because Plaintiff has failed to allege that he will likely suffer a future injury, Plaintiff has no standing to seek an injunction against Defendant Parker.
PROSECUTORIAL IMMUNITY
Prosecutors are absolutely immune from § 1983 damage claims for actions which are "an integral part of the judicial process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). In initiating a prosecution and in presenting the state's case, a prosecutor is immune from a § 1983 damages claim. Id. at 431, 96 S.Ct. at 996. Actions by a prosecutor which are investigative or administrative in nature are subject only to qualified immunity. Fullman v. Graddick, 739 F.2d 553 (1984). The Supreme Court clarified which prosecutorial acts are subject to absolute immunity in Burns v. Reed, ___ U.S. ___, 111 S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991) where it held that a prosecutor's appearance in court and the presentation of evidence at that hearing are protected by absolute immunity. The Burns Court also held that a prosecutor receives only qualified immunity for rendering legal advice to police officers. Id. at ___, 111 S.Ct. at 1944.
In the instant case, Plaintiff complains of prosecutorial actions which are an integral part of the judicial process. Defendant O'Brien's actions in seeking a warrant for Plaintiff's arrest, including his appearances before Defendant Parker in probable cause hearings, are steps Defendant O'Brien took in initiating a prosecution of Plaintiff for Plaintiff's violation of his probation. Defendant O'Brien was not, as Plaintiff suggests, rendering "advice" to Ms. Coleman when he based the warrant for Plaintiff's arrest on Ms. Coleman's affidavit. Therefore, Defendant O'Brien's actions, including his alleged perjury, are subject to absolute immunity and Plaintiff's claim is dismissed as to Defendant O'Brien. Accordingly, it is
ORDERED that Pamela Coleman is dismissed from this action, and that Defendants Parker and O'Brien's motion to dismiss is granted. The Clerk is directed to close this case.
DONE AND ORDERED.
NOTES
[1] Plaintiff paid the filing fee on February 24, 1993.
[2] Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976 (5th Cir.1979), cert. granted by Dennis v. Sparks, 445 U.S. 942, 100 S.Ct. 1336, 63 L.Ed.2d 775, and cert. denied by Sparks v. Duval County Ranch Co., Inc., 445 U.S. 943, 100 S.Ct. 1339, 63 L.Ed.2d 777, and aff'd, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).
[3] But compare, Sun v. Forrester, 939 F.2d 924 (11th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1299, 117 L.Ed.2d 521 (1992) ("[a] judge is absolutely immune from suit in performing his judicial responsibilities").
[4] For a complete history of this case, see the following references: Littleton v. Berbling, 468 F.2d 389 (7th Cir.), stay granted, 409 U.S. 1053, 93 S.Ct. 547, 34 L.Ed.2d 507 (1972), and cert. granted sub nom. O'Shea v. Littleton, 411 U.S. 915, 93 S.Ct. 1544, 26 L.Ed.2d 306, and cert. granted sub nom. Spomer v. Littleton, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973), and cert. denied, 414 U.S. 1143, 94 S.Ct. 894, 39 L.Ed.2d 97, and judgment rev'd sub nom. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, and judgment vacated, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974).
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[Cite as State v. Turnbull, 2019-Ohio-4192.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 19CA12
MICHAEL J. TURNBULL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case
No.2018CR0986
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 10, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH SNYDER DALE MUSILLI
Assistant Prosecuting Attorney 105 Sturges Avenue
38 South Park Street Mansfield, OH 44903
Mansfield, OH 44902
Richland County, Case No. 19CA12 2
Gwin, P.J.
{¶1} Defendant-appellant Michael J. Turnbull [“Turnbull”] appeals his convictions
and sentences after a jury trial in the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} In the months leading up to October 22, 2018, Leslie Anne Fields-Turnbull
called the police because Turnbull was physically and mentally abusing her and forcing
her to sell drugs for him. Turnbull told her that she had to sell to people because she was
a "working ass ho.” 1T. at 2211. Ms. Fields-Turnbull testified that Turnbull told Ms. Fields-
Turnbull to try a "pink pill.” 1T. at 222. She did not know what it was and instead gave it
to law enforcement. Id. Ms. Fields-Turnbull went to law enforcement out of fear because
he had become abusive towards their children and herself. In working with law
enforcement, Ms. Fields-Turnbull was told to stay away from the house for her safety, so
she took her children, telling Turnbull that she had a family emergency, and stayed with
her parents.
{¶3} On October 22, 2018, Turnbull left his home to go out of town. He told Ms.
Fields-Turnbull she needed to sell his drugs for him and instructed her as to where they
were hidden within the home. Ms. Fields-Turnbull then called METRICH. Ms. Fields-
Turnbull testified that the residence was titled in her name. She signed a written consent
to search the home and showed the officers where to find the drugs.
{¶4} On arrival, officers saw that there were surveillance cameras around the
residence, an indicator of trafficking. Ms. Fields-Turnbull told officers that the drugs would
1 For clarity sake, the jury trial commencing on January 10, 2019 will be referred to by volume and
page number as “1T.”; the transcript of Turnbull’s Jury Trial commencing on January 11, 2019,and the
Sentencing Transcript occurring on January 14, 2019 will be referred to by volume and page number as
“2T.”
Richland County, Case No. 19CA12 3
be located in a bucket in the basement. Inside the bucket, officers found a large chunk
of a white substance, green vegetable matter, and forty-nine pink pills believed to be
Ecstasy. Officers also found a digital scale, a razor blade knife, rolling papers, marijuana
grinder, which the officers testified, were indicative of trafficking.
{¶5} The white substance tested positive as 3.26 grams of cocaine. The green
vegetable matter tested positive as marijuana and weighed 259.6 grams. The tablets
tested positive as 37.2 grams of MDMA.
{¶6} Turnbull and Ms. Fields-Turnbull’s wedding anniversary was on August 23.
On October 24, 2018, Turnbull texted Ms. Fields-Turnbull, indicating that he believed that
she stole his drugs and he had people ready to buy them.
{¶7} On November 9, 2018, a six-count indictment was filed in Richland County
Court of Common Pleas against Turnbull. Count One charged Turnbull with Aggravated
Trafficking in Drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(c), a felony of the second
degree. Count Two charged Turnbull with Aggravated Possession of Drugs in violation
of R.C. 2925.11(A) and (C)(1)(b), a felony of the third degree. Count Three charged him
with Trafficking in Cocaine, in violation of R.C. 2925.03(A)(2) and (C)(4)(b), a felony of
the fourth degree. Count Four charged Turnbull with Possession of Cocaine in violation
of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree. Count Five charged him
with Trafficking in Marijuana in violation of R.C. 2925.03(A)(2) and (C)(3)(e), a felony of
the third degree. Count Six charged Turnbull with Possession of Marijuana in violation of
R.C. 2925.11(A) and (C)(3)(c), a felony of the fifth degree.
{¶8} Turnbull’s case proceeded to trial on January 10, 2019. Immediately prior
to Ms. Fields-Turnbull testifying, Turnbull objected to her testimony under spousal
Richland County, Case No. 19CA12 4
privilege in R.C. 2945.42. The trial court denied the motion as untimely. On January 11,
2019, the jury acquitted Turnbull on Counts One and Three but made findings of guilty on
the remainder of the possession charges. On January 14, 2019, Turnbull was sentenced
to forty-eight months in prison.
Assignments of Error
{¶9} Turnbull raises two assignments of error,
{¶10} “I. THE TRIAL COURT ERRED IN NOT INFORMING THE SPOUSAL
WITNESS OF HER RIGHTS AGAINST SELF-INCRIMINATION AND AFFIRMATIVELY
DETERMINING WHETHER HER TESTIMONY IS VOLUNTARY.
{¶11} “II. THE TRIAL COURT ERRED IN OVERRULING THE EXERTION OF
THE SPOUSAL PRIVILEGE BY APPELLANT.”
I. & II.
{¶12} In his First Assignment of Error, Turnbull argues that the trial court
committed reversible error because the court failed to inform Ms. Field-Turnbull of her
right not to testify and by failing to make an affirmative determination on the record that
she has elected to testify. In his Second Assignment of Error, Turnbull contends that the
trial court erred in determining that the exertion of the privilege by Turnbull was not timely
made and therefore he waived his right to assert it. Each assignment of error, involves a
similar analysis under Crim. R. 52, i.e. whether the error, if any, affected Turnbull’s
substantial rights.
STANDARD OF APPELLATE REVIEW.
Spousal Competency Evid.R. 601.
Richland County, Case No. 19CA12 5
{¶13} Evid.R. 601 provides that “[e]very person is competent to be a witness
except: * * * (B) A spouse testifying against the other spouse charged with a crime except
when * * * (2) the testifying spouse elects to testify.” To ensure proper enforcement of
this rule, this court has held that “a spouse remains incompetent to testify until she makes
a deliberate choice to testify, with knowledge of her right to refuse.”
{¶14} In State v. Davis, the Ohio Supreme Court held,
An appellate court may not reverse a conviction for plain error based
on the admission of spousal testimony in violation of Evid.R. 601(B) unless
it conducts a plain-error analysis pursuant to State v. Adamson (1995), 72
Ohio St.3d 431, 650 N.E.2d 875, and determines that but for the error in
admitting the spouse’s testimony, the outcome of the trial would have been
different and that reversal is necessary to prevent a manifest miscarriage of
justice.
127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, syllabus.
Spousal Privilege R.C. 2945.42.
{¶15} R.C. 2945.42 creates a privilege for spousal acts and communications:
* * * Husband or wife shall not testify concerning a communication
made by one to the other, or act done by either in the presence of the other,
during coverture, unless the communication was made or act done in the
known presence or hearing of a third party competent to be a witness * * *.
{¶16} Error involving spousal privilege is not a constitutional violation. State v.
Webb, 70 Ohio St.3d 325, 334, 1994-Ohio-425, 638 N.E.2d 1023. In Webb, the Court
noted,
Richland County, Case No. 19CA12 6
Non-constitutional error is harmless if there is substantial other
evidence to support the guilty verdict. See State v. Davis (1975), 44 Ohio
App.2d 335, 346–348, 73 O.O.2d 395, 401–402, 338 N.E.2d 793, 802–803,
citing State v. Cowans (1967), 10 Ohio St.2d 96, 104, 39 O.O.2d 97, 103,
227 N.E.2d 201, 207. See, also, State v. Diehl (1981), 67 Ohio St.2d 389,
399, 21 O.O.3d 244, 251, 423 N.E.2d 1112, 1119 (Stephenson, J.,
dissenting); State v. Nichols (1993), 85 Ohio App.3d 65, 73, 619 N.E.2d 80,
86, fn. 6.
70 Ohio St.3d at 335, 1994-Ohio-425, 638 N.E.2d 1023.
ISSUE FOR APPEAL.
Whether but for any error in admitting his wife’s testimony the outcome of
the trial would have been different and that reversal is necessary to prevent a
manifest miscarriage of justice.
{¶17} The R.C. 2945.42 privilege belongs to the non-testifying spouse. State v.
Savage, 30 Ohio St.3d 1, 2, 30 OBR 11, 506 N.E.2d 196(1987). Thus, “[s]pousal privilege
cannot be waived unilaterally and allows a defendant to prevent his or her spouse from
testifying [as to a privileged communication] unless one of the statute’s exceptions
applies.” State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 55, fn.
3. On its face, the statute does no more than preclude a spouse from testifying to the
other spouse’s statements. State v. Perez, 124 Ohio SSt.3d 122, 2009-Ohio-6179, 920
N.E. 2d 104, ¶ 113. Thus, a spouse can testify to other facts. Accordingly, there is no
requirement that a spouse raise the assertion of the spousal privilege in advance of the
spouse testifying. “The existence of the marital privilege turns on the specific
Richland County, Case No. 19CA12 7
circumstances surrounding each allegedly privileged communication, e.g., whether a third
party was present. Thus, appellant had to object specifically so the circumstances could
be determined.” State v. Henness, 79 Ohio St.3d 53, 59, 1997-Ohio-405, 679 N.E.2d
686.
{¶18} In the case at bar, the trial court erroneously found Turnbull waived his
ability to assert the spousal privilege because he did not raise it in a written motion well
in advance to the start of his jury trial. 1T. at 212-213. However, “a reviewing court is not
authorized to reverse a correct judgment merely because erroneous reasons were
assigned as a basis thereof.” State ex rel. Peeples v. Anderson 73 Ohio St.3d 559, 560,
653 N.E.2d 371, 373(1995); State ex rel. Cassels v. Dayton City School Dist. Bd. Of Edn.,
69 Ohio St.3d 217, 222, 631 N.E.2d 150(1998). Accord, State ex rel. v. McGinty v.
Cleveland City School Dist. Bd. Of Edn., 81 Ohio 283, 290, 1998-Ohio-471, 690 N.E.2d
1273(1998).
The outcome of the trial would not have been different had Fields-Turnbull
not testified concerning privileged marital statements.
{¶19} The jury acquitted Turnbull of the trafficking charges; Turnbull was
convicted only of the charges involving possession of drugs.
{¶20} Because it does not involve Turnbull’s statements, Fields-Turnbull would be
permitted to testify that she had lived at the residence since 2012 and it was titled in her
name. 1T. at 216; 238. That she and Turnbull are married. 1T. at 216. Turnbull moved
into the residence in 2016. 1T. at 217. Turnbull was becoming physically and mentally
abusive toward her and her children. 1T. at 220. That Turnbull gave her pink pills to try.
1T. at 222. That she contacted METRICH and signed a written consent to search her
Richland County, Case No. 19CA12 8
home. 1T. at 226. Fields-Turnbull would be permitted to testify that she observed
Turnbull using drugs in the home. 1T. at 220-221. She could testify that the drugs inside
the home belonged to Turnbull. 1T. at 251. Fields-Turnbull could testify that she was
working with METRICH.
{¶21} Detective Chris Rahall testified that he is with the Richland County Sherriff’s
Office. He further testified that Fields-Turnbull executed a written consent to search the
home. She was at the residence and let the officers inside to conduct a search. 2T. at
273. He found the drugs in question pursuant to the search of the residence.
{¶22} Detective Perry Wheeler testified that Fields-Turnbull contacted him to
request that drugs that were inside her home be removed. 2T. at 302-303. He further
testified that he executed a written consent to search the home with Fields-Turnbull. 2T.
at 303. He was present when the drugs were found.
{¶23} We find that in the case at bar, the state introduced substantial evidence,
independent of any statements made by Turnbull to his wife. Since the record contains
substantial independent evidence of the matters the state sought to prove with the
spousal statements, we find their admission harmless. Accordingly, we find no manifest
injustice occurred. We therefore find no reasonable possibility had the jury not been
permitted to hear testimony of the Turnbull’s statements to his wife they would have found
him not guilty, and hold that any error committed was harmless beyond a reasonable
doubt. State v. Lytle (1976), 48 Ohio St.2d 391, 403, 358 N.E.2d 623, 630-631, vacated
on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154.
{¶24} Turnbull’s First and Second Assignments of Error are overruled.
Richland County, Case No. 19CA12 9
{¶25} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Wise, Earle, J., concur
| {
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Cite as 2016 Ark. 386
SUPREME COURT OF ARKANSAS.
No. CR-16-474
RICHARD W. GREEN Opinion Delivered November 10, 2016
APPELLANT
PRO SE MOTION FOR USE OF
V. COPY OF RECORD AND
TRANSCRIPT AND FOR
EXTENSION OF TIME TO FILE
STATE OF ARKANSAS BRIEF
[HOT SPRING COUNTY CIRCUIT
APPELLEE COURT, NO. 30CR-79-2]
APPEAL DISMISSED; MOTION
MOOT.
KAREN R. BAKER, Associate Justice
On April 4, 1979, Richard W. Green pleaded guilty to murder in the first degree
and was sentenced to imprisonment for the rest of his “natural life.” Green thereafter sought
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1979),
claiming his plea of guilty in 1979 was not voluntary because he thought he would serve a
seven-year sentence. This court affirmed the denial of relief, finding that Green knew he
could be sentenced to life imprisonment at the time of his plea and that, other than the
agreement to reduce the charge against him from capital to first-degree murder, no promises
had been made to him in exchange for his plea. Green v. State, 297 Ark. 49, 50–51, 759
S.W.2d 211, 211–12 (1988). On June 19, 2014, Green filed in the trial court a petition for
writ of error coram nobis or motion to correct clerical error or mistake in judgment-and-
commitment order. The trial court denied relief, and Green has lodged an appeal in this
Cite as 2016 Ark. 386
court from that denial. Now before this court is Green’s pro se motion for use of record
and transcript and for extension of brief time.
When it is clear from the record that the appellant cannot prevail if an appeal of an
order that denied postconviction relief were permitted to go forward, we dismiss the appeal.
Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012
Ark. 91. As it is clear from the record that Green could not prevail on appeal, the appeal is
dismissed. The dismissal of the appeal renders the motion moot.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341
Ark. 397, 17 S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid. Id. The function of the writ is to
secure relief from a judgment rendered while there existed some fact that would have
prevented its rendition if it had been known to the trial court and which, through no
negligence or fault of the defendant, was not brought forward before rendition of the
judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden
of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013
Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four categories: (1) insanity at the time
of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a
third-party confession to the crime during the time between conviction and appeal. Howard
v. State, 2012 Ark. 177, 403 S.W.3d 38.
2
Cite as 2016 Ark. 386
Green raised the following claims below in his petition for writ of error coram nobis:
that the trial court made false statements regarding his sentence during the plea hearing
which made his sentence illegal; that trial counsel was ineffective for allowing the trial court
to falsely apprise him in this manner; that the penitentiary commitment order was invalid
for lack of the judge’s signature and the clerk’s seal; that the commitment order did not state
certain language Green deemed pertinent; that the court’s failure to state a minimum
sentencing range during his plea hearing entitled him to issuance of the writ; that his plea
was either coerced because he was not paroled after seven years’ imprisonment or trial
counsel was ineffective for their failure to ensure he was paroled after serving seven year’s
imprisonment on his life sentence; and that he found out in 2011 that fingerprints on the
murder weapon belonged to Glen Briner. In his petition, Green stated that he did not bring
his claims earlier because he has “had at least 20 major surgeries since 2009” and that he was
“unaware of the illegal judgment order until 1996[.]” Citing Newman, 2009 Ark. 539, 354
S.W.3d 61, he claimed “this [wa]s the first opportunity he has had to present his case.”
Although there is no specific time limit for seeking a writ of error coram nobis, due
diligence is required in making an application for relief. Philyaw v. State, 2014 Ark. 130, at
6 (per curiam). Due diligence requires that (1) the defendant be unaware of the fact at the
time of trial; (2) the defendant could not have, in the exercise of due diligence, presented
the fact at trial; and (3) the defendant after discovering the fact, did not delaying in bringing
the petition. Id. at 6–7 (citing McClure v. State, 2013 Ark. 306 (per curiam)). The
requirements are a sequence of events, each of which a petitioner much show to prove due
diligence. Id.
3
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It has been over thirty years since Green’s guilty plea. Even if Green were unaware
of any alleged illegality until 1996, that is a period of over twenty years after his conviction,
and, even presuming any merit to his assertion that he could not raise the claims until after
2009, it purportedly took Green over five years to raise his claims. However, Green’s own
claims are belied by the fact that in 1995 Green filed a petition for writ of habeas corpus
seeking to have his judgment vacated on the ground that the statute governing the possible
sentences for murder in the first degree provided for “life imprisonment” but not
imprisonment for the rest of one’s “natural life”—a claim he argued he was unaware of until
1996.1 Moreover, the majority of his claims regarding any alleged illegality with his guilty
plea, plea hearing, or commitment order could have been raised long before now. Green
has not established that he exercised due diligence in bringing forth his claims, and his
petition would be subject to denial on that basis alone. Philyaw, 2014 Ark. 130, at 7.
Even assuming Green had been diligent in bringing his claims, while Green
attempted to couch many of his claims in terms of a coerced guilty plea, which would
provide a basis for relief in a coram-nobis proceeding, the actual bases for these claims are
ineffective assistance of counsel and trial error. See Biggs v. State, 2016 Ark. 125, at 3, 487
S.W.3d 363, at 365-66 (per curiam); see also Wilburn v. State, 2014 Ark. 394, 441 S.W.3d
29 (per curiam) (Appellant did not contend the plea was given as the result of fear, duress,
or threats of mob violence, but rather, the crux of his claim was that it was involuntarily
1
The petition was denied by the trial court, and, after he failed to perfect the appeal,
this court denied Green’s request to proceed with a belated appeal of the order of denial.
Green v. State, CR-96-572 (Ark. July 8, 1996) (unpublished per curiam).
4
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given due to ineffective assistance of counsel and failure of the trial court to properly advise
him of the charges and his rights.). This court has repeatedly held that ineffective-assistance-
of-counsel and trial-error claims are not cognizable in error-coram-nobis proceedings.
White v. State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288. Error-coram-nobis proceedings
are not a substitute for proceedings under Rule 37.1 to challenge the validity of a guilty
plea—which encompasses most of Green’s allegations in his petition for writ of error coram
nobis—nor are the two proceedings interchangeable. Wilburn, 2014 Ark. 394, at 4, 441
S.W.3d at 32. Green had already sought and appealed the denial of Rule 37.1 relief, see
Green, 297 Ark. 49, 459 S.W.2d 11, and any attempt to file a subsequent petition would
have been dismissed in accordance with Rule 37.2(b), which precludes the filing of a
subsequent petition. See Williams v. State, 273 Ark. 315, 316, 619 S.W.2d 628, 629 (1981)
(per curiam) (Where allegations of the original petition were conclusory, subsequent Rule
37 petitions were allowed and decided on their merits; however, the practice resulted in
inconsistency in the treatment of subsequent petitions, so the court no longer considered
subsequent petitions unless the original was dismissed specifically without prejudice.).
Green claimed that the term for the “rest of his natural life” was a sentence outside
the sentencing range granted by the statute for his offense, which was life.2 There is a
provision in Arkansas Code Annotated section 16-90-111 (Repl. 2006) that allows the trial
court to correct an illegal sentence at any time because a claim that a sentence is illegal
2
In 1979, first-degree murder was a class A felony. See Ark. Stat. Ann. § 41-1502(3)
(Repl. 1977). The sentence for first-degree murder, a class A felony, was not less than five
years nor more than fifty years, or life. See Ark. Stat. Ann. § 41-901(a) (Repl. 1977).
5
Cite as 2016 Ark. 386
presents an issue of subject-matter jurisdiction. Burgie v. State, 2016 Ark. 144, at 1–2 (per
curiam), reh’g denied (May 5, 2016). While the time limitations on filing a petition under
section 16-90-111(b)(1) on the grounds that the sentence was imposed in an illegal manner
were superseded by Arkansas Rules of Criminal Procedure 37.2(c), the portion of section
16-90-111 that provides a means to challenge a sentence at any time on the ground that the
sentence is illegal on its face remains in effect. Halfacre v. State, 2015 Ark. 105, 460 S.W.3d
282 (per curiam). A sentence is illegal on its face when it exceeds the statutory maximum
for the offense for which the defendant was convicted. Atkins v. State, 2014 Ark. 393, 441
S.W.3d 19 (per curiam).
Contrary to Green’s assertion, this court has stated that a “life sentence is for the
natural life of the person sentenced and is not based upon mortality tables or any other
formula.” Campbell v. State, 265 Ark. 77, 92, 576 S.W.2d 938, 947 (1979); see Curry v.
State, 276 Ark. 312, 312–13, 634 S.W.2d 139, 139 (1982) (per curiam). Clearly, a sentence
for rest of a person’s “natural life” makes no distinction from a life sentence, and Green’s
contention that his sentence is illegal fails. Moreover, it appears that Green’s primary
contention with the term “natural life” focused more on his claim that the term somehow
removed the possibility of parole or clemency rather than addressing the legality of the
sentence itself.3 An inmate sentenced to life imprisonment or for the rest of one’s natural
life is not eligible for parole unless the sentence is commuted to a term of years by executive
3
This court noted in Green’s Rule 37.1 appeal that the trial court found that the State
and defense specifically did not enter into an agreement that Green serve any specific term
of years in the penitentiary. See Green, 297 Ark. at 51, 759 S.W.2d at 212.
6
Cite as 2016 Ark. 386
clemency. See Ark. Code Ann. § 16-93-604(b)(1) (Repl. 2006); see, e.g., Sansevero v. Hobbs,
2015 Ark. 379, at 4 (per curiam) (A sentence of life imprisonment is a sentence of life
imprisonment without the possibility of parole unless the sentence is otherwise commuted
to a term of years.). Green has presented no argument or evidence that his sentence was
intended to be any other sentence but a life sentence for the rest of his natural life, which is
not an illegal sentence.
In his coram-nobis petition, Green argued he was entitled to coram-nobis relief
because the penitentiary commitment order was invalid because the judge did not sign it;
the proper circuit court clerk seal was not affixed to the commitment order; the
commitment order did not state that first-degree murder was a felony or “state the magic
words imprisonment in the penitentiary[,]” meaning his commitment was for a
misdemeanor; and the court’s failure to state a minimum sentencing range during his plea
hearing entitled him to issuance of the writ. All of these claims are conclusory without any
factual basis, and conclusory claims are not a ground for the writ. Wilburn v. State, 2014
Ark. 394, 441 S.W.3d 29 (per curiam). Notwithstanding the conclusory nature of the
claims, they are not cognizable in a coram-nobis proceeding because none of the claims
allege insanity at the time of trial, a coerced guilty plea, material evidence withheld by the
prosecutor, or a third-party confession to the crime during the time between conviction
and appeal. Howard, 2012 Ark. 177, 403 S.W.3d 38.
Green contended his plea was coerced because he took the plea to “serve 7 years on
the life term. In exchange Ms. [Sue] Green would not be charged [with capital murder].”
However, Green further contended that trial counsel was ineffective because they should
7
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have enforced the parole-eligibility terms that he be released after serving this same seven
years of imprisonment on his negotiated guilty plea. Notwithstanding the conclusory nature
of Green’s allegations—which again are not grounds for coram-nobis relief—and so far as
Green claimed the seven-year agreement was a basis for ineffective assistance of counsel,
ineffective-assistance-of-counsel claims are not cognizable in error-coram-nobis
proceedings. White, 2015 Ark. 151, at 4, 460 S.W.3d at 288. With respect to the seven-
year agreement as a basis for a coerced guilty plea, Green failed to allege that the guilty plea
was the result of fear, duress, or threats of mob violence, which would have served as possible
grounds for coram-nobis relief, see Wilburn, 2014 Ark. 394, 441 S.W.3d 29, in lieu of the
claim he raised which appears, at best, to be based upon miscommunications between
counsel and himself. Green makes no allegation that anyone other than his own trial counsel
misadvised him. See Biggs, 2016 Ark. 125, at 4, 487 S.W.3d at 366. Erroneous advice
concerning parole eligibility does not automatically render a guilty plea involuntary nor does
it support a claim of a coerced plea, providing a basis for coram-nobis relief. Id. Moreover,
claims regarding parole-eligibility status do not demonstrate that there was some
fundamental error of fact extrinsic to the record and do not fit within one of the four
categories for coram-nobis relief. Id.
Green, citing to Newman, 2009 Ark. 539, 354 S.W.3d 61, argued in his coram-nobis
petition that he was not told about the fingerprints on the murder weapon belonging to
Glen Briner until Dan Harmon’s (the prosecutor’s) first cousin, another inmate, told him
about it in 2011. While allegations of a Brady v. Maryland, 373 U.S. 83 (1963), violation
fall within one of the four categories of fundamental error that this court has recognized,
8
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the fact that a petitioner alleges a Brady violation alone is not sufficient to provide a basis for
error-coram-nobis relief. Davis v. State, 2016 Ark. 296, ___ S.W.3d ___ (per curiam).
Assuming that the alleged withheld evidence meets the requirements of a Brady violation
and is both material and prejudicial, in order to justify issuance of the writ, the withheld
material evidence must also be such as to have prevented rendition of the judgment had it
been known at the time of the trial. See Smith v. State, 2015 Ark. 188, at 4, 461 S.W.3d
345, 349 (per curiam). To establish a Brady violation, three elements are required: (1) the
evidence at issue must be favorable to the accused, either because it is exculpatory or because
it is impeaching; (2) that evidence must have been suppressed by the State, either willfully
or inadvertently; (3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404, 17
S.W.3d 87, 91 (2000).
Here, the alleged fingerprint evidence does not warrant coram-nobis relief. This
court is not required to accept the allegations in a petition for a writ of error coram nobis
at face value. Smith, 2015 Ark. 188, at 4, 461 S.W.3d at 349. An allegation that an inmate
passed along information about fingerprints hardly qualifies as proof of a Brady violation.
Nevertheless, the State’s additional response to Green’s coram-nobis petition noted that,
when Green pleaded guilty, the trial court asked for Green to establish a basis for his guilty
plea with a short recitation of the facts and that Green stated he had borrowed Glen Briner’s
gun on his way to the murder victim’s home. Green’s allegation that the prosecution
withheld material evidence that Briner’s fingerprints were on a gun admittedly borrowed
from Briner—an allegation known at the time of the guilty plea—does not appear to be
9
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material nor exculpatory, and it would not have prevented rendition of the judgment.
Green’s claim for relief was properly denied.
Appeal dismissed; motion moot.
Richard W. Green, pro se appellant.
Leslie Rutledge, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee
10
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920 F.2d 251
Randy Dale MAYO, Petitioner-Appellant,v.James A. COLLINS, Director, Texas Department of CriminalJustice, Institutional Division, Respondent-Appellee.
No. 89-1127.
United States Court of Appeals,Fifth Circuit.
Dec. 17, 1990.
Robert L. McGlasson, Paul Bottei, Austin, Tex. (court-appointed), for petitioner-appellant.
William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas; David O. Belew, Jr., Judge.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion January 23, 1990, 5th Cir., 893 F.2d 683)
Before RUBIN, KING, and HIGGINBOTHAM, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
1
The court's opinion on petition for rehearing is modified in the following regards:
2
The sentence in the opinion at 893 F.2d 688 reading as follows is deleted: Similarly, pictures introduced to demonstrate Mayo's artistic sensibilities were described by the prosecution as evidencing a fascination with young girls "not unlike" the victim of Mayo's crime.
3
The following sentence is inserted at the end of the last paragraph on page 688, immediately following footnote 34: As in Penry, the special issues submitted to the jury "did not provide a vehicle for the jury to give mitigating effect to [Mayo's] evidence of ... child abuse."35
4
Subject to these changes, the petition for rehearing is DENIED and no member of this panel or Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestion for Rehearing En Banc is DENIED.
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613 F.2d 312
Daltonv.Peninsular Life Insurance Co.***
No. 79-2765
United States Court of Appeals, Fifth Circuit
2/25/80
1
M.D.Ga.
AFFIRMED
*
Fed.R.App.P. 34(a); 5th Cir.R. 18
**
Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00146-COA
VICTOR W. CARMODY JR. AND VICTOR W. APPELLANTS
CARMODY III
v.
ERIN CHRISTA GARNETT APPELLEE
DATE OF JUDGMENT: 01/05/2018
TRIAL JUDGE: HON. STEVE S. RATCLIFF III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: KEVIN THOMAS STEWART
ATTORNEY FOR APPELLEE: P. SHAWN HARRIS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED: 04/02/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
TINDELL, J., FOR THE COURT:
¶1. Victor Carmody Jr. and Victor Carmody III (Tripp) (collectively, the Carmodys) filed
a complaint against Erin Christa Garnett (Christa) in the Madison County County Court for
replevin of personal property. Through court-ordered mediation, the parties reached a
settlement agreement and signed a “Mutual Release” setting forth the terms of their
agreement. In a subsequent bench ruling, the county court granted the Carmodys’ motion to
enforce the settlement agreement. However, the county court then denied the Carmodys’
motion to hold Christa in contempt. The Carmodys filed an unsuccessful motion to
reconsider. On appeal, the Madison County Circuit Court upheld the denial of the
Carmodys’ motion for contempt. Finding no error in the circuit court’s judgment, we affirm.
FACTS
¶2. The Carmodys filed a complaint for replevin of certain personal property they claimed
was in Christa’s possession. The Carmodys’ complaint also sought a judgment of conversion
and monetary damages against Christa for any of the personal property not recoverable
through replevin. In “Exhibit A” attached to their complaint, the Carmodys provided a
spreadsheet with a description of each item at issue as well as the item’s purported value,
owner, and last known location. Christa answered the Carmodys’ complaint and filed a
counterclaim for replevin, conversion, quantum meruit, and unjust enrichment. In response
to the Carmodys’ motion under Mississippi Rule of Civil Procedure 12(b)(6) to partially
dismiss her counterclaims for replevin and conversion, Christa filed an amended answer and
counterclaim.
¶3. After a September 28, 2016 hearing on the parties’ respective replevin claims, the
county court ordered the parties to attempt a resolution through mediation. During mediation
the parties settled all their claims and entered into a mutual release that set forth the terms
of their agreed settlement. After being advised of the parties’ settlement, the county court
entered an agreed order on October 31, 2016, to dismiss all claims with prejudice. On
December 2, 2016, the Carmodys filed a motion seeking enforcement of the settlement,
attorney’s fees, sanctions, and an expedited hearing. In the motion, the Carmodys asserted
that they had returned all of Christa’s personal property to her but that she had refused to
return their personal property. The Carmodys included an itemized list of the property they
contended Christa had refused to return.
2
¶4. On December 14, 2016, the county court heard argument on the Carmodys’ motion,
and, from the bench, the court ordered Christa to return the remaining items to the Carmodys
within forty-eight hours. In a subsequent motion for contempt filed on January 3, 2017, the
Carmodys alleged that Christa only returned some of the items identified in their December
2, 2016 motion. The Carmodys provided a new list that purportedly identified twenty-four
items or categories of items not yet returned. The Carmodys estimated the value of the
outstanding items to be $11,028. They asked the court to hold Christa in contempt until she
either returned the remaining items or paid them the items’ value. In addition, the Carmodys
asked that the court award them attorney’s fees.
¶5. Following a hearing, the county court entered an April 11, 2017 judgment on the
Carmodys’ contempt motion. With regard to the items the Carmodys asserted Christa still
had not returned, the county court referenced the parties’ mutual release. The mutual release
included a column entitled “Christa.” The county court found the column reflected Christa’s
apparent position as to each item’s location prior to the mediation. The court further found
the information provided in the mutual release supported Christa’s testimony that she was
unfamiliar with some of the listed items, had returned all the items in her possession of which
she had any knowledge, and did not have any of the items at issue. The court further
concluded “there were a few items listed in the [m]otion for [c]ontempt that were not
specifically identified on Exhibit ‘A’ to the [m]utual [r]elease.” Based on its findings, the
court denied the contempt motion.
¶6. Following the denial of their motion to reconsider, the Carmodys appealed to the
3
circuit court. The circuit court upheld the county court’s denial of the motion for contempt.
Aggrieved, the Carmodys appeal to this Court.
STANDARD OF REVIEW
¶7. Here, “[t]he county court was the fact finder, and the circuit court, as well as this
Court, are bound by the judgment of the county court if supported by substantial evidence
and not manifestly wrong.” Stevens v. Grissom, 214 So. 3d 298, 300 (¶6) (Miss. Ct. App.
2017). “[T]he judgment of a circuit or county court in a non-jury trial is entitled to the same
deference on appeal as a chancery[-]court decree.” Id. Thus, where substantial, credible, and
reasonable evidence supports the factual findings of a trial judge sitting without a jury, the
appellate courts will not disturb the findings on appeal. Stratton v. McKey, 204 So. 3d 1245,
1248 (¶8) (Miss. 2016).
DISCUSSION
¶8. The Carmodys argue the county court and, in turn, the circuit court erred by failing
to enforce the parties’ mutual release and to hold Christa in contempt for failing to comply
with the terms of the mutual release. “To be found in contempt, a party has to willfully and
deliberately violate a court order.” McKnight v. Jenkins, 155 So. 3d 730, 732 (¶7) (Miss.
2013). “Contempt matters are committed to the substantial discretion of the trial court,
which, by institutional circumstance and both temporal and visual proximity, is infinitely
more competent to decide the matter than are we.” In re C.T., 228 So. 3d 311, 318 (¶17)
(Miss. Ct. App. 2017).
¶9. In its December 14, 2016 bench ruling on the Carmodys’ motion to enforce the
4
settlement agreement, the county court ordered Christa to return the items listed in “Exhibit
A” of the mutual release within forty-eight hours. In the Carmodys’ motion to hold Christa
in contempt for failing to comply with the court’s prior ruling, the Carmodys identified
twenty-four items or categories of items they alleged Christa had not yet returned. Based on
their assertions, the Carmodys asked the county court to hold Christa in contempt until she
either returned or paid for the identified items.
¶10. The county court found “Exhibit A” of the mutual release, which identified the
property to be returned, was prepared either by or on behalf of the Carmodys and then
provided to Christa during mediation. With regard to the information contained in the
exhibit, the county court stated:
While a location is listed for each item, the testimony indicates that is the place
where . . . [Tripp] last knew where the item was located. The column marked
“Value” reflects what . . . [Tripp] either paid for the item or what it costs new.
It does not take depreciation into account. The column identified as “Christa”
has a variety of different comments listed beside the items. These comments
apparently reflect . . . [Christa’s] position as to each item prior to mediation.
¶11. At the hearing on the contempt motion, Christa testified her understanding of the
parties’ agreement was that she had to return any items in her possession. She stated she
never conceded possession of all the items listed in the exhibit to the mutual release. Instead,
she claimed she had always told the Carmodys they could have any items inside her storage
units and had given the Carmodys access to the units. In addition, Christa testified she was
unfamiliar with some of the items identified in the contempt motion and did not have any of
those items in her possession. According to Christa, she had returned all the items in her
possession about which she knew or had the ability to know.
5
¶12. After reviewing the mutual release, the county court concluded the document and its
attached exhibit supported Christa’s testimony in multiple instances. The court found the
column labeled “Christa” clearly indicated that Christa disputed her possession of certain
listed items. In fact, the court determined that the items at issue were those which Christa
disputed having possession of, claimed she was unfamiliar with, or denied knowing the
location of. The county court further found that multiple items at issue in the contempt
motion were never even specifically identified in the exhibit to the mutual release.
¶13. Based on its findings, the county court denied the Carmodys’ motion to hold Christa
in contempt for failing to comply with the court’s prior ruling. Clearly, the county court and,
in turn, the circuit court found credible Christa’s testimony on the matter. “When a trial
[court] . . . , rather than a jury, is the finder of fact, [it] . . . has the full authority to determine
the credibility of witnesses, just as is the jury’s duty in a jury trial.” Stevens, 214 So. 3d at
301 (¶10). Upon review, we find no manifest error in the county court’s denial of the
contempt motion. Because substantial credible evidence supports the county court’s
decision, we find this assignment of error lacks merit.
CONCLUSION
¶14. We find substantial credible evidence supports the county court’s denial of the
Carmodys’ contempt motion. We therefore affirm the circuit court’s judgment.
¶15. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.
6
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978 F.2d 1256
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Mario TENORIO, Plaintiff-Appellant,v.B. RODGERS; R. M. Muncy; P. A. Terrangi; L. Harris; G.Jones; C. Parker; Chairman of the Virginia StatePenitentiary's Work Committee,Defendants-Appellees.
No. 92-2095.
United States Court of Appeals,Fourth Circuit.
Submitted: October 26, 1992Decided: November 6, 1992
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-91-66)
Mario Tenorio, Appellant Pro Se.
Mark Ralph Davis, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees.
E.D.Va.
Affirmed.
Before ERVIN, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
PER CURIAM:
OPINION
1
Mario Tenorio appeals from the district court's order denying relief under 42 U.S.C. § 1983 (1988). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Tenorio v. Rodgers, No. CA-91-66 (E.D. Va. Aug. 11, 1992). 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
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636 F.2d 1212
Goodev.Peebles
80-6551
UNITED STATES COURT OF APPEALS Fourth Circuit
11/6/80
1
E.D.Va.
AFFIRMED
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83 F.Supp.2d 1029 (2000)
Rita PHILLIPS, Plaintiff,
v.
TACO BELL CORP., Defendant.
No. 4:96-CV-1220 (CEJ).
United States District Court, E.D. Missouri, Eastern Division.
February 10, 2000.
*1030 *1031 John J. Carey, David O. Danis, Partner, Joseph P. Danis, Carey and Danis, St. Louis, MO, for Plaintiff.
James N. Foster, Jr., Partner, Geoffrey M. Gilbert, Jr., Stephanie O. Zorn, McMahon and Berger, St. Louis, MO, for Defendant.
MEMORANDUM AND ORDER
JACKSON, District Judge.
This matter is before the Court for a bench trial on a stipulated record. Plaintiff and defendant jointly waived their right to a trial by jury and submitted the case to the Court.
Plaintiff filed suit against her former employer, Taco Bell, Corp., alleging sexual harassment in violation of Title VII, 42 U.S.C. § 2000e et seq.[1]
In Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and its companion case, Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the Supreme Court held that under Title VII an employer is subject to vicarious liability to a victimized employee for actionable sexual harassment by a supervisor with immediate, or successively higher, authority over the employee. Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. at 2292-93. These holdings have displaced the previous dichotomy of employer liability, which had previously existed between quid pro quo and hostile working environment claims, as was recognized by the Eighth Circuit and others. Under the formerly accepted analysis, if a quid pro quo claim was established, the employer was subject to vicarious liability. See Todd v. Ortho Biotech, Inc., 138 F.3d 733, 737 (8th Cir.1998); Davis v. Sioux City, 115 F.3d 1365, 1367 (8th Cir.1997). A successful hostile environment claim, under the former interpretation of Title VII, would not automatically make the employer liable, unless the employer had engaged in some degree of culpable behavior, such as if the employer knew, or should have known, of the harassment, and failed to take appropriate remedial action. Id. at 1369. In light of the vicarious liability principles announced in Faragher and Ellerth in place, the terms quid pro quo, and hostile environment, remain useful only for the "threshold question of whether a plaintiff can prove discrimination in violation of Title VII." Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. at 2265.
A prima facie case of sexual harassment by a supervisor with immediate, or successively higher, authority over *1032 the plaintiff[2] will be established if the plaintiff shows that: 1) she was a member of a protected class; 2) she was subject to unwelcome sexual harassment; 3) the harassment was based on sex; and 4) the harassment affected a term, condition, or privilege of her employment. See Grozdanich v. Leisure Hills Health Center, Inc., 25 F.Supp.2d 953, 966 (D.Minn.1998).
Because Title VII is not a "general civility code," Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), sexual harassment must be "so `severe or pervasive' as to `alter the conditions of [the victim's] employment and create an abusive working environment'" before it can be said to create a hostile environment, under the statute. Faragher, 524 U.S. 775, 118 S.Ct. at 2283 [alteration in original], quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Therefore, a plaintiff asserting a hostile environment claim "`must show both that the offending conduct created an objectively hostile environment and that she subjectively perceived her working conditions as abusive.'" Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 761 (8th Cir.1998), quoting Hathaway v. Runyon, 132 F.3d 1214, 1221 (8th Cir.1997). In other words, a hostile work environment exists where "sexual conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Cram v. Lamson & Sessions Co., 49 F.3d 466, 474 (8th Cir.1995), quoting Hall v. Gus Constr. Co., 842 F.2d 1010, 1013 (8th Cir.1988).
To assess whether the harassment is sufficiently severe, or pervasive, to alter the conditions of employment, the Court must look to the totality of the circumstances. See Nichols v. American Nat'l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998), quoting Faragher, 524 U.S. 775, 118 S.Ct. at 2283. In particular, the Court should consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The Supreme Court has taken pains to emphasize that "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" Oncale, 523 U.S. at 76, 118 S.Ct. 998. Generally, for sexual harassment to be sufficiently severe, or pervasive, to create a hostile working environment, "more than a few isolated incidents are required." Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir.1997); see also, Montandon v. Farmland Indus., Inc., 116 F.3d 355, 358 (8th Cir.1997).
If no tangible employment action is taken against the employee, such as a discharge, a demotion, or an undesirable work reassignment, "a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence," which must be established by "two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Burlington Indus., 524 U.S. 742, 118 S.Ct. at 2270; Faragher, 524 U.S. 775, 118 S.Ct. at 2293. The Supreme Court's new affirmative defense was adopted to avoid "automatic" employer liability and to give credit to employers who make reasonable efforts to prevent and remedy sexual harassment. See Faragher, 524 U.S. 775, 118 S.Ct. at 2291-92.
*1033 After a review of the record, the Court finds that plaintiff has satisfied her burden of making her initial case, by a preponderance of the evidence. First, the Court finds that plaintiff was a member of a protected class. Second, the Court finds that plaintiff was subject to unwelcome sexual harassment. Plaintiff testified, in deposition, that she was sexually harassed by Duane Sonntag on five separate occasions and that each incident was unwelcome. On March 13, 1995, Sonntag squeezed plaintiff's breasts. On June 12, Sonntag grabbed the front of plaintiff's pants. On June 13, 1995, Sonntag grabbed plaintiff's hand and placed it on the front of his pants. On June 17, 1995, Sonntag rubbed his hands across plaintiff's buttocks. On June 18, 1995, Sonntag rubbed his hands across and down plaintiff's back.
Third, the Court finds that the harassment was based on plaintiff's sex. The incidents of sexual harassment by Sonntag, this case, including the squeezing of plaintiff's breasts, the placing of her hand on the front of his pants and the rubbing of her buttocks, were based on plaintiff's sex.
Fourth, the Court finds that the harassment affected a term, condition, or privilege of plaintiff's employment. Considering totality of the circumstances in this case, the Court finds that the five incidents of unwelcome sexual harassment were sufficiently severe and pervasive so as to alter the conditions of plaintiff's employment and create an abusive working environment. Both the physical nature of the incidents and their very number convince this Court that the plaintiff's working environment was significantly affected. Indeed, plaintiff "found these incidents humiliating and Sonntag's behavior made it difficult for [her] to perform her job duties." Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir.1998). The Court further finds that the offending conduct created an objectively hostile working environment and that plaintiff subjectively perceived her working conditions as abusive.
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. See Burlington Indus., 524 U.S. 742, 118 S.Ct. at 2270; Faragher, 524 U.S. 775, 118 S.Ct. at 2293. In this case, plaintiff does not contend that a tangible employment action was taken. Consequently, defendant may avail itself of the affirmative defense.
The Court finds that defendant exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Defendant maintained a written, posted sexual harassment policy which advised all employees that sexual harassment was expressly prohibited and that any report of sexual harassment would be promptly and thoroughly investigated. Defendant's policy states in pertinent part:
Any employee who believes that he or she has been subjected to sexual harassment, or who has knowledge of any sexual harassment or any other employee, should immediately report it to his/her immediate supervisor. Employees who work at a Taco Bell restaurant may also report claims of sexual harassment to their Market Manager, Zone Manager of Human Resources, or Zone Vice President. The names and telephone numbers of these managers are listed on the "Need Help" Poster in each restaurant. Claims may also be brought to the attention of the Taco Bell Corporate Manager of Equal Employment Opportunity by calling the "Network (toll free)."
Plaintiff testified that she fully understood defendant's sexual harassment policy. On June 20, 1995, for the first time, plaintiff informed defendant of Sonntag's offensive conduct. She called a phone number found on the posted sexual harassment policy and left a message reporting her complaints of sexual harassment. The next day, June 21, 1995, Scott Williams returned plaintiff's phone call and had a face-to-face meeting with plaintiff. Williams told the plaintiff that her allegations *1034 would be taken very seriously and that a prompt and thorough investigation would be performed.
On June 22, 1995, Williams contacted the plaintiff and advised her that he would be personally conduct the investigation into her allegations. At that time, Williams explained to plaintiff that he had an upcoming business trip and wanted to know whether it would be all right with her if he were to begin his investigation upon his return. Additionally, Williams offered to give plaintiff a paid vacation while he was out of town. Plaintiff told Williams that he could begin the investigation after he returned to town and that she did not want the paid vacation. Williams advised plaintiff that should she have any further problems, she could be absent from work and be fully compensated for all time missed. On June 29, 1995, Williams received a message from the plaintiff stating that something else had occurred and that she wanted him to call her. Williams called plaintiff back and told her to take a paid, two week vacation. On July 14, 1995, Sonntag's employment with defendant was terminated for violating defendant's sexual harassment policy. Both defendant's sexual harassment policy and its actions pursuant to that policy convince the Court that defendant exercised reasonable care to prevent and promptly correct Sonntag's sexually harassing behavior.
The second prong of the affirmative defense requires that the plaintiff employee unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The first incident of sexual harassment occurred on March 13, 1995. On June 20, 1995, for the first time, plaintiff reported Sonntag's offensive conduct to defendant by calling Mr. Williams. The Court finds that plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.[3]
Consequently, because the Court finds that defendant has successfully proved, by a preponderance of the evidence, the affirmative defense to liability, the Court will enter judgment in favor of the defendant.
Accordingly,
IT IS HEREBY ORDERED that judgment shall be entered in favor of defendant Taco Bell, Corp. and against plaintiff Rita Phillips. An appropriate Order shall accompany this Memorandum and Order.
NOTES
[1] Plaintiff's complaint contained claims under the Missouri Human Rights Act ("MHRA") § 213.010 et seq. The Court earlier granted defendant's motion for judgment as a matter of law on plaintiff's MHRA claims because plaintiff did not have a right to sue letter from the Missouri Commission on Human Rights. Plaintiff stipulates that she did not appeal this Court's decision to dismiss plaintiff's claims under the MHRA.
Additionally, the Court notes that despite the fact that plaintiff filed a two-count complaint (Count I for sexual discrimination and Count II for sexual harassment), this case involves only a claim of sexual harassment.
[2] The parties have stipulated that Duane Sonntag, the man who harassed plaintiff, was plaintiff's supervisor throughout her employment with defendant.
[3] The Court hereby expressly limits its findings under the second prong of the affirmative defense to the facts of this case. A delay of three months and seven days between the first incident of harassment and a plaintiff's first complaint of harassment certainly may not alone prove that the plaintiff employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise.
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STATE OF MICHIGAN
COURT OF APPEALS
RYAN MITCHELL, UNPUBLISHED
September 13, 2018
Plaintiff-Appellee,
v No. 338701
Bay Circuit Court
DORE & ASSOCIATES CONTRACTING, INC., LC No. 15-003594-CL
Defendant-Appellant.
Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.
PER CURIAM.
A jury found that Dore & Associates Contracting, Inc. retaliated against its employee,
Ryan Mitchell, for exercising his rights under the Worker’s Disability Compensation Act
(WDCA), MCL 418.101 et seq., and awarded Mitchell approximately $170,000. Dore appealed,
challenging the court’s earlier denial of its motion for summary disposition under MCR
2.116(C)(10) and rejecting its bid to present evidence of Mitchell’s criminal history and his
excused absence from work to care for his hospitalized sister. We discern no error and affirm.
I. FACTS
Dore is a Michigan demolition company that engages in projects in multiple states. A
project manager leads each project and the manager selects a team of employees to work at his or
her site. At the conclusion of a project (or the particular employee’s role in a project), the
employee is laid off and collects unemployment compensation. The employee is recalled to
work when another project becomes available. Mitchell worked for Dore as a Class 1 laborer, an
unskilled worker tasked with tearing down the insides of buildings, cleaning job sites, and
removing debris. He was not qualified to remove asbestos or to operate heavy machinery;
employees of higher classification performed those functions. Mitchell worked for Dore on eight
projects, travelling to other states and living in rented lodging. Mitchell’s employment was
interrupted when he broke his leg in a worksite accident on March 1, 2013. Mitchell filed for
workers’ compensation and Dore did not challenge his entitlement to those benefits. Mitchell
collected workers’ compensation for one year before his doctor released him for work.
During a pretrial deposition, Edward Dore testified that he handles risk management for
Dore. In relation to Dore’s workers’ compensation insurance policy, Edward described that the
company’s premium was controlled by its “experience modification factors,” a rating determined
by insurers based on a company’s payroll, historic number of claims, and other similar
-1-
information. Increased claims or high claim payouts increase a company’s premium. The
difference would not be felt immediately, however, with the premium rising approximately a
year or two after a workers’ compensation claim being filed. Edward also had the final say on
employee termination decisions, though such decisions did not always require his involvement.
Mitchell testified that during his disability, he worried about his chances of being brought
back to work. There was an ongoing joke among Dore employees that an employee injured on
the job would never work for Dore again. However, Mitchell’s previous project manager,
Michael Green, did recall Mitchell to work at the end of April 2014. Two months later, Mitchell
overheard his name during a telephone conversation between Green and Edward. When Mitchell
asked Green why he was mentioned, Green responded, “[Edward] asked me what you were
doing on the job . . . . He probably seen you were on the payroll.” According to Mitchell, Green
approached him soon after to let him know that Edward no longer wanted him working on the
project. Green later clarified, “Well, [Dore] no longer wants you on the job.”
Mitchell opined that he was laid off because he had filed a workers’ compensation claim
and caused Dore’s insurance premium to go up. Dore asserted that the tasks available for
general laborers on the site had simply dried up. Mitchell noted that the two other laborers
working on the site were not laid off as evidence of Dore’s discriminatory animus. Dore retorted
that Edward had spoken to Green before he recalled Mitchell for work and approved of the
decision. Dore further asserted that the other two laborers were still useful on the site; one was
certified to operate heavy equipment and the other had more seniority than Mitchell and could
manage the remaining general labor tasks alone. After this project, however, Dore never recalled
Mitchell to work again. After much searching, Mitchell found work as a line cook for lower pay.
Mitchell subsequently filed this retaliatory discrimination action against Dore. Dore
sought summary dismissal of Mitchell’s action but the lower court denied its motion. The matter
proceeded to a jury trial and the jury found in Mitchell’s favor. Dore now appeals the court’s
denial of its motion for summary disposition and certain evidentiary rulings made prior to trial.
II. SUMMARY DISPOSITION
We review de novo a trial court’s decision on a motion for summary disposition.
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). Under MCR
2.116(C)(10), summary disposition may be granted if “there is no genuine issue as to any
material fact, and the moving party is entitled to judgment . . . as a matter of law.” “When
reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a court must
examine the documentary evidence presented and, drawing all reasonable inferences in favor of
the nonmoving party, determine whether a genuine issue of material fact exists.” Dextrom, 287
Mich App at 415-416. As noted by this Court, “[a] question of fact exists when reasonable
minds could differ as to the conclusions to be drawn from the evidence.” Id. at 416. In
considering a summary disposition motion, the court may not resolve factual disputes or weigh
credibility. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
The Legislature has proscribed retaliating against an employee for exercising his or her
rights under the WDCA:
-2-
A person shall not discharge an employee or in any manner discriminate against
an employee because the employee filed a complaint or instituted or caused to be
instituted a proceeding under this act or because of the exercise by the employee
on behalf of himself or herself or others of a right afforded by this act. [MCL
418.301(13).]
To establish a prima facie case of retaliatory discharge under the WDCA, an employee
must put forward evidence that (1) the employee asserted a right under the WDCA or actually
exercised that right; (2) the employer knew of the employee’s protected activity; (3) “the
employer took an employment action adverse to the employee”; and (4) there was a causal
connection between the adverse employment action and the employee’s protected activity.
Cuddington v United Health Servs, Inc, 298 Mich App 264, 275; 826 NW2d 519 (2012).
Mitchell alleged that he engaged in two protected activities: filing a claim for benefits
and collecting benefits. Filing a claim under the WDCA is a protected activity. Chiles v
Machine Shop, Inc, 238 Mich App 462, 470; 606 NW2d 398 (1999). An argument could be
made that an employee exercises a right under the WDCA when he or she collects benefits.
However, Mitchell has provided no authority for his proposition that collecting workers’
compensation benefits is itself a protected activity and Dore challenges this characterization. For
the sake of this argument, we will proceed as if collecting benefits is not a protected activity
without resolving the issue.
It is undisputed that Dore knew that Mitchell had applied for and been granted workers’
compensation benefits. Mitchell also suffered an adverse employment action when he was laid
off from his first project after he was released to work and Dore never recalled him.1
“[C]ausation[] is usually difficult to prove.” Cuddington, 298 Mich App at 275. It is a
rare case in which the employer will make statements providing direct evidence of its
discriminatory motive. Id. at 276. Dore notes the lack of temporal proximity between Mitchell’s
filing of his workers’ compensation claim in March 2013 and his final lay off on July 11, 2014.
Although temporal proximity is a factor to consider in a causation analysis, it is insufficient
standing alone to prove (or disprove) a causal connection. West v Gen Motors Corp, 469 Mich
177, 186; 665 NW2d 468 (2003) (“Something more than a temporal connection between
protected conduct and an adverse employment action is required to show causation where
discrimination-based retaliation is claimed.”).2
1
It is immaterial whether Mitchell was “laid off” or “terminated.” Michigan caselaw has
recognized both outright termination, see Cuddington, 298 Mich App at 277, and being “laid off
and not recalled,” see Chiles, 238 Mich App at 470, as adverse employment actions.
2
West involved an employer’s retaliatory discrimination against an employee for taking
protected action under the Whistleblowers’ Protection Act. However, this Court has relied on
retaliation cases under the WPA and the Civil Rights Act in analyzing such suits under the
WDCA. See Cuddington, 298 Mich App at 275.
-3-
Here, Mitchell presented sufficient evidence at the summary disposition stage to create a
triable question of material fact. Specifically, Mitchell presented evidence that Dore terminated
his employment once Edward learned that Green had recalled Mitchell to work after being out on
disability. Mitchell presented evidence that Green recalled him to work without Edward’s
knowledge and that once Edward learned of Mitchell’s return, he instructed Green to fire him.
Dore presented evidence to contradict these statements. However, Dore’s evidence only created
a credibility contest that the trial court was not permitted to resolve in considering Dore’s
summary disposition motion. Accordingly, Mitchell created a prima facie case of retaliatory
discrimination.
“When a plaintiff presents circumstantial rather than direct evidence of an employer’s
retaliatory motive, we examine the claim under the McDonnell Douglas/Burdine burden-shifting
framework.” Cuddington, 298 Mich App at 276, citing McDonnell Douglas Corp v Green, 411
US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973); Texas Dep’t of Community Affairs v Burdine, 450
US 248; 101 S Ct 1089; 67 L Ed 2d 207 (1981). Under this framework, the employer may
present evidence of a legitimate, nondiscriminatory reason for its employment action. The
burden then shifts to the plaintiff to establish that this stated reason is mere pretext. Cuddington,
298 Mich App at 276-277.
At the summary disposition stage, Dore contended that it terminated Mitchell’s
employment because there was not enough work left for three general laborers and did not recall
him to work because the next projects were staffed with local laborers.
Mitchell responded to these cited reasons and presented evidence to create a question of
fact regarding Dore’s motive. Edward testified that an employee’s filing of a workers’
compensation claim would increase Dore’s experience rating, which in turn would lead to higher
insurance premiums. Edward admitted that Dore’s experience rating did increase following
Mitchell’s claim. Moreover, Mitchell presented evidence that Dore only laid off one of three
general laborers on the project—Mitchell—calling into question Dore’s explanation that work
for the general laborers had simply dried up. And when Mitchell asked Green if he would be
recalled for another project, Green responded that he did not know. This stands in contrast to
Dore’s usual practice of rehiring workers at a later time when other projects arose. Again, Dore
refuted Mitchell’s evidence, but this created a credibility contest for the jury’s review, precluding
summary disposition.
III. ADMISSIBILITY OF EVIDENCE
Dore does not directly attack the jury’s ultimate judgment in Mitchell’s favor. Instead,
Dore challenges the trial court’s preclusion of evidence regarding Mitchell’s criminal history and
history of probation violations, and his prior excused work absence from work to visit his ill
sister. Dore asserts that evidence of Mitchell’s criminal history would help explain why Mitchell
had such a difficult time finding replacement work. Knowing that Mitchell’s own conduct
impacted his job hunt, Dore theorizes, the jury would have held him at least partially responsible
for the economic damages incurred after he was laid off from Dore. The evidence was also
-4-
necessary for impeachment purposes, Dore contends. Mitchel “present[ed] himself as a model
employee that any employer would dream to have,” so evidence of his criminal history and
absences from work were highly relevant.3
We review for an abuse of discretion a trial court’s ruling regarding the admissibility of
evidence. Lenawee Co v Wagley, 301 Mich App 134, 164; 836 NW2d 193 (2013). “A trial court
abuses its discretion only when its decision results in an outcome falling outside the range of
principled outcomes.” Lockridge v Oakwood Hosp, 285 Mich App 678, 692; 777 NW2d 511
(2009).
Mitchell had been convicted of driving while intoxicated on three occasions and driving
with a suspended license on one. After his latest conviction, Mitchell was placed on probation
for five years. He violated probation twice. This evidence, as well as Mitchell’s work absences,
is evidence of prior acts. Generally, where a party places his or her character at issue by offering
evidence of specific instances of good conduct, rebuttal evidence may be offered to impeach the
party’s credibility. Nolte v Port Huron Area Sch Dist Bd of Ed, 152 Mich App 637, 644; 394
NW2d 54 (1986). Pursuant to MRE 404(b)(1), however, the admissibility of prior acts evidence
is limited:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Moreover, MRE 609(a) limits the use of a witness’s criminal convictions as impeachment
evidence:
For the purpose of attacking the credibility of a witness, evidence that the witness
has been convicted of a crime shall not be admitted unless the evidence has been
elicited from the witness or established by public record during cross-
examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft . . . .
Driving while impaired or with a suspended license and probation violation do not
involve an element of dishonesty, false statement, or theft. Accordingly, Mitchell’s criminal
history was not admissible to impeach his testimony regarding his good character.
3
In its appellate brief, Dore notes that it also sought to present evidence that Mitchell’s driver’s
license had been suspended. The trial court did not preclude this evidence from trial, however.
-5-
The trial court also properly determined that this evidence was not admissible to negate
Mitchell’s damages claim. The doctrine of mitigation of damages provides that an injured party
must make reasonable efforts to limit the extent or amount of his or her damages. Morris v
Clawson Tank Co, 459 Mich 256, 267; 587 NW2d 253 (1998). The focus is on the level of
efforts made by the injured party, not on outside factors that might affect the desire of other
employers to hire the injured party. Evidence suggesting that Mitchell was not highly
employable because of his criminal history was irrelevant to the issue of mitigation and therefore
was inadmissible. See MRE 402 (“Evidence which is not relevant is not admissible.”).
We also discern no error in the court’s preclusion of evidence that Mitchell missed work
to visit his hospitalized sister. Certainly, evidence that Mitchell missed work without excuse
would be relevant to impeach Mitchell’s suggestion that he was a model employee. However,
Dore does not contest that Mitchell’s absence was excused by Green. Like the trial court, we fail
to see how an excused absence would have any bearing on Mitchell’s work ethic.
We affirm.
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
-6-
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
EARL A. TERPSTRA, JR.
v. Record No. 1659-94-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
Jim Lowe (R. Ramsey Maupin, on brief),
for appellant.
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Earl A. Terpstra, Jr.'s, conviction of second offense
driving while under the influence is affirmed. Terpstra
maintains that as a predicate offense the Commonwealth relied
upon an uncounseled DWI conviction. In Griswold v. Commonwealth,
21 Va. App. ___, ___, ___ S.E.2d ___, ___ (1995) (en banc), this
Court held that admission into evidence of an uncounseled
conviction which included a suspended sentence in the sentencing
phase of a subsequent trial is permissible. Here, Terpstra's
prior conviction resulted in a fine of $500 with $350 suspended,
thirty days in jail with thirty days suspended, and a six month
restriction on his privilege to drive conditioned upon the
successful completion of the ASAP program. Thus, the trial
court did not err in admitting the uncounseled predicate offense.
Affirmed.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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188 P.3d 977 (2008)
STATE
v.
TENSLEY.
No. 97578.
Court of Appeals of Kansas.
August 1, 2008.
Decision without published opinion. Affirmed.
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PD-1501-15 PD-1501-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
November 20, 2015 Transmitted 11/19/2015 2:34:44 PM
Accepted 11/20/2015 11:31:01 AM
ABEL ACOSTA
CAUSE NO. 12-13-00394-CR CLERK
RAY HAWKINS, JR., § IN THE COURT OF APPEALS
Appellant §
VS. § IN TYLER, TEXAS
§
THE STATE OF TEXAS, § 12TH JUDICIAL DISTRICT
Appellee
MOTION FOR EXTENSION OF TIME TO FILE
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF SAID COURT:
COMES NOW, RAY HAWKINS JR., Appellant, and files this Motion for
Extension of Time to File Appellant's Petition For Discretionary Review, pursuant to
Rules 10.5(b) and 68.2(c), Texas Rules of Appellate Procedure. In support of this
Motion, Appellant would show the following:
I.
The Twelfth Court of Appeals issued its Opinion in this case on October 21,
2015. No motion for rehearing was filed. Appellant’s Petition for Discretionary
Review is due to be filed by November 20, 2015. This is Appellant’s first request for
an extension of time. Appellant requests an extension of forty-five (45) days to file
the petition.
II.
In the past thirty (30) days, counsel was engaged in the following matters,
which preclude completion of Appellant’s Petition for Discretionary Review:
A. On October 23, 2015, Counsel for Appellant appeared for a hearing on an Art.
11.07 post-conviction writ of habeas corpus in the case styled Ex Parte
Cleveland Erric Jetson; Cause No. 1201724-A, pending in the 180th District
Court of Harris County, Texas.
B. On October 27, 2015, Counsel for Appellant appeared for docket call in the
case styled The State of Texas v. Lisa Perry; Cause No. 1448959, pending in
the 209th District court of Harris County, Texas.
C. On October 28, 2015, Counsel for Appellant appeared for docket call in the
case styled The State of Texas v. Brittany Fields; Cause No. 2050500, pending
in the County Criminal Court at Law No. 15 of Harris County, Texas.
D. On November 2, 2015 Counsel for Appellant appeared for a pre-trial
conference and motions hearing in the case styled The State of Texas v. Mike
Florez; Cause No. 1986009, pending in the County Criminal Court at Law
No. 10 of Harris County, Texas.
E. On November 3, 2015 Counsel for Appellant appeared for docket call in the
case styled State of Texas v. Qiao Dai; Cause No. 15-CCR-179998, pending in
the County Court at Law No. 2 of Fort Bend County, Texas.
F. On November 5, 2015 Counsel for Appellant appeared for a motion hearing in
the case styled State of Texas v. Whitney Miniex; Cause No. 2034415, pending
in the County Criminal Court at Law No. 6 of Harris County, Texas.
G. On November 10, 2015, Counsel for Appellant appeared for docket call in the
case styled The State of Texas v. Katwalla Clay, Cause No. 2051580, pending
in the County Criminal Court at Law No. 13 of Harris County, Texas.
H. On November 12, 2015, Counsel for Appellant appeared for docket call in the
case styled The State of Texas v. Karmaneisha Jackson, Cause No. 1984477,
pending in the County Criminal Court at Law No. 14 of Harris County, Texas.
