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510 U.S. 1024
Mineerv.Fleming County, Kentucky, et al.
No. 93-628.
Supreme Court of United States.
December 13, 1993.
1
Appeal from the C. A. 6th Cir.
2
Certiorari denied. Reported below: 993 F. 2d 1547.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/01/2017 01:12 AM CDT
- 568 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 568
M ary Cohan and Terry Cohan, individually
and as wife and husband, appellants and
cross-appellees, v.Medical Imaging
Consultants, P.C., et al., appellees
and cross-appellants.
___ N.W.2d ___
Filed August 25, 2017. No. S-16-145.
supplemental opinion
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Supplemental opinion: Former opinion modi-
fied. Motions for rehearing overruled.
Richard J. Rensch and Sean P. Rensch, of Rensch & Rensch
Law, P.C., L.L.O., for appellants.
David D. Ernst and Kellie Chesire Olson, of Pansing, Hogan,
Ernst & Bachman, L.L.P., for appellees Medical Imaging
Consultants, P.C., and Robert M. Faulk, M.D.
William R. Settles and Kate Geyer Johnson, of Lamson,
Dugan & Murray, L.L.P., for appellees Bellevue Obstetrics and
Gynecology Associates, P.C., et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
K elch, JJ.
- 569 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
COHAN v. MEDICAL IMAGING CONSULTANTS
Cite as 297 Neb. 568
Per Curiam.
We consider the appellees’ motions for rehearing concern-
ing our opinion in Cohan v. Medical Imaging Consultants.1
We overrule the motions, but we modify the original opinion
as follows:
In the section of the opinion designated “3. Cross-Appeals
by Appellees,” we add a sentence at the end of the first
paragraph,2 such that the paragraph reads as follows:
Appellees’ cross-appeals assign as error the admission
of Dr. Naughton’s testimony. Appellees moved to strike
Dr. Naughton’s testimony because they claimed that only
Mary’s prognosis at the time of trial was relevant and that
Nebraska did not recognize a theory of recovery based
upon loss of chance. The district court, in overruling
the motions to strike, found that Dr. Naughton’s opinion
was relevant for the limited purpose of establishing that
early discovery of cancer leads to a better prognosis. We
understand the district court to have used “prognosis” to
refer to the risk of recurrence and the probability of an
improved outcome.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motions for rehearing overruled.
Funke, J., not participating.
1
Cohan v. Medical Imaging Consultants, ante p. 111, ___ N.W.2d ___
(2017).
2
Id. at 129-130, ___ N.W.2d at ___.
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584 F.Supp. 1245 (1984)
Jack H. SHAPIRO, et al., Plaintiffs,
v.
AMERICAN HOME ASSURANCE COMPANY, et al., Defendants.
Civ. A. No. 75-2728-K.
United States District Court, D. Massachusetts.
April 25, 1984.
*1246 *1247 Edward J. Barshak, Jeffrey Somers, Gadsby & Hannah, Alexander Finger, Boston, Mass., for Jack Shapiro.
Oscar Wasserman, Wasserman, Feinberg & Weisman, Newton, Mass., for Alfred H. Bloom.
Gael Mahony, Timothy J. Dacey and G. Richard Shell, Hill & Barlow, Boston, Mass., for American Home Assur.
Robert Owens Assoc., Boston, Mass., for Pacific Indem., Surplus Lines & Charles Henry Alan Skey.
Memorandum
KEETON, District Judge.
This case is before me on defendant's motion for summary judgment. Plaintiffs, former officers and directors of Giant Stores, seek a declaration that they are covered under a directors' and officers' ("D & O") liability insurance policy issued by defendant. Defendant moves for summary judgment on the ground that the policy is voidable because the application for insurance contained misrepresentations made by plaintiff Shapiro, formerly Giant's president.
The undisputed facts establish that on July 7, 1972 Shapiro signed an application for insurance that contained the following: "Question No. 14: Does any Director or Officer have knowledge or information of any act, error or omission which might give rise to a claim under the proposed policy?" To this question, Shapiro answered "No." The application further states, in Item No. 17: "It is agreed that if such knowledge or information exists any claim or action arising therefrom is excluded from this proposed coverage." The application states that the form was the basis of the contract and would be attached to any policy that was issued. Cavallaro Aff., Ex. No. 5. Attached to the application was a copy of Giant's 1972 financial statements.
The policy provides for $5 million in coverage for a three-year period beginning July 26, 1972. Following the Lloyd's form for D & O policies, it contains two parts. The first part insures the company for any indemnification it provides to a director or officer. The second part provides direct coverage for individual directors and officers.
In 1977, plaintiffs Shapiro and Kaufman, along with other Giant officers, were indicted for securities fraud. Shapiro was convicted in 1978 after a jury-waived trial in this district. The trial judge found that Shapiro was "a party to and a participant in the making of a deliberate misstatement of income in the financial statement for FY 72, with an intent to defraud." United *1248 States v. Lieberman, CR 77-135-S (D.Mass. Aug. 3, 1978) at 12, aff'd 608 F.2d 889 (1st Cir.1979), cert. denied 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). Kaufman pleaded guilty on July 10, 1978 to two counts of fraud in connection with the filing of the false financial statements.
Plaintiffs have been named as defendants in five securities fraud cases filed in this district and the Southern District of New York. Third-party defendant Touche Ross, which had initially certified the 1972 financial statements and which had been named as a defendant in the securities fraud cases, has settled with plaintiffs in those cases and has been assigned the plaintiffs' claims. Touche Ross also opposes American Home's motion in this action.
I.
In determining a motion for summary judgment, the court must look at the record in the light most favorable to the nonmoving party and must draw all inferences in favor of that party. Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 928 (1st Cir.1978). The movant has the burden of showing the absence of a disputed issue of material fact. Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir.1977). However, once a movant supports the motion for summary judgment as set forth in Fed.R.Civ.P. 56, the nonmoving party cannot defeat the motion by resting on mere allegations or conclusions in its pleadings. No genuine dispute of fact is shown unless facts supporting the nonmoving party's contention can be inferred from fully credited admissible evidence. See generally 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2721 (2d ed. 1983).
American Home argues that, by virtue of Shapiro's conviction, plaintiffs here are collaterally estopped from litigating the falsity of Shapiro's statement in the application. The nonmoving parties object that there is not sufficient privity between Shapiro and other plaintiffs to invoke collateral estoppel. A decision on this question, however, is not necessary to a ruling on the motion for summary judgment. Even without the application of collateral estoppel, no dispute exists over the falsity of Shapiro's statement that no "Director or Officer [has] knowledge or information of any act, error or omission which might give rise to a claim under the proposed policy." No evidence has been called to the court's attention by any party that would support a contention that there is a genuine dispute over this factual issue. Thus, on this issue, this case is within that very exceptional group in which summary judgment for the party with the burden of proof is appropriate.
Nonmoving parties do claim that there are disputes over whether the other plaintiffs knew of the wrongdoing at the time the application was filed. American Home, however, contends that this question is not relevant to a determination of the validity of the insurance policy. Whether a misrepresentation in the application made by one officer defeats coverage under a D & O policy for other, innocent officers and directors is a question of law which I consider in Part III, infra.
II.
American Home argues that the falsity of Shapiro's statement invalidates the insurance contract from the start.
In this diversity case, the court must apply the Massachusetts choice of law rules to determine the applicable law governing the contract. Klaxon v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1940). In Massachusetts, the law of the place where the contract was made governs. Dicker v. Klein, 360 Mass. 735, 277 N.E.2d 514 (1972). The application for the insurance policy in this case was made and delivered in Massachusetts. Nadas Aff., Ex. 7. Although the underwriting decision was made in New York, the policy was actually bound and delivered in Massachusetts. Id. Under these undisputed facts, Massachusetts law applies to the insurance contract. Pahigian v. Manufacturers' Life, 349 Mass. 78, 206 N.E.2d 660 *1249 (1965). I would reach the same conclusion if I were to apply the "most significant relationship" test to the choice of law problem. Choate, Hall & Stewart v. SCA Services, Inc., 378 Mass. 535, 392 N.E.2d 1045 (1979); Restatement (Second) of Conflict of Laws § 188 (1971).
The governing Massachusetts law, Mass. Gen.Laws ch. 175, § 186, states that:
no ... misrepresentation ... made in the negotiation of a policy of insurance by the insured or on his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation ... is made with actual intent to deceive, or unless the matter misrepresented ... increased the risk of loss.
American Home contends that no disputed factual question arises from application of this statute to the present case. Touche Ross contends that factual disputes exist over whether the misrepresentation was "material" and whether it induced reliance by the insurer.
The Massachusetts statute is declaratory of longstanding common law principles defining the kind of false representations that can serve to avoid an insurance policy. Kidder v. Supreme Commandery United Order of the Golden Cross, 192 Mass. 326, 78 N.E. 469 (1906) (construing predecessor of statute). Under the common law, only a material misrepresentation by an applicant could invalidate the insurance policy. Campbell v. New England Mutual Life Insurance Co., 98 Mass. 381, 395 (1867). Statements that misled the underwriter as to the nature of the risk being undertaken were considered material. Daniels v. Hudson River Fire Insurance Co., 66 Mass. (12 Cush.) 416 (1853); Curry v. Commonwealth Insurance Co., 27 Mass. (10 Pick.) 535 (1830). If an insured falsely states facts that heighten the risk being insured against, this misrepresentation is material.
In this case, I conclude that there is no dispute of fact over whether Shapiro's misrepresentation concerned matters that increased the risk of loss under the D & O policy. Massachusetts cases have held that whether a false statement increases risk is ordinarily a question of fact for the jury. See, e.g., Davidson v. Massachusetts Casualty Insurance Co., 325 Mass. 115, 89 N.E.2d 201 (1949). However, an established line of cases has recognized that certain misrepresentations, such as a false statement in an application for life insurance that the applicant does not have cancer, increase risk of loss as a matter of law. See, e.g., Pahigian, supra, 206 N.E.2d 660; Lennon v. John Hancock Mutual Life Insurance, 339 Mass. 37, 157 N.E.2d 518 (1959).
The facts misrepresented by Shapiro were those that an insurer issuing a D & O policy is most likely to consider in making the underwriting decision. Since D & O insurance is a relatively recent phenomenon, and since the scope of coverage is potentially quite large, companies have reason to be very careful in issuing policies. "The general financial condition of the corporation in the present as well as the past is very important.... A second important factor which the insurer looks into is the record of prior claims and litigations of the corporation.... A third major factor is the business experience of the directors and officers and their involvement or lack of involvement in prior litigation. The insurer will prefer to insure directors with a clear record of litigation." M. Schaeftler, The Liabilities of Office: Indemnification and Insurance of Corporate Officers and Directors 153 (1976).
In this case, Shapiro submitted a financial statement for 1972 that grossly overstated Giant's earnings. More than that, however, Shapiro falsely stated in the application for insurance that he did not know of any "act, error or omission" by Giant officials which might give rise to a claim. The filing of a false financial statement exposes a company and its officers to civil liability by investors and stockholders under common law and federal securities law. These are the very risks against which Giant was seeking insurance.
*1250 Parties opposing the motion for summary judgment point to no evidence that would support a contention that the facts misrepresented by Shapiro did not increase the risk of liability for Giant officers and directors. Thus, the misrepresentation "increased the risk of loss" under the policy of insurance, as that phrase is used in the statute, and was "material," as that term has been used both before and after enactment of the statute. Since the statute requires only that the insurer prove either that a misrepresentation increased the risk of loss or was made with actual intent to deceive, I need not consider legal or factual issues concerning Shapiro's intent in making the statement.
Touche Ross also argues that American Home must prove that there had been reliance by the insurer on the misrepresentations. The weight of Massachusetts authority does not consider "reliance" as a separate element which an insurer must prove in order to invalidate an insurance policy. See, e.g., Pahigian, supra, 349 Mass. 78, 206 N.E.2d 660; Davidson, supra, 325 Mass. 115, 89 N.E.2d 201. Cf. Bouley v. Continental Casualty Co., 454 F.2d 85, 88 (1st Cir.1972) (applying Connecticut law; holding that insurer presumptively relies on material misstatements in application). The one exception cited by Touche Ross, Rose & Lucy Inc. v. Resolute Insurance Co., 249 F.Supp. 991, 992 (D.Mass.1965), has not been cited by Massachusetts courts, which have invalidated insurance policies because of material misrepresentations without discussing proof of reliance. It is likely that reliance is not treated as an independent requirement because the standard of materiality under Massachusetts common and statutory law is such that any statement that is shown to be material is one so central to the risk being insured that the insurer would be expected to take it into consideration in making the underwriting decision. Indeed, in doing so the insurer would be serving not only its own interest but also the public interest in controlling costs to the insurance system that would result from misrepresented risks. Materiality has long been defined as something "the knowledge or ignorance of which would naturally influence the judgment of the underwriter in making the contract at all, or in fixing the rate of the premium." Daniels, supra, 66 Mass. at 425. This description is especially apt when the statutory "risk of loss" standard is satisfied by the insurer, as it has been in this case. The statute states no added requirement of proof of reliance, and the Massachusetts courts have imposed none.
Even if I were to accept the debatable contention that reliance is required, I conclude that there is no genuine dispute of fact on that issue in this case. The undisputed facts show that American Home proceeded with caution in assuming the risk of the D & O policy. American Home had twice refused coverage because of Giant's rapid growth and high debt. Before deciding to issue the policy in 1972, the insurer requested Giant's 1972 financial information. In view of this evidence, I conclude that a finding that American Home had failed to prove reliance on the misrepresentation would be insupportable. The only contrary evidence Touche Ross cites is the statement of Anthony Martini, an American Home underwriter, who testified in his deposition that he didn't know if corrections in the financial statement eliminating the fraud would have been "dispositive" in a decision to reject the application. Martini indicated repeatedly in his testimony, however, that Giant's financial health was of the utmost importance to the insurer.
More decisive in the present case, in any event, is the fact that the application contained a false statement disclaiming knowledge of "any act, error or omission which might give rise to a claim." No party points to any evidence whatsoever that could put into dispute American Home's claim that it relied on this misrepresentation in deciding to insure Giant.
In conclusion, I determine that there are no disputes as to the facts that Shapiro made material misrepresentations on the *1251 insurance application that increased American Home's risk of loss.
III.
I must now consider whether the policy can be invalidated not only as to Shapiro but also as to other directors and officers, even if they had no knowledge of the wrongdoing at the time the application was made.
Relieving the insurer of all liability under the policy because of misrepresentations made by the insured significantly undercuts the protection that directors may derive from D & O insurance. This problem is particularly acute for lower-level corporate officers or "outside" directors who may be unaware of wrongdoings committed by higher-ranking insiders. In fact, the recent increase in corporations seeking D & O insurance is in part a response to the reluctance of outsiders to serve as directors without some protection against personal liability. Wall Street Journal, July 12, 1976 at 1 col. 6. On the other hand, relieving the insurer of liability only for the acts of the single director who makes the misrepresentation may save the insurer nothing, since all directors are likely to be jointly and severally liable for the wrongdoing committed by any one.
This case is not the first in which an insurance company has sought to avoid all liability under a D & O policy because of misrepresentations made by one of the insureds. However, in no case called to my attention has the question been litigated to conclusion. In some cases, the parties have settled, with the insured accepting considerably less than the amount provided by the policy. Shlensky v. Dorsey, 574 F.2d 131, 148 n. 11 (3rd Cir.1978); American Employees Insurance Co. v. King Resources Co., 556 F.2d 471, 475 (10th Cir. 1977). See J.W. Bishop, The Law of Corporate Officers and Directors: Indemnification and Insurance, ¶ 8.05 at 8-19 n. 38 (1981). In another case, the court granted summary judgment dismissing the claim of an insured that the insurer's refusal to pay under a D & O policy was vexatious and unreasonable. Automotive Wholesalers of Illinois v. National Union Fire Insurance Co., 501 F.Supp. 1205 (N.D.Ill.1980).
The issue received the fullest consideration in the Penn Central litigation, in which the insurer sued to rescind a D & O policy on the ground that one insured made a false statement in the application. The court rejected the "innocent" insureds' motion for summary judgment, on the grounds that the officer who made the false statement was acting as an agent for the others and thus his fraud was binding on them. Bird v. Penn Central, 334 F.Supp. 255 (E.D.Pa.1971), on rehearing 341 F.Supp. 291 (E.D.Pa.1972).[1]
The agency analysis relied on in Bird presents a problem, however, since an innocent director or officer, particularly an "outsider," may have no control over the individual who applies for insurance coverage. Thus, binding the directors as principals is somewhat fictional. Certainly, in this case, it is unlikely that Shapiro, the president, was under the control of other plaintiffs, who were lower than he in the corporate hierarchy.
The court in Bird responded to this objection by reasoning that, in asserting their rights under the policy, the innocent insureds were affirming the contract procured by the fraudulent director and thus were ratifying his actions as agent on their behalf. Ratification analysis, if applied to this case, would also be an extension of agency doctrine beyond its usual scope. Ratification does not create an agency where none existed, but instead can be used to make a principal responsible for unauthorized acts performed by one who was in fact acting as an agent. "`Ratification is limited to the adoption of an act purporting to be done, or in fact done, on behalf of the principal ....' If the agent did not intend to act as agent, there is no agency and there can be no ratification of *1252 the act of one not acting as an agent." Allen v. Liston Lumber Co., 281 Mass. 440, 183 N.E. 747, 749 (1933). See also Commercial Credit Corp. v. Stan Cross Buick, Inc., 343 Mass. 622, 180 N.E.2d 88 (1962); Restatement (Second) of Agency § 85 (1958). In this case, the fact that individual officers and directors relied on insurance coverage procured by Giant on their behalf cannot convert their relationship with Shapiro into one of agency, where critical elements of an agency relationship, such as control, were missing.
Instead of relying on an agency analysis which does not fit the circumstances of this case, I consider the question of the coverage under this policy as one of contract interpretation. The language in the application form, which was part of the insurance contract, is straightforward. The form, in Question No. 14, inquires about knowledge of any officer or director concerning facts which might give rise to claims under the policy. Because of the likelihood of joint and several liability being imposed on all directors for the wrongdoing of one, the facts known by Shapiro were highly material not only to his potential liability, but to that of all other directors. Since Shapiro's answer misrepresented the risk incurred in insuring all those covered by the policy, it follows that American Home can avoid responsibility to all the insureds on the basis of that misrepresentation. Nothing in the contract indicates that the parties intended a different result.
There is no reason why the parties could not have negotiated a contract expressly providing the kind of protection to "innocent" insureds that plaintiffs and Touche Ross ask the court to impute to the agreement. There is a well-established technique for providing such protection to mortgagees in the "union" or "standard" mortgage clauses. Under the terms of those clauses, misrepresentations made by the mortgagor in applying for insurance will not deprive the mortgagee of protection under the policy. See 6A Appleman Insurance Law and Practice § 4164 at 482 nn. 56-57 (1972) and cases cited therein. The conclusion I reach in construing the contract at issue here is fortified by the observation that the technique exemplified by the "union" or "standard" mortgage clause must have been known to the parties to this contract and nevertheless was not used.
In addition to the defense of misrepresentation, American Home has available a second and independent defense of non-coverage. The application for the policy, in Item No. 17, excludes coverage for any claim arising from facts known by any director or officer at the time of the application. In this case, the matter that Shapiro knew about and falsely represented led directly to the claims against all the insureds. Thus, the contract unambiguously excludes such claims from coverage. In order to assert the defense of non-coverage, American Home need not prove any of the elements of a misrepresentation defense, as such. Perhaps the practical equivalent of materiality or increase of risk is implicit in the relationship between Item 14 (the representation) and Item 17 (the non-coverage agreement) of the application form. But Touche Ross's arguments that a factual dispute exists over the question of reliance would not be relevant to the non-coverage defense. American Home need only prove that, at the time Shapiro signed the application form, he knew of facts which might give rise to claims and that the claims plaintiffs now are making under the policy arise from those facts. Whether or not that is the practical equivalent of materiality or increase of risk, there is no genuine dispute of fact as to whether that showing has been made here. Therefore, American Home is entitled to summary judgment on the ground that plaintiffs' claims are excluded from coverage under the policy.
Touche Ross suggests an alternative interpretation of the policy by arguing that it should be viewed as a series of separate contracts between the insurer and each individual officer. The result of such an interpretation, Touche Ross argues, *1253 would be to exclude from the coverage afforded to any individual director only those claims arising from facts known by him at the time of the application.
Several obvious considerations militate against this construction of the contract. The policy was negotiated and obtained by Giant as a single unit. One premium was paid by Giant for all the coverage. Further, the interpretation Touche Ross suggests would provide inadequate protection to the interest of the insurer. Because of the possibility of any one director being jointly and severally liable for the wrongdoing of fellow directors, the insurer would be very unwise to inquire about the knowledge of only one director before insuring him or her. I cannot assume, in the face of the clear language of the insurance contract, that this is what American Home meant to do, or what Giant understood American Home to mean, or what the contract language manifested.
Touche Ross makes the final argument that invalidating the insurance contract would be unfair and contrary to public policy. With regard to the question of fairness, I note the opinion in Bird, which stated that "[w]hile we sympathize with [the innocent insureds'] position and recognize that innocent officers and directors are likely to suffer if the entire policy is voidable because of one man's fraudulent response, it must be recognized that plaintiff insurers are likewise innocent parties." 341 F.Supp. at 294.
As for public policy considerations, there is nothing unconscionable or inequitable about the exclusionary clause which was contained in this contract. It is true that such an exclusion significantly limits the protection afforded to outside or innocent corporate officials under D & O policies. But there is no legal barrier to the making of contracts of insurance that would protect innocent insureds against loss of coverage because of the fraud of another. Various commentators have suggested procedures by which this end could be accomplished. See, e.g., Schaeftler, supra, at 171. Of course, an insurer issuing a D & O policy with such protection for innocent directors will bear increased risks, and a corporation seeking such a policy must expect to be charged a higher premium than it would pay for a like policy without such an extension of coverage.
The granting of summary judgment dismissing plaintiffs' claims against American Home disposes of this case entirely, since American Home's third-party complaint against Touche Ross seeks indemnification only in the event it is liable to plaintiffs. An order dismissing this case will be issued forthwith.
NOTES
[1] After two unrelated reported decisions were rendered, see 351 F.Supp. 700 (E.D.Pa.1972) and 61 F.R.D. 43 (E.D.Pa.1973), this case was settled out of court. See Bishop, supra, at 8-19.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 4, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEPHEN JAM ES WINEG EART,
Plaintiff-Appellant,
v. No. 06-8048
(D.C. No. 05-CV-227-ABJ)
A M ER ICAN A LTER NA TIV E (D . W yo.)
IN SU RAN CE C OR PO RA TIO N,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before L UC ER O, BROR BY, and M cCO NNELL, Circuit Judges.
Stephen James W inegeart appeals the district court’s decision to deny him
summary judgment and instead grant summary judgment to American Alternative
Insurance Corporation (AAIC) in this insurance coverage dispute. W e have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM .
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment 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.
I.
M r. W inegeart is a volunteer fireman for Laramie County Fire District #1.
In April 2004, he drove an official Chevrolet Suburban, which was covered by an
AAIC auto policy, to the site of an automobile accident. W hile he was walking
away from his vehicle toward the cars involved in the accident, he was struck and
injured by a passing car. After settling with the driver’s insurer for the limits of
her policy, he made a claim under the uninsured/underinsured motorist provisions
of the fire district’s AAIC policy. AAIC denied the claim, and M r. W inegeart
sued in W yoming state court. AAIC removed the case to federal district court,
and the parties each filed a motion for summary judgment.
The uninsured/underinsured motorist endorsement to the AAIC policy
provides coverage only to those persons who were “occupying” a covered vehicle.
Aplt. App. at 89-90, ¶ B.2.a. M r. W inegeart argued that W yoming law and public
policy required the district court to reform the policy to provide coverage
coextensive to that offered under the general portions of the policy, that is,
coverage for anyone “using” the covered vehicle with permission. Id. at 80,
¶ II.A.1.b. The district court declined to reform the policy because the applicable
statute, W yoming Stat. Ann. § 31-10-101, addresses only uninsured motorist
coverage and does not require underinsured motorist coverage. It further declined
to hold that the policy was ambiguous, which would allow M r. W inegeart to
invoke W yoming’s doctrine of reasonable expectations. Instead, it held that the
-2-
plain language of the policy controlled, so that underinsured motorist coverage
was limited to persons “occupying” the insured vehicle. Because the court
concluded that M r. W inegeart was not “occupying” the vehicle when he was
injured, it denied his motion for summary judgment and granted A AIC’s summary
judgment motion. M r. W inegeart appeals.
II.
On appeal, M r. W inegeart requests that we certify the pertinent questions of
W yoming law to the W yoming Supreme Court. W e have noted, however, that
“[w]e generally will not certify questions to a state supreme court when the
requesting party seeks certification only after having received an adverse decision
from the district court.” M assengale v. Okla. Bd. Of Exam 'rs in O ptometry,
30 F.3d 1325, 1331 (10th Cir. 1994). M r. W inegeart did not seek certification
until after he reached this court, well after the district court’s decision. W e
conclude that certification is not merited here and deny the motion to certify.
In diversity cases, the substantive law of the forum state governs the
analysis of the underlying claims, but federal law controls the ultimate procedural
determination of the propriety of the district court’s grant of summary judgment.
Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016 (10th Cir. 2001). Accordingly,
we apply W yoming law to the substantive issues on appeal, and we review the
district court’s grant of summary judgment de novo. M ena v. Safeco Ins. Co.,
412 F.3d 1159, 1163-64 (10th Cir. 2005).
-3-
It is undisputed that the driver who injured M r. W inegeart was an
underinsured motorist. As he did in the district court, M r. W inegeart argues on
appeal that the AAIC policy lumps underinsured motorist coverage together with
uninsured motorist coverage and that under W yoming law and public policy,
AAIC cannot restrict uninsured motorist coverage to those persons “occupying”
the vehicle, but instead must offer such coverage for all persons insured under the
general liability portions of the policy. Therefore, he concludes, he is entitled to
underinsured motorist coverage, as he w as using the Suburban with the fire
district’s permission.
M r. W inegeart seeks reformation of the policy in light of W yoming Stat.
Ann. § 31-10-101. If he had been struck by an uninsured motorist, his argument
might be persuasive, because § 31-10-101 does require insurers to offer uninsured
motorist coverage “for the protection of persons insured thereunder,” (that is,
persons insured under the policy). Other courts have construed similar language
as mandating uninsured/underinsured motorist coverage coextensive to the
coverage provided by the general liability portion of the policy and have held that
an insurer could not limit uninsured/underinsured motorist coverage to persons
“occupying” the insured vehicle. See Georgeson v. Fid. & Guar. Ins. Co.,
48 F. Supp. 2d 1262, 1266 (D. M ont. 1998); Allied Mut. Ins. Co. v. Action Elec.
Co., 593 N.W .2d 275, 280 (Neb. 1999); Aetna Cas. & Sur. Co. v. M cM ichael,
906 P.2d 92, 96 (Colo. 1995). But M r. W inegeart was injured by an underinsured
-4-
motorist. Unlike many other states, W yoming does not require insurers to offer
underinsured motorist coverage, just uninsured motorist coverage. See W yo. Stat.
Ann. §§ 31-10-101 to 31-10-104; Farmers Ins. Exch. v. Williams, 823 F. Supp.
927, 931 (D . W yo. 1992), aff’d, No. 92-8052, 1993 W L 152695 (10th Cir.
M ay 10, 1993) (unpublished). This lack of statutory guidance distinguishes this
case from Action Electric Co. and M cM ichael, both of which were decided in
states that require insurers to offer underinsured motorist coverage as well as
uninsured motorist coverage. Action Elec. Co., 593 N.W .2d at 279; M cM ichael,
906 P.2d at 96 (citing Colo. Rev. Stat. § 10-4-609). Georgeson is inapplicable
factually, as it involved an uninsured motorist. 48 F. Supp. 2d at 1263.
In short, in contrast to its statutory mandate regarding uninsured motorist
coverage, W yoming has chosen to allow insurers to offer underinsured motorist
coverage on whatever terms that they see fit, or even not to offer such coverage at
all. In these circumstances, notwithstanding the policy’s inclusion of
underinsured motorist coverage with uninsured motorist coverage, there is no
basis for this court to reform the fire district’s policy and require AAIC to offer
coverage for injuries caused by an underinsured motorist on terms more generous
than those set forth in the endorsement. “If the legislature intends a contrary
result, it can supply the requirement by express statute, showing its clear intent,
and recognizing the underwriting principle and costs which result.” Comm. Union
Ins. Co. v. Stamper, 732 P.2d 534, 538 (W yo. 1987).
-5-
The AAIC policy is not contrary to W yoming law or public policy, nor is it
ambiguous with regard to the scope of underinsured motorist coverage. Thus,
under W yoming law it should be enforced according to its terms. Id. at 538-39;
see also St. Paul Fire and M arine Ins. Co. v. Albany County Sch. Dist. No. 1,
763 P.2d 1255, 1262-63 (W yo. 1988) (declining to adopt the doctrine of
reasonable expectations where an insurance contract was not ambiguous). The
endorsement’s plain language indicates that where the “Named Insured” is an
entity, then the term “insured” includes “[a]nyone ‘occupying’ a covered ‘auto’.”
Aplt. App. at 89-90, ¶ B.2.a. The district court concluded that M r. W inegeart was
not “occupying” the Suburban at the time of the accident, and M r. W inegeart
makes no argument to the contrary on appeal. Thus, he has waived any such
argument. Coleman v. B-G M aint. M gmt. of Colo., Inc., 108 F.3d 1199, 1205
(10th Cir. 1997) (“Issues not raised in the opening brief are deemed abandoned or
waived.”). The district court’s decision shall stand.
III.
The M otion to C ertify Issue to the W yoming Supreme Court is DENIED .
The judgment of the district court is AFFIRMED.
Entered for the Court
W ade Brorby
Circuit Judge
-6-
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NUMBER 13-13-00488-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
VICTOR PRIETO AZAMAR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
A Hidalgo County grand jury indicted appellant, Victor Prieto Azamar, for the
aggravated sexual assault of his step-granddaughter, A.C.1 See TEX. PENAL CODE ANN.
1 In order to protect the complainant’s identity, we will use her initials throughout this memorandum
opinion.
§ 22.021 (West, Westlaw through 2013 3d C.S.). Azamar pleaded not guilty, but was
found guilty as charged by a jury and sentenced to forty years’ imprisonment. By seven
issues, Azamar asserts that: (1) the trial court erred by denying his motion for a mistrial
during jury selection; (2) the evidence is insufficient to sustain his conviction because it
fails to establish the corpus delicti of the offense alleged in the indictment; (3) the evidence
is legally and factually insufficient to sustain his conviction; (4) trial counsel provided
ineffective assistance by not objecting to alleged hearsay testimony; (5) the trial court
erred by admitting medical records; (6) the trial court erred by allowing a witness to testify
as an expert; and (7) the aggregate effect of the cumulative errors made by trial counsel
and the trial court negatively affected his substantial rights. We affirm.
I. BACKGROUND
On February 26, 2013, two-year-old A.C. approached her mother, Martha, crying
and complaining that her “cookie” hurt. Martha testified that A.C. used the word “cookie”
to identify her vagina. Martha inspected A.C.’s vagina, and it appeared red, so Martha
applied rash cream to the affected area. The next day, A.C. continued to complain about
the pain and told her mother that her vagina hurt because “Ken poked her with a stick.”
Martha testified that A.C. called Azamar “Ken” as a “special name” and was the only
person who called Azamar by that name. Later that day, Martha took A.C. to her primary
caregiver, nurse practitioner Michelle Chavez, at Divine Children’s Clinic in Donna, Texas.
Martha testified that prior to her complaints, A.C. last saw Azamar on February 24,
2013 at Azamar’s home in Donna. Azamar lived at the home with A.C.’s grandmother,
Maria Castillo. According to Martha, she dropped off A.C. at Azamar’s home that
morning and witnessed Azamar greet A.C. at the front door of his home. Martha
2
admitted to the jury that she did not believe the allegations against Azamar because A.C.
did not complain about pain to her vagina until two days after her visit with Azamar.
Additionally, Martha testified that she needed more “proof” that A.C. was hurt.
Chavez testified that she has treated A.C. since A.C.’s birth in 2010. On February
27, 2013, A.C. presented to Chavez’s clinic with symptoms of pain during urination. A.C.
told Chavez that her “cookie” hurt and pointed to her vagina. Martha told Chavez that
A.C. had told her that “Ken had touched her ‘cookie’ with a palo.”2 According to Chavez,
A.C. told her that Azamar “poked” her “cookie” outside of her grandmother’s house, after
Azamar took off her dress and lowered his own clothes. Chavez further testified that
A.C. told her that Azamar’s “stick” was not in his hand and was located in between his
legs.
Chavez examined A.C.’s vagina and noted no external trauma, but observed
redness on A.C.’s labia majora and labia minora. Chavez noted that the redness she
observed was different from a diaper rash and more indicative of sexual assault and
trauma. Chavez examined beyond A.C.’s labia minora and observed that the area
known as the introritus was “beefy and red” as well as tender and sensitive. Chavez
testified that after examining A.C., she advised Martha to file a police report. Elvia
Mungia, a sexual assault nurse examiner (SANE) at the Child Advocacy Center of Hidalgo
County, testified that she also examined A.C. According to Mungia, she observed a
fissure and redness on A.C.’s hymen, which indicated trauma resulting from penetration.
2 “Palo” is a Spanish word translated to “stick” in English.
3
Steve Moyar, an investigator with the Hidalgo County Sheriff’s Office, testified that
he investigated the allegations made against Azamar. During his investigation, Moyar
attempted to speak to A.C., but A.C. was uncomfortable speaking with him. Moyar also
interviewed Azamar, who denied the allegations, had no explanation for A.C.’s vaginal
injuries, offered no motive for A.C. to fabricate the allegations against him, and identified
no other people who might have committed the crime. Moyar eventually placed Azamar
under arrest.
Maria Castillo, Azamar’s wife, testified in his defense. Castillo denied that Azamar
committed any of the alleged acts against A.C. because A.C. was with Castillo the entire
day of February 24, 2013. Castillo also testified that A.C. never complained to her about
anything that day. Additionally, Castillo’s three daughters, Benita Aguirre, Irene Avila,
and Elizabeth Yzquierdo, and one son, Saul Alvarado, all testified in Azamar’s defense
and denied that Azamar was capable of committing the alleged acts. Azamar did not
testify.
The jury found Azamar guilty as charged and sentenced him to forty years’
imprisonment with the Texas Department of Criminal Justice’s Institutional Division.
This appeal followed.
II. SUFFICIENCY CHALLENGE
By Azamar’s second and third issues, Azamar asserts that the evidence is
insufficient to sustain his conviction.3
We will address Azamar’s issues out of the order in which they were presented because we
3
generally first address points that, if sustained, would require us to reverse and render rather than reverse
and remand. See TEX. R. APP. P. 43.3 (the appellate court must render except when remand is necessary);
Lucas v. State, 245 S.W.3d 611, 612 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
4
A. Standard of Review and Applicable Law4
In reviewing sufficiency of evidence to support a conviction, we consider all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.
App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in
the light most favorable to the verdict, we defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the witnesses’ credibility and the
weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for
every fact to point directly and independently to the guilt of the accused; it is enough if
the finding of guilty is warranted by the cumulative force of all incriminating evidence.
Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct
jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that
accurately sets out the law, is authorized by the indictment, does not unnecessarily
4 By his third issue, Azamar challenges the factual and legal sufficiency of the evidence supporting
his conviction. The Texas Court of Criminal Appeals has held that there is “no meaningful distinction
between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency standard” and
that the Jackson standard “is the only standard that a reviewing court should apply in determining whether
the evidence is sufficient to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App. 2010)
(plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we will review Azamar’s
claims of evidentiary sufficiency under a “rigorous and proper application” of the Jackson standard of
review. Id. at 906–07, 912.
5
increase the State's burden of proof or unnecessarily restrict the State's theories of
liability, and adequately describes the particular offense for which the defendant was tried.
Id. Under a hypothetically correct jury charge, Azamar is guilty of aggravated sexual
assault if he intentionally or knowingly caused the penetration of A.C.’s sexual organ by
any means, and A.C. is a child younger than fourteen years of age. See TEX. PENAL
CODE ANN. § 22.021.
B. Discussion
Azamar first argues that the evidence is insufficient to sustain his conviction
“because it fails to establish the corpus delicti of the offense alleged in the indictment.”
The corpus delicti rule is one of evidentiary sufficiency affecting cases in which there is
an extrajudicial confession. Miller v. State, No. PD-0038-14, 2015 WL 1743581, at *5
(Tex. Crim. App. April 15, 2015); Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App.
2013). The rule states that when the burden is beyond a reasonable doubt, a
defendant’s extrajudicial confession will not be legally sufficient evidence absent
independent evidence of the corpus delicti. The purpose of this common-law rule is to
“ensure that a person would not be convicted based solely on his own false confession
to a crime that never occurred.” Carrizales v. State, 414 S.W.3d 737, 740 (Tex. Crim.
App. 2013). Azamar contends that Investigator Moyar’s testimony regarding Azamar’s
failure to offer other suspects who may have assaulted A.C. amounted to an “extrajudicial
admission” to trigger the corpus delicti rule. We disagree. In order for the rule to be
applicable, some sort of confession admitting culpability must first be made by the
accused. See, e.g., Salazar v. State, 86 S.W.3d 640, 642–43 (Tex. Crim. App. 2002)
(applying the corpus delicti rule to a defendant who admitted to police that he sexually
6
abused children). In this case, Azamar neither confessed nor admitted to any crime.
Thus, without any extrajudicial confession or admission, the corpus delicti rule is
inapplicable. Azamar’s second issue is overruled.