I. On November 18, 2015, Counsel for Appellant traveled to Beaumont, Texas to
conference with an incarcerated client in the case styled In the Matter of the
Parole of Dane Clark Torres; TDCJ No. 1211067.
J. On November 19, 2015, Counsel for Appellant appeared for docket call in the
case styled The State of Texas v. Ronnie Ware, Cause No. 1479224, pending in
the 184th District Court of Harris County, Texas.
K. Counsel for Appellant is preparing for a hearing, set November 23, 2015, in an
Art. 11.07 post-conviction writ hearing in the case styled Ex Parte Larry
Mendoza, Cause Nos. 1059050-A and 1059051-A, pending in the 177th
District Court of Harris County, Texas.
IV.
This request is not made for the purpose of delay, but rather this request is
made to allow counsel adequate time to prepare Appellant’s Petition for
Discretionary Review. Appellant moves this Court for an order granting an
extension of forty-five (45) days, or until January 7, 2016, for Appellant to submit
the Petition for Discretionary Review in this case.
WHEREFORE, PREMISES CONSIDERED, Appellant moves this Court
for an order granting an extension of forty-five (45) days, for Appellant to submit
the Petition for Discretionary Review in this case.
Respectfully submitted,
/s/ Steven J. Lieberman
STEVEN J. LIEBERMAN
TBA No. 12334020
JPMorgan Chase Bank Building
712 Main Street, Suite 2400
Houston, Texas 77002
Telephone: (713) 228-8500
Facsimile: (713) 228-0034
Email: [email protected]
COUNSEL FOR APPELLANT,
RAY HAWKINS JR.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Motion
for Extension of Time to File Appellant's Petition For Discretionary Review was
served via e-mail delivery through eFile.TXCourts.gov to Nancy M. Nemer, Special
Prosecutor, Texas Attorney General’s Office, 300 W. 15th Street, Austin, Texas
78711 and Lisa McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas
78711, on this the 19th day of November 2015.
/s/ Steven J. Lieberman
STEVEN J. LIEBERMAN
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned
counsel of record certifies that the Motion for Extension of Time contains 930 words.
/s/ Steven J. Lieberman
STEVEN J. LIEBERMAN
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People v Dawkins (2016 NY Slip Op 05871)
People v Dawkins
2016 NY Slip Op 05871
Decided on August 24, 2016
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 August 24, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
SHERI S. ROMAN
COLLEEN D. DUFFY, JJ.
2013-04917
(Ind. No. 2414/12)
[*1]The People of the State of New York, respondent,
vFreddie L. Dawkins, appellant.
Lynn W. L. Fahey, New York, NY (William Kastin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Christopher Blira-Koessler of counsel; Jacob Wells on the memorandum), for respondent.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Kohm, J.), imposed April 17, 2013, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the portion of his sentence which included the imposition of a fine was excessive (see People v Sanders, 25 NY3d 337; People v Lopez, 6 NY3d 248; cf. People v Cookhorne, 117 AD3d 1484).
ENG, P.J., CHAMBERS, AUSTIN, ROMAN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ESTHER WACHSMAN ex rel. :
NACHSHON WACHSMAN et al., :
:
Plaintiffs, : Civil Action No.: 06-0351 (RMU)
:
v. : Document No.: 21
:
ISLAMIC REPUBLIC OF IRAN et al., :
:
Defendants. :
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GRANTING THE PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT
I. INTRODUCTION
In October 1994, members of the terrorist group Hamas abducted and executed Nachshon
Wachsman, a 19-year-old U.S. citizen residing in Israel. Esther Wachsman, the mother of
Nachshon, individually and as personal representative of his estate, along with her sons Menashe
Yechezkel Wachsman, Yitzchak “Tzachi” Wachsman, Uriel Wachsman, Raphael Wachsman,
Eliahou Wachsman and Chaim “Hayim” Zvi Wachsman, bring suit against the Islamic Republic
of Iran and the Iranian Ministry of Information and Security for the death of Nachshon. The
plaintiffs allege that the defendants are responsible for Nachshon’s death because they provided
training and support to Hamas. Pursuant to the Foreign Sovereign Immunities Act (“FSIA”), 28
U.S.C. §§ 1602 et seq., and the common and statutory law of the District of Columbia and Israel,
the plaintiffs request that the court award them compensatory damages, prejudgment interest and
costs incurred in bringing the action.
Because the defendants failed to appear or respond to the plaintiff’s complaint, the Clerk
of the Court entered default against them. The plaintiffs then filed a motion for default
judgment, and the court ordered them to submit evidence supporting their claims. Based on a
review of this initial proffer of evidence, the court denied without prejudice the plaintiffs’ motion
for default judgment because the plaintiffs failed to provide (1) sworn statements describing the
emotional distress endured as a result of Nachshon’s death; (2) the elements of a wrongful death
claim under the law of Israel; and (3) a clear description of the injuries sustained before
Nachshon’s death for which they seek to recover damages under D.C.’s Survival Act. Mem. Op.
(Feb. 28, 2008) at 18-20. The plaintiffs filed a renewed motion for default judgment on August
1, 2008 with additional support for their claims. The following findings of fact and conclusions
of law recount relevant portions of the court’s previous memorandum opinion and analyze the
plaintiffs’ claims anew in light of the additional support provided in their renewed motion for
default judgment.
II. FINDINGS OF FACT
A. Procedural History
1. The plaintiffs filed suit against the defendants on February 28, 2006. Despite being
properly served with process pursuant to 28 U.S.C. § 1608, the defendants failed to
respond or appear in the case.
2. The Clerk of the Court entered default against the defendants on July 6, 2007.
3. The court must undertake a review of the evidence before it can enter a judgment by
default against the defendants. See 28 U.S.C. § 1608(e) (requiring a claimant to
“establish[] his claim or right to relief by evidence satisfactory to the court”); see also
Int’l Road Fed’n v. Dem. Rep. Congo, 131 F. Supp. 2d 248, 252 n.4 (D.D.C. 2001)
(“accept[ing] as true plaintiffs’ uncontroverted factual allegations, which are supported
2
by the documentary and affidavit evidence” (internal quotations and citations omitted)).
Accordingly, the court ordered the plaintiffs, “in support of their motion for default
judgment, to submit evidence through prior sworn testimony and affidavits.” Minute
Order (Aug. 27, 2007).
4. After the court granted a five-week extension of time, Minute Order (Oct. 19, 2007), the
plaintiffs submitted their proposed findings of fact and conclusions of law with
accompanying evidentiary support on November 30, 2007, Pls.’ Proposed Findings of
Fact and Conclusions of Law (“Pls.’ Proposed Findings”).
5. The court issued a memorandum opinion on February 28, 2008 denying without
prejudice the plaintiffs’ motion for default judgment. Mem. Op. (Feb. 28, 2008). The
court determined that it had jurisdiction to resolve the plaintiffs’ claims; that Israel’s
wrongful death statute applied; and that D.C. law applied for the plaintiffs’ Intentional
Infliction of Emotional Distress (“IIED”) and Survivor Act claims. See generally id.
6. Nevertheless, the court denied without prejudice the plaintiffs’ motion because they
failed to sufficiently develop the record for the court to determine whether they were
entitled to relief. Id. at 18-20.
7. On March 28, 2008, the plaintiffs requested leave to amend their complaint pursuant to
the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 11-181, 1083.
The court denied this motion on July 7, 2008 because the plaintiffs’ complaint does not
rely upon, as the Act requires, either 28 U.S.C. § 1605(a)(7) or § 589 of the Foreign
Operations, Export Financing and Related Programs Appropriation Act, 1997 for a cause
of action. Min. Order (July 7, 2008).
3
8. The plaintiffs filed a renewed motion for default judgment on August 1, 2008,
supplementing the evidentiary record. Pls.’ Am. Proposed Findings of Fact and
Conclusions of Law (“Pls.’ Am. Proposed Findings”).
B. The Abduction and Execution
9. On October 9, 1994, as Nachshon waited on the side of the road for a ride to visit a
friend, four members of Hamas, Salah A-Din Hassan Salem Jadallah, Hassan Natshe,
Abd El Karim Yassin Bader and Jihad Ya’amur, abducted the decedent from a public
street near Lod, Israel. Pls.’ Proposed Findings, Ex. 3(a) (“Shay Aff.”) at 4-5. 1
10. Three of the abductors – Jadallah, Natshe and Bader – were already wanted by Israeli
security forces for prior acts of terrorism. Shay Aff. at 5-6. These three individuals
recruited Ya’amur, who was not previously known to Israeli security, to provide
logistical support, which included securing black hats and yarmulkes to wear as disguises
and renting video equipment, a van with Israeli license plates and a safe house where
Nachshon would be held. Id.; Pls.’ Proposed Findings, Ex. 7(b).
11. The abductors spotted Nachshon on the side of the road and with the disguises were able
to lure him into the van. Shay Aff. at 6. Once in the van, the abductors overpowered,
blindfolded and handcuffed Nachshon and drove him to a safe house in Bir Naballah. Id.
12. Shortly thereafter, the abductors made a videotape on which they displayed Nachshon’s
identification card and M-16 rifle, issued by the Israeli army. Id. at 7. The abductors
also listed their demands – release of members of Hamas, the Palestinian Liberation
1
The facts surrounding the abduction and execution to which Dr. Shaul Shay attests are based on
“the documents of the trials of Jihad Ya’amur and Zacaria Lutfi abd al Magid.” Pls.’ Proposed
Findings of Fact and Conclusions of Law (“Pls.’ Proposed Findings”), Ex. 3(a) (“Shay Aff.”) at 4
n.5. Given his extensive experience in the Military Intelligence Branch of the Israeli Defense
Forces and his numerous books and articles discussing terrorism, the court recognizes Shay as an
expert on Islamic terrorism. Shay Aff. at 1-3; FED. R. EVID. 702-04.
4
Organization, the Islamic Jihad, the Popular Front for the Liberation of Palestine and all
female Palestinian prisoners – and stated that these demands must be met before October
14, 1994 at 9:00 pm or they would execute Nachshon. Id. at 6-7, 10. These demands
indicate collaboration between Hamas, Hizbollah and Iran to achieve common goals.
Shay Aff. at 26.
13. On October 10, 1994, Hamas took responsibility for the abduction and delivered copies
of their demands to the media. Id. at 7 & Exs. 5(c), 4 at 4.
14. Three days later Israeli security forces arrested Ya’amur. Id. at 9. During his
interrogation, Ya’amur provided Israeli security forces with the location of the safe house
where Nachshon was being held. Id.
15. The following day, on October 14, 1994, shortly before the 9:00 pm deadline the
abductors had set for compliance with their demands, an Israeli commando unit raided
the safe house. Id. at 9. A gun battle ensued during which one Israeli soldier and the
three other abductors were killed. Id.
16. When the dust settled, the Israeli commandos found Nachshon dead in a back room with
his hands and legs bound. Id. The abductors had shot him several times at close range as
the Israeli soldiers were raiding the house. Id.
17. Pictures of Nachshon’s body 2 and medical doctors’ affidavits indicate that his abductors
bit him at least four times (on his back and arm) prior to his execution. Id. at 9; Pls.’
Proposed Findings, Exs. 7(k)-(s); Pls.’ Am. Proposed Findings, Exs. 20A ¶ 6 & 21 ¶ 13.
Bullet wounds, or other traumatic injury, appear on his upper abdomen, arm, neck,
2
Roland Roth, an attorney for the Wachshon family, attests to the authenticity of these
photographs based on his work with the main military prosecutor in Israel in charge of the
Ya’amur criminal case. Pls.’ Proposed Findings, Ex. 12. The Israeli government authorized Roth
“to copy every document from all the official files” in that case. Id.
5
shoulder, back and head; the “soot marks” on his abdomen are “characteristic to the
burning dust of a shooting at very close range.” Pls. Proposed Findings, Exs. 6(b), 7(k)-
(s); Pls.’ Am. Proposed Findings, Ex. 21 ¶ 11.
C. The Relationship Between Iran and Hamas
18. Hamas, an Islamic militant terrorist organization, has a close relationship with Iran. Stern
v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 291 (D.D.C. 2003); Campuzano v.
Islamic Republic of Iran, 281 F. Supp. 2d 258, 262 (D.D.C. 2003). Iran’s official policy
is to support terrorism; in furtherance of that mission, Iran provides both economic
assistance and terrorist training to Hamas. Stern, 271 F. Supp. 2d at 292; Campuzano,
281 F. Supp. 2d at 262; Shaw Aff. at 12 (stating that “[s]ince the beginning of 1980, Iran
has appeared on the list of states that support terror, compiled by the U.S. State
Department”). Iran funnels its financial support through its Ministry of Information and
Security and provides professional military and terrorist training through its
Revolutionary Guard. Stern, 271 F. Supp. 2d at 292; Campuzano, 281 F. Supp. 2d at
262.
19. Dr. Shay reports that in 1992, Israel deported approximately 400 Hamas operatives living
in the Gaza Strip. Shay Aff. at 11, 20. Israel deported these operatives to Lebanon where
Iran, through its Revolutionary Guard, provided them with military and terrorist training.
Id. After receiving this training, Hamas began targeting Israelis in suicide bombings and
other organized acts of terrorism. Id. at 18, 21; Stern, 271 F. Supp. 2d at 291.
20. Indeed, upon returning to Gaza at the end of 1993, several of these former deportees were
instrumental in Nachshon’s abduction and execution. Id. at 20. These individuals
included Muhammed Dif, the commander of the Hamas military branch in Gaza, who led
6
the hostage negotiations with Israel, and Nur a din Salah a din Rada Darawza, one of the
commanders of the abduction team. Id. at 8, 10.
21. Another former deportee, Imam Jadallah Jadallah, had two sons who were involved in the
kidnapping. They were Salah Jadallah, who was killed during the raid on the safe house,
and Ahmad Jadallah, who helped prepare the video of Nachshon. Id. at 5, 9-11.
22. The financial support, tactical training and political direction that Iran provided to Hamas
proximately caused the abduction and execution of Nachshon.
D. The Plaintiffs
23. Esther Wachsman is the mother of the decedent, Nachshon. She is, and was at the time
of Nachshon’s abduction and execution, a citizen of the United States. Pls.’ Proposed
Findings, Ex. 1(a). She is also the representative of the decedent’s estate and the mother
of the co-plaintiffs. Id., Ex. 2.
24. These co-plaintiffs – Menashe Yechezkel Wachsman, Yitzchak “Tzachi” Wachsman,
Uriel Wachsman, Raphael Wachsman, Eliahou Wachsman and Chaim “Hayim” Zvi
Wachsman – are, and were at the time of Nachshon’s abduction and execution, brothers
of the decedent and dual citizens of the United States and Israel. Id. at 3, Exs. 1(b)-(g).
25. Nachshon Wachsman was born on April 3, 1975 in Jerusalem, Israel, but was a citizen of
the United States. Id., Ex. 1(h). At 18 years old, Nachshon began a three-year
commitment to the Israeli Defense Forces. Pls.’ Am. Proposed Findings at 4. He was
assigned to the Golani Brigade and was a Corporal at the time of his death. Id.
7
III. CONCLUSIONS OF LAW
A. Legal Standard for a Default Judgment
A court shall not enter a default judgment against a foreign state “unless the claimant
establishes his claim or rights to relief by evidence satisfactory to the court.” 28 U.S.C. §
1608(e); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 232 (D.C. Cir. 2003). This
“satisfactory to the court” standard is identical to the standard for entry of default judgments
against the United States in Federal Rule of Civil Procedure 55(e).3 Hill v. Republic of Iraq, 328
F.3d 680, 684 (D.C. Cir. 2003). In evaluating the plaintiffs’ proof, the court may “accept as true
the plaintiffs’ uncontroverted evidence,” Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97,
100 (D.D.C. 2000), including proof by affidavit, Weinstein v. Islamic Republic of Iran, 184 F.
Supp. 2d 13, 19 (D.D.C. 2002).
B. Summary of the Court’s Prior Holdings
1. Jurisdiction
Applying the Rule 55(e) standard, the court has subject matter jurisdiction over the
plaintiffs’ claims because the plaintiffs demonstrated that (1) the abduction and execution of
Nachshon fall within the FSIA’s definition of “extrajudicial killing” and “hostage taking”; (2)
Iran’s material support to Hamas proximately caused Nachshon’s kidnapping and execution; (3)
this support was provided through the Iran’s Ministry of Information and Security and the
Revolutionary Guard; (4) Iran has been a state sponsor of terrorism since 1984; (5) the actions
giving rise to the claims did not take place in Iran; (6) both the plaintiffs and the victim were
U.S. citizens at the time of the incident; and (7) “similar conduct by United States agents,
officials, or employees within the United States would be actionable.” Mem. Op. (Feb. 28,
3
Rule 55(e) states that no “default [judgment] shall be entered against the United States or an
officer or agency thereof unless the claimant establishes his claim or right to relief by evidence
satisfactory to the court.” FED. R. CIV. P. 55(e).
8
2008) at 7-11. The court further notes that the plaintiffs’ claims were brought within the ten year
statute of limitations provided in 28 U.S.C. § 1605A(b)(1) and that the FSIA establishes personal
jurisdiction over a foreign-state defendant once the plaintiffs demonstrate that an exception to
immunity applies and effect service of process. Id. at 11.
2. Applicable Law
D.C.’s choice of law rules lead the court to apply the law of Israel to the plaintiffs’
wrongful death claim because the decedent was domiciled there at the time of his death and the
injuries leading to his death occurred there. Id. at 15. And, literally construing the D.C.
wrongful death statute limits recovery to injuries resulting in death within the limits of D.C.,
which would run counter to the purpose of the FSIA – to “give American citizens a financial
weapon . . . against outlaw states.” Id. at 14, 15-16 (quoting H.R. Rep. No. 104-383, at 62).
With respect to the IIED claim, which appears to be barred in Israel, and the Survival Act claim,
the court concludes that applying D.C. law is appropriate to guarantee redress. Id. at 16-17.
C. Liability
1. Vicarious Liability
The defendants’ liability rests on their material support of Hamas, whose members
abducted and executed Nachshon. “One may be liable for acts of another under theories of
vicarious liability, such as conspiracy, aiding and abetting and inducement.” Valore v. Islamic
Republic of Iran, 478 F. Supp. 2d 101, 108 (D.D.C. 2007). Because the court concludes that
civil conspiracy provides a basis for liability, the court declines to address the other bases for
liability.
In D.C., the four elements of civil conspiracy are:
(1) an agreement between two or more persons; (2) to participate in an unlawful
act, or in a lawful act in an unlawful manner; and (3) an injury caused by an
9
unlawful overt act performed by one of the parties to the agreement (4) pursuant
to, and in furtherance of, the common scheme.”
Youming Jin v. Ministry of State Sec., 335 F. Supp. 2d 72, 79 (D.D.C. 2004) (quoting Weishapl v.
Sowers, 771 A.3d 1014, 1023 (D.C. 2001)). “[S]ponsorship of terrorist activities inherently
involves a conspiracy to commit terrorist attacks.” Flatow v. Islamic Republic of Iran, 999 F.
Supp. 1, 27 (D.D.C. 1998). The court has already determined that the defendants provided
material support to fund the terrorist activities of Hamas and that this support was the proximate
cause of the decedent’s abduction and execution. See supra Part II.C. This support included
training those involved in the abduction and execution, financing terrorist activities, coordinating
objectives – such as requesting the release of prisoners – and encouraging politically subversive
goals. Id. Through this collaboration the defendants were involved in a conspiracy and are,
therefore, vicariously liable for the death of Nachshon and any resulting injury to his immediate
family members.
2. Intentional Infliction of Emotional Distress
To establish IIED, the plaintiffs must show “(1) extreme and outrageous conduct on the
part of the defendants, which (2) intentionally or recklessly (3) causes the plaintiff severe
emotional distress.” Turner v. District of Columbia, 383 F. Supp. 2d 157, 180 (D.D.C. 2005)
(quoting Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003)). D.C.’s
highest court has not determined whether, in a terrorist attack, presence is required for a victim to
recover on an IIED claim. Therefore, the court will not infer such a requirement. Heiser v.
Islamic Republic of Iran, 466 F. Supp. 2d 229, 305 (D.D.C. 2006).
“[T]he act of engaging in terrorism by means of material support and civil conspiracy is
extreme, and goes beyond all possible bounds of decency. Terrorists seek to cause extreme
suffering in order to achieve political ends; accordingly, they perpetrate acts that are deliberately
10
outrageous.” Greenbaum v. Islamic Republic of Iran, 451 F. Supp. 2d 90, 104 (D.D.C. 2006);
accord Reed v. Islamic Republic of Iran, 439 F. Supp. 2d 53, 67 (D.D.C. 2006); see also
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965) (stating that the acts must be “so
outrageous in character, and so extreme in degree, as to go beyond all possible grounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”).
Furthermore, “[c]ourts have uniformly held that a terrorist attack – by its nature – is directed not
only at the victims but also at the victims’ families.” Salazar v. Islamic Republic of Iran, 370 F.
Supp. 2d 105, 115 n.12 (D.D.C. 2005). Thus, the plaintiffs have established the first two
elements.
The final element is whether the abduction and execution of the decedent caused the
plaintiffs severe emotional distress. Proximate cause is easily established given the
foreseeability that the family members would suffer emotional harm from the abductors’ heinous
acts. See Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27, 50 (D.D.C. 2001)
(concluding that “when an organization takes someone hostage, it is implicitly intending to cause
emotional distress among the members of that hostage’s immediate family”). Having satisfied
the causation prong, the plaintiffs must still prove that they suffered severe emotional distress.
In this effort, the plaintiffs provide declarations as to the emotional trauma they have endured
and also declarations of psychologists that at least two of the plaintiffs have contacted for
treatment. Pls.’ Am. Proposed Findings, Exs. 14-21.
Plaintiff Esther Wachsman, in her declaration, indicates that she saw the videotape made
by the abductors, showing her son “bound hand and foot with a gun aimed at his temple.” Id.,
Ex. 14 (“Esther Decl.”) ¶ 7. This tape included the abductors’ threat that they would kill
Nachshon if their demands were not met. Id. This, plaintiff Esther describes, was “emotionally
11
devastating”; she was “horrified, terrified, [and] dysfunctional.” Esther Decl. ¶ 8. When an
Israeli General came to tell her that Nachshon had, in fact, been killed by the abductors, plaintiff
Esther reports that “our house had ceased to be one of laughter and joy.” Id. ¶ 13. Dr. Gary
Quinn has been a psychiatrist in Jerusalem for 29 years and has been treating plaintiff Esther
since December 2003. Pls.’ Am. Proposed Findings, Ex. 9 (“Quinn Decl.”) at 1-2. Dr. Quinn
declares that plaintiff Esther suffers “extreme emotional distress” as a result of her son’s murder.
Quinn Decl. at 2. Specifically, he has diagnosed her with Post Traumatic Stress Disorder and
depression. Id. Dr. Quinn notes that the recurrence of her son’s story and image in the Israeli
press “aggravate[s] her depression.” Id. He has prescribed plaintiff Esther several medications
to assuage her maladies. Id.
Dr. Avshalom Baumann, a clinical psychologist in private practice in Jerusalem, attests to
working with plaintiff Yitzchak “Tzachi” Wachsman, one of Nachshon’s brothers, since 2001.
Pls.’ Am. Proposed Findings, Ex. 10 (“Baumann Decl.”) ¶¶ 2, 5. Dr. Baumann indicates that
plaintiff Tzachi has had “deep posttraumatic depression” resulting in “suicidal gestures.”
Baumann Decl. ¶ 5. According to Dr. Baumann, plaintiff Tzachi cannot “function in a normal
manner” and requires psychiatric medication. Id. ¶ 6. The “main cause” or “critical trigger” for
these problems, Dr. Baumann concludes, was the “kidnapping and murder of [] his brother.” Id.
¶ 5. Plaintiff Tzachi adds that he was Nachshon’s “closest brother in age and friendship” and
that since Nachshon’s death, he has attempted suicide three times due to the loss of friendship
and depression. Pls.’ Am. Proposed Findings, Ex. 15.
Plaintiff Menashe Wachsman reminisces that he was also very close to Nachshon. Id.,
Ex. 17 ¶ 2. The two were close in age, and plaintiff Menashe had difficulty accepting the fact
that Nachshon was dead. Id. ¶ 3. In fact, although he “insisted on identifying [Nachshon’s]
12
body,” he continued to live in “total denial.” Id. Even after all these years, plaintiff Menashe
states that he “live[s] in constant fear” and “yearn[s] for the peace and quiet and tranquility and
calm that [he] lost in that crazy week 13 years ago.” Id. ¶ 5. He reports that after his brother’s
death, he “felt confused, [] had no self-confidence, a feeling of emptiness, distress, [and] lack of
meaning of life.” Id. ¶ 7. He asserts that it took years to “pull [him]self together and feel
human.” Id. There are “hours of each day,” he declares, that he is “overwhelmed with grief”
and with the thoughts of the week of Nachshon’s abduction. Id.
Plaintiff Hayim Wachsman states in his declaration that his self-confidence and sense of
security have been negatively impacted by the death of Nachshon. Id., Ex. 16 ¶ 2. Specifically,
he states that he could not sleep, eat or function the week of the kidnapping and that since he
learned that Nachshon was killed, his “easy-going spirit, [] joy of life, as well as [his] sense of
optimism[] have disappeared.” Id. ¶¶ 3-4. Now, plaintiff Hayim indicates that he suffers from
depression and nervousness, referring to himself as a “great worrier.” Id. ¶ 5.
Plaintiff Eliahou Wachsman recalls in his declaration that his brother was killed when he
was twelve years old, and that year he “could not concentrate on [his] studies, and [his] grades
were low.” Id., Ex. 19 ¶ 2. In addition, while his brother was being held in the safe house,
plaintiff Eliahou states that he “felt as if everything that was happening was unreal” and after he
was told his brother had been killed, he “was in shock” and felt “the world [is] a great unjust
place.” Id. ¶ 3. To this day, he is paranoid that people are lying to him and “feel[s] very bad to
the depths of [his] soul.” Id. ¶ 5.
Plaintiffs Uriel and Raphael Wachsman are twins and were eight years old when
Nachshon was kidnapped and killed. Esther Decl. ¶ 4. Plaintiff Uriel recalls in his declaration
that although he was young, he “felt great shock, confusion, [and] anxiety.” Pls.’ Am. Proposed
13
Findings, Ex. 18 ¶ 2. He further states that “with all those people in the house, it all made me
feel alone, lonely and unstable.” Id. In addition, he remembers feeling “broken and crying” and
because of that he gets “nervous [and] angry” and has “self-confidence, and trust problems and
insecurities.” Id. The greatest influence has been the depression and withdrawal of his mother
on whom he depended. Id. ¶ 3. This left him “unstable with no one to turn to,” a feeling that
continues “even today.” Id.
Likewise, plaintiff Raphael, who has Down’s Syndrome, was eight years old when
Nachshon was kidnapped and killed. Esther Decl. ¶ 4. When he learned that he was no longer
going to see Nachshon, according to his mother, he suffered “great emotional distress,” which he
manifested when he returned home from Nachshon’s funeral and took a framed picture of
Nachshon off the wall and smashed it on the ground. Id. ¶ 15. He “began to regress as a result
of this tragedy” and, at the age of eighteen, began attending a school for mentally challenged
children where he is “progressing very nicely.” Id. ¶ 4.
Clearly, the plaintiffs have suffered a great deal of distress in the aftermath of
Nachshon’s kidnapping and murder. Plaintiffs Esther and Tzachi have had their lives drastically
altered, requiring therapy and medication. Nikbin v. Islamic Republic of Iran, 517 F. Supp. 2d
416, 429 (D.D.C. 2007) (allowing recovery for IIED for a plaintiff diagnosed with depression
and post traumatic stress disorder). All the plaintiffs were caught in “agonizing limbo” while
Nachshon was held captive; and, to varying degrees, each has been unable to cope with
Nachshon’s death. Levin v. Islamic Republic of Iran, 529 F. Supp. 2d 1, 18 (D.D.C. 2007)
(holding that the wife of a hostage was allowed to recover for IIED). Even children, who only
have vague recollections of their loved ones, are able to recover for IIED. Ben-Rafael v. Islamic
Republic of Iran, 540 F. Supp. 2d 39, 57 (D.D.C. 2008) (allowing recovery for IIED to a three-
14
year-old who lost her father in a terrorist attack). Furthermore, although the extent of Raphael’s
emotional harm may be unclear, the law permits recovery for aggravation of preexisting
conditions. Id. Consequently, the court concludes that all the plaintiffs may recover for their
IIED claims. Heiser, 466 F. Supp. 2d at 298 (reasoning that a terrorist victim’s brother is
entitled to recover for IIED because of the pain and suffering caused by the decedent being
“taken away . . . in such a tragic and horrific manner”).
3. Survival Act
The D.C. Survival Act allows the decedent’s estate to pursue any cause of action that
accrued prior to the decedent’s death. D.C. CODE § 12-101. Prior to the decedent’s death, the
plaintiffs contend that he could have sued for assault, battery, IIED and false arrest and
imprisonment. Pls.’ Am. Proposed Findings at 31-34. As discussed in the previous section,
IIED requires a showing of “(1) extreme and outrageous conduct on the part of the defendants,
which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Turner,
383 F. Supp. 2d at 180 (quoting Futrell, 816 A.2d at 808). For the same reasons provided in the
previous section, the defendants’ conduct satisfies the first two elements. Additionally, the court
has little difficulty concluding that being taken hostage for several days would cause severe
emotional distress. See Massie v. Democratic People’s Republic of Korea, 592 F. Supp. 2d 57,
76 (D.D.C. 2008).
Assault is “an intentional and unlawful attempt or threat, either by word or by acts to do
physical harm.” Haim v. Islamic Republic of Iran, 425 F. Supp. 2d 56, 70 (D.D.C. 2006)
(quoting District of Columbia v. Chinn, 839 A.2d 701, 705 (D.C. 2004)). And battery is “an
intentional unpermitted, harmful or offensive contact with [the victim’s] person or something
attached to it.” Id. (quoting Marshall v. District of Columbia, 391 A.2d 1374, 1380 (D.C.
15
1978)). Plainly, the uncontroverted facts in this case – that the abductors beat and threatened to
execute Nachshon – qualify as assault and battery. Shay Aff. at 6, 9. Furthermore, the
kidnapping and chaining of Nachshon satisfy the elements of false arrest and imprisonment,
which is defined as the “unlawful detention of a person . . . for any length of time whereby he is
deprived of his personal liberty . . . by actual force, or by fear of force, or even by words.”
Levin, 529 F. Supp. 2d at 16 (quoting Dent v. May Dep’t Stores Co., 459 A.2d 1042, 1044 (D.C.
1982)).
4. Wrongful Death
Israel’s wrongful death statute provides:
Where the death of any person is caused by any civil wrong and such person
would, if death had not ensued, have been entitled at the time of his death under
the provisions of this Ordinance to compensation in respect of bodily injury
caused to him by such civil wrong, the spouse, parent and child of such deceased
person will be entitled to compensation from the person responsible for such civil
wrong.
Pls.’ Am. Proposed Findings, Ex. 23 (“Israel Tort Ordinance”) § 78. A wrongful death claim
may be lodged by “the executor, administrator or heirs of the deceased person for the benefit of
the spouse, parent and child.” Israel Tort Ordinance § 79. The compensatory aim of the statute
is to account for the “pecuniary loss suffered by [the plaintiffs] owing to the death of the
deceased person; and compensation will be awarded in respect of the pecuniary loss which has
been or will be actually suffered by them, including the burial expenses of the deceased person.”
Id. § 80.
Plaintiff Esther, the personal representative of the decedent’s estate, Pls.’ Proposed
Findings, Ex. 2, brings this claim seeking recovery for her benefit and the benefit of her six
remaining sons, see generally Compl. In light of the record in this case, the plaintiffs have made
out a valid claim of wrongful death under Israeli law for which the defendants are liable. Cf.
16
Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 38-40 (D.D.C. 2007) (concluding that
“[b]ased upon the evidence presented to the special masters and the Court, each of the deceased
servicemen has made out a valid claim for wrongful death under North Carolina law”).
IV. DAMAGES
A. Compensatory Damages
1. Legal Standard for Compensatory Damages
To recover damages, “a FSIA default winner must prove damages ‘in the same manner
and to the same extent’ as any other default winner.” Hill, 328 F.3d at 684-85 (citing Alameda v.
Sec’y of Health, Educ. & Welfare, 622 F.2d 1044, 1048 (1st Cir. 1980)); 28 U.S.C. § 1606
(stating that a “foreign state shall be liable in the same manner and to the same extent as a private
individual under like circumstances”). The plaintiffs must prove future damages to a “reasonable
certainty,” in other words, a preponderance of the evidence, and must prove the amount of
damages by a reasonable estimate. Id. To be awarded damages for past economic losses, the
plaintiffs need only “reasonably prove” the amount of damages they request and the court should
consider any “special problems of proof arising from the defendant’s absence.” Id. Using this
framework, the court considers whether the following types of compensatory damages are
available: severe emotional distress, pain and suffering and loss of prospective income.
2. Severe Emotional Distress
Courts in this district have reached a degree of consistency in awarding family members
of terrorist victims damages for emotional distress. Ben-Rafael, 540 F. Supp. 2d at 59 (awarding
damages for emotional distress: $10 million to decedent’s widow, $10 million to his father, $5
million to his daughter and $2.5 million to each of decedent’s two sisters); Bodoff v. Islamic
17
Republic of Iran, 424 F. Supp. 2d 74, 86 (D.D.C. 2006) (noting that damages for emotional
distress are typically $5 million to each parent and $2.5 million to each sibling); Heiser, 466 F.
Supp. 2d at 271-356 (awarding parents and children of a terrorist attack victim $5 million for
emotional distress and awarding siblings $2.5 million); Peterson, 515 F. Supp. 2d at 52 (same);
Bennett v. Islamic Replublic of Iran, 507 F. Supp. 2d 117, 130 (D.D.C. 2007) (same).
Accordingly, the court awards plaintiff Esther $5 million and each of Nachshon’s brothers $2.5
million for the emotional distress caused by Nachshon’s death.
3. Survival Act
This Circuit has held that “it is proper for the estate of the deceased to recover an amount
based on probable net future earnings, discounted to present worth.” Runyon v. District of
Columbia, 463 F.2d 1319, 1321 (D.C. Cir. 1972). Thus, the recovery provided under the
Wrongful Death statute, discussed infra, is equally recoverable under the Survivor Act. Id.
Additional recovery under the Survivor Act is available for the decedent’s pain and suffering.
Dickens v. District of Columbia, 502 F. Supp. 2d 90, 93 (D.D.C. 2007) (citing Graves v. United
States, 517 F. Supp. 95, 99 (D.D.C. 1981)). The amount recoverable depends on the
circumstances of the case, but the award typically increases the longer a victim experiences pain
and suffering before death. See, e.g., Haim, 425 F. Supp. 2d at 71-72 (observing that “[w]hen
the period of the victim’s pain was longer than a few hours, the awards are increased”). In
fashioning the appropriate amount for the circumstances of this case, the court analyzes “the
length of time that the victim endured physical suffering [and] the victim’s mental anguish from
the knowledge that death was imminent.” Id. at 72. Two analogous cases also aid the court in
calculating an appropriate award.
18
In Peterson, a case arising out of the bombing of U.S. Marine barracks in Lebanon, the
court awarded $7 million and $7.5 million in pain and suffering damages for victims who were
alive and conscious for seven days and nearly eight days after the bombing, respectively.
Peterson, 515 F. Supp. 2d at 53. Additionally, the court awarded $1 million for a victim who
was alive six hours after the attack and $500,000 for a victim alive for “a short but unknown
amount of time” after the attack. Id. at 53-54.
In Stethem, terrorists hijacked an airplane, executed one U.S. citizen after repeatedly
beating him and held six other U.S. citizens hostage for sixteen days. Stethem v. Islamic
Republic of Iran, 201 F. Supp. 2d 78, 80 (D.D.C. 2002). The court awarded $500,000 to the
estate of the executed victim for the beatings and an additional $1 million for “the several
minutes of anguish and pain [the victim] endured as and immediately after being shot by [a
terrorist] and thrown from the airplane.” Id. at 89. The court determined that, of the six other
hostages who survived the ordeal, two were entitled to $1.5 million and four were entitled to $1
million for their pain and suffering. Id. at 92.
In this case, Nachshon was held captive, shackled, bitten and likely blindfolded for six
days under constant threat and fear of death. See supra Part II.B. Furthermore, he was most
likely aware of the raiding Israeli forces which prompted the abductors to conduct a brutal and
hasty execution. See Shay Aff. at 9; Pls.’ Proposed Findings, Ex. 8 at 30 (noting that the
abductors “announced [Nachshon’s death] to the soldiers of the force that broke into the room”).
The plaintiffs request that the court award the decedent’s estate $2 million for the pain and
suffering he endured before his death. The court agrees that this is the appropriate amount
where, as here, the plaintiff suffered mental and physical harm for six days as a hostage and
19
surely knew moments before his death that he was going to be executed. See Stethem, 201 F.
Supp. 2d at 89, 92.
4. Wrongful Death
Under the law of Israel, “[t]he tortfeasor must compensate the dependants of the deceased
for the loss of the economic support to which they had an expectation, had the deceased
remained alive.” Pls.’ Proposed Findings, Ex. 13 (“Ettinger Decision”) at 18. To do this the
court must determine the decedent’s earning capacity and calculate the amount of support his
dependents would have received. Ettinger Decision at 19. In calculating earning capacity,
courts in Israel subtract “the expenses that the injured part[y] would have incurred had he
remained alive during the ‘lost years.’” Id. at 25.
The plaintiffs submitted a report from Dov Weinstein, a certified CPA and partner of Dov
Weinstein & Co. who has extensive experience in economic evaluation. Pls.’ Proposed
Findings, Ex. 11 (“Weinstein Report”) at 1. Based on Nachshon’s interests and reported goals,
Weinstein reasonably assumed that Nachshon would study medicine and become a doctor.
Weinstein Report at 5; Esther Decl. ¶ 5 (stating that “Nachshon excelled in high school in
subjects of math and biology [and] was a certified medic by the Israel Red Magen David
Emergency Service [where] [h]e volunteered [] faithfully for years with another friend. They
both intended to become medical doctors; indeed, his friend fulfilled that intention and is a
doctor today”). In making his calculations, he reviewed “[i]nformation concerning educational
and employment history for medical doctors in Israel, including income and benefits, as well as
personal data (i.e., date of birth, level of education) necessary to form reasonable assumptions
regarding Nachshon Wachsman’s earning growth rate, work life expectancy, and retirement
plan” and “Israeli Central Bureau of Statistics statistical reports concerning employment studies,
20
life expectancies, and retirement studies.” Weinstein Report at 5. Weinstein estimates that
Nachshon’s total work life expectancy would be 35.5 years as a medical doctor and calculates
the present value of wages Nachshon would have earned during that period based on documents
from the Israeli Central Bureau of Statistics and the Israel Medical Association. Weinstein
Report at 5-9. As a result, Weinstein determined, and the court agrees, that Nachshon’s total
economic loss is $3,040,289. Id. at 9; Ben-Rafael, 540 F. Supp. 2d at 59 (awarding $3,731,839
to decedent’s widow for lost income based on the prediction that he would have become an
attorney at a large law firm); Bennett, 507 F. Supp. 2d at 128 (relying on expert testimony in
determining that the financial loss to the decedent’s estate was $404,548); Heiser, 466 F. Supp.
2d at 273 (awarding $1,598,688 for net economic loss based on testimony from an economic
consultant).
B. Prejudgment Interest
The plaintiffs request that the court award prejudgment interest for their IIED claims.
“Prejudgment interest is an element of complete compensation,” West Virginia v. United States,
479 U.S. 305, 310 (1987), because it “compensates for the time value of money,” Oldham v.
Korean Air Lines Co., 127 F.3d 43, 54 (D.C. Cir. 1997) (quoting Motion Picture Ass’n of Am.,
969 F.2d at 1157). “It is within this court’s discretion to award plaintiffs prejudgment interest
from the date of the [incident] . . . until the date of final judgment.” Pugh v. Socialist People’s
Libyan Arab Jamahiriya, 530 F. Supp. 2d 216, 263 (D.D.C. 2008). Several “courts in this
Circuit have awarded prejudgment interest in cases where plaintiffs were delayed in recovering
compensation for their injuries-including, specifically, where such injuries were the result of
targeted attacks perpetrated by foreign defendants.” See, e.g., id.; Ben-Rafael, 540 F. Supp. 2d at
59. The plaintiff requests, and the court agrees, that a simple interest basis at a six percent per
21
annum is reasonable from the date of Nachshon’s death, October 14, 1994, to the judgment date,
March 27, 2009 – 14.45 years. Ben-Rafael, 540 F. Supp. 2d at 59. 4
V. CONCLUSION
For the foregoing reasons, the court finds and concludes that the plaintiffs have
established their right to relief and entry of default judgment against the defendants. An Order
and Judgment consistent with this Findings of Facts and Conclusions of Law is separately and
contemporaneously issued this 27th day of March, 2009.
RICARDO M. URBINA
United States District Judge
4
The plaintiffs voluntarily withdraw the remaining counts in their complaint. Pls.’ Am. Proposed
Findings at 42.
22
| {
"pile_set_name": "FreeLaw"
} |
488 F.Supp. 891 (1980)
Melanie ABEL, a minor, by her father and natural guardian, Raymond J. Abel, and Raymond J. Abel, Individually, Plaintiffs,
v.
J. C. PENNEY CO., INC., a Delaware Corporation, Defendant.
Melanie ABEL, a minor, by her father and natural guardian, Raymond J. Abel, and Raymond J. Abel, Individually, Plaintiffs,
v.
SIMPLICITY PATTERN CO., INC., Defendant.
Melanie ABEL, a minor, by her father and natural guardian, Raymond J. Abel, and Raymond J. Abel, Individually,
v.
M. LOWENSTEIN & SONS, INC., a corporation, Defendant.
Nos. 4-75-civ-175, 4-76-civ-204 and 4-76-civ-454.
United States District Court, D. Minnesota, Fourth Division.
May 27, 1980.
*892 Thomas J. Lyons, St. Paul, Minn., for plaintiffs.
John J. Killen, Jr., Johnson, Fredin, Killen, Thibodeau & Seiler, Duluth, Minn., for defendant J. C. Penney & Company.
*893 Robert T. White, Murnane, Conlin, White, Brandt & Hoffman, St. Paul, Minn., for defendant Simplicity Pattern Company, Inc.
Richard D. Allen, Minneapolis, Minn., for defendant M. Lowenstein & Sons, Inc.
RENNER, District Judge.
The above-captioned case comes before the Court pursuant to the following pretrial motions: (1) of defendant Simplicity Pattern Company, Inc., (hereinafter "Simplicity") to determine that Fed.R.Evid. 407 prevents any testimony regarding changes that it made in its warnings or labelings after January 4, 1975; (2) of Simplicity to determine that the Flammable Fabrics Act does not apply to it and for striking said cause of action from the complaint; and (3) of plaintiffs for submission of their claim for punitive damages to the jury.
Based upon the briefs and arguments of counsel and the entire record herein, the Court issues the following Memorandum Order.
I.
This is a products liability case in which plaintiffs seek both compensatory and punitive damages for injuries sustained when plaintiff Melanie Abel's pajama nightgown caught fire in January of 1975. The pajamas were a gift from her grandmother who had obtained the material and a pattern and had sewn the pajamas herself. Plaintiffs allege liability of J. C. Penney Company, the retailer of the cloth used to make the pajamas, M. Lowenstein & Sons, the manufacturer of the cloth, and Simplicity, the manufacturer of the pattern, under theories of strict liability in tort, negligence and breach of warranty.
Plaintiffs' case against Simplicity is premised on Simplicity's suggestion that cotton flannelette was an appropriate fabric to use with its pattern and its failure to warn concerning the highly flammable nature of the fabric.
II.
Defendant Simplicity Pattern Company, Inc., moves the Court, in essence, for an order striking plaintiffs' strict liability claim as to it on grounds that a pattern manufacturer does not come within the purview of the requirements of the Flammable Fabrics Act, 15 U.S.C. §§ 1191 et seq., or the common law doctrine of strict liability. Restatement of Torts 2nd, § 402A; McCormack v. Hankscraft Co., Inc., 278 Minn. 322, 154 N.W.2d 488 (1967).
Regulations promulgated by the Consumer Product Safety Commission (hereinafter "CPSC") under the Act require that warnings shall be given where a product does not meet Standard for the Flammability of Sleepwear, DOC FF 3-71. Title 16 C.F.R. § 1615.31(b) reads, in pertinent part:
"(d) Where any fabric or related material intended or promoted for use in children's sleepwear is sold or intended for sale to the ultimate consumer for the purpose of conversion into children's sleepwear, each bolt, roll, or other unit shall be labeled with the information required by this section. * * *
"(5) Where items required to be labeled in accordance with paragraphs (b)(2), (3), and (4) of this section are marketed at retail in packages, and the required label is not readily visible to prospective purchasers, the packages must also be prominently, conspicuously, and legibly labeled with the required information.
"(6) Samples, swatches, or specimens used to promote or effect the sale of items subject to the Standard shall be labeled in accordance with this section with the information required by this section, except that such information may appear on accompanying promotional materials attached to fabric samples, swatches, or specimens used to promote the same of fabrics to garment manufacturers. * * *"
Simplicity argues that the standards do not apply to pattern manufacturers who simply suggest possible fabrics for use with a pattern even though among those listed is *894 one subject to the Flammable Fabrics Act standards. Plaintiff, on the other hand, contends that the pattern is a "related material intended or promoted for use in children's sleepwear" or, alternatively, "samples, swatches, or specimens used to promote or effect the sale of items subject to the Standard".
In deciding this issue, the Court must give great deference to the interpretation of the statute and regulation given by the administrative agency charged with its enforcement. United States v. Rutherford, 442 U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979); Minnehaha Creek Watershed District v. Hoffman, 597 F.2d 617 (8th Cir. 1979). The May 18, 1978 opinion of W. Harry Garber, Assistant Associate Executive Director for Legal and Technical Review or the Directorate of Compliance and Enforcement of the CPSC, that "neither the Flammable Fabrics Act nor the Standard for the Flammability of Children's Sleepwear Sizes 0 through 6X apply to patterns intended for use by a home sewer for making sleepwear items" is, therefore, persuasive authority for Simplicity's position.
Furthermore, while deference is constrained by the Court's obligation to honor the clear meaning of a statute, as revealed by its language, purpose or history, Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the statutes and regulations at issue are plain and unambiguous on their face, and the court need not delve further into their legislative history to discover their meaning. Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).
In construing the regulation, the Court is not limited to the dictionary definition of the terms involved, for the Act and regulations themselves provide some guidance. For example, 15 U.S.C. § 1191(g) defines "related material" as "paper, plastic, rubber, synthetic film, or synthetic foam which is intended for use or which may reasonably be expected to be used in any product as defined in [subsection] (h)." (Emphasis added.) Subsection (h) defines "product" as "any article of wearing apparel or interior furnishing." "Item" is "any product of children's sleepwear, or any fabric or related material intended or promoted for use in children's sleepwear." 16 C.F.R. §§ 1615.1(c) and 1615.31(a)(3).
Plaintiff does not contend that Simplicity's pattern is an article of wearing apparel or an interior furnishing, or that the pattern itself was meant to be physically embodied in the final product.
However, in order to be bound by the sleepwear standards of the Flammable Fabrics Act the manufacturer or seller of a product must have produced its product for use "in" sleepwear. Thus, a plain reading of the statutes and regulations indicates that neither Congress nor the CPSC intended to require pattern manufacturers to warn of the dangers of using cotton flannelette.
Simplicity cannot, therefore, be held liable on the basis of violation of the Standard for Flammability of Children's Sleepwear, DOC FF 3-71.
Simplicity does not contend that this conclusion bars imposition of strict liability as a matter of law, and it is clear that application of the common law doctrine of strict liability is not inconsistent with any provisions of the Flammable Fabrics Act. See 15 U.S.C. § 1203; Raymond v. Riegel Textile Corp., 484 F.2d 1025, 1027 (1st Cir. 1973). It does contend, however, that the doctrine is inapplicable where, as here, the defect complained of is the mere failure of a pattern manufacturer to warn of a defect in a fabric suggested for use along with others. The Court agrees.
Section 402A of the Restatement of Torts 2nd states:
"(1) One who sells any product in a defective condition unreasonably dangerous to the users or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
a. The seller is engaged in the business of selling such a product, and
*895 b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
"(2) The rule stated in sub-section (1) applies although
a. The seller has exercised all possible care in the preparation and sale of his product, and
b. The user or consumer has not bought the product from or entered into any contractual relation with the seller."
Strict liability for product-related injuries is imposed by the law upon manufacturers and sellers of the injury-causing products because of the public policy that consumers should be protected from the inevitable risks of bodily harm created by mass production and complex marketing conditions. Eliminating the necessity of proving negligence or privity of contract
"imposes the cost of injury resulting from a defective product upon the maker, who can both most effectively reduce or eliminate the hazard to life and health, and absorb and pass on such costs, instead of upon the consumer, who possesses neither the skill nor the means necessary to protect himself adequately from either the risk of injury or its disastrous consequences." McCormack v. Hankscraft Co., supra, 154 N.W.2d at 500.
Under Minnesota law, a manufacturer has a duty to warn users of its products of all dangers of which it has actual or constructive knowledge associated with those products. Failure to warn renders the manufacturer strictly liable in tort. Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 158 (8th Cir. 1975); Frey v. Montgomery Ward & Co., Inc., Minn., 258 N.W.2d 782, 786 (1977); Magnuson v. Rupp Mfg., Inc., 285 Minn. 32, 38, 171 N.W.2d 201, 205 (1969). However, there are no cases holding a manufacturer to be liable for injury caused by a defective product manufactured by someone else and in which its own product is not embodied. And for good reason.
It is one thing to hold someone liable for placing an injury-producing defective product on the market. It is quite another thing to hold someone liable for suggesting that another's product may be one of several suitable for use in conjunction with one's own product. As in the case at hand, the manufacturer and retailer can absorb and pass on the cost of the injuries which their products cause. They are also in a much better position than the pattern manufacturer to reduce or eliminate the hazard created.
Section 402A recognizes this. It does not impose liability or "one who sells or suggests the use of", but merely "one who sells". Congress and the CPSC also recognized this by placing the duty to warn of untreated flannelette's flammability on the manufacturer and seller of the fabric itself, not upon a pattern manufacturer. Thus, Simplicity's failure to warn of the fabric defect does not constitute a defect in the pattern it sold.
Plainly, if plaintiffs are to be compensated for their injuries by Simplicity, they must convince the jury that Simplicity was negligent, i. e., they must show that, because of its involvement in the promotion of fabric, and of flannelette in particular, Simplicity knew of the danger, had a duty to warn the purchasers of its patterns of that danger, failed to so warn, and thereby contributed to plaintiffs' injuries. The law does not allow a shortcut in this instance. There is no basis for imposing liability on defendant Simplicity Pattern under the Flammable Fabrics Act or the doctrine of strict liability in tort.
III.
In light of this holding, it becomes apparent that Simplicity's motion to exclude evidence of subsequent remedial measures is also well grounded.
Plaintiffs seek to submit evidence that subsequent to the accident here at issue, Simplicity placed a warning concerning the dangers of cotton flannelette on its patterns. It seeks admission of this evidence *896 only to prove that the pattern was defective. There is no issue as to feasibility of precautionary measures, ownership or control.
Rule 407, Fed.R.Evid., states:
"When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."
While it is true, as plaintiffs assert, that the doctrine of strict liability does not include elements of negligence or other culpable conduct and that Rule 407 is therefore inapplicable in strict liability cases, see Farner v. Paccar, Inc., 562 F.2d 518 (8th Cir. 1977); Robbins v. Farmers Union Grain Terminal Association, 552 F.2d 788 (8th Cir. 1977), plaintiffs' case against Simplicity Pattern is no longer grounded on strict liability in tort but rather on negligence alone. Thus, the alleged defect in the pattern is no longer relevant. Since plaintiffs' only other possible motive for admission of the evidence would be to prove negligence, Rule 407 comes into play and forces the Court to exclude it.
IV.
Plaintiffs move the court for submission of the issue of punitive damages to the jury, asserting that they will show at trial that defendants J. C. Penney and M. Lowenstein & Sons were fully cognizant by 1966 of the continuous problem with cotton flannelette fires, particularly those involving children. Plaintiffs claim that by 1968 M. Lowenstein & Sons was aware of commercially feasible flame retardant processes on the market and, in fact, treated much of its flannelette with them. They claim all defendants were aware of the high flammability of untreated flannelette, pointing out that by 1972 defendant M. Lowenstein & Sons had been sued for apparel fires several times.
Under Minnesota law, punitive damages are available when the plaintiff has shown that the defendant acted willfully, wantonly or in reckless disregard of the rights of others. They are an exception to the rule of compensatory damages and require more than a showing of mere wrongful conduct. See Benson Cooperative Creamery Association v. First District Association, 276 Minn. 520, 151 N.W.2d 422, 427-8 (1967); Anderson v. International Harvester Company of America, 104 Minn. 49, 116 N.W. 101, 102 (1908); Curtis v. Peerless Ins. Co., 299 F.Supp. 429, 433 (D.Minn.1969); Dixon v. Northwestern National Bank of Minneapolis, 276 F.Supp. 96, 104 (D.Minn.1967).
If the requisite showing can be made, however, a jury may in its discretion award punitive damages in any tort case. Anderson, supra, 116 N.W. at 102. The Minnesota Supreme Court has specifically held that punitive damages may properly be awarded in a strict liability action. Gryc v. Dayton-Hudson Corp., slip op. at 9 (Minn. May 23, 1980). The Court, therefore, rejects any argument that Roginsky v. Richardson-Merrill, Inc., 378 F.2d 832 (2nd Cir. 1967), precludes punitive damages as a matter of law in all product liability cases but notes the improbability of success in meeting the burden of proof.
At this time, however, the Court has not heard the evidence and is, of course, unaware of inferences to be logically drawn from it. Therefore, the motion will be held in abeyance pending its renewal by plaintiffs after they have established a prima facie case upon which they can premise their claim for punitive damages. If at that time the proper proof has been presented, the Court will allow the plaintiffs to submit their damage case. In the meantime, the jury will not be informed of plaintiffs' claim for punitive damages.
Upon the foregoing,
*897 IT IS ORDERED that:
(1) Plaintiffs' claim against Simplicity Pattern Company based upon violation of the Flammable Fabrics Act, 15 U.S.C. §§ 1191 et seq., and upon the theory of strict liability in tort for failure to warn are stricken from the complaint.
(2) Plaintiffs may not submit evidence to the jury regarding changes that Simplicity Pattern Company made in its warnings or labelings after January 4, 1975.
(3) Plaintiffs' motion for submission of their claim for punitive damages to the jury is to be held in abeyance pending receipt of evidence concerning their substantive claims and renewal of the motion at such time as plaintiffs' feel they have established a prima facie case for such damages. Until such time, no mention shall be made to the jury of the claim for punitive damages.
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366 P.2d 141 (1961)
69 N.M. 291
Dorothy Susan KERLEY, Plaintiff-Appellee and Cross-Appellant,
v.
James Donald KERLEY, Defendant-Appellant and Cross-Appellee.
No. 6866.
Supreme Court of New Mexico.
November 7, 1961.
Rowley Davis, Hammond & Murphy, Clovis, for appellant.
Bigbee & Stephenson, Charles D. Olmsted, Santa Fe, for appellee.
MOISE, Justice.
We are confronted with an appeal and cross-appeal growing out of an order entered by the lower court after hearing on a petition by defendant-appellant and cross-appellee (hereinafter referred to as defendant) for modification of the visitation rights accorded him in the divorce decree entered in 1957, and on a petition of plaintiff-appellee and cross-appellant (hereinafter referred to as plaintiff) seeking elimination of the rights of visitation granted at the time of the divorce.
Plaintiff and defendant were married in August, 1951, and separated in January, 1957. James Donald Kerley, Jr., around whom the controversy here revolves, was born November 19, 1954. A divorce decree was entered August 8, 1957, and among other things recites that the parties announced "that they had reached an agreement with respect to the custody of James Donald Kerley, Jr., and with respect to the division of their community property; and the court having heretofore heard the evidence of the parties hereto, having considered the same, and being now fully informed in the premises finds:", followed by numerous findings of which only No. 3 and No. 7 are material to the instant case. They read:
"3. That there was born to plaintiff one child, now living, James Donald Kerley, Jr., on November 19, 1954."
"7. That plaintiff is fit and fully qualified to have and be awarded the custody of the minor child James Donald Kerley, Jr., subject to rights of visitation on the part of defendant as hereinafter prescribed."
The court made the following order with respect to custody:
"That plaintiff have and she is hereby awarded the custody of the minor child James Donald Kerley, Jr., provided, however, that defendant shall have and is hereby granted the right to *142 visit said child and have said child visit with him, free of unreasonable interference and impediments, in the city or town where plaintiff and said child may then be residing, upon the giving of reasonable advance notice, at such times and under such circumstances as may be reasonable and as will not interfere with the welfare of said child and his proper bringing up; provided further that after said child shall have attained the age of 5 years, defendant shall have and is hereby granted, in addition to the right of visitation hereinabove provided for, the right to have said child visit with him annually at the home of defendant or elsewhere, at such time and for such reasonable period as will not interfere with the education and proper bringing up of said child, upon the giving of reasonable advance notice."
Since the divorce both plaintiff and defendant have remarried, and defendant and his present wife have an adopted child.
In April, 1960, defendant petitioned the court to permit him to have James Donald Kerley, Jr., in his home in Clovis, New Mexico, each year from June 1 to August 20. Plaintiff filed her response thereto resisting the same, and at the same time petitioned for modification of the divorce decree to eliminate all visitation privileges of defendant. Defendant filed his response to plaintiff's petition.
After hearing, the court entered its order in which it held that all matters determined in the August 8, 1957, decree were res judicata, except questions concerning visitation rights, and with reference thereto continued defendant's rights unchanged from the way they were originally decreed.
Defendant appeals from the res judicata holding and plaintiff cross appeals from the decision that the visitation rights of defendant should continue unchanged.
Defendant in his appeal complains of the court's ruling that finding No. 3 hereinabove quoted is res judicata of the issue covered thereby.
Defendant is in the difficult position insofar as this appeal is concerned of having asserted in his answer to plaintiff's petition for modification of the decree that the issue covered by the quoted finding was res judicata and not open to question in this proceeding. With this position the trial court agreed. The difficulty arose because in considering the finding the court read it differently than did the defendant.
Under the circumstances, we do not perceive how defendant, having pleaded res judicata, can now be heard to complain that the finding was ambiguous. Fischer v. Rakagis, 59 N.M. 463, 286 P.2d 312. Neither are we convinced that the rules of res judicata as heretofore announced by this court in numerous cases including Jahren v. Butler, 20 N.M. 119, 147 P. 280; Costilla Estates Development Company v. Mascarenas, 33 N.M. 356, 267 P. 74; and Town of Atrisco v. Monohan, 56 N.M. 70, 240 P.2d 216, should not be here applied.
We do not overlook the cases cited by defendant from other jurisdictions which held generally that the strict rules of res judicata will not be applied where by doing so injustice would result. Whether in a proper case we might be disposed to adopt such a rule we need not here decide because we do not perceive this to be a case where the consequences of the general rule espoused in the first instance by defendant are of the nature asserted by him. It follows from what has been said that we find no merit in defendant's appeal.
The cross-appeal of plaintiff is equally without merit. Although stated as two points there is presented only the issue of whether the trial court erred in failing to eliminate defendant's rights of visitation in the light of the facts and circumstances as found by it.
We need not determine the law as it might have been if the parties had not by stipulation agreed with respect to the custody of the child which agreement was incorporated into the final decree, plaintiff thereby acquiescing in rights of visitation in defendant. It would be a most incongruous *143 result to conclude that defendant should now be denied the rights of visitation for reasons which were existent prior to entry of the decree and without the establishing of any change of circumstances so requiring.
The language of this court in reviewing an order modifying alimony payments and determining that no change in circumstances had been shown, in Lord v. Lord, 37 N.M. 24, 16 P.2d 933, is equally applicable here where visitation rights are involved. See also Tuttle v. Tuttle, 66 N.M. 134, 343 P.2d 838.
In addition, we consider Edington v. Edington, 50 N.M. 349, 176 P.2d 915, 917, to be determinative of this cross-appeal. We there said:
"That the district court has a very wide discretion in the matter of awarding the custody of children has been so often held that it will suffice on the point to cite only one recent opinion of this court, Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125. It should be borne in mind that, upon a proceeding to modify a provision for the custody of a minor child, the burden is on the moving party to satisfy the court that circumstances have so changed as to justify the modification. Every presumption is in favor of the reasonableness of the original decree, and, in the absence of a showing that compels the conclusion that the decree should be modified, an appellate court cannot interfere with the trial court's refusal to modify it.
"The only question before us is whether there has been any change of circumstances since the original decree was entered, which requires its modification. The record shows no material change bearing upon the necessity or the justice of modifying the provisions for the custody of the child and the court was not in error in refusing to do so. See 19 C.J. 350, 351; 27 C.J.S., Divorce, § 317; White v. White, 77 N.H. 26, 86 A. 353."
Plaintiff here makes no claim of changed circumstances and under the rule of Edington v. Edington, supra, the trial court's order was free from error.
It follows from what has been said that the order appealed from should be affirmed. It is so ordered.
COMPTON, C.J., and CHAVEZ, J., concur.
CARMODY and NOBLE, JJ., not participating.
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127 F.3d 42
U.S.v.Manuel Carlos Soto-Herrera, Carlos Cantillo, William Soto
NO. 95-7035
United States Court of Appeals,Eleventh Circuit.
Sept 26, 1997
S.D.Ala., 121 F.3d 721
1
DENIALS OF REHEARING EN BANC.
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995 F.2d 226
Day (Alonzo)v.Smith (Vernon)
NO. 92-3023
United States Court of Appeals,Eighth Circuit.
Oct 06, 1992
1
Appeal From: E.D.Mo.
2
AFFIRMED.
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537 So.2d 973 (1989)
James A. MORGAN, Appellant,
v.
STATE of Florida, Appellee.
No. 67334.
Supreme Court of Florida.
January 5, 1989.
Robert G. Udell, Stuart, for appellant.
Robert A. Butterworth, Atty. Gen., Joan Fowler Rossin and Eddie J. Bell, Asst. Attys. Gen., West Palm Beach, for appellee.
PER CURIAM.
James A. Morgan appeals his conviction on retrial for first-degree murder and his sentence of death. We have jurisdiction, *974 article V, section 3(b)(1), Florida Constitution, and reverse the conviction and sentence and remand for a new trial. We conclude the trial court erroneously excluded medical expert opinion testimony that was based on a diagnosis which used information obtained from Morgan by hypnosis. We find the recent United States Supreme Court decision in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), mandates this result.
Morgan was sixteen years old at the time of the incident, of marginal intelligence, unable to read or write, had sniffed gasoline regularly since he was four, and was described as an alcoholic. He brutally murdered an elderly woman while at her home to mow her yard, after entering the house to telephone his father. Inside the home, appellant killed the woman by crushing her skull with a crescent wrench, stabbing her face, neck, and hands numerous times, and also biting her breast and traumatizing her genital area. According to Morgan, he killed the woman because he thought she was writing his mother about his drinking. There is no dispute over appellant's commission of this homicide; the single issue is appellant's sanity at the time of the offense, and the experts excluded were the only witnesses for appellant on this issue.
This is the third time this cause has been before this Court. In Morgan v. State, 392 So.2d 1315 (Fla. 1981) (Morgan I), we remanded the case because the bifurcated insanity procedure used in that trial had been subsequently held unconstitutional. In Morgan v. State, 453 So.2d 394 (Fla. 1984) (Morgan II), we remanded the case because the trial court denied Morgan an opportunity to present an insanity defense.
In this third trial, Morgan filed notice of his intent to rely on an insanity defense. During the opening statements, his counsel advised the jury that insanity would be his client's defense. The state presented its case, rested, and then moved to prevent Morgan from presenting his expert witnesses, a psychologist and a psychiatrist, on the grounds that their opinions were partially based on statements Morgan made while under hypnosis.[*] The trial court granted the motion based on this Court's decisions in Bundy v. State, 455 So.2d 330 (Fla. 1984) (Bundy I), and Bundy v. State, 471 So.2d 9 (Fla. 1985) (Bundy II), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), and the Third District Court's decision in Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla. 1976). As a result of the trial court's order, Morgan was precluded from presenting any expert testimony on the issue of insanity.
Morgan proffered the experts' testimony in the jury's absence. The psychologist testified that he met Morgan on three occasions. During the first visit, the doctor stated Morgan was initially reluctant to be honest, but, after encouragement, explained generally his killing of the woman. Morgan stated that: (1) before going to mow, he had been drinking; (2) the victim permitted him to enter her home to call his father; (3) he saw the victim writing and thought she was notifying his mother about his drinking; and (4) he became angry with the victim and hit her in the head with the crescent wrench. According to the psychologist, Morgan could not clearly remember his actions after striking the woman and had no recollection of cleaning up after the attack and leaving the premises.
In the second session, the psychologist performed various psychiatric tests and obtained additional background information. The personal history revealed that Morgan was sixteen years old at the time of the incident, had regularly sniffed gasoline since he was four and, in recent years, on more than a daily basis, and regularly used alcohol to the extent that the psychologist concluded he was a sixteen-year-old alcoholic. Testing revealed that, although he had completed the eighth grade, he could *975 not read or write and was organically brain-damaged and brain-impaired.
After the second session, the psychologist, along with the psychiatrist, decided to hypnotize Morgan to obtain further details concerning the incident. Both doctors testified that hypnosis is a medically accepted diagnostic technique used by mental health professionals. According to both experts, the use of hypnosis facilitates diagnosis by revealing information which might otherwise be unavailable from the unhypnotized patient.
Morgan was hypnotized by the psychologist in the psychiatrist's presence. During a four-hour hypnotic session, Morgan provided more expansive details of his conduct in the killing. Both experts concluded, from their examination of Morgan, his history, and the hypnotic session, that he was insane at the time of the offense under the M'Naughten standard. Both testified they would have been unable to assess Morgan's sanity without utilizing the information from the hypnotic session.
In the penalty phase, the trial court allowed admission of the medical experts' testimony for the jury to consider mental impairment as a mitigating factor. The jury recommended the death penalty by a seven-to-five vote, and, accordingly, the trial judge imposed that sentence.
Morgan raises multiple issues concerning his conviction and sentence. We find dispositive his claim that the trial court erroneously excluded his expert witnesses' testimony during the guilt phase of the trial on grounds their opinions were partially based on statements made while Morgan was under hypnosis.