Azamar next asserts a general argument that the evidence is legally insufficient to
sustain his conviction. We disagree. The record shows that on February 26, 2013,
A.C. complained to her mother that her vagina hurt because Azamar “poked her with a
stick.” Martha explained that A.C. was left in Azamar and her maternal grandmother’s
care two days earlier at Azamar’s home. Nurse practitioner Chavez examined A.C. the
following day and testified that A.C. related the same story to her about Azamar poking
her with a “stick” in her vagina outside of his house. When Chavez asked A.C. whether
Azamar was holding the stick, A.C. stated no and indicated that Azamar’s “stick” was
located between his legs. Furthermore, medical testimony from Chavez indicated that
A.C. suffered trauma to her vagina, and SANE nurse Mungia testified that the trauma to
A.C.’s vagina was caused by penetration. Finally, the record is undisputed that A.C. was
two years old at the time the alleged abuse took place. After considering this evidence
in the light most favorable to the verdict, we conclude that, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found that Azamar was
guilty of aggravated sexual assault beyond a reasonable doubt. See Winfrey, 393
S.W.3d at 768; see also TEX. PENAL CODE ANN. § 22.021. Azamar’s third issue is
overruled.
III. MOTION FOR MISTRIAL DURING JURY SELECTION
By his first issue, Azamar contends that the trial court erred by denying his motion
for a mistrial during the jury selection phase of the trial.
7
A. Standard of Review and Applicable Law
“A mistrial is an appropriate remedy in ‘extreme circumstances’ for a narrow class
of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).
A mistrial halts trial proceedings when error is so prejudicial that expenditure of further
time and expense would be wasteful and futile. Id. Whether an error requires a mistrial
must be determined by the particular facts of the case. Id.
We review a trial court’s denial of a mistrial for an abuse of discretion. Id. In doing
so, we view the evidence in the light most favorable to the trial court’s ruling and consider
only the arguments made to the trial court at the time of the ruling. Id. We will uphold
the trial court’s ruling if it was within the zone of reasonable disagreement. Id.
B. Discussion
The underlying dispute in this issue concerns the empanelment of juror Juan
Carlos Hernandez. During voir dire, Hernandez initially stated that he could not be fair
to Azamar because of Hernandez’s prior work history with the McAllen Police
Department’s warrant section. Later, in a private bench conference with the trial court
and attorneys for both sides, Hernandez stated that, upon thinking about the question, he
decided that he could be fair and impartial to both the State and Azamar. Azamar’s trial
counsel then moved to strike Hernandez for cause based upon his initial response during
voir dire, which the trial court denied. After the jury was empaneled, Azamar’s trial
counsel engaged in the following colloquy with the trial court outside of the jury’s
presence:
8
[Defense Counsel]: I just wanted to make sure that Juror No. 23,
Juan Carlos Hernandez, was not excused by
agreement.
Deputy Clerk: He’s on there. Juan Carlos Hernandez.
Trial Court: Yeah. But as to my list—as to which ones
were excused by agreement? That’s the
Court’s copy. Which one is that?
Deputy Clerk: No. 23.
[Prosecutor]: He was not.
Trial Court: That was okay. The defense challenge for
cause was denied.
You challenged for cause, and I denied it so he
was one of the ones that—and I skipped him
when I said—the I [sic] ones I excused. I went
from 22 to 24.
[Defense Counsel]: For the record, I had initially struck [Hernandez],
thinking that I needed to exercise a peremptory.
I looked at my column on the left where it says:
I had checked off that he had been excused by
agreement. I remember that he was not
excused by agreement.
Trial Court: Right.
[Defense Counsel]: And as a result of that—I used that strike on
Juror No. 19, Janet Abbey Flores, and I struck
her.
Trial Court: Uh-huh.
[Defense Counsel]: So I misstruck [sic] a person. And based
upon that, I am asking the Court to declare a
mistrial in this case.
Trial Court: That will be denied. But you have a record of
it. . . .
Azamar argues on appeal that as a result of his trial counsel’s error, he was denied
9
an impartial jury, and was entitled to a mistrial. We disagree. Azamar’s trial counsel
failed to articulate how Hernandez’s empanelment was highly prejudicial to his rights, or
how it deprived him of a fair and impartial jury so as to warrant the granting of a mistrial.
See id. To the contrary, Hernandez clarified his position to the trial court and stated that
he could be a fair and impartial juror to both the State and Azamar. Therefore, after
viewing the evidence in the light most favorable to the trial court’s ruling and considering
only the arguments made to the trial court at the time of the ruling, we hold that the trial
court did not abuse its discretion in denying Azamar’s motion for mistrial. See id.
Azamar’s first issue is overruled.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
By his fourth issue, Azamar asserts that his trial counsel provided ineffective
assistance by not objecting to hearsay testimony.
A. Standard of Review and Applicable Law
To prevail on a claim of ineffective assistance of counsel, the defendant must meet
the heavy burden of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,
the defendant must show by preponderance of the evidence that: (1) counsel’s
representation fell below an objective standard of reasonableness, and (2) there is a
reasonable probability that the result of the proceeding would have been different but for
the attorney’s deficient performance. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.
Crim. App. 1986) (en banc) (citing Strickland, 466 U.S. at 694); Jaynes v. State, 216
S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet). Allegations of
ineffectiveness must be “firmly founded in the record.” Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). A “convicted defendant making a claim of ineffective
10
assistance must identify the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690. We
look to “the totality of the representation and the particular circumstances of each case in
evaluating the effectiveness of counsel.” Thompson, 9 S.W.3d at 813. If the appellant
fails to prove one prong of the test, we need not reach the other prong. See Strickland,
466 U.S. at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
In evaluating the first prong of Strickland, counsel’s competence is presumed and
the defendant must rebut this presumption by proving that his attorney’s representation
was unreasonable under prevailing professional norms and that the challenged action
could not have been based on sound strategy. Kimmelman v. Morrison, 477 U.S. 365,
384 (1986). “A vague inarticulate sense that counsel could have provided a better
defense is not a legal basis for finding counsel constitutionally incompetent.” Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). The reasonableness of counsel’s
performance is to be evaluated from counsel’s perspective at the time of the alleged error
and in light of all the circumstances. Id.
B. Discussion
Azamar specifically complains that his trial counsel failed to object to the testimony
of nurse practitioner Chavez. Azamar asserts that Chavez was the State’s “main
witness,” whose testimony was full of “prejudicial hearsay evidence” of what A.C. told
Chavez during her medical examination. In support of his argument that his trial counsel
was ineffective by failing to object to Chavez’s testimony, Azamar cites various cases.
See Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983); Cude v. State, 588
S.W.2d 895 (Tex. Crim. App. 1979); Brown v. State, 974 S.W.2d 289; Wenzy v. State,
11
855 S.W.2d 52, 58 (Tex. App.—Houston 1993, pet. ref’d). However, we find these cases
inapplicable because each case relates to counsel’s failure to object to testimony about
extraneous offenses, not alleged hearsay.
Here, the success of Azamar’s argument is contingent upon a preliminary finding
that Chavez’s testimony was inadmissible hearsay. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. See TEX. R. EVID. 801(d). However, several
exceptions to the rule against hearsay are provided by Rule of Evidence 803. Among
these exceptions is a statement that is made for—and is reasonably pertinent to—medical
diagnosis or treatment that describes medical history, past or present symptoms or
sensations, their inceptions, or their general cause. See id. R. 803(4). Chavez testified
to what A.C. told her during her medical examination, including that Azamar had poked
her with a “stick” in her vagina. This testimony, while hearsay, fell under the Rule 803(4)
exception because it was made during A.C.’s February 27, 2013 medical examination by
Chavez. See id. Thus, even if Azamar’s trial counsel had objected to Chavez’s
testimony, such objection would have likely been overruled pursuant to Rule 803(4).
Accordingly, we conclude that Azamar failed to rebut the presumption that his trial
counsel’s failure to object on hearsay grounds to Chavez’s medical testimony was
reasonable under prevailing professional norms and that it was based on sound strategy.
See Kimmelman, 477 U.S. at 384. We overrule Azamar’s fourth issue.
V. ADMISSION OF MEDICAL RECORDS
By his fifth issue, Azamar asserts that the trial court abused its discretion by
overruling his authentication objections to the admissibility of A.C.’s medical records.
12
A. Standard of Review and Applicable Law
To satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is. TEX. R. EVID. 901(a). The trial court need not be persuaded that
the proffered evidence is authentic. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim.
App. 2012). The preliminary question for the trial court to decide is simply whether the
proponent of the evidence has supplied facts that are sufficient to support a reasonable
jury determination that the evidence he has proffered is authentic. Id. We review a trial
court’s ruling on the admissibility of evidence for an abuse of discretion. Id. If the trial
court’s ruling that a jury could reasonably find proffered evidence authentic is at least
within the zone of reasonable disagreement, we will not disturb the trial court’s ruling. Id.
B. Discussion
On appeal, Azamar solely argues that the trial court abused its discretion in
overruling his authenticity objection. Therefore, we will only review the trial court’s ruling
related to Azamar’s authenticity objection. See TEX. R. APP. P. 47.4. Prior to the
admission of the medical records, Chavez testified that she was not the custodian of the
records, and Azamar objected. The State argued that the medical records were
business records, and the trial court admitted the records over Azamar’s objections.
Azamar argues that because “evidentiary prerequisites for self-authentication or alternate
predicates of admissibility” were not met in this case, the trial court abused its discretion
in admitting the evidence. We disagree.
The State laid a sufficient predicate to admit the medical records by eliciting
testimony from Chavez that the records offered were Chavez’s notes made during A.C.’s
13
February 27, 2013 visit. Chavez testified that she created the documents, that the
handwriting was hers, and that the records were created during A.C.’s medical
examination. Accordingly, we hold that the trial court’s ruling was within the zone of
reasonable disagreement, and it did not abuse its discretion in admitting the evidence
over Azamar’s objection. See Tienda, 358 S.W.3d at 638. We overrule Azamar’s fifth
issue.
VI. EXPERT TESTIMONY
By his sixth issue, Azamar argues that the trial court abused its discretion in
qualifying Chavez as an expert in women’s health care and in pediatrics over his
objection.
A. Standard of Review and Applicable Law
The special knowledge which qualifies a witness to give an expert opinion may be
derived from specialized education, practical experience, a study of technical works, or a
varying combination of these things. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.
2000) (citing Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995)); see TEX. R.
EVID. 702. The question of whether a witness offered as an expert possess the required
qualifications rests largely in the trial court’s discretion. Wyatt, 23 S.W.3d at 27.
Absent a clear abuse of that discretion, the trial court’s decision to admit or exclude
testimony will not be disturbed. Id. The party proffering the expert witness bears the
burden of showing that the witness is qualified on the specific matter in question. Id.
B. Discussion
Azamar argues that because Chavez lacked published works in the field of nursing
and pediatrics and lacked expertise, training, or certification to perform sexual assault
14
examinations, the trial court abused its discretion in recognizing her as an expert in
women’s health care and pediatrics. We disagree.
Prior to being tendered as a testifying expert in the field of women’s health care
and pediatrics, Chavez testified that she graduated as valedictorian of her licensed
vocational nursing class in 1989, became a registered nurse after graduating from the
“University of New York,” and received her nurse practitioner’s license in 2001 after
graduating from the University of Texas Southwestern Medical Center in Dallas.
Furthermore, Chavez testified that she is a board certified nurse practitioner in women’s
healthcare, which includes the examination of children. Chavez also testified that she
was certified to examine patients under the Texas Health Steps Program, which requires
all Medicaid recipients to receive physical exams and immunizations from birth until the
age of twenty-one. Finally, Chavez testified over the last nine years, she has examined
approximately 2,400 children annually.
Azamar is correct that Chavez has not published any written works in the field of
nursing and pediatrics and that she is not certified to conduct sexual assault
examinations. However, when exercising its discretion to certify a witness as an expert,
the trial court examines the witness’s specialized education, practical experience, study
of technical works, or a varying combination of these things. Wyatt, 23 S.W.3d at 27.
We conclude that the trial court acted within its discretion to certify Chavez as a testifying
expert for the State in the field of women and pediatric health care based upon her
specialized education, board certification, and practical experience in these fields. We
overrule Azamar’s sixth issue.
15
VII. CUMULATIVE ERROR
By his seventh and final issue, Azamar asserts that “the aggregate effect of the
cumulative errors by the trial court and Azamar’s attorney [argued in his brief] have
adversely affected his substantial rights to a fair and impartial trial.”
While it is conceivable that a number of errors may be found harmful in their
cumulative effect, no authority holds that non-errors may in their cumulative effect cause
error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en
banc). Because we have no found no error in this appeal, we overrule Azamar’s seventh
issue.
VIII. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
21st day of May, 2015.
16
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466 U.S. 96 (1984)
LOUISIANA
v.
MISSISSIPPI ET AL.
No. 86, Orig.
Supreme Court of United States.
Argued January 16, 1984
Decided April 2, 1984
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
*97 J. I. Palmer, Jr., Special Assistant Attorney General of Mississippi, argued the cause for defendants. With him on the brief were Bill Allain, Attorney General, William S. Boyd III, Special Assistant Attorney General, and Mitchell Emmett Ward.
David C. Kimmel, Assistant Attorney General of Louisiana, argued the cause for plaintiff. With him on the brief were William J. Guste, Attorney General, Gary L. Keyser, Assistant Attorney General, and Ernest S. Easterly III.
JUSTICE BLACKMUN delivered the opinion for the Court.
This original action was filed by the State of Louisiana against the State of Mississippi and Avery B. Dille, Jr., to resolve a dispute as to the boundary between the two States in a reach of the Mississippi River above the Giles Bend Cutoff, upstream from the city of Natchez. The Report of the Special Master, however, stops short of ascertaining the entire boundary along this stretch, for the Master would have us resolve the case in Louisiana's favor with the conclusion that throughout the period 1972-1982, the years relevant to this litigation, the actually contested point the place in the riverbed of the "bottom hole" of a particular producing oil well at all times was west of wherever that boundary line might have been and was within the State of Louisiana. Therefore, the Special Master observes, we need go no further in bringing this controversy to an end.
Mississippi has filed exceptions to the Special Master's Report, Louisiana has filed its response to those exceptions, the *98 case has been argued orally, and the matter, thus, is before us for disposition.
I
In the area in question, the Mississippi River marks the boundary between Mississippi and Louisiana. See Act of Apr. 8, 1812, 2 Stat. 701, admitting Louisiana to the Union; Act of Mar. 1, 1817, 3 Stat. 348, and Joint Resolution of Dec. 10, 1817, 3 Stat. 472, admitting Mississippi to the Union. Under Mississippi law, an owner of land riparian to the Mississippi River has title to the riverbed out to the Louisiana line. Morgan v. Reading, 11 Miss. 366 (1844); The Magnolia v. Marshall, 39 Miss. 109 (1860); Wineman v. Withers, 143 Miss. 537, 547, 108 So. 708 (1926). Under Louisiana law, however, the State owns the riverbed out to the Mississippi line. State v. Capdeville, 146 La. 94, 106, 83 So. 421, 425 (1919); Wemple v. Eastham, 150 La. 247, 251, 90 So. 637, 638 (1922).
In July 1970, Louisiana, acting in its proprietary capacity, executed an oil and gas lease covering the area of the riverbed now in dispute. In January 1971, defendant Dille executed a similar lease. Each lease ran to the same operator. The lessee drilled a well directionally under the river from a surface location on riparian land owned by Dille on the Mississippi side. The well was completed in January 1972. Its bottom-hole location is known and agreed upon. See Tr. of Oral Arg. 25-26. It has been producing continuously since its completion. Mississippi acknowledges that when the well was completed and production began, the bottom hole was in Louisiana. Mississippi's Exceptions 2.
On June 20, 1979, Dille instituted suit in the Chancery Court of Adams County, Miss., against Louisiana and certain individuals and entities then holding working interests in the leasehold estates under the Dille and Louisiana leases. Dille, as plaintiff, alleged that the boundary between the States had migrated westerly so that the bottom hole of the well was within Mississippi and thus subject to the Dille *99 lease. The defendants in that action removed it to the United States District Court for the Southern District of Mississippi. It remains pending in that court (Civil Docket No. W79-0069(R) sub nom. Dille v. Pruet & Hughes Co. (a partnership) et al.).
Louisiana, on December 21, 1979, filed a motion with this Court for leave to file a bill of complaint against Mississippi and Dille. Although Mississippi opposed the motion, we granted leave to file. 445 U. S. 957 (1980). The Federal District Court in Mississippi, on the joint motion of the parties to the removed action, then stayed the proceedings before it pending resolution of this original-jurisdiction suit. Meanwhile, the defendants here filed their answer. We appointed Charles J. Meyers of Denver, Colo., as Special Master. 454 U. S. 937 (1981).
The Master proceeded with a pretrial conference and a schedule for discovery. A motion to intervene, filed by individuals and corporations asserting mineral interests in the Louisiana lease, was denied by the Master. By the same order, the Master specified that the proper issue for this Court to resolve was the location of the Louisiana-Mississippi boundary relative to the bottom-hole location of the oil well. On that basis, the case went to trial before the Master in New Orleans on September 20, 1982.
II
The bed of the Mississippi River between Louisiana and Mississippi has been the subject of other original-jurisdiction litigation here. See Louisiana v. Mississippi, 202 U. S. 1 (1906); Louisiana v. Mississippi, 282 U. S. 458 (1931); Louisiana v. Mississippi, 384 U. S. 24 (1966). In all three of those cases, this Court ruled that the "live thalweg" of the navigable channel of the Mississippi River was the boundary between the two States. 202 U. S., at 53; 282 U. S., at 459, 465, 467; 384 U. S., at 24, 25, 26. That issue must be regarded as settled. See Tr. of Oral Arg. 4. It forms the predicate, of course, for the present litigation.
*100 The Giles Bend Cutoff, north of Natchez, was constructed in the 1930's. It captured the main flow of the Mississippi River, which then abandoned an old westerly bend that had marked its principal course. The cutoff, being man-made and effectuating a channel change, obviously, was avulsive; there is, however, no question here as to the state boundary in the latitude of the cutoff itself. We are concerned with the area just upstream from the cutoff.
The proposition, stated above, that the live thalweg of the navigable channel of the Mississippi River is the boundary between Louisiana and Mississippi in itself affords little help in this case and does not take us very far. Indeed, the parties do not dispute the applicable general legal principles. Mississippi itself observes that there is "no serious disagreement. . . as to the law of the case." Mississippi's Exceptions 4. See Reply Brief for Louisiana 5.
A boundary defined as the live thalweg usually will be dynamic in that it follows the course of the stream as its bed and channel change with the gradual processes of erosion and accretion. Arkansas v. Tennessee, 246 U. S. 158, 173 (1918); Arkansas v. Tennessee, 397 U. S. 88, 89-90 (1970). In contrast, however, the boundary may become fixed when, by avulsive action, the stream suddenly leaves its old bed and forms a new one. Arkansas v. Tennessee, 246 U. S., at 173, 175; Arkansas v. Tennessee, 397 U. S., at 89-90. Thus, merely to say that the live thalweg is the boundary does not lead us here to an easy conclusion, for, as Mississippi argues, that thalweg may wander, and, if it wanders far enough, the bottom hole of this particular well may find itself at different times on opposite sides of the state line.
The matter is further complicated by the fact that the definition of the term "thalweg" has not been uniform or exact. The Master notes in his Report, at 4, that this Court, in Louisiana v. Mississippi, 202 U. S., at 49, observed that the term has been defined to mean "the middle or deepest or most navigable channel," but he points out correctly that *101 "the middle" or the "deepest" or the "most navigable" are not necessarily one and the same. Indeed, this Court itself acknowledged this fact in Minnesota v. Wisconsin, 252 U. S. 273, 282 (1920) ("Deepest water and the principal navigable channel are not necessarily the same"). The doctrine of the thalweg has evolved from the presumed intent of Congress in establishing state boundaries, and has roots in international law and in the concept of equality of access. Iowa v. Illinois, 147 U. S. 1 (1893). See Texas v. Louisiana, 410 U. S. 702, 709-710 (1973).
What emerges from the cases, however, is the proposition that the live thalweg is at "the middle of the principal [channel], or, rather, the one usually followed." Iowa v. Illinois, 147 U. S., at 13; Minnesota v. Wisconsin, 252 U. S., at 282. See New Jersey v. Delaware, 291 U. S. 361, 379 (1934). As the Master observed, and as the parties appear to agree, "the thalweg defines the boundary, and the ordinary course of traffic on the river defines the thalweg." Report, at 6. Our task, therefore, is to identify the downstream course of river traffic. It appears to us, as it did to the Master, to be a matter of evidence as to the course commonly taken downstream by vessels navigating the particular reach of the river. It is to the evidence that we now turn.
III
Three witnesses testified before the Master and did so at length. Each qualified as an expert. Two, Hatley N. Harrison, Jr., and Leo Odom, were presented by Louisiana. The third, Austin B. Smith, was presented by Mississippi. Each is a trained engineer who has spent much of his professional career attending to problems related to the surveying and mapping of rivers, river navigation, and flood control. The Master concluded that, despite questions raised by Mississippi as to the witnesses' relative qualifications, each had "professional qualifications needed to identify, interpret, and evaluate data relevant to the problem of locating the live *102 thalweg in the disputed reach of the river" and that each "did a commendable job." Id., at 7. We carefully have reviewed their testimony before the Master, and we have no reason to disagree with the Master's evaluation of their respective qualifications or with his observation as to the commendableness of their performances as witnesses.
Over 100 exhibits were admitted in evidence in conjunction with the testimony of the three experts. In particular, hydrographic surveys for each of the years 1972-1982 were admitted; these were prepared by the United States Army Corps of Engineers. The surveys contained data as to soundings, average low-water plane, contour lines, and gauge data. They noted the location of lights placed by the Coast Guard as an aid to navigation. Some also noted the location of buoys and floats that served to indicate the direction and relative velocity of the current. Louisiana introduced channel reports issued by the Coast Guard during the years 1976-1982; these were based on soundings and recommended a course by reference to lights and buoys.
The Master observed, id., at 10, that the hydrographic surveys provided the general characteristics of the disputed reach of the river. The area is approximately four miles long. Its general shape is an elbow-like bend with the concave bank on the Mississippi side. The bottom-hole location of the well is approximately one mile downstream from the point of the bend. The Gibson Light is about two and one-half miles upstream from that point. An uninterrupted trough of deep water never has been present in the disputed area. A trough of deep water, however, generally lies along the Louisiana bank, upstream from the point of the bend. Another trough lies along the Mississippi bank downstream from the point of the elbow. The riverbed, however, "rises markedly between the two troughs of deep water," id., at 11, and during each of the years in question downstream traffic has had to traverse a "crossing" of shallower water between the troughs. It is as to the navigation of this crossing that the expert witnesses disagreed.
*103 The sailing line or live thalweg placed on the hydrographic surveys by Louisiana's witness Harrison passed to the east of the bottom-hole location of the well for each of the years 1972-1982; it thus left the well within the State of Louisiana throughout that period.
Louisiana's other witness, Odom, took a somewhat different approach. He offered as the preferred sailing line, or live thalweg, a channel depicted on a particular map transposed onto the hydrographic surveys. His line and Harrison's line do not coincide. Odom's version, however, as did Harrison's, had the transposed channel line always well to the east of the bottom-hole location of the well. In other words, under witness Odom's version, too, the bottom hole always was west of the boundary and within Louisiana.
Mississippi's witness Smith followed another path. He stressed three factors: the downstream course, the track of navigation, and the thalweg. The first two, he indicated, are closely related and perhaps identical. The track of navigation can be established from navigational aids, such as lights and bulletins to mariners. The thalweg, however, is the line of deepest and swiftest water. It could be determined by the sounding and contour lines on the hydrographic surveys. Witness Smith did not explicitly use the navigational aids to determine the track of navigation. Instead, he determined the live course according to the thalweg evidence on the surveys. Thus, his method was to place the boundary along the line of deepest and swiftest water that he was able to discern from the soundings and contour lines. He applied this method to all reaches of the stream including the crossing.
Smith's approach placed the boundary line to the east of the bottom hole during the years 1972-1974. He, however, had the boundary line meander west so that it passed over the bottom hole on January 11, 1975. He had it then move east so that it passed over the bottom hole in that direction on December 20, 1977. Again, he had it move west and pass over the hole on April 10, 1981, and then to the east over the *104 hole on December 5, 1981. He thus presented a migrating boundary line that shifted the jurisdictional location of the well back and forth between the States. As previously noted, the Louisiana witnesses had the boundary line always to the east of the well. The witnesses therefore were in conflict with respect to the years 1975, 1976, 1977, and 1981.
The Master, in his Report, at 16-30, reviewed in detail and carefully analyzed the evidence for the disputed years. He noted that any inference as to the migration of the boundary must be made by reference to the navigational lights, the changing water depths, and the configuration of the riverbed as revealed by the surveys. Id., at 17. As to 1975, he had problems with Mr. Smith's testimony as to the manner in which a navigator would proceed downstream between the Gibson Light and the Giles Bend Cutoff Light, and as to a failure to take advantage of the first 3,500 feet of the lower trough of deep water.
As to 1976, the Master felt that witness Smith's boundary line was plausible as an indicator of the probable route of downstream traffic in the ordinary course. Id., at 25. The Master concluded, however, that maximum use of deep water led to a sailing line similar to the one the Master inferred for 1975; this also would have allowed the mariner to keep his tow pointed down river with no sharp turns and without encountering hazardous water within the crossing environment. He noted that a mariner proceeding along witness Smith's boundary line would nearly overrun a black buoy (ordinarily to be given a wide berth on the starboard side going downstream) and would have a second black buoy to port as he passed that buoy. Id., at 26. Mr. Smith defended this position on the ground that the second buoy appeared to be off station.
As to 1977, Mr. Smith's boundary line reflected a straight course across the neck of Giles Bend and passed to the west of the well by 750 feet. Id., at 27. The Master found "no evidence in the record" to support this placement of the line. Ibid.
*105 As to 1981, while a course along Mr. Smith's boundary line would encounter no hazards within the crossing, the Master observed that it would fail to make use of substantial portions of the deep-water troughs and thereby would lengthen the crossing. Id., at 29.
Thus, for the disputed years, the Master found either that the Smith line did not conform to the data available on the surveys, or that it was not conceivable that a mariner would adopt Smith's track of navigation and disregard important navigational aids such as lights and buoys, or that the Smith line failed to utilize substantial stretches of deep water, or that it bore little or no relationship to the course recommended by the Coast Guard. For each of those years, the Master then concluded that the route of the downstream traffic in the ordinary course passed to the east of the well.
Mississippi, of course, takes exception to the Master's conclusions. It stresses what it regards as the unparalleled expertise of witness Smith as a potamologist with decades of specific experience in the field. Mississippi suggests that the Master failed to understand Smith's testimony. Exceptions, at 11. It is said that witness Smith used all, not just part, of the data submitted. It is said that the Master did not grasp the concept of "filling the marks" and "breaking the tow down." Mississippi urges that the Master was in error in concluding that Smith did not use the navigational aids. All were used by Smith, it claims, in interpreting the hydrographic raw data. Id., at 20. It asserts that for 1975 Mr. Smith was correct in picking a course that took advantage of the deep water, the swift water, and the shortest distance through the crossing. Id., at 29. It says the same thing as to 1976. It stresses Smith's conclusion that the one black buoy was off station and that witness Odom's so-called "geological thalweg," that is, the deepest part of the river, also runs over the same black buoy. As to 1981, Mississippi asserts that there is no factual basis for the Master's statement that Smith's course lengthened the crossing. It is the Master's course that necessitated sharp turns. Thus, it is *106 claimed, the Master's course does not square with either the data or the "practical realities of navigating large tows on the river." Id., at 37.
These recitals, it seems to us, reveal the presence of a not unusual situation. Qualified experts differed in their conclusions. The Master heard all the testimony and drew his own conclusions. His recommendations to this Court are based on those conclusions. We have made our own independent review of that record and find ourselves in agreement with the Master. Louisiana's experts interpreted the hydrographic surveys for the years in question. They also considered the recommended sailing course as established by the Coast Guard. To be sure, the Coast Guard is not in the business of establishing state boundaries; it is, however, in the business of recommending safe sailing courses.
We therefore confirm the Master's recommendation and conclude that at all relevant times during the period from 1972-1982 the boundary between Mississippi and Louisiana was east of the bottom hole and, therefore, that the bottom hole was to the west of that line and within the State of Louisiana. This conclusion obviously resolves the case so far as the Louisiana and Dille leases, and the consequences that flow therefrom, are concerned.
IV
Mississippi's objections are addressed secondarily to the Master's refusal to delineate a specific boundary in the area for each of the 11 years from 1972 to 1982. It asserts that the Master's statement, Report, at 31, that the issue from the very beginning of the litigation has been "the location of the boundary in relation to the bottom hole" is, "in the purest sense, . . . simply not true." Exceptions, at 38. The principal issue, thus, "floats amorphous in the ether." Id., at 39. Mississippi speaks of regulatory and taxing authority and of the problem of the drainage of oil from the Dille property. It is said that Mississippi must have the exact location of the boundary so as to prescribe the limits of drilling units on the *107 Mississippi side of the river. A precise determination would also inure to the benefit of Louisiana. Mississippi asserts that Louisiana really requested this determination all along.
The Master specifically declined "to draw my own version of the boundary line for each of the 11 years for which hydrographs were admitted in evidence." Report, at 31. For him, it would be "wholly gratuitous and improper to draw a boundary line for seven undisputed years and for four years in which the well was found to be on the Louisiana side." Id., at 32.
We agree with the Master's conclusion that, despite any inferences that otherwise might flow from the specific prayer for relief in Louisiana's complaint, this original-jurisdiction litigation, as the case developed, centered, and remained centered, on the oil well's bottom hole. That issue emerged as the one, and the only one, to be resolved. Mississippi's stated reasons for granting complete yearly boundary relief are not persuasive, for we perceive no controversy before us apart from the location of the bottom hole. A proposed boundary decree for the entire stretch at the most would determine where the boundary was, not where it is now or where it will be in the future. Mississippi concedes that a boundary fixed for 1982 "would not be the boundary after [that year]," Tr. of Oral Arg. 9; that Mississippi was not making any claim for taxes for the 11 years, id., at 20; that it had not established drilling units on the Mississippi side, id., at 21; and that possible drainage of oil from the Dille land was Dille's "private concern . . . not the concern of the state," id., at 11-12. We are given no consequence that would flow from a more particularized boundary determination for these 11 years of the past.
The situation, of course, would be different, at least as to some of the years, had witness Smith's views prevailed. And if and when the boundary moves far enough west to place the well in Mississippi, then that State would have power to tax or to regulate the flow of oil, and drilling units perhaps would become pertinent. But the exact location of *108 the boundary in 1982 and earlier years has little bearing on evidence that might be produced in the future as to the boundary in that future. Taxes, and the other items referred to, have assumed no posture of critical significance between the two States for 1972-1982, and there has been no special claim identified for that period. It was the producing well's location that was the prize. If other boundary consequences mature and really come to issue between the States, either, of course, is free to institute appropriate litigation for their resolution.
V
The exceptions of Mississippi, therefore, are overruled. The recommendations of the Special Master are adopted and his Report is confirmed. We hold that at all times since the completion of the well in 1972 its bottom hole has been within the State of Louisiana.
If a specific decree to this effect is needed or desired, any party may prepare a decree and submit it for this Court's consideration.
It is so ordered.
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238 F.3d 755 (6th Cir. 2001)
Justin Knable, a minor by and through his mother and next friend Marilyn Knable, Plaintiff-Appellant/Cross-Appellee,v.Bexley City School District; and Phillip E. Tieman, Superintendent, Bexley Board of Education, Defendants-Appellees/Cross-Appellants.
Nos. 99-4326, 99-4394
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: November 2, 2000Decided and Filed: January 24, 2001
Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-01159, Edmund A. Sargus, Jr., District Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Franklin J. Hickman, Janet L. Lowder, HICKMAN & LOWDER, Cleveland, Ohio, for Appellant.
Julie Carleton Martin, Gregorry B. Scott, SCOTT, SCRIVEN & WAHOFF, Columbus, Ohio, John Curtis Albert, CRABBE, BROWN, JONES, POTTS & SCHMIDT, Columbus, Ohio, for Appellees.
Before: KEITH, BOGGS, and COLE, Circuit Judges.
OPINION
R. GUY COLE, JR., Circuit Judge.
1
Parents of a behaviorally disabled boy brought this action under the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C. §a1400 et seq., against the Bexley, Ohio, school district ("Bexley"). The parents sought reimbursement for the costs of placing their child in private school after they withdrew him from Bexley public schools. The district court affirmed the findings of the state Impartial Hearing Officer and denied the parents' request for reimbursement. The parents appeal, arguing that the school district committed both procedural and substantive violations of the IDEA, and consequently denied their son the "free appropriate public education" to which he was entitled under the Act. For the reasons that follow, we REVERSE the decision of the district court and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
2
The facts of this case are largely undisputed. Justin Knable was born on February 3, 1982, and was adopted by Marylin and Robert Knable a few days after birth. When Justin reached school age, his parents enrolled him in a private school, the Columbus Torah Academy. Justin began exhibiting behavioral problems in the first grade, and thereafter began receiving therapy from a private doctor and a child psychologist associated with his school. In early 1992, Justin was diagnosed with Attention Deficit Hyperactivity Disorder, oppositional defiant disorder, and dysthymia, and was prescribed medication for his conditions. In June of 1992, Justin was admittedto Upham Hall, an inpatient facility at The Ohio State University, due to his aggressive behavior at home.
3
Justin began attending Bexley public schools in the fifth grade (the 1992-93 school year) after Justin's doctor recommended placement in a more disciplined and structured school environment. Justin continued to demonstrate disruptive behavior while enrolled in Bexley schools.
4
At the beginning of Justin's sixth-grade year (1993-94), Bexley began the process of having Justin evaluated according to special education law. As early as August 31, 1993, a Teacher Conference Summary stated, "call Knables for permission to evaluate." Bexley officials signed a referral request on September 14, 1993, and mailed a parent-permission form on September 24, 1993. On September 30, 1993, the Knables consented to a multi-factored evaluation of Justin. On November 22, 1993, an evaluation team met and unanimously agreed that Justin was eligible for services for a Severe Behavior Handicap ("SBH"). Nadine Ross, the school psychologist, sent the results of the multi-factored evaluation to Justin's parents on November 23, 1993, and arranged to meet with them to discuss the evaluation and possible placements for Justin.
5
Because Bexley did not have an SBH unit within the school district at that time, Ms. Ross began investigating the availability of SBH placement settings for Justin outside the school district. Ms. Ross reviewed the SBH program at the Hannah Neil Center for Children ("Hannah Neil") and learned that the program had a space for an additional SBH student.
6
The Knables and Bexley officials met on December 8, 1993, to discuss the results of Justin's multi-factored evaluation as well as possible placement options. Dr. Hilliard, the principal of Maryland Elementary, recommended placing Justin in the SBH program at Hannah Neil. The Knables expressed doubts about the Hannah Neil program and asked about the possibility of a residential placement for Justin. Although the Knables agreed to visit the Hannah Neil facility and signed a release form so that Bexley might send Hannah Neil information about Justin, they never actually visited or spoke with the staff at Hannah Neil. At the conclusion of the December 8, 1993, meeting, Mr. Knable stated that he "would like to see an IEP" for Justin.1
7
Five days after this meeting, on December 13, 1993, the Knables admitted Justin to Upham Hall because of aggressive behavior at home. That same day, the Knables informed Bexley that Justin had been hospitalized and requested another meeting. The next day, December 14, 1993, the Knables met with Dr. Hilliard; Dr. Anne Hyland, a psychologist in the Bexley school district; and Bill Bowman, Justin's teacher. The Knables stated that Hannah Neil was not an acceptable placement for Justin. Mr. Knable and Bexley officials agreed, however, that Bexley would work with officials at Upham Hall on Justin's educational program while he was hospitalized. During this meeting, Mr. Knable again noted that Justin had not received an IEP. Dr. Hilliard agreed that Bexley did not have an IEP for Justin, but stated that Bexley did have plans for working with Justin.
8
Justin remained at Upham Hall from December 13, 1993, to December 22, 1993, and continued day treatment there from January 3, 1994, to February 23, 1994. After ending his treatment at Upham Hall, Justin returned to regular educational placement at Bexley, albeit with a plan intended to deal with his bad behavior. The plan was modified after Justin threatened to run away, and after he stated that he almost slit his wrists because of embarrassment. Justin did almost no work at school, spent a great deal of time in the principal's office, and failed three of hisseven subjects. He was often disrespectful to teachers and students, swore regularly, and disrupted classes by talking. Although Justin was not behaviorally out of control at school, the Knables viewed Justin's behavior at home to be explosive and uncontrollable at times.
9
The Knables and Bexley officials met again on April 6, 1994, and June 8, 1994, to discuss Justin's behavior and possible SBH placement. At the April 6 meeting, Mr. Knable again raised the issue of an IEP for Justin, and stated that he desired more information about an SBH placement for Justin before he would be willing to sign an IEP. At the June 8, 1994, meeting, Mr. Knable again asked when Justin's IEP would be forthcoming. Dr. Hilliard responded that Bexley would work on an IEP and get it to the Knables over the summer.
10
On July 6, 1994, Bexley officials met with a representative of Upham Hall, Mary Sidman, to discuss possible placements for Justin. Ms. Sidman suggested several characteristics and goals for a seventh-grade program for Justin. Dr. Hyland concluded from this meeting that the Harding School Plus program in nearby Worthington, Ohio, would satisfy the criteria recommended by Ms. Sidman. The Knables were not present at this meeting.
11
Throughout Justin's sixth-grade year and the following summer, the Knables had been exploring, on their own, possible residential placements for Justin. On August 16 or 17, 1994, Mrs. Knable completed enrollment and student information forms for Grove School, a psychiatrically-oriented residential program in Connecticut. Grove School officially accepted Justin into its program on August 18, 1994, at a total cost of $51,300 per year.
12
Also on August 18, 1994, Mr. Knable faxed a letter to Bexley again requesting a written IEP. Dr. Hyland indicated that Bexley was considering the Harding School Plus program as a possible placement for Justin and suggested that Mr. Knable visit Harding to review the program. Mr. Knable visited Harding on August 22, 1994. At a follow-up meeting with Dr. Hyland to discuss the proposed placement at Harding, the Knables raised concerns about the short length of the school day in the program, and the requirement that they pay $80 per day in therapy costs. Mr. Knable also asked whether Bexley would pay for private residential placement in the event the Knables did not agree to Harding School Plus. According to Mr. Knable, Dr. Hyland responded negatively to this inquiry by stating, "you really don't expect that I would write a check to a private school, do you?" At the conclusion of this meeting, Mr. Knable reiterated his demand for an IEP for Justin.
13
Dr. Hyland faxed Mr. Knable a "draft" IEP for Justin on August 30, 1994. The draft IEP proposed services at Harding School Plus and noted that "Bexley Schools will assume costs beyond what parent insurance will cover associated with the Harding School Plus program."
14
On September 12, 1994, the Knables accepted Grove School's offer of admission to Justin by sending a check to guarantee Justin's place in the seventh-grade class. The Knables did not respond to Bexley's "draft" IEP, nor did they inform Bexley of their decision to enroll Justin in Grove School. On September 15, 1994, Dr. Hyland wrote a follow-up letter to the Knables regarding the proposed IEP. The Knables' attorney responded by letter on September 20, 1994, and requested an IEP conference. Bexley officials did not ignore that request for an IEP conference; however, Bexley and the Knables agreed that they would not disclose the content of any subsequent meeting or meetings for purposes of this litigation.
15
Justin attended Grove School for two years. By the fourth marking period of the seventh grade at Grove School, he received all As and Bs on his report card.
B. Procedural Background
16
On January 31, 1995, the Knables formally requested a due process hearingseeking reimbursement for the costs of placing Justin at Grove School. An Impartial Hearing Officer ("IHO") conducted a four-day hearing in September of 1995 and made the following findings in a decision rendered in June of 1996:
17
1.The Knables have prevailed in establishing that Bexley did not convene an IEP conference.
18
2.Bexley has prevailed in establishing that it can provide a free appropriate public education to meet Justin's specific needs. Bexley is not responsible to pay the costs of placing Justin at Grove School or at any other residential facility.
19
3.The Knables have prevailed in establishing that any charges for services provided to Justin under the proposed IEP that would reduce the family's lifetime coverage limits under their family medical insurance would deprive Justin of a free education and are therefore impermissible. Neither the Knables nor their family medical insurer are responsible to pay such charges.
20
4.Bexley has prevailed in establishing that a residential placement is not required to provide a [free appropriate public education] to Justin.
21
Both parties requested a state level administrative review of the IHO's decision. On October 11, 1996, a State Level Review Officer ("SLRO") reversed the decision of the IHO due to its purported conflict with Wise v. Ohio Department of Educaction, 80 F.3d 177 (6th Cir. 1996), and dismissed the case. The Knables appealed the SLRO's ruling to the United States District Court for the Southern District of Ohio. Bexley then moved to dismiss the action under Fed. R. Civ. P. 12(b)(6), arguing that, under Wise, the Knables had waived their right to reimbursement because they did not request a due process hearing prior to placing Justin in Grove School. The district court denied Bexley's motion to dismiss, finding thatWise was factually distinguishable from the present case, relying in part on School Committee of Burlington, Mass. v. Department of Education, 471 U.S. 359 (1985), and Florence County School District Four v. Carter, 510 U.S. 7 (1993).
22
In light of the district court's order effectively overruling the SLRO's decision for purposes of determining whether the Knables had presented a claim for which relief could be granted, the parties stipulated that the district court's basis for review would be the decision of the IHO. Following a period of briefing and motions, the district court issued its opinion affirming the decision of the IHO in its entirety.
II. DISCUSSION
A. Overview of the IDEA2
1. Statutory framework
23
In exchange for federal funding, the IDEA requires states to identify, locate, and evaluate "all children residing in the State who are disabled . . . and who are in need of special education and related services . . . ." 20 U.S.C. § 1412(2)(C) (1994). States must provide all such disabled children a "free appropriate public education" ("FAPE"), 20 U.S.C. §1401(a)(18), and school districts receiving funds under the IDEA must establish an IEP for each child with a disability,see 20 U.S.C. § 1414(a)(5). Congress defined an IEP as follows:
24
[A] written statement for each child with a disability developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, orsupervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, the teacher, the parents or guardian of such child, and, whenever appropriate, such child . . . .
25
20 U.S.C. § 1401(a)(20). Under the Act, the IEP must contain a specific statement of the child's current performance levels, the child's short-term and long-term goals, the educational and other services to be provided, and criteria for evaluating the child's progress. See id. The meeting to develop an IEP must be held within thirty calendar days of a determination that the child needs special education and related services. See 34 C.F.R. §300.343(c) (1995). Placement decisions must be based on the IEP. See 34 C.F.R. pt. 300, app. C., cmt. 5. Furthermore, the IDEA requires the school district to review the IEP at least annually and to make any necessary revisions to ensure that the child is receiving an appropriate education. See 20 U.S.C. §1415(a)(5). Finally, the IDEA mandates that children with disabilities be educated with non-disabled children "to the extent appropriate." 20 U.S.C. § 1412(5); 34 C.F.R. §300.550.
2. Relief under the IDEA
26
The IDEA provides a process through which parents who disagree with the appropriateness of an IEP can seek relief. The process begins with a complaint to the school district, followed by a due process hearing at which parents are able to voice their concerns to an IHO of the state educational agency, as determined by state law. See 20 U.S.C. § 1415(b). Any party may appeal the result of this hearing to an SLRO. See 20 U.S.C. § 1415(c). Finally, any party aggrieved by the result of the hearing held before the SLRO may bring suit in the appropriate state court or federal district court. See 20 U.S.C. § 1415(e)(2).
27
During the course of such proceedings, parents and the school are required to continue the then-current educational placement of the child as set forth in the current IEP. See 20 U.S.C. §1415(e)(3)(A). If, however, parents opt not to comply with this so-called "stay-put" provision, they are not necessarily barred from recovering the costs of private placement. Rather, parents who elect to remove their child from public school prior to completion of the IDEA review process, and pay for appropriate specialized education themselves, may seek reimbursement for the amounts expended. See Burlington, 471 U.S. at 370. Parents are entitled to such retroactive reimbursement "only if a federal court concludes both that the public placement violated the IDEA, and that the private school placement was proper under the Act." Florence County, 510 U.S. at 15. Thus, parents who unilaterally remove their child from public school prior to completion of the IDEA review process "do so at their own financial risk." Id. (citing Burlington, 471 U.S. at 373-74).
28
When parents challenge the appropriateness of a program or placement offered to their disabled child by a school district under the IDEA, a reviewing court must undertake a twofold inquiry. See Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). First, the court must ask whether the school district has complied with the procedures set forth in the IDEA. See id. Second, the court must determine whether the IEP, developed through the IDEA's procedures, is reasonably calculated to enable the child to receive educational benefits. See id. There is no violation of the IDEA so long as the school district has satisfied both requirements. See id.
3. Standard of review
29
The IDEA's provision governing federal court review of state administrative decisions states that: "In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidenceat the request of a party, and, basing its decision on the preponderance of evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. §1415(e)(2). The Supreme Court has construed this provision to mean that initial reviewing courts should make "independent decisions" based on the preponderance of the evidence, but also should give "due weight" to the determinations made during the state administrative process. See Rowley, 458 U.S. at 206. Although reviewing courts must not "simply adopt the state administrative findings without an independent re-examination of the evidence," Doe v. Metro. Nashville Pub. Schs., 133 F.3d 384, 387 (6th Cir. 1998), neither may they "substitute their own notions of sound educational policy for those of the school authorities which they review," Doe v. Bd. of Educ. of Tullahoma City Schs., 9 F.3d 455, 458 (6th Cir. 1993) (quoting Rowley, 458 U.S. at 206).
30
According to this "modified" de novo standard of review, a district court is required to make findings of fact based on a preponderance of the evidence contained in the complete record, while giving some deference to the fact findings of the administrative proceedings. See Tucker, 136 F.3d at 503. This court, in turn, applies a clearly erroneous standard of review to the district court's findings of fact, and a de novo standard of review to its conclusions of law. See id.
B. Procedural Violations
31
Under the first prong of Rowley, we must determine whether Bexley has violated the procedural requirements of the IDEA. Even if we conclude that Bexley did not comply with the Act's procedural requirements, such a finding does not necessarily mean that the Knables are entitled to relief. Rather, we must inquire as to whether the procedural violations have caused substantive harm to Justin or his parents. See Metro. Bd. of Pub. Educ. v. Guest, 193 F.3d 457, 464-65 (6th Cir. 1999); Daugherty v. Hamilton County Schs., 21 F. Supp. 2d 765, 772 (E.D. Tenn. 1998). Only if we find that a procedural violation has resulted in such substantive harm, and thus constituted a denial of Justin's right to a FAPE, may we "grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).
32
1. Bexley failed to convene an IEP conference
33
As discussed supra, regulations enacted pursuant to the IDEA require a school district to convene a meeting to develop an IEP for a child within thirty calendar days of the determination that the child needs special education and related services. See 30 C.F.R. §300.343(c). This time limit ensures that there will not be a significant delay between the time the child is evaluated and the time the child begins to receive special education. See 34 C.F.R. pt. 300, app. C, cmt. 7. In addition, Ohio administrative regulations require school districts to conduct an IEP conference "as soon as possible," and, in any event, not more than ninety days after a child's parents consent to a multi-factored evaluation, or one hundred twenty days after school officials initially suspect the child as having a handicap, whichever comes first. See Ohio Admin. Code ("O.A.C.") §3301-51-02(E)(1)(c) (2000).3
34
Inasmuch as the Knables consented to Justin's multi-factored evaluation on September 30, 1993, Bexley was required to conduct an IEP conference for Justin no later than December 29, 1993. Bexley failed to do so. Bexley contends that the December 8, 1993, meeting between Bexley officials and the Knables was an IEP conference "for all intents and purposes."The district court found that that meeting was a "precursor" to an IEP conference but that it did not legally constitute an actual IEP conference. The record indicates that the purpose of the December 8, 1993, meeting was to inform the Knables of the results of Justin's multi-factored evaluation and to discuss Bexley's determination that Justin was suffering from a severe behavior handicap. There is no indication that the parties addressed the additional agenda items that comprise a formal IEP conference under the applicable regulations. See 34 C.F.R. § 300.343; 34 C.F.R. pt. 300, app. C., cmts. 7-35; O.A.C. §3301-51-02(E)(1)(d). Specifically, there was no determination of the nature and degree of special education intervention needed for Justin, and no decision as to an educational placement for Justin. See O.A.C. § 3301-51-02(E)(1)(d). Moreover, the meeting did not result in the production of an IEP document for Justin. See id. Rather, Bexley merely encouraged the Knables to consider the Hannah Neil program as a possible placement for Justin. Thus, the district court did not err in finding that the December 8, 1993, meeting was not an IEP conference.
35
Bexley argues, in the alternative, that even if it failed to convene an IEP conference for Justin within the applicable time period, such failure was due to the Knables' lack of cooperation with school officials. Bexley asserts that it was unable to convene a formal IEP conference until the Knables tentatively agreed to a proposed placement for Justin. Bexley felt that such a tentative agreement on the part of the Knables was required before an IEP conference could be convened because it believed that a representative from the proposed placement had to be present at the IEP conference under the governing administrative regulations. Bexley thus argues that because the Knables refused to agree with school officials even tentatively about any proposed placements for Justin, the Knables effectively prevented Bexley from convening a formal IEP conference.
36
Bexley's argument fails, however. Although it is true that the regulations to which Bexley refers provide for the involvement of a representative from the proposed placement in the development of the IEP, see 34 C.F.R. § 300.348(a)(2); O.A.C. § 3301-51-02(D)(4), nowhere in the regulations is it required that the parents of a disabled child agree with the school district's proposed placement before an IEP conference can be held. To the contrary, the regulations expressly provide for the development of an IEP without parental involvement. See 34 C.F.R. § 300.345(d); 34 C.F.R. pt. 300, app. C., cmt. 29; O.A.C. § 3301-51-02(E)(3); see also Cordrey v. Euckert, 917 F.2d 1460, 1467 (6th Cir. 1990) (discussing proper procedure when school district is unable to convince parents to attend IEP conference). Bexley's position that it could not convene an IEP conference until it obtained the Knables' tentative approval of a proposed placement for Justin was erroneous, therefore, and does not justify Bexley's failure to conduct the IEP conference.
37
Thus, we find that the district court's conclusion that Bexley failed to convene an IEP conference for Justin was correct.
38
2. Bexley's procedural violation denied Justin a FAPE
39
This conclusion does not end our analysis, however. As discussed supra, a procedural violation of the IDEA is not a per se denial of a FAPE; rather, a school district's failure to comply with the procedural requirements of the Act will constitute a denial of a FAPE only if such violation causes substantive harm to the child or his parents. See Guest, 193 F.3d at 464-65;Daugherty, 21 F. Supp. 2d at 772. Substantive harm occurs when the procedural violations in question seriously infringe upon the parents' opportunity to participate in the IEP process. See W.G. v. Bd. of Trustees of Target Range Sch.Dist. No. 23, 960 F.2d 1479, 1484 (9th Cir. 1992). In addition, procedural violations that deprive an eligible student of an individualized education program or result in the loss of educational opportunity also will constitute a denial of a FAPE under the IDEA. See Babb v. Knox County Sch. Sys., 965 F.2d 104, 109 (6th Cir. 1992); W.G., 960 F.2d at 1484.
40
Here, the district court found that Bexley's failure to convene an IEP conference did not constitute a substantive deprivation of Justin's rights under the IDEA. Specifically, the district court held that, "based on a preponderance of evidence in the record, any procedural violations committed by Bexley or the aggregation of the violations did not result in the denial of an FAPE." In reaching its conclusion, the district court emphasized that Bexley had afforded the Knables opportunities to become involved in the process of formulating an IEP for Justin. The court also pointed to the cooperation between Bexley officials and the Knables during Justin's hospitalization at Upham Hall between January 1993 and February 1994. In light of these facts, the district court concluded that Bexley's failure to convene an IEP conference did not seriously infringe on the Knables' opportunity to participate in the IEP process or deny Justin educational opportunity.
41
We review the district court's conclusion de novo, see Tucker, 136 F.3d at 503; W.G., 960 F.2d at 1483 (holding question of whether child was denied FAPE is mixed question of law and fact that is reviewed de novo), and find that it is not borne out by the record. It is true that Bexley met with the Knables on several occasions to discuss Justin's behavioral problems and to review possible placement options for him. The record also reflects that Bexley worked with the Knables to ease Justin's transition from Upham Hall back to Bexley in February 1994. Such cooperation, however, is not the equivalent of providing parents a meaningful role in the process of formulating an IEP.
42
As discussed above, Bexley never convened an IEP conference for Justin. As a result, the Knables never were able to participate in an IEP conference. The IEP conference is the primary opportunity for parental involvement in the process of developing an IEP. See 34 C.F.R. §300.345(a); 34 C.F.R. pt. 300, app. C, cmt. 26 (stating that parents are intended to be "equal participants" and to play an "active role" in the IEP conference); see also Doe v. Defendant I, 898 F.2d 1186, 1191 (6th Cir. 1990) ("Adequate parental involvement and participation in formulating an IEP . . . appear to be the Court's primary concern in requiring that procedures be strictly enforced."). Bexley's assertion that the school district was unable to conduct an IEP meeting until the Knables had agreed to a placement for Justin does not excuse its failure to conduct an IEP conference. Because there was no IEP conference, Mr. and Mrs. Knable were denied any meaningful opportunity to participate in the IEP process. See W.G., 960 F.2d at 1484.
43
Moreover, the absence of an IEP at any time during Justin's sixth-grade year caused Justin to lose educational opportunity. Because Bexley never convened an IEP conference for Justin during the 1993-94 school year, Justin had no IEP at all during that year. Consequently, Justin did not have "access to specialized instruction and related services" that were "individually designed to provide educational benefit." Rowley, 458 U.S. at 201. Without an IEP in place, Justin's behavior and academic performance suffered. Justin's inappropriate behavior became more frequent over the course of his sixth-grade year and his academic performance deteriorated. Bexley's failure to convene an IEP conference thus resulted in Justin losing educational opportunity4. See Babb, 965 F.2d at 108. BecauseBexley's failure to convene an IEP conference both denied the Knables the opportunity to participate meaningfully in the IEP process and resulted in the loss of educational opportunity for Justin, we hold that the district court erred in concluding that Bexley's procedural violation did not constitute a denial of a FAPE under the IDEA.5
C. Substantive Violations
44
Having concluded that, under the first prong of Rowley, Bexley denied Justin a FAPE by virtue of its procedural violation of the IDEA, we need not determine whether the draft IEP proposed by Bexley offered Justin an appropriate program. The IDEA's procedural framework clearly provides that there can be no IEP unless an IEP conference is conducted first. See 20 U.S.C. §1401(a)(20); 34 C.F.R. §300.343(c); 34 C.F.R. pt. 300, app. C; O.A.C. § 3301-51-02(E). Because Bexley never convened an IEP conference, the "draft" IEP that Bexley presented to the Knables on August 30, 1994, cannot properly be considered an IEP for the purposes of Rowley.
45
In Babb, this Court applied the first prong of Rowley and concluded that the school district failed to adhere to the procedural requirements of the Act. See 965 F.2d at 107. Specifically, Babb found that the school district failed to conduct a proper evaluation of the child and, consequently, failed to provide the child with an IEP. See id. The Court then turned to the second prong of the Rowley analysis and stated:
46
[T]he school did not create an individualized educational program for Jason and did not meet Jason's specialized needs. Had the school properly complied with the Act's requirements . . . , the Babbs and the school system could have worked together to design a proper plan to best meet Jason's needs. The wisdom of hindsight in this instance, however, provides hollow comfort.
47
Id. at 108. As in Babb, the school district in this case failed to comply with the procedural requirements of the IDEA, resulting in a substantive deprivation of Justin's rights. As a consequence, there is no IEP for this Court to review under the second prong of Rowley.
48
However, even if we were to assume that Bexley substantially complied with the procedural requirements of the IDEA, we nonetheless would conclude that Bexley's proposed IEP of August 30, 1994, failed to provide a FAPE to Justin. As previously discussed, the second prong of Rowley requires this Court to determine whether Bexley's proposed IEP was reasonablycalculated to enable Justin to receive educational benefits. See 458 U.S. at 206-207. The party challenging the terms of an IEP bears the burden of proving that it is inappropriate. Cordrey, 917 F. 2d at 1469.
49
1. Bexley's draft IEP must be evaluated as written
50
As an initial matter, we note that we must limit our evaluation of Bexley's proposed IEP to the terms of the document itself, as presented in writing to the Knables. The IDEA specifically requires school districts to provide parents a formal written offer before either initiating a placement for a disabled child or otherwise providing a FAPE to the child. See 20 U.S.C. § 1415(b)(1)(C). In discussing the importance of the formal written offer requirement, the Ninth Circuit has noted that the requirement is not merely technical, but rather serves the important purpose of creating a clear record of the educational placement and other services offered to the parents. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994). The written offer not only helps to eliminate factual disputes between the school district and parents about proposed placements, but also "greatly assists parents in presenting complaints with respect to any matter relating to the . . . educational placement of the child." Id. (internal quotation marks omitted). The written offer requirement should therefore be enforced rigorously. See id.
51
The district court expressly addressed the question of whether Bexley's proposed IEP offered an appropriate program for Justin and agreed with the IHO's assessment of the quality of the proposed IEP and the Harding School Plus program, holding that "Bexley could have provided a free appropriate public education to meet Justin's specific needs . . . ." (emphasis added). The district court suggested that any unanswered questions resulting from deficiencies in the proposed IEP were the Knables' fault inasmuch as "Bexley offered 'continuing and abundant opportunities to the Knables to be involved in fashioning an IEP. . . .'"
52
The district court erred in relying on the IHO's finding that Bexley had the capacity to offer Justin an appropriate program. The district court should have limited its assessment to the terms of the draft IEP document itself. Although there was evidence in the record indicating what could have been provided at Harding, only those services identified or described in the draft IEP should have been considered in evaluating the appropriateness of the program offered. See id. at 1525-26 (considering only written placement offer in assessing appropriateness of program offered by school district); see also Burilovich v. Bd. of Educ. of Lincoln Consol. Schs., 208 F.3d 560, 568 (6th Cir.) (holding that oral proposal by school district about what could be offered is not an IEP), cert. denied, 121 S. Ct. 380 (2000); Cleveland Heights-Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 398 (6th Cir. 1998) (rejecting school district's argument that proposed IEP was "first draft" that would have been further developed had parents continued dialogue with school); Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1256 (D. Vt. 1996) (finding that issue before the court was whether proposed IEP complied with the IDEA, not whether an IEP might have been developed that would have complied). Moreover, as discussed previously, the Knables' refusal to agree on a proposed placement for Justin does not justify Bexley's noncompliance with the IDEA. Thus, the only offer of placement that was appropriately before the district court was that specified in Bexley's draft IEP dated August 30, 1994.
53
2. Bexley's proposed IEP did not offer an appropriate program
54
Under the IDEA, an IEP must include a statement of the child's present levels of educational performance, a statementof annual goals and short-term instructional objectives, a description of the specific educational services to be provided, a statement of needed transition services to be provided, the projected date of initiation of the program, and its expected duration. See 20 U.S.C. §1401(a)(20). Applicable federal regulations further provide that the written offer required by §1415(b)(1)(C) must include an explanation of the parents' procedural safeguards, an explanation of the school district's proposed actions, and a description of the evaluations and other records on which the agency based its proposal. See 34 C.F.R. § 300.505. Under both the IDEA and interpretive case law, the IEP embodied in such a written offer must provide services that are individualized to the child's needs. See 20 U.S.C. §1401(a)(20); Union Sch. Dist., 15 F.3d at 1525.
55
Bexley's draft IEP does not meet the requirements of the IDEA or its associated regulations. It does not contain a summary of the Knables' procedural rights. It fails to explain the options Bexley considered and the reasons why those options were rejected. It does not describe the evaluations, procedures, tests, records, or reports that Bexley used as a basis for its proposal. See 34 C.F.R. §300.505. Nor does the draft IEP substantially satisfy the requirements of 20 U.S.C. §1401(a)(20). See 30 C.F.R. pt. 300, app. C., cmts. 36-44 (discussing what should be included in the statement of the child's present performance levels, the goals and objectives to be achieved, and the special educational and related services to be offered). Rather, Bexley's draft IEP is just that -- a draft. It is a generalized proposal of behavioral and educational goals for Justin, with minimal details describing how the Harding School Plus program would help Justin meet such goals. The proposed program was developed by Bexley based on general information received from Harding, rather than on specific information concerning which services would best meet Justin's individual needs. Dr. Hyland, the author of the draft IEP, repeatedly stated that the document sent to the Knables was "not an IEP." Bexley's expert witness, Dr. James Christopher, also testified that he "would want more" than the program embodied in the draft IEP to address Justin's behavioral and educational problems.
56
In addition, Bexley's draft IEP did not offer a free program. The draft IEP stated that "Bexley Schools will assume costs beyond what parent insurance will cover." The district court and the IHO both found that the IEP required the Knables to exhaust their own insurance coverage before Bexley would pay. Due to the lifetime coverage limits for psychiatric care under the Knables' family medical insurance plan, the district court found that Bexley's proposed arrangement would result in costs to the Knables. Despite this finding, the district court did not conclude that the IEP as written denied Justin a FAPE. Rather, the district court held that, to the extent the proposed IEP imposed costs on the Knables, such charges were barred by the IDEA. As already discussed, however, a reviewing court must evaluate the propriety of the IEP based on the terms of the written offer itself, not on what the school district could have provided.
57
For the purposes of determining whether the Knables are entitled to reimbursement, the district court's role was to determine whether the proposed IEP provided a FAPE at the time offered. See Union Sch. Dist., 15 F.3d at 1525. As defined under the IDEA, a FAPE consists of "special education and related services . . . provided at public expense, . . . andwithout charge." 20 U.S.C. § 1401(a)(18)(A) (emphasis added). By the express terms of the Act, therefore, Bexley's proposed IEP did not provide a FAPE. Inasmuch as Bexley's proposed IEP failed to meet both the technical and substantive requirements of the IDEA, it did not provide Justin a FAPE as written. The district court erred in assessing the appropriateness ofthe program offered by Bexley based on what Bexley might have provided, as opposed to what Bexley actually promised in the draft IEP. Standing alone, Bexley's proposal was insufficient to meet the requirements of the IDEA.
D. The Knables' Right to Reimbursement
58
When a court determines that a school district has violated a child's rights under the IDEA, it is authorized to grant "such relief as the court determines is appropriate." 20 U.S.C. §1415(e)(2). Under this provision, "equitable decisions are relevant in fashioning relief," Burlington, 471 U.S. at 374, and courts enjoy "broad discretion" in so doing, id. at 369. Appropriate relief includes the reimbursement of costs associated with the private school placement of the child. See id.;see also Babb, 965 F.2d at 109 (holding that when school system violated IDEA's procedural requirements, reimbursement for costs of private placement was proper remedy). In order to receive reimbursement for private school placement, however, parents must demonstrate not only that the school district failed to provide a FAPE, but also that their own unilateral placement of the child in private school was proper. See Boss, 144 F.3d at 399 (citing Florence County, 510 U.S. at 7).
59
Inasmuch as the district court erroneously concluded that Bexley's proposed IEP was appropriate under the IDEA, it did not address the propriety of the Knables' placement of Justin at Grove School. In Florence County, the Supreme Court set forth the following standard for determining whether a unilateral placement is appropriate:
60
[W]hen a public school system has defaulted on its obligations under the Act, a private school placement is "proper under the Act" if education provided by the private school is "reasonably calculated to enable the child to receive educational benefits."
61
510 U.S. at 11 (citations omitted). The record before us amply demonstrates that Grove School satisfies this standard.
62
Grove School is a residential program for adolescents located in Connecticut and certified by the Connecticut Department of Education, the Connecticut Department of Children and Families, and the American Association of Psychological Services for Children. Each student at Grove School receives a Comprehensive Service Plan developed by a team including a therapist, a psychiatrist, teacher-counselors, and various administrators. Class sizes are small and students participate in frequent individual and group therapy sessions. Not surprisingly, Justin made significant educational progress during his two years at Grove School. The record indicates that the frequency of Justin's inappropriate behavior significantly decreased during his first year at Grove and his grades improved dramatically.
63
Bexley contends that the Knables are not entitled to reimbursement because Grove School was not the "least restrictive" placement as required by the IDEA. See 20 U.S.C. §1412(5); 34 C.F.R. §300.550. We noted in Boss, however, that parents who have not been treated properly under the IDEA and who unilaterally withdraw their child from public school will commonly place their child in a private school that specializes in teaching children with disabilities. See 144 F.3d at 400 n.7. We would vitiate the right of parental placement recognized in Burlington and Florence County were we to find that such private school placements automatically violated the IDEA's mainstreaming requirement. See id.
64
Bexley further argues that reimbursement is inappropriate because it would impose substantial costs on the school district when compared to the cost of the program offered by Bexley. The Court in Florence County expressly rejected this argument, however, and held that onceparents prove that the school district failed to offer an appropriate program, parents are entitled to reimbursement for private school placement so long as the placement was reasonably calculated to provide educational benefits. See 510 U.S. at 11. The Court stated:
65
There is no doubt that Congress imposed a significant financial burden on States and school districts that participate in the IDEA. Yet public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State's choice. This is the IDEA's mandate, and school officials who conform to it need not worry about reimbursement claims.
Id. at 15.6
66
In concluding that the Knables are entitled to reimbursement for the reasonable costs associated with Justin's education at Grove School, we are mindful of the Court's mandate in Burlington that equitable considerations are relevant in fashioning relief under 20 U.S.C. §1415(e)(2). See 471 U.S. at 374. Thus, on remand, the district court "must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required." Florence County, 510 U.S. at 16. Total reimbursement of the costs of Justin's Grove School education will not be appropriate if the court determines such costs to be unreasonable. See id.; see also Gadsby v. Grasmick, 109 F.3d 940, 955 (4th Cir. 1997) (holding that under Florence County, the district court is free on remand to award reimbursement only for those costs that it deems are reasonable). In any event, it is the district court's role in the first instance to weigh the equities in this case to determine the appropriate level of reimbursement to be awarded. See Gadsby, 109 F.3d at 955.
E. Issues on Cross-Appeal
67
Bexley raises two additional issues on cross-appeal, which may be disposed of succinctly. First, Bexley argues that the district court erred in refusing to allow into evidence the deposition testimony of psychologist Jack Naglieri, Ph.D., on the issues of whether Bexley's proposed IEP was appropriate and whether Grove School was an appropriate placement for Justin. The district court, mindful of the role of the administrative hearing in the IDEA relief process, rejected Bexley's proffer of that testimony on the basis that Dr. Naglieri's evaluation occurred after the IHO's hearing and could not have been considered at that hearing because he was hired by Bexley in 1997. The district court also found that the proffered testimony was duplicative of the evidence presented by Bexley at the IHO's hearing.
68
In discussing the proper standard of judicial review with respect to supplementing the administrative record under the IDEA, we have said:
69
[T]he reasons for supplementation [of the administrative record] will vary; they might include gaps in the administrative transcript owing to mechanicalfailure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing. The starting point for determining what additional evidence should be received, however, is the record of the administrative hearing.
70
Metro. Gov't v. Cook, 915 F.2d 232, 234 (6th Cir. 1990) (internal quotation marks omitted). In light of this standard, we find that the district court did not abuse its discretion in refusing to admit Bexley's additional evidence. See id.
71
Finally, Bexley argues that the Knables cannot maintain an IDEA action against Phillip E. Tieman, the Superintendent of Bexley Schools, in his individual capacity. The Knables do not address this question in their briefs, and the district court did not address it in its opinion. As such, Bexley's argument appears to be unopposed, and Superintendent Tieman should be dropped as a party to this case. See James v. Upper Arlington City Sch. Dist., 228 F.3d 764, 769 (6th Cir. 2000) (holding that claims against school officials are not proper under the IDEA absent claim that officials failed to act in fulfillment of statutory duties).
III. CONCLUSION
72
For the foregoing reasons, we REVERSE the decision of the district court and REMAND for further proceedings consistent with this opinion.
Notes:
1
An "IEP" is an "individualized education program," which schools must provide to disabled children under the IDEA.See 20 U.S.C. §1414(a)(5) (1994).
2
The IDEA was amended effective June 4, 1997, see Pub. L. No. 105-17, Tit. II, §201(a)(2)(C), 111 Stat. 37, 156 (1997), and these amendments have prospective application only. See Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 500-01 (6th Cir. 1998). The actions in this case cover periods under the prior law, and citations are to the prior law unless otherwise noted.
3
It is unclear whether, under certain circumstances, the Ohio regulations may grant school officials a longer time period in which to conduct the IEP conference than that afforded by the federal regulations. Inasmuch as Bexley failed to comply even with the longer time limit provided by the Ohio regulations, we need not address this issue.
4
The IHO found that Justin's final grades for the sixth grade "clearly establish that the year was not a loss," and pointed to Justin's subsequent success at Grove School as evidence that he had received "a firm educational base" while at Bexley. These conclusions are not supported by the record, however. In the final grading period of his sixth-grade year at Bexley, Justin received Fs in writing, spelling, and mathematics, Ds in reading and social studies, and Cs in science and health. Moreover, the improvement that Justin displayed in seventh grade while at Grove School highlights Justin's responsiveness to a program that effectively addressed his educational and behavioral needs, needs not adequately addressed while he was at Bexley.
5
Bexley suggests that the Knables' reference to Justin's sixth-grade year (1993-94) is inappropriate inasmuch as the Knables' due process request challenges only the adequacy of the IEP proposed by Bexley for Justin's seventh-grade year (1994-95). It is true that the Knables' due process request did not concern Justin's performance in 1993-94. Inquiry into Justin's performance during the 1993-94 school year is proper, however, for the purpose of determining whether Bexley's failure to convene an IEP conference resulted in a substantive violation of Justin's rights. If so, Bexley has denied Justin a FAPE and the Knables are entitled to relief. Moreover, Bexley admits that Justin's performance during the 1993-94 school year is relevant in assessing the school district's proposed IEP for Justin's seventh-grade year. Finally, Bexley's failure to convene an IEP conference during the 1993-94 school year denied Justin's parents a meaningful opportunity to participate in the development of the proposed IEP covering the 1994-95 school year. Thus, reference to Justin's sixth-grade year is appropriate.
6
Bexley contends that school districts are not required to "maximize the potential of handicapped children" under the IDEA, Rowley, 458 U.S. at 189, and argues that ordering reimbursement would unfairly require the school district to provide Justin the "educational equivalent of a . . . Cadillac," Tullahoma City Schs., 9 F.3d at 459. The case law to which Bexley refers, however, addresses only the question of whether a school district's proposed IEP sufficiently comports with the requirements of the IDEA. These cases do not affect our analysis of whether parents are entitled to reimbursement for the costs private placement once they have shown that the school district failed to offer an appropriate program. To the contrary, having shown that Bexley did not provide Justin a FAPE, the Knables need only demonstrate that Grove School was reasonably calculated to enable Justin to receive educational benefits. See Florence County, 510 U.S. at 11.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1879
JOHN FITZGERALD BROWN,
Plaintiff - Appellant,
v.
THOMAS SUPPLY COMPANY, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:08-cv-03124-CWH)
Submitted: January 13, 2011 Decided: January 18, 2011
Before MOTZ, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Fitzgerald Brown, Appellant Pro Se. Arthur Edward Justice,
Jr., Joseph Jakob Kennedy, TURNER PADGET GRAHAM & LANEY, PA,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Fitzgerald Brown appeals the district court’s
order accepting the recommendation of the magistrate judge and
granting summary judgment in favor of the Defendant in Brown’s
Title VII action. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Brown v. Thomas Supply Co., Inc., No.
2:08-cv-03124-CWH (D.S.C. July 2, 2010). 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
2
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1300
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jerry D. Franklin
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 17, 2012
Filed: October 2, 2012
____________
Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
____________
RILEY, Chief Judge.
Jerry Franklin was sentenced to 216 months imprisonment for possession with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(viii) and 18 U.S.C. § 2. On appeal, Franklin claims the district court1
1
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
procedurally and substantively erred by departing upwards 108 months under the
advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 5K2.2. We
affirm.
I. BACKGROUND
On November 20, 2009 in St. Louis, Missouri, Federal Drug Enforcement
Agency (DEA) investigators observed a man, carrying a bag and a bucket, exit a
building linked to methamphetamine manufacturing. The man entered the passenger
side of a truck driven by Franklin, who “sped off recklessly.” Law enforcement
officers pursued the truck while operating their lights and sirens.
Traveling, at times, between fifty and sixty miles per hour on city streets, the
truck collided with the front of a police car parked on the side of the road. At the
time of the collision, the police car’s emergency overhead lights were activated. DEA
agents on the scene “did not observe brake lights being activated on the . . . truck, and
[Franklin] made no apparent attempt to avoid the head-on collision.” One of the
officers in the parked police car testified the “truck [made] a quick deliberate left
turn . . . into the path of [the] parked police car.” Investigators later found
methamphetamine in the truck Franklin was driving.
As a result of the collision, one of the two officers inside the police car broke
his wrist, and the other officer suffered eight broken ribs, a tear in his left renal artery,
kidney damage so severe that surgery was required to remove the affected kidney, a
broken foot, a torn meniscus in his right knee, depression, and post-traumatic stress
disorder. This officer was unable to resume his law enforcement career.
Franklin pled guilty, pursuant to a written plea agreement, to possession with
intent to distribute methamphetamine. At Franklin’s sentencing hearing on June 18,
2010, the district court calculated an initial advisory Guidelines range of 87 to 108
months imprisonment. The government then moved to depart upwards by seven
-2-
levels under U.S.S.G. §§ 5K2.2 and 2A2.2 based upon the police officers’ significant
injuries. In response, Franklin’s counsel admitted Franklin’s “reckless behavior”
“irreparabl[y]” harmed the police officers, but denied that Franklin intended to injure
them.
Before ruling on the government’s motion, the district court announced it had
“considered all of the factors about [Franklin], including [his] history of drug abuse,”
his “upbringing[,] and [his] history of . . . mental health issues.” The district court
next considered the circumstances of Franklin’s offense, noting that Franklin was
intoxicated from methamphetamine at the time of his arrest and seriously injured the
two police officers, especially the officer whose loss of a kidney “clearly meets the
definition of being [a] permanent and life threatening” injury. The district court also
found Franklin “most culpable for [the] violent act” of driving the truck into the
police car.
The district court granted the government’s U.S.S.G. § 5K2.2 motion for an
upward departure and sentenced Franklin to 216 months imprisonment. The district
court explained “this sentence meets the sentencing objectives of providing just
punishment, as well as reflecting the seriousness of the offense, and providing
deterrence to [Franklin] and others.” See 18 U.S.C. § 3553(a)(2)(A)-(B). The district
court also deemed the sentence “appropriate” based upon “not just the Government’s
motion under 5K2.2, but . . . also all other factors about [Franklin] and about this
crime, and including the Sentencing Guidelines and all of the policy statements and
recommendations of the Guidelines.” The district court explained that the departure
was
within the Guidelines range [the government] suggested, but I’m not
departing seven levels, I’m departing from a range of 87 to 108 months
to a sentence of 216 months. You can calculate that by levels if you
wish to, but I’m looking at the sentence itself, as I believe I am required
to do under 3553(a), and not simply at the Guidelines. Those are simply
-3-
one factor I am considering. . . . It’s within the Guidelines range [the
government] suggested, but that is not why I selected it. I selected it
because I believe under all of the 3553(a) factors, it’s appropriate.
Franklin did not object to the departure or variance, the district court’s reasoning, or
his sentence.
Franklin appeals his sentence, claiming the district court committed both
procedural and substantive error “by failing to consider Franklin’s lack of intent when
determining the extent of an upward departure under U.S.S.G. § 5K2.2.”2
II. DISCUSSION
In reviewing the sentence imposed by the district court, we
must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007). If the district court did not
procedurally err, we “then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id.
2
The government contends the appeal waiver in Franklin’s plea agreement
precludes this appeal. Because we conclude the district court did not err or abuse its
sentencing discretion, we “do not address the government’s plea agreement appeal
waiver issue” and proceed to the merits of Franklin’s appeal. United States v. Dace,
660 F.3d 1011, 1014 n.2 (8th Cir. 2011).
-4-
A. No Procedural Error
Franklin contends the district court committed procedural error by failing “to
explain whether and to what extent it had considered [U.S.S.G. §] 5K2.2’s
recommendation that a substantial departure is warranted only when the referenced
injuries were intentionally inflicted.” (emphasis omitted). While the district court’s
comments concerning the nature of the increase in Franklin’s sentence are somewhat
ambiguous, we view this increase as more likely a variance, rather than a departure,
and conclude the district court did not abuse its considerable discretion by varying
upwards. See United States v. Richart, 662 F.3d 1037, 1053-54 (8th Cir. 2011)
(applying the standard of review).