The trial judge excluded the experts' opinions based on Bundy I, Bundy II, and Rodriguez, holding that, since he could not determine the "reliability of statements procured under hypnosis," the opinions based on hypnotic statements were inadmissible. We do not criticize the trial court's ruling; we recognize hypnotic evidence is a new and evolving area of law. We find that the United States Supreme Court decision in Rock v. Arkansas controls.
In Rock, the defendant was charged with manslaughter of her husband. She could not remember the exact details surrounding the event and was hypnotized by a licensed neuropsychologist in order to refresh her memory. After hypnosis, she was able to recall that at the time of the shooting she had not had her finger on the trigger and the gun had discharged when her husband grabbed her arm during a scuffle. The gun was later found defective and prone to fire when hit or dropped, without the trigger being pulled. At trial, the court limited the defendant's testimony to only those matters remembered and stated prior to her being placed under hypnosis. On appeal, the Supreme Court of Arkansas affirmed the trial court, rejecting the defendant's claim that the limitations on her testimony violated her right to present her defense. The Arkansas court concluded that "the dangers of admitting this kind of testimony outweigh whatever probative value it may have," Rock v. State, 288 Ark. 566, 573, 708 S.W.2d 78, 81 (1986), and followed the view of those states which have held hypnotically refreshed testimony of witnesses inadmissible per se. The question addressed by the United States Supreme Court was "whether a criminal defendant's right to testify may be restricted by a state rule that excludes her post-hypnosis testimony." Rock v. Arkansas, 107 S.Ct. at 2710. In answering this question in the negative, the Court explained: "Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony." Id. at 2711. The Court stated that the per se rule does not allow a trial court the opportunity to consider whether post-hypnosis testimony may be admissible in a particular case, concluding that "[t]his rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced." Id. at 2712. *976 The opinion noted that many states which have adopted the exclusionary rule did so only as to witnesses and not for a defendant's testimony. The Court cited the California rule contained in People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal. Rptr. 243, cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982), where that court barred the entire testimony of any witness who had been hypnotized but explicitly accepted a defendant's testimony by stating:
[W]hen it is the defendant himself not merely a defense witness who submits to pretrial hypnosis, the experience will not render his testimony inadmissible if he elects to take the stand. In that case, the rule we adopt herein is subject to a necessary exception to avoid impairing the fundamental right of an accused to testify in his own behalf.
31 Cal.3d at 67, 723 P.2d at 1384, 181 Cal. Rptr. at 273.
We found in Bundy that hypnosis had not received sufficient scientific acceptance to be held reliable as substantive evidence and concluded that "hypnotically refreshed testimony is per se inadmissible in a criminal trial in this state." Bundy II, 471 So.2d at 18. Rock mandates that we recede from the Bundy II rule to the extent it affects a defendant's testimony or statements made to experts by a defendant in preparation of a defense.
Even without the Rock decision, we would conclude that expert testimony in this instance must be allowed. The issue is not whether Morgan's hypnotic statements are reliable testimony to prove the truth of the matter asserted. Rather, the question is limited to whether mental health experts can testify about Morgan's sanity if their opinion is based in part on information received from hypnotic statements obtained through a medically approved diagnostic technique. The evidence sought to be presented here is distinguishable from that of the Bundy cases or the Rock case. In Bundy I and Bundy II, the state sought to introduce statements from hypnotic sessions as direct evidence to prove the truth of the matter by refreshing a witness's recollection. In Rock, the defense attempted to present direct evidence to prove the truth of the matter asserted by refreshing the defendant's recollection.
We note that although Bundy prohibits the offering of hypnotically refreshed testimony as direct evidence, it does not preclude all uses of hypnosis. In Bundy II, this Court stated that "we do not undertake to foreclose the continued use of hypnosis by the police for purely investigative purposes. Any corroborating evidence obtained is admissible in a criminal trial subject to other evidentiary objections." 471 So.2d at 19.
Courts cannot establish accepted medical practices; they can only ensure that accepted methods are properly utilized. We conclude that, even without the United States Supreme Court Rock decision, Morgan should have been permitted to introduce conclusions drawn from medically accepted techniques. Here, his mental health experts were effectively barred from using medically accepted procedures to diagnose him. If courts seek medical opinions, they cannot bar the medical profession from using accepted medical methods to reach an opinion.
The use of hypnosis is an evolving issue and, clearly, some safeguards are appropriate to help assure reliability in the courts. We find it appropriate in the future, when hypnosis may be used to refresh a defendant's memory or by an expert witness to facilitate a medical diagnosis, that reasonable notice be given to the opposing party. Additionally, the hypnotic session should be recorded to ensure compliance with proper procedures and practices. At this time we recede from Bundy II only as it pertains to the defendant as a witness.
In the instant case, there is no doubt that Morgan committed the murder. Rather, the sole issue is his sanity at the time he committed the offense. As reflected in this opinion, Morgan was not able to present evidence on this question.
For the reasons expressed, we vacate Morgan's conviction and sentence and remand the cause for a new trial.
It is so ordered.
*977 EHRLICH, C.J., and OVERTON, McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur.
SHAW, J., concurs in result only with an opinion.
SHAW, Justice, concurring in result only.
I write separately to identify areas of disagreement with the majority opinion. First, the Court in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), was very careful to limit its holding to the hypnotically induced testimony of a defendant. Id. 107 S.Ct. at 2712 n. 15. While Rock is highly relevant to the issue of expert testimony based on the examination of a defendant under hypnosis, the decision is not controlling as the majority states. The Rock court recognized that hypnotically recalled testimony ran a substantial risk of unreliability. One of the major safeguards on which the Court relied to cure this unreliability was cross-examination. However, the testimony of an expert witness on the hypnotic recall of a defendant who does not himself take the stand presents major difficulties in cross-examination not present in the Rock context. Because this is an evolving area of law, I would not unqualifiedly hold that "statements made to experts by a [hypnotically enhanced] defendant in preparation of a defense" are always admissible. Op. at 976.
I also do not agree with the majority's unqualified acceptance of "accepted medical practice" as the criterion for determining whether testimony is admissible before a court. I certainly agree that we cannot, and should not, tell the medical community what constitutes accepted medical practice. Quite rightly, the medical profession will determine what medical techniques are best for a patient without reference to legal standards of admissibility of evidence. Conversely, the courts will independently determine what testimony or evidence meets legal criteria for admissibility. These standards are not necessarily congruent. Nothing in Rock suggests that the courts' authority and responsibility to ensure that evidence is sufficiently reliable to warrant admission has been abrogated. Rock only holds that the state may not have a per se rule that excludes hypnotically recalled testimony of a defendant who takes the stand. As the Court said:
The State would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony and it may be able to show that testimony in a particular case is so unreliable that exclusion is justified.
Rock, 107 S.Ct. at 2714.
Finally, I am convinced that in light of Rock we have no choice but to recede entirely from the per se rule of Bundy v. State, 471 So.2d 9 (Fla. 1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), that hypnotically refreshed testimony is inadmissible in a criminal trial. The broad message I receive from Rock is that we should not adopt per se rules of exclusion at the beginning of an evolving medical practice, i.e., hypnosis as a tool for memory recall. If we maintain the Bundy per se rule, as slightly modified by the decision here, evolution and experience, as it applies to criminal proceedings, cannot take place in Florida. This and other Florida courts will be bystanders awaiting incremental directions from the United States Supreme Court which may well result in numerous reversals of Florida convictions or, in the case of acquittals, the denial of relevant hypnotically recalled evidence. Instead of a per se rule of exclusion, I would adopt the approach outlined in Judge Ervin's thoughtful examination of the issue in Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983), of which we spoke approvingly in Bundy v. State, 455 So.2d 330 (Fla. 1984). Briefly, the approach calls for a threshold determination by the trial judge of the reliability and relevance of the hypnotically recalled evidence based on the specific circumstances of the hypnotic session(s), novelty and want of general scientific acceptance being only one facet in the court's relevancy analysis. Thereafter, assuming the evidence is admitted, the jury should be instructed on the potential shortcomings of the technique and the parties should be permitted to attack or defend the *978 technique using available authorities and evidence. In essence, the issue at this stage becomes one of weight and credibility for the jury.
I concur in result because I believe there was sufficient indicia of reliability and relevance in the denied testimony to warrant presenting it to the jury.
NOTES
[*] The trial judge advised both counsel that all foreseen legal issues should be raised at pretrial conference. Although the state knew prior to pretrial conference that Morgan's expert witnesses would use hypnotic statements as a basis for their opinions, the state waited to challenge the opinion testimony until just before Morgan was to present his experts.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00166-CR
Richard Dean Kercheff, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 67894, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal pursuant to Anders v. California, 386 U.S. 738 (1967). In a
bench trial, the district court found appellant Richard Dean Kercheff guilty of the offense of burglary
of a building. See Tex. Penal Code § 30.02. Kercheff pleaded true to six enhancement paragraphs
alleging prior state-jail felony convictions, four for the offense of burglary of a building and two for
the offense of possession of a controlled substance, and the district court subsequently sentenced
Kercheff to ten years’ imprisonment. This appeal followed.
The evidence tended to show that on or about March 6, 2011, Kercheff stole
items from a self-storage facility in Killeen. The items belonged to Richard Binkley. According
to the evidence presented, both Kercheff and Binkley had rented storage space at the facility at
around the time of the burglary. On the date in question, Binkley had entered the facility’s office,
complaining that his lock had been replaced by another lock that he believed belonged to
management. The manager of the facility, Sandra Pagel, testified that she then accompanied Binkley
back to his storage unit and discovered that the lock had indeed been replaced, but not by
management. Pagel had maintenance cut open the unidentified lock, and upon opening the door to
the unit, they discovered that items belonging to Binkley, including electronic equipment, had been
stolen. The police were called to the scene and an investigation into the burglary commenced.
The facility was equipped with a surveillance system that recorded both the gated
entry into the facility and the storage units within the facility. Pagel testified that, upon review of
the relevant security footage, a green Kia Sportage, later identified as belonging to Kercheff, was
seen entering the facility and parking near Binkley’s unit. Then, the driver of the vehicle, whose
physical appearance was similar to Kercheff’s appearance, was seen exiting the vehicle, cutting
the lock on the door to the unit, entering the unit, removing items from inside the unit, loading the
items into the vehicle, and then leaving the facility. A copy of the video recording was admitted into
evidence. Further investigation by Pagel revealed that at the exact time of the burglary, Kercheff’s
unique access code, which corresponded to the last four digits of his Social Security number, had
been used to open the entry gate into the facility.
Kercheff testified in his defense. In his testimony, Kercheff claimed that he had let
his friend, Todd Retzlaff, borrow his car at around the time of the burglary and asserted that it was
Retzlaff who had committed the crime. Evidence was admitted that tended to show that Retzlaff had
died prior to trial, and was thus unavailable to testify to either confirm or deny Kercheff’s claims.
Kercheff’s court-appointed attorney has filed a motion to withdraw supported by
a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements
of Anders v. California by presenting a professional evaluation of the record demonstrating why
there are no arguable grounds to be advanced. See 386 U.S. at 744-45; see also Penson v. Ohio,
2
488 U.S. 75; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d
684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous
v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Kercheff was mailed a copy of counsel’s brief
and advised of his right to examine the appellate record and to file a pro se brief. No pro se brief
has been filed.
We have reviewed the record and counsel’s brief and agree that the appeal is frivolous
and without merit. We find nothing in the record that might arguably support the appeal. Counsel’s
motion to withdraw is granted.
The judgment of conviction is affirmed.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: August 21, 2013
Do Not Publish
3
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859 N.E.2d 324 (2003)
344 Ill. App.3d 1231
307 Ill.Dec. 312
LEAR
v.
HUGHES.
No. 3-03-0180.
Appellate Court of Illinois, Third District.
December 9, 2003.
Affirmed.
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272 U.S. 564 (1926)
PORT GARDNER INVESTMENT COMPANY
v.
UNITED STATES.
No. 173.
Supreme Court of United States.
Argued December 9, 1925; reargued October 19, 20, 1926.
Decided November 23, 1926.
CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
Mr. Duane R. Dills, with whom Messrs. Loren Grinstead, William T. Laube, James A. Laughlin, and Thomas E. Davis were on the brief, for the Port Gardner Investment Company.
Assistant Attorney General Willebrandt for the United States, in the original argument. Solicitor General Mitchell for the United States on the reargument. Mr. Mahlon D. Kiefer, Special Assistant to the Attorney General, was also on the brief.
*565 MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This is a proceeding, commenced in the federal court for western Washington, Northern Division, under Revised Statutes of the United States, § 3450, to forfeit an automobile on the ground that it was being used with intent to defraud the United States of the tax on distilled spirits found therein. The use alleged was in removal and for the deposit and concealment. The claimant intervened in the district court, asserted title to the automobile and denied knowledge or notice, prior to the seizure, that the automobile was being used or was to be used in any illegal manner. The case comes here on certificate from the Circuit Court of Appeals for the Ninth Circuit, that court having heard the case on writ of error to the district court, which had entered a decree of forfeiture. Six questions are presented by the certificate. The fifth is: "Did the prosecution of the driver of the car under the National Prohibition Act constitute an election by the government to proceed under § 26 of that Act and thereby prevent the forfeiture of the car under § 3450 of the Revised Statutes of the United States?"
The facts are these. Neadeau, the driver of the automobile seized by prohibition agents, had been charged with possession and transportation of intoxicating liquor in violation of the National Prohibition Act. He pleaded guilty to both charges and was sentenced to pay a fine. The claimant insisted that this proceeding under § 3450 would not lie. In addition to the objections considered in United States v. One Ford Coupe Automobile, ante, p. 321, the claimant contended that the Government should not prevail, because the plea of guilt followed by the sentence constitutes a prior conviction under § 5 of the Willis-Campbell Act, which provides that "if any act is a violation of" any tax law concerning intoxicating *566 liquors and also of the National Prohibition law, or the supplement thereto, "a conviction for such act or offence under one shall be a bar to prosecution therefor under the other." The argument is that under § 26 no separate action is taken to forfeit the vehicle; that forfeiture is an incident of the conviction of the person which operates as a forfeiture also of the vehicle taken possession of, subject only to the right of the innocent third party to establish his lien or other interest; and that the order of sale is merely a step in the execution of the judgment of conviction and forfeiture. It is argued further that the term "act," as used in § 5, means transaction; and that for this reason, independently of the doctrine of election, a conviction of the person under § 26 will bar the proceeding under § 3450 because, on the facts recited in the certificate, the proceeding to forfeit under § 3450 rests upon the same transaction for which Neadeau was sentenced. Whether the principle embodied in this contention is sound we need not determine. For there is another ground on which the conviction of Neadeau under § 26 bars a proceeding to forfeit under § 3450.
The disposition of the automobile prescribed in § 26 became mandatory after Neadeau's conviction; and being inconsistent with the disposition under § 3450 necessarily precluded resort to proceedings under the latter section. Construing the fifth question as referring to the prosecution with effect, we answer the question in the affirmative.
We need not determine whether the mere commencement of a proceeding under § 26 constitutes an election. Nor need we give specific answers to the other questions asked, since the certificate does not disclose any reason why the sale of the automobile, subject to the interests of innocent parties, should not have been ordered by the District Court after the conviction of Neadeau.
Yes, to Question 5.
*567 MR. JUSTICE BUTLER, concurring.
I agree that the answer to question 5 should be in the affirmative.
In the opinion it is said, "Construing the fifth question as referring to the prosecution with effect, we answer the question in the affirmative." This means prosecution and conviction of the driver constitute an election to proceed against the vehicle under § 26 and prevents forfeiture under § 3450. The answer is enough to guide the Circuit Court of Appeals in this case. But it leaves open the question which is not decided in United States v. Ford Coupe, ante, p. 321. The substance of that question is whether the prohibition officer discovering one in the act of transportation may disregard the plain and direct commands of § 26 to proceed against the vehicle as there directed. I think he has no more right to ignore that command than he has to let the liquor and offender go. The law makes the election. I regret that this Court's answer is so qualified and restricted. Section 26 is not so restrained.
I am authorized to say that MR. JUSTICE STONE concurs in this opinion.
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905 So.2d 1088 (2005)
Charlie WHITE and Dorothy White
v.
Herbert ROGERS, Vada Rogers and B & S Builders, Inc.
No. 04-CA-1434.
Court of Appeal of Louisiana, Fifth Circuit.
April 26, 2005.
*1089 Charlie and Dorothy White, Marrero, LA, for Plaintiff/Appellant in Proper Person.
Kenneth J. Hurst, Marrero, LA, for Defendant/Appellee.
Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and SUSAN M. CHEHARDY.
JAMES L. CANNELLA, Judge.
The Plaintiffs, Charlie and Dorothy White, appeal from a judgment in favor of the Defendants, Herbert Rogers, Vada Rogers and B & S Builders, Inc. (B & S), in an oral contract dispute over the cost of a house renovation. We affirm.
In 1998, the Plaintiffs entered into an oral contract with the Defendants for the renovation of their home in Marrero, Louisiana, to include adding a master bedroom and bathroom, and remodeling an existing bathroom. The work on the addition was substantially completed two years later in June of 2001. In November of 2001, work began on the existing bath. At that time a dispute arose over a $900 bill. Herbert Rogers stopped work and the Plaintiffs hired others to complete the project.
On December 1, 2003, the Plaintiffs filed a petition pro se against the Defendants for breach of the oral contract, demanding damages representing the costs incurred to complete the renovations on the existing bathroom, and for reimbursement of $16,000, the total paid to the Defendants for constructing the additions. The Defendants answered the petition and filed a reconventional demand on January 23, 2003, demanding the balance of $900 owed for the remodeling work on the existing bathroom, plus a reasonable amount for Herbert Rogers' work and services. They also requested damages for sanctions, attorneys' fees, and costs for filing a frivolous lawsuit.
Subsequently, the Plaintiffs obtained legal counsel to represent them at trial and the case was tried before a judge on May 19, 2004. On May 20, 2004, the trial judge rendered a judgment, with reasons, in favor of the Defendants on their reconventional demand in the amount of $900, with legal interest from date of judicial demand until paid and all costs of court. The trial judge dismissed the Plaintiffs' claim and the Plaintiffs appealed. Thereafter, counsel for the Plaintiffs withdrew from the case. The Plaintiffs proceeded with the appeal pro se. They were also granted pauper status for the appeal.
PROCEDURAL DEFECTS
We note three problems with the appeal. First, the Plaintiffs filed an untimely motion for a new trial. Second, they were granted a suspensive appeal, which should have been converted to a devolutive appeal after they were granted pauper status. Third, the judgment that they appealed from does not exist.
The judgment on the merits was rendered on May 20, 2004 and notices of the judgment were sent on May 21, 2004. On July 8, 2004, the Plaintiffs, through their attorney, filed a motion for new trial from a judgment dated June 9, 2004 on the basis of newly discovered evidence. The motion for new trial was clearly untimely. *1090 See: La.C.C.P. art. 1974. In addition there is no judgment dated June 9, 2004. Also, on July 9, 2004, the Plaintiffs filed for a suspensive appeal from the "final judgment of June 9, 2004." The suspensive appeal was erroneously granted because no security was provided. In addition, shortly thereafter, the Plaintiffs moved for and were granted pauper status under La.C.C.P. art. 5181. As paupers, they cannot appeal suspensively, unless they provide security. See: C.C.P. art. 5185 B. However, the Plaintiffs are entitled to a devolutive appeal, which is timely, since the motion for appeal was filed on July 9, 2004, or within 60 days from the expiration of the 7 day delay for applying for a new trial (May 28, 2004.) See: La.C.C.P. art. 1974; C.C.P. art. 5185 A(4).
In addition, the Plaintiffs appealed from a judgment dated June 9, 2004, which does not exist. Nevertheless, since the Plaintiffs are pursuing the appeal pro se, are indigent and we can determine that they intended to appeal from the May 20, 2004 judgment, we will convert the appeal to a devolutive appeal and address the merits of the case.[1]
MERITS
The issue on appeal is whether the Plaintiffs are entitled to reimbursement of $16,575 representing the total amount paid for the renovations, including the addition of the master bed, bath, hall, and work on the existing bathroom. Also, the Plaintiffs dispute that the Defendants are entitled to recover the $900 for the work done on the existing bathroom. The Plaintiffs contend that the $16,575 included all work on both projects.
The evidence showed that Dorothy White and Vada Rogers worked together at the Jefferson Parish school board for 20 years. In 1997, when the Plaintiffs first contemplated renovating their family home, Dorothy White mentioned the project to Vada Rogers, whose husband, Herbert Rogers, owns and operates B & S, a construction company. According to Dorothy White, Vada Rogers advised her to obtain some estimates. In 1997, the Plaintiffs obtained an estimate from Hill's Construction (Hill's) for $9,870 and Renovations Plus Construction Co. (R.P.C.C.) for $32,000. Dorothy White claimed that Vada Rogers obtained this second estimate on the Plaintiffs' behalf and that both estimates included the addition of a master bedroom and bathroom and renovation of an existing bathroom. However, Vada Rogers testified that the Plaintiffs obtained the estimates and that she did not see the Hill's estimate obtained by the Plaintiffs until the day of trial. Nevertheless, when Vada Rogers saw the R.P.C.C. estimate, she told Dorothy White it was too high and offered to investigate whether her husband could perform the job for less. Thus, the women went to the Plaintiffs' house and Dorothy White showed Vada Rogers what she wanted done. She said she wanted to add a bedroom and bathroom and have the existing bathroom renovated. Charlie White was not present.
Vada Rogers testified that the job also included a walk-in closet, which the Plaintiffs did not mention in her testimony. Vada Rogers also said that they were to discuss the existing bathroom after the additions were completed. Vada Rogers said that they agreed that Herbert Rogers would perform the work at his cost, plus any amount that the Plaintiffs deemed fair *1091 for his profit. Dorothy White did not mention the "plus" portion of the contract at trial.
There is no dispute that the Plaintiffs hired Herbert Rogers, and deposited $8,000 into a joint account to pay expenses as they accrued, in accordance with Herbert Rogers' business policy. Any money left over would be returned to the Plaintiffs. The project to add the bed and bath began in December of 1999.
There was no written contract. The Plaintiffs claimed that they had asked for one in the beginning and Charlie White contended that he asked Dorothy White on several other occasions, as well, to obtain a written contract. Armond Sullivan, the Plaintiff's backyard neighbor, testified he overheard a conversation between Charlie White and Herbert Rogers about a written contract, but could not remember if it occurred in 1999 or 2001. However, Dorothy White stated when she asked Vada Rogers for a written contract, she was told that Herbert Rogers did not use written contracts in his business. She did not pursue the matter further because she did not know how these things were done and she trusted Vada Rogers, who purported to be a Christian lady and her friend.
Vada Rogers testified that there was no written contract, both because Herbert Rogers was doing this for a friend and did not think a contract was necessary, and because he never provides a written contract in his work as a building contractor. He rarely does renovation work. She also stated that when the Plaintiffs refused to pay the $900 for the existing bathroom remodeling costs, she went to the Plaintiffs' home and talked to them. At that time, Charlie White told her that he had repeatedly told his wife to get a contract, but Dorothy White never raised the subject with her.
During the course of the project from 1999 through 2001, most of the discussions, decisions, and finances related to the job were handled by the two women. Dorothy White said that during 2000, she complained to Vada Rogers about the delay in completing the addition and in finishing the renovations to the existing bathroom. She continued to pay the expenses as they accrued because she wanted her house back to normal and the work finished. When questioned about the delay, she claimed that Vada Rogers told her that her husband would "get to it" when he had time. Despite the delay, the Plaintiffs did not stop work on the job, even though the Plaintiffs could not sleep in their bedroom because the outside wall was removed during the construction of the additions. Although Dorothy White testified that she was dissatisfied with the work as early as April of 2000, she admitted that progress was made on the additions during that time.
Vada Rogers disputed Dorothy White's testimony in this regard. She contended that the Plaintiffs never complained about the work and that if they had, she or her husband would have attempted to resolve any problems. In addition, she testified that the Plaintiffs knew and accepted the fact that Herbert Rogers was doing this project as a favor for a friend at his cost, while continuing to build other houses. That is why the building permit for the Plaintiffs' construction was obtained in 1998, but construction did not start until 1999.
Dorothy White did not consider the job complete in June of 2000. She stated that the air conditioning unit had yet to be framed, the tub had a chip in it, the toilet leaked, the cabinet knobs were missing and there was no towel rack in the bathroom.
*1092 Vada Rogers disagreed. She stated that the work on the additions was completed in June of 2000, at which time that project had been fully paid for by the Plaintiffs. Vada Rogers noted that the Jefferson Parish regulatory board released the construction as completed in June of 2000. Vada Rogers noted that the regulatory board requires everything to be completed before it will "release" the property. Neither Vada nor Herbert Rogers knew about any problems with the air conditioner in the bathroom addition until the dispute arose in 2001. At that point, they discovered that the Plaintiffs had purchased a unit that was larger than the initial hole and that they removed the framing. Herbert Rogers intended to fix it, but when the Plaintiffs refused to pay the last bill, he did not return.
Dorothy White stated that no work on either project was done from June, when the main project was basically finished, through November of 2000, when she paid an additional $2,000 to B & S. However, she later claimed some work was done during that time. According to her, in November of 2000, she gave Vada Rogers a check for $2,000 because Vada Rogers asked her for more money. Dorothy White said that she asked what the money was for, but Vada Rogers told her that she would give her the receipts when the job was finished. Dorothy White denied that the $2,000 represented fair compensation or profit.
Vada Rogers testified that the check was for profit, not for construction costs, agreed upon by the parties. Vada Rogers claimed that Dorothy White knew that the check requested was their profit, and in fact, had told Vada Rogers that she had to wait to pay the $2,000 until she received some money that she was expecting, which occurred in November of 2000.
No further work was done until November of 2001. In the summer of 2001, Dorothy White testified that she asked Vada Rogers if Herbert Rogers was going to finish the work on the existing bathroom. She claims that Herbert Rogers said that he would do it later in the year, because it was too hot to work during the summer. After he started working on the bathroom, Vada Rogers requested another $1,500 from the Plaintiffs. They deposited $575 of that, but refused to pay the last $900, because they believed that the cost of the bathroom was or should have been included in the total amount already paid. The Defendants did not agree with that conclusion and Herbert Rogers stopped the work. At that stage of the project, the commode and light fixtures had not yet been installed and the electricity was off. When the parties were unable to come to any agreement about the $900, the Plaintiffs purchased fixtures and hired an electrician and other workers to finish the job.
In addition, although Dorothy White testified that she was not given any input as to what materials or items were used in the job, she admitted that, except for the disputed areas, she was satisfied with the work in the bedroom and additional bathroom. Vada Rogers disputed the claim that Dorothy White had no input. Vada Rogers testified that Dorothy White picked out her carpet and the color of the vinyl siding on the house. She did not pick out the color of the roof shingles, because Herbert Rogers had to match it with the original.
Dorothy White said that she retired from her job with the school board after the dispute arose and she did not hear from the Defendants again until after the Plaintiffs filed a complaint with the District Attorney.
Charlie White testified that he thought that the remodeling of the existing bath *1093 room was included in the original project, based solely on what his wife told him. He also said that he wanted to stop the work on the addition after the $8,000 was expended because only the slab and framing had been done. But, his wife told him that Vada Rogers assured him that Herbert Rogers was going to finish it. Charlie White said he complained about the how long the job was taking and unsuccessfully tried to get his wife to demand to see where the money was going. However, he never contacted either Vada or Herbert Rogers about the time delay or the expenditures. He also never sought other opinions as to what the job should cost. He admitted that Vada Rogers came to the house at the end of the job and showed him the invoices and a breakdown of the costs of the project, but he was not interested in seeing them at that time.
The Plaintiffs claimed that they paid a total of $16,575 in certified checks for the entire project. Dorothy White produced copies of all but one check that she obtained from the bank. The copies showed payments on April 27, 2000 of $2,000, May 9, 2000 of $1,000, November 30, 2000 of $2,000, and November 16, 2001 of $575. She could not find the copy of one other check for $2,000. The checks were made out to Vada Rogers. Dorothy White did not withdraw any money from the account. Dorothy White claimed she and her husband should recover the full $16,575 paid to the Defendants, because Vada Rogers lied to her.
Anthony Richard, the electrician hired to complete the electrical work in the remodeled bathroom, testified that he installed the heater/fan light for a charge of $75. In addition, the Whites produced receipts showing payments to Danny Noel of $475, dated March 12, 2002, for work he did to finish the existing bathroom, a receipt for $84 to Prestige Marble that spent in 1998 for the vanity top in anticipation of the renovation to the room, and $690 to Marble Top paid in March of 2000 for the bathtub and an alcove with trim that was related to the existing bathroom. Marble Top completed the installation of the vanity and tub. Dorothy White stated that her husband also helped complete the bathroom. Neil Marsh, another neighbor, did some plumbing on the existing bathroom that was remodeled, but was unable to remember the cost of his work.
The Jefferson Parish building permit, introduced into evidence, states that the estimated value of the work was $9,600. Dorothy White did not know who provided that information to Jefferson Parish and denied ever seeing it or knowing that it had been placed in a window of her home. Vada Rogers testified that she had never seen this document prior to trial. Herbert Rogers testified that the estimated construction cost on the building permit was not related to anything that he told Jefferson Parish, and is not a real price, but a way to assess the price of the permit.
Vada Rogers testified that the after the job commenced on the addition to the house, the parties decided to tear out a wall between the existing bedroom and the new construction, which added to the cost of that part of the project. The payments made to the subcontractors by Vada Rogers and her expense records were introduced in conjunction with her testimony. She showed that the construction of the master bedroom, new bathroom, closet and the wall demolition cost approximately $12,781.69. That included a slab, aluminum siding, roofing, labor, supplies and materials. She stated that Dorothy White did not hesitate to advance the funds as needed. Although she asked Dorothy White several times over the course of the construction if she wanted to see the receipts and invoices, Dorothy White declined. *1094 Although the Plaintiffs claimed that they paid the Defendants $16,000 by June of 2000, Vada Rogers contended that she only received a total of $14,781.69, and that the total included the $2,000 paid in November of 2001.
Vada Rogers stated that when her husband started work on the existing bathroom on November 27, 2001, no new agreement was discussed, but everyone assumed it would be done on the same basis as the other work. When the renovation of the existing bathroom began, Dorothy White gave her $575 to put into the account to start the construction. Vada Rogers stated that Dorothy White knew that this was for the work on the existing bathroom. Vada Rogers stated that it cost $150 to tear out the existing bathroom, $550 for plumbing work, and $900 for hanging, framing, texturing, and painting the sheetrock. When the bank account was depleted, Vada Rogers paid $900, the bill for the sheetrock work, from her account. She then requested reimbursement from the Plaintiffs. Her check to Robert LeBlanc for the sheetrock work was admitted into evidence. In response to the Plaintiffs refusal to pay the $900, Vada Rogers told them that the bathroom work could not have been included in the original payments because only $200 was left in the joint account after the addition was completed and $200 would not have covered the cost of renovating the existing bathroom. Thus, the Plaintiffs had to know that the bill was for the new work. When the Plaintiffs continued to refuse to pay, the Defendants decided to not pursue the issue since both women were about to retire. She noted that she and her husband had been in the construction business for 25 years and that she had no intent to deceive the Plaintiffs about the projects' costs.
Herbert Rogers testified that neither Dorothy nor Charlie White complained to him or asked him to do something that he failed to do during the renovations/remodeling projects. The first complaint made to him was when they refused to pay him for the work being done on the existing bathroom. Furthermore, he never saw the estimates that the Plaintiffs obtained from Hill's and R.P.C.C. and never agreed to do the job for $9,800. In support of the reasonableness of his bill, Herbert White pointed out that the Hill's estimate was not comparable to the work he performed. The Hill's estimate was for a smaller addition, 5 by 18 feet, whereas the addition that he built was 12 feet by 18 feet, and included a hallway. The added square feet and wall work cost more than the work in the Hill's estimate. Herbert Rogers also stated that the R.P.C.C. estimate for $32,000 was comparable to the actual work that Herbert performed.
Under La.C.C. art. 1846, one witness and other corroborating circumstances is necessary to prove an oral contract for a price in excess of $500. Peter Vicari General Contractor, Inc. v. St. Pierre, 02-250, p. 9 (La.App. 5th Cir.10/16/02), 831 So.2d 296, 301. Only general corroboration is required and it is not necessary that plaintiff offer independent proof of every detail. Id. The manifest error standard of review applies to a factual finding by the trier of fact in this regard and will not be overturned unless it is clearly wrong. Vicari, 02-250 at 9, 831 So.2d at 301.
On appellate review, the court's function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Brown v. Seimers, 98-694, p. 6 (La.App. 5th Cir.1/13/99), 726 So.2d 1018, 1021, writ denied, 99-0430 (La.4/1/99), 742 So.2d 556; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there *1095 is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Rosell, 549 So.2d at 844. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart, 617 So.2d at 882. Only where the documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Brown, 98-694 at p. 7, 726 So.2d 1018 at 1021; Rosell, 549 So.2d at 844-45.
In this case, there were two permissible views of the evidence. The Plaintiffs interpreted their agreement to include the work on the existing bathroom in the original payment based on the Hill's estimate and the discussion between the parties at the walk-through of the house. They claim that they paid the Defendants over $16,000 before the work started on the existing bathroom. The Defendants, on the other hand, believed that the existing bathroom remodeling was a separate job to be negotiated after the addition was completed. They claimed that the Plaintiffs paid approximately $14,000 before the work started on the second bath. Either is a permissible version of the events and may have arisen from a misunderstanding between the parties because there was no written agreement or estimate. However, when the original $8,000 advanced by the Plaintiffs was spent and Vada Rogers continued to ask for funds that exceeded the amount of the Hill's estimate, the Plaintiffs did not question the expenditures, stop the work or obtain an accounting. Furthermore, there was a long interval between the substantial completion of the addition and commencement of the work on the existing bathroom, the initial estimate for the additional bedroom and bathroom from Hill's was for a smaller structure than was actually built, and the actual addition tracked the square footage of the R.P.C.C. estimate for $32,000. These facts, coupled with Herbert Rogers' agreement to do the job at his cost, leads to a reasonable conclusion that the $14,000 or $16,000 paid to the Defendants did not include the costs for the remodeling of the existing bathroom. Since there are two permissible views of the evidence here, the trial judge's choice between them cannot be manifestly erroneous or clearly wrong. See: Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart, 617 So.2d at 882.
In addition, Vada Rogers' records support the expenditures for both jobs. Thus, there are no documents or objective evidence that so contradict her testimony and the Defendants' version of the events is not so internally inconsistent or implausible on its face that a reasonable factfinder would not credit their story. Thus, we find that the trial judge's factual findings were not manifestly erroneous in this case.
Accordingly, the judgment of the trial court is hereby affirmed. Costs of appeal are assessed to the Plaintiffs.
AFFIRMED.
NOTES
[1] We also recognize that the appeal brief does not conform to the Uniform Rules of the Courts of Appeal, but will address the issues without ordering supplementation due to the Plaintiffs' pro se and pauper status, because the Defendants have not complained, and because we are able to easily determine the issues in the case.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14363 ELEVENTH CIRCUIT
JUNE 22, 2012
Non-Argument Calender
JOHN LEY
________________________
CLERK
D.C. Docket No. 6:10-cr-00145-MSS-KRS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO DEON BIZZELL,
Defendant - Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(June 22, 2012)
Before CARNES, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Antonio Bizzell appeals his 780-month total sentence for drug trafficking
and firearm convictions. He contends that his sentence is substantively
unreasonable.
I.
A federal grand jury returned a second superseding indictment charging
Bizzell with ten crimes: one count of conspiracy to possess with intent to
distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846; three
counts of possession with intent to distribute cocaine base in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C); three counts of carrying and using a firearm in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)–(2); and
three counts of possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). Bizzell pleaded not guilty, and a jury returned
a verdict finding him guilty on each count.
The presentence investigation report grouped together the convictions for
drug conspiracy, drug possession, and possession of a firearm by a convicted
felon, see United States Sentencing Guidelines § 3D1.2(d) (Nov. 2010), and it
recommended a total offense level of 32. It also recommended a criminal history
category of IV. Combined with Bizzell’s total offense level of 32, the result was a
guidelines range of 168 to 210 months in prison for those convictions.
2
The PSR also stated that a person convicted of using a firearm in relation to
a drug trafficking crime is subject to a mandatory minimum 5-year consecutive
sentence on the first count of conviction and to a 25-year consecutive sentence on
each “second or successive conviction.” See 18 U.S.C. § 924(c)(1)(A)(i), (C)(i),
(D)(ii). Because Bizzell was convicted of three counts of possessing a firearm in
relation to a drug trafficking crime, he is subject to mandatory minimum
consecutive sentences of 60 months on the first § 924(c) count, 300 months on the
second, and another 300 months on the third—a total of 660 months. Those
consecutive sentences became the guidelines range for the § 924(c) counts as well.
See U.S.S.G. § 2K2.4(b). So his total guidelines range was 828 to 870 months for
all ten convictions.
Bizzell did not object to the PSR. He asked the court to impose a 0-month
sentence on the seven non-18 U.S.C. § 924(c) counts in light of the total 660-
month sentence the court was required to impose on the three § 924(c) counts.
The district court adopted the PSR, varied downward, and imposed a 780-month
total sentence: 120-month concurrent sentences on each non-§ 924(c) count; a 60-
month consecutive sentence on the first § 924(c) count; a 300-month consecutive
sentence on the second § 924(c) count; and another 300-month consecutive
sentence on the third § 924(c) count.
3
Explaining the sentence, the district court stated that it had considered the
factors and purposes listed in 18 U.S.C. § 3553(a). The court also stated that it
had to impose a “Draconian” 660-month sentence for the three 18 U.S.C. § 924(c)
convictions and that it had considered Bizzell’s arguments for a 0-month sentence
on the non-§ 924(c) counts. Even so, the court concluded that the 780-month
“sentence [was] sufficient, but not greater than necessary to comply with the
statutory purposes of sentencing,” and it based the slight downward variance on
Bizzell’s troubled childhood, drug dependency, and remorse. The court, however,
rejected Bizzell’s request for a 0-month sentence on the non-§ 924(c) counts,
reasoning: “[M]y decision not to simply ignore the underlying drug offenses is
borne out of the notion that other defendants appear before the Court on drug
offenses not facing any gun offenses, and I can’t legitimately say to them they
should be punished for their drug offenses and he shouldn’t . . . .”
II.
Bizzell appeals his 780-month total sentence, contending that it is
substantively unreasonable.1 He argues that the district court did not properly
1
Bizzell also contends that the court should have ordered that a sentence for one of the §
924(c) counts run concurrently to the consecutive sentences for the other two § 924(c) counts.
As Bizzell recognizes, however, that contention is foreclosed by our precedent. See United
States v. Wright, 33 F.3d 1349, 1350 (11th Cir. 1994) (“The plain language of the statute
expressly states that a term of imprisonment imposed under section 924(c) cannot run
concurrently with any other term of imprisonment, period. No exceptions are provided.”).
4
consider the severity of the 660-month sentence it was required to impose on the
three § 924(c) convictions. If it had done so, Bizzell argues, it would have
imposed a lower total sentence.
“Our substantive reasonableness review is guided by the factors in 18
U.S.C. § 3553(a).” United States v. White, 663 F.3d 1207, 1217 (11th Cir. 2011).
The district court is required to impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” listed in that statutory
provision. 18 U.S.C. § 3553(a). Those purposes include the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment of
the offense, deter criminal conduct, protect the public from the defendant’s future
criminal conduct, and provide the defendant with needed educational or vocational
training or medical care. Id. § 3553(a)(2). Among other factors, the district court
must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the applicable guidelines range, and the need to
avoid unwarranted sentencing disparities. See id. § 3553(a)(1), (4), (6).
“The burden of establishing that a sentence is unreasonable lies with the
party challenging it.” White, 663 F.3d at 1217. “We will vacate a sentence for
substantive unreasonableness ‘if, but only if, we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
5
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.’” Id. (quoting United States
v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)).
Bizzell has not shown that his sentence is substantively unreasonable. His
780-month total sentence is below his guidelines range of 828 to 870 months, and
we usually expect a below-the-guidelines sentence to be reasonable. See White,
663 F.3d at 1217. The district court stated that it considered the § 3553(a) factors
and Bizzell’s arguments for a 0-month sentence on the non-§ 924(c) counts, which
means it considered his argument that the 660-month sentence on the § 924(c)
convictions was enough to comply with 18 U.S.C. § 3553(a). The court
concluded, however, that the need to avoid a potential sentencing disparity
resulting from a 0-month sentence on the underlying drug convictions outweighed
the “Draconian” nature of the § 924(c) sentences. That conclusion does not render
Bizzell’s sentence unreasonable.
AFFIRMED.
6
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People v Keating (2020 NY Slip Op 02627)
People v Keating
2020 NY Slip Op 02627
Decided on May 6, 2020
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 May 6, 2020
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
ROBERT J. MILLER
LINDA CHRISTOPHER, JJ.
2015-03583
(Ind. No. 4223/04)
[*1]The People of the State of New York, respondent,
vMichael Keating, appellant.
Paul Skip Laisure, New York, NY (Alexis A. Ascher of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Seth M. Lieberman, Joyce Slevin, and Terrence F. Heller of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alan Marrus, J.), rendered April 13, 2015, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Neil Jon Firetog, J.), without a hearing, of the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial and his due process right to prompt prosecution.
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's denial of the defendant's motion to dismiss the indictment on the ground that he was denied his right to a speedy trial and his due process right to prompt prosecution. "A defendant's right to a speedy trial is guaranteed both by the United States Constitution (see US Const 6th, 14th Amends; Klopfer v North Carolina, 386 US 213, 223), and by statute (see CPL 30.20[1]; Civil Rights Law § 12)" (People v Walton, 168 AD3d 1103, 1105). "Although an unjustified delay in prosecution will deprive a defendant of the State constitutional right to due process (see NY Const, art I, § 6; People v Decker, 13 NY3d 12, 14; People v Staley, 41 NY2d 789, 791), a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant'" (People v Walton, 168 AD3d at 1105, quoting People v Vernace, 96 NY2d 886, 888). "In determining whether a defendant's constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to be considered: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of the defendant's defense" (People v Metellus, 157 AD3d 821, 823; see People v Romeo, 12 NY3d 51, 55).
Here, the Supreme Court appropriately balanced the requisite factors in denying the defendant's motion to dismiss the indictment. Although there was an extensive delay of approximately 82 months between the murder of the victim and the indictment, the People established good cause for the delay, as a significant amount of the pre-indictment delay was attributable to an investigation to gather sufficient evidence to prosecute the defendant (see People [*2]v Walton, 168 AD3d at 1105; People v Mattison, 162 AD3d 905, 906). Moreover, while there was an extensive delay of approximately 104 months between the indictment and the defendant's arrest in Jamaica, this delay was attributable in part to the defendant's own conduct in leaving the United States, requiring his extradition (see People v Barba, 135 AD3d 950, 951; cf. People v Romeo, 12 NY3d at 56-57). The People established that the post-indictment delay was attributable to continued efforts to extradite the defendant, which were hindered by circumstances including the retirements and leaves of absence of various detectives overseeing the case. Moreover, while the lengthy delay is relevant to the consideration of prejudice suffered by the defendant from said delay, the defendant failed to demonstrate specific impairment to his defense (see People v Wiggins, 31 NY3d 1, 18-19), the defendant was not incarcerated during any portion of the pre-indictment or post-indictment delay, and the nature of the charge, murder in the second degree, was very serious (see People v Walton, 168 AD3d at 1105-1106; People v Vernace, 274 AD2d 595, 597, affd 96 NY2d 886). Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion to dismiss the indictment.
The defendant's contention that the evidence was legally insufficient to support his conviction because the prosecution failed to establish his identity as the perpetrator of the crime is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Davidson, 150 AD3d 1142, 1143). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish his identity as the perpetrator beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's contention that the trial court erred by failing to charge the jury regarding the weakness of evidence of flight as consciousness of guilt is unpreserved for appellate review (see CPL 470.05[2]). In any event, such a charge was not warranted because the People never argued that the defendant's flight evinced a consciousness of guilt (see People v Valerio, 70 AD3d 869, 870; People v Rodriguez, 135 AD2d 586, 588).
The defendant's contentions that certain remarks the prosecutor made on summation were improper are largely unpreserved for appellate review (see CPL 470.05[2]; People v Willis, 165 AD3d 984, 985). In any event, the challenged remarks either were responsive to defense counsel's summation, constituted fair comment on the evidence, or otherwise do not warrant reversal (see People v Brooks, 165 AD3d 1280; People v Carter, 152 AD3d 786).
The defendant was not deprived of the effective assistance of counsel (see People v Baldi, 54 NY2d 137).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
BALKIN, J.P., LEVENTHAL, MILLER and CHRISTOPHER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6862
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES EDWARD DAWKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-95-9-V, CA-98-32-5-2-V)
Submitted: November 29, 2001 Decided: December 5, 2001
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Richard Edward Dawkins, Appellant Pro Se. Harry Thomas Church,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Edward Dawkins appeals from the district court’s order
declining to grant Fed. R. Civ. P. 60(b) relief from the final
order dismissing his 42 U.S.C.A. § 2255 (West Supp. 2001) motion.
We have reviewed the record and the district court’s opinion and
find no reversible error. Accordingly, we deny leave to proceed in
forma pauperis, deny a certificate of appealability, and dismiss on
the reasoning of the district court. United States v. Dawkins,
Nos. CR-95-9-V; CA-98-32-5-2-V (W.D.N.C. filed May 1, 2001; entered
May 9, 2001). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
2
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581 F.3d 1336 (2009)
PROMETHEUS LABORATORIES, INC., Plaintiff-Appellant,
v.
MAYO COLLABORATIVE SERVICES (doing business as Mayo Medical Laboratories) and Mayo Clinic Rochester, Defendants-Appellees.
No. 2008-1403.
United States Court of Appeals, Federal Circuit.
September 16, 2009.
*1338 Richard P. Bress, Latham & Watkins LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief were J. Scott Ballenger, Alexander Maltas, and Gabriel K. Bell. Of counsel was F.T. Alexandra Mahaney, Wilson, Sonsini, Goodrich & Rosati, of San Diego, CA.
Jonathan E. Singer, Fish & Richardson P.C., of Minneapolis, MN, argued for defendants-appellees. With him on the brief was Deanna J. Reichel. Of counsel was John A. Dragseth.
Christopher M. Holman, University of Missouri-Kansas City School of Law, of Kansas City, MO, for amicus curiae Patent Law Professors Christopher M. Holman, et al.
Jennifer Gordon, Baker Botts L.L.P., of New York, NY, for amicus curiae Novartis Corporation.
Edward R. Reines, Weil Gotshal & Manges, LLP, of Redwood Shores, CA, for amicus curiae American Intellectual Property Law Association. With him on the brief were Jill J. Ho, and Teresa Stanek Rea, American Intellectual Property Law Association, of Arlington, VA.
Jeffrey P. Kushan, Sidley Austin LLP, of Washington, DC, for amicus curiae Biotechnology Industry Organization. With him on the brief were David L. Fitzgerald and Peter S. Choi. Of counsel on the brief was Hans Sauer, Biotechnology Industry Organization, of Washington, DC.
Jay Z. Zhang, Myriad Genetics, Inc., of Salt Lake City, UT, for amicus curiae Myriad Genetics, Inc. With him on the brief was Benjamin G. Jackson.
*1339 Roy T. Englert, Jr., Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, of Washington, DC, for amici curiae Arup Laboratories, Inc., et al. With him on the brief was Daniel R. Walfish.
Katherine J. Strandburg, DePaul University College of Law, of Chicago, IL, for amici curiae The American College of Medical Genetics, et al.
Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and CLARK, District Judge.[*]
LOURIE, Circuit Judge.
Prometheus Laboratories, Inc. ("Prometheus") appeals from the final judgment of the United States District Court for the Southern District of California granting summary judgment of invalidity of U.S. Patents 6,355,623 ("the '623 patent") and 6,680,302 ("the '302 patent") under 35 U.S.C. § 101. Prometheus Labs., Inc. v. Mayo Collaborative Servs., No. 04-CV-1200, 2008 WL 878910 (S.D.Cal. Mar. 28, 2008) ("Invalidity Opinion"). Because the district court erred as a matter of law in finding the asserted claims to be drawn to non-statutory subject matter, we reverse.
BACKGROUND
Prometheus is the sole and exclusive licensee of the '623 patent and the '302 patent. The patents claim methods for calibrating the proper dosage of thiopurine drugs, which are used for treating both gastrointestinal and non-gastrointestinal autoimmune diseases. These drugs include 6-mercaptopurine ("6-MP") and azathiopurine ("AZA"), a pro-drug that upon administration to a patient converts to 6-MP, which are used to treat inflammatory bowel diseases ("IBD") such as Crohn's disease and ulcerative colitis. 6-MP is broken down by the body into various 6-MP metabolites, including 6-methyl-mercaptopurine ("6-MMP") and 6-thioguanine ("6-TG") and their nucleotides.[1] The patents involve measurements of these two metabolites. Drugs that deliver 6-TG are widely used for their cytotoxic and immunosuppressive properties.
Although drugs such as 6-MP and AZA have been used for years to treat autoimmune diseases, non-responsiveness and drug toxicity may complicate treatment in some patients. To that end, the patents claim methods that seek to optimize therapeutic efficacy while minimizing toxic side effects. As written, the methods typically include two separately lettered steps: (a) "administering" a drug that provides 6-TG to a subject and (b) "determining" the levels of the drug's metabolites, 6-TG and/or 6-MMP, in the subject. See, e.g., '623 patent claim 1. The measured metabolite levels are then compared to pre-determined metabolite levels, "wherein" the measured metabolite levels "indicate a need" to increase or decrease the level of drug to be administered so as to minimize toxicity and maximize efficacy of treatment. See, e.g., id. In particular, according to the patents, a 6-TG level greater than about 400 picomole ("pmol") per 800 million red blood cells or a 6-MMP level greater than about 7000 pmol per 800 million red blood cells indicates that a downward adjustment in drug dosage may be required in order to avoid toxic side effects. See id. col.20 ll.22, 54. Conversely, according to the patents, a 6-TG level of less than about 230 pmol per 800 million red blood cells indicates a need to increase the dosage to ensure therapeutic efficacy. See id. col.20 ll. 18-19.
*1340 Claim 1 of the '623 patent is representative of the independent claims asserted by Prometheus in this case:
A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:
(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and
(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,
wherein the level of 6-thioguanine less than about 230 pmol per 8x108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and
wherein the level of 6-thioguanine greater than about 400 pmol per 8x108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.
Claim 1 of the '302 patent is substantially the same, with the inclusion of determining 6-MMP levels in addition to 6-TG.
Prometheus marketed a PROMETHEUS Thiopurine Metabolites test (formerly known as the PRO-PredictRx® Metabolites test) that used the technology covered by the patents in suit. Mayo Collaborative Services and Mayo Clinic Rochester (together, "Mayo") formerly purchased and used Prometheus's test, but in 2004, Mayo announced that it intended to begin using internally at its clinics and selling to other hospitals its own test. Mayo's test measured the same metabolites as Prometheus's test, but Mayo's test used different levels to determine toxicity of 6-TG and 6-MMP.
On June 15, 2004, Prometheus sued Mayo for infringement of the patents. Prometheus asserted independent claims 1, 7, 22, 25, and 46 of the '623 patent and independent claim 1 of the '302 patent. Most of these claims cover a "method for optimizing therapeutic efficacy" and/or "reducing toxicity" in patients taking a drug such as AZA or 6-MP in the treatment of an immune-mediated gastrointestinal disease. See '623 patent claims 1, 7, 25, & 46; '302 patent claim 1. One independent claim was for treatment of a non-IBD autoimmune disease. See '623 patent claim 22. Prometheus also asserted several dependent claims that require either that the measurement of the metabolites is done using high pressure liquid chromatography, see '623 patent claims 6, 14, 24, 30, and 53, or that the thiopurine drug used is one of four specified drugs, see '623 patent claims 32, 33, 35, and 36. Mayo rescinded its announcement shortly after the lawsuit was filed and still has not launched its test.
On November 22, 2005, the district court held on cross-motions for summary judgment that Mayo's test literally infringed claim 7 of the '623 patent. Prometheus Labs., Inc. v. Mayo Collaborative Servs., No. 04-CV-1200, slip op. at 23 (S.D.Cal. Nov. 22, 2005) (Dkt. No. 227). In its opinion, the court construed "indicates a need" to mean "a warning that an adjustment in dosage may be required." Id. at 18. This construction did not require doctors to adjust drug dosage if the metabolite level reached the specified levels; rather, the court found the wherein phrases to mean "that when the identified metabolites reach the specified level, the doctor is warned or notified that a dosage adjustment may be required, if the doctor believes that is the proper procedure." Id. at 17-18.
On January 29, 2007, Mayo filed a motion for summary judgment of invalidity, arguing that the patents in suit are invalid because they claim unpatentable subject matter under 35 U.S.C. § 101. Specifically, Mayo contended that the patents impermissibly *1341 claim natural phenomenathe correlations between, on the one hand, thiopurine drug metabolite levels and, on the other hand, efficacy and toxicityand that the claims wholly preempt use of the natural phenomena.
On March 28, 2008, the district court granted Mayo's motion for summary judgment of invalidity under § 101. First, the court found that the patents claimed the correlations between certain thiopurine drug metabolite levels and therapeutic efficacy and toxicity. The court reasoned that, as construed in the November 2005 summary judgment order, the claims have three steps: (1) administer the drug to a subject; (2) determine metabolite levels; and (3) be warned that an adjustment in dosage may be required. The court stated that the fact that inventors framed the claims as treatment methods does not render the claims patentable. Rather, the court found that the "`administering' and `determining' steps are merely necessary data-gathering steps for any use of the correlations" and that "as construed, the final stepthe `warning' step (i.e. the `wherein' clause)is only a mental step." Invalidity Opinion, 2008 WL 878910, at *6. The court noted that the warning step does not require any actual change in dosage and that "it is the metabolite levels themselves that `warn' the doctor that an adjustment in dosage may be required." Id. With this understanding of the claims, the court concluded that the claims recited the correlations between particular concentrations of 6-TG and 6-MMP and therapeutic efficacy or toxicity in patients taking AZA drugs.
Second, the district court found that those correlations were natural phenomena and not patentable inventions because the correlations resulted from a natural body process. The court stated that the inventors did not "invent" the claimed correlation; rather, "6-TG and 6-MMP are products of the natural metabolizing of thiopurine drugs, and the inventors merely observed the relationship between these naturally produced metabolites and therapeutic efficacy and toxicity." Invalidity Opinion, 2008 WL 878910, at *7. Finally, the court determined that "[b]ecause the claims cover the correlations themselves, it follows that the claims `wholly pre-empt' the correlations." Id. at *11. Thus, the court concluded that there was no genuine issue of material fact to be resolved as to whether the patents in suit were directed to statutory subject matter and found by clear and convincing evidence that the claims were invalid under § 101.
On May 16, 2008, the district court entered final judgment, disposing of all the parties' claims and counterclaims. On May 30, 2008, Prometheus timely appealed the district court's grant of summary judgment of invalidity under § 101. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).
DISCUSSION
A. Standard of Review
We review the district court's grant of summary judgment de novo. AT & T Corp. v. Excel Commc'ns, 172 F.3d 1352, 1355 (Fed.Cir.1999). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). Whether a patent claim is directed to statutory subject matter is a question of law that we review de novo. AT & T, 172 F.3d at 1355.
B. Section 101
The issue before us is whether the claims meet the requirements of § 101, so we begin with the text of the statute. Section 101 provides that:
*1342 Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title.
35 U.S.C. § 101. According to § 100(b), "[t]he term `process' means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or materials." 35 U.S.C. § 100(b). But, as noted in In re Bilski, this definition of process is "unhelpful" because the definition itself uses the term "process." 545 F.3d 943, 951 n. 3 (Fed.Cir. 2008) (en banc), cert. granted, ___ U.S. ___, 129 S.Ct. 2735, 174 L.Ed.2d 246 (2009). Thus, we turn to the case law to guide our understanding of what constitutes statutory subject matter under § 101.
The Supreme Court has construed § 101 broadly, noting that Congress intended statutory subject matter to "include anything under the sun that is made by man." Diamond v. Chakrabarty, 447 U.S. 303, 309, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980). It is well-established, however, that this sweeping statement does not indicate that § 101 is unlimited and embraces every discovery:
[A] new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are "manifestations of ... nature, free to all men and reserved exclusively to none."
Id. (quoting Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S.Ct. 440, 92 L.Ed. 588 (1948)). More specifically, the Court has held that a claim to a process is not patent-eligible if it claims "laws of nature, natural phenomena, and abstract ideas." Diamond v. Diehr, 450 U.S. 175, 185, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981); see also Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972) ("Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.").
At the same time, it has also been established that "while a claim drawn to a fundamental principle"i.e., a law of nature, natural phenomenon, or abstract idea"is unpatentable, `an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.'" Bilski, 545 F.3d at 953 (quoting Diehr, 450 U.S. at 187, 101 S.Ct. 1048). The key issue for patentability, then, at least on the present facts, is whether a claim is drawn to a fundamental principle or an application of a fundamental principle. Although this inquiry is hardly straightforward, following the Supreme Court, we articulated in Bilski a "definitive test" for determining whether a process is patent-eligible under § 101: "A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing." Id. The machine-or-transformation test is a "two-branched inquiry," i.e., the patentee "may show that a process claim satisfies § 101 either by showing that his claim is tied to a particular machine, or by showing that his claim transforms an article." Id. at 961.
The machine-or-transformation test has two further aspects: "the use of a specific machine or transformation of an article must impose meaningful limits on the claim's scope to impart patent-eligibility," and "the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution *1343 activity." Bilski, 545 F.3d at 961-62 (citations omitted). "This transformation must be central to the purpose of the claimed process." Id. at 962. Thus, in most cases, one cannot ground the transformative nature of a process in a step that is "insignificant extra-solution activity" or merely a "data-gathering step." See id. at 963 ("Further, the inherent step of gathering data can also fairly be characterized as insignificant extra-solution activity."). In other words, if steps of a method are included for the purpose of data-gathering rather than being "central" to the purpose of the process, the patentee likely cannot rely on the data-gathering steps to prove that the claimed process is transformative and thus drawn to patentable subject matter. See id. at 963 (stating that mere data-gathering will not, "at least in most cases,... constitute a transformation of any article").
The Supreme Court has also made clear that the patent eligibility of a claim as a whole should not be based on whether selected limitations constitute patent-eligible subject matter. See Bilski, 545 F.3d at 958 (citing Diehr, 450 U.S. at 188, 101 S.Ct. 1048; Parker v. Flook, 437 U.S. 584, 594, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978)). As noted in Diehr, the Court has specifically stated that it is "inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis." 450 U.S. at 188, 101 S.Ct. 1048. Moreover, it is improper to consider whether a claimed element or step in a process is novel or nonobvious, since such considerations are separate requirements set forth in 35 U.S.C. §§ 102 and 103, respectively. Bilski, 545 F.3d at 958 (citing Diehr, 450 U.S. at 188-91, 101 S.Ct. 1048). With this understanding of the present state of the law, we now turn to the parties' arguments in the instant action.
C. Analysis
On appeal, Prometheus argues that the claimed processes satisfy § 101 because they meet both prongs of the machine-or-transformation test articulated in Bilski. With respect to the machine prong, Prometheus argues that the patents inextricably rely on numerous machines to process the bodily sample, determine the metabolite levels, and thereby calibrate the proper dose. Prometheus asserts that the district court erred by failing to consider separately the asserted dependent claims, some of which specify measurement through high pressure liquid chromatography, which clearly requires the use of machines. In addition, Prometheus contends that Bilski's use of "machine" in its machine-or-transformation test must be read as shorthand for all patentable subject matter, including compositions of matter. To that end, Prometheus argues that the synthetic drugs used in its treatment methods are compositions of matter, and the claims' central reliance on those drugs is enough to meet the machine-or-transformation test. Alternatively, Prometheus asserts that we should recognize that Bilski does not apply where, as here, the treatment methods use synthetic drugs and thus do not recite or wholly preempt any natural phenomenon.
With respect to the transformation prong, Prometheus points to three "transformations" within its claimed process: (1) the first step of administering a synthetic drug transforms the biochemical makeup of the patient's body for the purpose of treating disease; (2) the second step requires the transformation of a bodily sample to determine the created metabolites' concentration levels; and (3) the metabolite levels are transformed into a warning for a doctor to alter the dosage. Regarding the first asserted transformation, Prometheus argues that physical transformations, *1344 such as the human body's metabolic reaction to drugs, initiated by human actions and artificial chemical compounds, such as the administration of a thiopurine drug into the body, cannot be unpatentable under Bilski simply because they proceed according to natural laws or occur within the human body. Prometheus contends that everything proceeds according to natural laws. Regarding the second asserted transformation, Prometheus argues that all of the several methods available to determine the metabolite levels in a bodily sample require a physical transformation of blood or human tissue in order to extract the metabolite and determine its concentration. Finally, regarding the third asserted transformation, Prometheus posits that the ultimate end of the processes is to transformand improvethe patient's treatment regime while avoiding deadly side effects by transforming the metabolite levels into a warning regarding dosage.
Prometheus then argues that these machines and transformations are central to the invention's purpose of improving a process of treatment and are not confined to extra-solution activity. Prometheus asserts that the district court erred by parsing the steps of the treatment method rather than looking at the method as a whole, which applies the correlations in concrete physical processesthat Prometheus argues are patentable absent the correlationto generate useful information. Prometheus contends that adoption of the district court's reasoning would have the effect of eliminating all medical treatment and diagnostic patents, when future medical advances will depend on optimizing treatment based on genetic or other testing.
Mayo responds that the district court properly examined the claims as a whole and correctly determined that they recite the correlations themselves, which are natural phenomena. With respect to the machine prong, Mayo argues that any involvement of machines is insignificant extra-solution activity. Mayo asserts that the step of determining the metabolite levels via an unspecified machine is merely gathering data that is necessary to correlate information. Mayo argues that Bilski requires the use of a "particular machine or apparatus" and that no particular machine is involved in Prometheus's process. Mayo contends that Prometheus's reliance on the dependent claims reciting the use of high pressure liquid chromatography is misplaced because choosing to limit the claims to one possible method for performing one of the steps is not sufficient to impart patentability over a natural phenomenon.
Similarly, with respect to the transformation prong, Mayo argues that there is no patentable transformation in the claimed processes. First, Mayo asserts that the administering step is merely a data-gathering step. Mayo points out that the asserted claims do not all include the administering step and thus argues that the administration of the drug cannot be central to the claim. Mayo also contends that although the thiopurine drugs used in the claims are synthetic, the body's reaction to them is natural, and the drugs themselves were well known. Second, Mayo argues that the determining step is also data-gathering necessary to make any use of the correlations, and the presence of the physical step of transforming clinical samples does not impart patentability to claims to natural correlations. Third, Mayo argues that there is no transformation of data into a warning because the claims do not require any action to be taken to adjust dosage. Under the claim construction argued by Prometheus and adopted by the district court, the final step is a mental step and thus, Mayo argues, the data undergoes no transformation at all.
*1345 Furthermore, Mayo asserts that the district court properly determined not only that the claims were to the correlations themselves but that the claims preempt all practical use of the correlations. Post-Bilski, Mayo argues that Supreme Court precedent invalidating a claim that wholly preempts a natural phenomenon such that the practical effect is a patent on the phenomenon itself still stands. Mayo contends that because nothing is done with the naturally occurring correlation, the claims cover all implementations resulting from that natural phenomenon and are thus unpatentable. Finally, Mayo argues that invalidating Prometheus's claims will not affect medical treatment methods because infringement of the asserted claims requires no act by a physician at all and no treatment of any disease or condition in a patient. Furthermore, Mayo asserts that upholding the claims under § 101 is dangerous because infringement would occur any time the natural correlation was even considered by a physician.
A number of amici curiae filed helpful briefs on both sides. Those supporting Prometheus argued that the transformation that flows from the use of thiopurine drugs in the patented processes is not "insignificant" post-solution activity but rather a specific and practical application of the correlations in medical treatment. They also argue that the future of personalized medicine will involve knowledge of the physiological or biological significance of biomarkers and how to use them in diagnostic or therapeutic procedures and that patents on those biomarkers should be granted. Those supporting Mayo argue that the district court properly found that the claims impermissibly preempt a natural statistical correlation by asserting exclusive rights over the mere recognition by a treating physician of those correlations. They argue that finding Prometheus's claim to cover patentable subject matter would be granting exclusive rights over mere knowledge of the correlations and would thus interfere with the provision of medical care and with research and quality control in clinical chemistry.
1. The administering and determining steps are transformative
We agree with Prometheus that the asserted claims are drawn to statutory subject matter and thus reverse the district court's grant of Mayo's motion for summary judgment of invalidity. As an initial matter, we note that the only issue before us is whether the claims meet the requirements of § 101. This appeal does not raise any questions about lack of novelty, obviousness, or overbreadth, since those are separate statutory requirements for patentability under §§ 102, 103, and 112, respectively. See Bilski, 545 F.3d at 958 (citing Diehr, 450 U.S. at 188-91, 101 S.Ct. 1048). The proper inquiry under § 101 is whether these methods meet the Supreme Court's machine or transformation test articulated in Benson and Diehr, and applied in Bilski, and, if so, whether the machine or the transformation is central to the purpose of the claims.[2]
We conclude that the methods of treatment claimed in the patents in suit squarely fall within the realm of patentable subject matter because they "transform an article into a different state or thing," and this transformation is "central to the purpose of the claimed process." See Bilski, *1346 545 F.3d at 962. The transformation is of the human body following administration of a drug and the various chemical and physical changes of the drug's metabolites that enable their concentrations to be determined. Because the claimed methods meet the transformation prong under Bilski, we do not consider whether they also meet the machine prong.
Contrary to the district court, we do not view the disputed claims as merely claiming natural correlations and data-gathering steps.[3] The asserted claims are in effect claims to methods of treatment, which are always transformative when a defined group of drugs is administered to the body to ameliorate the effects of an undesired condition. More specifically, Prometheus here claimed methods for optimizing efficacy and reducing toxicity of treatment regimes for gastrointestinal and non-gastrointestinal autoimmune diseases that utilize drugs providing 6-TG by administering a drug to a subject. The invention's purpose to treat the human body is made clear in the specification and the preambles of the asserted claims. See '623 patent col.2 ll.16-19 ("The present invention provides a method of optimizing therapeutic efficacy of 6-mercaptopurine drug treatment of an immune-mediated gastrointestinal disorder."); see, e.g., id. claim 1 ("A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising..."); id. claim 7 ("A method of reducing toxicity associated with treatment of an immune-mediated gastrointestinal disorder, comprising ..."); id. claim 22 ("A method of optimizing therapeutic efficacy of treatment of a non-IBD autoimmune disease, comprising ...").