If the district court’s increase were a departure, we respond to Franklin’s
arguments concerning an upward departure. We review this procedural challenge for
plain error because Franklin did not raise the challenge in the district court. See
United States v. Molnar, 590 F.3d 912, 914 (8th Cir. 2010). Under plain error review,
Franklin must show “(1) there was error, (2) the error was plain, and (3) the error
affected his substantial rights,” meaning it was prejudicial. Id. at 915. “In the
sentencing context, an error is prejudicial only if the defendant proves a reasonable
probability that he would have received a lighter sentence but for the error.” Id.
“[W]e will exercise our discretion to correct such an error only if the error ‘seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Id.
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
U.S.S.G. § 5K2.2 allows the district court to depart upwards from the
Guidelines range “[i]f significant physical injury resulted.” It provides,
[t]he extent of the increase ordinarily should depend on the extent of the
injury, the degree to which it may prove permanent, and the extent to
which the injury was intended or knowingly risked. When the victim
suffers a major, permanent disability and when such injury was
intentionally inflicted, a substantial departure may be appropriate. If the
-5-
injury is less serious or if the defendant (though criminally negligent)
did not knowingly create the risk of harm, a less substantial departure
would be indicated.
Id.
Contrary to Franklin’s assertion, U.S.S.G. § 5K2.2 allows substantial
departures not only when a defendant intends to inflict an injury, but also when the
defendant “knowingly risked” inflicting such an injury. See id.; cf. United States v.
Aitchison, 411 F. App’x 358, 360-61 (2d Cir. 2011) (unpublished) (affirming a fifty
percent upward departure under U.S.S.G. § 5K2.2 because the defendant acted
“reckless[ly],” even though the district court “doubt[ed] . . . whether [the defendant]
‘intentionally inflicted’ the victim’s injuries”). In Franklin’s case, ample evidence
suggests Franklin knowingly risked injuring the officers. The marked police car
Franklin hit had its “emergency overhead lights on” and was parked on the side of the
street. Despite the police car’s visibility, DEA “[a]gents did not observe brake lights
being activated on the [truck Franklin was driving], and [Franklin] made no apparent
attempt to avoid the head-on collision.” Franklin made “a quick deliberate left
turn . . . into the . . . parked police car.” Franklin’s counsel admitted at sentencing
that Franklin’s behavior was “reckless.” The district court did not plainly err in
determining the officer who suffered, as a result of Franklin’s conduct, eight broken
ribs, a torn renal artery, kidney loss, and other serious injuries incurred a significant
physical injury. See United States v. Reyes, 557 F.3d 84, 88 (2d Cir. 2009) (holding
an upward departure under U.S.S.G. § 5K2.2 was not error or an abuse of discretion
where the victim suffered “permanent and life-threatening injuries”).
Although the district court did not expressly refer to Franklin’s state of mind
in injuring the officers, the district court heard argument on this issue and stated it
had considered “all of the policy statements and recommendations of the Guidelines”
in crafting Franklin’s sentence. This was sufficient. See United States v. Gray, 533
F.3d 942, 944 (8th Cir. 2008) (noting “not every reasonable argument advanced by
-6-
a defendant requires a specific rejoinder by the judge”). The district court did not
plainly err or abuse its discretion either in varying upwards or in departing upwards
to a sentence of 216 months imprisonment. Nor did the district court plainly err in
explaining the reasons for the variance or departure.
B. Substantive Reasonableness
Franklin asserts his sentence is substantively unreasonable because the district
court (1) “failed to consider Franklin’s intent in causing the injury, which is a relevant
factor that should have received significant weight”; and (2) “did not adequately
explain how [the other § 3553(a) factors] could support such a significant upward
departure independent of the reasoning in U.S.S.G. § 5K2.2.”
[A]ll that is generally required . . . is evidence that the district court was
aware of the relevant factors. . . . If a district court “references some of
the considerations contained in § 3553(a), we are ordinarily satisfied
that the district court was aware of the entire contents of the relevant
statute.”
United States v. Perkins, 526 F.3d 1107, 1110-11 (8th Cir. 2008) (quoting United
States v. White Face, 383 F.3d 733, 740 (8th Cir. 2004)). The district court noted it
had considered the § 3553(a) factors, discussing several specifically. The district
court did not abuse its discretion. The sentence is not substantively unreasonable.
III. CONCLUSION
Because the district court did not commit any error or abuse its discretion, we
affirm.
______________________________
-7-
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/26/2019 09:07 AM CDT
- 245 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
Christine W., appellant, v.
Trevor W., appellee.
___ N.W.2d ___
Filed May 24, 2019. No. S-18-922.
1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
2. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
4. Statutes. Statutory language is to be given its plain and ordinary
meaning.
5. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
6. Juvenile Courts: Statutes: Jurisdiction. A juvenile court is a statuto-
rily created court of limited and special jurisdiction, and it has only the
authority which the statutes confer on it.
7. Courts: Juvenile Courts: Jurisdiction: Parental Rights. A juvenile
court lacks statutory authority under Neb. Rev. Stat. § 42-364(5) (Cum.
Supp. 2018) to transfer a proceeding back to the district court where:
(1) The district court, having subject matter jurisdiction of a modifica-
tion proceeding under § 42-364(6) in which termination of parental
rights has been placed in issue and having personal jurisdiction of the
parties to that proceeding, has transferred jurisdiction of the proceed-
ing to the appropriate juvenile court; (2) termination of parental rights
remains in issue and unadjudicated in the transferred proceeding; (3) the
State is not involved in the proceeding and has not otherwise asserted
jurisdiction over the child or children involved in the modification
proceeding; and (4) the juvenile court has not otherwise been deprived
of jurisdiction.
- 246 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
Appeal from the County Court for Washington County,
C. M atthew Samuelson, Judge, on transfer thereto from the
District Court for Washington County, John E. Samson, Judge.
Judgment of County Court vacated and remanded.
Scott V. Hahn, of Hightower Reff Law, and, on brief, Tosha
Rae D. Heavican for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
After Trevor W. commenced a modification proceeding in
the district court, Christine W. counterclaimed to terminate
Trevor’s parental rights and obtained an order transferring the
proceeding to the county court, sitting as a juvenile court. But
when the proceeding reached the juvenile court, it “denie[d]”
the transfer and purportedly returned the proceeding to dis-
trict court. Christine appeals from the juvenile court’s order.
Because the juvenile court’s order purporting to transfer the
proceeding back to district court was beyond the juvenile
court’s statutory authority and void, we vacate that order and
remand the cause to the juvenile court for further proceedings
consistent with this opinion.
BACKGROUND
Statutory Framework
In order to understand the procedural background of this
appeal, the reader needs some familiarity with the statutes
concerning jurisdiction of trial courts over the matters at issue:
modification of a parenting plan and termination of parental
rights. Before setting forth the specific statute controlling the
transfer from district court to juvenile court of a proceeding
where termination of parental rights has been placed in issue,
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
we begin by recalling statutes identifying the authority of dis-
trict, county, and juvenile courts over such matters. We then
summarize the specific statute addressing transfer or retention
of a district court proceeding where termination of parental
rights has been placed in issue.
Under Nebraska’s marital dissolution, separation, annulment,
custody, and support statutes,1 a proceeding is commenced by
filing a “complaint” in the district court.2 Consequently, disso-
lution and custody proceedings begin in the district court.
But another statute3 authorizes “domestic relations matters,”4
which includes dissolution and custody proceedings, to be
heard by a district court judge or a county court judge.5
Consistent with that other statute, the statute governing com-
mencement of a marital dissolution and custody proceeding
authorizes the proceeding to be heard “by the county court or
the district court as provided in section 25-2740.”6
Despite the procedure allowing selection of a county court
judge in a domestic relations matter, the matter remains as a
district court proceeding and achieves the same finality as a dis-
trict court judgment. According to § 25-2740(2), the party shall
state in the complaint whether he or she wants the proceeding
to be heard by a district court judge or by a county court judge.
If the party requests a county court judge, “the county court
judge assigned to hear cases in the county in which the matter
is filed at the time of the hearing is deemed appointed by the
district court and the consent of the county court judge is not
required.”7 Where the proceeding is heard by a county court
1
Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp. 2018).
2
§ 42-352.
3
Neb. Rev. Stat. § 25-2740 (Cum. Supp. 2018).
4
See § 25-2740(1)(a) (defining “[d]omestic relations matters”).
5
§ 25-2740(2).
6
§ 42-352.
7
§ 25-2740(2).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
judge, it is “considered a district court proceeding” and “an
order or judgment of the county court in a domestic relations
matter has the force and effect of a district court judgment.”8
Section 42-364(6) authorizes modification proceedings relat-
ing to support, custody, parenting time, visitation, other access,
or removal of children from the jurisdiction of the court. A
proceeding to modify a parenting plan is “commenced by fil-
ing a complaint to modify.”9 Under §§ 42-348 and 42-351(1),
a district court has jurisdiction to adjudicate such actions. But
under § 42-348, marital dissolution and custody proceedings
“may be transferred to a separate juvenile court or county
court sitting as a juvenile court which has acquired jurisdiction
pursuant to section 43-2,113.”
Neb. Rev. Stat. § 43-2,113(2) (Cum. Supp. 2018) provides
that a juvenile court “shall have and exercise jurisdiction . . .
with the county court and district court in all matters arising
under Chapter 42, article 3, when the care, support, custody,
or control of minor children under the age of eighteen years
is involved.” The statute dictates, “Such cases shall be filed in
the county court and district court and may, with the consent
of the juvenile judge, be transferred to the trial docket of the
separate juvenile court or county court.”10
Most proceedings seeking termination of parental rights fall
within the jurisdiction of the juvenile courts.11 Such jurisdiction
is concurrent with the county court or district court.12
With this general framework in mind, we now recite the
statute governing retention or transfer of a proceeding where
termination of parental rights has been placed in issue—which
is the situation in the proceeding before us.
8
Id.
9
§ 42-364(6).
10
§ 43-2,113(2).
11
Neb. Rev. Stat. § 43-247(6) (Reissue 2016).
12
See Neb. Rev. Stat. § 43-246.01(3)(b) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
Section 42-364(5) states:
Whenever termination of parental rights is placed in issue
the court shall transfer jurisdiction to a juvenile court
established pursuant to the Nebraska Juvenile Code unless
a showing is made that the county court or district court
is a more appropriate forum. In making such determina-
tion, the court may consider such factors as cost to the
parties, undue delay, congestion of trial dockets, and rela-
tive resources available for investigative and supervisory
assistance. A determination that the county court or dis-
trict court is a more appropriate forum shall not be a final
order for the purpose of enabling an appeal. If no such
transfer is made, the court shall conduct the termination
of parental rights proceeding as provided in the Nebraska
Juvenile Code.
Thus, when termination of parental rights is placed in issue in a
district court dissolution and custody modification proceeding,
the district court is required to transfer jurisdiction to a juve-
nile court unless the district court concludes that it is the more
appropriate forum.
Although this court13 and the Nebraska Court of Appeals14
have only occasionally reviewed proceedings to terminate
parental rights which were retained and actually adjudicated
in district court, the statutes authorize a district court to do so.
Often, the decision to do so may turn on the “relative resources
available for investigative and supervisory assistance.”15
Typically, a district court will conclude that where termination
13
See, e.g., Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013);
R.D.N. v. T.N., 218 Neb. 830, 359 N.W.2d 777 (1984), disapproved on
other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
14
See, e.g., Timothy T. v. Shireen T., 16 Neb. App. 142, 741 N.W.2d 452
(2007); Worm v. Worm, 6 Neb. App. 241, 573 N.W.2d 148 (1997); Joyce S.
v. Frank S., 6 Neb. App. 23, 571 N.W.2d 801 (1997), disapproved on other
grounds, Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998).
15
§ 42-364(5).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
of parental rights has been placed in issue, the proceeding
should be transferred to the juvenile court under § 42-364(5).
With that understanding in place, we turn to the circumstances
presented here.
Dissolution of M arriage
The parties are the biological parents of a child born in
2009. In a 2012 decree, the Washington County District Court
dissolved the parties’ marriage. The decree included a parent-
ing plan. The district court’s decree awarded Christine legal
and physical custody of the child and provided Trevor with
regular parenting time.
R equests for Modification
and Termination
In 2018, Trevor filed in the district court a “motion” to
modify the parenting plan. His motion noted that he was
“incarcerated” and requested, among other things, at least one
30-minute telephone call per week and two visits per month.
Christine responded by filing a counterclaim for termination
of Trevor’s parental rights under § 43-247(6) and Neb. Rev.
Stat. § 43-292(1), (2), and (9) (Reissue 2016). She alleged
that in May 2014, the Washington County District Court sen-
tenced Trevor to 25 to 35 years’ incarceration following a
conviction for four counts of sexual assault in the first degree.
Alternatively, Christine asked that the court modify the decree
and parenting plan to provide for “no court-ordered parenting
time or contact” between Trevor and the child.
Motion to Transfer Jurisdiction
Shortly after a hearing in which the district court expressed
doubt that it had jurisdiction to terminate parental rights,
Christine moved to transfer “jurisdiction of the above-captioned
matter” to the county court for Washington County, acting as a
juvenile court. The district court held a hearing on the motion,
during which Trevor stated that he had no objection to it. The
district court thereafter entered an order transferring the case
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
to the juvenile court “for all issues pertaining to the minor
child herein.” The order recited that the juvenile court had con-
sented to the transfer of jurisdiction to juvenile court.
Approximately 2 months later, the juvenile court entered a
“Transfer Order,” stating that it “does not accept said transfer
for lack of subject matter jurisdiction.” The order was filed in
the district court proceeding and acknowledged that the court
had earlier consented to the transfer. But the court stated that it
lacked jurisdiction based “upon further review of case law and
Neb. Rev. Stat. [§] 43-292.02.”
Neb. Rev. Stat. § 43-292.02 (Cum. Supp. 2018) provides:
(1) A petition shall be filed on behalf of the state to
terminate the parental rights of the juvenile’s parents or,
if such a petition has been filed by another party, the state
shall join as a party to the petition, and the state shall con-
currently identify, recruit, process, and approve a quali-
fied family for an adoption of the juvenile, if:
(a) A juvenile has been in foster care under the respon-
sibility of the state for fifteen or more months of the most
recent twenty-two months; or
(b) A court of competent jurisdiction has determined
the juvenile to be an abandoned infant or has made a
determination that the parent has committed murder of
another child of the parent, committed voluntary man-
slaughter of another child of the parent, aided or abetted,
attempted, conspired, or solicited to commit murder, or
aided or abetted voluntary manslaughter of the juvenile or
another child of the parent, or committed a felony assault
that has resulted in serious bodily injury to the juvenile
or another minor child of the parent. For purposes of this
subdivision, infant means a child eighteen months of age
or younger.
(2) A petition shall not be filed on behalf of the state to
terminate the parental rights of the juvenile’s parents or,
if such a petition has been filed by another party, the state
shall not join as a party to the petition if the sole factual
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
basis for the petition is that (a) the parent or parents of
the juvenile are financially unable to provide health care
for the juvenile or (b) the parent or parents of the juvenile
are incarcerated. The fact that a qualified family for an
adoption of the juvenile has been identified, recruited,
processed, and approved shall have no bearing on whether
parental rights shall be terminated.
(3) The petition is not required to be filed on behalf
of the state or if a petition is filed the state shall not be
required to join in a petition to terminate parental rights
or to concurrently find a qualified family to adopt the
juvenile under this section if:
(a) The child is being cared for by a relative;
(b) The Department of Health and Human Services has
documented in the case plan or permanency plan, which
shall be available for court review, a compelling reason
for determining that filing such a petition would not be in
the best interests of the juvenile; or
(c) The family of the juvenile has not had a reasonable
opportunity to avail themselves of the services deemed
necessary in the case plan or permanency plan approved
by the court if reasonable efforts to preserve and reunify
the family are required under section 43-283.01.
(4) Except as otherwise provided in the Nebraska
Indian Child Welfare Act, if a child is conceived by the
victim of a sexual assault, a petition for termination of
parental rights of the perpetrator shall be granted if such
termination is in the best interests of the child and (a) the
perpetrator has been convicted of or pled guilty or nolo
contendere to sexual assault of the child’s birth parent
under section 28-319 or 28-320 or a law in another juris-
diction similar to either section 28-319 or 28-320 or (b)
the perpetrator has fathered the child or given birth to the
child as a result of such sexual assault.
Section 43-292.02 has four main subsections. Generally,
each main subsection has a distinct purpose. Subsection (1)
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CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
generally establishes circumstances where the State has a duty
to seek termination of parental rights. Subsection (2) specifies
circumstances where, despite the command of subsection (1),
the State shall not seek termination. Subsection (3) identifies
situations excusing the State from the mandate of subsection
(1). And subsection (4) mandates termination of parental rights
in particular circumstances not present here.
In transferring the case back to district court, the juvenile
court apparently relied on § 43-292.02(3). The court explained,
“In review of [§] 43-292.02(3)([a]), the Court is of the opinion
that either [subs]ection (b) or (c) of [§] 43-292.02 must be com-
plied with in conjunction with (3)([a]) of said statute in order
to proceed to terminate a parent’s parental rights.” The order
does not cite any particular case law, and it is not clear how or
why the juvenile court arrived at this conclusion, particularly
given that the State has not been involved in this proceeding in
any way. The juvenile court then stated that because it did not
believe the statute had been followed, it was transferring the
case back to the district court “for further consideration.”
Eight days later, Christine filed a notice of appeal in the
district court proceeding. We moved the appeal to our docket.16
ASSIGNMENT OF ERROR
Christine assigns that the juvenile court erred in deny-
ing subject matter jurisdiction based on its application of
§ 43-292.02(3).
STANDARD OF REVIEW
[1] Subject matter jurisdiction and statutory interpretation
present questions of law.17
ANALYSIS
[2,3] Subject matter jurisdiction is the power of a tribunal to
hear and determine a case in the general class or category to
16
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
17
In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
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CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
which the proceedings in question belong and to deal with the
general subject matter involved.18 Lack of subject matter juris-
diction may be raised at any time by any party or by the court
sua sponte.19 Here, the juvenile court determined sua sponte
that it lacked subject matter jurisdiction.
The juvenile court’s conclusion is puzzling, because a
clear statutory path seems to dictate otherwise. First, reading
§ 43-246.01(3)(b) together with § 43-247(6), juvenile courts
have concurrent original jurisdiction over “proceedings for
termination of parental rights.” Second, the district court for
Washington County had subject matter jurisdiction of a pro-
ceeding seeking to modify a dissolution decree previously
entered by that court.20 Trevor invoked this jurisdiction by
filing his complaint to modify (styled as a motion). Christine
did likewise by her filings styled as a counterclaim and an
amended counterclaim. Third, the district court had personal
jurisdiction of the parties to the modification proceeding, who
both appeared voluntarily.21 The juvenile court’s order does
not dispute the district court’s jurisdiction of the modification
proceeding or that termination of parental rights was placed in
issue in that proceeding. Fourth, the district court transferred
jurisdiction to the county court for Washington County, sit-
ting as a juvenile court, pursuant to § 42-364(5). Under the
Nebraska Juvenile Code22 as applied to Washington County, a
“[j]uvenile court” means “the county court sitting as a juvenile
court.”23 Thus, the jurisdictional path ran from the district court
to the juvenile court.
Despite the juvenile court’s reasoning that it lacked subject
matter jurisdiction because of § 43-292.02, the juvenile court
18
Id.
19
Id.
20
See §§ 42-351(1) and 42-364(6).
21
See § 42-355.
22
Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2016 & Cum. Supp. 2018).
23
§ 43-245(12).
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CHRISTINE W. v. TREVOR W.
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did not dismiss the proceeding. Instead, it purported to transfer
the matter back to the district court. In doing so, it exceeded its
statutory authority under § 42-364(5).
[4,5] Statutory language is to be given its plain and ordinary
meaning.24 And the intent of the Legislature is expressed by
omission as well as by inclusion.25
Section 42-364(5) is clear: Where termination of parental
rights has been “placed in issue,” it empowers a district court
(or a county court adjudicating a modification proceeding
pursuant to § 25-2740) to “transfer jurisdiction” to a “juvenile
court established pursuant to the Nebraska Juvenile Code.”
Indeed, § 42-364(5) requires the transfer unless the district
court concludes that it is the more appropriate forum.
Once jurisdiction has been established in the district court,
the transfer to the juvenile court has been made, and termina-
tion of parental rights remains in issue, the juvenile court must
adjudicate those rights. Section 42-364(5) simply does not
authorize a juvenile court to transfer a termination proceeding
back to the district court under these circumstances. In doing
so, the court exceeded its statutory authority. While there may
be circumstances under which authority for a juvenile court
to transfer a termination proceeding back to the district court
is impliedly authorized under § 42-364(5), they are not pres-
ent here.
[6] A juvenile court is a statutorily created court of limited
and special jurisdiction, and it has only the authority which the
statutes confer on it.26 This applies equally to a county court
sitting as a juvenile court.27
24
See Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717
(2019).
25
Donna G. v. Nebraska Dept. of Health & Human Servs., 301 Neb. 838,
920 N.W.2d 668 (2018).
26
In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018).
27
See In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
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CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
[7] We hold that a juvenile court lacks statutory authority
under § 42-364(5) to transfer a proceeding back to the dis-
trict court where: (1) The district court, having subject matter
jurisdiction of a modification proceeding under § 42-364(6) in
which termination of parental rights has been placed in issue
and having personal jurisdiction of the parties to that pro-
ceeding, has transferred jurisdiction of the proceeding to the
appropriate juvenile court; (2) termination of parental rights
remains in issue and unadjudicated in the transferred proceed-
ing; (3) the State is not involved in the proceeding and has
not otherwise asserted jurisdiction over the child or children
involved in the modification proceeding; and (4) the juvenile
court has not otherwise been deprived of jurisdiction. That is
the situation here. Accordingly, the juvenile court lacked the
statutory authority to transfer to the district court a case which
had been transferred to the juvenile court under § 42-364(5).
The juvenile court’s order doing so was void, and we must
vacate the void order.
CONCLUSION
We conclude that the juvenile court acted beyond its statu-
tory authority and that its order, filed in the district court
proceeding, was void. We vacate the void order. Because the
last order that was not void was the order transferring the pro-
ceeding to the juvenile court, that order remains effective but
interlocutory. The cause should proceed based upon the district
court’s order transferring the matter to juvenile court.
In disposing of this appeal, we observe that over a year has
elapsed since Trevor filed his motion seeking to modify the
parenting time and Christine filed a counterclaim to terminate
his parental rights. No relief has been afforded either party.
We encourage the juvenile court to focus on the best inter-
ests of the child and to move this matter promptly to a final
disposition.
Vacated and remanded.
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440 F.2d 761
A.L.K. CORPORATIONv.COLUMBIA PICTURES INDUSTRIES, INC., Appellant.
No. 71-1015.
United States Court of Appeals, Third Circuit.
Argued Feb. 17, 1971.Decided April 7, 1971.
Bancroft D. Haviland, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa. (Michael R. Gardner, Philadelphia, Pa., on the brief), for appellant.
Henry W. Sawyer, III, Drinker, Biddle & Reath, Philadelphia, Pa. (James Eiseman, Jr., Melvin C. Breaux, Philadelphia, Pa., on the brief), for appellee.
Before FREEDMAN,* SEITZ and ROSENN, Circuit Judges.
OPINION ON THE COURT
SEITZ, Circuit Judge.
1
This is an appeal from an order of the district court, 320 F.Supp. 816, granting plaintiff's motion for a preliminary injunction against defendant's licensing or contracting to license the showing of a particular motion picture at any theatre within the Philadelphia area other than that owned by plaintiff.
2
In April of 1970, defendant (Columbia), a motion picture distributor, granted to plaintiff (The 1812), the owner and operator of The 1812 Theatre, a license for the exclusive first-run Philadelphia exhibition of a motion picture entitled 'Husbands.' Shortly after the licensing agreement was executed, however, Columbia notified The 1812 that it would not be able to deliver 'husbands' on or about the proposed delivery date of July 8, 19701 because of difficulties between Columbia and John Cassavetes, the producer of the motion picture, concerning the final cutting of the film. After a delay of several more months, Columbia finally informed The 1812 that it was invoking a clause in the agreement which purportedly terminated the license whenever Columbia, for reasons beyond its direct control, failed to obtain timely delivery from the producer. Columbia therefore told The 1812 that it intended to solicit new bids from all Greater Philadelphia first-run theatres for the exclusive license to exhibit 'husbands.' Denying that the agreement had terminated, The 1812 then brought the present diversity action, seeking to enjoin Columbia from resubmitting 'Husbands' for bids, to compel specific performance of its licensing agreement with Columbia, and to recover damages.
3
After a hearing on plaintiff's motion for a preliminary injunction, the district court interpreted the licensing agreement as not being subject to termination by Columbia merely because of the producer's failure to make timely delivery. Ruling that every motion picture is a 'unique' production and that The 1812's inability to obtain 'husbands' might cause an intangible loss of good will, which it described as 'theatre momentum,' the court concluded that The 1812 would not have an adequate remedy at law for breach of contract since proof of damages would be difficult and speculative, if not impossible. The court thus found a probability that plaintiff would ultimately be successful on the merits and preliminarily enjoined Columbia from licensing the movie to any exhibitor in Philadelphia except The 1812. Unless the status quo were preserved, the court reasoned, plaintiff's rights under its license might be lost forever. If the preliminary injunction were ultimately determined to have been improvidently granted, on the other hand, Columbia would only sustain pecuniary damages, which could be prevented by requiring The 1812 to post a substantial bond.2
4
As a prerequisite to the issuance of a preliminary injunction the moving party must generally show: (1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted to prevent a change in the status quo. Ikirt v. Lee National Corp., 358 F.2d 726, 727 (3d Cir. 1966). In applying these criteria, a district court must have considerable discretion because of the infinite variety of situations which may confront it. Nevertheless, its discretion is not unlimited and must be guided by the traditional principles of equity. Without reaching the substantial question of contractual interpretation decided by the district court, we find that plaintiff has failed to satisfy the second of the above prerequisites for interlocutory injunctive relief.
5
Admittedly, the denial of a preliminary injunction in this case would permit Columbia to resolicit bids on 'Husbands,' with the resulting possibility that plaintiff's asserted rights to the film will be lost. This injury cannot be considered 'irreparable,' however, unless plaintiff demonstrates that its legal remedies are either inadequate or impracticable. Generally speaking a breach of contract results in irreparable injury warranting equitable relief in two types of cases:
6
'1. Where the subject-matter of the contract is of such a special nature, or of such a peculiar value, that the damages, when ascertained according to legal rules, would not be a just and reasonable substitute for or representative of that subject-matter in the hands of the party who is entitled to its benefit; or in other words, where the damages are inadequate; 2. Where, from some special and practical features or incidents of the contract inhering either in its subject-matter, in its terms, or in the relations of the parties, it is impossible to arrive at a legal measure of damages at all, or at least with any sufficient degree of certainty, so that no real compensation can be obtained by means of an action at law; or in other words, where damages are impracticable.'
7
4 Pomeroy, Treatise on Equity Jurispurdence 1401, at 1033-34 (5th Ed. 1941); see Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973, 974 (1902).
8
Against this legal background, plaintiff asserts that its injury from the denial of a preliminary injunction cannot be adequately compensated by monetary damages because 'Husbands,' like all movies, is a unique production which will have a distinctive effect upon The 1812's 'theatre momentum.' Plaintiff further contends that damages would be impracticable because, if The 1812 does not acquire this particular picture, the value of its lost 'momentum' will be impossible to calculate with any reasonable degree of certainty. Despite these contentions, we think that plaintiff has failed to prove that its injury will in fact be irreparable so as to make interlocutory equitable relief appropriate in this case.
9
It is true that every motion picture is unique in the sense that no two are identical, but such a characterization does not end our inquiry since the inability to obtain a particular film does not of itself show that 'nothing can answer the justice of the case but the performance of the contract in specie * * *.' Philadelphia Ball Club v. Lajoie, supra at 974. Here, although the parties entered into a commercial contract whose primary purpose was one of mutual pecuniary benefit, The 1812 maintains that 'Husbands' has a value which is so extraordinary that the theatre's mere recovery of lost profits would be inadequate. In so doing, it seizes upon what it describes as a definite, though intangible, asset known as 'theatre momentum.' The 1812 argues that there is intense competition among 'first-class' motion picture theatres to create a special image which will enhance their drawing power. If large numbers of people are attracted to one particularly outstanding movie, plaintiff says, they will also gain an impression of the theatre's atmosphere, personnel, and type of clientele and will be exposed to trailers of coming attractions so that they will later return to the same theatre on the strength of its image as a pleasant place where fine pictures are shown. Plaintiff describes this combination of ciecumstances as similar to good will in that it promotes the forward movement of the theatre's business by maintaining and increasing patronage. Each good picture, it says, adds an increment to the momentum, and a withholding of any increment will in some way forever retard the growth of momentum.
10
Even assuming that an asset such as theatre momentum does exist and that its value is not measurable in monetary terms, the record here does not disclose that plaintiff's failure to acquire 'Husbands' will cause any irreparable damage to this asset. Although, as previously stated, all motion pictures are somewhat 'unique,' certainly some pictures are fungible with respect to their effect upon theatre momentum.3 The injury contemplated by the denial of a preliminary injunction must be actual and of serious consequence, not merely theoretical. We find that The 1812 has failed to demonstrate that 'Husbands' will have any effect upon its momentum different from that of other available motion pictures of the same type.4
11
Thus, even if a breach of contract is ultimately found, the only cognizable injury which The 1812 has established that it may sustain is a loss of income-- the difference between the income which could have been earned by showing 'Husbands' as contracted for and that actually earned during the same period. This is capable of measurement and can adequately be remedied by monetary damages if The 1812 succeeds on the merits. D.W.H. Corp. v. Twentieth Century-Fox Film Corp., 182 F.Supp. 912, 913 (E.D.Pa.1960). In addition, we see nothing to prevent The 1812 from successfully rebidding for 'Husbands'5 and, if eventually successful in proving a breach of contract, recovering appropriate damages.
12
Because there is no evidence that plaintiff will be irreparably injured pendente lite by the denial of interlocutory relief, we find that the district court abused its discretion in preliminarily enjoining Columbia's resolicitation of bids.
13
The order of the district court will be reversed.
*
Judge Freedman participated in the consideration of this case, but died before any disposition was made
1
This date was contained in Columbia's initial solicitation of bids for the exclusive first-run rights to 'Husbands,' but was not specifically included in the formal licensing agreement which was eventually submited to the plaintiff. Although Columbia now claims there is no evidence that it ever executed thf formal agreement, it does admit that a contract was created when it accepted The 1812's bid in response to the solicitation. It is not now necessary for us to decide what consequences, if any, would attach if it ultimately appears that Columbia did not execute the formal agreement
nf2
A.L.K. Corp. v. Columbia Pictures Indus., Inc., 320 F.Supp. 816 (E.D.Pa.1970)
3
One of The 1812's witnesses testified: 'On Chestnut Street, where Theatre 1812 is located, it is highly competitive with other theatres, but this theatre had distinguished itself by having the type of motion picture that Chestnut Street patrons like. 'Husbands' is this type of motion picture.'
4
Cf. Campbell Soup Co. v. Wentz, 172 F.2d 80, 82-83 (3d Cir. 1948)
5
Columbia has represented to this court that, pursuant to its obligations under an antitrust decree, it is required to and will offer 'Husbands' for new bids without discrimination to The 1812 and all of The 1812's competitors
In its request for new bids, Columbia will propose a guaranteed minimum run of 12 weeks instead of 8 weeks as guaranteed in its agreement with The 1812. There will also be a proposed minimum monetary guarantee by the exhibitor to Columbia of $150,000. The agreement with The 1812 contains no such provision.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 13-3298
______
KAREN MCCRONE; DANIEL ARMINIO; JOSE HERNANDEZ;
EMANUEL HODSON; DENISE MOLINEAUX; DAVE STIMON,
Appellants
v.
ACME MARKETS; SUPERVALUE; JOHN DOE CORPORATIONS 1-10
______
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2:12-cv-04645)
District Judge: Honorable Katharine S. Hayden
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 25, 2014
Before: FUENTES, GREENBERG, and VAN ANTWERPEN, Circuit Judges
(Filed: March 25, 2014)
______
OPINION OF THE COURT
______
VAN ANTWERPEN, Circuit Judge.
Karen McCrone, Daniel Arminio, Jose Hernandez, Emanuel Hodson, Denise
Molineaux, and Dave Stimon1 (collectively “Appellants”) appeal from the order of the
1
All Appellants are New Jersey residents.
United States District Court for the District of New Jersey, granting a motion to dismiss
in favor of Acme Markets, Inc., Supervalu, Inc., and John Doe Corporations 1-10
(collectively “Acme”) 2, for failure to state a claim. Appellants brought suit in New Jersey
state court seeking compensatory, consequential, and punitive damages, together with
attorney’s fees, interests, and costs. They claimed wrongful termination, breach of the
implied covenant of good faith and fair dealing, breach of the implied terms of
employment, breach of public policy, and an unreasonable and malicious interference
with their rights to collect unemployment benefits. Acme then removed the action to the
District Court for the District of New Jersey pursuant to 28 U.S.C. § 1332. 3 For reasons
which follow, we affirm the decision of the District Court, granting the motion to dismiss
for failure to state a claim.
I. Factual/Procedural History
The parties and the District Court relied on facts set forth in Appellants’ Amended
Complaint.4 Appellants all were Store Directors or Assistant Store Directors at Acme
Supermarkets5 throughout New Jersey. Each was terminated in early 2011 after issues
2
Acme Markets, Inc. is a Delaware corporation with stores in New Jersey and its
principal place of business in Pennsylvania. Supervalu, Inc. is a Delaware corporation
with its principal place of business in Minnesota.
3
Acme removed the original Complaint by motion on July 25, 2012. After removal,
Acme filed a motion to dismiss on August 15, 2012. Appellants amended their Complaint
on September 18, 2012 and Acme re-filed its motion to dismiss on October 15, 2012.
4
Acme “does not admit, and indeed for [the] most part denies, [Appellants’] allegations.”
(Acme Br. at 2.)
5
Acme Markets, Inc. was the subsidiary of parent SUPERVALU (Acme notes this was
improperly spelled “SUPERVALUE” in the caption for the case) at the time the events in
question occurred.
2
emerged surrounding an employment survey conducted by the corporation.6 Appellants
allege they were not “at-will” employees, but rather, that their relationships and dealings
with management created a reasonable expectation of employment. This presumption
was “based on meetings in which they were told that as long as they did their jobs and
stayed out of trouble they would maintain their employment.” (Appellant App. vol. I at
11 (internal quotations omitted).) Appellants were aware of an employee handbook which
listed a number of grounds for termination, but made no mention of whether or not they
were “at-will” employees. They claim to have relied on these “representations” to
presume an assured employment status prior to their terminations.
The terminations in question relate to a customer survey7 undertaken by a third
party in the late spring or early summer of 2010. The purpose of the survey was to
measure customer satisfaction, and a website was established at which customers could
rate their satisfaction. Store employees were supposed to call customers’ attention to the
website, which was printed on their store receipts. Appellants allege they were
“encouraged by their superiors to increase the numbers and favorable results of the
survey” by “any means necessary.” (Appellant Br. at 6; Acme Br. at 4.) Appellants claim
this encouragement “included, but was not limited to, verbal harassment, [and] threats to
their job security and company bonuses.” (Appellant App. vol. II at 28.)
6
The Appellants had been employed in their respective places of business for five to
thirty-eight years.
7
Customer surveys were common practice of Acme and were deemed a priority by
management. This, however, was the first undertaken by an outside group.
3
At the end of 2010 and in early 2011, store security personnel contacted the
Appellants, accusing them of “falsifying and improperly conducting the survey.” (Acme
Br. at 4.) Individually, in January and February 2011, Acme’s security employees, Joe
Mastalski and Nick Micelli, interviewed the six Appellants. Appellants allege that, during
the course of these interviews, each was threatened with loss of employment unless they
signed statements admitting to their customer survey improper activities. Appellants
Arminio and McCrone each signed statements on January 17th and February 18th of
2011, respectively, and were terminated. The other four Appellants, Hernandez, Hodson,
Molineaux, and Stimon, refused to sign statements and were terminated on February 19,
2011.8
The District Court granted Acme’s motion to dismiss for failure to state a claim,
holding, “[i]n New Jersey, employment is presumptively at-will,” and “that Acme’s
Retail Policies” failed to create an “oral implied contract for employment” to
“overcome[] the presumption of [their] at-will employee status.” (Appellant App. vol. I at
15, 18, 20.) Further, the District Court stated that because no implied employment
contract existed, the implied covenant of good faith and fair dealing under New Jersey
law was not implicated, and accordingly, no claim for relief existed. This appeal
followed. On appeal, Appellants now aver that the District Court, on June 24, 2013,
8
Appellants continue to allege that Acme has yet to produce “concrete” evidence to
justify these terminations. Further, upon their terminations, Appellants claim they “were
assured by [Acme] Human Resources personnel that they would not interfere with their
ability to collect unemployment benefits.” Acme, however, did challenge the applications
for unemployment, and Appellants claim Acme made “exaggerated and untruthful”
statements to the New Jersey Department of Labor and Workforce Development
concerning the grounds for termination. This issue is not at appeal before this Court.
4
improperly dismissed Counts I and II of their claims, alleging wrongful termination and
breach of an implied contract. In response, Acme argues Appellants failed to meet the
threshold showing of the existence of a contract to overcome the presumption that their
employment was terminable at-will.
II. Jurisdiction and Standard of Review
The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, as
Appellants allege a claim for damages of at least $75,000. We now have jurisdiction
under 28 U.S.C. § 1291.
We exercise plenary review over a district court’s order of dismissal of a
complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim upon which
relief may be granted. See Maio v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir. 2000). A
motion to dismiss “may be granted only if, accepting all well-pleaded allegations in the
complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is
not entitled to relief.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d
Cir. 1997) (citing Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986)).