When administering a drug such as AZA or 6-MP, the human body necessarily undergoes a transformation. The drugs do not pass through the body untouched without affecting it. In fact, the transformation that occurs, viz., the effect on the body after metabolizing the artificially administered drugs, is the entire purpose of administering these drugs: the drugs are administered to provide 6-TG, which is thought to be the drugs' active metabolite in the treatment of disease, to a subject. See '623 patent col.1 ll.49-51. The fact that the change of the administered drug into its metabolites relies on natural processes does not disqualify the administering step from the realm of patentability. As Prometheus points out, quite literally every transformation of physical matter can be described as occurring according to natural processes and natural law. Transformations operate by natural principles. The transformation here, however, is the result of the physical administration of a drug to a subject to transform i.e., treatthe subject, which is itself not a natural process. "It is virtually self-evident that a process for a chemical or physical transformation of physical objects or substances is patent-eligible subject matter." See Bilski, 545 F.3d at 962. The administering step, therefore, is not merely data-gathering but a significant transformative element of Prometheus's claimed methods of treatment that is "sufficiently definite to confine the patent monopoly *1347 within rather definite bounds." Id. (quoting Benson, 409 U.S. at 70, 93 S.Ct. 253).
Mayo is correct that not all of the asserted claims contain the administering step. That omission, which occurs in claims 46 and 53 of the '623 patent, does not diminish the patentability of the claimed methods because the determining step, which is present in each of the asserted claims, is also transformative and central to the claimed methods. Determining the levels of 6-TG or 6-MMP in a subject necessarily involves a transformation, for those levels cannot be determined by mere inspection. Some form of manipulation, such as the high pressure liquid chromatography method specified in several of the asserted dependent claims or other modification of the substances to be measured, is necessary to extract the metabolites from a bodily sample and determine their concentration. As stated by Prometheus's expert, "at the end of the process, the human blood sample is no longer human blood; human tissue is no longer human tissue." Decl. of Dr. Yves Théorêt ¶ 6, Prometheus Labs., Inc. v. Mayo Collaborative Servs., No. 04-CV-1200 (S.D.Cal. Mar. 29, 2007) (Dkt. No. 528-3). That is clearly a transformation. In fact, Mayo does not dispute that determining metabolite levels in the clinical samples taken from patients is transformative, but argues that this transformation is merely a necessary data-gathering step for use of the correlations. Appellees' Br. 37 ("The `transformation' of the patient's sample is merely a necessary data-gathering step.... [T]he presence of the physical step of transforming clinical samples taken from patients does not impart patentability to Prometheus' claims to the natural correlations."). On the contrary, this transformation is central to the purpose of the claims, since the determining step is, like the administering step, a significant part of the claimed method of treatment. Measuring the levels of 6-TG and 6-MMP is what enables possible adjustments to thiopurine drug dosage to be detected for optimizing efficacy or reducing toxicity during a course of treatment. The determining step, by working a chemical and physical transformation on physical substances, likewise sufficiently confines the patent monopoly, as required by Bilski.
2. The administering and determining steps are not merely data-gathering
A further requirement for patent-eligibility is ensuring that the involvement of the transformation in Prometheus's claimed process is "not merely insignificant extra-solution activity." Bilski, 545 F.3d at 962 (citing Flook, 437 U.S. at 590, 98 S.Ct. 2522). As made clear from the discussion above, the administering and determining steps are transformative and are central to the claims rather than merely insignificant extra-solution activity.
The crucial error the district court made in reaching the opposite conclusion was failing to recognize that the first two steps of the asserted claims are not merely data-gathering steps. See Invalidity Opinion, 2008 WL 878910, at *6 (finding that "the `administering' and `determining' steps are merely necessary data-gathering steps for any use of the correlations"). While it is true that the administering and determining steps gather useful data, it is also clear that the presence of those two steps in the claimed processes is not "merely" for the purpose of gathering data. Instead, the administering and determining steps are part of a treatment protocol, and they are transformative. As explained above, the administering step provides thiopurine drugs for the purpose of treating disease, and the determining step measures the drugs' metabolite levels for the purpose of assessing the drugs' dosage during the course of treatment.
*1348 Given the integral involvement of the administering and determining steps in Prometheus's therapeutic methods, this case is easily distinguishable from prior cases that found asserted method claims to be unpatentable for claiming data-gathering steps and a fundamental principle. Perhaps the case that offers the closest comparison is In re Grams, 888 F.2d 835 (Fed.Cir.1989), but the asserted claims found unpatentable in that case are readily distinguished from those in the instant action. In Grams, the applicant claimed a process that involved (1) performing a clinical test on individuals and (2) based on the data from that test, determining if an abnormality existed and determining possible causes of any abnormality by using an algorithm. We found that this process was not drawn to patentable subject matter because the essence of the claimed process was the mathematical algorithm, rather than any transformation of the tested individuals. 888 F.2d at 839-41. More specifically, the Grams process was unpatentable because "it was merely an algorithm combined with a data-gathering step," i.e., performing a clinical test. Bilski, 545 F.3d at 963. The claims did not require the performing of clinical tests on individuals that were transformativeand thus rendering the entire process patentable subject matterbecause the tests were just to "obtain data." Grams, 888 F.2d at 840. The patent and thus the court focused only on the algorithm rather than the clinical tests purported to be covered by the claims.
Here, unlike the clinical test recited in Grams, the administering and determining steps in Prometheus's claimed methods are not "merely" data-gathering steps or "insignificant extra-solution activity"; they are part of treatment regimes for various diseases using thiopurine drugs. See Bilski, 545 F.3d at 963 (discussing Grams). As a result, the administering and determining steps are not insignificant extra-solution activity, and the claims are therefore not drawn merely to correlations between metabolite levels and toxicity or efficacy.
3. The presence of a mental step does not detract from patentability
We agree with the district court that the final "wherein" clauses are mental steps and thus not patent-eligible per se. However, although they alone are not patent-eligible, the claims are not simply to the mental steps. A subsequent mental step does not, by itself, negate the transformative nature of prior steps. Thus, when viewed in the proper context, the final step of providing a warning based on the results of the prior steps does not detract from the patentability of Prometheus's claimed methods as a whole. The data that the administering and determining steps provide for use in the mental steps is obtained by steps well within the realm of patentable subject matter. The addition of the mental steps to the claimed methods thus does not remove the prior two steps from that realm.
This analysis is consistent with In re Abele, 684 F.2d 902 (CCPA 1982).[4] In Abele, a method claim called for the use of X-ray attenuation data, which necessarily involved production, detection, and display with a CAT scan. The method also called for use of an algorithm. We found that the claim was patentable because removal of the algorithm still left all the steps of a CAT scan in the claim; thus, the production *1349 and detection could not be considered "mere antecedent steps to obtain values for solving the algorithm. ... We view the production, detection, and display steps as manifestly statutory subject matter, and are not swayed from this conclusion by the presence of an algorithm in the claimed method." Id. at 908. In the instant case, the presence of the mental steps similarly does not detract from the patentability of the administering and determining steps.
As we explained in Bilski,
[I]t is inappropriate to determine the patent eligibility of a claim as a whole based on whether selected limitations constitute patent-eligible subject matter. After all, even though a fundamental principle itself is not patent-eligible, processes incorporating a fundamental principle may be patent-eligible. Thus, it is irrelevant that any individual step or limitation of such processes by itself would be unpatentable under § 101.
545 F.3d at 958 (citations omitted). Such is the case here. Although the wherein clauses describe the mental processes used to determine the need to change the dosage levels of the drugs, each asserted claim as a whole is drawn to patentable subject matter. Although a physician is not required to make any upward or downward adjustment in dosage during the "warning" step, the prior steps provide useful information for possible dosage adjustments to the method of treatment using thiopurine drugs for a particular subject. When viewing the treatment methods as a whole, Prometheus has claimed therapeutic methods that determine the optimal dosage level for a course of treatment. In other words, when asked the critical question of "What did the applicant invent?," Grams, 888 F.2d at 839 (citation omitted), the answer is a series of transformative steps that optimizes efficacy and reduces toxicity of a method of treatment for particular diseases using particular drugs.
Furthermore, the district court erred in finding that the claims wholly preempt use of correlations between metabolite levels and efficacy or toxicity. The court reached this conclusion because "the claims cover the correlations themselves." Invalidity Opinion, 2008 WL 878910, at *11. As discussed above, the claims are to transformative methods of treatment, not correlations. The claims cover a particular application of natural processes to treat various diseases, but transformative steps utilizing natural processes are not unpatentable subject matter. Moreover, the claims do not preempt natural processes; they utilize them in a series of specific steps. See Diehr, 450 U.S. at 187, 101 S.Ct. 1048 ("Their process admittedly employs a well-known mathematical equation, but they do not seek to preempt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process."). Regardless, because the claims meet the machine-or-transformation test, they do not preempt a fundamental principle. See Bilski, 545 F.3d at 954 (characterizing the machine-or-transformation test as "a definitive test to determine whether a process is tailored narrowly enough to encompass only a particular application of a fundamental principle rather than to pre-empt the principle itself"). The inventive nature of the claimed methods stems not from preemption of all use of these natural processes, but from the application of a natural phenomenon in a series of transformative steps comprising particular methods of treatment. See id. ("[A] claimed process that transforms a particular article to a specified different state or thing by applying a fundamental principle would not pre-empt the use of the principle to transform any other article, to transform the *1350 same article but in a manner not covered by the claim, or to do anything other than transform the specified article."). It is clear that these methods of treatment are § 101 patentable subject matter.
Thus, the claimed methods satisfy all of the requirements under Bilski's transformation prong for patent-eligible subject matter under § 101.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the district court and remand to the court with instructions to deny Mayo's motion for summary judgment that the asserted claims are invalid under § 101.
REVERSED and REMANDED
NOTES
[*] Honorable Ron Clark, District Judge, United States District Court for the Eastern District of Texas, sitting by designation.
[1] For the purposes of this opinion, "6-TG" encompasses 6-thioguanine nucleotides.
[2] We note that the district court did not have the benefit of our Bilski decision when deciding the § 101 issue. However, we believe that even prior to Bilski, the asserted claims should have been found to be patentable subject matter under the Supreme Court's decisions in Benson and Diehr and our cases such as In re Grams, 888 F.2d 835 (Fed.Cir.1989), and In re Abele, 684 F.2d 902 (CCPA 1982).
[3] In reaching its conclusion, the district court relied heavily on the opinion of three justices dissenting from the dismissal of the grant of certiorari in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U.S. 124, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006) (Breyer, J., dissenting). See Invalidity Opinion, 2008 WL 878910, at *8 (discussing the dissent in Laboratory Corp. at length and stating that although the dissent "does not have precedential value, the Court finds Justice Breyer's reasoning persuasive"). That dissent is not controlling law and also involved different claims from the ones at issue here.
[4] Although Bilski reiterated that the Freeman-Walter-Abele test is "inadequate" for determining patent-eligibility, Bilski spoke approvingly of the analysis regarding the patent-eligible method in Abele. See Bilski, 545 F.3d at 962-63. Thus, the determination that claim 6 of Abele's patent was patent-eligible subject matter is still good law post-Bilski.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0201n.06
No. 14-3519
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
SEXTET MINING CORPORATION, ) Mar 12, 2015
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE BENEFITS
MARY WHITFIELD and DIRECTOR, OFFICE OF ) REVIEW BOARD OF THE
WORKERS’ COMPENSATION PROGRAMS, ) UNITED STATES
UNITED STATES DEPARTMENT OF LABOR, ) DEPARTMENT OF LABOR
)
Respondents. )
Before: KETHLEDGE and DONALD, Circuit Judges; McCALLA, District Judge.*
KETHLEDGE, Circuit Judge. Sextet Mining Corporation petitions for review of an
administrative order requiring the company to pay benefits to a deceased coal miner’s widow.
Sextet primarily argues that the agency violated one of its own rules when it entered a proposed
order without prior notice to Sextet. We deny the petition.
I.
A.
A coal miner who is totally disabled due to pneumoconiosis, i.e., black-lung disease, may
claim federal benefits. 30 U.S.C. § 901. If a miner dies either from pneumoconiosis or,
*
The Honorable Jon Phipps McCalla, Senior United States District Judge for the Western
District of Tennessee, sitting by designation.
No. 14-3519
Sextet Mining Corp. v. Whitfield
regardless of the cause, while receiving benefits, his dependents may also claim survivor’s
benefits. 30 U.S.C. §§ 901, 932(l).
When a miner or survivor files a claim, a district director in the Office of Workers’
Compensation Programs reviews the claim to determine both the claimant’s eligibility for
benefits and who should pay them. 20 C.F.R. §§ 725.303(a), 725.350(a)-(b), 725.351(a),
725.401. To determine who should pay a claim—the Black Lung Disability Trust Fund or the
mining operator that employed the miner—the director typically sends a notice to every operator
that might be liable. § 725.407(b). The notice gives the operator 30 days to contest its liability
and 90 days to submit documentary evidence. § 725.408. If an operator submits evidence, the
director reviews that evidence, and then issues a schedule containing his initial determination of
the operator’s liability and providing at least 60 days to submit additional evidence.
§ 725.410(a), (b).
Next, the director issues a proposed decision and order, which determines benefits and
liability based on the available evidence. § 725.418(a). A proposed decision must include,
among other things, the “director’s final designation” of the operator responsible for paying
benefits. § 725.418(d). If that operator disagrees with the director’s designation, the operator
may request a revision of the proposed order or a hearing before an administrative-law judge
(“ALJ”). § 725.419(a), (c).
If the operator requests a hearing, an ALJ determines the claimant’s eligibility and the
operator’s liability without considering the director’s prior findings and determinations.
§§ 725.455(a); 725.476. To aid the ALJ, the operator may submit briefs and additional evidence.
§ 725.455(b), (d). But an oral hearing is not required: the ALJ may resolve a claim based on the
paper record after giving the operator notice and at least 30 days to respond. § 725.455(d). An
-2-
No. 14-3519
Sextet Mining Corp. v. Whitfield
operator may appeal the ALJ’s decision to the Benefits Review Board and, ultimately, to a
federal circuit court. §§ 725.481, 725.482(a).
B.
In 2008, an ALJ ordered Sextet to pay black-lung benefits to a longtime coal miner,
Needham Whitfield, who was totally disabled due to pneumoconiosis. Sextet paid the benefits
for four years—until Needham died of renal failure in August 2012. Needham’s widow, Mary
Whitfield, then filed a claim for survivor’s benefits.
The district director did not conduct a typical review of her claim; rather, in September
2012, the director expedited the process by issuing a proposed decision and order, without first
notifying Sextet of the claim or allowing Sextet to submit evidence. In the proposed decision,
the director said that 30 U.S.C. § 932(l) automatically entitled Whitfield to survivor’s benefits
because her husband had been receiving black-lung benefits when he died. The director mailed
the proposed decision to Sextet, explaining that it had 30 days to contest the decision or to
submit evidence. Sextet did not respond.
In October 2012, the director issued another order stating that its earlier proposed
decision was now final. The agency mailed that order both to Sextet and—unlike the first
order—to an attorney that had represented Sextet in past cases. This time, Sextet responded. It
said that the agency had not served the proposed decision on Sextet’s counsel of record, that
Sextet objected to the director’s liability determination, and that Sextet wanted a hearing. The
director transferred the claim to an ALJ.
In April 2013, the ALJ ordered Sextet to show cause why benefits should not be awarded
without a hearing. Sextet responded that the director’s expedited review had violated due
process. Sextet also requested a stay while another company sought further review of a Sixth
-3-
No. 14-3519
Sextet Mining Corp. v. Whitfield
Circuit decision that interpreted § 932(l). See Vision Processing, LLC v. Groves, 705 F.3d 551
(6th Cir. 2013). The ALJ decided that a hearing was unnecessary, explaining that Sextet did not
dispute that Whitfield was an eligible survivor and was therefore automatically entitled to
benefits under § 932(l). For these same reasons, the ALJ also ruled that Sextet was liable.
Sextet appealed, but the Board affirmed. The Board observed that Sextet did “not dispute
its designation as the responsible operator liable for the payment of any benefits owed to
[Whitfield,]” and the Board rejected various procedural challenges to the ALJ’s decision. The
Board also agreed with the ALJ that § 932(l) automatically entitled Whitfield to survivor’s
benefits, regardless of her husband’s cause of death.
This petition for review followed.
II.
Sextet argues that § 932(l) does not automatically confer survivor’s benefits on the
widow of a miner who dies while receiving black-lung benefits. We rejected that argument in
Vision Processing, 705 F.3d 551, which binds us here. See Grundy Mining Co. v. Flynn,
353 F.3d 467, 479 (6th Cir. 2003). So we reject it again here.
Sextet’s principal argument is that the adjudicative process violated 20 C.F.R.
§ 725.418(d). At the time of the proposed decision in favor of Whitfield, § 725.418(d) provided
in relevant part:
The proposed decision and order must reflect the district director’s final
designation of the responsible operator liable for the payment of benefits. No
operator may be finally designated as the responsible operator unless it has
received notification of its potential liability pursuant to § 725.407, and the
opportunity to submit additional evidence pursuant to § 725.410.
20 C.F.R. § 725.418 (2012).
-4-
No. 14-3519
Sextet Mining Corp. v. Whitfield
Sextet argues that the district director violated § 725.418(d) when the director issued the
proposed decision without first notifying Sextet that it might have to pay Whitfield’s claim
(under § 725.407) or giving Sextet at least 60 days to present its evidence (under § 725.410). To
obtain relief, Sextet must also show that it was “prejudiced on the merits or deprived of
substantial rights[.]” Connor v. U.S. Civil Service Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983).
Sextet’s complaint is that it was denied an opportunity to present its evidence and legal
arguments. But Sextet received two chances to do precisely that: first, when the director invited
Sextet to request a revision of the proposed decision; and second, when the ALJ issued a show-
cause order asking whether the ALJ should find Sextet liable. But Sextet chose not to contest the
director’s determination that Sextet was the operator responsible for any benefit payments made
to Whitfield. Nor did Sextet dispute her eligibility for survivor’s benefits. Instead, Sextet
challenged the legal rule conferring those benefits—which by then we had upheld in a published
decision. See Vision Processing, 705 F.3d 551. Thus, on the record here, the putative procedural
violation made no difference to the ultimate outcome—which means it was harmless.
Sextet responds that an agency’s disregard of a rule granting a party a procedural right—
such as the right to submit evidence—is always prejudicial. But we reached the opposite
conclusion in Villegas de la Paz v. Holder, 640 F.3d 650 (6th Cir. 2010). There, the Department
of Homeland Security failed to give an alien the opportunity to contest the reinstatement of a
removal order, in violation of the Department’s own regulations. Id. at 656. But the alien
disputed only a single premise underlying the removal order, and the record otherwise showed
that her position was incorrect. Id. We therefore held that the error was harmless, explaining
that the alien’s “inability to make a statement could not have affected the agency’s decision.” Id.
That same reasoning applies here.
-5-
No. 14-3519
Sextet Mining Corp. v. Whitfield
The petition for review is denied.
-6-
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763 A.2d 560 (2000)
PSSU, LOCAL 668, OF SEIU, AFL-CIO, Petitioner,
v.
PA LABOR RELATIONS BOARD, Respondent.
Commonwealth Court of Pennsylvania.
Argued October 3, 2000.
Decided December 6, 2000.
Bruce M. Ludwig, Philadelphia, for petitioner.
Jennifer E. Will, Harrisburg, for respondent.
Lisa K. Essman, Harrisburg, for intervenor, Com.
Before McGINLEY, Judge, LEADBETTER, and Judge, JIULIANTE, Senior Judge.
LEADBETTER, Judge.
Pennsylvania Social Services Union, Local 668 of SEIU, AFL-CIO (PSSU) appeals from the order of the Pennsylvania Labor Relations Board (Board) which held that a written dress code policy unilaterally instituted by the Commonwealth of Pennsylvania (employer) was not a mandatory subject of collective bargaining. Upon review, we affirm.
In 1991, employer issued its first memorandum relating to appropriate office attire *561 for employees in the Luzerne County Assistance Office (CAO). The memo instructed employees to wear "clothing appropriate to the office setting" because CAO "is an office which provides a service and is open to the general public." In 1997, employer issued a second memorandum regarding the conduct and appearance of CAO employees which required employees to "wear clothing that is considered appropriate attire for a business atmosphere." The memo further stated that "clothing that is tight, short, and/or revealing is not consistent with the professional image that we want to project." Prior to the dress code memoranda, there was an ongoing expectation that CAO employees dress appropriately.
On April 24, 1998, employer issued a third memorandum regarding appropriate attire for office employees. The memo explained employer's continuing interest in ensuring that the public is served in a professional environment. Further, it explained in detail that certain clothing is inappropriate for a business atmosphere. Specifically, the memo provided that:
"Recreational clothing," such as halter tops, T-shirts or sweatshirts with slogans or advertisements, shorts, sandals without socks or foot coverings, sweat suits, frayed or tattered jeans and sneakers, or similar apparel is not acceptable attire.
The 1998 memo also provided that employees wearing unacceptable attire would be disciplined in accordance with the following policy:
(1) First occurrenceAdvised that their attire is inappropriate for our office setting. Unless attire is outrageous, the employee will be allowed to work out the shift.
(2) Second occurrenceEmployee will be required to leave work on their own chargeable time and change to suitable attire before returning to duty.
(3) Third occurrenceDisciplinary action will be instituted.
By letter dated June 9, 1998, PSSU demanded employer "cease and desist from any further discussions around dress codes" and "enter into the bargaining process over the issue" because the implementation of a dress code is a change in working conditions requiring collective bargaining.
On August 3, 1998, PSSU filed an unfair labor charge with the Board alleging that employer had violated Sections 1201(a)(1) and (5) of the Public Employe Relations Act (PERA)[1] by unilaterally implementing a new dress code policy.[2] The Secretary of the Board declined to issue a complaint reasoning that a dress code for professional employees under PERA is a matter of managerial prerogative[3] and, therefore, is *562 not subject to the bargaining provisions of Section 1201(a). PSSU excepted to the Board, which remanded the matter to the Secretary with direction to issue a complaint. On November 24, 1998, the Secretary issued a complaint and notice of hearing. Based upon the April 1, 1999 hearing, the hearing examiner concluded that employer's unilateral implementation of a dress code policy, without bargaining with PSSU, was an unfair labor practice in violation of Section 1201(a). The hearing examiner ordered the rescission of the written dress code along with any discipline imposed pursuant to the policy. Employer filed exceptions with the Board. The Board applied the balancing test set forth by our Supreme Court in Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975) and held that the dress code was not a mandatory subject of collective bargaining under Section 701 of PERA.[4] This appeal followed.
On appeal, PSSU first contends that the imposition of a restrictive dress code, which prohibits forms of clothing typically worn by employees and imposes discipline for the violation of the policy, is a mandatory subject of bargaining under PERA. PSSU contends that the Board erroneously applied the State College balancing test to the facts at hand based on the demonstrable impact of a written dress code on the legitimate interest of the CAO employees. PSSU cites to the decision of the hearing examiner in support of its contention that a restrictive dress code impacts on the interests of the employees, specifically their interests in freedom of choice of attire, physical comfort as well as the impact of the disciplinary penalties attached to the policy.
The Board will find an unfair labor practice in violation of Sections 1201(a)(1) and (5) where an employer unilaterally changes a mandatory subject of bargaining under Section 701 of PERA. Appeal of Cumberland Valley Sch. Dist., 483 Pa. 134, 394 A.2d 946 (1978). However, an employer may make policy concerning matters of inherent managerial policy in accordance with Section 702 without committing an unfair practice. See 43 P.S. § 1101.702. Therefore, the relevant inquiry before the Board was whether the dress code policy was a mandatory subject of bargaining or a matter of inherent managerial prerogative.
The Supreme Court gave the following guidance in making the critical distinction between a mandatory subject of bargaining and a managerial prerogative in State College School District:
[W]here an item of dispute is a matter of fundamental concern to the employes' interest in wages, hours and other terms and conditions of employment, it is not removed as a matter subject to good faith bargaining under section 701 simply because it may touch upon basic policy. It is the duty of the Board in the first instance and the courts thereafter to determine whether the impact of the issue on the interest of the employe in wages, hours and terms and conditions of employment outweighs its probable effect on the basic policy of the system as a whole. If it is determined that the matter is one of inherent managerial policy but does affect wages, hours and terms and conditions of employment, the public employer shall be *563 required to meet and discuss such subject upon the request of the public employes' representative pursuant to section 702.
State College School District, 461 Pa. at 507, 337 A.2d at 268.
Initially, we note that upon determining that this case presents a possible issue of first impression, the Board appropriately reviewed the law of other jurisdictions in making its determination. The Board then properly applied the State College balancing test and concluded that employer had a substantial interest in the professional delivery of services which substantially outweighed the impact of the policy on the employees. In support of its conclusion, the Board noted the following record evidence:
(1) clients of the CAO rely on the caseworkers to be professional and conduct themselves in an appropriate manner; (2) the CAO wants to instill confidence in their clients that they are receiving professional social services from the caseworkers and DPW; (3) CAO employes meet with clients, community service agencies, lawyers and the general public; (4) the CAO is concerned that the employes will send a negative message to community service agencies and the community in general if the employes are dressed in halter tops, tight, revealing clothes and cutoff jeans; [and] (5) CAO employes conduct workshops where they instruct clients regarding grooming, appearance and appropriate dress for the workplace.
PSSU Local 668, SEIU, AFL-CIO, CLC v. Department of Public Welfare, No. PERA-C-98-353-E (Final Order, December 21, 1999). Based upon employer's substantial interest in providing professional services to the public, the Board properly concluded that a dress code, which outlines specific minimum standards of appropriate attire, is appropriately within employer's managerial prerogative and is not subject to collective bargaining. While PSSU contends that CAO employees have a substantial interest in choosing their own attire and dressing comfortably, PSSU was required to present evidence in support of these assertions on the record. However, PSSU provided no evidence of impact and, in fact, the only CAO employee to testify did not state that the dress code impacted his duties or physical comfort in any way. Finally, the parties' collective bargaining agreement (CBA) delineates their negotiated disciplinary system and the 1998 dress code memorandum does not alter or conflict with that agreement. Article 31 of the CBA requires that employees "be apprised of conduct requirements for violation of which they may be disciplined.... Such appraisal may be by ... general means such as bulletin board notice or general mailing." The circulation of the memorandum duly informed the CAO employees of the conduct for which discipline may be imposed, i.e. three occurrences of an employee wearing unacceptable attire.
PSSU also attempts to challenge the 1998 memorandum governing appropriate office attire as vague and overbroad. However, upon further examination, the memo clearly sets out employer's expectations with regard to acceptable dress. CAO employees are required to meet minimal standards of dress, avoiding only such recreational clothing as halter tops, t-shirts and sweatshirts bearing slogans, shorts, tattered jeans and sneakers. This policy plainly delineates the directives of employer and is neither vague nor overbroad.
PSSU next contends that the Board committed error by failing to address the issue of whether employer is required to bargain over the impact of the dress code policy on employee wages, hours and terms and conditions of employment. However, PSSU raises the issue of impact bargaining for the first time in this appeal and, accordingly, the issue is waived. Further, PSSU failed to charge employer with refusing to bargain the impact of the dress code. It is apparent from PSSU's unfair labor charge that it *564 was challenging the dress code as a mandatory subject of bargaining, rather than asserting its separate impact on the terms and conditions of employment of CAO employees. Because PSSU made no such charge, the Board appropriately declined to conduct an impact bargaining analysis.[5]
Finally, PSSU contends that the Board made findings of fact unsupported by substantial evidence. Specifically, PSSU challenges the Board's Additional Findings of Fact Nos. 14-16. However, upon review, we conclude that the findings of the Board are fully supported by the record.
Accordingly, we affirm the final order of the Pennsylvania Labor Relations Board.
ORDER
AND NOW, this 6th day of December, 2000, the order of the Pennsylvania Labor Relations Board in the above-captioned matter is hereby AFFIRMED.
NOTES
[1] Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a)(1) and (5). Section 1201 provides in pertinent part:
§ 1101.1201. Unfair practices by public employers and employe organizations; acts prohibited
(a) Public employers, their agents or representatives are prohibited from:
(1) Interfering, restraining or coercing employes in the exercise of their rights guaranteed in Article IV of this act [regarding employes' right to join employe organizations or to engage in collective bargaining under 43 P.S. § 1101.401].
....
(5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit ...
[2] It is undisputed that the Commonwealth is a public employer and PSSU is an employee organization as defined by PERA. Further, PSSU is the exclusive representative of a bargaining unit that includes income maintenance caseworkers, income maintenance supervisors and energy assistance workers at the Department of Public Welfare assistance office in Luzerne County.
[3] Section 1101.702 provides as follows:
Public employers shall not be required to bargain over matters of inherent managerial policy, which shall include but shall not be limited to such areas of discretion or policy as the function and programs of the public employer, standards of services, its overall budget, utilization of technology, the organizational structure and selection and direction of personnel. Public employers, however, shall be required to meet and discuss on policy matters affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request of the public employe representatives.
43 P.S. § 1101.702 (emphasis added).
[4] Section 1101.701 provides in pertinent part:
Collective bargaining is the performance of the mutual obligation of the public employer and the representative of the public employes to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment ...
43 P.S. § 1101.701.
[5] Both the Board and PSSU assume that PERA imposes an impact bargaining requirement, although this interpretation is arguably at odds with 43 P.S. § 1101.702, which imposes only a "meet and discuss" obligation. This court has not decided this issue and we need not do so at this time.
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179 F.2d 265
ALBERT DICKINSON CO.v.MELLOS PEANUT CO. OF ILLINOIS.
No. 9847.
United States Court of Appeals Seventh Circuit.
January 12, 1950.
William T. Woodson, Beverly W. Pattishall, Lewis S. Garner, Chicago, Ill., for appellant.
Robert V. Conners, C. W. Eckert, Nicholas S. Limperis, Chicago, Ill., for appellee.
Before KERNER, DUFFY and FINNEGAN, Circuit Judges.
DUFFY, Circuit Judge.
1
Plaintiff brought this action claiming that defendant's trade-mark "Block Buster," infringes plaintiff's trade-mark, "Big Buster," and that defendant competed unfairly with plaintiff. On defendant's motion, the court granted a summary judgment in favor of the defendant, from which plaintiff appeals.
2
Plaintiff's verified complaint alleged, "Defendant's aforesaid product bearing the name Block Buster is likely to be passed off as and for plaintiff's Big Buster popcorn," and that the name, "Block Buster," is a colorable imitation of plaintiff's trademark, "Big Buster." Among other allegations of the complaint were that plaintiff's predecessor, on December 8, 1930, adopted the trade-mark, "Big Buster," to identify and distinguish its popcorn, and registered it on May 26, 1931, under the Trade-Mark Act of 1905; that sales of plaintiff's product bearing plaintiff's trade-mark "Big Buster," have been extensive throughout the United States and in several foreign countries; that plaintiff has spent large sums in advertising its product sold under its trade-mark; that the name, "Big Buster," means and is understood to mean plaintiff's product to the trade and to the public; that defendant recently adopted the name, "Block Buster," in connection with the sale of its popcorn, and did so with the full knowledge of plaintiff's extensive use of its trade-mark, "Big Buster," and did so for the purpose of trading upon and taking advantage of the reputation and good will of plaintiff's trade-mark, "Big Buster."
3
Defendant filed a verified answer alleging that its predecessor on January 18, 1944, adopted the name "Block Buster," for use on its popcorn, and registered this trade-mark on October 23, 1945, under the Trade-Mark Act of 1905 [15 U.S.C.A. § 1051 et seq.]. In its answer defendant makes the following specific denials: that plaintiff's trade-mark has become and is now distinctive of plaintiff's goods; that "Block Buster" is a colorable imitation and infringement of plaintiff's trade-mark, "Big Buster"; that defendant's product bearing the name, "Block Buster," is likely to be passed off as and for plaintiff's "Big Buster" popcorn; that it adopted the name, "Block Buster," as a trade-mark with the knowledge of plaintiff's extensive use of its trade-mark, "Big Buster"; that the use by the defendant of the name "Block Buster," was for the purpose of trading upon and taking advantage of the reputation and good will of plaintiff's trade-mark, "Big Buster"; and that the acts of defendant are likely to result in fraud and deception upon the public.
4
It will be noted that the pleadings present a number of genuine issues of material facts. Of course the allegations of fact in the pleadings may be pierced by proceedings for a summary judgment under Rule 56, Federal Rules Civil Procedure, 28 U.S.C.A. Engl v. Aetna Life Ins. Co. 2 Cir., 139 F.2d 469, 472; Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 6 Cir., 137 F.2d 871, 877; New York Life Ins Co. v. Cooper, et al., 10 Cir., 167 F.2d 651, 655; 3 Moore's Federal Practice 3175. Here, when defendant moved for summary judgment, it presented the affidavit of one Mellos, president of the defendant company, which referred to certain exhibits, one of which was the deposition of Lloyd M. Brown, president of the plaintiff company. This deposition was not taken for use in this action, but had been taken by the plaintiff for use in a cancellation proceeding in the Patent Office. Plaintiff objected to its use in this proceeding.
5
Other exhibits presented by defendant were labels showing the defendant's use of its mark, "Block Buster," and plaintiff's use of its mark, "Big Buster," on 100 lb. burlap sacks; also the use of another mark, "Little Buster," by plaintiff on paper cartons. In his affidavit the president of the defendant company stated that a search revealed the term, "Buster," had been registered over two dozen times for various products, and he produced a list of such registrations. Twelve of said registrations used the term, "Buster Brown," and only one other used the word, "Buster," as the second word of the mark, this being, "Gang Buster," referring to candy. Plaintiff presented one exhibit showing defendant's use of its mark on the label of a paper carton, but although afforded an opportunity to do so, plaintiff did not present any affidavits.
6
The district court relied chiefly on a side by side visual comparison, stating: "Placing the products of each side by side and by visual comparison having in mind the effect which would be produced in the mind of the ordinary purchaser exercising due care and caution, the court is of the opinion there is little, if any, likelihood such a purchaser would be misled or deceived into accepting the Block Buster product of defendant as and for the Big Buster product of the plaintiff." [81 F.Supp. 626, 629]. The district court dismissed from further consideration the allegation of unfair competition in the complaint, holding that it was based on the charge of colorable imitation of plaintiff's trade-mark, which the court found did not exist.
7
Defendant strongly relies on plaintiff's failure to file a counter-affidavit under provisions of Rule 56(c), F.R.C.P., and cites such cases as Gifford v. Travelers Protective Assn of America, 9 Cir., 153 F.2d 209; Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., supra; Allen et al. v. Radio Corp. of America, D.C., 47 F.Supp. 244. In the latter case the court stated that in the absence of counter-affidavits by plaintiff he accepted as true the statements in defendant's affidavit. There is also authority for the rule that the sufficiency of the allegations of a complaint do not ordinarily determine a motion for summary judgment. Lindsey v. Leavy, 9 Cir., 149 F.2d 899.
8
Under federal court practice, as a general rule pleadings need not be verified. Rule 11, F.R.C.P. Experience demonstrates that verifying complaints is not the usual practice. However, in the case at bar the complaint and the answer each were verified.
9
Rule 56(a) and (b) provides that either the claimant or the defending party may move with or without supporting affidavits for a summary judgment in his favor. Rule 56(c) provides: "* * * The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Despite the rule providing that the pleadings shall be considered, the defendant stoutly insists that plaintiff verified complaint be disregarded, and the allegations and statements of the defendant's affidavit be accepted as established and correct.
10
It is undoubtedly a somewhat hazardous course of procedure on a motion for summary judgment for the adverse party not to file an answering or opposing affidavit, where the moving party has filed an affidavit in support of his motion. However, we do not think an inflexible rule should be established that in every case the adverse party be penalized right out of court for not filing an opposing affidavit, especially where such party has already verified, under oath, many of the important allegations and statements of fact which would be included in such an affidavit. Moreover, Rule 56(c) states, "The adverse party * * * may serve opposing affidavits." This provision contemplates that answering affidavits will not be used in every case.
11
Illustrative of authorities holding that failure to file an opposing affidavit is not the determining factor are Griffith v. William Penn Broadcasting Co., D.C., 4 F.R. D. 475, at page 477, where the court said: "Defendant's failure to file a counter-affidavit to support its opposition to the motions is of no significance. * * * The burden rests upon plaintiff, the moving party, to establish the non-existence of a genuine issue of fact. * * *" Also, in United States v. Newbury Mfg. Co. et al., D.C., 1 F.R.D. 718, at page 719, the court said: "* * * The plaintiff has filed no counter affidavits by any prospective witness. This omission, however, does not entitle the defendant to a summary judgment if there is an issue of material fact to be tried. * * *" In support of its statement therein, the court cited Kent v. Hanlin, D.C., 35 F.Supp. 836; Whitaker v. Coleman, 5 Cir., 115 F.2d 305; and Merchants Distilling Corp. v. American Beverage Corp., D.C., 33 F.Supp. 304.
12
Rule 56(e), F.R.C.P., provides: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * *"
13
In Walling v. Fairmount Creamery Co., 8 Cir., 139 F.2d 318, at page 322, the court said: "* * * On a motion for a summary judgment the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, all doubts are resolved against him, and his supporting affidavits and depositions, if any, are carefully scrutinized by the court. * * *"
14
Scrutinizing the affidavit of defendant's president, while keeping in mind the provisions of Rule 56(e) hereinbefore quoted, it is obvious that only Paragraphs 9 and 10 of the affidavit are directed toward the real issues in the case at bar. Paragraphs 1 to 6 constitute a restatement of the facts admitted, and an admission that plaintiff's mark has a good will value in plaintiff's business. Paragraph 7 pertains to a point of law, and Paragraph 8 describes how "Block Buster" was conceived. Paragraph 11 refers to plaintiff's registration of another mark, "Little Buster"; Paragraph 12 refers to a private search report of trademark registration; and in the last paragraph, No. 13, affiant gives his opinion that there is no genuine issue of fact, and that defendant is entitled to judgment as a matter of law.
15
Do Paragraphs 9 and 10 give the court any additional information to that already before it in the complaint and answer? Paragraph 9 denies that defendant's mark colorably imitates or infringes plaintiff's mark, and states it was not adopted with "any knowledge of the extent of the use of plaintiff's mark." And Paragraph 10 denies that there is any confusion or likelihood of confusion. However, Paragraph 17 of the complaint and answer allege and deny, respectively, that "Block Buster" is a colorable imitation and infringement of plaintiff's "Big Buster." Paragraph 20 of the complaint and answer allege and deny, respectively, that defendant's adoption and use of "Block Buster" is for the purpose of taking advantage of plaintiff's reputation and good will in its trade-mark, "Big Buster." Hence, except possibly for three items, the affidavit added nothing to prove or establish the correctness of the allegations and denials in the answer. One was affiant's statement giving the result of a private search for previous registrations of the term, "Buster." In the form presented the evidence suggested therein would have been inadmissible. The second item was the deposition of Brown, president of the plaintiff, which was taken in another proceeding. Assuming that parts of it might have been used as admissions against interest, plaintiff would then have been entitled to introduce the balance of the relatively short deposition in order to show the context from which the statements were taken. As a whole the deposition was strongly favorable to plaintiff's contentions. The third item is that the court was afforded the opportunity to make a visual comparison side by side of the two trade-marks. This point will be discussed later.
16
We are of the opinion that defendant's contention as to the effect of its filing an affidavit cannot be sustained, and we will therefore now consider the issues on the merits. Of course, we are not called upon to decide any issue of fact here presented, but only to ascertain whether any genuine issue of material fact exists.
17
Although Rule 56, F.R.C.P., may be used many times as a worth-while time-saving device, it should be cautiously invoked. Associated Press et al. v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013; Preston v. Aetna Life Insurance Co., 7 Cir, 174 F.2d 10, 14.
18
Plaintiff herein was in the field with its mark, "Big Buster," applied to popcorn, for many years prior to defendant's use of its mark, "Block Buster." Plaintiff alleges that defendant adopted the name, "Block Buster," with the full knowledge of plaintiff's extensive use of the name, "Big Buster." In fact, all that defendant has denied in its answer and affidavit is that it had any knowledge of the extent of the use of plaintiff's mark. Plaintiff asked for its day in court to sustain by proof its allegation of the likelihood of confusion. The ultimate determination of the likelihood of consumer confusion as to source has been held to be a question of fact. Coca-Cola Co. v. Snow Crest Beverages, Inc., 1 Cir., 162 F.2d 280, 283; William R. Warner & Co., v. Eli Lilly & Co., 265 U. S. 526, 529, 44 S.Ct. 615, 68 L.Ed. 1161; Skinner Mfg. Co. v. Kellogg Sales Co., 8 Cir., 143 F.2d 895, 899. However, in LaTouraine Coffee Co. v. Lorraine Coffee Co., Inc., 2 Cir., 157 F.2d 115, 117, it was held this ultimate question is reviewable on appeal.
19
On the showing made the court was not justified in granting summary judgment on a basis of a side by side visual comparison and the effect thereof upon the mind of the ordinary purchaser exercising due care and caution. This court said in Colburn v. Puritan Mills, Inc., 108 F.2d 377, 378: "* * * We are to determine * * * the purchasing public's state of mind when confronted by somewhat similar trade names singly presented. * * *" In Restatement of the Law of Torts, Vol. III, Sec. 728 (p. 591), it is stated: "The similarity between a designation and a trade-mark or trade name which it is alleged to infringe is not determined by comparing the two in juxtaposition only. Since it is the effect upon prospective purchasers that is important, the conditions under which they act must be considered. Purchasers do not always see the goods in juxtaposition. They rely upon memory and vague impressions. * * *" In Lactona, Inc. v. Lever Bros. Co., 144 F.2d 891, at page 893, 32 C.C.P.A., Patents, 704, the court said: "It is true that by side-by-side comparison one can easily distinguish between the marks in question. However, such comparison is not the test for determining confusing similiarity of trademarks." In Northam Warren Corp. v. Universal Cosmetic Co., 18 F.2d 774, at page 775, this court, in commenting on whether there was infringement of a trademark, said: "* * * but it is sufficient if one adopts a trade-name or a trade-mark so like another in form, spelling, or sound that one, with a not very definite or clear recollection as to the real trade-mark, is likely to become confused or misled."
20
The district court will be in much better position to determine the question of likelihood of consumer confusion as to source when it has before it on trial the testimony of the ordinary and usual purchasers of popcorn and the evidence presented as to the manner and conditions under which popcorn is sold by both plaintiff and defendant.
21
This case illustrates the force of the recent statement made by the Court of Appeals for the Second Circuit in Marcus Breier Sons, Inc., v. Marvlo Fabrics, Inc., 173 F.2d 29, wherein it was stated: "* * * Disputes between parties as to trade-mark validity and infringement can rarely be determined satisfactorily on a motion for summary judgment. * * *"
22
The judgment is reversed, and the cause is remanded to the district court, with instructions to take further proceedings consistent herewith.
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THOMAS F. ROSENBLUM, NOT FINAL UNTIL TIME EXPIRES TO
FORMER HUSBAND, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D16-3203
v.
ANNE R. ROSENBLUM, N/K/A
ANNE R. MOORE, FORMER
WIFE,
Appellee.
_____________________________/
Opinion filed November 3, 2016.
An appeal from an order of the Circuit Court for Duval County.
W. Gregg McCaulie, Judge.
Thomas F. Rosenblum, Former Husband, pro se, Appellant.
Geraldine C. Hartin, Orange Park, for Appellee.
PER CURIAM.
DISMISSED. Helmich v. Wells Fargo Bank, N.A., 136 So. 3d 763, 764
(Fla. 1st DCA 2014).
ROWE, MAKAR, and KELSEY, JJ., CONCUR.
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IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 615 EAL 2015
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
JUNIOR THOMPSON, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 30th day of March, 2016, the Petition for Allowance of Appeal is
DENIED.
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125 U.S. 555 (1888)
BUCHER
v.
CHESHIRE RAILROAD COMPANY.
No. 132.
Supreme Court of United States.
Argued January 11, 1888.
Decided March 19, 1888.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.
*566 Mr. A.A. Ranney for plaintiff in error.
Mr. Charles A. Welch for defendant in error cited.
*576 MR. JUSTICE MILLER delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the District of Massachusetts.
The plaintiff in error was plaintiff in that court, and sought to recover of the defendants for injuries which he sustained by reason of their negligence while travelling upon their roads. The court on the trial substantially instructed the jury that the *577 plaintiff could not recover because the injury complained of occurred while he was travelling upon the Sabbath day, in violation of the law of the State of Massachusetts.
A suit between the same parties in regard to the same transaction had been brought in the Supreme Court of that State, in which, on a trial before a jury, the plaintiff obtained a verdict. This was carried to the court in bank, and was there reversed and sent back for a new trial. The plaintiff then became nonsuit in the state court and brought the present action in the Circuit Court of the United States.
It is important to inquire what was at issue upon the trial in the state court. There the defendant set up the law of the State found in the General Statutes, c. 84, § 2, which is as follows: "Whoever travels on the Lord's Day, except for necessity or charity, shall be punished by a fine not exceeding ten dollars;" and insisted that the plaintiff, being in the act of violating that law at the time the injury occurred, could not recover. On the 15th of May, 1877, after the plaintiff was injured, the legislature of Massachusetts passed a statute declaring that this prohibition against travelling on the Lord's Day should not constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by the person so travelling. Mass. Stat. 1877, c. 232.
The Supreme Court of that State had decided previous to this, in Stanton v. Metropolitan Railway Co., 14 Allen, 485, a similar case, that the plaintiff, being engaged in a violation of law, without which he would not have received the injury sued for, could not obtain redress in a court of justice. Also in Bosworth v. Swansey, 10 Met. 363, and in Jones v. Andover, 10 Allen, 18. In the trial of the case now under consideration, before the jury in the state court, the plaintiff does not seem to have controverted the general doctrine thus declared, but insisted that the present case did not come within the statute, because, first, the act of May 15, 1877, had declared that travelling on Sunday should no longer be a defence to actions for injuries suffered by reason of the negligence of carriers of passengers, although this statute was passed after the accident occurred upon which the right of action was founded; and, *578 second, that at the time he was injured he was, within the meaning of the statute, travelling upon an errand of charity or necessity, specially excepted from its provisions.
The court below sustained both of these propositions of the plaintiff, and the court in bank reversed the trial court upon both of them. It held that the act of May 15, 1877, did not govern a case where the injury had occurred before its passage; that it was not retroactive, and also held that the facts set out in the bill of exceptions did not show that the plaintiff was travelling at the time of the accident either from necessity or for charity. It may be as well to state here that the facts found in the bill of exceptions relating to this latter question, as it was presented before the Supreme Court of Massachusetts, were identical with those appearing in the bill of exceptions of the case now before us, being in both cases the plaintiff's own statement of his reasons for travelling on that day.
Upon the trial in the Circuit Court of the United States the judge was requested by the plaintiff to charge the jury that the circumstances detailed in the testimony of plaintiff and found in the bill of exceptions concerning the illness of his sister in Minnesota, of which he had received knowledge by letter, and had replied that he would meet her in Chicago at a certain time, and that, having been delayed by accidental circumstances, the travel on Sunday, when he was injured, became necessary to enable him to fulfil that promise, were sufficient to be submitted to the jury in order that they might pass upon the question of whether or not this act of travelling on the Lord's Day was a work of necessity or charity. This the court declined to do, saying that the same question having been submitted to the jury in the trial in the state court, and having been passed upon by the Supreme Court of the State, he did not consider that there was evidence sufficient to go to the jury upon that subject.
This is one of the assignments of error now before us, and upon this point we are of opinion that the court below ruled correctly. It is not a matter of estoppel which bound the parties in the court below, because there was no judgment entered in the case in which the ruling of the state court was *579 made, and we do not place the correctness of the determination of the Circuit Court in refusing to permit this question to go to the jury upon the ground that it was a point decided between the parties, and therefore res judicata as between them in the present action, but upon the ground that the Supreme Court of the State in its decision had given such a construction to the meaning of the words "charity" and "necessity" in the statute, as to clearly show that the evidence offered upon that subject was not sufficient to prove that the plaintiff was travelling for either of those purposes. The court in its opinion, which is reported in Bucher v. Fitchburg Railroad, 131 Mass. 156, said:
"The act of plaintiff in thus travelling on the Lord's Day was not an act of necessity within the meaning of the statute... . In order to constitute an act of charity, such as is exempted from the Lord's Day act, the act which is done must be itself a charitable act. The act of ascertaining whether a charity is needful is not the charity; but, so far as the statute is concerned, the only question in that case would be, is this act a necessary act? That involves the question, whether the act is one which it is necessary to do on the Lord's Day; and no previous neglect to obtain the requisite information on a previous day creates a necessity for obtaining it on the Lord's Day." p. 159.
After citing other cases which had been decided in that court, it was further said:
"It is apparent that the plaintiff's duty to his sister was made subservient to his secular business. We are, therefore, of opinion that the ruling should have been given that there was no evidence which would justify the jury in finding that the plaintiff was travelling from necessity or charity, within the meaning of the statute." p. 160.
Taking, therefore, this construction of the language of the statute, as well as prior decisions to the same purport in which we think we are bound to follow the Supreme Court of the State, we agree that the record in this case as in that does not furnish evidence which should have gone to the jury upon that branch of the subject.
*580 The other assignment of error, in regard to the effect of travelling on the Lord's Day in violation of the statute of Massachusetts, submitted as a defence to what would otherwise be a liability of the railroad for the negligence of its servants, presents the matter in a somewhat different aspect.
It is not easy to see that there was anything in the case as it arose in the Circuit Court which required a construction of the meaning of that statute, after eliminating what has just been suggested as to the signification of the words "necessity" or "charity." The remainder is a short prohibition against travelling upon the Lord's Day, and provides for the imposition of a penalty for so doing. This is very plain; it admits of no doubt as to its meaning, and its validity has never been controverted. When, therefore, the Supreme Court of Massachusetts, in a long line of decisions, has held that the violation of this statute may be set up as a defence to a liability growing out of the negligence of a railroad company in carrying passengers upon its road, it must have been on some other ground than that to be found in the expressions used in the statute itself. There is no such provision in it, and there is no necessary inference to be drawn from its language that it was intended to control the relations between the passenger and the carrier, or to modify the obligations of the one to the other.
The language of the court in Stanton v. Metropolitan Railway Co., already cited, is that "because the plaintiff was engaged in the violation of law, without which he would not have received the injury sued for, he cannot obtain redress in a court of justice." This principle would seem to be as applicable to a man engaged in any other transaction forbidden by law as to that of violating the Sabbath. Whether the doctrine thus laid down is a sound one, and whether, if it be not sound as it commends itself to our judgment, we should follow it as being supported by the decisions of the Supreme Court of Massachusetts in numerous instances, presents in this case the only serious question for our consideration. Hamilton v. City of Boston, 14 Allen, 475; Bosworth v. Swansey, 10 Met. 363; Jones v. Andover, 10 Allen, 18; Day v. Highland Street *581 Railway Co., 135 Mass. 113; Read v. Boston & Albany Railroad Co., 140 Mass. 199.
If the proposition, as established by the repeated decisions of the highest court of that State, were one which we ourselves believed to be a sound one, there would be no difficulty in agreeing with that court, and, consequently, affirming the ruling of the circuit judge in the present case. But without entering into the argument of that subject, we are bound to say that we do not feel satisfied, that, upon any general principles of law by which the courts that have adopted the common law system are governed, this is a true exposition of that law.
On the contrary, in the case of Phila., Wilmington & Balt. Railroad v. Steam Towboat Co., 23 How. 209, this court had under consideration the same question. It arose in regard to the effect of a statute of Maryland forbidding persons "to work or do any bodily labor, or willingly suffer any of their servants to do any manner of labor on the Lord's Day, works of charity or necessity excepted," and prescribing a penalty for a breach thereof. It was held by this court that where a vessel was prosecuting her voyage on Sunday, and was injured by piles negligently left in the river, this statute making travelling on Sunday an offence and punishing it by a penalty, constituted no defence to an action for damages by the vessel. A number of cases were cited sustaining that view of the subject, and the court, through Mr. Justice Grier, used this language: "We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of seven thousand dollars on the libellants, by way of set off, because their servants may have been subject to a penalty of twenty shillings each for the breach of the statute." p. 218.
In that case, however, there had been no decision of the courts of Maryland, holding that a violation of the Sabbath would constitute a defence to the action against the company which had left the piles in the river. In this view of the matter it is not unworthy of consideration that, shortly after the injury in the present case was inflicted, the General Court of *582 Massachusetts passed a statute, to which we have already referred, declaring that travelling on the Lord's Day should not "constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by a person so travelling."
The question then arises, how far is this court bound to follow the decisions of the Massachusetts Supreme Court on that subject?
The Congress of the United States, in the act by which the Federal courts were organized, enacted that "the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." Rev. Stat. § 721; Judiciary Act, 24 Sept., 1789, c. 20, § 34, 1 Stat. 92. This statute has been often the subject of construction in this court, and its opinions have not always been expressed in language that is entirely harmonious. What are the laws of the several States which are to be regarded "as rules of decision in trials at common law" is a subject which has not been ascertained and defined with that uniformity and precision desirable in a matter of such great importance.
The language of the statute limits its application to cases of trials at common law. There is, therefore, nothing in the section which requires it to be applied to proceedings in equity, or in admiralty; nor is it applicable to criminal offences against the United States, (see United States v. Reid, 12 How. 361,) or where the Constitution, treaties or statutes of the United States require other rules of decision. But with these, and some other exceptions which will be referred to presently, it must be admitted that it does provide that the laws of the several States shall be received in the courts of the United States, in cases where they apply, as the rules of decision in trials at common law.
It has been held by this court that the decisions of the highest court of a State in regard to the validity or meaning of the constitution of that State, or its statutes, are to be considered as the law of that State, within the requirement of *583 this section. In Leffingwell v. Warren, 2 Black, 599, this court said, in regard to the statutes of limitations of a State: "The construction given to a statute of a State by the highest tribunal of such State is regarded as a part of the statute, and is as binding upon the courts of the United States as the text."
In the case of Luther v. Borden, 7 How. 1, 40, Chief Justice Taney said: "The point then raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State; and the well-settled rule in this court is, that the courts of the United States adopt and follow the decisions of the state courts in questions which concern merely the constitution and laws of the State." See also Post v. Supervisors, 105 U.S. 667.
It is also well settled that where a course of decisions, whether founded upon statutes or not, have become rules of property as laid down by the highest courts of the State, by which is meant those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto, they are to be treated as laws of that State by the Federal courts.
The principle also applies to the rules of evidence. In Ex parte Fisk, 113 U.S. 713, 720, the court said: "It has been often decided in this court that in actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the State prevail in those courts." See also Wilcox v. Hunt, 13 Pet. 378; Ryan v. Bindley, 1 Wall. 66.
There are undoubtedly exceptions to the principle that the decisions of the state courts, as to what are the laws of that State, are in all cases binding upon the Federal courts. The case of Swift v. Tyson, 16 Pet. 1, which has been often followed, established the principle that if this court took a different view of what the law was in certain classes of cases which ought to be governed by the general principles of commercial law, from the state court, it was not bound to follow the latter. There is, therefore, a large field of jurisprudence left in which the question of how far the decisions of state courts constitute the law of those States is an embarrassing one.
There is no common law of the United States, and yet the *584 main body of the rights of the people of this country rest upon and are governed by principles derived from the common law of England, and established as the laws of the different States. Each State of the Union may have its local usages, customs, and common law. Wheaton v. Peters, 8 Pet. 591; Pennsylvania v. Wheeling Bridge Co., 13 How. 519.
When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the State as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the state courts in reference to this law, and defining what is the law of the State as modified by the opinions of its own courts, by the statutes of the State, and the customs and habits of the people, that the trouble arises.
It may be said generally that wherever the decisions of the state courts relate to some law of a local character, which may have become established by those courts, or has always been a part of the law of the State, that the decisions upon the subject are usually conclusive, and always entitled to the highest respect of the Federal courts. The whole of this subject has recently been very ably reviewed in the case of Burgess v. Seligman, 107 U.S. 20. Where such local law or custom has been established by repeated decisions of the highest courts of a State it becomes also the law governing the courts of the United States sitting in that State.
We are of opinion that the adjudications of the Supreme Court of Massachusetts, holding that a person engaged in travel on the Sabbath day, contrary to the statute of the State, being thus in the act of violating a criminal law of the State, shall not recover against a corporation upon whose road he travels for the negligence of its servants, thereby establish this principle as a local law of that State, declaring, as they do, the effect of its statute in its operation upon the obligation of the carrier of passengers. The decisions on this subject by the Massachusetts court are numerous enough and of sufficiently long standing to establish the rule, so far as they can establish it, and we think that, taken in connection with the relation which they bear to the statute itself, though giving an effect *585 to it which may not meet the approval of this court, they nevertheless determine the law of Massachusetts on that subject.
Affirmed.
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE FIELD, dissented upon the grounds:
1, That the question whether the provision in c. 84, § 2 of the General Statutes of Massachusetts that "whoever travels on the Lord's Day, except for necessity or charity, shall be punished by a fine not exceeding ten dollars" is a bar to a recovery in this action, is a question of general law upon which the Federal courts are at liberty to follow their own convictions; and,
2, That it is settled by Philadelphia, Wilmington, and Baltimore Railroad v. Philadelphia and Havre de Grace Towboat Co., 23 How. 209, that such a state statute is not a bar to a recovery in an action like this in a Federal court.
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In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-19-00217-CR
ROGER EUGENE FAIN, Appellant § On Appeal from the 372nd District Court
§ of Tarrant County (1023944D)
V. § December 19, 2019
§ Opinion by Justice Womack
THE STATE OF TEXAS § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Dana Womack
Justice Dana Womack
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131 Cal.Rptr.2d 921 (2003)
30 Cal.4th 29
65 P.3d 411
In re Pamela C. MARTINEZ, on Habeas Corpus.
No. S103581.
Supreme Court of California.
April 3, 2003.
Rehearing Denied June 18, 2003.[*]
As Modified June 20, 2003.
Elizabeth A. Courtenay, under appointment by the Supreme Court, Los Angeles, for Petitioner Pamela C. Martinez.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford, Assistant Attorney *922 General, Susan Duncan Lee, Matthew D. Mandelbaum and Diann Sokoloff, Deputy Attorneys General, for Respondent the People.
BROWN, J.
The Penal Code provides that inmates in county jails and state prisons may have their sentences reduced as a reward for their conduct, including work and good behavior. The rate at which inmates accrue credit depends on numerous factors, including whether the confinement is presentence or postsentence. A jury convicted petitioner, her conviction was reversed, and she then pleaded guilty. She now contends her state prison confinement prior to the reversal must be characterized as presentence for credit accrual purposes.
In People v. Buckhalter (2001) 26 Cal.4th 20, 108 Cal.Rptr.2d 625, 25 P.3d 1103 (Buckhalter), we held that a petitioner who is serving a state prison sentence and is remanded for resentencing retains postsentence status for credit accrual purposes. (Id. at pp. 40-41, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) We expressly declined to "consider the proper credit treatment of one who spends time in custody after his convictions have been reversed on appeal, thus setting the entire matter at large." (Id. at p. 40, fn. 10, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) We now face the question left unanswered in Buckhalter. We conclude petitioner's prereversal prison time ought not be viewed as presentence custody, and her credit accrual should be calculated in accordance with her ultimate postsentence status.
I. PROCEEDINGS BELOW
Petitioner was taken into custody on February 11, 1995. A jury convicted her of petty theft with priors (Pen.Code, § 666),[1] and determined she had two prior strikes within the meaning of sections 667 and 1170.12. On July 9, 1996, the trial court sentenced petitioner to a state prison sentence for 25 years to life pursuant to the three strikes law. On July 9, 1999, petitioner obtained a reversal of her conviction on habeas corpus review due to her receiving ineffective assistance from trial counsel. On August 19, 1999, petitioner pleaded guilty to the underlying charge, and the trial court dismissed one of her prior strikes.
For convenience we designate four distinct phases of this history. Phase I is the period from the initial arrest to the initial sentencing, which in this case continued from February 11, 1995, until July 9, 1996. Phase II is the period from the initial sentencing to the reversal (July 9, 1996, through July 9, 1999). Phase III is the period from the reversal to the second sentencing (July 9, 1999, until Aug. 19, 1999), and phase IV is the period after the second and final sentencing (after Aug. 19, 1999). The parties do not dispute that petitioner should accrue credits as a presentence inmate for phases I and III (see § 4019), and they likewise agree that petitioner should accrue credits as a postsentence second striker for phase IV. The dispute lies in the characterization of the three-year phase II status.
The trial court resentenced petitioner on August 19, 1999, after she had pleaded guilty. The court recalculated the entire period prior to August 19, 1999 (phases I, II and III), as presentence time, granting petitioner conduct credit for 50 percent of her actual custody time. Under this theory, petitioner's phase II credit accrual (up to 50 percent pursuant to § 4019, subd. (f)) is based on her phase III status as a presentence inmate.
*923 The trial court again resentenced petitioner on April 17, 2001.[2] The court granted petitioner credit under the presentence section 4019 formula for phases I and III, and granted petitioner conduct credit in accordance with the limitations expressed in sections 667, subdivision (c)(5) and 1170.12, subdivision (a)(5) for phases II and IV. This sentencing based petitioner's phase II status on her ultimate phase IV status as a recidivist with one prior strike.
The Court of Appeal endorsed the 1999 sentencing position, reasoning that the reversal of petitioner's conviction meant the initial conviction ceased to exist. Accordingly, petitioner could not have been a postsentence inmate during phase II because there was no valid conviction and sentence in existence. The Attorney General petitioned for review, implicitly asserting the April 17, 2001, resentencing was correct. We granted review, and now reverse the decision of the Court of Appeal.
II. ANALYSIS
A. Section 2900.1
Our analysis begins with section 2900.1: "Where a [petitioner] has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts." No case interpreting section 2900.1 has squarely addressed whether the "time" that "shall be credited" under the statute is presentence or postsentence.
In In re James (1952) 38 Cal.2d 302, 240 P.2d 596 (James), the petitioner pleaded guilty in December 1944 to first degree murder and was sentenced to life imprisonment. (Id. at p. 308, 240 P.2d 596.) In January 1952, we determined the plea had been invalid, and reversed the conviction. (Id. at p. 313, 240 P.2d 596.) We explained that if the People obtained a conviction for manslaughter on retrial (having apparently agreed not to retry James for murder), he would be entitled to credit for the more than seven years of actual confinement. Furthermore, because we implicitly deemed this confinement postsentence, rather than characterizing it as presentence, we noted James would be eligible for conduct credit pursuant to the postsentence credit statute. (Id. at p. 314, 240 P.2d 596.)[3] We also declined to compute James's prereversal credits in accordance with his prereversal status as a life prisoner, which would have rendered him ineligible to accrue credits against a fixed term. (See In re Bentley (1974) 43 Cal.App.3d 988, 995, 118 Cal.Rptr. 452.)
Since James did not expressly analyze the question, its result does not control our decision. Nonetheless, the literal terms of the relevant statutes appear in accord with *924 the result in James. Section 4019, subdivision (a)(4), which petitioner contends should apply, applies to someone "confined in a county jail . . . following arrest and prior to the imposition of sentence for a felony conviction." By contrast, section 2933, subdivision (a), applies to "persons convicted of a crime and sentenced to state prison." Phase II occurred after petitioner was convicted of a crime, and that confinement was served in state prison, not a local jail. Nevertheless, petitioner offers several arguments contending the time she served during phase II should be characterized as presentence pursuant to section 4019.[4] Although petitioner's arguments have some superficial appeal, we find them ultimately unpersuasive.
B. Postsentence Status Is Not a "Credit Disability"
Since James, the Legislature has instituted determinate sentencing and created a complex array of presentence and postsentence credit schemes to serve various functions. As we observed in Buckhalter, this complexity "`"is likely to produce some incongruous results and arguable unfairness when compared to a theoretical state of perfect and equal justice. [Because] there is no simple or universal formula to solve all presentence credit issues, our aim [must be] to provide . . . a construction [of the statutory scheme] which is faithful to its language, which produces fair and reasonable results in a majority of cases, and which can be readily understood and applied by trial courts."'" (Buckhalter, supra, 26 Cal.4th at p. 29, 108 Cal. Rptr.2d 625, 25 P.3d 1103, quoting People v. Bruner (1995) 9 Cal.4th 1178, 1195, 40 Cal.Rptr.2d 534, 892 P.2d 1277, quoting In re Joyner (1989) 48 Cal.3d 487, 495, 256 Cal.Rptr. 785, 769 P.2d 967.)
Petitioner contends she should not be subject to what she describes as the "credit disability" of postsentence status in light of the subsequent reversal. Petitioner's argument focuses on the disadvantage (through reduced conduct credit) that she suffers by having her phase II time deemed postsentence time. It is not self-evident, however, that postsentence status is an inherent disability. Whether a petitioner fares better "presentence" or "postsentence" will vary, depending on the nature of the commitment offense and the petitioner's history. A nonviolent offender may receive a credit up to 50 percent of her actual presentence confinement. (§ 4019.) If she has no prior strikes, she may earn 100 percent credit postsentence (one day of conduct credit for each day actually served) (§ 2933, subd. (a)), whereas a recidivist with a prior strike may earn postsentence credits only up to 20 percent of the total prison sentence (§§ 667, subd. (c)(5); 1170.12, subd. (a)(5)), and an offender with two prior strikes is denied any postsentence conduct credit. (In re Cervera (2001) 24 Cal.4th 1073, 1076, 103 Cal. Rptr.2d 762, 16 P.3d 176.)[5] Thus, the negative consequences of postsentence status are linked to petitioner's recidivist status.[6] If petitioner had no prior strikes, *925 she would fare better with postsentence status and would probably object if her reversal prompted a recharacterization of her prison custody as presentence time, limiting her conduct credit to 50 percent of her actual custody time.
As we observed in Buckhalter, "the pre- and postsentence credit systems serve disparate goals and target persons who are not similarly situated. The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges. By contrast, the work-time credit scheme for persons serving prison terms emphasizes penological considerations, including the extent to which certain classes of prisoners, but not others, deserve or might benefit from incentives to shorten their terms through participation in rehabilitative work, education, and training programs. . . ." (Buckhalter, supra, 26 Cal.4th at p. 36, 108 Cal.Rptr.2d 625, 25 P.3d 1103.) These considerations have shaped the distribution of postsentence credit: The Legislature has determined that offenders with no prior strikes are the most amenable to rehabilitation, and they thus earn the most credits. Offenders with one prior strike receive reduced postsentence credit, and those with two prior strikes, considered the least amenable to rehabilitation, receive none at all.
The Legislature has thus enacted the current scheme to ensure a petitioner's credit accrual is commensurate with her status. This may produce occasional incongruities. For example, granting more credits to postsentence inmates may inadvertently reward offenders who post bail or plead guilty quickly (see, e.g., In re Cleaver (1984) 158 Cal.App.3d 770, 773-775, 204 Cal.Rptr. 835), whereas favoring presentence inmates may similarly reward offenders who do not post bail or who go to trial (People v. Applin (1995) 40 Cal. App.4th 404, 408, 411, 46 Cal.Rptr.2d 862). These occasional disparities have not been fatal.
C. Petitioner Is Not Entitled to the Same Credits as an Inmate Awaiting Trial
Petitioner contends that during phase II she was similarly situated to a petitioner who had not yet gone to trial. She asserts that she should be no worse off for having suffered a later reversed conviction than would be a hypothetical petitioner who simply had her trial delayed for a comparable period of time. She compares herself with pretrial detainees, and argues she should receive the same two-for-four conduct credits.
A pretrial detainee is not similarly situated to a state prison inmate. (Buckhalter, supra, 26 Cal.4th at p. 36, 108 Cal. Rptr.2d 625, 25 P.3d 1103; People v. Caddick (1984) 160 Cal.App.3d 46, 53, 206 Cal. Rptr. 454.) "Pretrial detainee-felons are presumptively innocent and therefore not in need of rehabilitation; prison inmates are conclusively guilty and presumptively in need of rehabilitation. In many cases, the pretrial detainee may make bail at any time, thereby interfering with any continual work or education program. . . . Pretrial detainees have court appearances; they consult with their attorneys and other experts their cases may require. This makes continual work rehabilitation or education [programming] impractical; obviously such interruptions are not a concern for prison inmates. Moreover, the Legislature has not declared its intent to achieve self-sufficiency in the county jails. While the foregoing distinctions [do not exhaust] the differences between the two classes, they are sufficient to demonstrate that the classes *926 are not similarly situated." (Caddick, at p. 53, 206 Cal.Rptr. 454, fn. omitted.) Accordingly, "the terms prison inmates and pretrial detainees are more than labels which define the difference between persons who have been convicted of a felony and sentenced and those who have simply been charged with [a] felony." (Ibid., fn. 3.) These contrasting functions of confinement warrant the treatment of petitioner's phase II custody as postsentence.
Furthermore, petitioner's proposal to recharacterize her phase II confinement as presentence time would arguably create an equal protection problem even worse than that to which petitioner objects. Suppose a jury convicts two defendants, each of whom has a prior strike, of the same first degree burglary (§§ 459, 460), and imposes the upper base term of six years (§ 461) on each. If there are no errors with A's trial, his first four years of postsentence custody will yield A one year of conduct credit. (§§ 667, subd. (c)(5), 1170.12, subd. (a)(5).) By contrast, if, after the same four-year period, a reviewing court finds the trial court improperly denied B's motion for self-representation, petitioner's theory would grant B two years of credit for this time (§ 4019), even though the exact same evidence was presented against each codefendant.[7]
D. Petitioner's Credits Are Not Based on an Incorrect Judgment
Finally, petitioner contends her credit accrual should not be based on an incorrect initial judgment, and should be corrected to apply retroactively to her phase II confinement. But her subsequent plea confirms that her initial conviction, although procedurally invalid, was not without legal basis. On the contrary, she pleaded guilty to the charged offense, and thus does not warrant disparate treatment from a petitioner who initially received an error-free judgment.
Petitioner objects to characterizing her phase II custody as postsentence "retroactively," based on her subsequent guilty plea. But her entire claim depends on our willingness to recharacterize her phase II custody retroactively, i.e, after her reversal. We agree that petitioner's phase II time may be recharacterized. Our recharacterization analysis, however, does not cease with her reversal, but also includes her eventual reconviction.
Petitioner derives some benefit, however, from our recharacterization. She was sentenced initially as a third striker, which would have rendered her ineligible to earn any postsentence conduct credits, as in James, supra, 38 Cal.2d 302, 240 P.2d 596. She ultimately pleaded guilty as a second striker, eligible to earn postsentence conduct credit up to 20 percent of the total prison sentence. Because we follow petitioner's ultimate phase IV status, we conclude that during her phase II confinement, she was entitled to earn credits under the 20 percent formula described above.[8]
CONCLUSION
It is petitioner's ultimate phase IV status as a convicted second striker, not her unresolved phase III status as presentence petitioner, nor her initial phase II status as a convicted third striker, that must *927 control the determination of her phase II credits. Petitioner pleaded guilty as having one prior strike, and she thus is entitled, for her phase II confinement, to a maximum conduct credit of 20 percent of her total prison sentence.
We therefore reverse the judgment of the Court of Appeal. The matter is remanded to the Court of Appeal with instructions to direct the trial court to sentence petitioner in accordance with the April 17, 2001 sentencing. The trial court should clarify the date on which petitioner's custody commenced. Calculation of the actual days of conduct credit earned by petitioner during her phase II and phase IV confinements should be left to prison authorities. (See Buckhalter, supra, 26 Cal.4th at pp. 30-31, 40-41, 108 Cal. Rptr.2d 625, 25 P.3d 1103.).
We Concur: GEORGE, C.J., BAXTER, CHIN, and MORENO, JJ.
Dissenting Opinion by KENNARD, J.
I dissent.
Petitioner Pamela C. Martinez pleaded guilty to the crime of petty theft (Pen. Code, §§ 485, 488).[1] Because of her prior convictions, the offense was treated as a felony (see § 666), and she was sentenced to state prison. After spending more than six and a half years in custody for this petty theft, petitioner was released from prison to begin rebuilding her life. Because the majority concludes that she has not served enough time, presumably petitioner will now be taken into custody and returned to prison.
The issue before this court is the correct interpretation and application of certain provisions of the California Penal Code governing credits that a detainee or inmate may earn for good behavior and participation in qualifying work programs (collectively referred to as conduct credits) while in custody. These credits are applied against a penal sentence to shorten its length. The Penal Code sets several different rates at which these conduct credits may be earned, depending on the inmate's crime, criminal record, and sentence and also, of particular importance here, on whether the custody time during which the credits were earned occurred before or after the pronouncement of sentence. Briefly stated, the majority concludes that time spent in prison before pronouncement of a sentence should be treated, in the eyes of the law, as having occurred after that sentence. I disagree. In this instance, as in most instances, the simple and obvious answer is the correct one: Presentence means before the sentence, and postsentence means after the sentence. Therefore, in my view, the time petitioner spent in prison before pronouncement of sentence is presentence time, not postsentence time, for purposes of computing conduct credits.
Only a few facts need be stated. In February 1995, petitioner was arrested. In July 1996, after a jury trial that resulted in a conviction for petty theft, petitioner was sentenced to prison and immediately began to serve that sentence. Petitioner challenged the validity of her conviction by petitioning for a writ of habeas corpus, and, in July 1999, the Court of Appeal set aside petitioner's conviction and ordered a new trial. On August 19, 1999, petitioner pleaded guilty to petty theft with a prior conviction, and the court sentenced her to state prison for a term of nine years.
An issue then arose about petitioner's entitlement to conduct credits for the three years she spent in prison from July 1996 and July 1999 under the invalid judgment. Petitioner's entitlement to some credit for this period was beyond dispute. Section 2900.1 declares that time spent serving a sentence under a judgment later declared invalid "shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts." Likewise, it was not disputed that she had earned conduct credits by her behavior in *928 prison. Rather, the issue was the rate at which the conduct credits accrued. The superior court concluded that the credits should accrue at the postsentence rate of 20 percent under sections 667, subdivision (c)(5), and 1170.12, subdivision (a)(5). The Court of Appeal disagreed, concluding instead that the credits accrued at the presentence rate of 50 percent under sections 2900.5 and 4019.
The majority agrees with the superior court that the three years petitioner spent in prison before July 1999 is postsentence time for purpose of calculating conduct credits against her August 1999 sentence. How does the majority arrive at a conclusion so implausible on its face?
The majority begins with a 1952 decision of this court in a habeas corpus proceeding setting aside a first degree murder conviction: In re James (1952) 38 Cal.2d 302, 240 P.2d 596. At the end of the opinion in James, after determining that the petitioner's conviction was invalid, this court noted that the petitioner was "still subject to trial," and that if he was convicted after a new trial "his confinement based upon the invalid 1944 judgment, together with any time credits for good conduct earned thereon (Pen.Code, § 2920), would be credited upon the new sentence for the same criminal act. (Pen.Code, § 2900.1.)" (In re James, supra, at p. 314, 240 P.2d 596.)
Although conceding that James "did not expressly analyze the question" and therefore does not control here, the majority professes to find significance in this court's reference, in the passage quoted above, to former section 2920, which the majority triumphantly states is "the postsentence credit statute." (Maj. opn, ante, 131 Cal. Rptr.2d at p. 923, 65 P.3d at p. 413, italics added.) What the majority does not point out is that in 1952, when this court decided James, there was no presentence conduct credit statute in existence. The Legislature enacted the first presentence credit statute in 1971 (Stats.1971, ch. 1732, § 2, p. 3686), but even then the Penal Code made no provision for presentence conduct credits for persons convicted of felonies. Such credits were first authorized by this court's decision in People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874, later codified in section 4019, subdivision (a)(4). Thus, unlike this case, James was not a situation in which this court was required to choose between presentence and postsentence conduct credit statutes. Rather, in referring to section 2920, this court was citing the only conduct credit statute then in existence for persons convicted of felonies and sentenced to state prison. For this reason, In re James, supra, 38 Cal.2d 302, 240 P.2d 596, is no help in making the choice this court faces today between presentence and postsentence conduct credit statutes to determine the rate at which petitioner's conduct credits accrued for the time she spent in prison before the valid conviction and sentence.
The majority next asserts that "the literal terms of the relevant statutes appear in accord with the result in James." (Maj. opn., ante, 131 Cal.Rptr.2d at pp. 923-924, 65 P.3d at pp. 413-414.) The majority explains its reasoning this way: "Section 4019, subdivision (a)(4), which petitioner contends should apply, applies to someone 'confined in a county jail . . . following arrest and prior to the imposition of sentence for a felony conviction.' By contrast, section 2933, subdivision (a), applies to 'persons convicted of a crime and sentenced to state prison.' [The time in question here] occurred after petitioner was convicted of a crime, and that confinement was served in state prison, not a local jail." (Maj. opn, ante, 131 Cal.Rptr.2d at p. 924, 65 P.3d at p. 414.) I do not agree. The *929 terms of the presentence credit statutes, as construed by the courts of this state, do indeed authorize credit for the prison custody time at issue here.
As relevant here, section 2900.5, subdivision (a), states: "In all felony . . . convictions . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment. . . ." (Italics added.) Presentence credits are awarded under section 2900.5 "regardless of the particular locale, institution, facility or environment of [the defendant's] incarceration." (In re Watson (1977) 19 Cal.3d 646, 651-652, 139 Cal. Rptr. 609, 566 P.2d 243.) Under section 2900.5, in August 1999, when petitioner received a nine-year prison sentence for petty theft, she was entitled to credit, including conduct credit under section 4019, for all previous custody time attributable to the same act of petty theft, including the time in state prison under the earlier invalid judgment.
Section 4019, subdivision (a)(4), authorizes presentence conduct credit at the 50 percent rate for time spent "confined in a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp following arrest and prior to the imposition of sentence for a felony conviction." Although section 4019 does not mention state prisons, it is settled that presentence credit may be awarded under section 4019 for time spent in state facilities, including prisons, before pronouncement of sentence for a felony conviction. (See People v. Buckhalter (2001) 26 Cal.4th 20, 30, fn. 6, 108 Cal.Rptr.2d 625, 25 P.3d 1103; In re Anderson (1982) 136 Cal.App.3d 472, 476, 186 Cal.Rptr. 269.) Thus, the wording of the presentence credit statutes, sections 2900.5 and 4019, provides the majority no basis to treat petitioner's time in state prison before she was validly convicted and sentenced as anything other than presentence time.
The majority argues that petitioner's state prison time must be characterized as postsentence time because "`prison inmates are conclusively guilty and presumptively in need of rehabilitation.'" (Maj. opn., ante, 131 Cal.Rptr.2d at p. 925, 65 P.3d at p. 415, quoting People v. Caddick (1984) 160 Cal.App.3d 46, 53, 206 Cal. Rptr. 454.) This is a fair statement as applied to prison inmates who have been validly convicted, but an invalid conviction does not conclusively determine guilt nor does it establish a presumptive need of rehabilitation. Until a valid conviction is obtained, all persons accused of crime are equally entitled to a presumption of innocence and thus similarly situated for purposes of credit statutes.
The majority suggests that characterizing petitioner's presentence state prison time as presentence time for purposes of computing conduct credits "would arguably create an equal protection problem" because she would have more presentence time, and thus more conduct credits, than a defendant whose initial conviction and sentence for the very same offense were not invalid. (Maj. opn., ante, 131 Cal. Rptr.2d at p. 926, 65 P.3d at p. 415.) Yet, as the majority elsewhere acknowledges (id., 131 Cal.Rptr.2d at p. 925, 65 P.3d at p. 415), these sorts of "incongruities" are inevitable and have not been thought sufficient to invalidate the entire credit scheme. (In re Joyner (1989) 48 Cal.3d 487, 495, 256 Cal.Rptr. 785, 769 P.2d 967.) *930 Defendants convicted of the very same crime may have presentence custody times of widely differing length. One defendant may promptly plead guilty and have very little presentence time. Another may be validly convicted after jury trial and have significantly more presentence time. A third may be validly convicted only after two or three trials because the earlier trials terminated by the granting of a motion for mistrial, or because the trial court granted a motion for a new trial, or because the initial conviction was reversed on appeal. A fourth defendant may be validly convicted after one or more jury trials, be granted probation on conditions including substantial jail time, and later have probation revoked and a state prison sentence imposed. So long as the law sets different rates for accrual of presentence and postsentence custody credits, these defendants, all guilty of the same crime and sentenced to the same term, but with widely varying periods of pretrial custody, will have significantly different overall times of actual confinement.
I agree with the Court of Appeal here that in calculating conduct credits against petitioner's nine-year state prison sentence pronounced in August 1999 for the crime of petty theft, all earlier periods of custody attributable to that petty theft, including the three years petitioner spent in state prison under an invalid conviction for the same crime, is presentence time. Accordingly, I would affirm the Court of Appeal's judgment.
I Concur: WERDEGAR, J.
NOTES
[*] George, C.J., and Werdegar, J., dissented.
[1] All further statutory references are to the Penal Code.
[2] The April 17, 2001, abstract of judgment states petitioner's custody commenced on May 19, 1995, although it appears her custody actually commenced on February 11, 1995. The abstract of judgment's custody calculations, however, reflected the number of days served (515) since February 11.
[3] The extant credit scheme authorized conduct credits of up to five days per month for county jail inmates (Stats. 1941, ch. 106, §15, pp. 1122-1123 [adding §4019]), whereas state prisoners could earn two months of conduct credit per year for the first two years of confinement, four months per year for the next two years, and five months per year thereafter. (Stats. 1941, ch. 106, § 15, pp. 1105-1106 [adding § 2920].) These statutes were repealed and replaced with more generous conduct credit accrual provisions with the advent of determinate sentencing. (See Stats. 1976, ch. 286, §§ 3, 4, pp. 595-596; Stats. 1977, ch. 165, §§ 36, 37, p. 661.)
[4] The parties' dispute concerns phase II time only; we therefore need not express any opinion as to the proper characterization of phase III time.
[5] Some individuals accrue conduct credit at the same rate for both their presentence and postsentence custody. Violent felons receive the same 15 percent credit (§ 2933.1, subd. (a)), and convicted murderers receive no credit at all (§ 2933.2, subd. (a)).
[6] Although a pretrial detainee is presumed innocent until proven guilty, this does not, as shown above, necessarily entitle a petitioner to more favorable credit provisions. In any event, petitioner was convicted on December 11, 1995, and thus eight of the 17 months of presentence custody elapsed after her conviction.
[7] We further note that our hypothetical is more likely to create great disparities than petitioner's. Few defendants will spend several years in pretrial custody. Contrariwise, prisoners often obtain reversal years after their initial conviction.
[8] Neither the People nor the petitioner asserts the initial sentencing of petitioner as a "third striker'' should control her credit accrual for that period. If petitioner were denied all conduct credit due to the initial conviction, it could create an equal protection problem against a hypothetical petitioner who initially pleaded guilty to having one prior strike and thus received 20 percent conduct credits for her entire confinement.
[1] Further statutory references are to the Penal Code.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50447
Conference Calendar
FLETCHER STEEL,
Plaintiff-Appellant,
versus
TEXAS COURT OF CRIMINAL APPEALS,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CV-1418
--------------------
October 26, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Fletcher Steel, pro se prisoner # 588829A, appeals the
district court’s dismissal of his petition for writ of mandamus,
by which Steel sought an order directing the Texas Court of
Criminal Appeals to consider his third state postconviction
application. The district court’s determination that it had no
authority to issue a writ of mandamus was correct. See Moye v.
Clerk, DeKalb Co. Super. Ct., 474 F.2d 1275, 1276 (5th Cir.
1973). Steel’s appeal presents no issue of arguable merit and
is, therefore, dismissed as frivolous. See 5TH CIR. R. 42.2.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No.
-2-
DISMISSED AS FRIVOLOUS.
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Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
[email protected].
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Estate of )
) Supreme Court No. S-15582
OFFENESIA YAKO BAVILLA, )
) Superior Court No. 3AN-12-01316 PR
Deceased. )
) OPINION
)
) No. 6985 – March 6, 2015
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Etta Marie Bavilla, pro se, Eagle River,
Appellant.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
This appeal arises from Etta Bavilla’s attempt to informally probate the
1987 will of her mother, Offenesia Bavilla. Because Offenesia signed a new will in
2006, the superior court did not accept Etta’s informal probate of the 1987 will. Etta, a
pro se litigant, attempted to contest the validity of the 2006 will by filing a motion to
amend her probate of the 1987 will to include a challenge to the 2006 will. Her motion
to amend was denied, as was her motion for recusal of the magistrate judge who
recommended denial of that amendment. On appeal, Etta challenges the superior court’s
denial of her motion to amend her pleadings and the magistrate judge’s decision not to
recuse himself. We remand for the superior court to allow Etta to amend her pleadings
but affirm the magistrate judge’s decision not to recuse himself.
II. FACTS AND PROCEEDINGS
A. Facts
Offenesia Yako Bavilla died in 2010. She was an Alaska Native woman
who lived in Dillingham and had two children, Etta and Steven.1 In 1987 Offenesia
executed a will that left most of her assets to Etta and Steven. In the mid-2000s
Offenesia was elderly and slipping mentally. In November 2005 a doctor at the Bristol
Bay Area Health Corporation wrote that Offenesia’s “mental status has declined
significantly,” that she “has become nearly mute,” and that she “appears to hallucinate.”
The doctor concluded that “[d]ue to her dementia, her condition is quite likely to
continue to deteriorate.”
In February 2006 Offenesia executed a new will, which was prepared by
Alaska Legal Services Corporation.2 The new will was witnessed by individuals who
worked at the elder care facility where Offenesia resided. This new will eliminated Etta
from any inheritance but still included her brother, Steven. The 2006 will included a
statement explicitly “revoking all prior wills and codicils.”
B. Proceedings
In June 2012 Etta applied for informal probate of the 1987 will. Etta noted
in her application that the 1987 will was followed by a 2006 will, but she asserted that
1
The filings and proceedings variously refer to Steven as “Steven,”
“Stephen,” and “Stephan.” This opinion refers to him as Steven since that is how both
the 1987 and 2006 wills list his name.
2
The will includes a certification that it had been translated into the Yupik
language.
-2- 6985
the 2006 will was invalid.3 Based on this, Magistrate Judge John Duggan, acting in his
capacity as a probate master, held a status hearing in early November 2012. Etta
participated in the hearing telephonically because she was incarcerated at the Hiland
Mountain Correctional Center. Magistrate Judge Duggan told Etta that he could not
admit Offenesia’s 1987 will for probate “until [the court] ha[d] a copy of that 2006 will”
and could “make a determination that that will is invalid.”
When Etta asked about the specific process she would need to follow for
this determination, Magistrate Judge Duggan responded that “[i]f there is a second will,
that has to be filed with the court, [and] if it is after 1987, . . . then there has to be a court
hearing and you can present evidence why that will should not be admitted [and] why
it is not valid.” Magistrate Judge Duggan noted that the 1987 will did not nominate Etta
as the personal representative and that the two individuals so named had not renounced
their appointment; he warned that the court could not consider Etta’s probate application
“until we hear something from them.”4 Magistrate Judge Duggan also told Etta that she
would have to file “a waiver in renunciation of the nomination” and that he did not have
authority to grant her request for a court-appointed attorney to represent her. The
application for informal probate of the 1987 will was left open pending further filings.
3
The application stated that “[t]o the best of Applicant’s knowledge, [the
1987] Will was validly executed, and, after the exercise of reasonable diligence,
applicant is unaware of any valid instrument revoking said Will, although a subsequent
invalid will was executed in February of 2006. Applicant believes that the [1987] Will
is the decedent’s last valid Will.” At a subsequent status hearing on her petition, Etta
alleged that the 2006 will was “illegally crafted” by her brother, Steven, and the director
of the elder care home where Offenesia was living when Offenesia signed the 2006 will,
for which the director served as a witness.
4
The 1987 will nominated Patty Heyano as personal representative, or Janet
Hannahs Hiratsuka if Ms. Heyano is unable to serve. The 2006 will nominated Etta’s
brother, Steven, to be the executor and personal representative.
-3- 6985
In late November 2012 Etta filed a motion asking that the 2006 will be
declared invalid and that her brother Steven “lose all rights to inheritance” described in
the 1987 will. Etta served Steven and Alaska Legal Services Corporation by regular
mail. Etta attached a number of documents to the motion, including copies of the 2006
will and the November 2005 letter from a doctor with the Bristol Bay Area Health
Corporation describing Offenesia’s declining mental state.5 Etta indicated that although
neither Steven nor any personal representatives or executors named in the 2006 will had
yet entered that will into probate, they had “accessed/utilized assets of the estate.” The
documents indicate that Offenesia’s Native corporation stock was transferred in
accordance with the 2006 will to Steven and to Offenesia’s great-niece, Clara Torsen.6
In response to Etta’s November 2012 motion, Magistrate Judge Duggan
held another hearing in January 2013. Magistrate Judge Duggan told Etta during the
January 2013 telephonic hearing that he could not determine the precise relief her motion
was requesting. Etta explained that she was attempting to invalidate the 2006 will and
have the 1987 will declared Offenesia’s true will. Etta argued that Offenesia was not
5
The attachments also included an Emergency Physician Record from
January 2006, when Offenesia was brought to a hospital in part due to her “mental status
changes.” The physical exam record indicated that Offenesia was known to have
dementia.
6
Etta contacted Bristol Bay Corporate Services (BBCS) to challenge this
transfer based on Offenesia’s dementia, which had been diagnosed before she executed
the 2006 will. In June 2011 BBCS responded that, based on its investigation into Etta’s
claim (“including contacting Alaska Legal Services who assisted [Etta’s] mother in
executing her will”), BBCS made a “good faith determination that [Etta’s] mother’s stock
will executed in 2006 was validly executed and BBCS found no evidence of undue
influence or duress.” BBCS indicated that it would distribute Offenesia’s shares in
accordance with the 2006 will. BBCS noted that if Etta disagreed with its determination,
she had “the right to bring a claim in the Superior Court in accordance with Alaska
Statute Section 13.16.[0]70.”
-4- 6985
competent to execute a will in 2006, that the 2006 will was the result of undue influence
by Steven and individuals working at the elder care home where Offenesia had been
living (who served as witnesses to the will), and that those witnesses had a conflict of
interest. Magistrate Judge Duggan then told Etta that she would need to file a “separate
proceeding” to invalidate the 2006 will. He suggested that Etta consult an attorney and
denied Etta’s request for court-appointed counsel. Magistrate Judge Duggan concluded
the conference by informing Etta that her application for informal probate of the 1987
will was denied without prejudice.
In May 2013 Etta filed two motions. First, she asked for leave to file an
amended pleading to contest the 2006 will. Her motion requested that she “be allowed
to amend [her] original pleading and contest the 2nd will of decedent” based on “possible
illegal activity and misrepresentation involved with the decedent’s 2nd will.” Second,
Etta filed a motion to disqualify Magistrate Judge Duggan on the grounds that he was
“biased and prejudiced” toward her. In mid-June 2013 Magistrate Judge Duggan signed
two orders: one recommending denial of the disqualification motion and a second
recommending denying without prejudice Etta’s original application to probate the 1987
will, which the order stated was revoked by the 2006 will.
Two weeks later Magistrate Judge James Stanley signed an order
recommending that Etta’s motion to amend be denied. The recommendation stated that
a January 2013 court order, issued after Magistrate Judge Duggan’s second status
conference, “ruled that the 1987 will, [the] subject of the petition filed [June 21, 2012],
had been revoked when the decedent executed a new will in 2006.” The order stated that
Etta “cannot now use this action as a forum to invalidate the 2006 will.” The order noted
that “petitioner may wish to commence an action in Superior Court” to contest the 2006
will.
-5- 6985
In April 2014 Superior Court Judge Patrick J. McKay issued two final
orders: one approving Magistrate Judge Duggan’s decision not to recuse himself and a
second approving and adopting Magistrate Judge Stanley’s recommendation to deny
Etta’s motion to amend her pleadings to contest the 2006 will. The order approving
Magistrate Judge Duggan’s decision not to recuse himself concluded that, after a review
of the pleadings, Etta’s recusal request was “not supported by any evidence of bias on
the part of Master Duggan,” but rather reflected that Etta was “unhappy with Master
Duggan’s decision and orders.” The order stated that “[t]his is not a ground for recusal
and the Court sees no further grounds requiring recusal.” Judge McKay’s second order
adopted Magistrate Judge Stanley’s recommendation to deny Etta’s motion to amend
without further discussion.
Etta has appealed these final orders, arguing that the superior court erred
by denying her motion to amend her original pleading to contest the 2006 will and by not
investigating her claim that the 2006 will “was crafted and drafted possibly through
illegal means.”7 She contends that Offenesia was not competent to execute a will in 2006
and asserts that the witnesses to the 2006 will had conflicts of interest. She also requests
that Judge McKay, Magistrate Judge Duggan, and Magistrate Judge Stanley be barred
7
Etta’s brief on appeal also asserts that the superior court “erred in the facts”
and in ignoring her claim that her brother and her mother’s caretakers engaged in
criminal and fraudulent conduct. Etta also suggests that the superior court erred by not
holding Steven responsible for “any or all illegalities” regarding the 2006 will. But none
of these issues is properly before us since they were not addressed in the rulings below
and this decision only considers whether Etta may proceed as a procedural matter and
does not consider the merits of Etta’s claims. See Hoffman Const. Co. of Alaska v. U.S.
Fabrication & Erection, Inc., 32 P.3d 346, 351 (Alaska 2001) (“[W]e will not consider
arguments that were not raised below, unless the issues establish plain error, or the issues
(1) do not depend upon new facts, (2) are closely related to other arguments at trial, and
(3) could have been gleaned from the pleadings.”).
-6- 6985
from presiding over her case based on their alleged discrimination against her and refusal
to appoint counsel for her.
III. STANDARD OF REVIEW
“We review a superior court’s denial of a motion to amend a complaint for
abuse of discretion. It is within a trial court’s discretion to deny such a motion where
amendment would be futile because it advances a claim or defense that is legally
insufficient on its face.”8 “We consider with independent judgment whether a proposed
amended complaint could survive dismissal; if we conclude that it could not, we will
hold that the superior court did not abuse its discretion by denying the motion for leave
to amend.”9 “The refusal by a judge to be recused from a case is reviewed for an abuse
of discretion.”10
IV. DISCUSSION
A. The Superior Court Should Have Allowed Etta To Amend Her
Original Pleading — Informal Probate Of The 1987 Will — To
Contest The 2006 Will.
The primary question in this appeal is whether the superior court should
have allowed Etta to amend her application for informal probate of Offenesia’s 1987 will
to contest Offenesia’s 2006 will. Under Alaska Civil Rule 15(a), leave to amend “shall
be freely given when justice so requires.” We have recognized that absent “apparent or
declared reason — such as 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, futility of
8
Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174 (Alaska 2010)
(citations and internal quotation marks omitted).
9
Id. at 177.
10
Jourdan v. Nationsbanc Mortg. Corp., 42 P.3d 1072, 1082 (Alaska 2002).
-7- 6985
amendment, etc. — the leave sought should, as the rules require, be freely given.”11
Additionally, “the pleadings of pro se litigants should be held to less stringent standards
than those of lawyers.”12 As discussed below, none of the exceptions to Rule 15(a) apply
to this case. As a result, the superior court abused its discretion by denying Etta’s motion
to amend her pleading to contest Offenesia’s 2006 will.
First, Etta’s actions do not fall within the Rule 15(a) exception regarding
“futility of amendment.”13 While it is within the superior court’s discretion to deny a
motion to amend “where amendment would be futile because it advances a claim or
defense that is legally insufficient on its face,”14 Etta’s proposed amendments do not
appear to be legally insufficient; rather, the merits of her challenge to the validity of the
2006 will turn on factual findings that the superior court has not yet made.15 If the facts
are as Etta alleges, her claim would not be legally insufficient on its face.
To contest a will, as Etta sought to do here, a party must initiate a formal
probate proceeding.16 Though Etta initially filed her claim as an informal probate
11
Miller v. Safeway, Inc., 102 P.3d 282, 294 (Alaska 2004) (quoting Betz v.
Chena Hot Springs Grp., 742 P.2d 1346, 1348 (Alaska 1987)) (internal quotation marks
omitted).
12
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
13
See, e.g., AS 13.16.040(a) (“An informal probate . . . may not be
commenced more than three years after the decedent’s death . . . .”).
14
Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174 (Alaska 2010)
(quoting Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 287 (Alaska 2004)) (internal
quotation marks omitted).
15
Cf. Crittell v. Bingo, 36 P.3d 634, 638 (Alaska 2001) (“Issues of
testamentary capacity and undue influence involve questions of fact . . . .”).
16
See AS 13.16.140(a) (“A formal testacy proceeding is litigation to
(continued...)
-8- 6985
proceeding, there is no statutory bar precluding the superior court from converting an
informal probate proceeding to a formal one.17 The Uniform Probate Code, which
Alaska adopted in its entirety in 1972,18 is silent on how to convert an informal probate
proceeding into a formal one, but nothing in the Code prevents such conversion.19 In
Riddell v. Edwards, we recognized that “in deciding claims arising under the probate
code, a court may exercise its equitable powers unless explicitly forbidden to do so.”20
Moreover, “Alaska’s Uniform Probate Code generally gives trial courts broad latitude
to supplement statutory provisions with equitable principles.”21 There is also no statutory
16
(...continued)
determine whether a decedent left a valid will.”); cf. In re Estate of Bell, 4 P.3d 504, 506
(Colo. App. 2000) (holding that doctrine of res judicata did not bar caregivers’ challenge
to validity of will in formal probate proceeding because the caregivers’ challenge could
not have been litigated in prior informal proceeding); EUNICE L. ROSS & THOMAS J.
REED , Will Contests § 12:17 (2d ed. 2014) (“Will contests are initiated by petition or
objections filed with the court and result in formal testacy proceedings.”).
17
See Fields v. Fields, 219 P.3d 995, 1005 (Alaska 2009) (rejecting the
misconception that there is a difference between the probate court and the superior court
and explaining that when Alaska adopted the Uniform Probate Code it placed subject
matter jurisdiction for probate matters in the superior court).
18
See Jaworski v. Estates of Horwath ex rel. Streets, 277 P.3d 753, 759
(Alaska 2012) (citing ch. 78, § 1, SLA 1972).
19
See AS 13.16.120 (“If the Registrar is not satisfied that a will is entitled to
be probated in informal proceedings . . . , he may decline the application. A declination
of informal probate is not an adjudication and does not preclude formal probate
proceedings.”); AS 13.16.140(b) (“A petition may seek formal probate of a will without
regard to whether the same or a conflicting will has been informally probated.”).
20
76 P.3d 847, 858 (Alaska 2003).
21
Id. at 855 (citing AS 13.06.015). AS 13.06.015 provides that “[u]nless
displaced by the particular provisions of AS 13.06 – AS 13.36 [the Uniform Probate
(continued...)
-9- 6985
provision that prohibits a party from contesting the validity of a subsequent will as part
of a proceeding to determine whether to probate a former will or that requires a will
contest to take the form of a separate proceeding. In the absence of such statutory
prohibitions, it is unclear why the superior court denied Etta’s request to amend her
pleadings to contest Offenesia’s 2006 will or failed to permit her to convert her informal
probate to a formal probate proceeding.
Nor do Etta’s actions fall within the Rule 15(a) exception regarding
“repeated failure to cure deficiencies.”22 Etta initially attempted to comply with the
probate court’s directives as to how to proceed with her claims. Of note, the directives
that resulted from the November 2012 and January 2013 status hearings were somewhat
contradictory. At the November 2012 status hearing Magistrate Judge Duggan told Etta
that he could not admit Offenesia’s 1987 will for probate “until [the court] ha[d] a copy
of that 2006 will” and had held a hearing and determined its validity. When Etta asked
about the specific process she would need to follow toward this determination,
Magistrate Judge Duggan told her she would need to file a copy of the 2006 will with the
court and that there would then be a hearing during which she could present evidence
regarding why that will should not be admitted and why it is invalid. In response, Etta
promptly submitted a copy of the 2006 will. Magistrate Judge Duggan did not indicate
in November 2012 that Etta could not use the informal probate proceeding as a forum
to contest the 2006 will. Only later during a January 2013 status hearing did Magistrate
21
(...continued)
Code, as adopted], the principles of law and equity supplement those provisions.” See
also Pestrikoff v. Hoff, 278 P.3d 281, 286 (Alaska 2012) (noting that AS 13.06.015
“permits a court to apply equitable principles to supplement the probate code”).
22
Miller v. Safeway, Inc., 102 P.3d 282, 294 (Alaska 2004) (citing Civil
Rule 15(a)).
-10- 6985
Judge Duggan tell Etta that she would need to file a separate proceeding to invalidate the
2006 will. Thus, it appears that Etta attempted to comply with the superior court’s
directives.
Given the latitude the superior court is to give to pro se litigants,23 we
remand with instructions for the superior court to allow Etta to amend her pleadings to
convert her informal probate petition into a formal proceeding conditioned upon her
meeting all of the notice and other requirements for formal probate.24 Etta will then be
permitted to submit additional evidence to substantiate her claims so that the superior
court may consider the merits of her challenge to the 2006 will.
B. Magistrate Judge Duggan Was Not Required To Recuse Himself.
The second question on appeal is whether Magistrate Judge Duggan should
have recused himself as Etta requested. The bases for disqualification of a judge are laid
out in AS 22.20.020(a).25 None of the reasons Etta offers
23
See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (“[T]he pleadings of pro
se litigants should be held to less stringent standards than those of lawyers.”).
24
AS 13.16.150(a) requires notice be given to “devisees and executors named
in any will that is being, or has been probated or offered for informal or formal probate”
and to “any personal representative of the decedent whose appointment has not been
terminated,” among others. AS 13.16.145 provides other requirements for formal
probate proceedings.
25
AS 22.20.020(a) provides:
A judicial officer may not act in a matter in which
(1) the judicial officer is a party;
(2) the judicial officer is related to a party or a party’s
attorney by consanguinity or affinity within the third degree;
(3) the judicial officer is a material witness;
(continued...)
-11- 6985
fall within the reasons for recusal listed in the statute. While judges are required to
recuse themselves if there is actual bias or the appearance of bias,26 none of Etta’s
allegations suggest either.
Etta requested disqualification based on the fact that Magistrate Judge
Duggan “refused to grant [her] a filing fee waiver fully aware that [Etta] [is] an
incarcerated individual who earns a very low income with two institutional jobs.” She
25
(...continued)
(4) the judicial officer or the spouse of the judicial officer,
individually or as a fiduciary, or a child of the judicial officer
has a direct financial interest in the matter;
(5) a party, except the state or a municipality of the state,
has retained or been professionally counseled by the judicial
officer as its attorney within two years preceding the
assignment of the judicial officer to the matter;
(6) the judicial officer has represented a person as attorney
for the person against a party, except the state or a
municipality of the state, in a matter within two years
preceding the assignment of the judicial officer to the matter;
(7) an attorney for a party has represented the judicial
officer or a person against the judicial officer, either in the
judicial officer’s public or private capacity, in a matter within
two years preceding the filing of the action;
(8) the law firm with which the judicial officer was
associated in the practice of law within the two years
preceding the filing of the action has been retained or has
professionally counseled either party with respect to the
matter;
(9) the judicial officer feels that, for any reason, a fair and
impartial decision cannot be given.
26
See Jourdan v. Nationsbanc Mortg. Corp., 42 P.3d 1072, 1082 (Alaska
2002).
-12- 6985
also asserts that he improperly refused to appoint counsel for her. Magistrate Judge
Duggan informed Etta that he did “not believe there is a statute or law in Alaska that
requires the court to appoint an attorney” in this circumstance, but invited Etta to submit
a citation to such a law, if it exists.27
Magistrate Judge Duggan ultimately denied her motion for disqualification.
Judge McKay reviewed Magistrate Judge Duggan’s decision not to recuse himself and
concluded that, after a review of the pleadings, Etta’s recusal request was “not supported
by any evidence of bias on the part of Master Duggan,” but rather that Etta was
“unhappy with Master Duggan’s decision and orders.”
Magistrate Judge Duggan’s rulings, although unfavorable to Etta, did not
form grounds for disqualification. A party’s dissatisfaction with the court’s ruling
neither suggests bias nor provides grounds for disqualification.28 “By themselves,
interpretations of the law are not sufficient to demonstrate the existence of bias.”29 We
thus affirm Judge McKay’s order approving Magistrate Judge Duggan’s decision not to
recuse himself. We similarly deny Etta’s request on appeal that Judge McKay,
Magistrate Judge Duggan, and Magistrate Judge Stanley be barred from presiding over
further case proceedings. After a review of the record, we can discern no evidence or
27
Alaska Administrative Rule 12, titled “Procedure for Counsel and Guardian
Ad Litem Appointments at Public Expense,” does not provide for appointment of
counsel in probate cases.
28
See Jourdan, 42 P.3d at 1082 (citing Lacher v. Lacher, 993 P.2d 413,
420-21 (Alaska 1999) (dismissing an argument for recusal as “little more than an
expression of [appellant’s] dissatisfaction with the superior court’s ruling”)) (alteration
in original).
29
Id.
-13- 6985
manifestation of bias or any appearance of bias against Etta on the part of any of these
judicial officers.
V. CONCLUSION
We REVERSE and REMAND to the superior court to allow Etta to convert
this action to a formal probate proceeding and amend her filing to contest the 2006 will,
but we AFFIRM the superior court’s order approving Magistrate Judge Duggan’s
decision not to recuse himself.
-14- 6985
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426 F.Supp.2d 137 (2006)
In re LIVENT, INC. NOTEHOLDERS SECURITIES LITIGATION.
No. 98 Civ. 7161(VM).
United States District Court, S.D. New York.
April 4, 2006.
*138 Donald R. Wager, Los Angeles, CA, Lionel Z. Glancy, Peter A. Binkow, Glancy & Binkow LLP, Los Angeles, CA, Patrick V. Dahlstrom, Stanley Merrill Grossman, Pomerantz, Haudek, Block, Grossman & Gross LLP, New York, NY, for Dorian King.
Harvey L. Pitt, Fried, Frank, Harris, Shriver & Jacobson, New York, NY, Harvey Bernard Silikovitz, Cohen & Gresser, LLP, New York, NY, Ronald A. Nimkoff, Nimkoff Rosenfeld & Schechter, LLP, New York, NY, for Garth H. Drabinsky.
Harvey Bernard Silikovitz, Cohen & Gresser, LLP, New York, NY, Lee S. Richards, III, Richards, Spears, Kibbe & Orbe, New York, NY, Ronald A. Nimkoff, Nimkoff Rosenfeld & Schechter, LLP, New York, NY, for Myron I. Gottlieb.
Leon P. Gold, Proskauer Rose LLP, New York, NY, Leslie Jill Harris, Buchanan Ingersoll, P.C., Philadelphia, PA, for Daniel D. Brambilla.
Don Brian Hufford, Pomerantz Haudek Block Grossman & Gross LLP, New York, NY, Greg A. Danilow, Stephen Alan Radin, Weil, Gotshal & Manges, LLP, New York, NY, Sofia Giatrakos, Citigroup, the Control Group, New York, NY, for H. Garfield Everson.
Don Brian Hufford, Pomerantz Haudek Block Grossman & Gross LLP, New York, NY, for Gordon Eckstein.
Don Brian Hufford, Pomerantz Haudek Block Grossman & Gross LLP, New York, NY, Eric M. Roth, Wachtell, Lipton, Rosen & Katz, New York, NY, for A. Alfred Taubman.
Bradley Jay Butwin, James L. Burnes, O'Sullivan, LLP, New York, NY, Jonathan Rosenberg, O'Melveny & Myers LLP, New York, NY, for Martin Goldfarb.
James S. Dittmar, William J. Connelly, Hutchins, Wheeler & Dittmar, Boston, MA, Sanford F. Remz, Yurko & Salvesen, P.C., Boston, MA, for Thomas H. Lee, James A. Pattison, Scott Sperling, Joseph L. Rotman.
DECISION AND ORDER
MARRERO, District Judge.
Defendants Garth Drabinsky and Myron Gottlieb (collectively, "Defendants") move pursuant to Federal Rule of Civil Procedure 60(b) ("Rule 60(b)") for an order vacating this Court's March 25, 2005 Decision and Order granting summary *139 judgment against Defendants (the "Order"). See In re Livent, Inc., Noteholders Securities Litigation, 355 F.Supp.2d 722 (S.D.N.Y.2005). The facts pertaining to the underlying action are set forth in the Order.
I.DISCUSSION
Defendants assert that newly available evidence, consisting of testimony and documents introduced in a Canadian criminal court proceeding, contradicts testimony relied Upon by the Court in the underlying action that was the subject of the Order and accordingly warrants a reversal of the Order. Specifically, Defendants assert that testimony offered in the Canadian criminal proceeding contradicts the deposition testimony of Gordon Eckstein ("Eckstein") taken in connection with the action before this Court. Defendants also assert that the new testimony demonstrates that Eckstein was the true culprit who conceived and carried out the massive frauds and other wrongdoing at Livent, and that Defendants exercised due diligence in attempting to assure the accuracy of Livent's financial records.
The lead plaintiffs in the underlying action, Dorian and Diane King (collectively, "Plaintiffs") assert that the testimony from the Canadian criminal proceeding does not meet the requirements of Rule 60(b) because the testimony could have been discovered by the exercise of due diligence prior to the issuance of the Order. (See Letter from H. Adam Prussin to Judge Victor Marrero, dated March 24, 2005.) Plaintiffs also assert that the materials Defendants proffer do not include any new relevant evidence. On March 31, 2006, the Court held a conference with the parties and heard argument on Defendants' motion.
The Court has reviewed the parties' submissions and additional arguments. Having considered this material and the earlier record, the Court concludes that the testimony and documents relied upon by the Defendants do not provide sufficient grounds to vacate the Order. Defendants assert that the new testimony calls into question the veracity of Eckstein's statements in the underlying action. However, the Order was not based solely on Eckstein's statements. Rather, it was supported by the deposition testimony of numerous other individuals who had served as high-ranking Livent officials and were in a position to have knowledge of the facts relevant to the issues resolved by the Order, as well as by Livent internal business records and public disclosures. See Livent, 355 F.Supp.2d at 732. Furthermore, the Court found that summary judgment against Defendants was warranted as to the precise issue in dispute, whether, to avoid liability pursuant to Section 11(a) ("Section 11") of the Securities Act of 1933, 15 U.S.C. § 77k, Defendants had put forth sufficient evidence establishing that they had conducted necessary due diligence in respect of the false or misleading financial information contained within a Livent Registration Statement. See id. at 734. None of the material submitted in connection with Defendants' instant motion constitutes new evidence raising material issues of fact warranting a finding that Defendants conducted the necessary due diligence demanded by Section 11. As to that narrow issue, whether or not it was Eckstein and not Defendants who masterminded and orchestrated the Livent securities frauds, does not bear on whether Defendants, as Livent's highest-ranking managers, properly performed the duties Section 11 imposed upon them. Accordingly, Defendants' motion is denied.
II. ORDER
For the foregoing reasons, it is hereby
*140 ORDERED that the motion of defendants Garth Drabinsky and Myron Gottlieb pursuant to Fed.R.Civ.P. 60(b) (Docket No. 272) to relieve defendants from the judgment entered in accordance with the Court's Order dated March 25, 2005 granting summary judgment in this action is DENIED.
SO ORDERED.
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792 S.W.2d 150 (1990)
Eleanor Janice LAW, Appellant,
v.
Robert Andrew LAW, Appellee.
No. 01-89-00282-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 10, 1990.
Rehearing Denied June 7, 1990.
*151 Eleanor Janice Law, Houston, pro se.
Joe M. Pirtle, Houston, for appellee.
Before SAM BASS, DUNN and O'CONNOR, JJ.
OPINION
O'CONNOR, Justice.
This is an appeal from a summary judgment. We affirm.
The parties, Eleanor Janice Law and Robert Andrew Law, married in 1964 and divorced in 1982. During the 18 years of their marriage, Mr. Law worked at the Johnson Manned Space Craft Center (NASA). Ms. Law, a lawyer, and Mr. Law represented themselves in their divorce. The Laws agreed on the division of assets and drafted their own agreement. Relying on the agreement dividing the assets, the court granted the divorce.
The agreement provided that Ms. Law would keep the house and give Mr. Law a note for $30,000 for his share of the house, and that they would each keep their own retirement funds. The agreement also provided that as long as they did not remarry, they would name each other as the sole beneficiary of their wills, insurance, and any retirement benefits. Mr. Law remarried; Ms. Law did not.
Six years after the divorce was final, Ms. Law filed a suit to contest Mr. Law's receipt of his retirement benefits. In that suit, filed with the same cause number and in the same court that granted the divorce, Ms. Law claimed a one-half interest in a $39,706.64 lump sum payment made to Mr. Law as part of his NASA retirement after his divorce. Ms. Law asked the court to apply her share of Mr. Law's retirement payment to cancel her $30,000 note to Mr. Law. Ms. Law filed an amended petition and a petition for bill of review under the same cause number.
In response, Mr. Law filed an answer, and later, a motion for summary judgment. In the motion for summary judgment, he alleged: (1) there were no grounds for Ms. Law's bill of review; (2) res judicata barred reopening the case; and (3) the trial court did not have the authority to modify the property division.
Ms. Law filed a response to the motion for summary judgment, complaining in 20 numbered paragraphs about the motion for summary judgment, the property division, Mr. Law's remarriage, the inequity of the reduced value of the marital home, and Mr. Law's receipt of his retirement benefits.
Ms. Law attached an affidavit to the response which stated that all the allegations in her response were true. The affidavit itself did not state any facts. Because sworn pleadings do not constitute summary judgment evidence, Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 544-45 (Tex.1971), Ms. Law's response did not present any fact issues to the trial court or preserve any for our review.
The trial court granted Mr. Law's motion for summary judgment, stating no reason in the judgment for its decision. When a summary judgment does not state the reason for which it was granted, the appellant must show that none of the grounds in the motion for summary judgment is sufficient to support the judgment. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.Houston [1st Dist.] 1988, writ denied).
I. Mr. Law's retirement benefits.
In her first point of error, Ms. Law contends the trial court should not have granted the summary judgment because her pleadings raise the question whether the divorce decree disposed of Mr. Law's retirement benefits.
*152 Before we can decide this issue, we must first determine what kind of suit Ms. Law filed. If her suit was to partition assets overlooked in the divorce settlement, then the suit was not subject to a plea of res judicata. In such a case, she could bring a suit to divide assets that were not disposed of by the divorce decree.
If, however, Ms. Law's suit was to claim a share of an asset already divided by the divorce settlement, the suit was subject to a plea of res judicata. Thus, the only way Ms. Law could avoid the defense of res judicata was to claim fraud and file a bill of review.
We cannot determine, by looking at the titles to Ms. Law's pleadings, which type of suit she filed. Under the misnomer of pleadings rule, we can look at the substance of the pleading to determine what it is. Tex.R.Civ.P. 71; see also State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980).
Ms. Law initiated this suit by a pleading called a "Motion for Modification or Petition for Partition." In 14 numbered paragraphs, Ms. Law said she had only recently learned that Mr. Law was going to receive approximately $28,000 as a lump sum payment as part of his retirement at NASA; most of his NASA retirement accumulated during their marriage; she owes Mr. Law $30,000 on a note for the marital home; and the house is no longer worth the amount of the note. Ms. Law asked the court to apply her share of Mr. Law's retirement to cancel the note.
Ms. Law filed a second pleading she named "First Amended Motion for Modification or Amended Petition for Partition." In that pleading, Ms. Law added seven allegations to the suit, numbered 15 through 21. Although most of the paragraphs corrected dates and other information in her first pleading, Ms. Law also presented claims for interest and attorney's fees. Although titled an amended motion, we assume Ms. Law meant the pleading as a supplement to her first pleading.
Ms. Law's last pleading, "Request for Bill of Review," two paragraphs in length and unsworn, simply said:
Comes now the Petitioner, Eleanor Janice Law, proceeding pro se, and seeks to invoke this court's equitable powers with regard to the above case.
In support thereof, Petitioner incorporates by reference all pleadings filed by Petitioner on and since June 29, 1988.
The pleadings Ms. Law attempted to incorporate in her bill of review were the motion for modification or petition for partition, and first amended motion for modification or amended petition for partition.
A. Suit to partition undivided assets.
If we assume Ms. Law's suit was a suit to partition undivided assets, was the summary judgment proper? Yes. The property agreement disposed of all Mr. Law's retirement benefits at NASA. At the time of the divorce, Ms. Law knew Mr. Law had retirement benefits at NASA. Schedule 2 of the property agreement provided that Mr. Law was to have "any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise" related to all of his retirement plans.
Ms. Law's only complaint about the retirement benefits seems to be that she did not know Mr. Law would be able to get part of his retirement in a lump sum payment. She does not claim to have been unaware of his NASA retirement benefits. Only if the community property was not divided by the property agreement, could Ms. Law ask the court to partition it. Harrell v. Harrell, 692 S.W.2d 876 (Tex.1985). Because Mr. Law's retirement benefits were community assets that were divided by the divorce, Ms. Law could not file a suit to re-litigate her interest in his benefits.[1]
*153 B. Petition for bill of review.
If we assume Ms. Law's suit was a bill of review, was the summary judgment proper? Yes. Ms. Law's pleadings did not meet the requirements of a bill of review.
We begin this review by acknowledging that the courts do not look on bills of review with favor. See Crouch v. McGaw, 134 Tex. 633, 638, 138 S.W.2d 94, 96 (1940); 4 R. McDonald, Texas Civil Practice in District and County Courts § 18.27.1 (rev.1984). A bill of review is a separate suit in equity, brought to set aside a judgment in the same court in an earlier suit, when the judgment in the earlier suit is final, is not reviewable by appeal or by writ of error, and does not appear to be void on the face of the record. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463 (1989).
1. The allegations.
Because a bill of review is an equitable proceeding designed to prevent manifest injustice, the courts require a party who challenges a final judgment to allege and prove:
a. a meritorious defense to the earlier cause of action;
b. which the party was prevented from making by fraud, accident, or wrongful act of the opposite party; and
c. which is unmixed with any fault or negligence of the party.
Baker v. Goldsmith, 582 S.W.2d 404, 406-407 (Tex.1979); Forney v. Forney, 672 S.W.2d 490, 497 (Tex.App.Houston [1st Dist.] 1983, writ dism'd w.o.j.). The petition for bill of review must state facts sufficient to show the court that petitioner is entitled to a bill of review. Baker, 582 S.W.2d at 408.
We find that Ms. Law did not state a meritorious defense to the divorce judgment; Ms. Law did not claim she was prevented from making the defense by fraud, accident, or wrongful act of Mr. Law; and Ms. Law's participation in drafting the settlement with her husband did not leave her without fault or negligence. On her allegations, therefore, Ms. Law was not entitled to challenge the divorce decree by bill of review.
2. Time limits.
A petition for bill of review must be filed within the residual four-year statute of limitations. TEX.CIV.PRAC. & REM. CODE ANN. § 16.051 (Vernon 1986); see also Williams v. Adams, 696 S.W.2d 156, 160 (Tex.App.Houston [14th Dist.] 1985, writ ref'd n.r.e.). The only exception to the four-year limitation is for petitioner to show extrinsic fraud. Williams, 696 S.W.2d at 160.
The divorce decree was signed on June 14, 1982. In civil cases, the date the court signs a judgment begins the time for filing the documents in connection with an appeal. TEX.R.APP.P. 5(b). The divorce decree was not subject to challenge by bill of review after June 14, 1986.
Ms. Law filed her request for bill of review on June 29, 1989, seven years after the decree was entered, and three years after the last date she could have challenged it by bill of review. Because Ms. Law filed the bill of review outside the four year-statute of limitations, the only way she could extend the time was to allege extrinsic fraud.
Extrinsic fraud is fraud which is collateral to the matter tried, and not something that was actually or potentially in issue in the trial. Crouch, 134 Tex. at 639, 138 S.W.2d at 97.[2] Extrinsic fraud is the type of fraud that prevents the party from litigating the issues; for example, if a party did not know of the suit.
Ms. Law did not allege extrinsic fraud in any of the three pleadings she filed to initiate this suit or in her response to the motion for summary judgment. At best, Ms. Law complained that she did not know *154 Mr. Law could take his retirement benefits in a lump sum.
For all of these reasons, we overrule point of error one.
II. Public policy and the property agreement.
In her second point of error, Ms. Law alleges that specific clauses in the property agreement are void because they are against public policy. She urges this point of error for the first time on appeal. Thus, we cannot consider it. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Tilotta, 752 S.W.2d at 163. We overrule Ms. Law's second point of error.
The judgment is affirmed.
DUNN, J., dissents.
DUNN, Justice, dissenting.
I respectfully dissent.
I disagree with the reasoning and conclusions reached by the majority. Without considering the question of the bill of review and the unassigned error pertaining to the applicability of the statute of limitations to the bill of review in this case, the disposition of this summary judgment turns on the adequacy of the summary judgment proof.
Before considering the nonmovant's response and supporting evidence, this Court must first determine if the movant established his right to summary judgment.
A summary judgment for the defendant, which disposes of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any of the theories pled. Lumpkin v. H & C Communications, Inc., 755 S.W.2d 538, 539 (Tex.App. Houston [1st Dist.] 1988, writ denied).
I would hold that the movant failed to establish his right to a summary judgment because a fact issue remains concerning whether there are certain lump sum amounts accumulated during the marriage that were not disposed of in the divorce decree.
Where the divorce decree fails to provide for division of community property, the husband and wife become tenants in common or joint owners thereof. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). In such case, the law does not vest title in the spouses before a partition; instead, the spouses own an undivided interest in the property. Ex parte Williams, 160 Tex. 314, 316, 330 S.W.2d 605, 606 (Tex.1960). Limitations will not begin to run against a co-tenant until another co-tenant repudiates the first co-tenant's interest in the property. Mooney v. Glasspool, 602 S.W.2d 364, 366 (Tex.Civ.App.Beaumont 1980, writ ref. n.r.e.); Tex.Fam.Code Ann. § 3.90(a), (b), (c).
The movant's summary judgment evidence consists of an agreement incident to divorce, a copy of the decree of divorce that incorporates the agreement by reference to movant's affidavit in support of his motion for summary judgment, and nonmovant's petition for modification, partition, and bill of review.
The nonmovant asserted in her petition for partition the following:
4. As part of his federal retirement benefits from the Johnson Space Center, Petitioner has reason to believe that Robert A. Law very recently received or will receive the lump sum of approximately $28,000.00 and perhaps additional monies or benefits.
6..... Petitioner was unaware of the sum or potential sums.
(Emphasis added.)
Her supplemental petition for partition contained the following paragraph:
15. The phrase additional monies or benefits used in paragraph et seq of the June 29 pleading is intended to include monthly retirement and other benefits (at this time the amount and the nature of which is unknown to Petitioner), as well as the lump sum, of approximately $28,000, the exact amount of which is also unknown to Petitioner at this time.
(Emphasis added.)
A liberal interpretation of the nonmovant's pleadings would indicate that the nonmovant *155 believes movant received a lump sum of money in an approximate amount of $28,000, which she believes to be a part of his retirement, as well as "additional monies;" she was unaware of this sum, or "potential sums; she believes that the sum, or potential sums, were accumulated during the marriage and are community property of which she is entitled to at least 50%. Troutman v. Traeco Bldg. Sys. Inc., 724 S.W.2d 385, 385 (Tex.1987); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985).
The settlement agreement, incorporated by reference in the decree of divorce, has attached a "Schedule 1 Property to Wife," and a "Schedule 2, Property to Husband"; each schedule lists specific property to each of the spouses but does not list any lump sum amounts. Also, the schedules contain the following general provision:
7. Any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit sharing plan, retirement plan, pension plan, or like benefit program existing by reason of Wife's (Husband's) past, present, or future employment.
The applicable portion of movant's affidavit in support of his motion for summary judgment asserts:
My former wife, ELEANOR JANICE LAW, and I were divorced in the 257th District Court of Harris County, Texas, on June 14, 1982. At that time, we entered into an Agreement Incident to Divorce, which made a complete and final disposition of our community property. The agreement, among other things, disposed of the employee and retirement benefits of both parties and all real property owned by the community, including the residence located at 5518 Whispering Creek, Houston, Texas 77017.
At the time of our divorce, ELEANOR JANICE LAW, was an attorney. Nothing was concealed from her by me in arriving at that agreement. She has now filed various actions in the 257th District Court, attempting to reopen the divorce and redistribute the community property which was divided by the divorce of 1982.
The property settlement agreement contains a general paragraph as to retirement benefits but does not specifically identify any lump sum as part of the retirement benefits, nor does the agreement make disposition of any other type of "lump sum" of money.
Movant does not state in his affidavit that the lump sum in question, or other lump sums, were disposed of in the division of property on divorce by reason of the sums being a part of the retirement benefits generally referenced in the schedules, or by reason of the lump sums being specifically disposed of in the agreement. He merely calls attention to this general provision pertaining to retirement. He did not deny the receipt of additional lump sums of money from other sources; he does not assert that the lump sums did not exist during the marriage, or that if they did exist, they were not community property.
I would find that a fact issue exists concerning the lump sums nonmovant asserts may be retirement or other additional monies that were accumulated during the marriage and not divided on divorce.
I would reverse the summary judgment granted by the trial court.
NOTES
[1] The dissent contends Ms. Law raised a fact issue that some community property remains undivided, quoting paragraphs 4 and 15 in the petition for partition. Yet, paragraph 4 states: "As part of his retirement benefits, ... [petitioner believes that Mr. Law will receive additional benefits]." Paragraph 15 merely explains a phrase used in paragraph 4. Because the agreement incident to divorce disposed of any and all sums related to Mr. Law's retirement plans, Ms. Law's claim, that "part of" his retirement benefits were not disposed of, does not raise a fact issue.
[2] Intrinsic fraud includes false testimony, fraudulent instruments, and any fraudulent matter that was presented and considered in rendering judgment. Crouch, 134 Tex. at 639, 138 S.W.2d at 97. Intrinsic fraud does not furnish a ground for bill of review. Id.
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117 Ga. App. 325 (1968)
160 S.E.2d 427
SILER
v.
GUNN.
43095.
Court of Appeals of Georgia.
Argued October 4, 1967.
Decided February 27, 1968.
Fred W. Minter, for appellant.
J. B. McGregor, James O. Goggins, for appellee.
WHITEMAN, Judge.
1. The trial judge heard this case without the intervention of a jury. The appellant has enumerated five errors. The first two are that the trial court erred in entering judgment for the defendant and in failing to render judgment *326 for the plaintiff. The fourth is that it was error to overrule the plaintiff's motion for new trial on the general grounds. These enumerations present the question of whether the judgment is supported by any competent evidence. Powell v. Commercial Travelers Mut. Acc. Assn., 110 Ga. App. 54 (137 SE2d 759).
Gunn testified with regard to his purchase of the grocery business that Siler had told him that Mr. Jones wanted $3,500, but that he would try to get it down to $3,250, and that the next day Siler told him that Mr. Jones would go along with $3,250.
Gunn further testified that Siler told him that $250 was his commission and that Mr. and Mrs. Jones were getting $3,000. The terms of the contract for sale, which was in evidence, were for a total price of $3,250 to be paid for by $1,250 in cash and the balance by a $2,000 promissory note.
Regarding the $1,250 cash amount, Gunn testified that he was asked to make out two checks, one for $250 payable to Siler as his commission and the other for $1,000 to go to Mr. Jones. He testified that Siler requested that the $1,000 check for Mr. Jones be made payable to Almon Brannon so that they could go immediately to the bank and cash it because Mr. Jones wanted all cash.
The same day or the next day, according to Gunn's testimony, he had a conversation with Mr. Jones as the result of which he immediately stopped payment on the $250 check; that he found out that the $1,000 did not go to Mr. Jones but that Siler had kept it for himself. Regarding the $1,000, Siler testified that $250 was paid to Mr. Jones and that he and Mr. Brannon received the remaining $750 as their commission.
Mr. Jones testified that he told Siler he wanted $2,500 for the store, although he was satisfied with $2,250, and that he understood that Siler's commission was to be $250. He said he did not know that Gunn was actually paying $3,250.
The basis of the defendant's cross action is that Siler misrepresented the minimum price of the vendor and this is supported by the evidence set forth above.
When a broker is the agent of the vendor only, and misrepresents to a purchaser the lowest price which the vendor will accept, and personally profits by the difference, the courts are divided on whether this represents an actionable wrong against the purchaser. *327 But in the same situation, where there is evidence of a confidential or fiduciary relationship between the two, the courts generally hold the broker liable in damages to the purchaser for the misrepresentation. See Annot., 55 ALR2d 342; 12 AmJur2d 858, Brokers, § 110; 12 CJS 359, Brokers, § 146.
The following testimony of Siler on cross examination is sufficient to support a finding that a dual agency existed: "Q. You didn't consider that you were representing Mr. Gunn in this? A. I represented Mr. Gunn. The fact of the business, I closed out the sale for him, I dealt with Mr. Brannon and I closed out the sale with Mr. Brannon. Q. You closed out the sale for Mr. Gunn? A. Yes, sir. Q. Now you and Mr. Brannon were working together in the sale of this property. Is that right? A. He was the salesman, he worked on commission."
There was ample evidence to support the judgment.
2. The appellant's third enumeration of error is that the court erred in rendering judgment against the plaintiff for the further sum of $250 as punitive damages for the reason that Code § 20-1405 provides that exemplary damages are not allowable in cases arising on contract. The answer to this is that the cross action was for deceit, a tort, for which punitive damages may be awarded. Kelly v. Ga. Cas. &c. Co., 105 Ga. App. 104 (6) (123 SE2d 711); Walk v. Carter, 110 Ga. App. 273 (3) (138 SE2d 390); Code § 105-2002.
3. The appellant's fifth enumeration of error is that the court erred in overruling the motion for new trial on Ground 4. Ground 4 is that "the evidence fails to warrant a judgment in favor of defendant for the reason that defendant with any degree of diligence could have discovered the amount of money the seller was to receive." This enumeration is without merit. There is evidence that a fiduciary relationship existed. In such circumstances reliance is justified and the fiduciary "cannot make advantage or profit for himself out of the relationship to the injury of his principal." Harrison v. Harrison, 214 Ga. 393 (1) (105 SE2d 214).
Judgment affirmed. Bell, P. J., and Pannell, J., concur.
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172 F.3d 884
Jody E. Allenv.A. G. Thomas, Warden
NO. 96-9050
United States Court of Appeals,Eleventh Circuit.
February 03, 1999
S.D.Ga., 161 F.3d 667
1
DENIALS OF REHEARING EN BANC.
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99 B.R. 477 (1989)
In re FLIGHT MANAGEMENT, INC., Debtor.
Gregory K. CREWS, as Trustee, Plaintiff,
v.
Curtis TRUVER, Defendant.
Bankruptcy No. 88-104-BKC-3P7, Adv. No. 88-67.
United States Bankruptcy Court, M.D. Florida, Jacksonville Division.
May 2, 1989.
Gregory K. Crews, Jacksonville, Fla., for plaintiff.
Donald W. Matthews, Jacksonville, Fla., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GEORGE L. PROCTOR, Bankruptcy Judge.
This adversary proceeding is before the Court upon the Trustee's complaint to recover preferential transfers pursuant to 11 U.S.C. § 547. A trial of this matter was held March 8, 1989, and upon the evidence and stipulation of facts contained in the record, the Court enters the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
On April 19, 1985, the debtor entered into a contract with Aero Development, Inc. ("Aero") concerning the training of student pilots for Jacksonville University. On May 12, 1986, Aero claimed breach of contract and made written demand upon the debtor for payment of $15,125.40. On June 3, 1986, Aero made an additional written demand for $4,934.18 and filed suit for the amounts due under the contract.
On November 30, 1987, the Circuit Court for Duval County, Florida, entered an Amended Final Judgment awarding Aero $19,047.70 in damages plus $3,394.14 in interest computed from June 1, 1987. Approximately two months later, on January 19, 1988, the debtor filed a petition for relief in this Court under Chapter 7 of the Bankruptcy Code. 11 U.S.C. § 701, et seq. Plaintiff was appointed as trustee.
On January 19, 1987, the debtor made a payment of $4,023.00 to the defendant, an officer and shareholder of the debtor corporation. On September 10, 1987, it made a second payment of $4,000.00 to the defendant. The transfers were allegedly repayments of advances made to the debtor to cover impending payroll expenses. The *478 loans were not supported by promissory notes and were to be repaid whenever the debtor had the necessary financial ability.
On January 19, 1987, the date of the first transfer and one year prior to the petition date, the debtor had debts of $8,577.10 and assets with a fair market value of $28,487.16. On September 10, 1987, the debtor had assets of $31,832.50 and debts of $10,364.97. The obligation to Aero is excluded from both of these computations.
The bankruptcy estate, not taking into consideration this action, consists of $3,155.12. Only one creditor, Aero Development, Inc., has filed a proof of claim. No objection to that claim has been filed, and the claim is deemed allowed pursuant to § 502(a).
On March 21, 1988, the plaintiff initiated this adversary proceeding seeking to recover the two transfers to defendant as preferential transfers. Both parties have stipulated that the defendant is an "insider" within the meaning of § 101(30)(B)(ii) and that the one year period of § 547(b)(4)(B) applies.