III. Wrongful Termination and Implied Contract
We address whether the District Court erred in dismissing Counts I and II of the
Amended Complaint. These Counts averred that the Appellants were wrongfully
terminated because Acme’s representations created an implied contract. We must begin
with the settled principle that New Jersey is a presumptively “at-will” employment state.
Bernard v. IMI Sys., Inc., 618 A.2d 338, 345 (N.J. 1993). “In New Jersey, an employer
may fire an employee for good reason, bad reason, or no reason at all under the
5
employment-at-will doctrine.” Witkowski v. Thomas J. Lipton, Inc., 643 A.2d 546, 552
(N.J. 1994). That at-will relationship remains terminable by either employer or employee
“unless an agreement exists that provides otherwise.” Id. (citing Bernard, 618 A.2d at
346). While exceptions to this doctrine do exist, “[t]oday, both employers and employees
commonly and reasonably expect employment to be at-will, unless specifically stated in
explicit, contractual terms.” Bernard, 618 A.2d at 346.
The New Jersey Supreme Court has held that an employment manual might create
a binding unilateral contract where the employer modifies the terms of the manual to
create newly binding duties and obligations. Woolley v. Hoffmann-La Roche, Inc., 491
A.2d 1257, 1271 (N.J. 1985) modified on other grounds, 499 A.2d 515 (1985). It stated,
“absent a clear and prominent disclaimer, an implied promise contained in an
employment manual that an employee will be fired only for cause may be enforceable
even when the employment is for an indefinite term and would otherwise be terminable at
will.” Shebar v. Sanyo Bus. Sys. Corp., 544 A.2d 377, 382 (N.J. 1988) (citing Woolley,
491 A.2d at 1271). This has been further interpreted to include oral communications of a
company-wide policy. See Troy v. Rutgers, 774 A.2d 476, 482 (N.J. 2001) (“Oral
promises, representations, employee manuals, or the conduct of the parties, depending on
the surrounding circumstances, have been held to give rise to an enforceable obligation
on the part of an employer.”). Courts enforce these implied promises in light of the
employer’s representations and the surrounding circumstances. Wanaque Borough
Sewerage Auth. v. Twp. of W. Milford, 677 A.2d 747, 752 (N.J. 1996).
6
Appellants contend they have overcome the “at-will” presumption because Acme
had an oral policy and practice in place allowing employees to be heard and treated fairly.
Further, the employment handbook did not mention the employment was “at-will.”
Whether the actions of the employer were sufficient to create implied contractual terms is
a question of fact. Troy, 774 A.2d at 483 (citing Reynolds v. Palnut, Co., 748 A.2d 1216,
1221 (N.J. Super. 2000)). Specifically, the Appellants offer statements from Acme and its
failure to designate the employees as “at-will” in the employment manual as factual
support for an implied contract. As noted, Appellants further allege Acme had an oral
policy and practice in place allowing employees to be heard and treated fairly from prior
dealings with management.
Exercising plenary review and applying the same test used by the District Court,
we do not find that the Appellants pled facts sufficiently to overcome the burden of proof,
as their allegations were not “enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The employee manual and a
singular statement do not provide more than unspecific speculations. We believe the
statement in question, “as long as they did their jobs and stayed out of trouble, they
would maintain their employment,” merely generalizes what most would consider a
reasonable expectation of any employment. Further, New Jersey presumes employees to
be “at-will” unless the employees can prove otherwise, through changes in policy or oral
statements. See Troy, 774 A.2d at 483. While this Court and District Courts have found
implied contracts to be created by the employer’s representations, the pleadings before us
fail to provide a sufficient factual basis to create an action for relief. See, e.g., Marzano v.
7
Computer Sci. Corp., Inc., 91 F.3d 497, 512 (3d Cir. 1996) (applying New Jersey law in
determining whether memo concerning maternity leave gave rise to enforceable
obligation); Barone v. Leukemia Soc’y of Am., 42 F. Supp. 2d 452, 457 (D.N.J. 1998)
(applying New Jersey law in noting employee handbook may create binding obligations
concerning sick or bereavement leave); Giuntoli v. Garvin Guybutler Corp., 726 F. Supp.
494, 508 (S.D.N.Y. 1989) (holding that plaintiff may proceed with implied contract for
bonus claim based on employer’s written policies, course of dealing between parties, and
oral representations made to plaintiff). Because the pleadings fail to create something
more than “a suspicion [of] a legally cognizable right of action,” we will affirm the
decision of the District Court granting the motion to dismiss as to Counts I and II for
wrongful termination and breach of an implied contract. Twombly, 550 U.S. at 555
(quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235–36 (3d
ed. 2004) (alterations in original)).
IV. Conclusion
For the foregoing reasons, we affirm the order of the District Court granting the
motion to dismiss on behalf of Acme.
8
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742 So.2d 503 (1999)
Dedrick RENDER, Appellant,
v.
The STATE of Florida, Appellee.
No. 98-2920.
District Court of Appeal of Florida, Third District.
October 13, 1999.
*504 Dedrick Render, in proper person.
Robert A. Butterworth, Attorney General, and Sylvie Perez-Posner, Assistant Attorney General, for appellee.
Before COPE, GODERICH and FLETCHER, JJ.
PER CURIAM.
Appellant contends that his prior grand theft conviction could not be used for habitualizing him because he had been placed on probation and had completed the probationary period at the time he committed the current offense. Appellant is mistaken. The habitual offender statute provides, "For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period." § 775.084(2), Fla. Stat. (1995) (emphasis added). In appellant's case, there was no withholding of adjudication. Appellant was adjudicated guilty. The grand theft conviction was properly treated as a predicate offense by the trial court. The prior conviction for possession of cocaine was also properly counted as a predicate offense. See id. § 775.084(1)(a)3; Rollins v. State, 707 So.2d 823, 824-25 (Fla. 3d DCA 1998). The order denying postconviction relief is affirmed
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537 F.Supp. 55 (1981)
ROYAL EMBASSY OF SAUDI ARABIA, Plaintiff,
v.
STEAMSHIP MOUNT DIRFYS, its engines, boilers, etc., et al., Defendants.
No. 79-41-CIV-7.
United States District Court, E. D. North Carolina, Wilmington Division.
November 23, 1981.
George T. Clark, Jr., Wilmington, N. C., Bigham, Englar, Jones & Houston, New York City, for plaintiff.
John R. Newton, Wilmington, N. C., for Mt. Dirfys and Ashton Shipping.
James B. Swails, Wilmington, N. C., Walter B. Martin, Norfolk, Va., for Transamerica.
Daniel L. Brawley, Wilmington, N. C., for Wilmington Shipping.
John F. Crossley, Wilmington, N. C., Thatcher, Proffitt & Wood, New York City, for Master Marine.
ORDER
BRITT, District Judge.
Defendant and third-party plaintiff, Wilmington Shipping Company, moves the Court to compel the production of a document by defendant, Ashton Shipping Company, pursuant to Rule 37, Fed.R.Civ.P. Both parties having filed memoranda with the Court, the matter is ripe for disposition.
The document sought is a report made by the Master of the S/S MOUNT DIRFYS, the vessel which is the subject matter of this litigation. The report of the Master was in the form of a statement taken by G. Michael Price, an attorney representing the owners and underwriters of the ship. On 1 May 1979, after interviewing the Master, chief officer, third engineer and other crew members and subsequent to the filing of the complaint in this case, Price took the statement of the Master which the chief officer and third engineer verified as true. The Master was subsequently deposed. No one has been able to locate the chief officer or third engineer, as they are no longer employed by defendant.
*56 DISCUSSION
This motion and the situation surrounding it present an issue of great concern to the legal profession. When a party seeks an individual's statement given to an attorney representing his interest in anticipated litigation, the scope of the attorney-client privilege or, in the alternative, the attorney work-product rule,[1] comes into play. See Fed.R.Evid. 501. Given the critical nature of this privilege, from both an historical and jurisprudential perspective, more than mere passing consideration must be given to the reasons behind this order.
The attorney-client privilege, the oldest common-law privilege protecting confidential communications, 8 Wigmore, Evidence § 2290 (McNaughton Rev. 1961), protects a fundamental policy of jurisprudence by encouraging clients to disclose all information to their attorneys. Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1975). If the reasons for seeking the services of an attorney are to be fulfilled, the lawyer must be fully informed. Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). Based on the important policy protected by this privilege, exceptions to it must be created in only the most compelling situations.
The statement requested in this case was made by a corporate employee, to a corporate attorney,[2] in the preparation of information contemplating the litigation of this matter. Corporate employees stand in the shoes of the entity for the purposes of this privilege. "[E]mployees can ... embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties." Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 683, 66 L.Ed.2d 584 (1981). The Upjohn decision solidifies the place of the privilege in relation to corporate employees, expanding its coverage to include information gleaned from non-management personnel during an attorney's investigation of matters relating to potential lawsuits.
While this Court recognizes the need for broad discovery authorized and protected by the rules of civil procedure, see, e.g., Fed.R.Civ.P. 26, 37, and that the attorney-client privilege protects only communication not facts within the client's knowledge, Upjohn, 101 S.Ct. at 685, the statement involved herein, taken as a whole, must be classified a communication.[3] As such, it is privileged and, therefore, subject to disclosure only upon a showing of truly substantial need and undue hardship.
Several facts militate against a finding of undue hardship or prejudice to the requesting party. Most important is that the Master was made available and was deposed. Consequently, the parties have had the opportunity to question him concerning all facts within his knowledge.[4] No showing of a specific lack of information has been made. The Master is not himself available.
Additionally, third-party plaintiff raises the issue that the chief officer and third engineer apparently are unavailable and could be located, if at all, only through substantial hardship and expense. While the standard of hardship and inconvenience is quite high, Upjohn, 101 S.Ct. at 685-86, the Court finds it unnecessary to resolve the interesting issue of whether the requesting party has satisfied the Upjohn requirement. Since the allegedly unavailable employees merely verified the statement, without making independent disclosures, *57 the Court finds that third-party plaintiff has failed in the threshold criterion for disclosure; to wit, a substantial need for the statement. Obviously, the unavailability of persons who only verified the document hardly supports compelling disclosure of the document itself.
If an occasion arises where the statement might be needed for impeachment purposes, further inquiry might be in order. Recognition should be given, however, to the notion that the only information which is known to be in the statement concerned the degree to which the ship rolled. The Master stated in his deposition that a typographical error, as to the degree, appeared in the statement. All parties had an opportunity to question him regarding this issue. Thus, the existence itself of a prior statement, given to an attorney in the course of his investigation in the anticipation of litigation, creates no substantial need for disclosure of the statement. Third-party plaintiff's assertion that denying disclosure of such a statement would result in insurance adjusters and investigators having attorneys take all future similar statements, thereby cloaking them with the privilege and frustrating the purpose of broad discovery, is unfounded for two reasons. First, facts within the knowledge of a person are not protected by the rule. Second, the rule might not control where the person making the statement is unavailable, which is not the case here. While the discovery rules are broad they were "hardly intended to enable a learned profession to perform its functions ... on wits borrowed from the adversary." Hickman v. Taylor, 329 U.S. 495, 516, 67 S.Ct. 385, 396, 91 L.Ed. 451 (1947).
CONCLUSION
Denying discovery to a party is never a decision this Court makes lightly. Nevertheless, the attorney-client privilege is a cornerstone of the legal profession providing the foundation which girds the essence of counseling and advocacy itself, that is, the full, free, and confident disclosure of information to the lawyer by his client. If the effectiveness of an attorney's advice or advocacy diminishes, the judicial system ultimately suffers. As a consequence, the right to one's day in court becomes a potentially hollow right. Only if the survival and vitality of this privilege is guarded zealously will the system of advice and advocacy, cherished by attorneys and citizens alike, flourish.
Therefore, the motion to compel production of the statement is denied.
SO ORDERED.
NOTES
[1] Since the Court's disposition of the motion is controlled by the attorney-client privilege, it declines to reach the issue of attorney work-product.
[2] Certainly the fact that the attorney represented the insurance carrier of the defendant shipping company would not change this finding that he was an attorney for the corporate entity.
[3] To contend that the report, based at least in part on the questions of the investigating attorney, contains no conclusions or opinions of the Master would be a dubious assertion at best.
[4] The Court understands from informal assurances of counsel in this case that he will testify at the trial.
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958 F.2d 377
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Robert GRANT, Plaintiff-Appellant,v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
No. 90-16276.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 12, 1991.*Decided March 27, 1992.
Before WILLIAM B. NORRIS, BEEZER and LEAVY, Circuit Judges.
1
MEMORANDUM**
2
This case considers whether an insurance company has a duty to consider an offer of a structured settlement made by an accident victim, despite tendering the policy limits in exchange for settlement of the victim's claim. Robert Grant appeals the district court's summary judgment in favor of the insurer, State Farm Mutual Automobile Insurance Company (State Farm). We have jurisdiction and we affirm.
3
* On October 10, 1986, Wayne Reed, State Farm's insured, negligently caused an accident involving Grant, who was injured. On December 15, 1986, Grant demanded the policy limits in the form of a structured settlement, which would afford him substantial tax advantages. On December 29, 1986, State Farm refused Grant's offer and tendered either (1) the policy limits in cash or (2) a structured settlement of its own. Grant refused these offers and sued Reed in state court.
4
Reed voluntarily filed for bankruptcy on January 3, 1989. On January 9, 1989, Reed stipulated with Grant to a settlement judgment of $1,000,000 in the state court action. Reed also assigned to Grant all of his rights against State Farm in exchange for Grant's covenant not to execute. On March 9, 1989, the bankruptcy court lifted the automatic stay to permit Grant to recover from State Farm "to the extent that such insurance is available." The state court approved the judgment/assignment between Grant and Reed on January 10, 1990. State Farm paid the policy limits plus Grant's costs, a total of $103,095.42, in February, 1990.
5
On April 17, 1990, Grant filed this action against State Farm. The only remaining claim in the action is that State Farm breached its duty of good faith and fair dealing to Reed when it refused to consider Grant's structured settlement offer.
II
6
We review a grant of summary judgment de novo. Viewing the evidence in a light most favorable to the nonmoving party, we determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989). If a nonmovant bears the burden of proof on an issue, summary judgment is appropriate when he fails to make a showing sufficient to establish an essential element of his case. The movant need not negate the essential element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Grant has the burden to show that State Farm breached its duty of good faith and fair dealing to Reed.
III
7
An insured may assign his action for suffering damages in excess of policy limits because of an insurer's wrongful failure to settle. Comunale v. Traders & Gen. Ins. Co., 50 Cal.2d 654, 328 P.2d 198, 202 (1958). In Comunale, the California Supreme Court held:
8
When there is great risk of a recovery beyond the policy limits so that the most reasonable manner of disposing of the claim is a settlement which can be made within those limits, a consideration in good faith of the insured's interest requires the insurer to settle the claim. Its unwarranted refusal to do so constitutes a breach of the implied covenant of good faith and fair dealing.
9
Id. at 201.
10
"The implied covenant of good faith and fair dealing imposes a duty on the insurer to settle a claim against its insured within policy limits whenever there is a substantial likelihood of a recovery in excess of those limits." Johansen v. California State Auto. Ass'n Inter-Ins. Bureau, 15 Cal.3d 9, 538 P.2d 744, 747, 123 Cal.Rptr. 288 (1975). This duty derives from the insured's expectation "that a sum of money equal to the limits is available and will be used so as to avoid liability on his part with regard to any covered accident." Crisci v. Security Ins. Co., 66 Cal.2d 425, 426 P.2d 173, 177, 58 Cal.Rptr. 13 (1967).
11
In State Farm Mut. Auto. Ins. Co. v. Crane, 217 Cal.App.3d 1127, 266 Cal.Rptr. 422 (1990), the insurer tendered the policy limits in exchange for settlement of the victim's claim. The victim rejected the offer, sought an excess judgment and sought prejudgment interest under Cal.Civ.Code § 3291 (plaintiff gets prejudgment interest for obtaining a judgment greater than a pretrial settlement offer). The court held that an insurer must insist on settling a claim in exchange for paying over the policy limits, else it provides financial support for the victim's lawsuit against its own insured. Id. at 1136. An insurer does everything within its power to effect a settlement when it offers its policy limits. As a result, "State Farm's policy limits settlement offer was in good faith as a matter of law." Id.
12
In Heredia v. Farmers Ins. Exch., 228 Cal.App.3d 1345, 279 Cal.Rptr. 511 (1991), the victim wanted the insurer to pay the policy limits and defend the insured in a lawsuit against the insured and others. The victim would not execute against the insured, but wanted him present as a defendant to prevent the other defendants from using the "empty chair" defense. Id. at 513. The insurer refused to both pay the policy limits and provide a defense. The policy at issue said the insurer would not defend after paying the limits of liability for coverage. In an action for breach of the duty of good faith and fair dealing, the court held that the insurer had no obligation to accept the victim's settlement offer because it was not within the policy limits. Id. at 516.
13
Grant made a structured settlement offer. State Farm had no duty to consider a settlement proposal in excess of the policy limits. Obviously Grant and State Farm had some disagreement whether Grant's offer exceeded the policy limits. State Farm solved this disagreement, however, by offering to do all that its contract with Reed obligated it to do--pay the policy limits. State Farm's duty to Reed was to pay damages up to the policy limits, not to negotiate structured settlements with victims.1 We hold that an insurer acts in good faith as a matter of law if it tenders the policy limits when faced with a structured settlement offer that the injured party considers to be equal to the policy limits. Having breached no duty to Reed, State Farm cannot possibly have any liability to Grant.
IV
14
The district court's summary judgment in favor of State Farm is AFFIRMED.
*
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
1
Grant does not allege injury to Reed by virtue of not including Reed in settlement negotiations and not allowing him to contribute to a settlement. See Heredia, 279 Cal.Rptr. at 519-20
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22 So.3d 532 (2007)
EX PARTE TIMOTHY RAMONE CARR.
No. 1060947 (CR-05-1671).
Supreme Court of Alabama.
August 10, 2007.
Decision of the Supreme Court of Alabama Without Published Opinion Cert. denied.
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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-3158-15T4
NEW JERSEY EDUCATION ASSOCIATION,
Appellant,
v.
BOARD OF TRUSTEES OF THE TEACHERS'
PENSION AND ANNUITY FUND,
Respondent.
_________________________________________________________
Submitted June 26, 2017 – Decided July 13, 2017
Before Judges Fisher and Fasciale.
On appeal from the Administrative Action of
the Board of Trustees of the Teachers' Pension
and Annuity Fund in adopting N.J.A.C. 17:3-
5.5 and N.J.A.C. 17:3-6.1.
Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
attorneys for appellant (Jason E. Sokolowski
and Richard A. Friedman, of counsel; Mr.
Sokolowski, Mr. Friedman, and Kaitlyn E.
Dunphy, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel; Amy
Chung, Deputy Attorney General, on the brief).
PER CURIAM
Appellant New Jersey Education Association (NJEA) seeks our
review of final agency action taken by respondent Board of
Trustees, Teachers' Pension and Annuity Fund (the Board)1 in
adopting, on November 16, 2015, amendments to N.J.A.C. 17:3-5.5,
and N.J.A.C. 17:3-6.1.
Before turning to the specifics of this appeal, we first take
note of our standard of review, which allows us to consider whether
an agency's interpretation of a statutory scheme is permissible
in light of the legislative limits and intended goals, In re
Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 450 (1992), but with the
understanding that courts must start "with a presumption," N.J.
Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548 (2012), that
properly-adopted regulations "are valid and reasonable," N.J. Soc.
for Prevention of Cruelty to Animals v. N.J. Dep't of Agriculture,
196 N.J. 366, 385 (2008). That is, we must "give substantial
deference" to an agency's interpretation of "a statute that the
agency is charged with enforcing" so long as its interpretation
"is not plainly unreasonable." Matturri v. Bd. of Trs., Judicial
Ret. Sys., 173 N.J. 368, 381-82 (2002). Or, stated another way, a
1
The Board possesses "general responsibility for the proper
operation" of the Teacher's Pension and Annuity Fund (TPAF) and
for the establishment of "rules and regulations for the
administration and transaction" of its business and for the control
of the TPAF. N.J.S.A. 18A:66-56(a)(1).
2 A-3158-15T4
legislative delegation of authority to an agency "is to be
liberally construed in order to enable the agency to accomplish
its statutory responsibilities," and "courts should readily imply
such incidental powers as are necessary to effectuate the
legislative intent." N.J. Guild of Hearing Aid Dispensers v. Long,
75 N.J. 544, 562 (1978); see also N.J. State League of
Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 223 (1999).
I
With these principles in mind, we turn to NJEA's arguments
about the amendments to N.J.A.C. 17:3-5.5, and, specifically, this
new regulation's manner of dealing with maternity leave.
Initially, the following was the proposed amendment to part of
N.J.A.C. 17:3-5.5(a)(4):
iii. Maternity leave is considered personal
illness. Absent physician certification,
three months is the maximum period of purchase
for maternity leave. A certification from a
physician that a member was disabled due to
pregnancy and resulted in a disability for the
period in excess of three months is required
for maternity leave in excess of three months.
The birth of a child constitutes the start of
child care leave of absence immediately
following maternity[.]
After considering the NJEA's comments about this proposal, the
Board adopted a final version that deleted the first sentence
3 A-3158-15T4
("Maternity leave is considered personal illness") and replaced
that one sentence with the following two sentences:
Maternity leave may consist of a personal
illness component and a personal reasons
component, for childcare. Members who apply
to purchase any period of maternity leave as
a personal illness, must provide certification
from their physician, verifying that the
member was disabled during the requested
purchase period, due to pregnancy or
childbirth.
The revised amendment further altered subsection iii by inserting
the following emphasized words in the second sentence of the
earlier proposal: "Absent physician certification, three months
is the maximum allowable period of purchase for maternity leave
for personal reasons." The revised amendment also deleted the
remainder of the earlier proposal. In short, the adopted version
of subsection iii, in full, is as follows:
Maternity leave may consist of a personal
illness component and a personal reasons
component, for childcare. Members who apply
to purchase any period of maternity leave as
a personal illness, must provide certification
from their physician, verifying that the
member was disabled during the requested
purchase period, due to pregnancy or
childbirth. Absent physician certification,
three months is the maximum allowable period
of purchase for maternity leave for personal
reasons.
The NJEA challenges this new regulation by arguing it is
"phrased in a manner that does not make plain that it does not
4 A-3158-15T4
abridge the legal rights afforded to TPAF members in N.J.S.A.
18A:66-8."2 NJEA's stated concern is that, as amended, the
regulation "could be read to narrow a statutory right" and,
therefore, "should be declared invalid by this court" (emphasis
added). The very way NJEA phrases its argument demonstrates its
lack of merit. NJEA does not contend that the regulation actually
stands in conflict with N.J.S.A. 18A:66-8(b), only that the
regulation, in its view, doesn't clearly or plainly avoid a
conflict with the statute.
These arguments are purely academic because the NJEA only
concerns itself with one possible narrow reading of the new
regulation. Even if we were to entertain these hypothetical
concerns about how the regulation might be interpreted, we view
N.J.A.C. 17:3-5.5(a)(4) as being in accord with the statute. The
particular maternity leave provision that concerns the NJEA –
subsection iii – does not, as the Board asserts in its responding
brief, "articulate any such narrow reading." As the Board contends,
the section in question was "clarified [so] that '[m]aternity
leave may consist of' both a personal illness leave and a personal
2
In pertinent part, this statute permits a teacher the right to
purchase up to three months of service credit for an unpaid leave
of absence, N.J.S.A. 18A:66-8(b)(1), and up to two years of service
credit for an unpaid leave that is due to personal illness,
N.J.S.A. 18A:66-8(b)(2).
5 A-3158-15T4
reason leave (for childcare). . . . Nothing could be clearer, and
no statutory right was narrowed or curtailed." We agree.
II
NJEA's appeal also concerns a number of facets of the newly-
adopted amendment to N.J.A.C. 17:3-6.1, which deals with the
process for applying for various types of retirement benefits.
NJEA argues that the amendments exceed the Board's authority or
limit TPAF members' existing statutory rights in four ways: (1)
by failing to include a provision that allows a member to apply
for an extension of time; (2) through the inclusion of provisions
which, in NJEA's words, "contradict[] the statutory requirements
for an accidental disability retirement"; (3) by adding to the
statutory requirements an additional requirement that the TPAF
member separate from service in order to qualify for a disability
pension; and (4) by precluding an application for retirement while
a disability application is pending. Keeping in mind the standard
of review, which permits our intervention only when the adopted
regulation is plainly unreasonable or outside the scope of the
Board's delegated authority, we find insufficient merit in NJEA's
arguments to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only the following few comments.
6 A-3158-15T4
As to the NJEA's first concern, the Board has not taken the
position that applications for extensions are barred by amended
N.J.A.C. 17:3-6.1(b). Instead, the Board recognizes and embraces
its "inherent power," in "the absence of legislative restriction,"
"to reopen or to modify and to rehear orders previously entered
by it." Duvin v. State, 76 N.J. 203, 207 (1978). The failure to
incorporate an express right to seek an extension was not
unreasonable.
The second alleged cause for concern – that N.J.A.C. 17:3-
6.1(f)(1) is perceived by NJEA as adding an element to those which
a TPAF member must prove to obtain accidental disability retirement
benefits – is belied by the Board's intention, revealed by the
amended regulation, to ensure that such benefits are not awarded
on the basis of preexisting conditions alone or on the basis of
the combination of work effort and preexisting conditions, and to
ensure that the alleged traumatic event directly caused the
disability upon which the application is based. See 47 N.J.R.
2876(a). Far from unreasonable, the amendment conforms to
Richardson v. Bd. of Trs., Police and Firemen's Ret. Sys., 192
N.J. 189 (2007), as NJEA recognizes.
7 A-3158-15T4
The NJEA's third concern involves N.J.A.C. 17:3-6.1(f)(3),3
and the NJEA's claim that this regulation "improperly adds a[]
requirement for the receipt of a disability pension," i.e., that
the applicant must discontinue service due to the disability upon
which the application is based. We reject this. When harmonized,
N.J.S.A. 18A:66-39 and N.J.S.A. 18A:66-40(a) render a TPAF member
ineligible for a disability retirement when that member's
employment has been terminated for a non-disability reason;
moreover, NJEA has not demonstrated how the existing legislation
could render a TPAF member, who terminated employment for a non-
disability reason, eligible for a disability retirement. The
amended regulation is not inconsistent with legislative directives
and constitutes a reasonable approach to such circumstances.
3
As amended, this regulation states:
Termination of employment, voluntary or
involuntary, that was caused by any reason
other than the claimed disability disqualifies
a member from disability retirement. A member
whose employment ended after his or her
employer initiated disciplinary action, or who
was the subject of criminal or administrative
charges or party to a settlement resulting in
resignation or termination, is considered to
have separated from service as a result of the
employer action, charges, or settlement, and
not due to a disability, unless the action,
charges, or settlement is shown to be a result
of the disability.
8 A-3158-15T4
Lastly, the NJEA contends that N.J.A.C. 17:3-6.1(g)4 is
inconsistent with the statutory framework because it prevents a
TPAF member from applying for retirement benefits while the member
has a disability retirement application pending. Far from
unreasonable, this regulation provides a common sense approach to
those circumstances. A TPAF member is entitled to only one type
of retirement; accordingly, it is appropriate for the Board to
limit that member to one application at a time. We discern no harm
to that limitation, since N.J.A.C. 17:3-6.1(h) permits a TPAF
member who has been denied a disability retirement, but also
qualifies for a service-based retirement, to apply within thirty
days of denial of the former for a service-based retirement if so
eligible.5
4
This regulation states:
A member filing for an accidental or ordinary
disability retirement shall not file a
separate application for retirement,
including one based on any other allegedly-
disabling condition, while the original
disability application is pending. A separate
application can be filed only for a date
subsequent to withdrawal of the previous
application.
5
N.J.A.C. 17:3-6.1(h) states:
If a disability retirement application is
denied by the Board and the applicant
qualifies for any other retirement benefit,
9 A-3158-15T4
Affirmed.
the applicant will be required to submit a
separate application for retirement. If the
applicant submits the separate application for
retirement within 30 days of the Board's
decision, the applicant may retain the
retirement date designated on the disability
requirement application. If a member is denied
an accidental disability retirement, but
qualifies for an ordinary disability
retirement based on the accidental-disability
application, the ordinary disability
retirement will be granted, and no additional
application will be required.
10 A-3158-15T4
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Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Asa Asuncion, Appellant Appeal from the 167th District Court of
Travis County, Texas (Tr. Ct. No. D-1-DC-
No. 06-19-00013-CR v. 18-904066). Opinion delivered by Chief
Justice Morriss, Justice Burgess and Justice
The State of Texas, Appellee Stevens participating.
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Asa Asuncion, has adequately indicated his inability to pay
costs of appeal. Therefore, we waive payment of costs.
RENDERED AUGUST 21, 2019
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk
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764 A.2d 82 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
David FISHER, Appellant.
Superior Court of Pennsylvania.
Submitted September 5, 2000.
Filed December 8, 2000.
*84 Robert F. Pappano, Brookhaven, for appellant.
Patrick L. Meehan, Assistant District Attorney, Media, for Com., appellee.
Before JOHNSON, J., EAKIN, J., and CERCONE, President Judge Emeritus.
*83 CERCONE, President Judge Emeritus:
¶ 1 Appellant David Fisher appeals from the Judgment of Sentence of fifteen (15) to thirty-six (36) months' incarceration, followed by three years probation, imposed after a jury found him guilty of assault, endangering the welfare of a child and possession of an instrument of crime.[1] After review, we affirm.
¶ 2 In late 1997 Appellant was engaged to be married to a Ms. Jennifer Childs who had a minor son, D.C.[2] Trial Court Opinion, dated 5/3/2000, at 3. In mid-December 1997 Appellant moved into Ms. Child's house. Shortly thereafter, D.C. began exhibiting unusual behavior such as sleeping face down in bed with his arms and legs crossed behind his back and also pulling his pajamas up to his shoulders. Id. at 4. D.C. also developed physical ailments such as bladder failure and alopecia areata.[3]Id. In July of 1998 D.C. became emotionally distraught while visiting his grandparents and told his grandparents that Appellant had been beating him and forcing him to sleep in unnatural positions as punishment for being nice to his natural father. Id. at 5. The grandparents informed D.C.'s mother who immediately contacted the police. After investigation and interviews with D.C., the police subsequently arrested Appellant.
¶ 3 At trial D.C. related the specific instances of abuse which he suffered at the hands of Appellant:
[D.C.] testified that Appellant had used a belt to beat him when he had not done well in school. He also testified that Appellant would at times take [D.C.] into the basement after Ms. Childs had fallen asleep, pinch his ears and punch him in the stomach. Appellant had also on occasion pushed [D.C.] down the steps of the house that [D.C.] and Jennifer Childs lived in. Once, after [D.C.] had been visiting with his natural father, Appellant choked [D.C.], and told him never to be nice to his real father again. [D.C.] momentarily passed out, and then woke up before Ms. Childs arrived home. Appellant then told Jennifer that [D.C.] had been choking on a piece of candy, and that was why he had been unconscious.
[D.C.] also testified ... that Appellant once placed a bag over [D.C.'s] head while they were on their way to the video store. After placing the bag over [D.C.'s] head, Appellant acted as though he was going to throw [D.C.] in a dumpster. Appellant did not in fact throw [D.C.] into the dumpster, but [D.C.] testified that Appellant said he would throw him in the dumpster if he was nice to his real father ever again. [D.C.] testified that Appellant once had forced [D.C.] to *85 lick his own fecal matter from a piece of [D.C.'s] used toilet paper. Also on a separate occasion, Appellant held a knife to [D.C.'s] penis, telling him that if he was ever nice to his real father again, he would cut "it" off.
Id. at 5-6. On November 5, 1999 the jury found Appellant guilty of the three aforementioned offenses.
¶ 4 On January 6, 2000, prior to his sentencing, Appellant, through trial counsel, filed a written pleading which he entitled a "Motion for Extraordinary Relief Pursuant to Pa.R.Crim.P. 1405(b)." However the Trial Court did not rule on this motion prior to sentencing but instead elected to treat it as a premature post-sentence motion and deferred action on it. The Trial Court then proceeded to sentence Appellant on February 1, 2000 to the term of incarceration set forth above. Subsequently, on March 7, 2000 the Appellant, now represented by new counsel from the public defender's office, withdrew the motion. Appellant thereafter filed his notice of appeal on March 15, 2000.
¶ 5 We are compelled by the circumstances of these proceedings to remind trial counsel and the Trial Court of the necessity of adhering to the express procedures set forth in Pennsylvania Rule of Criminal Procedure 1405(B). Rule of Criminal Procedure 1405(B) provides:
B. Oral Motion for Extraordinary Relief.
(1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial.
(2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.
* * * * * *
Pa.R.Crim.P. 1405(B)(1), (2) (emphasis supplied). Hence, the plain terms of this Rule do not permit the filing of a written motion for extraordinary relief prior to sentencing. Commonwealth v. Davis, 708 A.2d 116, 119, n. 2 (Pa.Super.1998).
¶ 6 Moreover, Rule 1405(B)(1) clearly contemplates that any oral motion prior to sentencing be made only in exceptional circumstances. This Rule was not intended to provide a substitute vehicle for a convicted defendant to raise matters which could otherwise be raised via post sentence motion. As more fully set forth in the Explanatory Comment to this Rule:
Under Section B, when there has been an error in the proceedings that would clearly result in the judge's granting relief post-sentence, the judge should grant a motion for extraordinary relief before sentencing occurs. Although trial errors may be serious and the issues addressing those errors meritorious, this rule is intended to allow the trial judge the opportunity to address only those errors so manifest that immediate relief is essential. It would be appropriate for counsel to move for extraordinary relief, for example, when there has been a change in case law, or, in a multiple count case, when the judge would probably grant a motion in arrest of judgment on some of the counts post-sentence. Although these examples are not all-inclusive, they illustrate the basic purpose of the rule: when there has been an egregious error in the proceedings, the interests of justice are best served by deciding that issue before sentence is imposed.
Pa.R.Crim.P. 1405, Explanatory Comment.
¶ 7 Also, if a motion for extraordinary relief is made prior to sentencing, Rule 1405(B)(2) specifically requires that the trial court rule on the matters raised by such a motion prior to the imposition of its sentence. See id. ("Under paragraph B(2), the motion must be decided before sentence is imposed, and sentencing may not be postponed in order to dispose of the motion.") Thus, this rule does not allow a trial court to defer resolution of the matters *86 raised by a motion for extraordinary relief until after sentence is imposed.
¶ 8 Nevertheless, we will not disturb the Trial Court's decision in this instance to treat Appellant's written motion for extraordinary relief as a post-sentence motion pursuant to Pa.R.Crim.P. 1410. Penalizing the Appellant under these circumstances, for a procedural default not of his own creation, would not advance the primary purpose of our Rules of Criminal Procedure, which is to "provide for the just determination of every criminal proceeding." Pa.R.Crim.P. 2.
¶ 9 Since the Trial Court elected to treat Appellant's written motion for extraordinary relief as a post-sentence motion pursuant to Pa.R.Crim.P. 1410, Appellant had thirty days from the date of his withdrawal of it to file his notice of appeal. Commonwealth v. Miller, 715 A.2d 1203, 1206 (Pa.Super.1998). Consequently, since Appellant filed his notice of appeal eight (8) days after formally withdrawing the motion, this appeal is timely.
¶ 10 On appeal to our Court Appellant presents two issues for our consideration:
I. WHETHER THE TRIAL COURT ERRED IN PROHIBITING APPELLANT FROM INTRODUCING CHARACTER AND REPUTATION TESTIMONY AS TO HIS VERACITY AT TRIAL?
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION AND PLAYING OF THE COMMONWEALTH'S EXHIBIT A, A COPY OF THE TAPE RECORDING MADE BY THE VICTIM'S MOTHER AS A VIOLATION OF THE BEST EVIDENCE RULE?
Appellant's Brief at 7. We will address these issues seriatim.
¶ 11 With respect to Appellant's first issue, he argues that the Trial Court erred by prohibiting him from introducing character evidence at trial to establish that he had a reputation for truthfulness and veracity. Appellant specifically contends that he should have been permitted to introduce such evidence since testimony given at trial and cross-examination of him by the Commonwealth had placed the question of his veracity at issue. After review, we must disagree.
¶ 12 We note at the outset of our discussion of this issue that an appellate court may reverse a trial court's ruling on the admissibility of evidence only upon a showing that the trial court abused its discretion. Commonwealth v. Minerd, 562 Pa. 46, 53-54, 753 A.2d 225, 229 (2000). Commonwealth v. Hawk, 551 Pa. 71, 77, 709 A.2d 373, 376 (1998). "An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will." Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.Super.2000).
¶ 13 The relevant Pennsylvania Rule of Evidence which governs the admissibility of this type of character evidence is Rule 608(a) which provides:
(a) Reputation Evidence of Character
The credibility of a witness may be attacked or supported by evidence in the form of reputation as to character, but subject to the following limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
Pa.R.E. 608(a) (emphasis supplied).
¶ 14 This Rule is consistent with prior Pennsylvania caselaw. As our Court stated in a case decided previous to the promulgation of the Rules of Evidence:
In Pennsylvania, a witness's truthfulness may be attacked by showing that he or she has a bad reputation for truth and *87 veracity. If a witness is impeached by proof of bad reputation for truth and veracity, evidence may then be admitted to prove good reputation for truth and veracity. Evidence in support of the general reputation of a witness for truth and veracity, however, is not competent until his or her general reputation has been assailed. Every witness puts his or her character in issue; but until evidence tending directly to impeach it is produced, the law presumes it to be good, and therefore testimony to prove it good is superfluous.
Commonwealth v. Fowler, 434 Pa.Super. 148, 642 A.2d 517, 518 (1994), appeal denied, 539 Pa. 688, 653 A.2d 1227 (1994) (internal citations and quotations omitted). Hence "bolstering evidence ... is not admissible unless the character of the witness has first been attacked, and even then, only at the court's discretion." Commonwealth v. Boyd, 448 Pa.Super. 589, 672 A.2d 810, 812 (1996), appeal denied, 546 Pa. 661, 685 A.2d 541 (1996) quoting Commonwealth v. Smith, 389 Pa.Super. 626, 567 A.2d 1080, 1082 (1989), appeal denied, 527 Pa. 623, 592 A.2d 44 (1990).
¶ 15 Character means one's general reputation in the community. Commonwealth v. Stilley, 455 Pa.Super. 543, 689 A.2d 242, 251 (1997) citing Commonwealth v. Jones, 280 Pa. 368, 370, 124 A. 486, 486 (1924). Our careful review of the testimony of the various witnesses adduced at trial and the cross-examination of the Appellant by the Commonwealth indicates that at no time did the Commonwealth attack, impugn or otherwise besmirch Appellant's general reputation in the community for telling the truth. The Commonwealth elicited no evidence to establish or suggest that Appellant's character was such that he was known to others in the community to be a person who was prone to lie or otherwise make dishonest statements. It is true that the Commonwealth attempted to establish that the victim's version of events was more credible than the Appellant's, by vigorously cross-examining the Appellant and having the victim testify in rebuttal to Appellant's testimony. However, these factors in and of themselves did not allow Appellant to enhance or bolster his testimony in the eyes of the jury by introducing collateral evidence to establish his reputation for telling the truth. As our Court said in Boyd, supra:
It is within the ordinary capacity of a jury to assess whether a particular witness is lying, and resolving questions of a witness's credibility is a function reserved exclusively for the jury. Allowing a defendant to offer bolstering evidence of his or her good reputation for truth and veracity whenever the defendant's testimony contradicts the testimony of the Commonwealth's witnesses would infringe on the credibility determining function of the jury.
Id. 672 A.2d at 812 (citations omitted). Thus, we find no abuse of discretion on the part of the Trial Court in barring Appellant from introducing character evidence to establish his general reputation in the community for veracity.
¶ 16 Appellant next argues that the Trial Court erred by allowing the admission into evidence at trial tape recordings of telephone messages that Appellant had left on the voice mail system at his fiancée's place of employment. Appellant contends that the introduction of this evidence violated the "Best Evidence Rule." After review, we must disagree with Appellant's assertion.
¶ 17 The "Best Evidence Rule," as articulated by the common law, very literally only pertained to writings or other documentary evidence. As our Court has described the common-law rule in a prior case:
The "best evidence" rule limits the method of proving the terms of a writing to the presentation of the original writing, where the terms of the instrument are material to the issue at hand, unless the original is shown to be unavailable through no fault of the proponent. McCormick, Evidence 560 (2nd ed.1972). *88 The Pennsylvania courts use the "best evidence" rule when the contents of documentary evidence are at issue. Ledford v. Pittsburgh & Lake Erie R.R. Co., 236 Pa.Super. 65, 345 A.2d 218 (1975). The best evidence rule is controlling only if the terms of a writing must be proved to make a case or provide a defense. McCormick, supra.
Commonwealth v. Harris, 719 A.2d 1049, 1051 (Pa.Super.1998).
¶ 18 However, the Pennsylvania Rules of Evidence have expanded the scope of the common-law rule by applying it to other forms of evidence such as recordings and photographs. The common-law rule has been incorporated into and amplified by Pennsylvania Rule of Evidence 1002 which provides:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, by other rules prescribed by the Supreme Court, or by statute.
Pa.R.E. 1002.[4]
¶ 19 Nevertheless Rule 1002 is applicable only in circumstances where the contents of the writing, recording or photograph are integral to proving the central issue in a trial. See Pa.R.E. 1004(4) ("The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if: The writing, recording, or photograph is not closely related to a controlling issue.") Consequently, if the Commonwealth is introducing a writing, recording, or photograph at trial, Rule 1002 requires that the original be introduced only if the Commonwealth must prove the contents of the writing, recording or photograph to establish the elements of its case. Commonwealth v. Townsend, 747 A.2d 376, 380 (Pa.Super.2000), appeal denied, 563 Pa. 661, 759 A.2d 385 (June 15, 2000); Harris, supra, 719 A.2d at 1052.
¶ 20 As the Trial Court found with respect to the contents of the tape recordings and the manner in which they were procured:
The messages displayed a mixture of emotions from Appellant, starting off in emotional depression over the failure of the relationship, and then moving to anger over the accusations. Finally, Appellant shifted to an almost taunting tone, telling Miss Childs that no one would ever believe her, her "nut-ball" son, or "nut-ball" father.
* * * * * *
Miss Childs testified that she received these messages on her work voice mail system during a time when she had taken a leave of absence from work. N.T. 10/29/99, p. 62, ln. 5-16 Miss Childs also testified that she saved the messages on the voice mail system to preserve them as evidence. id. In November of 1998, [Miss] Childs decided to make a copy of the messages by placing a hand held tape recorder to the speaker phone, and recording the messages as they played. id. at p. 8, ln. 5-14; p 15, 2-14.
Trial Court Opinion, supra, at 6, 9.
¶ 21 The Trial Court also heard testimony from an employee of the company that manufactures the voice mail system used by Miss Child's company. The employee testified that once a voice message is received by the system it is digitized on a magnetic disk or "hard drive" of the company's voice mail storage system. N.T. Trial, 10/29/98, at 23. Once stored on the hard drive the message cannot be further modified or otherwise tampered with by the employee. Id. at 37-38.
*89 ¶ 22 Our review of these factors compels us to conclude that since these tape recorded messages did not provide factual substantiation which established that Appellant committed the offenses for which he was charged, the Commonwealth did not need to prove the contents of the tape recordings to prove the elements of the offenses for which Appellant was convicted i.e. assault, endangering the welfare of a child and possession of an instrument of crime. The Commonwealth's proof of the elements of these offenses depended on the testimony of the victim, D.C. As a result, since the tape recordings of Appellant's phone messages did not provide evidence which established the fundamental components of any of these offenses, the Commonwealth was not required to introduce the original recordings from the voice mail system under Pa.R.E. 1002. C.f. Durkin v. Equine Clinics, 313 Pa.Super. 75, 459 A.2d 417, 419 (1983) (in negligence lawsuit introduction of transcript of tape-recorded interview rather than original recording not a violation of best evidence rule since contents of the interview were collateral to the central issue of whether or not defendant was negligent). Because the tape recorded copies of the phone messages were admissible under Pa.R.E. 1004(4), and also properly authenticated, we find no error on the part of the learned trial judge in admitting them into evidence. See e.g. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744, 753 (1984) ("Tape recordings are admissible when they are properly identified as a reproduction of what has been said and the voices are properly identified.").
¶ 23 We note also that Pa.R.E. 1003 expressly allows the admission of duplicates "unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Pa.R.E. 1003. Appellant does not challenge the authenticity of the original messages recorded on Miss Childs' company voice mail system, nor the authenticity of the tape recordings. We also do not see any other evidence of record to indicate that the recordings were fraudulent. Nor do we see any evidence of record which would establish that the admission of the duplicates was unfair to Appellant under these circumstances. Thus, the tape recordings were also admissible under Pa.R.E. 1003.
¶ 24 Furthermore, Pa.R.E. 1004(1) provides:
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if-
(1) ... All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.
Pa.R.E. 1004(1).
¶ 25 As the Trial Judge found:
Miss Childs testified that in May of 1999, she was being promoted, and as a result, her employer was going to assign her a new phone and voice mail number. id. at p. 9 ln. 10-24. Jennifer Childs further stated that the company was going to delete the messages if she did not do so herself. id. Since the messages were gong to be deleted anyway, and since she didn't want anyone else in the company to hear the messages outside of company security, whom had already heard the recording for investigation purposes, she personally deleted the messages from the system.
* * * * * *
As the record establishes, the original messages had not been erased through fraudulent behavior. Miss Childs saved the messages on the voice mail system as long as she possibly could. In fact, she saved them until she was told by the company that they would be erased automatically because of her promotion. Further, ..., the messages in the system did not exist as a recording on their own, and could not be tampered with once the messages were complete. The recorded copy was made to preserve the *90 evidence, and was the only remaining existence of the messages.
Trial Court Opinion, supra, at 9-11.
¶ 26 The employee of the manufacturer of the phone system also testified that it was not possible to remove the hard drive containing all stored telephonic messages without disrupting the entire company phone system and rendering it inoperative. N.T., 10/29/98, at 26, 28. Hence, since the original recorded messages were not available at the time of trial, through no fault of the proponent, the Commonwealth, the tape recorded copies were also admissible under Pa.R.E. 1004(1).
¶ 27 Having reviewed both of Appellant's issues and having found them to be without merit we affirm the judgment of sentence.
¶ 28 Judgement of Sentence affirmed.
NOTES
[1] 18 Pa.C.S.A. §§ 2701, 4304 and 907 respectively.
[2] Ms. Child's and D.C.'s natural father had never married but they still maintained contact with one another from the time of D.C.'s birth.
[3] Alopecia is a form of progressive baldness characterized by the total loss of hair in patches from portions of the scalp. See Steadman's Concise Medical Dictionary, 3d. Edition 1996
[4] Under Pa.R.E. 1001 writings and recordings are: "letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation." Pa.R.E. 1001(1). Photographs encompass "still photographs, X-ray films, video tapes and motion pictures." Pa. R.E. 1001(2).
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333 So.2d 613 (1976)
In re Roosevelt WILLIAMS
v.
STATE.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
SC 1714.
Supreme Court of Alabama.
June 4, 1976.
William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
Douglas V. Hale and Lowell H. Becraft, Jr., Huntsville, for respondent.
SHORES, Justice.
Roosevelt Williams was convicted of forgery in the Madison Circuit Court and was sentenced to eight years in the penitentiary. He appealed to the Court of Criminal Appeals which reversed his conviction on grounds raised by Williams for the first time on appeal. The State filed a petition for writ of certiorari, which this court granted.
The Court of Criminal Appeals held that the check, which was forged, was dated on a Sunday, and was therefore void under the express provisions of Title 9, § 21, Code, which provides:
"All contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of *614 some work of charity, or in case of necessity, or contracts for carrying passengers or perishable freight or transmissions of telegrams or for the performance of any duty authorized or required by law to be done on Sunday are void." (Emphasis Supplied)
It has been held in this jurisdiction, and the rule is the general rule in this country, that a check is a contract. Deal v. Atlantic Coast Line R. Co., 225 Ala. 533, 144 So. 81 (1932). Thus, a check made and uttered on a Sunday is, by virtue of the quoted statute, void.
It is also universally held that an instrument void on its face cannot be the subject of an indictment for forgery. Hobbs v. State, 75 Ala. 1 (1883); Fomby v. State, 87 Ala. 36, 6 So. 271 (1888); Wm. L. Burdick, Law of Crime 547, Vol. 2, § 662a (1946).
In Gooch v. State, 249 Ala. 477, 31 So.2d 776 (1947), this court answered questions certified to it by the Court of Appeals and held that a check given on Sunday, unless for one of the permitted purposes under Title 9, § 21, supra, was void and could not be the subject of forgery. This answer was compelled by that statute. By its terms, it makes all contracts void except those specifically excepted in the statute.
The State now urges the overruling of Gooch, supra. That is not the solution to what is obviously a problem. The problem stems from the statute. It makes checks issued on Sunday void. A void instrument cannot be the basis of an indictment for forgery. To hold that a forged check issued on Sunday is not void, but that all others are void, defies all reason, and ignores the plain meaning of Title 9, § 21. The State's argument would lead to the incongruous conclusion that all checks executed and issued on Sunday (excluding the transactions permitted by the statute) are void unless they are forged.
We agree that a haven for criminals has been created, but it has been created by the legislature. The constitutionality of the Sunday statute has not been raised and, therefore, we do not consider that question. Ex parte Thaggard, 276 Ala. 117, 159 So.2d 820 (1963). Obviously, it is repugnant to logic and unfair to the citizens of this state to immunize a forger from prosecution when the evil deed takes place on Sunday. But the fault lies with Title 9, § 21, and we join those members of the Court of Criminal Appeals in urging the legislature to remedy this indefensible situation. Reviewing a somewhat similar statute, the Supreme Court of New York, in Twin Fair Distributors Corp. v. Cosgrove, 380 N.Y.S.2d 933, 938 (N.Y.Misc. 1976), recently said such statutes are "... a vestige of another age, devoid of rhyme, reason or symmetry ..."
Since the check in the instant case was dated and issued on Sunday, and the indictment contained none of the exceptions set out in Title 9, § 21, it will not support a conviction.
Of course, a trial under an indictment that is so defective that no valid conviction can be rendered will not support a plea of former jeopardy. Barber v. State, 151 Ala. 56, 43 So. 808 (1907); Sims v. State, 146 Ala. 109, 41 So. 413 (1906). Therefore, the defendant may be reindicted if the new indictment avers extrinsic facts sufficient to cure the defect herein discussed. But, the present indictment being fatally defective, the Court of Criminal Appeals must be affirmed.
AFFIRMED.
HEFLIN, C. J., and MERRILL and MADDOX, JJ., concur.
JONES, J., concurs specially.
JONES, Justice (concurring specially):
I concur in the holding of reversal of the conviction, affirming the Court of *615 Criminal Appeals; but I would extend the opinion and use this case as the vehicle for giving notice that this statute will not in the future be used as a refuge for forgers. This statute, in its total context as well as in the limited context of this case, is so patently unconstitutional that I would not await any longer corrective action by the legislature; nor, because of practical considerations, would I hold the State too strictly to the general rule that the issue of constitutionality must be raised at the trial level to be reviewable. Where a statute contravenes organic law and its futility is demonstrated by its application, as here, this Court's duty to declare such a statute void should not be circumscribed by procedural technicality.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 94-5396
ROY DANIEL WEISS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Terrence W. Boyle, District Judge.
(CR-93-16, CR-93-24, CR-93-25)
Submitted: January 30, 1996
Decided: April 12, 1996
Before NIEMEYER and LUTTIG, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Albert M. Neal, Jr., Canton, North Carolina, for Appellant. Thomas
Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Roy Daniel Weiss pled guilty, pursuant to a plea agreement, to
three counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), (d)
(1988), and the use of a firearm in relation to a crime of violence in
violation of 18 U.S.C. § 924(c)(1) (West Supp. 1995). The court
accepted Weiss's guilty plea, but postponed finding a factual basis for
the plea until sentencing.
The court subsequently held a hearing at which it found a factual
basis for Weiss's guilty plea, denied his motion to withdraw his guilty
plea, and sentenced him to eighty-seven months imprisonment on
each bank robbery count to run consecutive to sixty months imprison-
ment imposed pursuant to the firearm conviction.
Weiss noted a timely appeal. His counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), claiming that the district
court erred by: (1) denying Weiss's motion for a continuance to pres-
ent his motion to withdraw his guilty plea; (2) denying his motion to
withdraw his guilty plea; and (3) denying his motion to continue his
sentencing hearing. Weiss filed a supplemental brief claiming that the
district court: (1) did not have jurisdiction to enter a judgment or sen-
tence against him; (2) erred when accepting his guilty plea without
first determining his competency to enter a plea; (3) denied him effec-
tive assistance of counsel by not granting his counsel additional time
to prepare; and (4) erred by failing to find an adequate factual basis
that the robbed banks were insured by the F.D.I.C.
The denial of a motion for a continuance is reviewed for an abuse
of discretion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). A trial court
abuses its discretion when it denies a continuance based upon an
unreasonable and arbitrary insistence on expeditiousness. Id. The dis-
trict court did not abuse its discretion in denying Weiss a continuance
to present his withdrawal motion. There was no merit in the motion
to withdraw the plea, and the record reveals no unreasonable or arbi-
trary insistence or expeditiousness.
2
A defendant does not have an absolute right to withdraw a guilty
plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert.
denied, 502 U.S. 857 (1991). If a motion to withdraw a guilty plea is
made before sentencing, a district court may grant the motion upon
a showing of any fair and just reason. Fed. R. Crim. P. 32(d). This
court reviews the denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Puckett , 61 F.3d 1092, 1099 (4th
Cir. 1995). The district court's factual findings in support of its denial
will not be overturned unless they are clearly erroneous. United States
v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103
(1985).
The relevant factors weigh against Weiss. First, Weiss has not
shown that his guilty plea was entered unknowingly or involuntarily.
Moore, 931 F.2d at 248. The transcript from the guilty plea hearing
reveals that the court conducted an extensive and adequate plea hear-
ing. The court specifically found, after questioning Weiss, that Weiss
was capable and competent of pleading guilty, and he pled guilty
freely and voluntarily, with the understanding of the nature of the
charges against him and the consequences of pleading guilty. Weiss
testified that nobody intimidated, threatened, or harassed him, or
influenced his decision to plead guilty. He further testified that
nobody made him promises of leniency other than those contained in
his plea agreement. Furthermore, a psychiatric evaluation prepared
subsequent to this plea hearing did not reveal that Weiss was incom-
petent to plead guilty. Second, Weiss has never alleged that he was
innocent of the charges to which he pled guilty. Id. Third, Weiss
moved to withdraw his guilty plea approximately seven months after
his guilty plea hearing. Id. Fourth, there is no evidence that Weiss's
counsel rendered ineffective assistance of counsel. Id. At his Rule 11
hearing, Weiss testified that he had had enough time to discuss with
his attorney any possible defenses, was satisfied with the services of
his counsel, and told his counsel everything he wanted his counsel to
know about the case. Fifth and sixth, there would have been substan-
tial prejudice to the Government had the court granted Weiss's
motion, and granting Weiss's motion would have inconvenienced the
court and wasted judicial resources. Id. Although the district court did
not make specific findings as to these factors, the record reveals that
the court and the Government were ready to proceed to trial when
Weiss pled guilty. Therefore, the district court did not abuse its dis-
3
cretion in denying Weiss's motion to withdraw his guilty plea.
Puckett, 61 F.3d at 1099.
Weiss claims that the district court erred by not granting him a con-
tinuance to present objections to his presentence report. At his sen-
tencing hearing the court personally addressed Weiss and asked him
whether he had any objections to the report that would affect the cal-
culation of his sentencing guideline range. Neither Weiss nor his
counsel offered any objections. Therefore, the court did not abuse its
discretion in denying Weiss a continuance to present his objections to
the presentence report. Morris, 461 U.S. at 11-12.
Weiss contends that the district court did not have jurisdiction to
convict or sentence him because the district court docket sheet states
that the court granted his motion to withdraw his guilty plea on March
24, 1994. However, this entry is incorrect. The transcript from the
March 24 hearing at which Weiss's initial counsel was discharged
reveals that the court intended for Weiss's new counsel to "pick up
the case addressing both the matter of evaluation of the presentence
report and withdrawal of the plea." Thus, this claim is meritless.
Weiss contends that the court erroneously accepted his guilty plea
without first determining whether he was competent to enter a plea.
An alleged violation of Fed. R. Crim. P. 11 is reviewed under a harm-
less error standard. Rule 11(h); United States v. DeFusco, 949 F.2d
114, 117 (4th Cir. 1991), cert. denied, 503 U.S. 997 (1992). The tran-
script from the plea hearing reveals that the court did determine
Weiss's competency before accepting his guilty plea. At the time the
plea was entered, Weiss was thirty-nine years old and had completed
the tenth grade in school. The court found that Weiss was "capable
and competent with reference to making an informed plea." Although
Weiss's counsel claimed that the psychiatric evaluation prepared sub-
sequent to Weiss's plea hearing "showed some dysfunction," the eval-
uation did not show that he was incompetent to enter a plea. Even
assuming the district court committed a Rule 11 violation by accept-
ing Weiss's guilty plea without determining whether he was compe-
tent to enter a plea, this was harmless error because Weiss has not
shown that he was incompetent. Id.
Weiss contends that he received ineffective assistance of counsel
because his counsel did not file any objections to the presentence
4
report and the district court did not grant his counsel additional time
to present objections. This claim should be raised by motion under 28
U.S.C. § 2255 (1988), in the district court and not on direct appeal,
unless it "conclusively appears" from the record that defense counsel
did not provide effective representation. United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973) (citing United States v. Mandello, 426
F.2d 1021, 1023 (4th Cir. 1970)); see also DeFusco, 949 F.2d at 120-
21. Because the record before us fails to establish conclusively trial
counsel's ineffective assistance, we decline to review this issue at this
time.
Weiss claims that the court did not establish that the robbed banks
were insured by the FDIC as required for a violation of § 2113(a).
However, the record reveals otherwise. The FBI agent who provided
the factual basis for Weiss's guilty plea testified that the banks were
insured by the FDIC. Weiss did not dispute this testimony.
We have examined the entire record in this case in accordance with
the requirements of Anders, supra, and find no meritorious issues for
appeal. The court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court at that time for leave to withdraw from representa-
tion. Counsel's motion must state that a copy thereof was served on
the client. We affirm the district court's judgment order. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid in the decisional process. We also deny his motion
requesting a personal copy of transcripts prepared at the Govern-
ment's expense because his appeal does not present a substantial
question. 28 U.S.C. § 753(f) (1988). We further deny Weiss's
motions to substitute his attorney, modify his imprisonment, and see
the record.
AFFIRMED
5
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Greene v Fast Eats Clifton Park, LLC (2020 NY Slip Op 03055)
Greene v Fast Eats Clifton Park, LLC
2020 NY Slip Op 03055
Decided on May 28, 2020
Appellate Division, Third 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 and Entered: May 28, 2020
529539
[*1]Donald C. Greene, Doing Business as DCG Development Co., Respondent,
vFast Eats Clifton Park, LLC, Formerly Known as Sonic of Clifton Park, LLC, Appellant.
Calendar Date: March 25, 2020
Before: Lynch, J.P., Mulvey, Devine, Aarons and Colangelo, JJ.
Monaco, Cooper & Carr, PLLC, Albany (Adam H. Cooper of counsel), for appellant.
Goldman Attorneys PLLC, Albany (Paul J. Goldman of counsel), for respondent.
Colangelo, J.
Appeal from an order of the Supreme Court (Buchanan, J.), entered June 28, 2019 in Saratoga County, which, among other things, granted plaintiff's motion for summary judgment.
In April 2018, defendant entered into a lease agreement with plaintiff allowing defendant to operate a Sonic drive-through restaurant in the endcap of Building 100 in a shopping center owned by defendant in the Town of Clifton Park, Saratoga County. The lease contemplated interior as well as exterior improvements to accommodate the design and model of defendant's restaurant, including installation of drive-through lanes in the parking lot and an outdoor covered parking area where customers would order food and have it delivered to their vehicles. There is no dispute that the existing stormwater detention basin on plaintiff's property was located at ground level. About two months after the lease was signed, plaintiff advised defendant that a new underground stormwater detention system was required to complete improvements to the property for defendant's business to operate, and that defendant was required to install and pay for the system under the terms of the lease. A dispute arose as to who was obligated to construct and pay for the new stormwater detention system. Plaintiff filed a notice of default by defendant under the lease in September 2018 and terminated the lease the next month.
Plaintiff then commenced this action seeking a declaratory judgment that it had properly terminated the lease, requesting damages. Defendant joined issue and asserted counterclaims contending that plaintiff was in breach of the lease, seeking specific performance of the lease. Plaintiff thereafter moved for summary judgment arguing that defendant had breached the lease by failing to produce plans for or construct the stormwater detention system, and requested a declaration that it had properly terminated the lease based upon defendant's breach and dismissal of defendant's counterclaims. Defendant opposed the motion, arguing, among other things, that construction of the underground stormwater detention system was not its responsibility under the lease, that the system is not mentioned in or covered by the lease and is excluded from the defined scope of the leased premises, and that extrinsic evidence establishes that plaintiff had agreed to pay for the system. Supreme Court granted plaintiff's motion for summary judgment and dismissed defendant's counterclaims. The court concluded that the terms of the lease required defendant, as the tenant, to design and construct the stormwater detention system, which it found was required for defendant to open and operate its restaurant in compliance with local building codes. Defendant appeals.
The key disputed issue is whether the lease unambiguously obligates either party to finance the stormwater detention system and, if not, whether the parties' extrinsic evidence is admissible and resolves the ambiguity.[FN1] "In determining the obligations of parties to a contract, the threshold determination as to whether an ambiguity exists is a question of law to be resolved by the court" (Agor v Board of Educ., Northeastern Clinton Cent. Sch. Dist., 115 AD3d 1047, 1048 [2014] [citations omitted]; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]; Baff v Board of Educ. of the Fonda-Fultonville Cent. Sch. Dist., 169 AD3d 1322, 1323 [2019]). If contractual language is unambiguous, it "must be enforced according to the plain meaning of its terms" (Matter of Bainbridge Nursing Home v Zucker, 170 AD3d 1367, 1369 [2019] [internal quotation marks and citations omitted]; see Gaines Mar. & Servs., Inc. v CMS Mar. Stor., LLC, 176 AD3d 1534, 1535 [2019]). However, "[a] contract is ambiguous if the language used lacks a definite and precise meaning, and there is a reasonable basis for a difference of opinion" (Agor v Board of Educ., Northeastern Clinton Cent. Sch. Dist., 115 AD3d at 1048 [internal quotation marks and citation omitted]), as "when the contract, read as a whole, fails to disclose its purpose and the parties' intent" (Ellington v EMI Music, Inc., 24 NY3d 239, 244 [2014]; see Tomhannock, LLC v Roustabout Resources, LLC, 33 NY3d 1080, 1082 [2019]; cf. Gaines Mar. & Servs., Inc. v CMS Mar. Stor., LLC, 176 AD3d at 1535). Resort to extrinsic evidence is appropriate to resolve an ambiguity in contractual language (see Baff v Board of Educ. of the Fonda-Fultonville Cent. Sch. Dist., 169 AD3d at 1323).
It is significant that the lease makes no mention of the current ground-level system and does not expressly contemplate construction of the new underground system. The parties rely on several provisions in this 40-page, small print lease to support their claim that the other is responsible to construct and finance the underground stormwater detention system. In finding that defendant, as the tenant, was responsible, Supreme Court relied upon a provision in section 1.AC of the lease, entitled "Tenant's Improvements,"[FN2] which is defined as "[a]ny improvements, . . . trade fixtures, . . . signs and personal property installed and paid for by the [t]enant as set forth in Exhibit 'D.'" The court relied on the catchall phrase in that section, that, "[i]n addition, [t]enant's [i]mprovements shall include any and all work required for [t]enant to open and operate its business at the [d]emised [p]remises and which is not included in [l]andlord's [w]ork," which "shall be performed at [t]enant's sole cost and expense" (emphasis added). Plaintiff's principal argument is that the underground system is not listed as landlord work and, thus, it is the tenant's responsibility under this section. Notably, however, Exhibit D, also entitled "Tenant's Improvements," requires the landlord's prior approval before tenant improvements are made, but then refers specifically only to work on the building itself, not to the exterior. Moreover, when the work contemplated by "Tenant's Improvements" is spelled out in more detail in section 9.A of the lease, it is defined as "the right to make such alterations and improvements in the [d]emised [p]remises as may be necessary and proper for the conduct of its business . . ., excepting (a) structural alternations or improvements, (b) alterations to the heating, cooling, plumbing, or electrical systems, and (c) alterations, additions, or improvements to the exterior or storefront of the [d]emised [p]remises" (emphases added). This appears to exclude exterior work from the tenant's responsibility.
The landlord's work is spelled out in Exhibit C to the lease, which requires that it complete a list of 11 specified items of work on the building related to electricity, lights, heat and the like, although no exterior work is specified. At the end of the list, there is a provision requiring that all construction work comply with local codes and then a catchall phrase that "[t]enant, at tenant's sole cost, shall be responsible for any additional improvements required in connection with tenant's specified use of the leased premises that are imposed by local code." Plaintiff argued, and Supreme Court found, that, inasmuch as the underground stormwater detention system is not listed as landlord work and is required by local code, it was defendant's responsibility as the tenant under the foregoing lease provisions.
Although that is one reasonable interpretation of these provisions, there are several difficulties with this conclusion, including that the lease itself does not establish that an underground stormwater detention system is required by the local code for the contemplated exterior improvements or that it is defendant's business that necessitated this new system. Indeed, defendant disputes that an underground stormwater detention system is needed to open and operate its business or that, if it is needed, it is attributable to this business rather than to all of the tenants in common. Defendant does not contest that the applicable codes are incorporated into the lease, but it cannot be determined from the four corners of the lease, among other things, whether such underground system is required as a result of defendant's business (see Century Sur. Co. v All In One Roofing, LLC, 154 AD3d 803, 808 [2017], lv denied 31 NY3d 909 [2018]). Also, although "[l]andlord [w]ork" appears to be limited to improvements on the building, the "[t]enant's [i]mprovements" provision appears to exclude exterior alterations and improvements. Moreover, several other lease provisions call into question the foregoing interpretation espoused by plaintiff and adopted by Supreme Court.
Significantly, sections 1.F and 2 of the lease define the "Demised Premises," or leased premises, as a 3,200 square-foot portion of the building within the shopping center, "together with improvements and fixtures included in [l]andlord's [w]ork." Section 2 specifically provides that it "does not include the land beneath the improvements . . . or the parking lots" (emphases added). Section 2 gives the tenant "the non-exclusive right to use a portion of such space," presumably the parking lots, for its equipment serving the leased premises, including the drive-through and ordering stalls as shown on the attached site plan, which depicts only the leased building. Importantly, that provision then "expressly reserve[s]" to the landlord the right to install and repair and replace "such pipes, duct work, conduits, utility lines, tunneling, wires and the like" with regard to the building exterior and "below the [d]emised [p]remises as may be reasonably necessary or advisable for the serving of the [d]emised premises or other portions or the [s]hopping [c]enter" (emphases added). This would support, although not compel, the conclusion that defendant did not lease or assume responsibility for any underground area, and that any obligation to construct and pay for a new underground stormwater detention system fell exclusively to plaintiff.[FN3] The lease provisions governing the common areas could also support that conclusion.
Reading the lease as a whole, we find that it is ambiguous in that "there is a reasonable basis for a difference of opinion" as to the meaning of the contract language regarding which party is responsible for the upgrade to the stormwater detention system (Agor v Board of Educ., Northeastern Clinton Cent. Sch. Dist., 115 AD3d at 1048 [internal quotation marks and citation omitted]; see Harris v Reagan, 161 AD3d 1346, 1349 [2018]). To that end, it "fails to disclose . . . the parties' intent" on this point (Ellington v EMI Music, Inc., 24 NY3d at 244; see Tomhannock, LLC v Roustabout Resources, LLC, 33 NY3d at 1082; Baff v Board of Educ. of the Fonda-Fultonville Cent. Sch. Dist., 169 AD3d at 1323). In our view, "[i]t is not obvious how to reconcile these conflicting [lease] provisions" (Harris v Reagan, 161 AD3d at 1349). Thus, we cannot agree with Supreme Court's conclusion that the lease unambiguously imposed a contractual responsibility on defendant, as tenant, to contract and pay for a new stormwater detention system, or that defendant was in default of the lease for failing to submit plans to that end (cf. Gaines Mar. & Servs., Inc. v CMS Mar. Stor., LLC, 176 AD3d at 1536).[FN4]
Given the ambiguity in the lease, resort to parol or extrinsic evidence is proper to discern the parties' intent (see Kolbe v Tibbetts, 22 NY3d 344, 355 [2013]; Baff v Board of Educ. of the Fonda-Fultonville Cent. Sch. Dist., 169 AD3d at 1323; Monticello Raceway Mgt., Inc. v Concord Assoc., L.P., 129 AD3d 1183, 1185 [2015], lv denied 26 NY3d 913 [2015]; Agor v Board of Educ., Northeastern Clinton Cent. Sch. Dist., 115 AD3d at 1049).[FN5] Suffice it to say that the extrinsic evidence submitted does not resolve the questions of fact presented regarding the parties' intentions on this disputed issue.
In moving for summary judgment, plaintiff relied heavily on the affidavit of Joseph Dannible, a landscape architect involved in the review of the requirements for the site plan to comply with the Code of the Town of Clifton Park, specifically with regard to stormwater treatment. Dannible concluded that the existing system had to be replaced and that an underground stormwater detention system was "the most feasible method" to comply with local codes, and that this was "necessitated solely by" the exterior improvements and design required for defendant's business. However, even accepting his expert — albeit conclusory — opinion [FN6] regarding the most feasible method and the cause of the stormwater problem, Dannible does not explain when this conclusion was reached and, more to the point, whether it was understood by both parties prior to signing the lease that a new system would be needed, let alone their intentions regarding who was responsible to design and pay for it. Plaintiff also relied upon correspondence between the parties in June 2018, after the lease was signed, in which plaintiff asserted that the underground stormwater detention system fell under tenant work in the lease. Defendant's response to that correspondence was that it was not its responsibility and that it had no role in siting the current system, relying on correspondence from plaintiff's leasing officer that plaintiff is "doing the site work." That representation by plaintiff's agent was made in reply to defendant's message that plaintiff "will be installing the stormwater management system." As such, plaintiff's extrinsic evidence failed to resolve the lease ambiguity regarding responsibility for the new underground stormwater detention system, and did not "demonstrate the absence of any material issues of fact" in that regard (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016] [internal quotation marks and citation omitted]). Viewing the facts in the light most favorable to defendant, the nonmoving party, we find that plaintiff failed to "make a prima facie showing of entitlement to judgment as a matter of law" (id. [internal quotation marks and citation omitted]).
Even if we were to find that plaintiff satisfied its burden, shifting the burden to defendant, defendant "establish[ed] the existence of material issues of fact" so as to defeat plaintiff's motion (id. [internal quotation marks and citation omitted]). To that end, defendant submitted the affidavit of Bruce Ginsburg, a real estate broker involved in the lease negotiations who indicated that, in January 2018 prior to the lease being signed, plaintiff was aware that some of the exterior improvements were above the existing stormwater area. Ginsburg further explained that plaintiff's agent had represented, in an email he provided, that plaintiff "has agreed to do all needed work including the stormwater management area outside of the red box on the attached site plan." The attached site plan shows a red box around the exterior improvements adjacent to the building and the drive through, with a sizeable shaded area outside of the red box. Although the labels on that map cannot be discerned, Ginsburg represented that the map "did not have any stormwater area inside the red box" and, thus, plaintiff had assumed responsibility for the stormwater detention system. Given the foregoing, it was error to grant plaintiff's motion for summary judgment declaring that defendant was in breach of the lease, and defendant's counterclaims should not have been dismissed.
Lynch, J.P., Mulvey, Devine and Aarons, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, plaintiff's motion for summary judgment denied and defendant's counterclaims reinstated.
Footnotes
Footnote 1: Although defendant opposed plaintiff's motion for summary judgment on the ground, among others, that it was premature and that further discovery is needed, defendant failed to identify any particular information that might be gained that was not then available and, thus, failed to make the requisite "evidentiary showing" to defeat the motion on this basis (Ivory Dev., LLC v Roe, 135 AD3d 1216, 1224 [2016] [internal quotation marks, emphasis and citations omitted]; see CPLR 3212 [f]).
Footnote 2: Where full word capitalization has been utilized in the lease, such capitalization has been omitted.
Footnote 3: Although the lease does not specify where the current ground-level stormwater detention basin is located, it appears from plaintiff's motion papers that it is located under the parking lot in an area where driving lanes were being installed, and that installation of expanded parking areas reduced the size of that basin. Plaintiff included a map of current conditions in its motion papers, but it is not possible for this Court to draw any conclusions therefrom. The disputed replacement system is apparently to be underground. One interpretation of the lease is that work on both of those underground areas was expressly reserved to plaintiff as the landlord.
Footnote 4: Defendant did not cross-move for summary judgment in its favor or request that Supreme Court search the record to determine that plaintiff was obligated under the lease to construct and pay for the new system, and does not request that this Court do so (see CPLR 3212 [b]).
Footnote 5: The lease contains a general merger clause, the purpose of which is to reflect that the lease "represents the entire understanding between the parties," which "require[s] full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to vary or contradict the terms of the writing" (Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594, 599 [1997] [internal quotation marks and citation omitted]). However, the ambiguity in the lease on the disputed issue permits consideration of extrinsic evidence with regard to the parties' intent and understanding (see Karol v Polsinello, 127 AD3d 1401, 1404 [2015]; Vivir of L I, Inc. v Ehrenkranz, 127 AD3d 962, 964 [2015]; cf. Schron v Troutman Sanders LLP, 20 NY3d 430, 436 [2013]; compare Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 822 [1984]).
Footnote 6: Dannible's affidavit is presented as both a fact witness, as he was involved in the site plan approval process for this project, and as an expert witness with regard to local code requirements.
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120 Ill. App.2d 313 (1970)
256 N.E.2d 475
People of the State of Illinois, Plaintiff-Appellee,
v.
Jack W. Richards, Defendant-Appellant.
Gen. No. 69-77.
Illinois Appellate Court Second District.
March 17, 1970.
*314 *315 *316 *317 John T. Perry, of Wheaton, for appellant.
William V. Hopf, State's Attorney of DuPage County, of Wheaton, and Ralph J. Gust, Jr., Assistant State's Attorney, for appellee.
MR. PRESIDING JUSTICE THOMAS J. MORAN delivered the opinion of the court.
Defendant, Jack W. Richards, was indicted for the murder of his wife; a jury found him guilty and recommended the death penalty. The court entered judgment *318 upon the finding of guilt, but sentenced defendant to a term of 99 to 150 years.
The appeal raises issues of the validity of the indictment, the sufficiency of the evidence, and claims prejudicial pretrial and trial errors. Error is also charged in the failure to grant a new trial on purported newly-discovered evidence. In any event, it is urged that the sentence is excessive.
The indictment charged, in Count I:
"... that on or about the 3rd day of February, A.D. 1967, at and within DuPage County, Illinois, JACK W. RICHARDS committed the offense of MURDER in that he, without lawful justification, and with intent to kill LEONE V. RICHARDS, caused her to remain within a garage which became filled with carbon-monoxide gas, thereby causing the death of said LEONE V. RICHARDS, in violation of Illinois Revised Statutes 1965, Chapter 38, Section 9-1(a) (1)...."
and, in Count II, charged the defendant with the murder in that he:
"... without lawful justification caused LEONE V. RICHARDS to remain within a garage which became filled with carbon-monoxide gas knowing that such an act creates a strong probability of death and did cause the death of said LEONE V. RICHARDS, in violation of Illinois Revised Statutes 1965, Chapter 38, Section 9-1(a) (2)...."
Robert P. Troy, a police officer and State's witness, testified that he arrived at the defendant's home at about 10:00 p.m. on February 3, 1966, as the result of a radio communication. Defendant and a neighbor were at the front door and directed him to the kitchen, where he found the deceased lying on her back on the floor. He described the deceased's clothing, observed that there *319 were no marks on the exposed portion of the body and that the body appeared cold; that one arm was extended to the right side of the face, "up in the air," and was stiff. After aiding in the removal of the body, he returned and examined the garage which was separate from the house.