CONCLUSIONS OF LAW
Pursuant to § 547(b) of the Bankruptcy Code, the trustee may avoid any transfer of an interest of the debtor in property
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made
(A) on or within 90 days before the date of of the filing of the petition, or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
Both parties to this adversary proceeding have stipulated that all of the elements set forth above are satisfied, with the exception of subsection (3). Thus, the major issue to be determined is whether the debtor was insolvent when the transfers of January 19, 1987, and September 10, 1987, were made. This in turn, depends upon resolution of the question of when the debt to Aero arose.
For a transfer to be avoidable under § 547, it must be made while the debtor was insolvent. Pursuant to section 101(31)(A), "insolvent" means:
financial conditions such that the sum of such entity's debts is greater than all of such entity's property, at a fair valuation, exclusive of
(i) property transferred, concealed, or removed with intent to hinder, delay, or defraud such entity's creditors; and
(ii) property that may be exempted from property of the estate under section 522 of this title. . . .
From the clear wording of § 547, this determination is to be made at the time when the alleged preferential transfer occurred and not when the petition was filed.[1]
To determine whether a debtor was insolvent when the transfers were made, the Court must undertake a "balance sheet" analysis comparing current assets with current liabilities. An entity is insolvent if its debts are greater than its assets, at a fair valuation, exclusive of property exempted or fraudulently transferred. H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 312 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 25 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5810-5811, 6269.
*479 The defendant suggests that the debtor was solvent when the transfers were made and up until the entry of the Amended Final Judgment on November 30, 1987. According to the defendant, the debtor had debts of $8,577.10 and assets of $28,487.16 on January 19, 1987, and on September 10, 1987, the date of the second transfer, it had debts of only $10,364.97 and assets of $31,832.50. The plaintiff, on the other hand, suggests that the $22,441.84 debt owed by the debtor to Aero Development, Inc., is a debt which must be included in the insolvency computation on both dates.
The issue of when payment arises is crucial to this adversary proceeding. If payment arose on June 1, 1986, the date the agreement between debtor and Aero ended, then the payment to the defendant would have made the debtor insolvent. If, on the other hand, the payment arose with the entry of the Amended Final Judgment on November 30, 1987, then the payments made to the defendant would not have made the debtor insolvent. The Court must begin its resolution of this issue by examining the definitions section of the Bankruptcy Code.
"Debt" is defined in § 101(11) simply as a liability on a claim. "Claim" is defined in § 101(4) as a
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
Although the Bankruptcy Code defines "claim" for purposes of bankruptcy law, it does not clearly establish when a right to payment arises. Absent overriding federal law then, the question of when payment arises is to be determined according to state law. Matter of M. Frenville Co., Inc., 744 F.2d 332, 337 (3d Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985).
The answer to this question is clear. Under Florida law, damages for breach of contract are generally measured as of the date of the breach. Grossman Holdings Ltd. v. Hourihan, 414 So.2d 1037 (Fla. 1982); Lake Region Paradise Island, Inc. v. Graviss, 335 So.2d 341 (Fla. 2d DCA 1976); Mar-Len Housing Enterprises, Inc. v. Mar-Len Gardens "I" Corp., 302 So.2d 469 (Fla. 3d DCA 1974). Moreover, the time of breach may be fixed by the making of a demand or the commencement of a suit. Milton v. Blackshear, 8 Fla. 161 (1858). Accordingly, the Court finds that the right to payment arises upon breach of contract.
Although the Florida Circuit Court did not determine the date of debtor's breach, it implicitly recognized June 1, 1987, as the date of the breach by computing pre-judgment interest from that date. The Court finds that June 1, 1987, is the date when the right to payment arose.
Having so concluded, the obligation to Aero must be included in the "balance sheet" computation of insolvency. Accordingly, on January 19, 1987, the debtor had liabilities of $29,077.58, including $21,965.79 owed to Aero plus interest, and assets of $28,487.16.[2] Similarly, the addition of the $21,965.79 obligation to Aero to the debtor's liabilities on September 10, 1987, results in total liabilities of $32,330.76 compared to total assets of $31,832.50. The Court concludes that the debtor was insolvent on the dates when the transfers were made.
Finally, the defendant contends that the payments fall within the exception of 11 U.S.C. § 547(c)(2) as a transfer in the ordinary course of business. This section *480 provides that a trustee may not avoid an otherwise preferential transfer
(2) to the extent that such transfer was
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms.
The Court has considered the transfers in question and concludes that the payments were not made in the ordinary course of business as contemplated by § 547(c)(2). First, the payments were made to an insider for, and on behalf of, an antecedent debt. Secondly, the loan from the defendant to the debtor was made under extraordinary circumstances (i.e. an emergency bailout to keep the business running) and was not properly evidenced by a promissory note. Third, the defendant is a college professor and is not ordinarily engaged in the business of lending money. Furthermore, there is no evidence of a prior course of dealing between the debtor and the defendant which would aid the Court in its determination of whether payment was made in the ordinary course of business. Finally, there was no structured repayment schedule detailing when the payments were to be made, and instead, the debtor was free to repay the loan at will.
For the foregoing reasons, the Court concludes that the transfers of January 19, 1987, and September 10, 1987, are avoidable by the plaintiff pursuant to 11 U.S.C. § 547. The Court will, by separate order, enter final judgment in favor of the plaintiff.
NOTES
[1] Because the Court is dealing with a transfer to an insider made between ninety days and one year prior to the petition date, the plaintiff is not entitled to rely upon the ninety-day presumption of insolvency set forth in § 547(f).
[2] Pursuant to § 687.01, Florida Statutes, Aero was entitled to interest on its claim at the rate of 12% per annum.
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Order Michigan Supreme Court
Lansing, Michigan
February 10, 2015 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Mary Beth Kelly
149502(49) Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellant,
SC: 149502
v COA: 314375
Leelanau CC: 12-001777-FH
JOSEPH WILLIAM MILLER,
Defendant-Appellee.
_____________________________________/
On order of the Chief Justice, the motion of defendant-appellee to extend the time
for filing his brief on appeal is GRANTED. The brief submitted on February 4, 2015, is
accepted for filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 10, 2015
Clerk
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469 F.Supp. 892 (1979)
The DOW CHEMICAL COMPANY et al., Plaintiffs,
v.
Barbara BLUM et al., Defendants.
Civ. A. No. 79-10064.
United States District Court, E. D. Michigan, N. D.
April 12, 1979.
*893 *894 Herbert H. Edwards, James N. O'Connor, Michael J. Traynor, Dow Chemical Company, Midland, Mich., Rudolf H. Schroeter, LaFollette, Johnson, Schroeter & Dettaas, Los Angeles, Cal., for Dow Chemical Co.
Allen A. Lauterbach, Gen. Counsel, Park Ridge, Ill., C. David Mayfield, John J. Rademacher, Asst. Legal Counsels, Park Ridge, Ill., for American Farm Bureau Federation.
Anthony P. Brown, Pillsbury, Madison & Sutro, San Francisco, Cal., for Western Timber Association, Chevron Chemical, National Aborists Association, Asplundh Tree Expert Co.
Allen T. Malone, Apperson, Crump, Duzane & Maxwell, Memphis, Tenn., for Vertac, Inc., National Railroad Contractors Assoc., National Agriculture Aviation Assoc., Bartlett Tree Co., The Davey Tree Expert Co.
Ronald A. Zumbrun, Raymond M. Momboisse, Eileen B. White, Pacific Legal Foundation, Washington, D. C., for Southern Oregon Resources Alliance, Oregon Women For Timber.
Manley B. Strayer, Phillip D. Chadsey, Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for Industrial Forestry Association.
Richard Dec. Hinds, Cleary, Gottlieb, Steen & Hamilton, Washington, D. C., for United States Steel Corp.
J. Evan Goulding, Friedman, Hill & Robbins, Denver, Colo., O. Russell Armstrong, Davis & McLeod, Washington, D. C., for National Cattlemen's Association.
Robert C. Klevorn, Boyne City, Mich., for Northern Michigan Electric Cooperative, Michigan Electric Cooperative Association.
Joseph E. Stevens, Jr., Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, Mo., for the Andersons.
James H. Eddleman, Springfield, Ill., for Association of Illinois Electric Cooperatives.
Eugene N. Buchheit, Louisville, Ky., for Kentucky Association of Electric Cooperatives, Inc.
Michael S. Winer, Ellen Siegler, U. S. Environmental Protection Agency, Washington, D. C., for Barbara Blum.
*895 Donald W. Stever, Jr., U. S. Dept. of Justice, Land & Natural Resources Div., Washington, D. C., for Douglas Costle.
Joan M. Cloonan, U. S. Dept. of Justice, Pollution Control Section, Washington, D. C., for John McGuire, Environmental Protection Agency.
Edward W. Warren, Kirkland & Ellis, Washington, D. C., for plaintiffs.
MEMORANDUM OPINION AND ORDER
JAMES HARVEY, District Judge.
On March 6, 1979, plaintiffs brought this action seeking judicial review of a decision by the Environmental Protection Agency (EPA) to order an emergency ban of two herbicides manufactured primarily by the plaintiff Dow Chemical Company (Dow). The herbicides are commonly known as 2,4,5-T and Silvex. In ordering the ban, EPA was acting, for the first time, pursuant to its emergency powers under Section 6(c)(3) of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136d(c)(3). Such action is subject to immediate review in the district courts solely to determine whether the order of suspension was arbitrary, capricious, or otherwise not in accordance with the law. 7 U.S.C. § 136d(c)(4).
The twenty-one plaintiffs joined in this action are registrants and/or users of 2,4,5-T or Silvex. The plaintiff Dow Chemical Company is the primary manufacturer of 2,4,5-T, and is the plaintiff primarily responsible for litigating the plaintiffs' case. The defendants consist of Ms. Barbara Blum, Deputy Administrator of EPA; Mr. Douglas Costle, Administrator of EPA; Mr. John McGuire, Regional Administrator of Region V of EPA; and the EPA itself.
Plaintiffs filed this action, as well as motions for an immediate stay of the EPA emergency suspension orders and for accelerated discovery, on March 6, 1979. On March 7, 1979, defendants filed a motion for a protective order seeking to limit the requested discovery. The same day, March 7, 1979, the Court denied the request for an immediate stay and tentatively set the matter on for a hearing for April 3, 1979. In addition, the Court allowed each party ten days to respond to the discovery motions in question. On March 19, 1979 the Court ruled on the respective discovery motions, granting the motion for accelerated discovery and granting in part the motion for a protective order. In this connection, the Court allowed the plaintiffs to discover all requested documents and to take the depositions of lower EPA officials and contractors for the sole purpose of determining the contents of the administrative record.
Subsequently, on March 16, 1979, EPA filed a motion in limine seeking to cancel the scheduled hearing and limit review to the administrative record as compiled by EPA. On March 27, 1979, the Court denied this motion and permitted the plaintiffs to introduce at the scheduled hearing evidence and direct oral testimony addressing the question whether the emergency suspension orders issued by EPA on February 28, 1979, were arbitrary, capricious, an abuse of discretion or were issued in accordance with the procedures established by law. Later, the Court reset the scheduled hearing for April 5, 1979.
The matter is before the Court on plaintiff's motion to stay the EPA emergency suspension orders reflected above. The Court heard testimony on the matter April 5, 6, 7 and 8 of 1979. In addition, the Court has received numerous exhibits consisting largely of affidavits and depositions, as well as the administrative record certified to this Court by EPA. Having reviewed the testimony and exhibits, the relevant portions of the administrative record cited to the Court by the parties, as well as the law on the matter, the Court believes that the request for a stay of the EPA emergency suspension orders of February 28, 1979 should be denied. Because of the need for an expedited decision, the ensuing discussion will be relatively brief.
FACTUAL BACKGROUND
On February 28, 1979, EPA issued two emergency suspension orders which had the effect of immediately suspending the distribution, *896 sale, and use of: (1), 2,4,5-T for forestry, rights-of-way, and pasture uses; and (2) Silvex for the foregoing uses, as well as home and garden, aquatic weed control/ditch bank, and commercial/ornamental turf uses. The emergency suspension orders were based on a judgment by EPA that pregnant women at the time of exposure to the banned uses of 2,4,5-T and Silvex faced an immediate unreasonable risk of spontaneous abortions. The suspension orders themselves reflect that this judgment was based on essentially two categories of information: (1) laboratory tests which indicated that the contaminant TCDD, which is present in small amounts in both 2,4,5-T and Silvex, produced feto-toxic and teratogenic effects in animals at extremely low dose levels; and (2) an epidemiological study, labeled "Alsea II," which claimed to have found a statistically significant correlation between the spraying of 2,4,5-T and the occurrence of spontaneous human abortions in women residing in the Alsea basin region on the western coast of Oregon. As the suspension orders frankly state, however, it was the Alsea II Study, completed and reviewed by EPA near the end of February, 1979, which provided "the new point of departure" and the claimed additional evidence which necessitated the emergency action by EPA.
The events leading to the Alsea II Study are as follows:
(1) In 1970, the United States Department of Agriculture (USDA) suspended the registration of 2,4,5-T for aquatic and home uses;
(2) In July, 1973, EPA initiated cancellation proceedings on all registered uses of 2,4,5-T with hearings to commence in April of 1974; the cancellation notices were later withdrawn in June, 1974;
(3) In April, 1978, as part of its ongoing program to review the safety of pesticides presently in use, EPA initiated Rebuttable Presumption Against Registration (RPAR) proceedings for 2,4,5-T; the purpose of these proceedings was to carry out a thorough, in-depth scientific review of the long-range risks and benefits of continued use of 2,4,5-T;
(4) In the summer of 1978, during the RPAR proceedings, EPA received complaints from nine women in the Alsea, Oregon area claiming they had experienced miscarriages because of the herbicide spraying in the course of forest management; in July of 1978, as a result of these complaints, the Human Effects Monitoring Branch (HEMB) of EPA initiated an investigation, labeled "Alsea I" and separate from the RPAR proceedings, of the possible relationship between 2,4,5-T spraying and the abortions experienced by these nine women;
(5) The Alsea I investigation consisted of administering a questionnaire to each of the nine women, and referring the results and other information to ten persons, mostly obstetricians and gynecologists, for review; all the reviewers concluded that a causal relationship between forest herbicide spraying and reproductive wastage had not been demonstrated from the data presented;
(6) In October, 1978, deciding that the results of Alsea I required a broader-based epidemiological study of the possible relationship between the spraying of 2,4,5-T and the occurrence of spontaneous abortions in the Alsea Region, EPA contacted Colorado State University for the purpose of initiating the Alsea II investigation which lies at the heart of this action;
(7) In late January or early February of 1979, the Colorado State researches transmitted the final Alsea II report to HEMB;
(8) On February 28, 1979, EPA issued the two emergency suspension orders involved in this action based partly on the results of the Alsea II investigation.
The Alsea II investigation was designed to test the rates of spontaneous abortions occurring in a forested region (Study Area) of Oregon's coastal range, centered about the Alsea Basin (which is roughly equidistant from Oregon's northern and southern borders and where 2,4,5-T has been commonly used in forest management) and to *897 compare those rates with rates occurring in a comparable control area lying on Oregon's eastern border (Control Area). Specifically, the study was designed to test the following hypotheses:
(1) Whether or not differences in spontaneous abortion rates exist between the study and control populations;
(2) Whether or not seasonal variations in rates exist between the study and control populations; and
(3) Whether or not such variations, if they exist, can be associated with time and concentration of spray applications in the Study Area.
To test these hypotheses, the Colorado State researches collected data from in-patient records from seven major hospitals located in or near the study and control areas of women hospitalized for spontaneous abortions of less than twenty-weeks term. The data were collected for a six-year period from 1972 to 1977. In addition, data were collected on the number of births in these areas. These data were then used to compute a spontaneous abortion index, defined basically as the ratio of the number of hospitalized spontaneous abortions from women residing in an area to the number of live births occurring in that area. Index values were calculated, by month and area, for the aggregated six-year data and for the two three-year periods 1972-1974 and 1975-1977. The areas under consideration included not only the study and control areas as reflected above, but also an urban area adjacent to the Study Area in which the spraying of 2,4,5-T did not occur and which was used to make supplemental comparisons.
In addition to the collection of data relative to spontaneous abortions, spray data on the use of 2,4,5-T were collected and plotted for the immediate area referred to as the "Alsea Basin", an area existing within the Study Area. Testimony introduced at the hearing revealed, however, that spraying of 2,4,5-T was done throughout the Study Area. The spray data reflected that peak spraying in the Alsea Basin occurred in March, April, and May with a secondary peak occurring in July and August. Approximately 75% of the total amount of 2,4,5-T sprayed during the six-year period under investigation occurred during the final three years of that period.
The collected data were then subjected to a series of highly technical statistical analyses. The ultimate conclusions reached by the researchers were as follows:
(1) The 1972-1977 abortion rate index for the Study Area is significantly higher than those for either the control or urban area;
(2) There is a statistically significant seasonal cycle in the abortion index in each of the areas with a period of about four months; in particular, there is an outstanding peak in June in the Study Area;
(3) There is a statistically significant cross-correlation between the Study Area spontaneous abortion index and spray patterns in terms of pounds applied by months in the Alsea Basin, for the 1972-1977 period, after a lag time of two or three months.
The Alsea II Report also stated that these conclusions were "confirmed and enhanced" by the analysis of the two three-year aggregates. In this connection, however, the Alsea II Report added the important caveat: "For all its complexity . . . this analysis is a correlational analysis, and correlation does not necessarily mean causation."
In addition to relying on the Alsea II Report in issuing the emergency suspension orders, EPA considered, as reflected above, laboratory studies on the effect of TCDD on animals. At present, 2,4,5-T and Silvex cannot be manufactured without producing as a by-product the contaminant TCDD. The studies relied upon by EPA reflect that TCDD is a highly feto-toxic and embryolethal substance for which a no-effect level has not, at present, been determined. The more significant studies relied upon include: (1) A study conducted by Schantz, et al. where feto-toxic effects were observed in monkeys at a dose level of .002 micrograms TCDD/kg per day; (2) A recently completed study conducted by Dow on rats where exposure to .001 micrograms TCDD/kg per *898 day, the lowest level tested therein, resulted in statistically significant increases in the percentage of pups dead at birth and/or dying before the end of three weeks of life in some generations.
EPA also considered the prospective benefits from the continued use of 2,4,5-T and Silvex during the three and one-half month period that the emergency suspension order would be in effect. Due to the relatively short period that the emergency suspension orders would be in effect, as well as the availability of alternative herbicides, EPA concluded that the benefits of continued use of 2,4,5-T and Silvex during the suspension process would be nominal.
After considering the risks to human health and the environment posed by 2,4,5-T and Silvex, the prospective benefits of continued use of 2,4,5-T and Silvex during the suspension process, as well as the imminency of the March spraying period for 2,4,5-T, EPA concluded that emergency action was necessary. In this regard, EPA concluded that, although the Alsea II Study was confined solely to data relating to 2,4,5-T, the chemical similarity between 2,4,5-T and Silvex, and the probable use of Silvex as an alternative to 2,4,5-T, required that emergency action be taken with regard to Silvex as well.
Six days after the emergency suspension orders were issued, plaintiffs filed this action seeking judicial review and a stay of the orders.
ISSUE
The ultimate issue to be decided by the Court in this matter is a simple one: whether the EPA decision that an emergency existed with respect to the uses in question of 2,4,5-T and Silvex, which did not permit a hearing prior to suspension was arbitrary, capricious, or an abuse of discretion or otherwise not made in accordance with the procedures established by law. This ultimate issue leads to a secondary legal issue: what is the meaning of the term "emergency".
APPLICABLE LAW
A. STATUTORY FRAMEWORK
As EPA correctly points out in its brief, FIFRA generally requires that all pesticides be registered with the Administrator after a determination that the pesticide meets registration requirements, set forth in Section 3(c)(5) of FIFRA, 7 U.S.C. § 136a(c)(5), which requires a determination that the pesticide to be registered will not cause "unreasonable adverse effects on the environment." Section 6 of FIFRA, 7 U.S.C. § 136d requires the Administrator to exercise a continuous review of pesticides that have been registered. This provision recognizes that information may arise subsequent to registration that indicates that a pesticide which had been considered in compliance with the statutory standards may pose a significant hazard to human health or the environment.
If it appears to the Administrator that a pesticide no longer meets registration requirements and appears to cause unreasonable adverse effects on the environment, the Administrator may choose among three types of regulatory responses: The Administrator may: (1) cancel a registration; (2) suspend a registration pending cancellation ("ordinary suspension"); or (3) suspend a registration pending suspension ("emergency suspension").
This case involves the third type of action: issuance of an emergency suspension order with respect to 2,4,5-T and Silvex, pending a suspension proceeding.
The ordinary suspension provision (Section 6(c)(1) of FIFRA (7 U.S.C. § 136d(c)(1)) provides that the Administrator may, by order, suspend the registration of a pesticide if he "determines that action is necessary to prevent an imminent hazard during the time required for cancellation . ." The term "imminent hazard" is defined to mean "a situation which exists when the continued use of a pesticide during the time required for cancellation proceeding would be likely to result in unreasonable adverse effects on the environment . . ." (emphasis added) 7 U.S.C. § 136(1). The *899 term "unreasonable adverse effects on the environment" is defined to mean "unreasonable risk to man or the environment taking into account the economic, social, and environmental costs and benefits." FIFRA § 2(bb) (7 U.S.C. § 136(bb)). A finding of imminent hazard, therefore, results from a finding that the risks of use of the pesticide appear likely to exceed the benefits during the cancellation proceedings.
An ordinary suspension action is not effective immediately, but becomes effective after notice of intent to suspend and a hearing has been given to the registrant, provided a hearing is requested. If no hearing is requested, a suspension order may be issued and takes effect. Such order is then not reviewable by a court. 7 U.S.C. § 136d(c)(2).
The emergency suspension provision, Section 6(c)(3) of FIFRA, 7 U.S.C. § 136d(c)(3) provides that the Administrator may, by order, suspend the registration of a pesticide immediately upon issuance of an emergency suspension order prior to a hearing and prior to notifying the registrant whenever he determines that an emergency exists which does not permit the Administrator to hold a hearing prior to suspension. An emergency suspension order remains in effect until the cancellation decision unless an expedited hearing is requested. If an expedited hearing is requested on the issue of imminent hazard, the emergency order continues in effect until the issuance of a final suspension order.
In this connection, the plaintiffs have requested a suspension hearing and estimate that, unless stayed, the emergency suspension order will continue in effect for three and one-half to four months while the suspension process takes place. Following the suspension hearing, the Administrator may affirm, modify or vacate the emergency suspension order, and his decision is then reviewable in the Courts of Appeal.
The key statutory provision involved in this action provides for judicial review of such emergency suspension orders, as follows:
"Any order of suspension entered prior to a hearing before the Administrator shall be subject to immediate review in an action by the registrant or other interested person with the concurrence of the registrant in an appropriate district court, solely to determine whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with the procedures established by law."
Section 6(c)(4) of FIFRA, 7 U.S.C. § 136d(c)(4).
This is the first time an emergency suspension order has been before a court on judicial review. In construing and applying the applicable standard of review, this Court is therefore necessarily required to consider the relevant legislative history, as well as the decisions in the analogous area of judicial review of EPA suspension orders issued after the completion of a suspension hearing.
B. LEGISLATIVE HISTORY
1. FIFRA in General
The applicable legislative history reflects that FIFRA was enacted for three basic reasons:
(a) To impose restrictions on the use of pesticides; prior law imposed labeling requirements, but did not restrict the actual use, of pesticides;
(b) Extend Federal pesticide regulation to intra state, by contrast to, interstate commerce; and
(c) Strengthen and streamline pesticide regulation.
Senate Report 92-838 (Committee on Agriculture and Forestry), 1972 United States Code Congressional and Administrative News at 3993, 3996-98.
This third reason outlined above, the strengthening and streamlining of pesticide regulation, is relevant in this case. In this connection, Congress made it clear that FIFRA was designed to avoid the lengthy delays experienced under prior law in removing potentially dangerous pesticides from the market.
*900 "Recent experience under FIFRA amply illustrates the delays that EPA has encountered in removing a pesticide from the market. On June 2, 1972, Administrator Ruckelshaus signed an order which will remove DDT from the market for most uses. The original notice of intent to cancel was issued on January 15, 1971. Thus fifteen months were consumed by advisory committee referral, public hearings and decision-making by EPA. Other examples include: Amitrol, 2½ years; mercury algicide, fourteen months; and Mirex, thirteen months. The initial notice of cancellation of certain uses of the herbicide 2,4,5-T was issued on May 1, 1970. Today, only advisory committee action is completed, with public hearings and final decision yet to come. While a proper review of any intention to cancel a registration is an obvious necessity, delays of the sort encountered under current law are needless."
Senate Report 92-970 (Senate Commerce Committee), 1972 United States Code Congressional and Administrative News at 4094. In this regard, President Nixon remarked in his environmental message of February 8, 1971:
"Currently, Federal controls over pesticides consist of the registration and labeling requirements of the Federal Insecticide, Fungicide and Rodenticide Act. The administrative processes contained in the law are inordinately cumbersome and time consuming . . ."
1972 United States Code Congressional and Administrative News at 4093. During the Senate floor debate of FIFRA, Senator Allen explained further:
"As recent experience has shown, any administrative actions that are undertaken under this law to remove a pesticide from the market are not only exceedingly complex and lengthy, they are also undertaken after distributions in the market and use in the environment.
Instead of continuing to wait for tragic evidence of pesticide dependence and misuse to force itself upon our consciences, we must institute the legal scientific and administrative framework to search for hard information and knowledge about pesticides and pest control before these toxic substances become widely used. Passage of H.R. 10729 will indicate that we are finally prepared to impose sensible rules and guidelines for the marketing and use of pesticides . . .
Now we are considering and debating another major piece of pesticide legislation. H.R. 10729 seeks to modernize the Federal Insecticide, Fungicide, and Rodenticide Act and give the Environmental Protection Agency the proper administrative tools to both regulate the entry of new pesticides into the market and oversee the actual use and application of these pesticides once they have been registered with EPA . . .
As a cosponsor with Senator Hart of a majority of these amendments it is my opinion that these provisions give important additional authority to the Environmental Protection Agency to protect the environment and the public from the misuse of unnecessary or dangerous pesticides."
118 Congressional Record 32259-60 (September 26, 1972).
Thus, in examining the EPA decision in this case, the Court must keep in mind that it was the Congressional intent that potentially dangerous pesticides should be removed from the market without delay and that EPA be given expanded authority to regulate pesticides.
2. Purpose For a Hearing
It is clear that the crux of this lawsuit is the propriety of the banning of 2,4,5-T and Silvex without a hearing. To answer this question, it is useful to inquire as to the purpose for a hearing. The legislative history indicates, in this connection, that a hearing serves an information-gathering function to allow the Administrator to make reasoned decisions in regulating pesticides:
"The purpose of the hearings is to provide a record of competent scientific evidence for the consideration of the Administrator *901 in making his decision as to whether or not a registration should be granted or denied."
Senate Report 92-838 (Committee on Agriculture and Forestry), 1972 United States Code Congressional and Administrative News at 4008.
In this regard, the Senate Commerce Committee has remarked concerning the grant of emergency authority at issue in this case:
"The amendment gives EPA the authority, if necessary to prevent an imminent hazard, to suspend without a hearing or after an expedited hearing if more information needs to be gathered." (emphasis added)
Senate Report 92-970 (Commerce Committee), 1972 United States Code Congressional and Administrative News at 4112. Thus, in considering the propriety of EPA emergency action, the Court should consider the purposes behind a suspension hearing and whether, in the particular case, they are outweighed by the need for summary action.
It is noteworthy in this regard that the Administrator is not bound under FIFRA to follow the decision of the Administrative Law Judge (ALJ) made after a hearing. Indeed in a recent case, the Administrator deviated from the decision of the ALJ where a suspension order was issued after a hearing. Environmental Defense Fund v. EPA, 179 U.S.App.D.C. 43, 48, 548 F.2d 998, 1003 (1976), cert. den. 431 U.S. 925, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977). This illustrates the fact that a suspension hearing performs only an information-gathering function.
C. MEANING OF THE TERM "EMERGENCY"
The term "emergency" is not defined in the Act, legislative history, regulations, or the cases. EPA has interpreted the term to mean a threat of harm to humans and the environment so immediate that the continuation of pesticide use is likely to result in unreasonable adverse effects during a suspension hearing. EPA Decision and Emergency Order (2,4,5-T) at 7 (February 28, 1979).
This interpretation is substantially valid and should be analogized to the granting by a court of a temporary restraining order. The statutory scheme of FIFRA parallels the scheme for the granting of temporary and permanent injunctive relief in a court action. As reflected above, FIFRA provides for three possible stages to ban the use of a particular pesticide:
(1) Cancellation proceedingswhich could result in a total and permanent ban of a pesticide;
(2) Suspension proceedingswhich could result in a temporary ban of a pesticide while cancellation proceedings are taking place; and
(3) Emergency actionwhich results in a temporary ban of a pesticide while suspension proceedings are taking place.
These stages are obviously similar to the three stages of obtaining relief in a court actionthat is, Temporary Restraining Order, Preliminary Injunction, Permanent Injunction.
Because there is no precedent for the Court to follow in this action, it is appropriate to define the term "emergency" by reference to the principles and rationale for the granting by a court of a temporary restraining order. The purpose of a temporary restraining order is to prevent immediate and irreparable harm to the complaining party during the period necessary to conduct a hearing on a preliminary injunction. See generally, Wright and Miller, Federal Practice and Procedure, Section 2951. The definition of the term "emergency" by the EPA reflects this same basic rationaleto prevent unreasonable adverse effects on the environment during the time necessary to conduct a suspension hearing. The Court notes, in this connection, that substantial deference has been granted to an Agency's interpretation of the legislation it administers, particularly where the agency has participated significantly in the legislative process fashioning legislation designed to protect the public health. Certified Color Manufacturers Assoc. v. Mathews, 177 U.S.App.D.C. 137, 543 F.2d 284 *902 (1976); see also United States v. Bacto-Unidisk, 394 U.S. 784, 89 S.Ct. 1410, 22 L.Ed.2d 726 (1968); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
In light of recent cases in the analogous area of review of suspension orders issued after a hearing, however, the EPA definition requires refinement. The Courts hold the standard of review in this instance is whether there is a substantial likelihood that serious harm will be experienced during the year or two required in any realistic projection of the administrative process. Environmental Defense Fund v. EPA, 179 U.S.App.D.C. 43, 50, 548 F.2d 998, 1005 (1976), cert. den. 431 U.S. 925, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977); Environmental Defense Fund v. EPA, 167 U.S.App.D.C. 71, 510 F.2d 1292 (1975). By analogy to this standard, the term "emergency" should be defined as follows: whether there is a substantial likelihood that serious harm will be experienced during the three or four months required in any realistic projection of the administrative suspension process. This test, coupled with the purposes behind the hearing requirement, suggests the necessity to examine five factors:
(1) The seriousness of the threatened harm;
(2) The immediacy of the threatened harm;
(3) The probability that the threatened harm would result;
(4) Benefits to the public of the continued use of the pesticides in question during the suspension process; and
(5) The nature and extent of the information before the Administrator at the time he made his decision.
Compare Ethyl Corp. v. EPA, 176 U.S.App. D.C. 373, 390-391, 541 F.2d 1, 18-19 & n. 32 (1976), cert. den. 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976). Further, in accordance with the legislative history outlined above, these factors should be applied in the spirit of avoiding delay and recognition of broad powers on the part of EPA in regulating pesticides. Id., 176 U.S.App.D.C. at 396, 541 F.2d at 24.
D. ARBITRARY AND CAPRICIOUS STANDARD OF JUDICIAL REVIEW DEFINED
Under the arbitrary and capricious standard, the courts uniformly hold that the reviewing court must determine whether the agency considered all the relevant factors and whether it had made a clear error of judgment. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 91 S.Ct. 814, 823, 28 L.Ed.2d 136, 153 (1971). In this regard, the inquiry into the facts is to be searching and careful. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 414, 91 S.Ct. at 823, 28 L.Ed.2d at 153.
The duty to make substantial inquiry is particularly true in highly technical cases such as this one. Ethyl Corp. v. EPA, supra, 176 U.S.App.D.C. at 407, 541 F.2d at 35.
The ultimate standard of review, however, is a narrow onethe Court is not empowered to substitute its judgment for that of the agency:
"There is no inconsistency between the deferential standard of review and the requirement that the reviewing court involve itself in even the most complex evidentiary matters; rather, the two indicia of arbitrary and capricious review stand in careful balance. The close scrutiny of the evidence is intended to educate the court. It must understand enough about the problem confronting the agency to comprehend the meaning of the evidence relied upon and the evidence discarded; the questions addressed by the agency and those bypassed; the choices open to the agency and those made. The more technical the case, the more intensive must be the court's effort to understand the evidence, for without an appropriate understanding of the case before it, the court cannot properly perform its appellate function. But that function must be performed with conscientious awareness of its limited nature. The enforced education into the intricacies of the problem before the agency is not designed to enable the court to become a superagency that can supplant the agency's expert decision-maker. To the contrary, *903 the court must give due deference to the agency's ability to rely on its own developed expertise . . .
Thus, after our careful study of the record, we must take a step back from the agency decision. We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality." (footnotes omitted)
Ethyl Corp. v. EPA, supra, 176 U.S.App. D.C. at 408, 541 F.2d at 36. See also, Certified Color Manufacturers Assoc. v. Mathews, supra, 177 U.S.App.D.C. 137, 146-147, 543 F.2d at 293-94.
In this connection, the arbitrary and capricious standard should be applied flexibly where the agency is dealing with a question peculiarly one of judgment and particularly prone to uncertainty. Both these factors are present where an agency invokes emergency powers with regard to questions involving environmental protection. Ethyl Corp. v. EPA, supra, 176 U.S.App.D.C. at 396, 541 F.2d at 24; Forsham v. Califano, 442 F.Supp. 203, 208-209 (D.D.C.1977).
"Questions involving the environment are particularly prone to uncertainty. Technological man has altered his world in ways never before experienced or anticipated. The health effects of such alterations are often unknown, sometimes unknowable. While a concerned Congress has passed legislation providing for protection of the public health against gross environmental modifications, the regulators entrusted with the enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decision-making. Rather, speculation, conflicts in evidence, and theoretical extrapolation typify their every action. How else can they act, given a mandate to protect the public health but only a slight or nonexistent data base upon which to draw? Never before have massive quantities of asbestiform tailings been spewed into the water we drink. Never before have our industrial workers been occupationally exposed to vinyl chloride or to asbestos dust. Never before has the food we eat been permeated with DDT or the pesticides aldrin and dieldrin. And never before have hundreds of thousands of tons of lead emissions been disgorged annually into the air we breathe . . . [T]he statutesand common sensedemand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.
Ethyl Corp. v. EPA, supra, 176 U.S.App. D.C. at 396-397, 541 F.2d at 24-25.
Notwithstanding the substantial latitude to which EPA is entitled on judicial review of its emergency suspension orders, clearly there are limits on the exercise of its emergency powers. As reflected above, EPA's conclusions must be held to minimal standards of rationality. Id. 176 U.S.App.D.C. at 408, 541 F.2d at 36. Such standards are met where the decision is based on the inconclusive but suggestive results of numerous studies. Certified Color Manufacturers Assoc. v. Mathews, supra, 177 U.S. App.D.C. at 138, 543 F.2d at 295; Ethyl Corp. v. EPA, supra, 176 U.S.App.D.C. at 409-411, 541 F.2d at 37-39. By contrast, such standards are breached only where the aggrieved parties are able to show an error of judgment so clear as to deprive the Agency's decision of a rational basis. Ethyl Corp. v. EPA, supra, 176 U.S.App.D.C. at 406-407, 541 F.2d at 34-35 n. 74. This would appear to require the aggrieved parties to demonstrate a complete lack of foundation for the Agency's conclusions. Forshan v. Califano, supra, 442 F.Supp. at 209, n. 9.
With these principles in mind, the Court will now briefly review the evidence.
REVIEW OF THE EVIDENCE
Even a cursory review of the evidence of this case will reflect that EPA, expressly or by implication, considered all the relevant factors enumerated above. The basic point of contention is whether EPA, having considered those factors, made *904 a clear error of judgment in ordering the emergency suspensions. Plaintiff's attack, in this regard, has focused on EPA's judgment regarding: (1) the probability that the public would suffer the threatened harm, and (2) the benefits from the continued use of 2,4,5-T and Silvex.
A. RISK2,4,5-T
As reflected above, EPA determined that there is a probability that spontaneous human abortions are associated with the spraying of 2,4,5-T and Silvex on the basis of two basic categories of data:
(1) evidence that 2,4,5-T, Silvex and their contaminant TCDD, are highly feto-toxic in animals; and
(2) the Alsea II Study, which concluded there was a statistically significant relationship between hospitalized spontaneous abortions and the spraying of 2,4,5-T.
Having reviewed the testimony and exhibits introduced at the hearing, as well as the relevant portions of the administrative record relied upon by the parties supporting and attacking the meaning of this data, the Court is unable to say that EPA made a clear error of judgment with regard to the probability that the uses in question of 2,4,5-T and Silvex are associated with spontaneous human abortions. There is evidence in the record that the animal studies and the Alsea II Study, although certainly inconclusive, are nevertheless suggestive of the conclusions reached by EPA in this regard. The Court's analysis in this regard will focus on the principal arguments of the plaintiffs, which focus almost exclusively on the validity of the Alsea II Study, that EPA's conclusions are completely without foundation.
This attack has focused on the design of the study, data collection procedures, statistical interpretation of the date collected, the consistency of the results with those of other studies, and possible exposure of pregnant women in the Alsea Region to the spraying of 2,4,5-T. The Court notes at the outset, however, that plaintiffs concede that TCDD is extremely feto-toxic in certain animals.
1. Study Design
Plaintiffs' most serious attack on the Alsea II Study focuses on the fact that the study collected and compared data only with regard to hospitalized spontaneous abortions. In this regard, plaintiffs assert that many abortions are treated at physician offices and clinics and are not hospitalized. Plaintiffs assert, further, that spontaneous abortions are more likely to be hospitalized in the Study Area than the control area because physician practices vary between the two areas and that this fact, and not the spraying of 2,4,5-T, accounts for the higher incidence of spontaneous human abortions in the Study Area.
EPA frankly concedes that the Alsea II Study is based on the reasonable assumption that hospitalized spontaneous abortions occur at the same rate in the study and control areas. The Court agrees that the assumption is reasonable for two reasons. First, there is evidence in the record that to gather and compare data on all spontaneous abortions, not only hospitalized spontaneous abortions, would be extremely difficult and time-consuming. In this regard, the evidence reflects that hospital records provide a speedy, inexpensive and reliable source of spontaneous human abortions. A properly conducted, more thorough investigation would certainly have subverted EPA's desire to complete the Alsea II investigation before the onset of the March spraying season.
Second, plaintiffs' position that the use of only hospitalized spontaneous abortions introduced a significant bias into the Alsea Study is supported only by speculative opinion evidence. By contrast, plaintiffs have not produced in Court any hard data showing that the rate of hospitalization of spontaneous abortions in the study and control areas are not the same. In the absence of such data, the Court is unable to say that the assumption that spontaneous abortions are hospitalized at the same rate in the study and control areas is completely without foundation. Given the need for speed, the reliability of the data, and the plausibility *905 of the hypothesis, and the absence of conclusive conflicting evidence, the Court believes this assumption is not only reasonable, but in total accord with the Congressional policies behind FIFRA.
2. Data Collection
Plaintiffs assert further that the Alsea II Study is flawed by improper data gathering procedures. Particularly, they assert that emergency room data on spontaneous abortions from one, but not all, of the hospitals included in the study were considered, that some hospitals would not provide all the requested information, that the recorded diagnoses were unreliable, and that many of the spontaneous abortions occurring in the Control Area were hospitalized in Idaho hospitals which were not included in the study.
Defendants introduced evidence at the hearing tending to cast doubt on the significance of all of the foregoing objections to the data-gathering procedures. Still, without question, these objections bring into question the credibility of the conclusions of the Alsea II Study. Nevertheless, because the objections are speculative and unsupported by hard data, they fall far short of demonstrating a complete lack of foundation for the conclusions reached in the Alsea II Study.
3. Statistical Interpretation of the Alsea II Data
Plaintiffs assert, by way of the affidavit of Dr. Mantel and the testimony of Dr. Downs, that the Alsea II data, accepted at face value, does not show, by using a simple chi-square test, that there is a statistically significant relationship between hospitalized spontaneous abortions and the spraying of 2,4,5-T. Further, plaintiffs claim that even if there is a statistically significant relationship between hospitalized spontaneous abortions and the spraying of 2,4,5-T, this is due to an aberrational number of abortions in the month of June, 1976, which can simply be dismissed as a random event. In addition, plaintiffs assert that any observed correlations can be attributed to such spurious factors as a greater proportion of child-bearing age women residing in the Study Area and an influx of temporary residents in the Study Area during the summer months. As a final matter, plaintiffs assail the supplementary three-year period analyses because they are based on estimated, not actual, data on live births.
The Court believes that these criticisms also call into serious question the conclusions reached in the Alsea II Report. Nevertheless, there was testimony introduced at the hearing that despite these significant pitfalls, the data in the Alsea II Report are suggestive of a link between the spraying of 2,4,5-T and spontaneous human abortions. With this testimony before it, the Court must reluctantly conclude that EPA's partial reliance on the Alsea II Report was not a clear error of judgment or completely without foundation.
4. Inconsistency With Other Studies Seveso, Italy
Plaintiffs also rely heavily on the argument that the Alsea II results are meaningless because they are inconsistent with the results of a study of an accident which occurred in Seveso, Italy. This argument is among those least troublesome to the Court.
In 1976, an accident occurred in Seveso, Italy which resulted in the exposure of large amounts of TCDD to the public. The data collected immediately after the accident did not on their face reflect a large increase in the number of spontaneous abortions occurring after the accident. An EPA expert testifying at the hearing frankly conceded that if the Alsea II conclusions are valid, one would expect a significant increase of spontaneous abortions in the Seveso Area.
The Court is reluctant to give serious weight to the studies following the Seveso incident, however. Testimony introduced by EPA brought out certain data gathering problems experienced by the Seveso researchers. Further, all the Seveso studies were not epidemiological in nature. Most importantly, however, the Court has received only second-hand, incomplete information *906 concerning the Seveso studies which the Court is reluctant to use as basis for determining that EPA made a clear error of judgment in issuing the emergency suspension orders.
5. Lack of Exposure to 2,4,5-T
Dow has presented the testimony of Dr. Gehring which reflects that pregnant women in the Alsea II Study Area possess a significant margin of safety from any possible exposure to the spraying of 2,4,5-T and that it is inconceivable that these women could be exposed to levels of TCDD significant enough to cause reproductive damage. In this regard, Dr. Gehring concedes that his findings are based on a determination of a no-effect dosage level of TCDD in humans.
This objection also gives the Court little trouble. There is adequate evidence in the record to show that a no-effect dosage level for TCDD has not been established. Without such a level, there is evidence in the record that the calculations by Dr. Gehring are suspect.
In this connection, there is evidence in the record to show that pregnant women in the Study Area are potentially exposed to 2,4,5-T and TCDD through drinking water and food supplies, as well as a risk of dermal exposure. The Court believes that this evidence, together with evidence that a no-effect level for TCDD has not been established, are sufficient reasons to hold that EPA made no clear error of judgment in relying on the Alsea II conclusions due to lack of exposure to 2,4,5-T or TCDD. Compare Environmental Defense Fund v. EPA, supra, 167 U.S.App.D.C. at 77-81, 510 F.2d at 1298-1302; Environmental Defense Fund v. EPA, supra, 179 U.S.App.D.C. at 53-55, 548 F.2d at 1008-1010; Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F.Supp. 908 (D.Or., 1977).
B. RISKSILVEX
EPA also relied on the Alsea II Report in deciding to issue an emergency ban of Silvex. This was based on the assumption that, because of the chemical similarity between 2,4,5-T and Silvex and the fact TCDD is present in both substances, one could reasonably expect the spraying of Silvex to have an association with spontaneous human abortions similar to the association found in the Alsea II Study between spontaneous human abortions and 2,4,5-T. In this connection, no epidemiological study was conducted to directly test a possible association between Silvex and spontaneous human abortions. As reflected above, however, EPA also relied on the animal studies in banning Silvex.
This hearing has dealt almost exclusively with the possible effects of 2,4,5-T, not Silvex. As a consequence, very little evidence has been received by the Court on the issue of whether EPA made a clear error of judgment or was completely without foundation in ordering the immediate suspension of Silvex.
The affidavits and briefs which have been received by the Court on this issue focus primarily on the alleged lack of exposure of humans to Silvex. The evidence presented on this issue by affidavit, however, is highly speculative and certainly falls far short of showing a complete lack of foundation for EPA's decision in this regard. There is minimal evidence in the record to support EPA's decision to immediately suspend Silvex and the Court is unable to say that EPA made a clear error of judgment regarding its possible risks.
C. BENEFITS2,4,5-T, SILVEX
Plaintiffs also challenge EPA's finding that the benefits of continued use of 2,4,5-T and Silvex during the suspension process do not outweigh the potential harm to the public from such use. The responsibility to demonstrate that the benefits outweigh the risks is upon the proponents of continued registration. Environmental Defense Fund v. Environmental Protection Agency, supra, 167 U.S.App.D.C. at 81, 510 F.2d at 1302.
EPA based its decision that the benefits of continued use of 2,4,5-T and Silvex during the emergency suspension period are *907 outweighed by the risks on two basic factors: (1) the relatively short period in which the emergency suspension orders would be in effect (3½-4 months); and (2) the availability of adequate substitute alternatives for use during the emergency suspension period. EPA concluded that the benefits of continued use of 2,4,5-T and Silvex during the emergency suspension period were nominal and clearly outweighed by the risks of continued use.
EPA's assessment of the benefits of continued use of 2,4,5-T and Silvex was clearly rational. This benefits aspect was tangential to the major focus of the hearing and little supporting evidence was introduced on this issue by the plaintiffs. Further, the evidence which was introduced on this issue was primarily relevant to benefits of longer range than those expected in the 3½-4 month emergency suspension period. Significantly, plaintiffs introduced no evidence conclusively demonstrating the inadequacy of available alternate herbicides. EPA certainly made no clear error of judgment in its assessment of the benefits of the continued use of 2,4,5-T and Silvex during the emergency suspension period. Compare Environmental Defense Fund v. Environmental Protection Agency, supra, 179 U.S. App.D.C. at 55-57, 548 F.2d at 1010-1012; Environmental Defense Fund v. Environmental Protection Agency, supra, 167 U.S. App.D.C. at 81-82, 510 F.2d at 1302-1303.[1]
CONCLUSION
The Court believes that EPA has considered all the relevant factors and has not made a clear error of judgment in deciding to order the emergency suspension of 2,4,5-T for forestry, rights-of-way, and pasture uses, and of Silvex for forestry, rights-of-way, pasture, home and garden, aquatic weed control/ditch bank, and commercial/ornamental turf uses. The Court will therefore deny plaintiffs' motion to stay the emergency suspension orders of 2,4,5-T and Silvex. In this connection, however, the Court will frankly concede that it arrives at this decision with great reluctance and would not in its judgment have ordered the emergency suspensions on the basis of the information before the EPA. Nevertheless, EPA has been vested by Congress with broad powers in this area, and the Court is not empowered to substitute its judgment for that of EPA.
The motion to stay EPA's emergency suspension orders of February 28, 1979 is DENIED.
IT IS SO ORDERED.
NOTES
[1] In their pretrial memorandum, Dow argues that EPA's emergency suspension orders were arbitrary and capricious for the additional reason that EPA failed to respond on the record to certain adverse criticism of the Alsea II Study by EPA employees and contractors and because EPA failed to consult certain officials involved in the RPAR process regarding the propriety of ordering emergency suspensions of 2,4,5-T and Silvex. No testimony on this issue was introduced at the hearing and the Court doubts whether Dow still presses this argument. Nevertheless, the cases relied upon by Dow in this regard, such as, American Petroleum Institute v. Knecht, 456 F.Supp. 889 (C.D. Cal.1978); Silva v. Lynn, 482 F.2d 1282 (CA 1, 1973); and International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973), are readily distinguishable, and the Court rejects this argument under the circumstances of this case.
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105 P.3d 883 (2005)
197 Or. App. 221
STATE of Oregon, Respondent,
v.
Tommy Keith HARPER, Appellant.
0003315CR; A118880.
Court of Appeals of Oregon.
Argued and Submitted September 8, 2004.
Decided February 2, 2005.
*885 Priscilla A. Maloney argued the cause and filed the brief for appellant.
Rebeca Piedra, Certified Law Student, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet Klapstein, Assistant Attorney General.
Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARNOLD, Judge pro tempore.
BREWER, C.J.
A jury convicted defendant of possession of a controlled substance. ORS 475.992(4). Before trial, defendant filed a motion to suppress statements that he made during an encounter with police and evidence seized at his home. The trial court denied the motion, ruling that the encounter was not a stop and that the evidence found in defendant's residence was seized under a valid search warrant. On appeal, defendant first argues that the trial court erred in denying his motion to suppress because the police unlawfully stopped him and the search warrant was issued, in part, based on statements that he made during the stop. Defendant also argues that, even if the stop was lawful, the information in the affidavit in support of the search warrant was insufficient to establish probable cause to believe that evidence would be found at his home. On review for errors of law, State v. Stephens, 184 Or.App. 556, 560, 56 P.3d 950 (2002), rev. den., 335 Or. 195, 64 P.3d 576 (2003), we vacate the judgment and remand for further proceedings.
We take the following facts from the trial court's findings at the hearing on the motion to suppress and from undisputed evidence in the record.[1] An unnamed employee of the "Big R" store in Klamath Falls informed Detective Shepherd that defendant had purchased one gallon of seven percent tincture of iodine, a substance that is used in large quantities in the manufacture of methamphetamine. The cashier at the store had requested defendant's identification and had written down defendant's driver's license number, which he gave to Shepherd. DMV records revealed defendant's address. Two days later, when defendant left his home on his bicycle, Detective Holloway followed him. Holloway was in plain clothes and driving an unmarked vehicle. He asked his dispatcher to route any officer in the area to defendant's location so that Holloway could speak with defendant.
Detective Streifel saw defendant riding his bicycle on the sidewalk, parked about a block ahead of defendant, and waited on the sidewalk next to his patrol car for defendant to approach. Streifel was in uniform with his badge displayed. The overhead lights on his patrol car were turned off. When defendant was near enough that Streifel could speak to him in a normal tone, the detective identified *886 himself and asked if he could talk to defendant "for a minute." He did not order defendant to stop or make any other overt displays of authority, but defendant did stop. Before saying anything else, Streifel asked defendant for identification, and defendant gave it to him. Streifel retained defendant's identification and called a dispatcher from his shoulder radio to check for outstanding warrants. At some point during the encounter, Streifel asked defendant if he had any weapons, which defendant denied. Streifel also asked for defendant's consent to search his person; defendant declined. Seconds after Streifel asked defendant for his identification, Holloway approached them on foot.
While Streifel checked for warrants, Holloway asked defendant about the iodine purchase. Defendant told Holloway that a man, whom he described as "a rancher," had stopped him in front of the Big R store and asked defendant to buy the iodine for him. According to defendant, the rancher explained that he could not buy the iodine himself because he had left his identification at home. Defendant stated that the rancher gave him the money to buy the iodine plus $50 for making the purchase. Defendant told Holloway that he did not know the man but indicated that he lived south of town. Holloway asked defendant for permission to search his person and his residence, but defendant again declined. As Holloway was leaving, he told defendant that he would try to obtain a search warrant.
While Holloway was speaking to defendant, Streifel "stayed back a little ways" because he could not hear the radio over their conversation and did not want to interrupt them. The record does not establish precisely when Streifel returned defendant's identification to him, although, at the hearing on defendant's motion to suppress, the following exchange took place, indicating that Streifel still had the identification when Holloway began questioning defendant:
"[COUNSEL]: And, so while you had [defendant's] identification and were radioing it in, Detective Holloway arrived?
"[STREIFEL]: Yes.
"[COUNSEL]: Detective Holloway began to ask [defendant] questions at that point?
"[STREIFEL]: Yeah, they had a conversation * * *."
At no point during the encounter did either detective tell defendant that he was not free to leave, and defendant did not ask or attempt to leave until the detectives had finished talking to him. The entire encounter lasted less than five minutes.
Later that day, Detective Fenner spoke with a local veterinarian, who told him that iodine is used to treat the navels of newborn calves and injuries to horses' feet. The veterinarian told Fenner that one gallon of iodine would treat between 100 and 200 calves. Fenner checked defendant's criminal record and found that defendant had been arrested for possession of methamphetamine and released less than three months earlier. Defendant's record also revealed that he had been arrested again less than one month earlier for violating his release agreement by failing to submit to a urinalysis. The record also showed that defendant had two marijuana-related arrests, in 1972 and 1977.
Based on the information at his disposal, Fenner concluded that defendant was involved in a conspiracy to manufacture methamphetamine. He applied to the Klamath County Circuit Court for a warrant to search defendant's person, his home, and his van for evidence of that crime. In the affidavit in support of the warrant, Fenner set out a number of general facts based on his training and experience. For example, he stated that people who manufacture methamphetamine often do so in groups. He further stated that illegal drug manufacturers also are involved in distributing the substances that they manufacture. In addition, Fenner stated that such people frequently have in their homes evidence pertaining to manufacturing and distribution operations; he listed items ranging from scales and plastic baggies to records of chemical purchases and drug sales, large amounts of cash, and methamphetamine itself. Fenner explained that iodine is one of three main ingredients in the manufacture of methamphetamine and that a gallon of seven percent tincture can produce *887 up to one and one-half pounds of diluted, "street level grade" methamphetamine.
In the affidavit, Fenner also related a number of facts specific to this case. He stated that "an employee of Big R" had informed Shepherd that defendant had purchased a gallon of seven percent tincture of iodine. He stated that the employee had copied defendant's driver's license number and that Fenner had checked it with DMV records. He recounted defendant's statement to Holloway that defendant had purchased the iodine for an unidentified rancher for $50. Fenner stated that the price of one gallon of iodine at the Big R store was $26.95. He attested that, in his experience, it was unlikely that a rancher or any other person would spend an extra $50 to save a trip home to retrieve his or her identification. Fenner also described his conversation with the veterinarian and stated that he had observed defendant's residence; he characterized the yard as too small to be suitable for livestock and stated that there were no animals visible in the yard.
The court issued the search warrant. When the detectives executed the warrant, they found several items in defendant's house consistent with methamphetamine use, including a hollowed out pen body with a white, powdery substance in it. The substance tested positive for methamphetamine. As a consequence, defendant was charged with possession of a controlled substance.
Before trial, defendant filed a motion to suppress all evidence gathered as a result of his encounter with Streifel and Holloway, as well as the evidence seized pursuant to the search warrant. The trial court concluded that the initial encounter was not a stop and, therefore, that evidence of defendant's statements to Holloway was lawfully obtained. The court determined that, on their face, defendant's statements to Holloway "lacked any credibility whatsoever." Although the court stated that the sufficiency of the warrant was a "close case," it concluded that Fenner's affidavit established probable cause to believe that evidence would be found in defendant's home. The court stated that "[t]he unbelievable story that defendant told to the police about the iodine plays a large part in this determination." The court denied the motion to suppress. At trial, the state introduced the evidence found in defendant's home, and the jury returned a guilty verdict. This appeal followed.
As noted, in his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress his statements to Holloway. In his second assignment of error, defendant argues, in part, that, even if Fenner's affidavit properly included his statements to Holloway, it did not establish probable cause to issue the warrant. If defendant's latter argument is correct, it will be unnecessary to address his first assignment of error challenging the inclusion in the affidavit of defendant's statements to Holloway. Therefore, we consider the assignments of error in reverse order.
Defendant challenges several aspects of Fenner's affidavit, including the reliability of the information from the store employee. He argues that the trial court should have excised that information from the affidavit. Defendant also argues that, even without any facts excised, the affidavit did not establish a nexus between any illegal activity and his residence. In other words, defendant contends that nothing in the affidavit established that, more likely than not, incriminating evidence would be found at his residence.[2]
In determining whether an affidavit is sufficient to support a search warrant, a magistrate must decide (1) whether there is reason to believe that the facts stated are true, and (2) whether the facts disclosed by the affidavit, if true, are sufficient to establish probable cause to justify the requested search. State v. Villagran, 294 Or. 404, 408, 657 P.2d 1223 (1983).
*888 We begin with defendant's argument that the affidavit failed to establish the reliability of the information obtained from the unnamed store employee. When an affidavit is based on information supplied by an unnamed informant, the affidavit must show that the information is reliable by demonstrating the basis for the informant's knowledge and including facts that establish the informant's veracity. ORS 133.545(4); State v. Carlile, 290 Or. 161, 164, 619 P.2d 1280 (1980). In this case, the basis for the informant's knowledge is direct observation, and defendant does not dispute that that is sufficient. The focus of the dispute, rather, is whether the affidavit establishes the veracity of the informant. The "veracity" of the informant refers to the extent to which the information supplied is "trustworthy on a specific occasion." State v. Wheelon, 137 Or.App. 63, 70, 903 P.2d 399 (1995), rev. den., 327 Or. 123, 966 P.2d 216 (1998). Veracity can be established in several ways, including corroboration by the police or corroboration by another informant. State v. Pelster/Boyer, 172 Or.App. 596, 604-05, 21 P.3d 106, rev. den., 332 Or. 632 (2001).
In his affidavit, Fenner stated:
"On November 15, 2000, an employee of Big R informed Detective Shepherd that [defendant] purchased one gallon of 7% tincture of iodine from the Big R store * * *. [Defendant] was identified by the cashier who requested identification from [defendant] and copied his driver's license number on a piece of paper.
"I checked [defendant's] driver's license number through DMV, and discovered [his address]."
The affidavit further showed that defendant himself had corroborated the employee's statement when he admitted to Holloway that he had purchased the iodine. Defendant argues that his own statement could not serve as corroboration of the store employee's statement because the trial court found his story about buying the iodine for a rancher not to be credible. According to defendant, "[e]vidence from an admitted noncredible source cannot serve as corroboration of an unnamed hearsay informant." However, the trial court found that defendant's explanation for buying the iodine was unbelievable, not his admission that he had bought it. A particular piece of information may be trustworthy even though the relator is not generally credible. State v. Alvarez, 308 Or. 143, 147, 776 P.2d 1283 (1989). The similarity of information provided by two or more independent sources establishes the veracity of that information; it indicates that neither source fabricated the story from whole cloth. State v. Hasselback, 55 Or.App. 281, 286, 637 P.2d 1316 (1981), rev. den., 292 Or. 825, 648 P.2d 849 (1982). In short, the fact that defendant corroborated the information supplied by the store employee established the trustworthiness of that information. The court did not err in declining to excise from the affidavit the reference to the employee's statement.
We turn next to defendant's contention that the affidavit did not establish a nexus between his residence and any unlawful activity. In the affidavit, Fenner averred that the building to be searched was defendant's home and that, based on his training and experience, he knew that people involved in the unlawful manufacture of controlled substances often keep evidence of that activity in their homes. Defendant challenges the sufficiency of Fenner's training and experience to establish that such evidence probably would be found in his home.[3]
Fenner's assertion that incriminating evidence often is found in the homes of illegal drug manufacturers was pertinent only if the affidavit showed as a foundational matter that defendant more likely than not was involved in the manufacture of methamphetamine. Cf. State v. Anspach, 298 Or. 375, 381, 692 P.2d 602 (1984) (affidavit in support of warrant to search home in proximity of outdoor marijuana growing operation must first "set forth objective observations that *889 would permit a disinterested magistrate to conclude that there is probable cause to believe that the persons residing on the premises have some relationship to the plants"). Thus, we consider that issue first.
Defendant argues that the "legal, innocent activity" of buying iodine is not a sufficient basis for the conclusion that, more likely than not, he was manufacturing a controlled substance. However, purchasing iodine is neither legal nor innocent if the purchaser intends to use it to manufacture methamphetamine. See ORS 475.940(1), (3)(jj) (providing that iodine matrix is a "precursor substance"); ORS 475.967(1) (providing that possession of a "precursor substance" is unlawful if the person possessing it intends to manufacture a controlled substance). It follows that evidence of an iodine purchase coupled with evidence of unlawful intent may furnish probable cause to believe that the purchaser is involved in manufacturing methamphetamine. We therefore consider whether the affidavit contained evidence of unlawful intent.
Intent may be shown by circumstantial, rather than direct, evidence. State v. Rose, 311 Or. 274, 282, 810 P.2d 839 (1991). The affidavit showed that defendant recently had been arrested for possession of methamphetamine, that he had purchased a large quantity of one of the main ingredients in methamphetamine, and that, when asked about purchasing the iodine, he gave an explanation that, in the words of the trial court, "lacked any credibility whatsoever." Defendant argues that, even if the story was unbelievable, Fenner's suspicion that he intended to use the iodine to make methamphetamine reflected only one possibility among many. Cf.State v. Carter/Grant, 316 Or. 6, 13, 848 P.2d 599 (1993) (issuing magistrate's conclusion that marijuana would probably be found, based on affiant's statement that color and stem shape of plants observed was consistent with marijuana, was merely one possibility among many). But the fact that defendant's story was not credible does more than merely remove that explanation from the realm of plausible reasons for his purchase of the iodine. The concomitant fact that defendant lied gave rise to a reasonable inference at least for purposes of establishing probable cause that he lacked an innocent intent and, conversely, that he intended to use the iodine for an unlawful purpose. Based on the information in the affidavit pertaining to defendant's intent, a reasonable magistrate could conclude that, more likely than not, defendant was involved in the manufacture of methamphetamine.
Finally, defendant argues that Fenner's statement regarding his training and experience was insufficient to establish a nexus between defendant's involvement in the manufacture of methamphetamine and his home. Defendant relies on State v. Wilson, 178 Or.App. 163, 172, 35 P.3d 1111 (2001). In that case, the affidavit showed that the defendants had sold methamphetamine to an informant and that the building to be searched was their residence. Id. at 165, 35 P.3d 1111. Aside from the fact that they lived there, the only information in the affidavit connecting the unlawful activity to the residence was a statement by the affiant, similar to the one made by Fenner, that, based on his training and experience, he knew that people involved in drug distribution often keep evidence of that activity in their homes. Id. at 166, 35 P.3d 1111. We held that the affiant's "expertise was simply too `unconnected to objective facts derived from other sources' to provide probable cause to search [the] defendants' residence." Id. at 172, 35 P.3d 1111 (quoting State v. Goodman, 328 Or. 318, 328, 975 P.2d 458 (1999).)
Wilson does not stand for the proposition that officer training and experience of the sort described in that case and at issue here cannot establish probable cause to search the residence of a person suspected of illegal drug activity. We did not reject the validity of the affiant's expertise in that case. Our conclusion was based on the absence in the affidavit of (1) any indication of when the defendants had sold the drugs to the informant; (2) evidence that the activity was ongoing; and (3) evidence as to the scope of their involvement. The affidavit stated only that, at some time in the past, the defendants had sold an undisclosed amount of methamphetamine *890 in a location other than their home. See id. at 171-72, 35 P.3d 1111. In short, the officer's expertise was not connected to sufficient "objective facts derived from other sources." Id. at 172, 35 P.3d 1111. It therefore was not reasonable to infer, based on the affiant's expertise, that evidence would be found in the defendants' home.
The facts of this case distinguish it from Wilson. Here, only two days had passed since defendant had purchased the iodine, and the amount that he had purchased was consistent with the manufacture of a large quantity of methamphetamine. Thus, the timing and size of defendant's purchase indicated ongoing manufacturing activity. The facts before us are more like those in Villagran and Goodman.
In the latter case, the defendant was seen leaving an outdoor marijuana growing operation. The police obtained a warrant to search for other evidence at his home, which was in the vicinity of the growing operation. In the affidavit in support of the warrant, the affiant stated that, based on his training and experience with outdoor growing operations, he knew that evidence of marijuana cultivation, processing, and distribution often is found in a secure indoor location usually the grower's residence or another structure on the grower's property; he also stated that such evidence usually is not found at the site of the operation. 328 Or. at 321-22, 975 P.2d 458. Nothing else connected the growing operation to the defendant's residence, apart from the fact that the defendant lived there. The Supreme Court held that the affidavit provided probable cause to believe that evidence would be found there:
"The first fact linking the garden and the residence is that defendant, whose connection to the garden was demonstrated in the affidavit, lived at the residence to be searched. That fact links the garden and the house; in other words, the facts in the affidavit connecting the garden to defendant and defendant to the house connect the garden to the house. By extension, defendant also provides a link between the house and items of physical evidence from the garden. * * *
"Indeed, there is more. Defendant's residence also is linked to evidence relating to the garden by reasonable inferences drawn from the facts in Stephens's affidavit. As noted, the affidavit establishes a high likelihood that evidence relating to the garden would be found in a secure indoor location. Defendant's residence is such a location; the affidavit makes clear that defendant resided at a house in the vicinity of the garden. It was reasonable to infer from that combination of facts and circumstances that some or all of the evidence from the garden probably would be found at that house."
Id. at 327-28, 975 P.2d 458.
In Villagran, the police discovered a large marijuana growing operation in a barn in Lookingglass. They learned that the person who had arranged for the barn to be built was also building a house in Umpqua and that the person who owned the property on which the barn was built lived in Umpqua as well. Based on that information, the police obtained a warrant to search both Umpqua houses for additional evidence related to the growing operation. 294 Or. at 407-08, 657 P.2d 1223. The defendant argued that the connection with the builder's house was too tenuous to supply probable cause. The Supreme Court held that it was logical to conclude that either the person for whom the barn was built, the property owner, or both, were connected with the illegal activity; that, given the size of the growing operation, records pertaining to it existed; and, because no records were found in the barn, they would be found at one of the Umpqua houses. Id. at 415, 657 P.2d 1223.
Here, objective facts in the affidavit showed that defendant probably was involved in manufacturing methamphetamine; in addition, the affiant's expertise demonstrated that more evidence of that crime likely existed and that such evidence likely would be found in defendant's home. A reasonable magistrate could conclude that there was probable cause to search defendant's home. It follows that, unless the trial court erred in denying defendant's motion to suppress evidence of his statements to Holloway, the court properly denied defendant's motion to *891 suppress the evidence discovered during the search of his home. Accordingly, we must address defendant's first assignment of error.
Again, defendant argues that the trial court erred in denying his motion to suppress evidence of his statements to Holloway and in failing to excise that evidence from Fenner's affidavit. Defendant renews his argument that his encounter with the officers constituted an unlawful stop or seizure under ORS 131.615(1) and Article I, section 9, of the Oregon Constitution.[4] The state responds that there was no stop or seizure because, when Streifel initiated the contact, he did not block defendant's path, order him to stop, or make any other overt display of authority and, during the contact, neither detective prevented defendant from leaving. The state argues further that, even if the encounter constituted a stop, it was supported by reasonable suspicion.
We first consider whether the encounter between defendant, Streifel, and Holloway was, or at some point became, a stop. A stop is a "temporary restraint of a person's liberty by a peace officer lawfully present in any place." ORS 131.605(6). As explained in State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991),
"a `seizure' of a person occurs under Article I, section 9, of the Oregon Constitution (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances."
A police officer may restrain a person's liberty by physical force or by a show of authority. State v. Warner, 284 Or. 147, 162, 585 P.2d 681 (1978). Determining whether a stop or seizure has occurred requires a "fact-specific inquiry into the totality of the circumstances." Holmes, 311 Or. at 408, 813 P.2d 28.
"[L]aw enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9 `seizure' merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a `seizure' if it is a normal means of attracting a person's attention (e.g., policeman tapping citizen on the shoulder at the outset to get a citizen's attention). Rather, the encounter is a `seizure' of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens."
Id. at 410, 813 P.2d 28 (citation omitted).
The state argues that Streifel's initial encounter with defendant did not constitute a stop because there was nothing coercive about the encounter. Whether or not that is so, when Streifel retained defendant's identification, the nature of the encounter changed. Streifel had defendant's identification in his possession when Holloway approached and began questioning defendant. Although a request for identification does *892 not, by itself, transform an encounter into a stop, State v. Underhill, 120 Or.App. 584, 589, 853 P.2d 847, rev. den., 318 Or. 26, 862 P.2d 1306 (1993), an officer's retention of a person's identification for investigatory purposes during questioning restrains the person from leaving and, therefore, constitutes a stop. See, e.g., State v. Painter, 296 Or. 422, 425, 676 P.2d 309 (1984); State v. Atkin, 190 Or.App. 387, 391, 78 P.3d 1259 (2003); State v. Jackson, 91 Or.App. 425, 428, 755 P.2d 732, rev. den., 306 Or. 661, 763 P.2d 152 (1988); State v. Starr, 91 Or.App. 267, 270, 754 P.2d 618 (1988).
The state argues that no stop occurred because Streifel did not take defendant's identification to another location to run the records check; instead, the state notes, the detective "ran the warrants check from his shoulder radio, as he stood next to defendant who was perched on his bicycle." In the state's view, that conduct did not constitute the "retention" of defendant's identification.
We disagree. The record shows that Streifel was not standing next to defendant; he testified that he "stayed back a little ways" while Holloway talked to defendant. More importantly, though, the state does not explain, and we do not understand, the relevance of an officer's location in relation to the person whose identification he or she retains. The state relies on State v. Gonzalez-Galindo, 146 Or.App. 291, 293, 932 P.2d 118 (1997), in which a police officer took the defendant's identification to his patrol car in order to run a records check. Our opinion in that case, however, attached no particular importance to that fact. In fact, the state conceded that the "defendant was unlawfully stopped when the officer retained [his] ID card without a reasonable suspicion that [he] had committed a crime." Id. Where the officer took the card after retaining it was not pertinent.
In State v. Hall, 183 Or.App. 48, 55, 50 P.3d 1258 (2002), rev. allowed, 335 Or. 195, 64 P.3d 576 (2003), we held that a stop had occurred when an officer requested the defendant's identification, relayed the information to a dispatcher over his shoulder radio, returned the identification immediately, and then waited for the dispatcher to respond with the result of the records check. The state argues that Hall is distinguishable because the officer in that case not only ran a records check but conducted a pat down search of the defendant. See id. at 51, 50 P.3d 1258. Although that is true, the search in that case did not bear on our determination that the defendant had been stopped. The officer asked for permission to search the defendant because he noticed bulges in the defendant's jacket pocket while waiting for the result of the records check in other words, after the defendant had been stopped. Id. We concluded that the officer's request for consent to search was an exploitation of the unlawful stop. Id. at 59, 50 P.3d 1258; see also State v. Smith, 73 Or.App. 287, 292, 698 P.2d 973 (1985) (holding that "the use of defendant's identification to check for arrest warrants constituted a show of authority that would lead a reasonable citizen in defendant's circumstances to believe that he was not free to leave unless the warrant check came back clear[,]" even when the actual identification itself had been returned to the defendant).
For the foregoing reasons, we conclude that the encounter between defendant and the officers became a stop no later than when Streifel retained defendant's identification and used it to conduct a warrant check while Holloway questioned defendant. The trial court erred in concluding otherwise.
Our analysis does not end there, though. A stop is lawful if it is supported by reasonable suspicion. ORS 131.615(1). Because Holloway questioned defendant during the stop, the focus is on what he knew at the time of the stop and whether his suspicion that defendant was involved in the manufacture of methamphetamine was reasonable. See State v. Bond, 189 Or.App. 198, 203, 74 P.3d 1132 (2003), rev. den., 336 Or. 376, 84 P.3d 1080 (2004) ("The circumstances presented to the officer * * * must support the reasonable inference that the person has committed a crime."). Because the trial court concluded that there was no stop, it did not address whether Holloway reasonably suspected that defendant had committed a crime. We have, in some cases, considered whether a stop was justified by reasonable suspicion where the trial court had concluded that there was no stop and, therefore, made *893 no findings as to reasonableness. See, e.g., Hall, 183 Or.App. at 52, 56, 50 P.3d 1258; State v. Rocha-Ramos, 161 Or.App. 306, 311-12, 985 P.2d 217 (1999). Unlike those cases, however, the record here is incomplete; part of the hearing on defendant's motion to suppress, including all of Holloway's testimony, was not recorded. Taken together, the incomplete record on appeal and the trial court's lack of an opportunity to address a potentially dispositive issue militate against our deciding the issue on the record before us. Therefore, we vacate the judgment of conviction and remand for a further evidentiary hearing to determine whether the stop was supported by reasonable suspicion.
If, on remand, the trial court concludes that the officers had reasonable suspicion to stop defendant, then its earlier conclusion regarding the sufficiency of Fenner's affidavit in support of the search warrant shall remain unchanged, and it shall reenter the judgment of conviction. However, if the trial court concludes that Holloway did not have reasonable suspicion to stop defendant, it shall excise from Fenner's affidavit any references to information obtained during that stop and reconsider the sufficiency of the affidavit to provide probable cause to issue the search warrant. See State v. Mituniewicz, 186 Or.App. 95, 108, 62 P.3d 417, rev. den., 335 Or. 578, 74 P.3d 112 (2003) ("When an application for a search warrant includes tainted information, [the court] excise[s] that information and determine[s] whether the remaining information in the application furnishes probable cause."). If the affidavit is insufficient, defendant is entitled to suppression of the evidence found in his residence and to a new trial.
Vacated and remanded.
NOTES
[1] Part of the suppression hearing was not recorded. As explained below, that fact plays a significant role in our disposition of the case.
[2] Defendant also argues that the previous methamphetamine-related arrests "must be discounted to honor defendant's presumption of innocence." We do not understand the point of defendant's argument. The trial court did not specify how much weight it gave to those arrests, and defendant does not explain what the effect of "discounting" the information would be. Moreover, defendant does not argue that the information is irrelevant to the probable cause determination. We do not consider his "discounting" argument further.
[3] No question is raised on appeal about whether the statements in the affidavit that drug-related evidence is often found at the residence of someone engaged in the manufacture or distribution of controlled substances are sufficient to establish that it is probable that such evidence will be found at the residence to be searched pursuant to the warrant. We therefore do not consider that issue.
[4] ORS 131.615(1) provides that "[a] peace officer who reasonably suspects that a person has committed or is about to commit a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry." Article I, section 9, provides, in part, that "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]" Ordinarily, we consider statutory issues before constitutional ones. State v. Lowry, 295 Or. 337, 343, 667 P.2d 996 (1983). In determining whether a stop has occurred, however, the analysis is the same for both statutory and constitutional purposes. Thus, in our statutory analysis, we consider cases that address the issue under Article I, section 9. State v. Ehly, 317 Or. 66, 76 n. 8, 854 P.2d 421 (1993).
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163 F.2d 602 (1947)
SILVA et al.
v.
BANKERS COMMERCIAL CORPORATION.
No. 235, Docket 20546.
Circuit Court of Appeals, Second Circuit.
July 30, 1947.
*603 Kirlin, Campbell, Hickox & Keating, of New York City (Charles R. Hickox and Ruth M. McElveney, both of New York City of counsel), for defendant-appellant.
S. F. Peavy, Jr., of New York City (John J. Cunneen, of New York City, of counsel), for plaintiffs-appellees.
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The plaintiffs, DaCosta E Silva and Diaz, doing business as co-partners under the firm name of Silva & Diaz, were awarded a judgment in the court below of $7,836.75 with interest thereon from June 24, 1943 against defendant Bankers Commercial Corporation, together with costs as taxed. The court found that pursuant to an agreement of December 4, 1942, Intercontinental Steamship Lines, Inc. had executed an assignment to defendant of all earnings, freight and income of the schooner Constellation, and had also executed a preferred ship mortgage on that vessel in consideration of loans made by the defendant. The District Court made the following additional findings of fact:
"Sixth: That during the month of January, 1943, at about the 15th and 25th days thereof, plaintiffs delivered certain merchandise to and which was put aboard the Schooner Constellation in the Port of New York for shipment to South Africa, which merchandise remained aboard said Schooner Constellation until on or about the 15th day of February 1943.
"Seventh: That upon delivery by plaintiffs of the merchandise aforesaid on board said Schooner Constellation, proper bills of lading were issued to plaintiffs covering said merchandise by the Intercontinental Steamship Lines, Inc., a corporation, which was the owner of said Schooner, which bills of lading were delivered to plaintiffs by the defendant.
"Eighth: That on the 15th day of January, 1943, and the 4th day of February 1943, plaintiffs paid the sums of $7,825.50 and $11.25 respectively by cheques on account of freight for said merchandise, placed aboard the Schooner Constellation, for transportation of said merchandise to South Africa and that said cheques were delivered to Caragol-Clark Co. Inc. who endorsed and immediately delivered them to and were collected by and appropriated by defendant and deposited in its general account and kept by it, defendant well knowing that said payments were on account of the freight aforesaid and on delivery of said cheques, proper bills of lading therefor were delivered by defendant to plaintiffs.
"Ninth: That at sometime between the 11th day of February and the end of February 1943, said merchandise of the plaintiffs was removed from the Schooner Constellation without the knowledge or consent of plaintiffs; and without the knowledge or consent of plaintiffs, the voyage of the Schooner Constellation to South Africa was abandoned at sometime prior to the 26th day of April, 1943 and that thereafter during the months of May or June, 1943, said merchandise so taken off the Schooner Constellation was returned to the plaintiffs.
"Tenth: That on the 24th day of June, 1943, plaintiffs demanded payment from Intercontinental Steamship Lines, Inc., and from this defendant of the monies so paid for freight and were told by this defendant that such freight monies would be repaid to it and plaintiffs agreed to accept notes of Intercontinental Steamship Lines, Inc., for $2,621.63, $2,621.62 and $2,621.62 payable respectively July 5th, July 15th and July 26th, 1943, and defendant thereupon assured plaintiffs that said notes would be paid; but the said notes were not paid, but *604 were dishonored and returned by plaintiffs to the maker thereof.
"Eleventh: That defendant failed and refused to pay the plaintiffs the monies so paid by plaintiffs for freight and neither said freight monies nor any part thereof so had and received by defendant from plaintiffs have been paid or returned to plaintiffs.
"Twelfth: That on April 15th, 1943, the defendant still had on hand out of the funds realized from the freight monies collected by it, for freights on the Schooner Constellation more than $21,000.
"Thirteenth: That on or about April 15, 1943, Intercontinental Steamship Lines, Inc., requested an advance of further monies from the defendant herein in the sum of $20,000 in response to which request, defendant then or shortly thereafter advanced the sum of $10,000 but the defendant received new consideration for such advances, to wit, an agreement to reimburse defendant for legal expenses, an assignment of right, title and interest in a protecting and indemnity policy and also an assignment of all the Intercontinental Steamship Lines' right, title and interest in and to an insurance claim on the Schooner Theoline, in which the defendant then had an interest of $28,000 plus interest, but that the other $10,000 of the advance requested by Intercontinental Steamship Lines, Inc., by letter of April 15th, 1943, was not advanced by the defendant until on or about July 17th, 1943."
Judge Symes, before whom the case was tried without a jury, decided that "when the defendant accepted * * * freight money through their agent at the office of the freight agent of the ship, they were charged with knowledge of the purpose for which it was paid and also with the rule of law * * * to the effect that if the freight movement is not completed the freight money should go back to the consignor." He further said that the decision "was based on equitable principles; that is, that the plaintiffs paid money which the defendant took with full knowledge that it was freight money; that the consideration for which it was paid was not received by the plaintiffs, that is, the freight money was never earned; that the defendant, the Bankers, really got this money as managers of the Schooner Constellation; that they really managed the affairs of the Intercontinental; and that therefore on equitable principles and good conscience and justice they should pay it back for the reason that they took it with full knowledge of all the rights of the plaintiffs thereto."
In the first place, it is argued on behalf of the defendant that the issues involved in the present suit are maritime and are governed by the the rules of admiralty. We do not agree. The plaintiffs' claim is based on the assumption that the maritime contract upon which the freight moneys were paid was rescinded and that the defendant ought in equity and good conscience to return to them an equivalent amount with interest because it received the freight moneys knowing that they were paid for a voyage that was abandoned by the Intercontinental Steamship Lines with the consent and assistance of the defendant. The plaintiffs' claim is not simply one for breach of a maritime contract but for unjust enrichment by deliberate retention of credits received from Intercontinental that had been destined to pay for a voyage that was completely abandoned with the defendant's acquiescence and aid. The Constellation returned to the plaintiffs the cargo that she had taken on board, for which she had issued bills of lading; abandoned her original voyage to South Africa and undertook an entirely different voyage to South America. She could not have done this without the consent of the defendant who was actively financing her adventures and collaborated in depriving plaintiffs of the benefits of their contract. The claim asserted is in the old commonlaw action of indebitatus assumpsit, over which a court of admiralty has no jurisdiction. It would make no difference whether the claim was based upon unjust enrichment or fraudulent representations of which there were none in this case; in neither event would recovery lie in admiralty. United Transp. & L. Co. v. New York & Baltimore T. Line, 2 Cir., 185 F. *605 386, 389; Minturn v. Maynard, 17 How. 477, 15 L.Ed. 235; Israel v. Moore & McCormack Co., D.C., 295 F. 919. The jurisdiction of the District Court was based on diverse citizenship of the parties. The action is for recovery at common law and under the rule of Erie R. v. Tompkins, 304 U.S. 64. 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, is governed by the law of the State of New York.
The New York Appellate Division, First Department, rendered a decision in McInnes v. Equitable Trust Co., 197 App. Div. 649, 189 N.Y.S. 518, involving a state of facts closely similar to those here. The defendant there was a creditor of the shipowner. The shipowner, in order to secure a loan by the defendant, vested the latter as mortgagee with the legal title to the vessel and thus enabled its creditor to control the disposition of the vessel. The parties had an arrangement whereby the shipowner, with the knowledge and consent of the defendant, operated the steamer, entered into affreightment agreements, and issued bills of lading for the carriage of freight by the steamer. Under the contract between the defendant and the shipowner, the freight moneys received were to be paid to the defendant and applied by it to the payment of the loan until that had been repaid in full. There, as here, prepaid freight was received by the defendant for a voyage that was never carried out. The court held that in view of the contract requiring these moneys to be turned over to the defendant, the latter took them, charged with knowledge and charged with all the obligations with which the original owners would have been charged for failure of the vessel to make the voyage. The court held that the contract made the shipowners "the agents of the defendant to the extent at least that it charged the defendants with the knowledge that these moneys were freight moneys and were subject to repayment in case the voyage be not made." In this connection the court stated that it was not material whether the original shipowners were guilty of fraud in inducing the plaintiffs to make the contract and prepay the freight.
Accordingly upon the record which was presented by a demurrer to the complaint of the shipper by the creditor, the latter was required to make restitution of the freight money, with leave however, to withdraw its demurrer and replead if it so desired.
The theory upon which the above case proceeds was that of unjust enrichment. Perhaps another theory might have been employed, namely, that the defendant had committed a tort in collaborating with the shipowner to use freight moneys for purposes never intended when the moneys were originally paid. In the instant case, the reservation of controls[*] over Intercontinental's management of the Schooner through its mortgage on the Constellation, its right to prevent the ship from going on a voyage and its dominant financial relation *606 to Intercontinental contributed to the causing of a breach of contract between Intercontinental and those shippers who had advanced freight payments on the South African voyage. Such a proved relation was sufficient to negate the privilege enjoyed by creditors in certain circumstances of interfering with the business relations between their debtors and third persons. See 4 Restatement of the Law, Torts § 769(d). In passing on the inequity of the defendant's retention of the freightage in the case at bar, it is to be noted that it did not merely collaborate in the breach of contract, but also collaborated in what may be considered the commission of another tort by Intercontinental. For it has been held that where a ship, after receiving cargo on board, issuing bills of lading, and receiving prepayment of freight, fails to sail, the remedy of the shippers may at their option lie in tort for breach of a duty imposed upon carriers by common law. The Henry W. Breyer, D.C.Md., 17 F.2d 423; see also L. Hand, J., dissenting, Mallory S. S. Co. v. Garfield, 2 Cir., 10 F. 2d 664, 668, 669.
It is true that Justice Pecora reached a contrary result in Republic Chemical Corporation v. Bankers Commercial Corporation and Intercontinental Steamship Lines, Inc., ___ Misc. ___, 73 N.Y.S.2d 318, rendered at Special Term, Part V, of the New York Supreme Court, and affirmed without opinion by the Appellate Division, 269 App.Div. 736, 54 N.Y.S.2d 396. There, as in the case at bar, freight moneys had been prepaid by a shipper and its cargo laden on the Constellation. The same contract between Intercontinental and Bankers Commercial Corporation that we have outlined was there involved. The shipper, Republic Chemical Corporation, sued Bankers Commercial Corporation and Intercontinental for repayment of the amount of prepaid freight because of the abandonment of the voyage by Intercontinental. It is clear from Justice Pecora's decision that he did not question the validity of the principles we have discussed above as constituting the "New York law." The difference in result arose, apparently, from a different view of the facts than that taken by the trial judge in the District Court below. Thus Justice Pecora stated that [73 N.Y.S.2d 323]:
"It is well established by a long line of Federal decisions that pre-paid freight moneys are to be paid back to the shipper by the carrier in the event that the boat, which was intended to carry the shipment, does not make the voyage. That doctrine was given ample recognition by our State courts in such cases as the McInnes case. If the evidence before me had shown that the Bankers Commercial Corporation had retained these freight moneys in its possession or under its control, up to the time that the cause of action arose in favor of the plaintiff upon the failure of Intercontinental to fulfill its obligations under its affreightment contract with the plaintiff, in my opinion the principle enunciated in the McInnes case would amply justify a recovery of those freight moneys by the plaintiff from the Bankers. * * * But the most important factual difference between this case and the McInnes case, in my opinion, is the fact that, in the McInnes case, the defendant had received and retained the freight moneys there in suit, and was in possession of such moneys at the time the cause of action accrued in favor of the plaintiff, whereas, in this case, the freight moneys had been released and returned by Bankers to Intercontinental long before the accrual of plaintiff's cause of action."
It is to be noted that Justice Pecora based his distinction between the case before him and the McInnes decision on the fact that the freight moneys had there been "released and returned by Bankers to Intercontinental long before the accrual of plaintiff's cause of action." He ignored the fact which, moreover, does not appear to have been raised in the briefs before the Appellate Division, or to have been at least actively raised at the trial, that the moneys returned by Bankers to Intercontinental were loaned to Intercontinental upon a fresh consideration and, therefore, could not have been a return of the freight moneys that had been assigned to Bankers Commercial Corporation. This new consideration *607 was described by defendant's witness, Conlan, in the record before us and by Judge Symes in Finding 13 and resulted in the receipt by the defendant of a net of $16,602 from its security as well as in the liquidation of a libel against the ship Rawding upon which the defendant held a subordinate mortgage.
In addition to this it appears from the record in the Republic Chemical Corporation case in the Appellate Division that a modification of the contract was there made between Intercontinental and that shipper whereby the Constellation transported the goods of the latter to Norfolk, Virginia, under an arrangement whereby they were to be transshipped on the Rawding to South Africa, and that this forwarding arrangement was only defeated by the refusal of a "shipper's committee" that had taken possession of the Rawding to take the goods on board.
It appears from the foregoing that the facts as presented before Justice Pecora and the Appellate Division and the basis for his decision differed essentially from those in the case at bar.
The bills of lading here provided "* * * that the freights prepaid will not be returned, goods lost or not lost." It is argued that under the decisions of the Supreme Court in Allanwilde v. Vacuum Oil, 248 U.S. 377, 39 S.Ct. 147, 63 L.Ed. 312, 3 A.L.R. 15; International Paper v. Schooner Gracie D. Chambers, 248 U.S. 387, 39 S.Ct. 149, 63 L.Ed. 318, and Standard Varnish v. Steamship "Bris", 248 U. S. 392, 39 S.Ct. 150, 63 L.Ed. 321, there could be no recovery of the freights here because of the broad provisions of the bills of lading. But those decisions were based on, and in terms limited to, situations where there was a failure of the voyage induced by a restraint of princes or governments. Non-recoverability in those cases was due to an embargo by the United States Government, an exception provided for in the bills of lading. Here the frustration of the voyage was due to the inability of Intercontinental to obtain sufficient cargo and freights to render the voyage of the Constellation to South Africa profitable, i. e., to a deliberate choice on the part of Intercontinental and the defendant which controlled the sailings of the Constellation to send the ship on a different voyage. Such a situation is not, in our opinion, within the rule of the Supreme Court decisions above referred to.
In view of the foregoing we are of the opinion that the New York decisions sustain the judgment of the court below. This is because the defendant had sufficient control over the sailing of the Constellation to render it liable as a collaborator in the abandonment of the voyage to South Africa. It may be argued that the defendant did no more than allow the vessel to leave New York on a different voyage and did not direct the making of such a voyage or the abandonment of the former one. But concededly it could have prevented the abandonment of the original voyage and would seem to have facilitated the change because the cargo for South Africa was slow in coming in and it preferred to have the vessels of its debtor speedily employed instead of losing time in waiting to obtain South African freight. It not only consented to the new voyage but it had its own agent in the office of Intercontinental collecting the assigned freights on its behalf. It, therefore, must have been a direct and purposeful participant in the fruits of the new voyage.
The New York decisions are sufficiently clear and controlling to justify the recovery granted by Judge Symes.
Judgment affirmed.
NOTES
[*] This is shown by the following terms of the contract between Intercontinental and the defendant:
10. Intercontinental and Caragol promise and agree that all freight contracts and freight bills, or other written evidence thereof, will be conspicuously stamped with the following legend:
"The proceeds of this bill have been assigned to and are the property of Bankers Commercial Corporation, 270 Madison Avenue, New York, N. Y. Please make all remittances to them at that address."
11. All freight collections will be made directly by Bankers but should any collections come into the hands of either Intercontinental or Caragol, they will be immediately transmitted to Bankers in the form received, and Bankers may take any steps it deems necessary to insure the receipt by it of said collections including, but not restricted to, the placing of a representative at any and all times in the offices of Intercontinental and Caragol.
12. Prior to the making of any advances hereunder, Intercontinental will furnish Bankers with evidence satisfactory to Bankers to show the purposes for which the money advanced will be used. All checks issued by Intercontinental against said advances will be exhibited to Bankers prior to delivery.
16. It is mutually understood and agreed that the Schooner "Constellation" will remain in the Port of New York until the entire indebtedness of Caragol and Intercontinental to Bankers has been liquidated in full.
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275 S.E.2d 900 (1981)
Douglas T. LOCKE
v.
JOHNS-MANVILLE CORPORATION et al.
Record No. 790171.
Supreme Court of Virginia.
March 6, 1981.
*901 George Edward Allen, III, Richmond (Allen, Allen, Allen & Allen, Richmond, on briefs), for appellant.
C. Michael Montgomery, Norfolk (Henry C. Morgan, Jr., Peter C. Manson, Jr., Robert M. Hughes, III, Steven G. Schwartz, William B. Eley, Norfolk, A. James Kauffman, Richmond, William L. Dudley, Jr., Gerard E. W. Foyer, Norfolk, James C. Roberts, Richmond, Pender, Coward, Addison & Morgan, Eley, Rutherford & Leafe, Norfolk, Taylor, Hazen, Bryant & Kauffman, Richmond, Doumar, Pincus, Knight & Harlan, Taylor, Walker & Adams, Norfolk, Mays, Valentine, Davenport & Moore, Richmond, on briefs), for appellees.
Before CARRICO, C. J., HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ., and HARMAN, S. J.
COMPTON, Justice.
In this products liability case, we consider only a statute of limitations question. We must determine when plaintiff's cause of action accrued in this personal injury suit alleging that the disease of mesothelioma resulted from inhalation of asbestos particles. According to the record, this disease is a cancerous tumor most often found in the pleura, or lining, of the victim's lung.
Appellant Douglas T. Locke, the plaintiff below, filed this action on July 24, 1978, against appellees Johns-Manville Corporation, Johns-Manville Sales Corporation, Keene Building Products Corporation, The Celotex Corporation, Unarco Industries, Inc., Eagle-Picher Industries, Inc., Armstrong-Cork Company and Norport Supply Company, Inc. In an amended motion for *902 judgment, plaintiff alleged defendants were engaged in the business of mining, manufacturing, processing, importing, converting, selling and supplying asbestos and asbestos insulation materials and products. Plaintiff further alleged that during the period from 1948 to 1972 he inhaled asbestos fibers and dust as the result of his exposure to various asbestos products which were manufactured, sold and supplied by "some or all" of defendants. He also alleged that due to defendants' negligence and breach of warranty, and because of the inhalation of asbestos particles, he contracted mesothelioma, a disabling and fatal disease. Plaintiff sought recovery of compensatory damages in the amount of $1 million and punitive damages of $500,000.
Defendants' responsive pleadings included pleas of the two-year statute of limitations. Following pre-trial discovery proceedings, defendants filed motions for summary judgment also asserting the action was time-barred. Upon consideration of the allegations in plaintiff's amended motion for judgment, plaintiff's testimony contained in de bene esse depositions, a response to request for admissions, a written proffer of medical evidence filed by plaintiff, and argument of counsel, the trial court sustained the several motions and entered judgment for the defendants in the November 1978 order appealed from.
The record shows that since approximately 1948 plaintiff had been employed as an industrial electrician by various contractors at sites in Virginia, New York and North Carolina. For example, he worked: during 1948 and 1949 on the construction of the cruiser U.S.S. Newport News, at the Newport News Shipbuilding and Drydock Company; during 1954 and 1955 on a "power plant job" at Wilmington, North Carolina; in 1957 at a power plant location near the George Washington Bridge in New York City; during 1971-1972 on the Virginia Electric and Power Company "nuclear power house" in Surry County; and during 1972 at that company's Bremo Bluff power plant. Plaintiff asserts that at intervals during the period from 1948 to 1972 he breathed asbestos fibers and dust from defendants' various asbestos insulation products, with the last exposure being in September of 1972.
The plaintiff further alleged that before November of 1977 he was "in excellent health and physical condition," having had no symptoms of lung disease or abnormality. At that time plaintiff was 49 years of age and weighed 220 pounds. On November 1, plaintiff began experiencing impairment of lung function and thereafter sought medical attention. But prior to early 1978 he had no clinical or other medical evidence of mesothelioma, or any other lung-related abnormality or disease. Chest X-rays performed on April 14, 1978, were normal and "negative for disease," according to plaintiff's contention. Pain and other symptoms in the chest persisted, however.
On May 22, 1978, another X-ray was taken of plaintiff's chest and, for the first time, "an abnormality" was noted. A subsequent X-ray taken four days later "was markedly more abnormal" than the previous one. On May 26, 1978, plaintiff was hospitalized with a tentative diagnosis of pneumonia. Chest surgery was performed seven days later on June 2 and lung tissue was removed. This led to a diagnosis of mesothelioma located in the pleura of plaintiff's lungs. By the time this suit was filed in July of 1978, plaintiff's weight was below 180 pounds and his medical condition was rapidly deteriorating.[1]
Plaintiff's proffer of medical evidence states that if permitted to go to trial on the merits his proof will show the following facts. Asbestos is a carcinogenic chemical, known by experts since at least the 1930s to be a "cancer producer." Asbestos is the "only known cause" of mesothelioma, but not all persons exposed to asbestos fibers *903 will contract the disease. There is no method, "medically or otherwise," to determine in advance which persons exposed to asbestos fibers will develop the disease.
The proffer further discloses that in those persons who contract mesothelioma, the tumor "begins at some time later" than the exposure to the fibers and "there is no clinical or medical evidence of any injury until some time elapses" after such exposures. Additionally, the dates of the victim's exposures to asbestos fibers, and particularly the date of last exposure, bear no medical relationship to when and if a mesothelioma will occur in that person. Also, the disease is always fatal, death normally occurring within three to 18 months of the time the victim first suffers symptoms.
The proffer also states that plaintiff's case of mesothelioma was caused by occupational exposures to asbestos fibers; that the date of plaintiff's last exposure to asbestos in 1972 "bears no relationship medically as to when his mesothelioma occurred"; and, finally, that no "clinical, medical, X-ray or other evidence of the occurrence of mesothelioma" in plaintiff existed before 1978.
To support the charge of negligence, plaintiff asserts, inter alia, that defendants failed to warn him of known dangers connected with use of the asbestos products, failed to inform him of what would be safe protective clothing and equipment to be used while being exposed to asbestos products, failed to inform him about safe and proper methods of handling and using defendants' products, and failed to test the asbestos products to ascertain the danger involved. Contending also that defendants were guilty of breaches of express and implied warranties that caused his personal injuries, plaintiff alleged, inter alia, defendants failed to properly label the products and sold defective products that were "unreasonably unsafe."
The parties do not dispute that the statute of limitations here is governed by Code §§ 8.01-243(A) and -230. Section 8.01-243(A) provides, in pertinent part, that "every action for personal injuries, whatever the theory of recovery ... shall be brought within two years next after the cause of action shall have accrued." The relevant part of § 8.01-230 provides that "[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person...." (accent added).
The trial court held, relying principally on Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271 (1946), that the cause of action accrued no later than September of 1972 when plaintiff was last exposed to asbestos dust caused by defendants' products. The court accordingly decided that the suit filed in 1978 was untimely.
Plaintiff's main argument on appeal is that his injury was sustained subsequent to defendants' tortious conduct. Thus, he contends, the statute of limitations began to run at the time of injury and not when the wrongful act was done. Plaintiff says that the right to maintain a tort action for personal injuries does not "accrue," within the meaning of the pertinent statutes, until the claimant has a "legally provable injury." He argues that when the word "injury" as used in § 8.01-230 is applied to the disease in question, the plaintiff has sustained an injury only when "the cancer manifests itself with sufficient certainty to be subject to proof in court." To rule otherwise, plaintiff asserts, would mean that a mesothelioma victim would be required to bring his suit at a time when it would have been impossible for him to have maintained it. Plaintiff argues that the purpose of a general statute of limitations, as here, is to regulate the remedy, not to destroy the right of action before it accrues or can be sued upon.
Defendants maintain that the trial court properly ruled that plaintiff's cause of action accrued no later than the date of his last alleged injurious exposure to an asbestos-containing product "and not upon his, or his physician's, discovery of resulting damage." Defendants say that the "purported legal basis" for plaintiff's lawsuit is that defendants failed to test properly their products and failed to warn adequately the *904 plaintiff, prior to exposure, of any detrimental effects from their use. Defendants point out that plaintiff's proffer of medical evidence states that his disease was caused only by pre-1973 occupational exposure to and inhalation of airborne asbestos fibers. Yet, according to defendants, plaintiff also asserts that a discovery rule of accrual should apply because his exposure bears no relationship to when the cancer was capable of diagnosis. But plaintiff's cause of action, defendants urge, "rests on alleged harmful occupational exposure," that is, "the injurious event or series of injurious events complained of." And, defendants argue, their breach of any duties to test or warn "necessarily preceded, or at best were coextensive, with these injurious events." Relying upon Street v. Consumers Mining Corp., supra; Richmond Redevelopment and Housing Authority v. Laburnum Construction Corp., 195 Va. 827, 80 S.E.2d 574 (1954); Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187 (1966); and Virginia Military Institute v. King, 217 Va. 751, 232 S.E.2d 895 (1977), defendants exclaim that a decision reversing the lower court in this case "would run counter to all relevant legal and statutory precedent, and would represent a clear departure from Virginia's longstanding limitations principles." We reject defendants' contentions. We think this action was timely.
The broad issue to be decided here is whether the plaintiff's right to bring his action accrued no later than 1972, when he was last exposed to the asbestos fibers from defendants' products, or whether his right accrued at some subsequent time, and if it did arise later, at what time did the right, in fact, accrue.
In order to reach the core of the problem raised by this all-inclusive question, a review first must be made of the ingredients of a cause of action. Then, the specific language of the instant statute of limitations must be studied, in light of the nature and purpose of statutes of limitations in general. That exercise will result in a focus upon the crucial question in the case, which will then be answered, first, by an examination of these unique facts, especially the medical evidence, and, second, by application of the pertinent law to those facts.
There is no right of action until there is a cause of action. Caudill v. Wise Rambler, 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969). The essential elements of a cause of action, whether based on a tortious act or breach of contract, are (1) a legal obligation of a defendant to the plaintiff, (2) a violation or breach of that duty or right, and (3) harm or damage to the plaintiff as a proximate consequence of the violation or breach. Id. See Sides v. Richard Machine Works, Inc., 406 F.2d 445, 446 (4th Cir. 1969). A cause of action does not evolve unless all of these factors are present. Specifically, without injury or damage to the plaintiff, no right of action accrues; stated differently, a plaintiff's right of action for damages for bodily injuries does not accrue until he is hurt. Id.; Barnes v. Sears, Roebuck & Co., 406 F.2d 859, 861 (4th Cir. 1969).
The provisions of the statute of limitations under discussion, enacted in 1977 as a part of the wholesale revision of former Title 8 of the Code of Virginia, are not only consistent with the foregoing case law but are also compatible with the nature and purpose of such a general statute of limitations. They are intended to require prompt assertion of an accrued right of action, not to bar such a right before it has accrued. Caudill, 210 Va. at 13, 168 S.E.2d at 259.
Code § 8.01-230 specifies that a cause of action for personal injuries shall be deemed to accrue and the prescribed limitation period shall commence to run from the date the injury is sustained. We construe the statutory word "injury" to mean positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded. Thus, the running of the time is tied to the fact of harm to the plaintiff, without which no cause of action would come into existence; it is not keyed to the date of the wrongful act, another ingredient of a personal injury cause of action.
*905 The crucial question in this case thus becomes: When was the plaintiff hurt? Was he hurt when he breathed defendants' particles of asbestos no later than 1972 or was he hurt at some subsequent date, and, if then, was the date within two years of July 24, 1978, when suit was filed? The answer to these questions must, in the main, be found in the medical evidence.
Although having breathed asbestos fibers from 1948 to 1972, plaintiff was in excellent health and physical condition until November of 1977. Prior to 1978 there was absolutely no medical evidence he had any lung-related abnormality or disease.
The medical expert opinion (uncontradicted at this stage of the proceedings), reasonably construed, shows that the cancerous tumor in question does not begin to form contemporaneously with exposure to asbestos dust; the malignancy is born afterwards. During the period between exposure and formation of the tumor "there is no clinical or medical evidence of any injury until some time elapses" (emphasis added), just how much time not being revealed by the proffer. Moreover, many persons exposed to asbestos particles never develop mesothelioma. And, the dates of exposure bear no medical relationship to when and if the malignant tumor will occur in the person exposed to asbestos dust.
Thus, according to the medical evidence before us, and keeping in mind that the burden to prove facts necessary to establish an application of the statute of limitations is upon a defendant, Louisville and Nashville Railroad v. Saltzer, 151 Va. 165, 168, 144 S.E. 456, 457 (1928), we are confronted in this case with a medical condition that does not arise at a specific point of time, as does a broken bone; mesothelioma results over a period of time, the beginning of the period being unknown. In other words, the cancerthe hurtthe harm the injurydid not spring up at infliction of the wrongful act, that is, when the dust was inhaled no later than 1972. Rather, the tumorthe hurtthe harmthe injury manifestly occurred before June of 1978 when the mesothelioma was diagnosed; the time it began to form before that date not being shown by the evidence. Simply put, legally and medically there was no injury upon inhalation of defendants' asbestos fibers.
Consequently, based on the record in this case, we hold the plaintiff's injury was not sustained and the cause of action did not accrue in 1972 or before, within the meaning of Code §§ 8.01-230 and -243(A). We further hold the cause of action accrued and the statute of limitations began to run from the time plaintiff was hurt. The "time plaintiff was hurt" is to be established from available competent evidence, produced by a plaintiff or a defendant, that pinpoints the precise date of injury with a reasonable degree of medical certainty.
Under the scant evidence in this case, the foregoing point in time would coincide with either the November 1977 date when plaintiff first experienced impairment of lung function or the date of the May 1978 X-ray when a lung abnormality was noted. Thus, we do not hold that the foregoing rule means the limitation period does not begin to run until the initial diagnosis is communicated to the victim or even until the first diagnosis is actually made. We merely conclude that the accrual point is when damage occurs. Under this rule, it is conceivable that when the disease manifests itself by symptoms, such as pain, discomfort or impairment of function, expert medical testimony will demonstrate the injury occurred weeks, months or even years before onset of the symptoms. Thus, the cause of action would accrue and the limitations period would run from the earlier and not the later time.
Contrary to defendants' argument, the rule we have just articulated is not a so-called "discovery" rule, and plaintiff does not advocate that we embrace such a theory. We adhere to our belief, expressed in Virginia Military Institute v. King, 217 Va. at 760, 232 S.E.2d at 900, that adoption of a discovery rule, which triggers the running of the statute only when the injury is discovered or should have been discovered in the exercise of reasonable diligence, must *906 be accomplished by the General Assembly. But, as we shall shortly demonstrate, in all of our prior decisions that reject the discovery rule, the injury or damage existed at the time of the wrongful act; it had merely not been discovered in a timely manner. Here, however, there was no injury at the time of the wrongful act. A disease like this cancer must first exist before it is capable of causing injury. To hold otherwise would result in the inequity of barring the mesothelioma plaintiff's cause of action before he sustains injury.
The rule we adopt today is but an application of our prior decisions, such as Caudill and Saltzer, to the facts of the present case. In the latter case, Saltzer sued the railroad company to recover for damage to his land resulting from defendant's action in changing the channel of a river flowing through the property. Defendant's plea of the applicable five-year statute of limitations raised the question: When did the right of action accrue? Defendant contended it arose at the time the channel was changed in 1891 which was followed by erosion of soil. Plaintiff argued that no appreciable damage occurred until there was "high water" in 1918, and the right of action accrued then. In affirming the trial court's decision overruling the plea, based on a jury's finding that the damage occurred in 1918, this court said, apropos the present case:
"[W]here the damage ... arises from a cause not then immediately effective, ... the cause of action does not arise until the injury can be shown. The reason and justice of this is perfectly apparent, for a plaintiff who merely feared ultimate damage ... under such circumstances would invite defeat if he only relied upon his fears and was unable to prove any actual damage. So the courts have formulated the general rule thus: Whenever any injury, however slight it may be, is complete at the time the [act or omission] is completed, the cause of action then accrues; but, whenever the [act or omission] is not legally injurious, there is no cause of action until such injurious consequences occur, and it accrues at the time of such consequential injury...." 151 Va. at 170-71, 144 S.E. at 457, quoting Southern Ry. Co. v. Leake, 140 Va. 438, 441, 125 S.E. 314, 315 (1924).
Likewise, in Caudill, this court held that plaintiff's cause of action for personal injury arose at the time of the 1967 injury and not in 1964 when she purchased the defective automobile causing the injury. There, we decided that when plaintiff purchased the vehicle, the breach of an implied warranty of fitness occurred and plaintiff's cause of action for property damage arose. At the same time, the court said, plaintiff had a potential cause of action for personal injuries which did not accrue until she was injured. Thus, her personal injury action filed within two years of the date of injury was timely. There we also said:
Obviously, since the plaintiff had not been injured at the time she purchased the car, she could not then maintain an action for her injuries. To say, then, that her right of action accrued before her injuries were received is to say that she was without remedy to recover damages for her alleged injuries. Such an unjust and inequitable result is not the purpose of statutes of limitation.
210 Va. at 12-13, 168 S.E.2d at 259.
In Caudill, we relied on the decisions of the United States Court of Appeals for the Fourth Circuit in Sides v. Richard Machine Works, Inc., supra, and Barnes v. Sears, Roebuck & Co., supra. In Sides, the Court of Appeals held that plaintiff's right of action for personal injuries accrued when he was injured and not at the time of the earlier purchase of the defective locomotive that caused his injuries. The court analyzed Virginia law and the language of the former personal injury statute of limitations, which provided, without defining the accrual point, that actions for personal injury "shall be brought within two years next after the right to bring the same shall have accrued," Code § 8-24 (Cum.Supp. 1976). Holding there was no actionable tort until the plaintiff was hurt, the court said:
Before [plaintiff was hurt], of course, a duty, an act or failure to act in violation of the duty, and negligence were outstanding, but no tort was then in being; *907 it was no more than a potentiality or threat. If harm had not ensued, there would have been no tort and nothing to sue on.
406 F.2d at 446. In Barnes, the same court on similar facts reached a like result, applying identical reasoning.
The following cases relied upon by defendants, applying the limitations bar, are all factually inapposite. In Street v. Consumers Mining Corp., supra, the victim's disease, caused by breathing silica dust, had existed "from 10 to 15 years" although there was "no definite evidence to show at what time [the] silicosis was contracted." 185 Va. at 565, 39 S.E.2d at 272. There, the injury was complete and the cause of action accrued many years before the plaintiff's wrongful death action was instituted.
In Richmond Redevelopment and Housing Authority v. Laburnum Construction Corp., supra, a 1948 explosion stemming from an improper gas-pipe union caused the property damage sued for. The defective gas line was installed by defendant's subcontractor not later than 1943. In holding the suit filed in 1949 time-barred under a five-year statute of limitations, the court held the cause of action accrued at the time the line was constructed and not when the explosion occurred. The basis of the claim was for defective materials and improper workmanship and, according to the court, the hurtthe injury allegedwas the harm done to the pipe line upon installation. Thus, the injury was complete and the cause of action accrued no later than 1943, although the injury was not discovered until the subsequent explosion, which caused consequential damage.
Also in Hawks v. DeHart, supra, the cause of action for medical malpractice accrued in 1946 when a surgical needle was negligently left in plaintiff's neck by the defendant physician. Thus the 1963 personal injury suit was untimely even though plaintiff did not discover the wrong until 1962. There, plaintiff was hurt and harmed when the needle was allowed to remain in her body. The injury was complete in 1946 when the wrong was committed.
Finally, in Virginia Military Institute v. King, supra, V.M.I. sued a firm of architects for alleged improper design of a building. We held the cause of action accrued when the plans were finally approved no later than February of 1968 and not when evidence of deterioration of the building's stonework was first noticed in December of 1969. Thus, the January 1974 suit was barred by the applicable five-year statute of limitations. There we pointed out that at the time the plans were approved in 1968, "if defects had been discovered, V.M.I. could have initiated legal proceedings against the architects" because "a cause of action for defective plans arose upon tender of the plans by the architect to the owner." 217 Va. at 759, 232 S.E.2d at 900. Consequently, the injury was complete in 1968 because the owner had suffered harm when the erroneous drawings were submitted.[2]
For the reasons assigned, we conclude the trial court erred in determining this action was time-barred. Accordingly, the judgment appealed from will be reversed. The case will be remanded for further proceedings not inconsistent with the views expressed in this opinion, without prejudice to the interests of the plaintiff, his estate, his personal representative or the decedent's statutory beneficiaries under the Virginia Death by Wrongful Act statutes.
Reversed and remanded.
NOTES
[1] Plaintiff died on December 27, 1978. The cause of death was malignant mesothelioma. The death occurred after the trial court lost jurisdiction of the action and after the notice of appeal had been filed. Upon suggestion by the personal representative of the death, we ordered the appeal to proceed in the decedent's name as if the death had not occurred. Code § 8.01-20.
[2] Saltzer, Laburnum and King, all property damage cases, were decided before the October 1, 1977 effective date of Code § 8.01-230, which also specified the accrual point for property damage causes of action. The statute provides that the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run "when the breach of contract or duty occurs in the case of damage to property and not when the resulting damage is discovered." Consider the effect, if any, of the statute upon the decisions in those three cases.
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891 N.E.2d 38 (2008)
SANJARI
v.
GRATZOL.
Supreme Court of Indiana.
January 24, 2008.
Transfer denied. All Justices concur.
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608 S.E.2d 6 (2004)
270 Ga. App. 737
ASKINS
v.
COLON.
No. A04A0944.
Court of Appeals of Georgia.
October 22, 2004.
*8 Roger Orlando, Orlando & Kopelman, P.C., Decatur, for Appellant.
Eve Appelbaum, Appelbaum & Laross, Atlanta, for Appellee.
MIKELL, Judge.
Keith Askins appeals the order dismissing his renewed personal injury action. We reverse for the reasons set forth below.
The record shows that Askins was injured on July 28, 2001, when a vehicle owned and operated by Colon allegedly struck Askins's leg. Askins originally filed suit against Colon on September 25, 2002. Colon answered on November 4, 2002, raising all service defenses. The two-year statute of limitation expired in July 2003. However, on August 26, 2003, Colon executed an acknowledgment of service, which Askins filed with the court the next day. The document states, in its entirety, that "I, Francisco Colon hereby acknowledge service of the Summons, Complaint, Request for Production of Documents and Request for Admissions, and hereby waive any defenses concerning service of process." A note affixed to the document instructs Colon to "SIGN HERE," with an arrow pointing to the signature line. It is undisputed that Askins did not provide a copy of the acknowledgment of service to Colon's counsel before Colon signed it. At some point thereafter, Askins dismissed the original action and filed the instant suit as a renewal action on September 11, 2003. Colon was served with the renewed suit at his residence in Ocala, Florida, on October 20, 2003. He moved to dismiss the suit, alleging that the original suit was void and incapable of being renewed. Colon asserted that the acknowledgment of service he executed was invalid because it did not comply with OCGA § 9-11-4(d)(3) and (1). OCGA § 9-11-4(d)(3) permits a defendant to avoid payment of costs of service of the summons by executing a waiver of service on a form provided by the plaintiff. The form must include the following statement: "YOU ARE ENTITLED TO CONSULT WITH YOUR ATTORNEY REGARDING THIS MATTER."[1] Colon also argued that the acknowledgment amounted to an ex parte communication with a represented party, which is prohibited by Rule 4.2 of the Georgia Rules of Professional Conduct. Askins countered that the acknowledgment was valid under OCGA § 9-10-73, which provides that a defendant may acknowledge service of process or waive it by a writing signed either by himself or someone authorized by him. In a one-sentence order, the trial court granted Colon's motion to dismiss.
1. OCGA § 9-2-61(a) states:
When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state ... either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.
The renewal statute applies only if the original action was itself a valid suit because "[a] void action cannot be renewed after the statute of limitation has run."[2] And, the original suit is void if service was not perfected because the filing of the complaint without perfecting service does not constitute a pending suit.[3] Therefore, the viability of the present action hinges on whether service was properly perfected in the original action through the filing of the acknowledgment of service. Askins contends that the trial court erred in ruling that the acknowledgment had to be in *9 the form set out in OCGA § 9-11-4(l). The trial court granted the motion without stating any basis for its ruling; however, this issue was raised in the motion to dismiss, upon which the trial court expressly relied in its order. Accordingly, we address the issue.
"A statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto."[4] Therefore, OCGA § 9-11-4(d) must be harmonized with OCGA § 9-10-73. OCGA § 9-11-4(d) sets out the procedure by which a defendant may avoid the imposition of costs associated with service of the summons. "[T]he only penalty a defendant who declines to waive service will suffer for insisting on formal service is an assessment against it of the costs of service."[5] OCGA § 9-11-4(j) states that "[t]he methods of service provided in this Code section are cumulative and may be utilized with, after, or independently of other methods of service." Based on this subsection, it is clear that the legislature did not intend to eliminate OCGA § 9-10-73 as an alternative method of obtaining service. That Code section prescribes no particular form, and we find the document signed by Colon, in which he acknowledged service of the complaint and discovery materials and waived any defenses concerning service of process, sufficient to confer jurisdiction upon the trial court.[6] "Courts are not too naive to perceive that the sole purpose of waiver of service is to avoid formal service, and they should unhesitatingly hold that, when a defendant executes such waiver of service, he is thereby precluded from thereafter complaining because of the absence of service."[7]
2. Next, we address Colon's argument that the acknowledgment of service is void because it is the product of an ex parte communication initiated by Askins's attorney. In this regard, Rule 4.2(a) of the Georgia Rules of Professional Conduct provides: "A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by constitutional law or statute." As counsel for Colon had filed an answer on his behalf prior to the execution of the acknowledgment, Askins's counsel knew that Colon was represented by a lawyer. Rule 4.2 prohibited Askins's counsel from communicating with Colon about the lawsuit. It appears, therefore, that Askins's counsel violated Rule 4.2 when he sent the acknowledgment directly to Colon. "This rule is designed to protect a represented party's right to effective representation of counsel by preventing adverse counsel from taking advantage of such party through undisclosed contact."[8]
The purpose of the rule notwithstanding, its violation does not automatically require the exclusion of evidence obtained through an ex parte communication. And, in the only two cases cited by Colon, this Court determined that the rule had not been violated.[9] Moreover, Rule 4.2(b) states that "[t]he maximum penalty for a violation of this Rule is disbarment." Of course, a trial court has the discretion to order the less serious sanction of disqualification.[10] But we are aware *10 of no authority supporting the exclusion of an acknowledgment of service on the basis of an ex parte communication.
When a defendant challenges the sufficiency of service, including a challenge of the sufficiency of a waiver generated by the execution of an acknowledgement of service, he bears the burden of proof.... [T]he acknowledgement of service is of itself evidence of a higher order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.[11]
In the case at bar, Colon has not offered any evidence concerning his execution of the acknowledgment of service. It follows that he has failed to sustain his burden of proof.
Judgment reversed.
BARNES, J., concurs and BLACKBURN, P.J., concurs specially.
BLACKBURN, Presiding Judge, concurring specially.
I concur with the judgment reached by the majority but for different reasons.
Colon moved to dismiss the present personal injury action on the ground that the applicable two-year statute of limitation (OCGA § 9-3-33) had run. Indeed, the complaint, filed September 11, 2003, stated in its text that the accident had occurred on July 28, 2001, which thus showed that the statute had run. But the complaint alleged that it was a proper OCGA § 9-2-61 renewal of a prior valid action that had been voluntarily dismissed within six months of the filing date of the renewal action.
In his motion to dismiss, Colon alleged that his counsel filed an answer in the original action on November 4, 2002, that purportedly raised all service defenses, and that an "Acknowledgment of Service" in that action that was executed by him personally on August 26 and filed on August 27, 2003, was invalid. He argued that absent proper service, the prior action was invalid and could not sustain a renewal action under OCGA § 9-2-61. See Clark v. Dennis.[12] But Colon submitted and the record contains no competent evidence (through certified pleadings, testimony, or otherwise) as to these matters, simply attaching to his motion an uncertified copy of the alleged "Acknowledgment of Service" from the prior action with no other documents or evidence. In his response, Askins admitted to the text of the "Acknowledgment of Service" only, arguing that it showed the prior lawsuit was properly served.
I cannot agree with the majority that "the record shows" (i) Askins filed the original complaint on September 25, 2002, (ii) Colon answered the complaint on November 4, 2002, raising all service defenses, and (iii) the "Acknowledgment of Service" was executed by Colon personally on August 26, 2003 (significantly, a date after the complaint was allegedly answered by counsel representing Colon). I note that the trial court below also apparently relied upon these unsubstantiated statements in dismissing the renewal action.
The problem is that Colon bore the burden of showing evidence to dispute the allegations of the complaint that a valid prior action (now dismissed) supported the renewed complaint. Specifically, he bore the burden here of showing that service in the prior action was improper. See Kidd v. First Commerce Bank.[13] Yet (as stated in the majority opinion) he presented no competent evidence as to the circumstances surrounding his receipt, execution, and filing of the "Acknowledgment of Service" in the prior action nor as to the status of his legal representation at that time-matters which under his argument were crucial to determining the effectiveness of service. Absent such evidence, the trial court was not authorized to find that the service in the prior action was invalid. Accordingly, based on the state of the record, no evidence supported the finding that, contrary to the allegations in the renewal complaint, the prior action was an invalid action that would not support the renewal action.
*11 For these reasons, I concur in reversing the dismissal of the suit.
ON MOTION FOR RECONSIDERATION
Colon argues on a motion for reconsideration that we overlooked a controlling statute which would require a different judgment from that rendered, specifically Uniform Superior Court Rule 24.3, which provides, in pertinent part, that "[a]ll acknowledgments of service must be witnessed by an official attesting officer or the parties' counsel." He asserts that the acknowledgment of service he signed was ineffective to waive service because it was not witnessed by an official attesting officer or the parties' counsel. This argument fails for two reasons. First, it was not raised in the trial court and therefore has been waived. "It is well established that this court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal."[14] Second, USCR 24.1 et seq., of which USCR 24.3 is a part, applies to domestic relations actions. As the instant case is a personal injury action, and does not involve domestic relations, USCR 24.3 is inapplicable.
The remainder of Colon's contentions were raised in his initial brief and were ruled on by the Court. They do not merit further discussion.
The motion for reconsideration is denied.
NOTES
[1] OCGA § 9-11-4(l).
[2] (Citations omitted.) Sylvester v. Dept. of Transp., 252 Ga.App. 31, 33, 555 S.E.2d 740 (2001).
[3] Hobbs v. Arthur, 264 Ga. 359, 360, 444 S.E.2d 322 (1994).
[4] (Punctuation and footnote omitted.) State v. Lockett, 259 Ga.App. 179, 180, 576 S.E.2d 582 (2003). See also Holmes v. Chatham Area Transit Auth., 234 Ga.App. 42, 44, 505 S.E.2d 225 (1998).
[5] (Citation and Punctuation omitted.) Poteate v. Rally Mfg., 260 Ga.App. 34, 36(2), 579 S.E.2d 44 (2003).
[6] See Berklite v. Bill Heard Chevrolet, 239 Ga.App. 791, 792(1), 522 S.E.2d 246 (1999); Newell v. Brown, 187 Ga.App. 9, 10, 369 S.E.2d 499 (1988).
[7] Jones v. Jones, 209 Ga. 861, 863, 76 S.E.2d 801 (1953).
[8] (Footnote omitted.) Sanifill of Ga. v. Roberts, 232 Ga.App. 510, 511, 502 S.E.2d 343 (1998).
[9] Id.; Norfolk Southern R. v. Thompson, 208 Ga.App. 240, 246(4), 430 S.E.2d 371 (1993).
[10] See Clos v. Pugia, 204 Ga.App. 843, 845(1), 420 S.E.2d 774 (1992).
[11] (Citations omitted; emphasis in original.) Newell v. Brown, supra at 10-11, 369 S.E.2d 499 (defendant challenged his attorney's authority to execute acknowledgment of service).
[12] Clark v. Dennis, 240 Ga.App. 512(1), 522 S.E.2d 737 (1999).
[13] Kidd v. First Commerce Bank, 264 Ga.App. 536, 537(1), 591 S.E.2d 369 (2003).
[14] (Punctuation and footnote omitted.) Mayhue v. Middle Ga. Coliseum Auth., 253 Ga.App. 471, 473, 559 S.E.2d 488 (2002).
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942 S.W.2d 53 (1997)
Gonzalo Mario RODRIGUEZ, Sr. and Aurora Rodriguez, Parents and Survivors Of Decedent, Gonzalo Mario Rodriguez, Jr., Appellants,
v.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION, Appellee.
No. 13-95-063-CV.
Court of Appeals of Texas, Corpus Christi.
February 13, 1997.
*54 Roy S. Dale, Dale & Klein, McAllen, William L. Hubbard, Garcia & Sipes, McAllen, for Appellants.
Edwin M. Smith, Asst. Attorney General, Tort Litigation Division, Dan Morales, Attorney General, Jorge Vega, First Asst. Attorney General, Delmar L. Cain, Assistant Attorney General, Tort Litigation Division, Laquita A. Hamilton, Deputy Attorney General for Litigation, Patrick J. Feeney, Asst. Attorney General, Litigation Department, Austin, for Appellee.
Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.
OPINION
SEERDEN, Chief Justice.
Gonzalo Mario Rodriguez, Sr. and Aurora Rodriguez, the parents of Gonzalo Rodriguez, Jr., deceased, appeal from a judgment dismissing with prejudice their claims against the Texas Department of Mental Health and Mental Retardation ("Department") for the wrongful death of their son. The Rodriguezes bring two original, and three supplemental points of error. The Department raises one cross point. We affirm.
The Rodriguezes originally sued a number of separate entities, including the Department and Tropical Texas Center for Mental Health and Mental Retardation ("Tropical Texas") for the wrongful death of their autistic son, which resulted from Gonzalo's accidental inhalation or ingestion of various chemicals while under the supervision of Tropical Texas' home for the autistic. However, the Rodriguezes settled with Tropical Texas, and their claims against the other governmental defendants were also disposed of, except those against the Department, whose liability rested on its statutory and contractual relationship with Tropical Texas. The Rodriguezes alleged that Tropical Texas was an employee of the Department for purposes *55 of liability under the Texas Tort Claims Act. The Department generally denied liability and specifically asserted sovereign immunity as a department of the State.
The case proceeded to trial and a jury panel was seated and sworn. However, the trial court then excused the jury in order for the attorneys to argue a motion in limine in which the Department requested that the Rodriguezes show the relevancy to the liability of the Department of various documents and contracts intended to be presented by the Rodriguezes.
After hearing argument on the motion in limine, the trial judge recessed for a private, unrecorded conference with the attorneys in his office. The record next indicates that the jury was recalled for the trial court to announce that the case had been disposed of. Both parties thanked the jurors for their service and made no objection to their dismissal.
After the jury had been dismissed, the following exchange took place between the trial court, counsel for the Rodriguezes (Mr. Hubbard and Mr. Dale), and counsel for the Department (Mr. Smith):
The Court: Be seated, if you would like. Did you work out your proposed order?
Mr. Hubbard: Yes.
* * * * * *
The Court: All right. Now, before I sign this and make it of record, is there some things [sic] you want to put into the record?
Mr. Dale: Yes.
Mr. Hubbard: Yes, Your Honor. We want to make some Bill of Exceptions.... [Whereupon, certain exhibits and deposition transcripts were identified and offered]
Mr. Hubbard: That's all, Your Honor. Thank you.
Mr. Dale: Thank you.
The Court: Mr. Smith?
Mr. Smith: Yes, sir, Your Honor. The defendants would also like to enter some exhibits for the record. [Whereupon, the Department also identified and offered exhibits and depositions in the form of a bill of exceptions.].... And that concludes our bill on this matter.
The Court: All right. The exhibits will be admitted, both plaintiffs and defendants. The final judgment, which has been approved, as to form, by Plaintiff and Defendant, will be entered as the final judgment in this case..... Okay.
Mr. Hubbard: Thank you. May we be excused?
The Court: Gentlemen, thank you. You are excused.
The final judgment, signed and filed on the same day as the hearing, stated that, in consideration of "the pleadings, arguments, and representations of counsel, the Court is of the opinion, and so finds, that a verdict should be directed in favor of Defendant that [Tropical Texas] is not an employee of the [Department] as a matter of law and that the [Department] owed no duty to Plaintiffs as a matter of law." The judgment then ordered the Rodriguezes' causes of action dismissed with prejudice. It was signed by the attorneys for both parties as having been approved as to form only. The Rodriguezes then filed timely notice of appeal.
The Rodriguezes initially raised two points of error challenging the legal and factual sufficiency of the evidence to support the trial court's finding concerning the absence of liability of the Department for the alleged negligence of Tropical Texas. They later raised three more points of error complaining that they were improperly denied a jury trial and that the trial court erred in granting a directed verdict without any evidence having been presented.
We first address the Rodriguezes' three supplemental points of error.
The record clearly indicates that both parties agreed to submit the case to the trial court in this summary fashion without a conventional trial or evidentiary hearing, but merely on the basis of numerous exhibits tendered to the trial court under the guise of a motion in limine. The proceedings below can, perhaps, best be described as an informal summary judgment on the question of liability raised by the consent of both parties at the beginning of the jury trial. See Nassar *56 v. Hughes, 882 S.W.2d 36, 38 (Tex.App. Houston [1st Dist.] 1994, writ denied). Rather than go through the time and expense of a conventional trial, the parties submitted a relatively simple question to the trial court concerning the legal relationship between the Department and Tropical Texas. When the trial court determined that issue against the Rodriguezes, the jury was then dismissed and the parties attempted to preserve the appellate record by bills of exception.
The Rodriguezes had every right to object to the summary disposition of their lawsuit in this manner and to demand that they be allowed to present their case to the jury in its entirety before the trial court could grant a directed verdict against them. Cf. Id. (plaintiff affirmatively attempted to present evidence but was cut off by the trial court's directed verdict). However, rather than object, the Rodriguezes appear to have accepted this procedure and even prepared the judgment for the trial court to sign.
With regard to their right to a jury trial, the Rodriguezes failed to object to the discharge of the jury after the trial court announced that the case had been disposed of. A party waives his right to a jury trial by failing to object when the trial court instead undertakes to try the case before the bench. Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat. Assur. Co., 875 S.W.2d 385, 387 (Tex.App.Dallas 1993, no writ); Ball v. Farm & Home Sav. Ass'n, 747 S.W.2d 420, 428 (Tex.App.Fort Worth 1988, writ denied); Fishing Publications, Inc. v. Williams, 661 S.W.2d 323 (Tex.App.Corpus Christi 1983, no writ).
Moreover, the Rodriguezes also waived any right to a conventional bench trial when the trial court gave them the opportunity to present evidence on the record before judgment was signed. They offered en masse the exhibits and depositions which comprised their bill of exceptions. No live testimony or other evidence was offered or refused on the record of the present proceeding. Of course, we have no way of knowing what occurred during the unrecorded conferences in the trial judge's chambers, which may have indicated the Rodriguezes' objections to this procedure. However, absent anything of record to preserve those objections, the Rodriguezes may not formally raise them for the first time in this Court. See Tex.R.App. P. 52(a). Having voluntarily forfeited their right to present the merits of their case by a conventional trial before the jury or bench, the Rodriguezes may not now complain on appeal of the summary procedures that they acquiesced in at trial. We overrule the Rodriguezes' three supplemental points of error.
By their first and second original points of error, the Rodriguezes challenge the legal and factual sufficiency of the evidence to support the trial court's finding that the Department was not liable for the alleged negligence of Tropical Texas, because it is not an employee of the Department.
The Texas Tort Claims Act waives sovereign immunity for certain actions of governmental employees. See Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1986); Harris County v. Dillard, 883 S.W.2d 166, 167 (Tex.1994). The Act defines an "employee" as:
[A] person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.
Tex. Civ. Prac. & Rem.Code Ann. § 101.001(1) (Vernon 1986); see White v. Liberty Eylau Independent School Dist., 920 S.W.2d 809, 814 (Tex.App.Texarkana 1996, writ denied). Accordingly, to be an employee, a person must be under the control and direction of the alleged employer. See White, 920 S.W.2d at 814.
All of the evidence in the present case was presented in the form of exhibits to the motion in limine and bills of exception.[1]*57 These exhibits generally showed that Tropical Texas is dependant upon federal Medicaid payments for funding the cost of care for its clients, and that these payments are made through either the Department or other state agencies. The Rodriguezes' counsel argued that Tropical Texas is an employee of the Department for purposes of liability because of the money that it receives from the government through the Department and the regulatory control that the Department exerts over Tropical Texas. However, the Department argued that Tropical Texas is an independent contractor as a matter of law, and that the Department is not responsible for the actions of Tropical Texas or vicariously liable as an employer.
Tropical Texas was established pursuant to statutory authority as a "community center," which is itself created by local units of government as "an agency of the state, a governmental unit, and a unit of local government, as defined and specified by [the Texas Tort Claims Act]." Tex. Health & Safety Code Ann. § 534.001(c)(1) (Vernon Supp.1997). Although the establishment of a community center is initially subject to the approval of the Department under section 534.001(d), Tropical Texas is generally under the direction and control of its own board of trustees as established by the local agencies that created it. See Tex. Health & Safety Code Ann. § 534.002 et seq. (Vernon 1992 & Supp. 1997).
Accordingly, Tropical Texas is a separate governmental entity for purposes of the Texas Tort Claims Act, and not merely a subdivision of the Department. The mere fact that Tropical Texas engages in an activity that is highly regulated by another state agency, or that Tropical Texas is generally dependent upon federal funds which are funneled through that agency or department, does not place it under that department or agency's control and direction, or make it an "employee" of that agency or department, for purposes of the Texas Tort Claims Act. The trial court correctly concluded that, as a matter of law, Tropical Texas is not the Department's employee. We overrule the Rodriguezes' original two points of error.
Having overruled all of the Rodriguezes' points of error, we need not address the Department's cross-point concerning application of the statute of limitations as an alternate bar to recovery. Tex.R.App. P. 90(a).
The judgment of the trial court is AFFIRMED.
NOTES
[1] Though never formally admitted into evidence at trial, these exhibits were clearly considered by the trial court, without objection from the parties, in reaching his decision on the merits of the underlying question whether Tropical Texas was an employee of the Department. Accordingly, for purposes of the present appeal, we assume that the exhibits were effectively admitted as evidence before the trial court.
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796 P.2d 799 (1990)
John Arthur ESPONDA, Jr., Appellant (Defendant),
v.
Brenda K. ESPONDA, Appellee (Plaintiff).
No. 90-71.
Supreme Court of Wyoming.
August 24, 1990.
Richard H. Peek, Casper, for appellant.
Lawrence A. Yonkee of Redle, Yonkee & Toner, Sheridan, for appellee.
Before THOMAS, URBIGKIT and MACY, JJ., and ROONEY and BROWN, Retired JJ.
ROONEY, Justice, Retired.
This appeal is from a determination by the district court that there was not a material and sufficient change in the circumstances of the parties to warrant a modification of the child support provisions of the court-approved stipulation entered into by the parties in connection with their divorce.
We affirm.
With reference to child support, the stipulation required payment by appellant of $250 per month for each of the two minor children of the parties.[1] In his Petition for Modification, appellant sets forth the basis upon which he relies for a change in the required amount of child support as follows:
"5. Since the divorce Decree was entered between the parties, there has been a material and substantial change of circumstances which would warrant a modification of the same pertaining to the payment of child support.