There was a Ford backed into the garage, the ignition in the "off" position; he started the car and stated that it idled fast. He kicked the gas pedal several times but the idle remained the same. On the seat in the car, he observed some money, a purse-type wallet (later identified as belonging to the decedent), a glove and a remote control garage door opener. He observed that the radiator was warm; that the window on the driver's side was rolled one-third of the way up and the fuel indicator in the car showed there to be approximately a half tank of fuel remaining. The path to the garage from the house had snow and ice on it and he did not know whether it had been shoveled or trod down.
Troy further testified that while he was in the garage, he took the small remote control device from the front seat of the car and accidentally tripped it; the garage door started to come down and the overhead light in the garage went off. He pushed the control three or four times to stop the door from going down, but it did not stop. He found a light switch within the garage, but it did not work; thereafter, he pushed the control-device button again and the garage door went back up and the light went on.
Robert Ryan, then a sergeant in the Elmhurst police department, testified that he accompanied officer Troy to the defendant's residence on February 3rd; confirmed Troy's testimony as to the position of the body and its condition. He drove the defendant and his brother-in-law to the Elmhurst Hospital. When they arrived at the hospital, Ryan testified, the defendant was depressed *320 and upset and he recalled the defendant saying, "Tell me she isn't dead."
At the hospital, Ryan directed Officer Hargraves to bring the defendant to the police station, where he took an oral statement. Ryan testified that defendant told him that he and his wife had gone for a drive in the afternoon; that his wife left the house at approximately 7:00 p.m. to go shopping, and he was downstairs watching television; that he had asked his wife to put their second car, a Dodge, which was parked in the front of the house, in the garage when she returned; that he had worked on the Ford automobile in the afternoon, curing a mechanical problem concerning a loose wire; that later in the evening he had gone to the garage to put the Dodge away when he discovered his wife. He stated that defendant said he found his wife inside of the car, on the floor in front of the front seat, but on cross-examination admitted that the defendant had given him a partial written statement in the station in which he stated that he found his wife lying on the floor.
Sergeant Ryan testified that the defendant stated that he had recently obtained some pills; that while he was traveling, he believed he had discarded some in a toilet bowl in Minneapolis; that he did not know if his wife had taken any of those pills on February 3rd. The Sergeant did not look for the pills. He said the defendant told him the pills were his for a chest cold, and his wife had taken some but he did not know if she had taken any on the particular day of February 3rd.
Sergeant Ryan testified that defendant told him that he had filled the Ford's gas tank the night before, and that the change which was on the front seat was the change he had received from the gasoline attendant.
Dr. Bartley testified that he was a physician on duty in the emergency ward at the Elmhurst Hospital and that he examined Leone Richards upon her arrival on the night of February 3rd. He stated that she was *321 dead on arrival at the hospital, and it appeared that she had been dead at least an hour or two, this conclusion reached on the basis of his observation that her body temperature was slightly diminished, and that this was a wintry evening. He testified that he examined Mrs. Richards' body but did not find any marks, bruises, or lacerations on her head or other parts of her body; that he presumed she died from carbon-monoxide poisoning, based upon the history he received.
Dr. Hubert Swartout, a pathologist, testified for the State that, on the morning of February 4th, he performed an autopsy on the deceased. He confirmed that there were no marks or bruises on the exterior of the body. He diagnosed the cause of death as being from carbon-monoxide poisoning, in view of the color of the skin, the organs, and the muscles which were bright pink, a characteristic of death by this cause. He examined the stomach of the decedent and testified that it was empty; that the emptying time of the stomach varies, and that if a light meal is eaten, it would be empty in two hours, with a heavy meal, in four hours. He testified that it would be fair to say that she had not eaten for at least two hours and possibly as long as four hours. This would be a measurement from the time she died as there are very minimal digestive processes after death, he testified. He extracted a blood specimen from her body at the time of the autopsy.
Dr. Fiorese, Chief of the Bureau of Toxicology, State of Illinois, testified to his findings from the blood specimen of the decedent. The tests that were performed on the blood sample showed that saturation was 85% carbon monoxide in the blood of the decedent. Further tests indicated that Doriden, a sedative, was found in the blood of the decedent, having a concentration of 3.5 milligrams percent. He testified that Doriden starts to produce a sedative effect 15 to 20 minutes after ingestion; that a concentration of 3.5 milligrams percent would produce a *322 coma condition in a little more or less than one hour; that in a small person from 100 to 120 pounds, the concentration of Doriden found in the decedent's blood would probably indicate the ingestion of about 7 tablets. He further testified that, taking into consideration the dimensions of the garage and the specifications of the 1956 Ford automobile, the decedent would have died of carbon-monoxide poisoning within 40 minutes from the time the car was started within a closed garage.
Dr. Westfall, an obstetrician and gynecologist, testified that he had treated Leone Richards with reference to her last pregnancy; that she had delivered a baby boy on December 1, 1966, that he saw her on January 16th, 1967, for her six-week checkup and found her in good physical condition, and that she was approximately 5 feet tall and weighed approximately 110 pounds. The Doctor stated that when Mrs. Richards was in the hospital after the delivery of the baby, she was very concerned over the baby's condition, which was not normal due to a cleft lip. He stated that Mrs. Richards was always quite an apprehensive and emotional woman; however, when he saw her during the January 1967 checkup, she did not have this apprehension. He stated she seemed to be more cool, more resigned, and testified that "she just did not seem to be herself." At the January 16th examination he told her that there should be no problem with the surgical procedure for the cleft lip and, contrary to her ordinary practice, she did not ask a lot of questions about it.
Dr. Messitt, a physician on duty in the Elmhurst Hospital emergency room on January 28, 1967, testified that he saw Mr. Richards at about 11:00 a.m. on that date. Defendant was complaining of a chest cold and cough and the Doctor concluded that defendant had a residual laryngo-bronchitis from an upper respiratory infection that was probably viral in origin. He testified that he *323 prescribed a sulfa preparation, a cough preparation and Doriden. He prescribed Doriden because defendant had asked for something to help him sleep. He wrote a prescription for 14 tablets of Doriden, at a strength of one-half gram, or 500 milligrams. Defendant told him that he had had the complaints for approximately a week and a half to two weeks.
There was testimony that the prescriptions were filled by the pharmacy and picked up by the defendant on January 28, 1967.
A young girl, who was the babysitter for the Richards' children on the night prior to Mrs. Richards' death, testified that neither Mr. nor Mrs. Richards appeared any different to her on February 2nd than they had on any previous occasion.
Geraldine Johnson, a neighbor directly to the south of the Richards' home, testified for the State. She said that she and her husband were social friends of the Richards and that she had been a particularly good friend of the deceased. She had walked by the Richards' home at 8:30 p.m. on the night of February 2nd, noticed that the drapes were drawn and that there were no lights on in the house. She had never seen these drapes closed before. The first thing she did on the morning of February 3rd was to observe the Richards' home to see if the drapes were still drawn; they were. At about 1:00 p.m. she observed the defendant emerge from the front of his home carrying his son, Bart, in an infant seat; he placed the child in the rear seat of the automobile. The defendant then reentered the house and emerged from the front door, helping Leone Richards to the car, which had been backed into the driveway so that the passenger side was towards her house. The defendant walked directly behind his wife, holding her up by placing his hands and forearms under the elbows and forearms of his wife. The witness testified that Mrs. *324 Richards walked very slowly, dragging her feet and that her head was falling forward and remained down while she walked to the car. The passenger door was open and the defendant turned Leone Richards around, with her back to the car, sat her down in the front seat, picked up her feet and placed them in the car. The witness observed that Leone Richards' eyes were closed; that, as the defendant picked up her feet, her head went backward to the top of the seat and remained in that position while within the witness' scope of vision. After the car drove away, Mrs. Johnson immediately called another neighbor, Mrs. Zelinski.
Mrs. Johnson further testified that at about 2:30 p.m. she received a call from Mrs. Zelinski and, after talking to her, Mrs. Johnson called the Richards' home. The defendant answered, she asked to talk to his wife, and he told her that she was resting; Mrs. Johnson asked the defendant to get her up because she wanted to talk to her, and that he said, no, no, no, and that she asked to have Leone call back before the dinner hour.
Shortly after 3:00 p.m., Mrs. Johnson noticed the Ford, the front partially sticking out of the garage; the defendant was working under the hood and under the dashboard while she watched between 3:00 and 4:00 p.m. When her husband came home at 5:00 p.m., she noticed the Richards' garage was closed, that there were no lights in the back of the house at that time; she walked her dog past the Richards' house, observed that the house was still dark and the drapes still drawn, a small stove light was on in the kitchen and there was a light in the basement. She testified that the same conditions existed when she walked her dog at 5:30 p.m., when she looked again at 6:00 p.m. and at 6:30 p.m. on the occasion of another walk with her dog.
At 7:00 o'clock she again walked her dog past the Richards' home and observed the defendant in the driveway. She noticed that the garage door was closed; the *325 defendant was midway between the garage and the rear of the house, walking down the driveway toward the front of the house. At the time, the witness was standing on the sidewalk in the Richards' driveway, in front of the Richards' second car, which was parked in the driveway. When the defendant reached the front of the house, Mrs. Johnson called to her dog; the defendant looked up; Mrs. Johnson called out to him, by name; he did not answer but immediately turned around and ran up the length of his driveway and around the rear of his house, toward his back door. During this time, she did not see the Richards' pet dog.
Mrs. Johnson further testified that, at 7:30 p.m., she and her husband were outside in front of their house. She observed the Richards' front porch light on, a light on in the living room and the draperies open approximately one foot. These conditions were the same at 8:30 p.m. when she passed the Richards' home and saw the defendant, in his living room, pace six or seven times in front of the drapes. At 9:00 p.m. she observed the same thing. At 10:00 p.m. Mrs. Johnson was in the second story bathroom of her home and noticed the Richards' backyard lighted by floodlights. She saw Leone Richards lying on her back in the driveway, her feet toward the door and her head toward the street. The garage door was open and the Ford automobile was backed into the garage. The defendant was facing the street, leaning over Leone Richards' body; he picked her up by the wrists, lifted her back approximately one foot above the ground, and dropped her. He picked her up again in the same fashion and again, dropped her. She testified that defendant looked around after each time he dropped Leone Richards' body. Mrs. Johnson called to her husband, who immediately ran out and around the front of the Richards' home.
Mrs. Johnson testified to a conversation with defendant in her home the next day during which she asked *326 the defendant what had happened; that defendant told her it was an accident; that his wife had been going shopping, she must have been cold and started the engine to warm up in the garage; that she got out of the car to shut the door and must have fallen down and hit her head on the automatic door closer; that he had been down in the basement watching a program with his daughter. She asked him why Leone had taken the Ford when "she hated it so," and he said that the other car wasn't working quite right and he had not wanted her to use it.
Mrs. Pat Zelinski, a witness for the State, testified that she lived across the street and one house north of the Richards' residence and that on February 3rd she was with Mrs. Johnson until about noon. Mr. Richards called about 12:40 p.m. and asked if he could bring his daughter over and have her taken to school by Mrs. Zelinski. This arrangement was made and was not unusual inasmuch as Beth and the witness's daughter went to the same school and took tap dancing lessons together. Mrs. Zelinski took Beth and her daughter to school, picked them up from school and later took them to their tap dancing lesson. She brought Beth back to the Richards' home at about 4:45 in the afternoon.
At approximately 2:30 p.m., she saw the Richards' car drive by her house; it backed up into the Richards' driveway. As the car passed her house, she observed that Leone Richards' head was slumped down; that after the Ford parked in the Richards' driveway (approximately 200 feet from her living room window), she observed defendant help Mrs. Richards out of the car. She thought she saw Mrs. Richards move. She could not tell if they were talking. She testified that the defendant placed Mrs. Richards' arms over the car door and that her forearms extended over the open door; that her head was over the car door and looking downward. Mr. Richards took the baby out of the back seat of the *327 car and into the house, leaving Mrs. Richards in that position. He came out of the house and put his wife's one arm around his shoulder and his arm around her waist. Mrs. Zelinski's view was partially obstructed by the Ford and she could only see the head and shoulders of their bodies, but she saw them proceed to the house; Mrs. Richards' head was forward and it appeared that she walked up the steps and that she was not dragged. Mrs. Zelinski then called Mrs. Johnson.
She further testified that when she returned home from shopping just prior to 7:00 p.m., she observed the Richards' garage door open and the Ford backed into the garage. From her vantage point, which she estimated to be 300, 400 feet away, she saw no light in the garage. She also observed piles of snow, 3 or 4 feet high, along the driveway and the parkway.
Martha MacMillan, employed by an airline and formerly a stewardess, testified for the State concerning her relationship with the defendant. She stated that she first met defendant while attending an airline convention in 1961 and did not see him again until another airline convention in Miami in November of 1966. At that time they went out socially and the defendant told her that he loved her, that he and his wife were getting a divorce and that he wanted to marry her. Shortly after returning to her home in Pittsburgh, she received a telephone call from the defendant, and he continued to call her daily throughout the remainder of December, 1966, repeating that he loved her and wanted to see her. She testified that, by prearrangement, the defendant traveled to Pittsburgh in mid-December of 1966 and that they were intimate. A second meeting was arranged for December 31, 1966, when defendant had a flight; she flew to Omaha, Nebraska, met the defendant at his hotel and they were again intimate. He continued to call frequently during January; two additional prearranged meetings took place on January 17 and January 21, 1967, in Minneapolis, *328 Minnesota, at the defendant's hotel room, where Miss MacMillan stayed.
She testified that, during the conversations in December, defendant had told her he wanted to marry her; in response to questioning, however, she could not remember how many times, but that it was "a lot, but I can't name a specific number." She said that the predominant subject of the January telephone conversations was that defendant was in love with her and that he wanted her to settle down and get married.
The witness further testified that, in the early part of February at 4:00 a.m. one morning, she received a telephone call from defendant wherein he told her there had been a terrible accident and that his wife was dead; that he didn't know whether it was an accident or suicide. Within 24 hours she received another call from the defendant in which he told her that his wife had died of carbon-monoxide poisoning, that "someone had found her in a car, and she was dead." During telephone conversations in February, he told her that he did not know what he was going to do with his children and that he was concerned about how he was going to take care of them.
According to Miss MacMillan's testimony, the defendant came to Pittsburgh to see her in February and stayed at her apartment, asked her to marry him and she said yes. They discussed a ring, and she told him she would like to have an emerald with diamonds on the sides. Toward the end of February, defendant came to Pittsburgh and brought his daughter; both stayed with Miss MacMillan at her apartment. During that stay, she and defendant had "a very bad argument" because defendant looked at some of her personal letters. In March he came to her building, but she refused to see him; the last conversation she had with him was in May when he called her.
*329 Rosemary Davis, an acquaintance of the defendant and his wife for a period of years, testified for the State. She said that, in December and January, she saw the deceased several times and that she saw her about one week before her death; that on all of these occasions, deceased appeared fine and there was nothing unusual about her. She testified to a call that she made to the Richards' home on February 3rd; that when the defendant answered the phone, he told her his wife was resting and he did not want to disturb her. She said that on February 4th she talked with defendant and he said that he had found his wife lying there as he opened the garage door. In the conversation, defendant evidenced concern for his children and stated he did not know what he was going to do with them.
Mrs. Davis' husband, William Davis, testified for the State. His testimony, related to the mechanism and operation of the electronic garage door opener, revealed that it could be activated by an exterior key, by a button in the garage, or by the remote transmitter device; when power to the garage was turned off by an interior switch in the house, the automatic device was inoperable and the door could not be raised without pulling the safety chain, located 6 feet, 6 inches off the ground in the middle of the door. He had demonstrated the operation to Mrs. Richards and told her she should never get in the car, start it, and then open the doors. He confirmed his wife's testimony as to not observing anything unusual about Mrs. Richards prior to her death.
Elmer Andrews, a salesman of Peacock Jewelers, in Oakbrook, Illinois, testified that the defendant came to the store on February 10, 1967, interested in a ruby engagement ring, which they did not have in stock; that defendant returned on February 16th and was shown an $800 ruby ring which he selected; defendant made a $200 down payment. He testified that defendant said he *330 was presenting it to a young lady in California; that he would like it as quickly as possible; that he had lost his wife several months before.
The defendant testified in his own behalf. He said that on the day in question he and his wife did the usual household things, such as having breakfast and giving the children baths. He believed they both ate lunch on that day. He testified to the arrangement of having Mrs. Zelinski take Beth to school and to her dancing lesson; that before taking the child across the street, he started the Ford in preparation for a ride planned for that afternoon; that his wife, meanwhile, readied the baby. He took the baby out to the Ford, placed him in the back seat in a semireclining infant seat, and returned to assist his wife out of the house; that, with his hand around her arm, he walked behind her and to her side. He did not recall that his wife staggered or stumbled, but said that the front stoop, steps and sidewalk had snow and ice on them. He did not notice anything unusual about her when she was in the car; she was conscious and talking. After he got into the car, his wife requested that the baby be put in the front seat and, reaching over the seat, he placed the baby between them. He recounted a conversation with his wife during the course of the trip and said that his wife was sitting relatively erect as they passed Mrs. Zelinski's house, but that she may have been bent over talking to the baby. Upon their return, the defendant backed the automobile into the driveway and, after a short conversation with his wife, it was decided he would take the baby in before he helped her. Returning to the car, he took his wife's hand and helped her out of the car, holding her by the elbows as he walked her up the stairs. She walked in front of him as they both went into the house. They had been gone for approximately an hour and a half.
Thereafter, his wife unwrapped the baby; he and his wife started making formula, which he later finished. His *331 wife went downstairs to put a load of wash in the machine and, some time shortly before 3:00 p.m., she came upstairs and went to the bedroom to lie down; she napped until shortly after his daughter arrived home and the child woke her mother. While Mrs. Richards was sleeping, the defendant received three phone calls, one from Mrs. Johnson, one from Mrs. Davis, and one from a Mrs. Cotti; he advised all three that Mrs. Richards was taking a nap.
While Mrs. Richards napped, defendant worked on his Ford, removing a wire, hooked to a coil, which had been used as an electric tachometer. After Mrs. Richards awoke, at approximately 5:00 p.m., defendant, his daughter and his wife had something to eat. He and his daughter had a sandwich, his wife, breakfast cereal. After eating, the defendant and his daughter went to the recreation room in the basement, while Mrs. Richards stayed upstairs. Some time after 6:30 p.m., the defendant started up the basement stairs when he heard his wife shout to him that she was going out shopping. He observed her leave by the back door and recalls telling her to take the Ford. He also asked his wife to park the Ford in front and place the Dodge in the garage when she came home. After his wife left, he returned to the basement, going upstairs later to let the dog out. He whistled for the dog but it did not return, and the defendant went out the back door looking for it. He walked towards the street on the drive and spotted his dog, which ran back to the house. He trotted behind it and they both went in.
Defendant stated that he gave his daughter a bath, put her to bed, then watched T.V. At about 10:00 p.m., he turned on the lights in the backyard, walked to the front door and out of the house, got in the Dodge which he drove into the driveway; stopped the Dodge shortly before he got to the garage door, got out of the car, walked to the garage and opened it with the key switch; *332 the garage was filled with smoke and his wife was lying near the right front fender of the car on the floor of the garage. He dragged his wife out of the garage, got into the car and turned the key, then ran into the house and called the police department. He then came outside and attempted to pick his wife up but was unable to do so. As he grabbed her by the wrist, trying to drag her, he slipped and, he testified, he probably dropped her. He grasped her again and, after a period of time, got her to the backstairs. At this time Mr. Johnson appeared on the scene and defendant asked for his assistance. Together they lifted the body up the backstairs and placed it in the kitchen of the home.
Defendant denied that officer Hargraves brought him to the station. He said that he walked from the hospital to the station with his brother-in-law. This was confirmed by his brother-in-law.
Defendant stated that he did not hear Mrs. Johnson call his name. He stated that he measured the Ford from the ground level to the top of the door and found the distance was 59 inches. He denied making any proposal of marriage to Miss MacMillan prior to his wife's death, and denied telling her, at the Miami convention, that he was not happy, that he was going to get a divorce and that he was in love with her. He said that the December meeting with Miss MacMillan was in Chicago and not in Pittsburgh, and that his only proposal of marriage to Miss MacMillan was on February 14th. He testified that it was on that date that they discussed the type of ring she desired; that he was first in the Peacock store on February 15th, and that he ordered the ring the next day, February 16th; that the relationship with Miss MacMillan was broken by mutual consent and that he and his wife had never discussed divorce. He denied that he had killed his wife.
He denied that he requested a sleeping compound from Dr. Messitt, but stated that he did complain of having *333 trouble sleeping and that the Doctor volunteered prescribing the pills. In his testimony, defendant stated that he did not know whether his wife had taken any of the tablets or whether she was aware of them.
Several witnesses testified to defendant's good reputation for truth, veracity, peace and quiet.
Defendant's brother-in-law, Mr. Hollander, testified that it was not unusual to see the drapes closed in the Richards' front room; that Leone Richards had been upset and very apprehensive about her son's operation and the fact that she would not be permitted to see her child while in the hospital during this operation.
Defendant argues that he was not proven guilty beyond a reasonable doubt since the evidence was entirely circumstantial and could be resolved on a hypothesis of innocence. He relies on the rule that to warrant conviction on circumstantial evidence, it must be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion and producing a reasonable and moral certainty that the accused, and no one else, committed the crime, and that the conviction was not the result of passion and prejudice resulting from defendant's human failing, citing The People v. Dougard, 16 Ill.2d 603, 158 NE2d 596 (1959), The People v. Wilson, 400 Ill. 461, 480, 81 NE2d 211 (1948), The People v. Ahrling, 279 Ill. 70, 80, 88, 116 NE 764 (1917) and Jumpertz v. People, 21 Ill. 374 (1859).
The State argues that the court of review will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt as to the defendant's guilt, citing People v. Anderson, 104 Ill. App.2d 47, 242 NE2d 798 (1968). While the State denies that the conviction is based entirely upon circumstantial evidence, it argues that all of the evidence and circumstances taken together compel the conclusion of defendant's guilt; and that *334 proof of defendant's guilt beyond a reasonable doubt does not mean that the trier of fact is required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt, citing The People v. Owens, 23 Ill.2d 534, 538, 179 NE2d 630 (1962); cert den 370 U.S. 947. See also, The People v. Dewey, 42 Ill.2d 148, 158, 246 NE2d 232 (1969); The People v. Williams, 40 Ill.2d 522, 526, 240 NE2d 645 (1968), cert den 393 U.S. 1123; People v. Stoafer, 112 Ill. App.2d 198, 251 NE2d 108 (1969).
[1] We are of the opinion that, within the purview of the authorities, the proof to establish the criminal agency, and the author of the criminal agency, is entirely circumstantial. We, however, believe all of the evidence and circumstances taken together, in conjunction with the reasonable inferences which may be drawn therefrom, do produce a reasonable and moral certainty that defendant, and no one else, committed the crime. While taken individually, many of the circumstances testified to are compatible with innocence, the totality of the record supports and impels a contrary conclusion.
The record thoroughly excludes the fact that some third person had access to decedent at any time in question. This is additionally supported by the evidence that there were no marks or bruises on the body.
Suicide is no more than a potential surmise and does not become a reasonable explanation in view of the testimony in the record (including defendant's own testimony) which indicated that decedent was happy and acted completely normal for a period of time prior to the day of her death.
The instrumentality causing the death was shown to be a combination of sleeping tablets and carbon-monoxide gas. There was evidence that Leone Richards was in a drugged condition on the afternoon of her death, which could account for her inability to extricate herself from *335 the garage. The undisputed fact that the drugs were those of defendant, together with the inferences which the jury could draw from the testimony of Mrs. Johnson and Mrs. Zelinski and the scientific testimony which would account for the decedent being in a coma and unable to walk, strongly point to a conclusion that she could not have walked out to the garage as defendant testified. While defendant characterizes the testimony of Mrs. Johnson and Mrs. Zelinski as the product of a heated imagination, the apparent suspicion of these observers is confirmed by the finding of the concentration of Doriden in decedent's blood.
There is no evidence of any observed activity of Leone Richards after 2:30 p.m. on the day of her death, except by the defendant; there is substantial evidence to justify the inference that she could not be aroused during the day and did not return the telephone calls as, according to the testimony, she normally would do. The observations of Mrs. Johnson and Mrs. Zelinski thoroughly lead to the conclusion that the decedent was in a drugged condition some time prior to the time that she went to the garage as defendant testified, and fairly excludes defendant's suggestion that she could have taken the tablets just before going there.
The testimony of Mrs. Johnson placed defendant within ten feet of the garage and walking from it at a time consistent with decedent's presence. The evidence that defendant set up the idle to cause the engine to run faster is a reasonable inference from his working on the car on the afternoon of the death. And his explanation that he worked on it the day, or two days, after the death to adjust the carburetor is inconsistent with the fact that Officer Troy found that the idle was already set high on February 3rd when he inspected the vehicle.
At the trial, defendant testified that he opened the door to the basement and observed his wife after she had *336 passed out of the house and while she was on the outside stairway. This was inconsistent with his statement to the police shortly after the occurrence that he was in the kitchen and held the door open for his wife to go out; it is also inconsistent with the testimony of Mrs. Davis and Mrs. Johnson in which they related that the defendant told them, the day after the occurrence, that he was downstairs in the basement at the time his wife left and it was for that reason he did not notice whether or not the car left the garage.
The jury could also consider that defendant's accounting for the number of Doriden tablets available for Leone Richards' ingestion on the day of her death, was inconsistent with the chemical and scientific evidence.
[2] While the State is not required to prove a motive for a deliberate criminal act, the presence of a motive is important in considering the question whether a defendant did commit the act. The People v. Novotny, 371 Ill. 58, 62, 20 NE2d 34 (1939). The testimony of Miss MacMillan supplied strong evidence of motive. The jury could properly determine her credibility and resolve the conflict between her testimony and that of defendant who admitted the affair but denied the proposals of marriage prior to his wife's death and particularly denied Miss MacMillan's testimony that he had told her of difficulties with his wife and of his wanting to get a divorce. The jury was also in a position to choose between the possible inferences based on the haste and circumstances in which defendant told Miss MacMillan of his wife's death and his admitted early proposal of marriage after the death.
[3] While all of the circumstances are explained by the defendant's testimony as consistent with innocence, the jury was not bound to accept his testimony as true, particularly when it conflicted with reasonable inferences from other evidence and circumstances and, in itself, contained some inconsistencies.
*337 We next consider defendant's claim of error in the court's refusal to grant a new trial based upon alleged newly discovered evidence. This claim relies upon testimony of Carl W. Hollander, a nephew of deceased, (and the son of Carl Hollander, defendant's brother-in-law who testified at the trial) taken in the course of the hearing on defendant's post-trial motion, heard on January 3, 1969.
Hollander testified that he had moved to Indianapolis in September, 1967, but had previously lived in Franklin Park, Illinois, and Addison, Illinois, and had known Mrs. Richards since her marriage to his uncle. He stated that on February 3, 1967, he was at a store on St. Charles Road in Elmhurst and saw Leone Richards sitting in a car; that he talked to her about her baby; that she asked if his wife could accompany her shopping and he explained they were in the process of moving. He noticed nothing unusual about Mrs. Richards and said she "appeared normal" and "acted completely normal." As a foundation for his testimony, he stated that he had served in the army as a medic and had many occasions to observe people under the influence of drugs.
He stated that he was aware of Mrs. Richards' death on the day which followed it, and related the incident only to his wife, until approximately two weeks before he testified. This was after the trial when defendant and the witness then told a lawyer for the defendant of the conversation. He said his parents had never told him of the fact that defendant was charged with the murder of his wife and that he was not told, nor was he aware of the trial, until Thanksgiving day of 1968 when he read an account in the paper and was alerted by the date of February 3rd, which was his birthdate.
On cross-examination, he stated he had seen his parents in 1968, but was not sure if it was more than a half dozen times; that he discussed Jack Richards with his parents but only relative to defendant's children; *338 that he was not told that his father had testified at the coroner's inquest; that at some time between February and Thanksgiving day in 1968, his parents had told him that Jack Richards had been indicted for something, but was not told what, and it was not discussed further. He said that his parents did not tell him of the trial or of his father's testimony at the trial. He saw defendant at Leone Richards' wake, but did not tell him of the conversation. He had not left the Chicago area until approximately six months after Leone Richards' death. He had no knowledge or experience with the effect of Doriden. He could not establish the time of his purported conversation with Leone Richards except that it was between 1:00 and 4:00 p.m. It was adduced that the witness had been under psychiatric care some three years prior to his testifying.
[4-6] We find no error in the trial court's denial of the motion for a new trial based upon alleged newly discovered evidence. The evidence impeaches that portion of defendant's testimony in which he related the route of the drive he testified he took with his wife on the afternoon of February 3rd, and also that portion of his testimony in which he stated that they made no stops during the trip. It is cumulative as to that portion of defendant's testimony that his wife appeared normal on the afternoon of February 3rd, and, while it conflicts with the testimony of Mrs. Johnson and Mrs. Zelinski, there are inherent improbabilities which at best address the testimony to the court's discretion. We believe that the offered testimony does not appear to be of a conclusive nature which would probably change the result if a new trial were granted. Even the question of due diligence in discovering the evidence appears to us to be addressed to the court's discretion. The court did not abuse its discretion in denying the motion. The People v. Dukes, 19 Ill.2d 532, 538-539, 169 NE2d 84 (1960), cert den 365 U.S. 830; The People v. Baker, 16 Ill.2d 364, 373-374, 158 *339 NE2d (1959); The People v. LeMorte, 289 Ill. 11, 21-24, 124 NE 301 (1919); People v. Burrington, 101 Ill. App.2d 230, 234-235, 242 NE2d 433 (1968).
Defendant urges that various rulings of the trial court constituted prejudicial error:
(1) Admission of blood samples taken from the body of deceased. Defendant argues that the State failed to prove the chain of possession. Principally, this objection is based on the fact that the blood specimen of Leone Richards remained in a freezer located in a hall in the laboratory of Memorial Hospital in Elmhurst, Illinois, for some 17 days without a showing that the freezer was locked or otherwise secured, and without evidence to show that only authorized personnel had access to the freezer.
Dr. Swartout, a pathologist who drew the blood sample from the deceased body and testified for the State, was certain, on the basis of standard routine procedure, that the blood was put into a container by either himself or his assistant in his presence and at his direction, that the lid was screwed on tightly, that tape was put across the lid and around it so that the name of the patient and the autopsy number was written on the tape; that he or his assistant then took the container to a particular refrigerator which was assigned for specimens that were to be picked up later by the coroner. This was done on February 4, 1967. James Clark, the chief deputy coroner for DuPage County, testified that he picked up the specimen on February 21, 1967, from the freezer which Dr. Swartout had described and which was the customary location for such samples. He personally observed the attendant remove the specimen from the freezer, but did not identify the attendant. He put the bottle into a cardboard container and left it, intact, with a secretary at the office of the State Toxicologist.
Florence Rosenquist, secretary to Toxicologist, Dr. Fiorese, testified to having received the blood sample on *340 February 21, 1967. She was not sure who gave her the vial (whether it was Mr. Clark or Dr. Fiorese), and did not recall placing the specimen in the freezer or refrigerator. She later recalled that the specimen was delivered by Clark, but was not sure whether she or Dr. Fiorese first received it.
Dr. Fiorese testified that he oversaw the receipt of the blood specimen; that his secretary received it initially from Clark and notified him that it was in the process of being received. He said that he never handled such specimens until they had been numbered by his secretary. The specimen was numbered and a chemist's name put on it to assign it for evaluation; Dr. Fiorese supervised all tests run on such specimens. He testified that, upon receipt of such specimens, it was the practice to deposit the same in the refrigerator until the chemist, assigned to test the sample, was ready to analyze it.
Ronald Symusiak, a chemist, employed by the Bureau of Toxicology, testified that on February 21, 1967, James Clark brought the sample in. The witness obtained the sample from the blood bank, took the seal off and analyzed the substance.
[7] There being an absence of any suggestion as to tampering, alteration or substitution in the record, we believe that the chain of custody was sufficiently proved. The People v. Washington, 41 Ill.2d 16, 24, 241 NE2d 425 (1968); The People v. Anthony, 28 Ill.2d 65, 68, 69, 190 NE2d 837 (1963); The People v. Harper, 26 Ill.2d 85, 91, 185 NE2d 865 (1962), cert den 372 U.S. 966.
(2) Failure to grant a mistrial during the testimony of Geraldine Johnson. During the direct examination of Geraldine Johnson, the prosecution asked the witness how the defendant's wife appeared to be. After objection by defendant's counsel to the use of the term "appeared" and a request of the court that the witness describe what she saw, the question was reread to the *341 witness. She then made the unresponsive answer, "she was very upset because her husband wanted a divorce." Defense counsel objected and moved the court for a mistrial which was denied. The court instructed the jury to disregard Mrs. Johnson's answer.
[8] In this connection, defendant relies on The People v. Gambino, 12 Ill.2d 29, 34-37, 145 NE2d 42 (1957) which held that the question to be determined by the trial judge is whether the jurors have been influenced or prejudiced to such an extent that they could not be fair and impartial, and that in resolving the question, the judge must exercise sound discretion which is subject to review. Gambino involved possible prejudice by a newspaper article (and not by an isolated statement of a witness during trial) and affirmed the court's exercise of discretion. Defendant argues that the discretion must be reviewed in the context of the fact that the witness was obviously hostile toward the defendant. It is true that the court retired to chambers with counsel and remarked that "she is obviously got something to say, and she doesn't really care whether the question provokes the answer. I don't know what Mr. Laraia can do about it, and I don't know what else I can do. I have instructed the jury to disregard it." The court then had the witness brought into chambers; the witness related her nervousness and lack of understanding of court procedures, procedures were patiently explained by the court, and the court expressed the opinion that he believed the question was asked in good faith by the prosecution and that the direction to the jury to disregard the statement was sufficient to prevent prejudice. In the entering of the post-trial motion, the court also recognized that there was other ample evidence to indicate that the marriage between the parties was less than ideal. We believe that under all the circumstances the court exercised sound *342 judicial discretion in denying the motion for a retrial on this point.
[9] (3) Permitting Florence Rosenquist to testify although not endorsed on the list of State's witnesses. The witness was offered to show a continuity of possession of the blood sample from deputy Clark to the Bureau of Toxicology. During the course of Dr. Fiorese's testimony, it became apparent that the blood of Leone Richards was received by his office through the person of Florence Rosenquist, his secretary. The State made her available to the defendant's counsel for examination and defendant did not move for a continuance on the ground of surprise or prejudice. It was within the court's sound discretion to permit the testimony under the circumstances. The People v. Poland, 22 Ill.2d 175, 184, 174 NE2d 804 (1961); The People v. Welch, 22 Ill.2d 558, 561, 177 NE2d 160 (1961).
(4) Permitting Sergeant Ryan to relate statements made by defendant on February 3, 1967, with insufficient foundation laid concerning warning defendant of his constitutional rights. Sergeant Ryan testified that at 11:00 p.m. on February 3, 1967, defendant and his brother-in-law, Carl Hollander, came to the police station from the hospital to which Leone Richards' body had been taken. The witness testified to a conversation with defendant and said that he first told defendant he could remain silent, that he was entitled to a lawyer, that if he could not afford a lawyer one would be furnished to him, and that anything he said could be used in a court of law.
The defendant urges that the interrogation was custodial under Miranda v. Arizona, 384 U.S. 436, 16 L Ed2d 694, 86 S Ct 1602 (1966), and Orozco v. Texas, 394 U.S. 324, 22 L Ed2d 311, 89 S Ct 1095 (1969); and that the warning given to defendant that he "could remain silent" is short of advising him clearly and unequivocably that he has the right to remain silent; that advising defendant that *343 anything he said "could" be used against him, falls short of an explanation that what he says "can and will be used" against him; and that advising defendant of his right to have a lawyer falls short of advice that defendant has that right to have counsel with him during interrogation.
The State counters that defendant was not in custody in terms of Miranda and Orozco; that by not objecting to Sergeant Ryan's testimony at trial, defendant waived the objection, but that in any event the warnings were sufficient.
[10] Under The People v. Weinstein, 35 Ill.2d 467, 471, 220 NE2d 432 (1966), and under Supreme Court Rule 615(a), both cited by defendant, we will consider substantial rights, even though not properly preserved at trial.
[11] Under the circumstances here present, we find, however, that defendant was not in custody at the time of Sergeant Ryan's conversation with him. Defendant came to the station voluntarily. At the time, the autopsy had not been performed on Leone Richards' body and there is no evidence that Ryan was aware of foul play; defendant was not under arrest, nor held under circumstances which would indicate that he was not free to go at any time; there is no indication that defendant was then considered suspect. He was generally asked about what had happened during the day of February 3rd and volunteered various remarks which were not incriminating, although they did not, in all respects, conform to defendant's trial testimony. We do not consider Miranda and Orozco applicable under the facts, but find that the statements made by defendant to Sergeant Ryan were voluntarily made in response to general questions in a fact-finding process. People v. Milligan, 107 Ill. App.2d 58, 63, 64, 245 NE2d 551 (1969); People v. Routt, 100 Ill. App.2d 388, 392, 241 NE2d 206 (1968). See also, The People v. Howell, 44 Ill.2d 264, 255 NE2d 435 (1970).
*344 (5) Failure to give certain instructions tendered by defendant. Defendant claims error in the refusal of his instructions numbered "4 and/or 6" and 7. Defendant's instruction number 4, in effect, provided that if two conclusions can reasonably be drawn from the evidence, one of innocence, the other of guilt, the jury should adopt the conclusion of innocence. His instruction number 6, in effect, provided that a crime is never presumed where the conditions can be explained on an innocent hypothesis. Defendant's instruction number 7 provided that if all the facts and circumstances relied upon by the State to convict can be reasonably accounted for upon any theory consistent with the innocence of the defendant, the jury should acquit, citing as authority for the latter proposition, Marzen v. People, 173 Ill. 43, 61, 50 NE 249 (1898).
The court, however, gave defendant's instruction number 11, which provided:
"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence could be considered by you together with all the other evidence in the case in arriving at your verdict.