"6. Said material and substantial change of circumstances consists of the Defendant's change of employment and substantial reduction in gross and net month income." (Emphasis added.)
Actually, there was very little change in appellant's income between the time of the divorce decree and the time at which the Petition for Modification was filed. When the decree was entered, appellant was working at the family ranch (in which he had part ownership) for a monthly income of $1,000 plus room, board and use of a vehicle. When the Petition for Modification was filed, he was employed by the School District as a custodian at a monthly salary of $1,200.
However, appellant argues that the change in conditions should be based on income from a comparatively short-term employment by Hood Communications *800 from March 1988 to September 2, 1988. He testified that his income from this employment was $3,000 per month. The hearing on the divorce (at which time the original stipulation was amended) occurred during appellant's employment by Hood Communications. The original stipulation (requiring higher payment for the present period) was agreed to before such employment, and the divorce decree was entered after the termination of such employment. Excepting the income received by appellant from Hood Communications, his income during the course of these proceedings has been approximately half of that received from Hood Communications.[2] The following chronology reflects the dates of appellant's pertinent employments as reflected in the record and as they pertain to dates of pertinent court proceedings:
Date Employment Court Proceeding
9/3/87 Complaint filed
1/88 Hood Corporation ($1,790/month)[3]
1/23/88 Original Stipulation
entered into
2/19/88 Original Stipulation
filed
3/88 Started Hood Communications
($3,000/month)
8/26/88 Hearing Stipulation
amended in open
court
9/2/88 Terminated with Hood Communications
10/15/88 Started at Ranch ($1,000/month plus board,
room and auto use)
11/15/88 Decree filed (incorporated
stipulation)
6/89 Ranch employment terminated
7/89 Started with School District ($1,200/month)
8/16/89 Petition for Modification
filed
12/12/89 Hearing on Petition
to Modify
12/29/89 Judgment signed
1/04/90 Judgment entered
2/90 To be promoted by School District to bus
driver ($1,560/month)
At the conclusion of the hearing, the district judge commented in part:
"I don't find there's been any change of circumstances in this situation. There *801 was no real employment history of any income level for Mr. Esponda at the time this agreement was entered into. He had a job that he had had for a very brief period of time, but there's been no basis given to this Court from the evidence presented here as to what, you know, what he anticipated his real income level was other than just testimony that he had started to work just a short time before this divorce thing at that job that he was making $3,000 a month. I assume before that he was on the ranch doing something else, you know. He had several other things that are involved here with land and livestock.
"I don't find anything that is a sufficient change of circumstances for this Court to reduce the amount of support, * * *."
In this appeal, appellant contends that the trial court abused its discretion. Appellant words the issue on appeal:
"Did the trial Court abuse its discretion in finding that there was not a sufficient change in circumstances since the divorce proceeding and the entry of the decree to warrant a modification by reducing the child support to be paid by the Appellant?"
In Martinez v. State, 611 P.2d 831, 838 (Wyo. 1980), we stated:
"A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. Eager v. Derowitsch, 68 Wyo. 251, 232 P.2d 713 (1951); Anderson v. Englehart, 18 Wyo. 409, 108 P. 977 (1910); DiPalma v. Wiesen, 163 Conn. 293, 303 A.2d 709 (1972); In re Estate of Horman, 265 Cal. App.2d 796, 71 Cal. Rptr. 780 (1968)."
In Martin v. State, 720 P.2d 894, 897 (Wyo. 1986), this court stated:
"We have usually alluded to abuse of discretion in general terms and have not made an exhaustive list of circumstances constituting abuse of discretion, nor do we care to. Each case must be determined on its peculiar facts."
The district court could reasonably conclude as it did under the evidence in this case, i.e., it could conclude that there was not a material and substantial change in appellant's average income since he stipulated to the amount for child support as contained in the decree he agreed to an even greater amount in the original stipulation. Recognizing the considerations necessary in fixing the amount of child support, the trial court did not here act in a manner which exceeded its bounds of reason under the circumstances. It did not abuse its discretion.
Appellant himself accurately sets forth some of the considerations for the trial court in instances such as this:
"Appellant filed his petition for modification pursuant to the provisions of W.S., Section 20-2-113(a). The indicated section allowed the court to revise the decree concerning the maintenance of the children as the circumstances of the parties and benefit of the children required. The change in the circumstances must be substantial or material in order to outweigh society's interest in applying the doctrine of res judicata to a final decree of divorce. There must be an end to litigation at some point, or the judicial system would become bogged down. Kreuter v. Kreuter, Wyo., 728 P.2d 1129 (1986); Mentock v. Mentock, Wyo., 638 P.2d 156 (1981). Appellant had the burden of proof to show that a substantial or material change of circumstances had occurred subsequent to the divorce proceedings. Nuspl v. Nuspl, Wyo., 717 P.2d 341 (1986); Cubin v. Cubin, Wyo., 685 P.2d 680 (1984); Kreuter v. Kreuter, supra.
"Decisions regarding child support rest largely with the district court, and this Court will not disturb the trial court's decision in the absence of a grave abuse of discretion or in violation of some legal principle. Kreuter v. Kreuter, supra; Nuspl v. Nuspl, supra; *802 Manners v. Manners, Wyo., 706 P.2d 671 (1985). This Court has repeatedly held that an abuse of discretion has been said to mean an error of law committed by the court under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. The reviewing Court cannot substitute its judgment for that of the trial court, whose judgment must be sustained unless clearly erroneous, manifestly wrong, or totally against the evidence. Roberts v. Vilos, Wyo., 776 P.2d 216 (1989)."
The district court considered the financial condition of the appellee: monthly salary of $1,000 as secretary at First United Methodist Church, extra work when available for $4.00 to $5.00 per hour at the Water Hole Bar, the Moose, and at a concession stand. She worked "60 to 70 to 80 hours a week most of the summer." The children are taken care of by her parents after school. She and her children eat at her parents' home regularly. Her itemized expenses exceed her income.
The district court commented in part at the conclusion of the hearing for modification:
"What I find here is Mrs. Brenda Esponda seems to make ends meet because she's willing to work 60, 70 to 80 hours a week, and that if Mr. Esponda has to work 60, 70 to 80 hours a week to pay, I guess he's going to have to do it."
Thus, the district court obviously took the welfare of the children into consideration. Appellee properly refers to Broyles v. Broyles, 711 P.2d 1119 (Wyo. 1985); Bereman v. Bereman, 645 P.2d 1155 (Wyo. 1982); and Mentock v. Mentock, 638 P.2d 156 (Wyo. 1981), to note the necessity for the court to consider the resources and circumstances of both parents as well as the needs and interests of the children, with the paramount concern being the welfare of the children, in connection with child support proceedings.
Applying such established law to this case, the district court did not abuse its discretion or act totally against the evidence in a clearly erroneous fashion.
Appellant contends on appeal that the amount for child support exceeds that authorized by W.S. 20-6-303[4] and W.S. 20-6-304.[5] W.S. 20-6-303 provided:
"The basic child support obligation may be apportioned between the parents in proportion to their incomes. Four hundred fifty dollars ($450.00) income per month per parent shall be considered to be a minimum living allowance and shall not be subject to child support obligation."
W.S. 20-6-304 provided:
"Child support for each child shall not exceed twenty percent (20%) of the balance of the gross income of the obligor after the deduction of the minimum living allowance established in W.S. 20-6-303. Total child support shall not exceed fifty percent (50%) of the gross income of the obligor after the minimum living allowance has been deducted."
However, a computation based upon appellant's gross income (including that from all sources and not only that received from the school district) reflects the award to be well within the statutory guidelines. This issue was not presented to the trial court, and, normally, we will not consider matters raised for the first time on appeal unless they go to jurisdiction or are otherwise of a fundamental nature. Dennis v. Dennis, 675 P.2d 265 (Wyo. 1984); Gore v. John, 61 Wyo. 246, 157 P.2d 552 (1945). We note the inapplicability of the statutes to this case because they may be said to establish a fundamental right or limit jurisdiction all without a determination by us that such is done and without otherwise ruling on any aspect of the statutes.
Affirmed.
NOTES
[1] The original stipulation required payment of $350 per month for each child. It was amended in open court to require payments of $250 per month per child from September 10, 1988 to September 10, 1992; $300 per month per child from September 10, 1992 to September 10, 1995; and $325 per month per child from September 10, 1995 until one of the children was no longer in appellee's care and custody after which it was agreed that the payment be $400 per month for the other child.
[2] There was evidence of income from sources other than employment, e.g., sale of sheep, mineral royalty, trustee fee, but there was no evidence of a change therein.
[3] Appellant testified on cross-examination:
"Q Now, when did you go to work for Hood Communications?
"A In March of or, no, November of '87.
"Q And you were employed by that company in January of 1988, and at that time, your salary or your income from Hood was $396 a week. Is that I'll tell you, what I'm looking at is your Answers to Interrogatories.
"A Yes. That was Hood the Hood Corporation.
"Q Hood Communications, 21214 Center Place, Anaheim, California; that's correct?
"A I was not employed by them at that time. I was employed by Hood Corporation at that time.
"Q But anyway, your rate of pay was $396 a week?
"A Yes.
"Q And that was the time that you signed the first stipulation in the case whereby you agreed to pay $350 a month child support for each of the children?
"A Yes."
[4] Repealed effective July 1, 1990.
[5] Amended effective July 1, 1990.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0063n.06
Filed: January 25, 2007
No. 06-1006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
DONALD GARDNER, )
)
Defendant-Appellant. )
BEFORE: KEITH, and CLAY, Circuit Judges; MAYS, District Judge.*
DAMON J. KEITH, Circuit Judge. This matter is on appeal for the second time. On
the first occasion, Defendant, Donald Gardner, appealed his convictions following his pleas of
guilty to possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(iii), and to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). On January 20, 2004, Gardner was sentenced to a term of imprisonment of 210
months on the drug charge and 120 months on the firearm charge, to run concurrently. A prior
panel of this Court affirmed Gardner’s convictions, but vacated and remanded his sentence in
light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Gardner, 417 F.3d
541 (6th Cir. 2005). On remand, the district court resentenced Gardner to the same concurrent
terms of imprisonment. For the second time, Gardner appeals to this Court to set aside his
sentence as “unreasonable” under Booker.
*
The Honorable Samuel H. Mays, Jr., United States District Court for the Western
District of Tennessee, sitting by designation.
No. 06-1006 United States v. Gardner Page 2
As an appellate court, we review Gardner’s sentence for “reasonableness.” See, e.g.,
United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005). “A sentence is unreasonable if the
sentencing court fails to consider the applicable Guideline range or neglects the factors
articulated in 18 U.S.C. § 3553(a).” United States v. Cage, 458 F.3d 537, 540 (6th Cir. 2006).
Where a sentence falls within the United States Sentencing Guidelines’ advisory range, this
Court affords the sentence a “rebuttable presumption of reasonableness.”1 See id. at 541-544.
However, “[t]his rebuttable presumption does not relieve the sentencing court of its obligation to
explain to the parties and the reviewing court its reasons [under § 3553(a)] for imposing a
particular sentence.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). Ultimately,
“[t]his assures not only that the defendant can understand the basis for the particular sentence but
also that the reviewing court can intelligently determine whether the specific sentence is indeed
reasonable.” Id.
Applying these principles to this case, we find that the rebuttable presumption of
reasonableness applies to Gardner’s sentence. Foremost, his sentence of 210 months is at the
bottom of the advisory Guideline range of 210 to 262 months. Equally significant is the district
court’s well-reasoned explanation for the specific sentence it chose to impose. For instance, in
its colloquy with Gardner’s counsel, the court reasoned that “your client’s major problem here is,
1
On October 13, 2006, this Court granted en banc review in United States v. Vonner, 452
F.3d 560 (6th Cir. 2006), to explore this Court’s approach to post-Booker reasonableness review.
The Supreme Court has also agreed to decide whether a criminal sentence within the Guidelines
range is reasonable, whether such a sentence may be presumed to be reasonable, and whether
such a sentence may be imposed without full analysis of factors that might justify a lesser
sentence by the sentencing judge. See United States v. Rita, 177 F. App’x 357 (4th Cir. May 1,
2006), cert. granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006) (No. 06-5754)
No. 06-1006 United States v. Gardner Page 3
you know, not just his record, but the fact that guns and drugs are altogether, too. And that is the
distinguishing characteristic for your client from what we’ll call an ordinary crack dealer.
Firearms and drugs lead to a lot of killings, even in this city.” (J.A. at 99). At the end of the
sentencing hearing, the court noted that “considering [Gardner’s] background, the nature of this
offense, the fact that drugs and guns are linked together, it’s a very serious offense. And, in my
judgment, in order to provide adequate deterrence and to protect the public from further crimes
of this particular defendant, a sentence within the guideline range would be appropriate.” (J.A.
at 102). Hence, because “‘[t]here is no requirement that the district court . . . engage in a
ritualistic incantation of’ the § 3553(a) factors it considers,” United States v. Chandler, 419 F.3d
484, 488 (6th Cir. 2005) (citation omitted) (alterations in original), or that it formally “mention[]
the magic words ‘§ 3553(a) factors,’” United States v. Till, 434 F.3d 880, 887 (6th Cir. 2006), we
extend Gardner’s sentence the presumption of reasonableness.
In an attempt to rebut this presumption, Gardner contends that the district court neglected
to respond to a mitigating factor that he raised at his sentencing hearing — namely, that the
“inherent unfairness of sentences for crack cocaine [and powder cocaine]” makes a sentence
outside of the Guidelines appropriate. (Appellant’s Br. at 17). Under this Circuit’s law, it is
clear that “[w]here a defendant raises a particular argument in seeking a lower sentence, the
record must reflect both that the district judge considered the defendant’s argument and that the
judge explained the basis for rejecting it.” Richardson, 437 F.3d at 554. Despite Gardner’s
contention, the district court did consider his “crack/powder disparity” argument, in noting that
the “problem is, of course, a lot of this is not driven by even the sentencing commission. The
No. 06-1006 United States v. Gardner Page 4
sentencing commission was going to sort of level off these crack guidelines, and then Congress
prevented them from doing it. So I have to take that into consideration also, I think, in
determining what is fair and reasonable and trying to get at least some uniformity in the federal
system.” (J.A. at 98).1
Accordingly, because his sentence is within — indeed, at the very bottom of — the
Guidelines, because the district court adequately explained and gave due consideration to §
3553(a), and because the court considered his “crack/power disparity” argument, Gardner’s
sentence is “presumptively reasonable.” Gardner has not proffered any reason to rebut this
presumption. We, therefore, AFFIRM the district court’s sentence.
1
As an aside, in United States v. Caver, 470 F.3d 220, 249 (6th Cir. 2006), this Court
held that, after Booker, “applying the 100:1 ratio does not, ipso facto, make a sentence
unreasonable under existing case law.”
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[Cite as State v. Group, 2011-Ohio-6422.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 MA 21
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
SCOTT A. GROUP, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 97 CR 66.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney John B. Juhasz
7081 West Blvd., Suite 4
Youngstown, OH 44512
Attorney John P. Laczko
3685 Stutz Drive, Suite 100
Canfield, OH 44406
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: December 8, 2011
[Cite as State v. Group, 2011-Ohio-6422.]
DeGenaro, J.
{¶1} Defendant-Appellant, Scott A. Group, appeals the December 31, 2009
decision of the Mahoning County Court of Common Pleas denying his petition for post-
conviction relief in this capital case. On appeal Group argues that the court erred by
dismissing each of the 13 grounds for relief he raised in his petition. Group also argues
that the trial court erred by failing to permit him to conduct discovery and by failing to
conduct an evidentiary hearing.
{¶2} Upon review, all of Group's arguments are meritless. A petitioner has no
right to discovery during post-conviction proceedings. And the trial court properly
dismissed each of Group's claims without holding a hearing. The majority of his claims
are barred by res judicata as they are not supported by cogent evidence de hors the
record. With regard to the few remaining claims which have some support outside the
record, they fail to demonstrate substantive grounds for relief. Accordingly, the judgment
of the trial court is affirmed.
Facts
{¶3} In Group's direct appeal from his capital convictions, the Supreme Court of
Ohio described the facts of the offense:
{¶4} "On January 18, 1997, the appellant, Scott A. Group, shot Robert Lozier to
death during a robbery. * * *
{¶5} "Robert Lozier's wife, Sandra Lozier, owned the Downtown Bar in
Youngstown, Ohio. In late September 1996, the Loziers began buying wine and other
merchandise from Ohio Wine Imports Company. Group, who was then employed as a
deliveryman for Ohio Wine, made weekly deliveries to the Downtown Bar. Group never
asked the Loziers to sign or initial a copy of the invoice when they took delivery, a practice
Mrs. Lozier characterized as unusual.
{¶6} "On December 12, 1996, Group brought his cash receipts to the Ohio Wine
warehouse manager's office to be counted and compared against his invoices. Group's
cash receipts were approximately $1,300 short. Although the police were notified, Group
was never charged with stealing the missing money.
{¶7} "About a week before Robert Lozier's murder, Group went to the Downtown
-2-
Bar and asked Mrs. Lozier to show him the bar's copies of invoices from Ohio Wine.
{¶8} "Less than a week before Robert Lozier's murder, two Ohio Wine
employees saw Group with a revolver at work. They told him to take the gun out of the
building, since possessing a firearm in the warehouse was illegal.
{¶9} "The day before the murder, Group quit his job at Ohio Wine. That night,
two witnesses saw Group at the Downtown Bar. One of them, Robert Genuske, who
worked at the bar, recalled that a few weeks earlier, Group had come to the bar looking
for Mr. or Mrs. Lozier because he wanted to talk to them about an invoice.
{¶10} "The next day, January 18, the Loziers arrived at the Downtown Bar around
10:00 a.m. It was a cold day and Robert Lozier went upstairs to see whether the pipes
had frozen. Sandra Lozier went to an office, opened a safe, removed five bags
containing approximately $1,200 to $1,300 in cash, and set them on her desk.
{¶11} "As she counted the cash, Mrs. Lozier heard a knock at the bar's front door.
She went to the door, looked through the peephole, and saw Group. Mrs. Lozier
recognized Group and let him in. She noted that he was wearing tennis shoes, jeans, a
dark blue sweatshirt, and an undershirt. She particularly noticed that he wore both a
sweatshirt and an undershirt because Group 'never dressed that warmly.'
{¶12} "Group told Mrs. Lozier that he wanted to check the invoices again. Mrs.
Lozier led him to the office. As Mrs. Lozier and Group searched through the invoices,
Robert Lozier came into the office, sat at the desk, and took over counting the money. As
Mrs. Lozier later testified, '[Group] just kept going through [the invoices], and it was like he
just kept staring at them.'
{¶13} "Asking to use the restroom, Group left the office briefly. When he returned,
he had a gun. Group ordered the Loziers to put their hands up and get into the restroom.
Mrs. Lozier told Group to take the money, but Group replied, 'This isn't about money.' He
forced the Loziers into the restroom at gunpoint and made them put their hands against
the wall.
{¶14} "Group stated that 'he was the brother of the girl that was missing.' Mrs.
Lozier interpreted this as a reference to Charity Agee, a murder victim who had last been
-3-
seen at the Downtown Bar on New Year's Eve. The Loziers turned around, but Group
ordered them to face the wall. Then he shot them both. He shot Robert Lozier once in
the head. He shot Sandra Lozier twice: once in the back of the neck and once near her
temple.
{¶15} "Mrs. Lozier lost consciousness. She woke to find her husband dead on the
floor. Mrs. Lozier thought she was dying, so she tried to write 'Ohio Wine' on the floor in
her own blood as a clue for the police. At the time, she did not know Group's name. She
then crawled to the office, where she managed to dial 911. She told the operator that 'the
delivery man from Ohio Wine' had shot and robbed her and her husband. The 911 call
was recorded; a voice timestamp on the tape established that the call was received at
11:05 a.m.
{¶16} "The first Youngstown police officer to arrive at the crime scene was
Detective Sergeant Joseph Datko. Mrs. Lozier told Datko: 'The Ohio Wine man shot me.
The Ohio Wine man. Our delivery man shot us.' The money the Loziers had been
counting before the shootings was gone and so was the box of invoices that Group had
been looking through.
{¶17} "At trial, Group, his family, and a family friend gave a different account of
Group's whereabouts. Group testified that, after driving his foster son to work around
7:30 a.m., he went back to his apartment, gathered some dirty laundry, and went to his
mother's house to wash it, arriving around 9:00 or 9:30 a.m. He testified that he did not
know what time he had left his mother's house. Group's mother, grandmother, and sister
were at Group's mother's house that morning, along with Francisco Morales, a friend of
the Group family. The accounts given by these witnesses generally indicated that Group
had arrived at his mother's house by 9:00 a.m. and had left between 11:30 and 11:40
a.m.
{¶18} "According to Group, after leaving his mother's house, he drove to the
Diamond Tavern in Campbell, Ohio. Group testified that he did not know how long he
was at the tavern but that he had left at noon.
{¶19} "There were about eight customers at the Diamond Tavern. Group bought
-4-
at least two rounds of drinks for all of the customers. A fellow patron thanked Group and
said, 'I'll see you,' but Group replied, 'You aren't going to see me anymore.' He had a
similar exchange with the bartender, Bonnie Donatelli.
{¶20} "Group then drove to the VFW post, which took about five minutes. The
manager, Maria Dutton, was a friend of Group's. According to Dutton, Group arrived
slightly after noon and left at 12:55 p.m. While there, Group bought a round of drinks for
everyone.
{¶21} "Group then drove to a grocery store and telephoned his mother. According
to his mother, she received the call between 1:00 and 1:30 p.m. Mrs. Group told her son
that Youngstown police were looking for him in connection with a shooting downtown.
According to Group, he knew that he had not been downtown, so he surmised that his
mother misunderstood the situation and that the police were actually looking for him
because of some unpaid parking tickets. Group told his mother that he would go to the
police station. Group's mother and sister intercepted him en route and went to the station
with him.
{¶22} "When Group arrived at the police station, he spoke with Captain Robert
Kane, chief of detectives, and Detective Sergeant Daryl Martin. Kane and Martin noticed
what looked like blood on one of Group's tennis shoes. When questioned about it, Group
told Kane that he had cut his finger. He showed Kane the finger, and there was a cut on
it, but it 'looked like a superficial old cut' to Kane.
{¶23} "After brief questioning, Sergeant Martin arrested Group. Group said, 'You
better check out Sam Vona,' a former driver for Ohio Wine. But Mrs. Lozier did not
recognize Vona's picture when Martin later showed it to her.
{¶24} "Group's shoe was sent to Cellmark Diagnostics for DNA testing. An expert
from Cellmark testified that the DNA pattern of the blood on the shoe matched the DNA
pattern of a known sample of Robert Lozier's blood. She further testified that the same
DNA pattern occurs in approximately 1 in 220,000 Caucasians, 1 in 81 million African-
Americans, and 1 in 1.8 million Hispanics. The testing also revealed that Group was
excluded as the source of the blood.
-5-
{¶25} "Lisa Modarelli, an Ohio Wine sales representative, was a friend of Group's.
According to Modarelli, Group confided to her that police had swabbed his hands to test
for gunshot residue and that he was concerned that the test might be positive because he
had been shooting a gun the day before the murder with 'a friend.' Later, Group told
Modarelli that he had been shooting with his foster son, but Group's foster son denied
that he had gone shooting with Group.
{¶26} "Group contacted Bonnie Donatelli from jail and asked her to contact Darryl
Olenick for him. Olenick was a regular at the Diamond Tavern; his hobbies were gun
collecting and target shooting. Group told Donatelli that the police had found gunshot
residue on his hands and asked Donatelli to get Olenick to tell police that he and Group
had been target shooting together the day before the murder. In fact, Olenick and Group
did not associate outside the tavern and had never gone shooting together. Donatelli
promised to 'see what [she] could do,' but instead, she told Sergeant Martin about
Group's request.
{¶27} "Robert Clark was an inmate at the Mahoning County Jail with Group. Clark
mentioned to Group that he 'was familiar with the people in the [Downtown] [B]ar.' Group
asked Clark whether he would 'be willing to help [Group] out.' Group then made up a
story for Clark to tell police. Clark was to say that he had been near the Downtown Bar
on the morning of the murder and had seen a man leave the bar carrying a large beer
bottle box. In return, Group promised to help Clark 'any way he could.' Clark later
received an anonymous $50 contribution to his commissary account.
{¶28} "Adam Perry was another Mahoning County Jail inmate at the time of
Group's pretrial incarceration. Awaiting trial on pending charges, Perry was incarcerated
with Group from December 1997 to May 1998. Perry was released on bond in May 1998.
{¶29} "In a letter postmarked March 20, 1998, before Perry's release, Group
begged for Perry's help with his case:
{¶30} " 'If you do bond out, let me know. There's something you may be able to
do to help me with concerning my case. And I'm telling you, I need all the help I can get.
* * * But seriously man, and this is no joke, I need your help with something if you get out.
-6-
Please don't leave me hanging? We've known each other a long time and if anyone in
your family needs help, you know I'll be there.'
{¶31} "Before Perry was released, Group asked him to firebomb Mrs. Lozier's
house. Group assured Perry that Mrs. Lozier no longer lived there. However, he told
Perry that '[h]e didn't want Sandy Lozier to testify against him,' and he wanted Perry to
'firebomb the lady's house to either scare her from testifying or to lead the police into
investigating others.'
{¶32} "Group told Perry that he had $300,000 hidden away. He offered Perry half
of it in exchange for his help. Group also offered to dissuade a witness from testifying in
Perry's trial.
{¶33} "Group explained to Perry how to make a firebomb by mixing gasoline with
dish soap in a bottle, with a rag in the neck for a fuse. He instructed Perry to light the rag
and throw it through the front window and then to drop a key chain with the name 'Charity'
on it on the front lawn. '[W]hat he wanted to do,' Perry explained, 'was to mislead the
police into thinking that the firebomb and the murder [sic] was all involved as far as
Charity's abduction and murder.'
{¶34} "In a letter postmarked May 6, 1998, Group wrote to Perry: 'So I need to
know on everything if that party is still on where your sister lived. The party has to
happen and happen the way we last talked. I've got to know bro, so I can figure some
other things out in the next few weeks.' Perry understood 'the party' to refer to the
planned firebombing of Mrs. Lozier's house.
{¶35} "Group also corresponded with Perry after Perry's release. State's Exhibit
37, a letter from Group to Perry, contains the following passage: '[Y]ou said you would
take care of that flat tire for me and now that your [sic] out, I hope you do because it's a
matter of life or death (mine)[.]' In the next sentence, Mrs. Lozier's address appears next
to the name 'Agee.'
{¶36} "Group then wrote: 'If you take care of the flat, please take care of it with
that two step plan we talked about. * * * Theres [sic] $300,000.00 in a wall of a certain
house * * *. Half goes to you to do what you like.'
-7-
{¶37} "The second page of State's Exhibit 37 contains Mrs. Lozier's address and
describes the house as ranch-style. It also lists the following items: 'Cheap key chain or
ID bracelet-name (Charity)' and '3 liter wine jug-mix gas & dish soap.'
{¶38} "In June 1998, Perry knocked on Mrs. Lozier's door. When she answered,
he asked her whether a 'Maria something lived there.' Mrs. Lozier said no, and Perry left.
Perry testified that he did not want to hurt Mrs. Lozier and so, after finding her at home,
he took no further action. Perry later told the prosecutor about Group's plan.
{¶39} "Group was indicted for the aggravated murder of Robert Lozier under R.C.
2903.01(B). The aggravated-murder count had two death specifications: R.C.
2929.04(A)(5) (purposeful attempt to kill two persons) and R.C. 2929.04(A)(7) (murder
during aggravated robbery). The indictment also contained a count charging Group with
the attempted aggravated murder of Mrs. Lozier on January 18, 1997, and a count
charging aggravated robbery, R.C. 2911.01(A)(1). Each count had a firearm
specification, R.C. 2941.145(A).
{¶40} "After Perry told the prosecutor about the firebombing plan, a superseding
indictment was filed, containing the above counts plus two new ones: (1) the attempted
aggravated murder of Mrs. Lozier 'on or about or between April 1, 1998 and June 5,
1998,' and (2) one count of intimidating a witness-Mrs. Lozier-'on or about or between
December 1, 1997 and June 5, 1998.'
{¶41} "Group was convicted on all counts and specifications. After a penalty
hearing, he was sentenced to death." State v. Group, 98 Ohio St.3d 248, 2002-Ohio-
7247, 781 N.E.2d 980, at ¶1-38.
Procedural History
{¶42} The Ohio Supreme Court affirmed Group's convictions and sentence on
December 2, 2002. Id. While his direct appeal was pending, Group filed a timely petition
for post-conviction relief with the Mahoning County Court of Common Pleas on March 30,
1999.
{¶43} Notably, there was a substantial delay in appointing counsel for Group's
post-conviction matter. The transcript of proceedings of Group's direct appeal to the Ohio
-8-
Supreme Court was filed on September 22, 1999, thus triggering the beginning of the
180-day time period within which to file a petition for post-conviction relief. On December
9, 1999, Group filed a pro-se motion for appointment of counsel which the trial court
overruled on December 15, 1999. This was an error by the original judge (Cronin) on the
case as R.C. 2953.21(I)(1) provides:
{¶44} "If a person sentenced to death intends to file a petition under this section,
the court shall appoint counsel to represent the person upon a finding that the person is
indigent and that the person either accepts the appointment of counsel or is unable to
make a competent decision whether to accept or reject the appointment of counsel. The
court may decline to appoint counsel for the person only upon a finding, after a hearing if
necessary, that the person rejects the appointment of counsel and understands the legal
consequences of that decision or upon a finding that the person is not indigent."
{¶45} Group refiled his pro-se motion for appointment of counsel on December
22, 1999, and it was again overruled by Judge Cronin. Attorney Renee Green was
eventually contacted by the Ohio Public Defender Commission and filed the post-
conviction petition on Group's behalf. Because of the delay in appointing counsel,
Attorney Green had less than 60 days to prepare the petition.
{¶46} After filing the petition, Attorney Green was permitted to withdraw as
counsel on February 27, 2002 and substitute counsel was appointed by the trial court.
On October 18, 2002, the State filed a motion for summary judgment.
{¶47} On February 26, 2003, the Ohio Supreme Court ordered Group's death
sentence stayed pending the exhaustion of all proceedings for post-conviction relief
before courts of this state, including appeals.
{¶48} The case then lingered in the trial court for many years. Group filed several
motions to amend or supplement his petition, but did not immediately do so. Finally, on
June 7, 2007, Group filed a brief in opposition to the State's motion for summary
judgment. On June 13, 2007, the State filed a proposed entry granting its summary
judgment motion. Just three days before her retirement from the bench, Judge Cronin
signed the proposed entry granting summary judgment, which was time-stamped July 3,
-9-
2007. Notably, however, that entry contained no findings of fact or conclusions of law.
{¶49} Group made several requests for findings of fact and conclusions of law
which were unresolved by the trial court. Group filed a motion to have the case
reassigned to a new judge on March 3, 2008.
{¶50} On November 12, 2008, visiting Judge Curran was appointed by the Chief
Justice of the Ohio Supreme Court to preside over the case. Group filed a pro-se motion
for dismissal of his post-conviction counsel (Attorney John Laczko), and for appointment
of new counsel. Instead of dismissing Attorney Laczko, the trial court added Attorney
John Juhasz as co-counsel.
{¶51} On February 2, 2009, Group filed a motion to vacate the trial court's earlier
grant of summary judgment and motion for leave to amend his petition.
{¶52} The court held a status conference on February 5, 2009, which was
attended by Group, his attorneys, and the prosecutor. The court ultimately granted
Group's motion to amend his petition, and thus set aside its previous July 3, 2007 order
granting summary judgment.
{¶53} In his amended petition, filed on June 19, 2009, Group asserted 13 grounds
for relief, 12 of which alleged ineffective assistance of trial counsel. Attached to the
amended petition were various exhibits, including affidavits from Group, his mother, Ruth,
and one of his appellate attorneys, Annette Powers. He also attached several other
documents including: delivery invoices from the Ohio Wine Company; DVDs with
television and news stories; newspaper articles, gunshot residue and other tests result
reports by BCI, and several unauthenticated documents and photographs, including
photographs of his shoes, which were purportedly taken by post-conviction counsel years
after trial. The State filed a motion for summary judgment. Group filed a brief in
opposition, and moved the trial court to conduct discovery, or in the alternative for an
appointment of an expert witness.
{¶54} On December 31, 2009, the trial court issued an Opinion and Judgment
Entry granting summary judgment in favor of the State and against Group on his petition
for post-conviction relief, and, in the alternative, dismissing the petition without a hearing.
- 10 -
This opinion included detailed findings of fact and conclusions of law, and the trial court
decided to treat the amended petition as an original petition for post-conviction relief, not
a successor, since Group's timeline for filing the original petition was cut short due to the
delay in appointing counsel. In that entry, the court also overruled Group's request to
conduct discovery and for appointment of an expert. Group filed a timely notice of appeal
from that judgment on January 29, 2010.
Failure to Permit Discovery
{¶55} In his second of two assignments of error, which are discussed in reverse
order for ease of analysis, Group asserts:
{¶56} "The Trial Court Erred and Abused its Discretion in Denying the Petition
Without Conducting an Evidentiary Hearing or Permitting Discovery, thus depriving
Appellant of liberties secured by U.S. CONST. amend. XIV, and OHIO CONST. art. I §§1, 2,
10, and 16, including meaningful access to the courts of this State.".
{¶57} "The long-standing rule in Ohio is that a convicted criminal defendant has
no right to additional or new discovery, whether under Crim.R. 16 or any other rule, during
postconviction relief proceedings." State v. West, 7th Dist. No. 07 JE 26, 2009-Ohio-
3347, at ¶15, citing State ex rel. Love v. Cuyahoga Cty. Prosecutor's Office (1999), 87
Ohio St.3d 158, 159, 718 N.E.2d 426 (per curiam) certiorari denied (2000), 529 U.S.
1116, 120 S.Ct. 1977, 146 L.Ed.2d 806; and State v. Gulertekin (June 8, 2000), 10th Dist.
No. 99AP-900 (there is no right to discovery of evidence outside the record in
postconviction proceedings). See, also, State v. Ahmed, 7th Dist. No. 05-BE-15, 2006-
Ohio-7069, at ¶38; State v. Twyford (March 19, 2001), 7th Dist. No. 98-JE-56 (both
reaching the same conclusion.) The civil rules governing discovery likewise do not apply
in a post-conviction relief proceeding. West at ¶16.
{¶58} Group maintains, however, that discovery is necessary in a post-conviction
matter to allow for any meaningful review. He insists that discovery is especially essential
for post-conviction petitions that raise ineffective assistance of trial counsel claims, since
it is unlikely that trial counsel would willingly provide an affidavit admitting his or her
ineffectiveness. Similarly, he claims it is obtuse to expect that a physician would search
- 11 -
through and provide old records absent a court order to do so.
{¶59} In support of his argument regarding discovery, Group cites to a recent
concurrence by Judge Belfance of the Ninth District in State v. Craig, 9th Dist. No. 24580,
2010-Ohio-1169:
{¶60} "In this case, this Court has properly cited to precedent holding that a
person has no right to discovery in post-conviction proceedings and has no right to funds
for an expert witness. However, the fact that a person convicted of a crime may not have
a constitutional right to these remedies begs the question. There may be some cases
where access to such remedies is compelling and indeed can implicate other
constitutional concerns. I am troubled by the sweeping language of judicial decisions that
suggest that these remedies are foreclosed as a possibility in every case. The simple fact
that there are recent examples of wrongful convictions throughout this state suggests not
only the necessity for postconviction relief but the need for access to the means of
pursuing such relief. The precedent cited by this Court's opinion broadly pronounces that
a criminal defendant has no rights and by implication no access whatsoever to these
remedies. Thus, relief in the exceptional case may be precluded, notwithstanding the
presence of clearly compelling and meritorious reasons to grant access to discovery or an
expert.
{¶61} "I concur with the result reached by the Court in this case. I understand that
the interests in finality of judgments and protecting scarce judicial resources are central
concerns in considering postconviction relief. However, I hope we do not lose sight of the
important rights that should be protected in the postconviction relief process." Id. at ¶47-
48 (Belfance, J., concurring.)
{¶62} We agree with the sentiments expressed in this concurrence and hold that
discovery should be permitted in certain exceptional post-conviction cases. Although a
post-conviction matter is a collateral civil proceeding, we must take care not to view the
process so myopically as to completely lose sight of a defendant’s rights. We find
support for this conclusion from legal trends in other areas of Ohio law concerning this
civil-criminal dichotomy; for example, within the evolution of Supreme Court jurisprudence
- 12 -
regarding sex offender notification and registration (SORN) laws. See State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, at ¶16 (breaking from prior case
law to conclude that the SORN statutory scheme had lost its civil/remedial character and
become exclusively criminal/punitive in nature.)
{¶63} That said, we are constrained, as an intermediate court, from straying from
established binding precedent cited above. We do not shirk our Constitutional role as the
guardians of citizens’ constitutional rights, even those who have been convicted of the
most heinous crimes, and reject any statutory provision which, on its face or as applied,
violates constitutional rights. But the separate powers of the judicial branch are tempered
by the fact that the Constitution has delegated the separate power of primary policy
making and crafting statutes to the legislative branch. Thus, any sweeping changes to
Ohio's post-conviction system must be left to the legislature, not the courts.
{¶64} The situation before us does not present “the exceptional case” that
warrants discovery. For example, although Group maintains that discovery was
necessary to obtain medical records, Group had other avenues available to him to pursue
those documents, as discussed in more detail below in the context of Group’s fourth
ground for relief, which alleges ineffective assistance of counsel for failing to present
medical testimony about Group’s alleged inability to use his right hand. First, Group could
have executed a medical authorization directing his physicians, one of whom did not have
his medical license at the time of trial, to provide current post-conviction counsel with his
medical records. Second, Group’s mother alleged in her affidavits that she had given trial
counsel those records. Thus, Group had two ways to obtain his medical records, which
could have been attached to his post-conviction petition, along with an affidavit from any
physician, who could opine on whether or not the damage to Group’s right hand would
affect his ability to fire a weapon with both hands.
{¶65} Further, although Group contends it is unlikely that trial counsel would
willingly provide an affidavit admitting his or her ineffectiveness, this is not outside the
realm of possibility. See, e.g., State v. Jackson (1980), 64 Ohio St.2d 107, 110, 18
O.O.3d 348, 413 N.E.2d 819 (where trial counsel filed affidavit claiming he had
- 13 -
insufficient time to provide the defendant effective counsel.) Moreover, in order to be
entitled to use discovery tools to obtain information from trial counsel, a petitioner must, at
minimum, provide more than conclusory allegations regarding trial counsel’s
ineffectiveness, which Group has not done here.
{¶66} Accordingly, for all of the above reasons Group's discovery argument is
meritless.
Denial of Post-Conviction Relief
{¶67} In his first assignment of error, Group asserts:
{¶68} "The Trial Court Erred and Abused its Discretion by Granting Summary
Judgment to the State, and Dismissing Appellant's Petition for Post-Conviction Relief."
{¶69} Pursuant to R.C. 2953.21(A)(1)(a), a person convicted of a criminal offense
who asserts a violation of his or her constitutional rights may petition the court that
imposed the sentence for appropriate relief. A post-conviction petition is not an appeal of
the underlying matter; instead, it is a civil action that collaterally attacks a criminal
judgment. State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67. State post-
conviction review is not a constitutionally protected right, even in capital cases, thus, the
petitioner only receives those rights established by statute. Id.
{¶70} To prevail on a claim for post-conviction relief, the petitioner must
demonstrate a denial or infringement of his rights in the proceedings resulting in his
conviction that rendered the conviction void or voidable under the Ohio or United States
Constitutions. R.C. 2953.21(A)(1). A post-conviction petitioner bears the initial burden of
demonstrating, via the petition, any supporting affidavits, and the trial record, that there
are "substantive grounds for relief." R.C. 2953.21(C), State v. Jackson (1980), 64 Ohio
St.2d 107, 111, 413 N.E.2d 819. A post-conviction claim is subject to dismissal without a
hearing if the petitioner fails to support the claim with evidentiary material setting forth
sufficient operative facts to demonstrate substantive grounds for relief. R.C. 2953.21(C)
and (E). Hence, a criminal defendant challenging his conviction via a petition for post-
conviction relief is not automatically entitled to a hearing. Id., see, also, State v. Cole
(1982), 2 Ohio St.3d 112, 113, 443 N.E.2d 169.
- 14 -
{¶71} The purpose of the post-conviction relief statute is to provide criminal
defendants with a clearly defined method by which they may raise claims of denial of
federal rights. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d 905, citing
Young v. Ragen (1949), 337 U.S. 235, 239, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333.
Conversely, a post-conviction petition is not a forum to relitigate issues that could have
been raised on direct appeal. See Steffen, 70 Ohio St.3d at 410; Cole, 2 Ohio St.3d at
113. Accordingly, many claims are barred by res judicata.
{¶72} "Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising or resurrecting issues
in collateral review that could have been raised and fully litigated on direct appeal. State
v. Reynolds (1997), 79 Ohio St.3d 158, 161, 679 N.E.2d 1131; State v. Perry (1967), 10
Ohio St.2d 175, 226 N.E.2d 104, O.O.2d 189, 10 Ohio St.2d 175, 226 N.E.2d 104,
paragraph nine of the syllabus. Where, however, an alleged constitutional error is
supported by evidence that is de hors the record, res judicata will not bar the claim
because it would have been impossible to fully litigate the claim on direct appeal. State v.
Smith (1985), 125 Ohio App.3d 342, 348, 708 N.E.2d 739." State v. Green, 7th Dist. No.
02 CA 35, 2003-Ohio-5142, at ¶21.
{¶73} “Evidence outside the record by itself, however, will not guarantee a right to
an evidentiary hearing. To overcome the res judicata bar, the evidence must show that
the petitioner could not have appealed the constitutional claim based on the information in
the original trial record." State v. Combs (1994), 100 Ohio App.3d 90, 98, 652 N.E.2d
205, citing Cole, 2 Ohio St.3d at syllabus.
{¶74} Further, evidence de hors the record must meet a minimum level of cogency
in support of the claim so as to require a hearing. Combs at 98, citing Cole, 3 Ohio St.3d
at 115. Accordingly, although in "reviewing a petition for postconviction relief * * *, a trial
court should give due deference to affidavits sworn to under oath and filed in support of
the petition, [it] may, in the sound exercise of discretion, judge the credibility of the
affidavits in determining whether to accept the affidavits as true statements of fact." State
v. Calhoun (1999), 86 Ohio St.3d 279, 714 N.E.2d 905, syllabus. Thus, "[t]he trial court
- 15 -
may, under appropriate circumstances in postconviction relief proceedings, deem affidavit
testimony to lack credibility without first observing or examining the affiant. That
conclusion is supported by common sense, the interests of eliminating delay and
unnecessary expense, and furthering the expeditious administration of justice." Id. at
284.
{¶75} In assessing the credibility of such affidavits, the trial court should consider
all relevant factors including: "(1) whether the judge reviewing the postconviction relief
petition also presided at the trial, (2) whether multiple affidavits contain nearly identical
language, or otherwise appear to have been drafted by the same person, (3) whether the
affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner,
or otherwise interested in the success of the petitioner's efforts, and (5) whether the
affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may
find sworn testimony in an affidavit to be contradicted by evidence in the record by the
same witness, or to be internally inconsistent, thereby weakening the credibility of that
testimony.
{¶76} "Depending on the entire record, one or more of these or other factors may
be sufficient to justify the conclusion that an affidavit asserting information outside the
record lacks credibility. Such a decision should be within the discretion of the trial court."
Id. at 284-285.
{¶77} And even when "the evidence passes this minimum threshold of showing a
constitutional claim that could not have been raised on direct appeal, the court may still
deny a hearing if it finds that based on all the files and records, there are no substantive
grounds for relief. R.C. 2953.21(C). For example, a person other than the petitioner may
submit an affidavit raising a claim of ineffective assistance of trial counsel based on
evidence not presented at trial. If, however, that evidence is cumulative of, or alternative
to, material presented at trial, the court may properly deny a hearing." Combs, at 98,
citing State v. Powell (1993), 90 Ohio App.3d 260, 270, 629 N.E.2d 13; State v. Post
(1987), 32 Ohio St.3d 380, 387-389, 513 N.E.2d 754.
{¶78} Here, Group's post-conviction petition is largely based upon claims of
- 16 -
ineffective assistance of trial counsel. In order to demonstrate ineffective assistance of
counsel, a defendant must show that counsel's performance was deficient and that the
deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674;
State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶79} The petitioner bears the burden of proof in proving ineffectiveness because
in Ohio, a properly licensed attorney is presumed competent. Calhoun, 86 Ohio St.3d at
289. The ABA Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases are "only guides" with regard to counsel's effectiveness. Bobby v.
Van Hook (2009), 130 S.Ct. 13, 17, 175 L.Ed.2d 255. "* * * The Federal Constitution
imposes one general requirement: that counsel make objectively reasonable choices.'"
Id., quoting, Roe v. Flores-Ortega (2000), 528 U.S. 470, 479, 120 S.Ct. 1029, 145
L.Ed.2d 985.
{¶80} In order to overcome the presumption of counsel's competence, the
petitioner must submit sufficient operative facts or evidentiary documents demonstrating
that the petitioner was prejudiced by the ineffective assistance. State v. Davis (1999),
133 Ohio App.3d 511, 516, 728 N.E.2d 1111. To demonstrate prejudice, "[t]he defendant
must show that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at
694. It is not unreasonable to require that a petitioner demonstrate prejudice before an
evidentiary hearing is granted. Calhoun, 86 Ohio St.3d at 283.
{¶81} With regard to the proper standard of review that a court should apply when
reviewing a trial court's dismissal of a post-conviction petition without a hearing. we
recognize there is a split among Ohio appellate districts. See State v. Hicks, 4th Dist. No.
09CA15, 2010-Ohio-89, at ¶9-11 (citing cases.) Following our own precedent, which is in
line with the majority of Ohio’s appellate districts, we will apply an abuse of discretion
standard of review. West, supra, at ¶22, 28.
First Ground for Relief
- 17 -
{¶82} In his first ground for relief, Group alleges that trial counsel was ineffective
for failing to properly prepare for a pretrial hearing on a motion to disqualify the Mahoning
County prosecutor's office. The basis of the motion was the prosecutor's interception of
Group's outgoing mail from Mahoning County Jail while he awaited trial. The trial court
concluded that this claim is barred by res judicata, or in the alternative, that Group failed
to demonstrate actual prejudice from the alleged error. We agree. Group's claim is
based in large part on the record; he cites to several pages of the trial transcript to
support his argument that counsel was not properly prepared and was admonished by the
court for that lack of preparation. Group lists the following as de hors the record support
for this claim: (1) an affidavit of attorney-expert Annette Powers; (2) his own affidavit.
{¶83} However, Group's affidavit, which is offered in support of other claims as
well, offers little, if anything, to support this particular claim. At paragraph 47, Group
avers: "During the pretrial preparation portion of the case, my defense lawyers told me
that they did not want to vigorously litigate pretrial motions for fear of angering the judge
and the prosecutors." Even ignoring the fact that Group's statement is based upon
hearsay, and obviously self-serving, it lends no additional outside support to his claim that
trial counsel was ineffective for failing to adequately prepare and argue a motion to
disqualify the prosecutor's office. Similarly, Group's statement at paragraph 59 of his
affidavit: that "[t]he trial record reflects [trial counsel Andrew Love's] lack of preparedness
to vigorously defend my case," offers no de hors the record support.
{¶84} In Attorney Powers' affidavit, she presents a comprehensive recitation of
death penalty law in Ohio. She then concludes that Group's trial attorneys were
ineffective, stating broadly:
{¶85} "Upon review of the facts of the Scott Group case, it is my opinion that Mr.
Group's counsel provided ineffective assistance of counsel during voir dire and at the trial
and penalty phases of Group's capital trial. As a result of his counsel's ineffectiveness,
Mr. Group was prejudiced."
{¶86} Notably, nothing in Attorney Powers' affidavit provides any specific criticism
regarding trial counsel's performance during the pretrial hearing at issue in the first
- 18 -
ground for relief. Moreover, a number of Ohio appellate districts have concluded that an
affidavit by a legal expert does not constitute cogent evidence de hors the record so as to
overcome res judicata. State v. Hill (Nov. 21, 1997), 1st Dist. No. C961052 ("Attorney's
affidavits explaining prevailing norms do not constitute evidence dehors the record and
are akin to a notarized legal argument."); State v. Davis, 5th Dist. No. 2008-CA-16, 2008-
Ohio-6841, at ¶161-162 (quoting Hill and advocating that instead of a countervailing
attorney opinion, a more objective test for attorney ineffectiveness is that set forth in
Strickland); State v. Franklin, 2d Dist No. 19041, 2002-Ohio-2370, at ¶12 ("the affidavit of
an attorney giving an opinion based on facts in the record does not constitute evidence
outside the record, but merely legal argument[.]"). Accord State v. Jones, 11th Dist. No.
2000-A-0083, 2002-Ohio-2074; State v. Scudder (1998), 131 Ohio App.3d 470, 722
N.E.2d 1054 (Tenth District); State v. Lawson (1995), 103 Ohio App.3d 307, 659 N.E.2d
362.
{¶87} And even if Powers' affidavit could be construed as cogent evidence de hors
the record, its contents do not demonstrate why trial counsel's perceived deficient
performance could not have been brought as an ineffective assistance of counsel claim
on direct appeal. See Combs, supra, at 99-100. In fact, Powers was one of Group's
attorneys for his direct appeal to the Ohio Supreme Court.
{¶88} And finally, even assuming arguendo that this claim is not barred by res
judicata, Group cannot show prejudice. Group cannot show—even assuming counsel
was ineffective—that there is a reasonable probability that the outcome of the guilt phase
of trial would have been any different. As the court below aptly noted: "[t]he evidence of
the guilt of Scott Group is overwhelmingly persuasive—a constellation of both direct and
circumstantial evidence pointing convincingly and powerfully to Scott Group as the
perpetrator, one who shot his victims in cold blood, and then later—from his jail cell—
attempted to hire a hit man in order to eliminate and thereby silence the sole survivor."
This evidence includes: Mrs. Lozier's eyewitness identification of Group, which was
reliable considering that Group, as her wine deliveryman, was no stranger to her; blood
on Group's shoe that matched the DNA of Mr. Lozier, the murder victim; the fact that,
- 19 -
while in prison, Group tried to enlist several others to falsify evidence and to eliminate or
intimidate Mrs. Lozier; and the fact that the box of Ohio Wine invoices was missing from
the Downtown Bar after the shootings.
{¶89} Accordingly, for all of the above reasons, the trial court correctly dismissed
Group's first claim without holding a hearing.
Second Ground for Relief
{¶90} In his second ground for relief, Group alleges that trial counsel was
ineffective for failing to properly argue a pretrial motion for a gag order. He notes that trial
counsel failed to watch a news reel video before presenting it to the court in support of
the motion, and that the trial court admonished counsel for the lack of preparation. Group
cites directly to the trial court record in support of this claim, and also relies on Powers'
affidavit.
{¶91} The trial court correctly concluded that the affidavit supplied no apparent
outside evidence in support of this claim and that it is therefore barred by res judicata.
And moreover, as discussed, even if it were not res judicata, Group cannot demonstrate
prejudice, especially considering that the trial court ultimately granted the defense's
motion for a gag order. Accordingly, the trial court correctly dismissed Group's second
claim without holding a hearing.
Third Ground for Relief
{¶92} In his third ground for relief, Group argues that trial counsel was ineffective
for “misleading” the jury, during opening statements, into believing that defense would
present a DNA expert at trial. Group specifically asserts: "The failure to provide the
promised DNA expert caused the defense to lose all credibility because the DNA results
were material and outcome determinative. The State's DNA results, if scientifically valid,
place Petitioner at the scene of Mr. Lozier's murder." Again, Group cites directly to the
record in support of this claim. He also cites to Powers' affidavit. For all of the
aforementioned reasons, the trial court correctly concluded this claim is barred by res
judicata. And moreover, as discussed, even if it were not res judicata, Group cannot
demonstrate prejudice. Accordingly, the trial court correctly dismissed Group's third claim
- 20 -
without holding a hearing.
Fourth Ground for Relief
{¶93} In his fourth ground for relief, Group asserts that trial counsel was ineffective
for failing to obtain and present an expert witness regarding the alleged physical
impairment of Group's right hand. Group's trial counsel did raise the issue of Group's
injury to his right hand and the corresponding defense that Group was physically unable
to fire a gun with that hand. Group testified that he had been shot in the right hand during
the 1980's, suffered nerve damage, underwent several surgeries and lost function in that
hand. Group's defense team did not present any experts or documentary evidence to
support this, however, which is the crux of this ineffective assistance of counsel claim.
{¶94} In support of this claim, Group presented the affidavit of his mother, Ruth
Group, in which she asserted that Group's trial defense team was informed that as a
result of the past injuries Group was allegedly unable to hold a gun and fire it. Ruth
further stated that her son's right hand "could be used for 'helping' to hold and lift things,
but he had no strength in that hand for gripping" because of the injury. Ruth claimed she
delivered Group's medical records to trial counsel but that they were not presented to the
jury. She also stated that one of her son's former physicians was subpoenaed by the
defense, but did not end up testifying, because, as the defense team told her, the man no
longer held a medical license.
{¶95} The trial court concluded that this claim was barred by res judicata, or
alternatively, that Group could not show prejudice. The court could have reasonably
concluded that Ruth Group was not credible, and that the claim was therefore barred by
res judicata. More importantly, Group cannot demonstrate prejudice. Even if the defense
team had presented an expert who opined that Group could not have fired a weapon with
his right hand, there is no reasonable probability that the outcome would have been any
different, for the reasons outlined above, and additionally considering that Mrs. Lozier
testified that Group held the gun with both hands:
{¶96} "Q. Would you describe or demonstrate again how the assailant held the
gun?
- 21 -
{¶97} "A. I know it was with both hands.
{¶98} "Q. Constantly?
{¶99} "A. Yes, from what I can remember."
{¶100} Accordingly, the trial court correctly dismissed Group's fourth claim without
holding a hearing.
Fifth Ground for Relief
{¶101} In his fifth ground for relief, Group challenges the trial court's use of an
anonymous jury system. The trial court concluded that this claim was barred by res
judicata, and that regardless it was meritless. This claim is barred by res judicata: it is
based entirely on the record and could have been raised as an issue on direct appeal but
was not. The only evidence presented in support of this claim was the Powers Affidavit,
which, as discussed, does not constitute cogent evidence de hors the record.
{¶102} Further, it is unclear from the record whether the identities of the
venirepersons were truly kept from defense counsel. During trial the court did state to the
jury:
{¶103} "Ladies and gentleman, as I've indicated, we are going to be referring to
you not by name, but as a number. Please do not take that personally, but it will be
easier for us to follow along in responding to you."
{¶104} However, the record reflects that, after trial, on May 18, 2000, Group, via
Attorney Renee Green filed a motion to unseal the list of juror names. The State
responded that it had no objection to the unsealing of the juror's names. It asserted,
however, that both defense (trial) counsel and the State had possession of the lists
containing the names and addresses of the jurors and that both sides were permitted to
inspect the verdict forms signed by all twelve jurors. The State claimed the lists were kept
only from the public, and reasonably so, considering that Group had attempted to have
the sole identification witness killed.
{¶105} The very next entry in the docket, dated September 28, 2000, seems to
resolve the issue. It states:
{¶106} "PER SUPREME COURT OF OHIO, COPIES OF SEALED DOCUMENTS
- 22 -
SENT TO ATTORNEY RENEE GREEN [RM]"
{¶107} From this entry we conclude that the juror names and addresses were
provided to Group's first post-conviction attorney. But regardless, even if there had been
a truly anonymous jury, this claim could have been raised on direct appeal and is res
judicata. Accordingly, the trial court correctly dismissed Group's fifth claim without holding
a hearing.
Sixth Ground for Relief
{¶108} In his sixth ground for relief, Group asserts that trial counsel was
ineffective for failing to adequately prepare Group for cross-examination, which resulted in
Group opening the door to impeachment by the State when he falsely denied a past
robbery conviction. In support of this claim, Group cites to the trial record itself and
Powers' affidavit. For all of the reasons previously discussed, the trial court correctly
concluded this claim was not supported by evidence de hors the record and was therefore
barred by res judicata. And moreover, as discussed, even if it were not res judicata,
Group cannot demonstrate prejudice. Accordingly, the trial court correctly dismissed
Group's sixth claim without holding a hearing.
Seventh Ground for Relief
{¶109} In his seventh ground for relief, Group assets that trial counsel was
ineffective for opening the door to Group's testimony about the letters to Adam Perry, the
jail-mate Group solicited to firebomb Mrs. Lozier's house. In this claim, Group also
asserts that trial counsel was ineffective for failing to object when the prosecutor
questioned Group about his incriminating letters to Adam Perry. The trial court correctly
concluded that this claim was barred by res judicata. In support of this claim, Group cites
to the trial record itself and Powers' affidavit. And moreover, as discussed, even if it were
not res judicata, Group cannot demonstrate prejudice. Accordingly, the trial court
correctly dismissed Group's seventh claim without holding a hearing.
Eighth Ground for Relief
{¶110} In his eighth ground for relief, Group asserts that trial counsel was
ineffective during the penalty phase of trial; he contends that mitigation was incongruent,
- 23 -
inconsistent and incomplete. This claim is also barred by res judicata. The only de hors
the record evidence presented by Group in support of this claim is Powers' affidavit. And
as the trial court noted, Group's heavy reliance on the ABA Standards is misplaced as
those standards are not dispositive indicators of constitutionally effective assistance of
counsel. See Bobby, supra, 130 S.Ct. at 17. Accordingly, the trial court correctly
dismissed Group's eighth claim without holding a hearing.
Ninth Ground for Relief
{¶111} In his ninth ground for relief, Group asserts that trial counsel was
ineffective for failing to voir dire the jury effectively regarding mitigating factors and for
failing to rehabilitate jurors. Again, Group cites extensively to the record, and presents
only Powers' affidavit as support outside the record. The trial court correctly concluded
that this claim is barred by res judicata. Accordingly, the trial court correctly dismissed
Group's ninth claim without holding a hearing.
Tenth Ground for Relief
{¶112} In his tenth ground for relief, Group asserts that trial counsel was
ineffective for failing to file a motion for change of venue and to voir dire the jury
effectively regarding pretrial publicity. In support of this claim Group attached several
exhibits in support of this claim, namely two DVD's of news reports and several
newspaper articles.
{¶113} The State argues that many of the news accounts occurred during the
course of trial, not before, and thus are irrelevant to Group's claim that trial counsel was
ineffective for failing to file a pretrial change of venue motion. With regard to the written
news articles, the State is correct. One very brief article notes Group's arrest and another
discusses the interception of his mail while he was jailed pending trial. Two articles
concern actual trial coverage, and the remaining two concern police investigations about
whether Group was connected to a separate murder case. With regard to the DVD's,
although the State discusses their content in its brief, our examination of the discs
contained in the trial court record reveals they have no data written on them.
{¶114} Looking then to the exhibits that we can review on appeal, i.e., the written
- 24 -
news articles, Group cannot demonstrate prejudice.
{¶115} A motion for change of venue is governed by Crim.R. 18(B), and is left to
the discretion of the trial court. Crim.R. 18(B) provides:
{¶116} "Upon the motion of any party or upon its own motion the court may
transfer an action to any court having jurisdiction of the subject matter outside the county
in which trial would otherwise be held, when it appears that a fair and impartial trial cannot
be held in the court in which the action is pending."
{¶117} "The mere existence of pretrial publicity is not a basis for granting a
change of venue. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d
1168, at ¶117. By itself, even pervasive adverse pretrial publicity "does not inevitably
lead to an unfair trial." State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911
N.E.2d 242, at ¶58, quoting Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 554,
96 S.Ct. 2791, 49 L.Ed.2d 683. Rather, a defendant must show an atmosphere that is
completely corrupted by press coverage. See, e.g., Sheppard v. Maxwell, 384 U.S. 333,
86 S.Ct. 1507, 16 L.Ed.2d 600. The exhibits presented do not reflect such an
atmosphere and thus Group has not demonstrated how trial counsel's failure to file a
change of motion venue prejudiced him.
{¶118} Moreover, the Ohio Supreme Court has repeatedly held that a "careful and
searching voir dire provides the best test of whether prejudicial pretrial publicity has
prevented obtaining a fair and impartial jury from the locality." State v. Yarbrough, 104
Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845 at ¶61, quoting State v. Landrum (1990),
53 Ohio St.3d 107, 117, 559 N.E.2d 710. Counsel's voir dire of the jury in this case is
clearly within the record, and any deficiency therein should have been raised on direct
appeal. Accordingly, the trial court correctly dismissed Group's tenth claim without
holding a hearing.
Eleventh Ground for Relief
{¶119} In his eleventh ground for relief, Group asserts that trial counsel was
ineffective for failing to adequately cross-examine several witnesses. He claims that
counsel failed to highlight inconsistencies in Mrs. Lozier's testimony and the medical
- 25 -
records regarding whether she lost consciousness during the crime. In his petition, Group
states that Mrs. Lozier's medical records would be filed separately, under seal, in support
of this claim. However, the docket reveals no such records were ever filed. Group also
attached several unauthenticated photographs of Group, along with a police report
containing the description of the assailant that Mrs. Lozier gave to the police from the
hospital in an apparent attempt to demonstrate that Mrs. Lozier's description of Group did
not match his actual appearance and that counsel was ineffective for failing to highlight
this inconsistency. The photographs do not constitute cogent evidence, and even if they
did, Group cannot show how counsel's performance prejudiced him. Even if counsel had
highlighted the perceived inconsistencies, Mrs. Lozier was positive in her identification of
Group.
{¶120} Under this ground for relief, Group also claims trial counsel was ineffective
because she was unprepared to cross-examine the State's DNA expert. In support of this
claim, Group offered Powers' affidavit and the affidavit of Group's mother, Ruth. As
discussed, Powers' affidavit does not constitute cogent evidence de hors the record. And
Ruth Group's affidavit offers little, if any, support for this claim.
{¶121} Specifically, Mrs. Group averred:
{¶122} "During my son's trial, the night before Ms. Yost, one of my son's trial
lawyer's, was to cross-examine the State's DNA expert at trial, I was on the telephone
with her.
{¶123} "During that call, Ms. Yost told me she had to excuse herself and get off
the telephone so that she could read a book to prepare to cross-examine the DNA expert
witness and evidence."
{¶124} Based on the factors espoused by the Ohio Supreme Court in Calhoun,
supra, the trial court reasonably determined that Ruth Group lacked credibility, i.e., the
affidavit relies on hearsay, and Mrs. Group clearly has an interest in the outcome of the
case. Further, even taking these statements as true, they do not support a conclusion
that trial counsel was ineffective. If anything, they demonstrate that counsel took
reasonable efforts to prepare for trial. That is what the Ohio Supreme Court concluded
- 26 -
when it disposed of an identical ineffective assistance of counsel claim on direct appeal:
{¶125} "Group also suggests that his counsel did not prepare adequately before
cross-examining the state's DNA expert witness. However, the record indicates that
defense counsel researched the subject of DNA thoroughly before cross-examining the
Cellmark expert. Group does not identify any mistakes made by defense counsel as a
result of allegedly inadequate preparation." Group, supra at ¶145.
{¶126} The trial court correctly concluded this issue was barred by res judicata.
Accordingly, the trial court correctly dismissed Group's eleventh claim without holding a
hearing.
Twelfth Ground for Relief
{¶127} In his twelfth ground for relief, Group asserts that trial counsel was
ineffective for failing to properly present witness testimony regarding the negative gunshot
residue tests. The trial court concluded that this claim was barred by res judicata.
{¶128} Indeed in its Opinion, the Ohio Supreme Court addressed this claim:
{¶129} "Group further contends that counsel did not employ ‘a scientific
investigation unit’ to show that Group did not fire a gun on January 18, 1997. But Group
fails to show either prejudice or deficient performance. As to prejudice, there is no way
for us to tell whether the results of such testing would have helped Group's case. As to
performance, counsel's performance cannot be characterized as deficient, because the
record indicates that no valid test was possible.
{¶130} "Officer Lou Ciavarella testified that he performed a gunshot residue test
on Group's hands on the afternoon of January 18, 1997. However, Ciavarella's test took
place at 3:25 p.m., more than four hours after the shooting. According to Ciavarella's
unchallenged testimony, the Bureau of Criminal Identification and Investigation
recommends that any gunshot residue test be done within two hours after a gun is fired
because the residue tends to rub off a person's hands over time. Thus, a negative test
would have been devoid of probative value.” Group at ¶136-137.
{¶131} In support of this claim, Group did supply a report from BCI indicating that
gunshot residue tests performed on Group were negative, and another which revealed
- 27 -
that no blood was found on Group's clothing. However, this evidence is immaterial; it was
available at the time of trial and does not lend any new support to the claim that counsel
was ineffective. Thus, the trial court correctly concluded this claim was barred by res
judicata and correctly dismissed it without holding a hearing.
Thirteenth Ground for Relief
{¶132} Finally, in his thirteenth ground for relief, Group asserts that trial counsel
was ineffective for failing to prepare alibi witnesses, and by failing to argue that another
person was responsible for the crimes. With regard to the first assertion, Group presents
his mother's affidavit, in which she states:
{¶133} "The witness preparation sessions were more like social gatherings than
trial preparation sessions. Neither I nor any of the witnesses whom I was able to observe
were prepared by sitting us down and asking us questions that we might expect from my
son's lawyers and also from the prosecutors. Instead, there was a general group
discussion with refreshments being served."
{¶134} The trial court reasonably concluded that this did not constitute cogent
evidence de hors the record. Further, the trial court noted that the alibi defense was
addressed by the Supreme Court on direct appeal, and that the Court concluded that
such defense did not present an exceptional case to outweigh the evidence of guilt.
Group at ¶86. Thus, even assuming that trial counsel's preparation of the alibi witnesses
for trial was somehow lacking, Group cannot demonstrate prejudice.
{¶135} With regard to Group's claim that trial counsel was constitutionally
ineffective for failing to argue at trial that another person was responsible for the crime,
this claim is barred by res judicata as it is unsupported by evidence de hors the record
and could have been raised on direct appeal. Moreover, this falls squarely into trial
tactics, something that even a reviewing court on direct appeal will not generally second-
guess. See State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶213.
Accordingly, the trial court properly dismissed Group's thirteenth claim without holding a
hearing.
Conclusion
- 28 -
{¶136} In sum, Group's assignments of error are meritless. Discovery is not
automatically afforded in post-conviction relief cases. The trial court properly dismissed
each claim without a hearing. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs in judgment only.
Vukovich, J., concurs.
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