"You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence."
[12] While defendant has abstracted only the above instructions, we have considered all of the instructions in the record and find that the ruling of the court was proper and that, as a whole, the jury was adequately instructed on the effect of circumstantial evidence and the requirement of proof of defendant's guilt beyond a reasonable doubt, in a case based upon circumstantial evidence to convict. Defendant's instruction number 11 is IPI *345 Criminal Instruction 3.02 and properly states the law. The defendant was not entitled to instructions in the nature of "two-theory instructions," or to repetitious instructions. The People v. Johnson, 317 Ill. 430, 437-438, 148 NE 255 (1925); The People v. White, 308 Ill. 210, 213, 139 NE 58 (1923); People v. Edwards, 74 Ill. App.2d 225, 231-233, 219 NE2d 382 (1966).
(6) Prejudicial statements by prosecution during final argument. Defendant urges that various remarks of the prosecutor in final argument were not based upon the evidence and were prejudicial, citing The People v. Weinstein, supra. After a thorough study of the arguments and the record, we find no substantial merit in that claim.
(7) Allowing testimony of Dr. Fiorese, on matters in which he was not qualified as an expert. Defendant argues that, since Dr. Fiorese stated his training to be 95% in chemistry and 5% in pharmacology, and since he was not a medical doctor, he should not have been permitted to express an opinion as to how long it would take the drug Doriden to induce a coma, nor how long it would take for someone to become asphyxiated and die from carbon monoxide within a garage approximating the dimensions of the Richards' garage.
[13] The witness' background included a Ph.D. in organic chemistry with a specialization in bio-chemistry, plus continuous work, for the past 16 years, in the field of toxicology (Chief Medical Examiner for New York City for 10 years and Chief of the Bureau of Toxicology for the State of Illinois for 6 years). We find the objection was not well taken, and that the court properly admitted the testimony. The People v. Cox, 340 Ill. 111, 116-117, 172 NE 64 (1930).
(8) Undue restriction on the defendant in his cross-examination of the State's witnesses. Defendant argues that he was unduly restricted in his attempt to elicit various particulars concerning alleged proposals of marriage *346 made by the defendant to the witness. The record does not sustain this contention. The court allowed the defendant great latitude in this area and properly excluded, as not material detail, proposals of marriage made to Miss MacMillan by persons other than the defendant.
[14] (9) The court erred in not dismissing the indictment order or in the alternative granting defendant's motion in arrest of judgment. Defendant argues that the allegations in the indictment, that defendant "caused her to remain within a garage which became filled with carbon-monoxide gas," is not a particularization of an act committed by defendant which caused the death of his wife; further, that the indictment is defective in that it does not allege the date of the death of Leone Richards, and the indictment was returned more than a year and a day from the date of death. The indictment was in the language of the statute defining murder, which plainly describes the nature of the offense. In our opinion, the indictment sufficiently advised defendant of the place, time and means by which Leone Richards met her death. The People v. Tokoly, 313 Ill. 177, 182-183, 144 NE 808 (1924); The People v. Williams, 7 Ill.2d 271, 272, 130 NE2d 194 (1955); People v. Drink, 85 Ill. App.2d 202, 204, 229 NE2d 409 (1967).
(10) The court failed to question the jury to determine whether they read or heard any publicity concerning the trial. In this connection, we have taken with the case defendant's motion to amend the record on appeal by including newspaper accounts of the trial of the cause appearing in the community section of the Chicago Tribune, the Trib, published and circulated in DuPage County on November 20, 22, 25 and 27, 1968. We grant the motion.
Defendant concedes that he agreed to a stipulation not to sequester the jury during trial, and further admits that during the course of the trial, the trial judge admonished *347 the jury prior to each adjournment not to read any newspaper accounts of the trial, nor to listen to any radio or TV accounts. Defendant argues that the stipulation not to sequester the jury does not lessen what he describes as the heavy burden resting on the trial judge to insure that the jury is not exposed to news accounts of the trial which are of a prejudicial nature. It is the defendant's contention that the court has the duty to question the jury to determine whether or not they have read or heard any prejudicial publicity at every point in the trial where it is resumed pursuant to adjournment, even though the defendant did not advise the court of the publicity during the course of the trial, citing United States v. Nick Palermo, 410 F.2d 468 (CA 7th 1969).
[15, 16] We have examined the articles and find that they are largely factual and accurate in their accounting of the proceedings reported. While the headlines refer to the telling of a "love tryst," to the "other woman" testifying, and to the "paramour" testifying, and refer to the finding of drug traces in the dead woman, we do not find that the articles derogate the defendant or are otherwise inflammatory. In our opinion the publicity was not so grossly prejudicial that the trial judge was required to question the jury on his own initiative. United States v. Nick Palermo, supra; Margloes v. U.S., 407 F.2d 727 (CA 7th 1969); U.S. v. Rizzo, 409 F.2d 400 (CA 7th 1969). We further agree with the State's argument that a blanket assertion to the court that the jurors read the newspaper articles complained of is insufficient to raise the inference that the jurors had seen or read the articles. The People v. Gambino, supra, 36-37.
(11) The court erred in denying a portion of defendant's motion for a bill of particulars. Defendant argues that the court erred in denying portions of its motion for a bill of particulars, filed on May 12, 1968, which requested that the State specify in what manner it is alleged that defendant caused Leone V. Richards to remain *348 within a garage, and which requested the names of persons, other than those appearing on the list of witnesses, known to the State as having witnessed the commission of the crime.
[17] The trial court properly ruled that the first portion of the motion was a request for evidentiary details which the State was not obliged to furnish in advance of trial. The People v. Sims, 393 Ill. 238, 241-242, 66 NE 2d 86 (1946). Prior to trial, the People provided defendant with information as to the location of the garage alleged in the indictment, that the source of the carbon-monoxide gas mentioned in the indictment was from an automobile, that the manner in which the garage became filled with gas was from an automobile, and furnished the autopsy report which indicated death from carbon-monoxide poisoning. In addition, the State furnished the toxicologist's report indicating the presence of the carbon monoxide and Doriden in decedent's blood, and the defendant obtained a copy of the Coroner's inquest proceedings. The indictment and these disclosures were sufficient both for the accused's understanding of the nature of the charges against him and to enable him to prepare his defense; the court did not abuse its discretion in denying this portion of the motion.
[18] Nor did the court err in denying the remaining portion of the motion. There is no requirement that the State furnish defendant with the names of witnesses whom the State did not intend to call at trial. The People v. Ostrand, 35 Ill.2d 520, 531, 221 NE2d 499 (1966).
We next review defendant's claim of prejudice directed at the State's failure to produce certain evidence and to make certain disclosures.
During the course of the prosecution's cross-examination of defendant, a series of questions was asked concerning Leone Richards' relatives in California, whether she customarily wrote to her aunt there, and whether defendant was familiar with his wife's handwriting. At *349 that point the prosecution asked the court reporter to mark People's Group Exhibit 9 for identification, which consisted of letter-sized photocopies. An objection was interposed by defendant's counsel that "the letter is obvious hearsay," and an argument was heard in chambers. It there appeared that the identified exhibit consisted of copies of two letters written by Leone Richards to her aunt in California on January 22, 1967.
The State advised the court that the letters would show her mental attitude with reference to no thought of suicide and with reference to her attitude about the deformity of the Richards' son. Defendant pointed out that defendant's testimony did not suggest that Leone Richards ever thought of suicide, but was directed only at "what he observed about her and how she thought about particular things." The court deferred its ruling since the exhibits had not been offered and, on the next court day, prosecution continued the cross-examination of the defendant on unrelated matters. There was no further reference to the exhibits before the jury.
Prior to final argument, in chambers, and after the court had considered numerous authorities cited by each of the parties, the judge stated that the exhibit was not before him directly because it was never offered and said, "but assuming they were offered, they would be refused." The court recognized an exception to the hearsay rule in his comments as to mental condition, but concluded that it would be impossible to separate other matters in the letters from the limited purpose for which they were offered and since all of the testimony, including that of defendant, related "to the splendid mental condition of the decedent," they would be refused.
[19] The defendant contends that the offer was of clearly improper evidence, that the only purpose of the State was to prejudice the defendant, and that this was accomplished by marking the exhibit in the presence of the jury. We cannot, however, reach that inference *350 from an examination of the arguments in chambers. We do not find that the jury would have been prejudiced by the mere marking of the exhibit in its presence when no further comment was made upon it.
[20] Defendant next claims that he was prejudiced by the State's failure to produce, under a general motion granted for discovery of tangible objects and physical evidence, certain "off-line pass requests," showing the request for air passage on the dates of defendant's meetings with Miss MacMillan, the letters which comprised People's Exhibit 9 for Identification, and the Peacock Jewelry Company store record concerning the purchase of an engagement ring.
As to the air-line pass requests, they were not in the possession of the State prior to trial and at all times were as available to the defendant as they were to the State. The letters were not introduced, as we have previously noted. The store records were not introduced and could have been secured by defendant, if desired. All of the items were of use only in the event defendant should testify or present a defense which would make them relevant, which the State could not anticipate prior to trial. We do not perceive that defendant was entitled to these items by his motion for discovery of tangible objects and physical evidence under the circumstances, or that he was prejudiced by failing to secure them prior to trial. The authorities cited by defendant, (The People v. Buzan, 351 Ill. 610, 618-619, 184 NE 890 (1933); The People v. Gerold, 265 Ill. 448, 469-471, 107 NE 165 (1914); and People v. Tribbett, 90 Ill. App.2d 296, 304, 232 NE2d 523 (1967), affirmed in The People v. Tribbett, 41 Ill.2d 267, 242 NE2d 249 (1968)), are to no avail.
A further claim of prejudice is based on the failure of the State to disclose to defendant that Edwin A. Wolter, a detective for the Elmhurst Police Department, had *351 testified at the Coroner's inquest to a statement by Miss MacMillan that defendant proposed marriage prior to Leone Richards' death.
[21] An accused is entitled to production of evidence that is contradictory to the testimony of a prosecution witness. (The People v. Cagle, 41 Ill.2d 528, 532-533, 244 NE2d 200 (1969)); and, ordinarily, to evidence in the possession of the prosecution which is favorable to a defendant. The People v. Cagle, supra; The People v. Moses, 11 Ill.2d 84, 89, 142 NE2d 1 (1957); The People v. Cole, 30 Ill.2d 375, 381, 196 NE2d 691 (1964); Giles v. Maryland, 386 U.S. 66, 74, 17 L Ed2d 737, 87 S Ct 793 (1967); Brady v. Maryland, 373 U.S. 83, 87, 10 L Ed 2d 215, 83 S Ct 1194 (1963); Napue v. Illinois, 360 U.S. 264, 269, 3 L Ed2d 1217, 79 S Ct 1173 (1959); Jackson v. Wainwright, 390 F.2d 288 (CA 5th 1968).
The record discloses that on or about October 27, 1967, defendant personally obtained a copy of the complete transcript of the Coroner's inquest which had been held on September 22, 1967, and completed on October 16, 1967. The information contained in the transcript was not, therefore, exclusively in the possession of the State. This is a relevant circumstance in determining the essential fairness of the proceedings, but would not necessarily be determinative if, in fact, the State had withheld material evidence which denied defendant a fair trial under constitutional standards. See U.S. v. Wilkins, 326 F.2d 135.
The excerpt of Wolter's testimony at the Coroner's inquest included in the record is as follows:
"THE WITNESS: (Edwin Wolter)
"In Pittsburgh, Pennsylvania, I found a woman named Martha MacMillan who had been seeing Mr. Richards since November steadily.
"He made flights to Pittsburgh during the months of November, December, January, February and *352 March. In March this association terminated due to some problems that this woman had with Mr. Richards and him snooping into her private personal affairs.
"He proposed marriage to her. She was going to accept but later refused. He then came out there. .. ."
"BY DEPUTY CLARK:
Q. "Did you speak with her?"
A. "Yes, I spoke with her in Washington, D.C. on June 23rd."
Q. "What dates did she relate to the proposals of marriage?"
A. "I am sorry."
Q. "What date did she relate to this proposal "
A. "This was in the month of March early."
Q. "I see."
A. "He proposed marriage. He even brought his young daughter, Beth, with him to Pittsburgh."
From the sketchy and incomplete nature of the inquiry, we cannot conclude that Wolter would testify that Miss MacMillan told him that defendant proposed to her "in early March" only at that time. We note that defendant testified that he first proposed marriage to Martha MacMillan on February 14, 1967, and related no other proposals; that Miss MacMillan testified that the last of defendant's proposals of marriage to her was in the middle of February, that they had a bad argument toward the end of February and the relationship was terminated, although defendant came to Pittsburgh to see her in March and she refused to see him.
[22] The defendant was on notice of the existence and nature of Wolter's testimony; a more substantial showing, that the State withheld evidence favorable to *353 defendant, is required, in our opinion, to justify a reversal on this ground.
[23] Defendant also urges, in the alternative, that the sentence was excessive and that we should exercise our power to reduce it in view of defendant's lack of a prior criminal record and other circumstances. Defendant suggests that the sentence is the result of a harsh and punitive attitude on the part of the court and the jury. The court, however, could have imposed the death penalty (the jury's recommendation), and the reduction to a long term of years does not exhibit a punitive attitude on this record. It was within permissible limits, and justified by the circumstances of the crime which the jury found had been committed by the defendant.
[24] It has been consistently held that where the punishment imposed is within the limitations prescribed by the legislature, it will not be disturbed unless it is at variance with the purpose and spirit of the law or manifestly in excess of the proscriptions of section 11 of Article II of the Illinois Constitution. This is so because the trial court is in a superior position to that of the courts of review in making a sound determination as to the punishment to be imposed. The People v. Hampton, 44 Ill.2d 41, 48, 253 NE2d 385 (1969).
After reviewing the entire record we are satisfied that the evidence established defendant's guilt beyond a reasonable doubt, that he received a trial free from prejudicial error, and that the sentence imposed was proper.
The judgment of the circuit court is affirmed.
Judgment affirmed.
ABRAHAMSON and SEIDENFELD, JJ., concur.
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734 F.2d 1298
Richard S. BROWN, Appellant,v.COOPER CLINIC, P.A., Appellee.
No. 83-1369.
United States Court of Appeals,Eighth Circuit.
Submitted April 22, 1984.Decided May 21, 1984.
Neal Kirkpatrick, Fort Smith, Ark., for appellant.
G. Alan Wooten, Fort Smith, Ark., for appellee.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
PER CURIAM.
1
Richard S. Brown, M.D. appeals from an order of the district court1 granting a motion for a directed verdict in favor of the Cooper Clinic, P.A. on his claim against the clinic for accounts receivable. For reversal, Dr. Brown argues that the district court erred in finding that he was an employee of the clinic, that when he terminated his employment he was no longer entitled to compensation, and in failing to consider his unjust enrichment claim. We affirm.
2
By letter dated July 12, 1979, the clinic offered Dr. Brown a position on its surgery staff. The letter stated that Dr. Brown would be given a guaranteed annual income of $42,000 and that for any month the "Cooper Clinic income distribution plan" produced more than the guaranteed monthly income, Dr. Brown would receive the larger amount. In addition, the clinic offered Dr. Brown benefits, such as health, life, disability, and malpractice insurance, a leased automobile and its expenses and a two-week paid vacation. At the beginning of his third year, Dr. Brown would be compensated as a stockholder of the clinic.
3
Dr. Brown signed the letter on September 11, 1979, and began work at the clinic in November 1979. On September 1, 1981, Dr. Brown informed the clinic administrator that he intended to terminate his employment with the clinic effective January 1, 1982. Dr. Brown asked the administrator how he would receive his portion of the clinic's accounts receivable after he left the clinic. The administrator told Dr. Brown he would not be entitled to any portion of the accounts receivable. The clinic's executive board affirmed the administrator's decision. Instead of leaving the clinic on January 1, 1982, Dr. Brown left in October 1981.
4
On January 1, 1982, Dr. Brown filed suit against the clinic, alleging that "[u]nder the terms of the agreement," the clinic owed him $41,548.46, which represented Dr. Brown's portion of the "total accounts receivable" computed pursuant to the clinic's income distribution plan. Appellant's First Amended Complaint, p 6.
5
The "Cooper Clinic income distribution plan" was a formula whereby monies collected monthly for billed clinic services would be allocated for various clinic expenses. Forty-five percent of the monthly collections were distributed to the surgery department. According to agreements with other members of the surgery department, Dr. Brown would receive forty percent of the collections as his monthly salary under the plan. "Collections" were monies received monthly on payments of accounts. "Accounts receivable" were amounts billed but not yet collected for services rendered. There was approximately a one to three-month delay in the collection of the accounts receivable.
6
It is undisputed that the letter agreement of July 12, 1979, is silent concerning Dr. Brown's entitlement to accounts receivable in the event of termination. Dr. Brown testified that when he left the clinic he expected to be paid a portion of the fees billed but not yet collected for surgical procedures that he had performed at the clinic. Dr. Brown admitted, however, that prior to his discussion with the clinic administrator, he had never discussed this issue with any member of the clinic. The clinic's unwritten policy was that physicians were not entitled to any portion of the clinic's accounts receivable on departure.
7
At the close of Dr. Brown's evidence, the clinic moved for a directed verdict. The clinic argued that Dr. Brown had alleged in his complaint that he was entitled to a portion of the clinic's accounts receivable pursuant to the clinic's income distribution plan and that Dr. Brown's evidence was that the income distribution plan was based on collections, not on accounts receivable. The clinic also argued there was no evidence of any other agreement that would entitle Dr. Brown to a portion of the accounts receivable. In response, Dr. Brown's counsel contended that he was not requesting "accounts receivable per se" but only a portion of the fees attributable to services Dr. Brown performed prior to his departure. Counsel explained that his theory of recovery was not based on an agreement but was more in the nature of an implied contract, with the measure of damages to be computed according to the agreement. Over the clinic's objection, Dr. Brown's counsel moved to amend his pleadings to conform to the evidence.
8
The district court granted the clinic's motion for a directed verdict. The district court found that Dr. Brown was an employee of the clinic and further observed that the clinic's income distribution plan was based on collections and that the agreement was silent on compensation in the event of termination. It concluded that there was a total failure of proof that Dr. Brown was entitled to any portion of the accounts receivable, and that "when the doctor ceased to be an employee of the clinic ... his monthly salary terminated" and "all right to any further compensation ceased."After the court made its oral rulings, Dr. Brown's counsel in effect moved to renew his motion to amend his pleadings to allege an unjust enrichment claim. Counsel conceded that the "facts were not that [Dr. Brown] was entitled to the clinic's accounts receivable as accounts receivable." The district court rejected his argument, stating that the complaint had not pleaded quantum meruit and that the case had been tried on the written agreement.
9
On appeal Dr. Brown argues that the district court erred in failing to consider his unjust enrichment claim. Fed.R.Civ.P. 15(b) provides "(w)hen issues not raised by the pleadings are tried by the express or implied consent of the parties," a party may move to amend his pleadings to conform to the evidence. The purpose of the rule "is to bring the pleadings in line with the actual issues upon which the case was tried[.]" Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1218 (8th Cir.), (quoting Gallon v. Lloyd-Thomas, Co., 264 F.2d 821, 825 n. 3 (8th Cir.1959)), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981). However, "an amendment after judgment is not permissible which ... changes the theory on which the case was actually tried, even though there is some evidence in the record introduced as relevant to some other issue which would support the amendment." Dependahl v. Falstaff Brewing Corp., 653 F.2d at 1218 (emphasis deleted). Further, "in determining whether to permit an amendment under Fed.R.Civ.P. 15(b), the district court has broad discretion and will not be reversed except upon a showing of abuse." Nielson v. Armstrong Rubber Co., 570 F.2d 272, 276 (8th Cir.1978). The district court denied Dr. Brown's motion because the court found that the case had not been tried on an unjust enrichment theory. We find no abuse of discretion. Compare Howard v. Green, 555 F.2d 178, 183 (8th Cir.1977) (unjust enrichment claim tried with implied consent of the parties).
10
Brown also argues that the district court erred in failing to submit to the jury whether Brown was an employee of the clinic or an independent contractor. Brown does not demonstrate why it was necessary that this issue be submitted for a jury determination. We view the district court's finding that Dr. Brown was an employee2 simply as a foundation for its further conclusion that he had no ownership interest in any assets of the clinic, including accounts receivable, as these were the property of the corporation as a separate entity, and, accordingly, had "failed to prove by a preponderance of the evidence that he is entitled to any amount in this case" (Tr. at 186). In its written order the district court amended its ruling to state that Brown "has failed to adduce any substantial evidence from which reasonable jurors could determine that a contract existed between the parties entitling him to the relief requested." Submission for jury determination of the issue of whether Dr. Brown was an employee or an independent contractor would not establish Dr. Brown's right to recover. While the court reasoned that as an employee he had no rights in the assets of the corporation, it does not follow that if he was an independent contractor with the corporation he would have had rights in its assets. The fundamental issue underlying Dr. Brown's right to recover was whether he had proved some right arising from his relationship with the corporation to justify recovery. A finding that he was an independent contractor would not necessarily have established any right to recover in view of the court's determination that there was no evidence establishing such a contractual right.
11
Brown also argues that his right to the additional compensation in the form of the accounts receivable should have been submitted to the jury. The district court, however, ruled that Brown had not produced evidence to demonstrate that he had any rights to the accounts receivable. We conclude that the district court did not err in directing a verdict for defendant. We have observed in Dulin v. Circle F Industries, Inc., 558 F.2d 456 (8th Cir.1977), and Marshall v. Humble Oil & Refining Co., 459 F.2d 355, 358-59 (8th Cir.1972), that because the Arkansas and federal standards are substantially the same, in determining questions of sufficiency of the evidence to take an issue to the jury, it makes no difference whether the federal law or the law of Arkansas is applied. We have recently commented on the standards to be applied in directing a verdict. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983); Crues v. K.F.C. Corp., 729 F.2d 1145 (8th Cir.1984). We are satisfied that the district court, in directing the verdict, considered the evidence in the light most favorable to Brown, gave it the benefit of all legitimate inferences, and determined that reasonable minds could not differ.
12
Dr. Brown argues that the district court improperly made findings of fact in a jury case and that this may well be reversible error. Moore's Federal Practice 50.03(1). We have carefully analyzed the ruling of the district court, and while it clearly articulated a number of findings of fact, we do not read the ruling as findings based upon disputed factual issues, but, rather as simply a recitation of the evidence that it analyzed in reaching its conclusion that Dr. Brown had established no right to recover. Insofar as the recitation was designated as findings of fact, we are convinced that the comments were mere surplusage. The court clearly ruled that Dr. Brown had failed to prove a right to recover and its later written order amending its ruling clarified that he had not established a contract entitling him to relief.
13
Dr. Brown argues that the district court erred in failing to sustain his motion for new trial. We have determined that the district court properly directed a verdict because Dr. Brown had not established his right to recover as a matter of law. Under these circumstances, granting a motion for new trial would be inappropriate.
14
We have considered Dr. Brown's other claims and find them to be without merit. His argument that he was wrongfully caused to leave the clinic on October 1, 1981 instead of January 2, 1982 is answered by his testimony that he left because of the disagreement on the accounts receivable (Tr. 75-76).
15
We affirm the judgment of the district court.
1
The Honorable H. Franklin Waters, United States District Judge for the Western District of Arkansas
2
We need not determine whether the district court properly determined that Dr. Brown was an employee. However, careful analysis of Carter v. Ward Works, Inc., 246 Ark. 515, 439 S.W.2d 286, 287 (1969) (citation omitted), Cody v. Ribicoff, 289 F.2d 394, 398 (8th Cir.1961), and Azad v. United States, 388 F.2d 74, 77 (8th Cir.1968), applied to the facts in this case, where the clinic furnished the necessary facilities and equipment, collected the fees, provided insurance coverage, paid federal taxes and social security, provided other fringe benefits, including an automobile and its expenses, and regarded him as an employee, would support this conclusion
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692 A.2d 1370 (1997)
UNITED STATES, Appellant,
v.
Thomas HUNTER, Appellee.
No. 96-CO-756.
District of Columbia Court of Appeals.
Argued February 25, 1997.
Decided April 24, 1997.
*1371 Gregg A. Maisel, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black, and Amy J. Conway, Assistant United States Attorneys, were on the brief, for appellant.
John Thomas Kenney, Syracuse, NY, appointed by the court, for appellee.
Before FERREN, STEADMAN and SCHWELB, Associate Judges.
*1372 SCHWELB, Associate Judge:
The United States appeals from an order granting Thomas Hunter's motion to suppress the eyewitness identification of him by Richard Jones and William Juame, who were the two victims of a robbery. The government contends that the trial judge applied an erroneous legal standard to the evidence of record. We agree and reverse.
I.
THE EVIDENCE
A grand jury indicted Hunter on one count of robbery and one count of attempted robbery. See D.C.Code §§ 22-2901, -2902 (1996). The United States proposed to introduce at trial testimony that both of the complaining witnesses identified Hunter at a showup a few minutes after the robbery. The prosecutor also intended to elicit from Juame an in-court identification of Hunter. Hunter filed a pretrial motion to suppress all of these identifications.
The testimony at the hearing on that motion[1] revealed that on September 28, 1995, at approximately 6:30 p.m., Jones, a student at Howard University, was driving his car near the intersection of Seventh and P Streets in northwest Washington, D.C. His friend Juame, a bank teller, was riding in the passenger seat. The two men were on their way to get a bite to eat. Jones pulled over to the side of the road to retrieve an object which had slipped under the seat.
Before Jones and Juame could resume their journey, four young men, all strangers to the complainants, approached the now-stationary vehicle. One of the men, to whom we refer as Robber No. 1, stood outside the door on the passenger's side. A second man, hereinafter Robber No. 2, positioned himself on the driver's side. Jones and Juame were thus trapped inside the vehicle as they nervously awaited further developments.
Following some inconsequential conversation, Robber No. 2 reached into the vehicle and attempted to take the keys out of the ignition. When Jones sought to hold on to the keys, Robber No. 1 pressed a hard object against Juame's head and demanded money. Juame denied that he had any money. Robber No. 1 patted Juame down, and he then opened the right rear door of the car and extracted a white hooded windbreaker jacket belonging to Jones. In the meantime, Robber No. 2 took from Jones a wallet containing approximately $100. The complainants told their unwelcome visitors that there were police officers in the parking lot of a nearby Giant Food supermarket, and the robbers then fled with their loot.
Having succeeded in retaining possession of his ignition key, Jones immediately drove into the supermarket's parking lot. He and Juame reported the robbery to an off-duty police officer who was moonlighting as a security guard. The two men provided the officer with descriptions of two of the robbers. Juame told him that Robber No. 1 the man who had stood outside the front passenger door of the carwas a young black man with braids, and that he was wearing jeans and a white t-shirt with an "eight-ball, sort of like in the center of his shirt."
Based on the information provided by Jones and Juame, the officer immediately broadcast descriptions of two of the robbers. A few minutes later, one of the officers who had responded to the lookout sighted a man apparently fitting the description of Robber No. 1 in an alley half a block from the supermarket. The suspect attempted to elude the pursuing officers but, following a brief chase, he was apprehended. When taken into custody, the fleeing man was wearing a white t-shirt. The front of the shirt was *1373 adorned with a design containing the letter "B" inside a circle, followed by the letters "o-s-s" in smaller print. A police detective testified that, at least at first glance, the "B" looked like an "8". The man who was wearing this t-shirt was Thomas Hunter.
The officers soon apprised Jones and Juame that two suspects had been taken into custody and that they would be displayed to the complainants at "like a driveby" to determine if Jones or Juame could recognize either of them. The officers transported Jones and Juame together in a police cruiser to the intersection of Seventh and Q Streets, N.W., where the two suspects were being detained. The first suspect was displayed to the two victims, but both men stated that he was not one of the robbers; indeed, neither Juame nor Jones had ever seen him before. When the second suspect was displayed, however, Juame promptly identified him as Robber No. 1. Jones did the same a few seconds later.
The identifications of Hunter were effected in daylight, approximately ten minutes after the robbery, and within a block of the location where the crime occurred. Juame stated that he had recognized Hunter as the police cruiser was arriving on the scene, before Hunter was formally displayed to the victims. Juame testified that he was a "hundred percent" certain that Hunter was Robber No. 1. He was positive about his identification because Hunter still "had on this white t-shirt with this eight-ball on it" and because Juame "noticed his face and his hair, things like that."
Jones also told the police that Hunter was Robber No. 1. According to Jones, the second man displayed to him at the driveby "looked like the same person [as Robber No. 1], the same slender build, same complexion, same shirt." Jones described that shirt as "the white shirt with the eight-ball on it." Jones was asked whether the man whom he identified at the showup differed in any respect from Robber No. 1, and he responded with a simple "no."
Jones testified that before he made his identification of Hunter, the officers returned his stolen jacket to him. Jones was informed that the jacket had been found in an alley. Jones had also heard over the police radio that officers were chasing someone, and he knew that they had stopped a suspect in an alley. Jones did not know, however, which of the two suspects had been in the alley. Jones also testified that he did not believe that his identification of Hunter as Robber No. 1 was swayed by Juame's identification a few seconds earlier.
II.
THE TRIAL JUDGE'S RULING
At the hearing on Hunter's motion to suppress, the prosecutor initially intended to rest after having established, through the testimony of two police witnesses, that the complainants had identified Hunter under the circumstances described above. The judge commented, however, that "it becomes very problematical for the court to make a ruling when the evidence is as sketchy as this evidence has been." In light of the judge's reaction, the prosecutor called two additional police witnesses, and she completed her case with the testimony of Jones and Juame.
After the parties rested, the judge conducted a lengthy colloquy with the attorneys in which she explained her view of the evidence and of the applicable legal principles. The judge found that the circumstances of Juame's identification of Hunter were "no more suggestive than any other on-the-scene identification that typically happens soon after an incident." The prosecutor argued that this finding required the judge to deny the motion to suppress Juame's identification, but the judge thought that this was wrong:
It seems to me even without undue suggestivity in the one-on-one show-up we know from the Court of Appeals that there is inherent suggestivity in that process, but it will be permitted to be admitted in evidence if the court is satisfied that there are sufficient indicia of reliability to avoid irreparable risk of misidentification.
I'm not sure we have got those indicia of reliability here.
The judge's prime concern appeared to relate to the perceived discrepancy between the complainants' testimony that Robber No. *1374 1 was wearing a t-shirt with an eight-ball and the police testimony that the emblem was actually a large "B" followed by "o-s-s" in small letters:
My concern is that the man closest to that t-shirt, who had the best opportunity to see what was on it, and the guy with the second best opportunity to see what was on it ...Mr. Juame and Mr. Jones are both unshakable in saying that it was an eight-ball. And just as unshakable in his description of what the Defendant was wearing is Officer Hambrick but also Detective Johnson in stating that was no eight-ball on Mr. Hunter's shirt.
The judge rejected as inconclusive the positive character of Juame's identification of Hunter; she said that "certainty all by itself is not enough." Pointing out that the complainants had both stated that the first suspect displayed to them was not one of the robbers, the prosecutor argued that this circumstance significantly rebutted Hunter's claim that the showup was unduly suggestive. The judge would have none of it:
That proves nothing, it seems to me, it proves absolutely nothing.... The real test would be would he have been able to pick him out in a lineup without the eight-ball shirt on.
The judge then ruled that the testimony of Juame and Jones was not sufficiently reliable to permit either witness to testify to his identification on the scene or to identify Hunter in the courtroom. Noting the absence of an arrest photograph of Hunter,[2] the judge concluded that the prosecution had failed "to somehow explain why [Hunter] wasn't wearing an eight-ball t-shirt but the robber was." The judge stated that this was a "critical deficiency ... in the government's proof here today on the issue of the reliability of the identification." The judge also held as follows:
Certainly there was impermissible suggestivity in the on-the-scene ID by Mr. Jones. I mean he already heard the police radio that someone was being chased in an alley, somebody had been caught in an alley and his jacket was given to him as having been recovered in an alley before he was asked to look at Mr. Hunter.
And when I put all of that together I think the risk of irreparable misidentification is so great in this case that I am going to grant the motion to suppress all identification testimony.
The United States filed a timely notice of appeal pursuant to D.C.Code § 23-104(a)(1) (1996), which authorizes the prosecution to appeal from "an order, entered before the trial of a person charged with a criminal offense, which ... suppresses evidence, or otherwise denies the prosecution the use of evidence at trial."[3]
III.
HUNTER'S DUE PROCESS CLAIM
The judge's ruling on Hunter's motion appears to reflect a belief on her part that if she entertained concerns regarding actual or perceived discrepancies in the complaining witnesses' testimony, the appropriate remedy was to suppress the evidence and thus to preclude the jury from hearing it. We do not agree with this approach. On the contrary, except in a very narrow class of cases which differ in decisive respects from the present record, it is the function of the jury to determine whether eyewitness identification is reliable. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977) ("evidence with some element of untrustworthiness is customary grist for the jury mill"); Turner v. United States, 622 A.2d 667, 673 (D.C.1993) (discrepancy between descriptions by witness and police officer of the suspect's pants was *1375 for the jury to weigh). If, at trial, the judge is of the opinion that the identification testimony, together with all of the other evidence, is insufficient to permit an impartial jury to find guilt beyond a reasonable doubt, the judge mayindeed, he or she mustgrant a motion for judgment of acquittal. See, e.g., Beatty v. United States, 544 A.2d 699, 701-03 (D.C.1988). In this case, however, we are dealing with admissibility, not with sufficiency, and suppression on due process grounds is warranted only where the circumstances of an identification were so unduly suggestive that there is a very substantial danger of irreparable misidentification. See, e.g., Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972-73, 18 L.Ed.2d 1199 (1967). There were no such circumstances in this case.
Both Juame and Jones identified Hunter at a showup about ten minutes after the robbery, a block or so from the spot where it took place. This court has repeatedly upheld the validity of showup procedures carried out, as in this case, soon after the commission of the crime and the apprehension of suspects. See, e.g., Turner, supra, 622 A.2d at 672-73; Singletary v. United States, 383 A.2d 1064, 1068 (D.C.1978); Russell v. United States, 133 U.S.App. D.C. 77, 81, 408 F.2d 1280, 1284, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). The admission of evidence of such identification is consistent with common sense and sound practice; a prompt showup enhances the reliability of an identification and may, as in this case, exonerate an innocent person who has been mistakenly apprehended. Russell, supra, 133 U.S.App. D.C. at 81, 408 F.2d at 1284.
Although a degree of suggestibility is inevitable in the context of every pretrial confrontation between a witness and a suspect, a defendant is not denied due process of law unless ... in the totality of circumstances, the on-the-scene confrontation was unnecessarily suggestive and conducive to a substantial likelihood of irreparable misidentification.... In considering the totality of the circumstances, an immediate on-the-scene confrontation has uniquely powerful indicia of reliability which more than counterbalance any suggestivity, absent special elements of unfairness.... Furthermore, something more egregious than mere custodial status is required in order to establish such special unfairness.
Singletary, supra, 383 A.2d at 1068 (citations omitted; emphasis added); see also Turner, supra, 622 A.2d at 672.
In the present case, there was no undue suggestivity. The trial judge expressly so found with respect to Juame, and Hunter has not challenged that determination. We conclude that there was likewise no undue suggestivity as to Jones.[4]
As the government correctly argued in the trial court and reiterated in this court, the absence of any showing of undue suggestivity is dispositive of Hunter's due process claim. In Greenwood v. United States, 659 A.2d 825 (D.C.), cert. denied, ___ U.S. ___, 116 S.Ct. 326, 133 L.Ed.2d 227 (1995), this court summarized the appropriate judicial *1376 inquiry where the admissibility of an eyewitness identification is at issue:
First, the trial court must determine whether the procedures are so impermissibly suggestive that they give rise to a very substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380-81, 34 L.Ed.2d 401 (1972); see Stewart [v. United States], 490 A.2d 619, 622 [ (D.C.1985) ]. If the trial court finds undue suggestivity, it must then determine whether the identification was nonetheless reliable. If the identification is reliable, it is admissible, as is evidence relating to the identification procedures that were found to be suggestive. Neil, 409 U.S. at 199, 93 S.Ct. at 382.
On the other hand, if the identification procedures are not unduly suggestive, the details of those procedures are admissible and no reliability finding is necessary.
Id. at 828 (emphasis added).[5] We reiterated only a few months ago that "[n]o reliability determination is required unless the trial court has determined that the eyewitness identification was unduly suggestive." Scales v. United States, 687 A.2d 927, 937 n. 15 (D.C.1996); see also Wilkerson v. United States, 427 A.2d 923, 926 (D.C.1981), cert. denied, 454 U.S. 852, 102 S.Ct. 295, 70 L.Ed.2d 143 (1981) (where a showup has not been shown to be unduly suggestive, the court need not evaluate its reliability).
In light of these authorities, we agree with the government that
undue suggestivity is a necessarybut not sufficientcondition for any finding that an identification procedure violates the Due Process Clause.... [I]f a showup identification procedure has no special elements of unfairness beyond the suggestivity inherent in any showup, the procedure does not offend due process, regardless of the court's views concerning the reliability of the identification.
The trial judge's rationale for suppressing the identification testimony in this case cannot be reconciled with the controlling legal principles as we have summarized them. Accordingly, her order cannot be sustained.
IV.
THE EVIDENTIARY ISSUE
Hunter contends that even if his due process claim fails, the identifications of him by Juame and Jones were inadmissible under the rules of evidence. Pointing to the discrepancy as to whether the insignia on his t-shirt was an eight-ball or a large "B" followed by "o-s-s" in small letters, he asserts that the evidence of the complaining witnesses was so unreliable that the jury should not be permitted to hear it. We discern no merit in this contention.
"Suppression of identification testimony because it is deemed too weak is not proper. That is the function of a timely judgment of acquittal." Brown v. United States, 349 A.2d 467, 468 (D.C.1975); see also Reavis v. United States, 395 A.2d 75, 78 (D.C.1978) (quoting Brown ). The kinds of objections which Hunter has interposed to the eyewitness testimony in this case go to its weight, and not to its admissibility.
Hunter relies on Sheffield v. United States, 397 A.2d 963 (D.C.1979). In that case, the court affirmed the defendant's conviction and rejected a challenge to the prosecution's eyewitness identification testimony. In doing so, the court volunteered that even in the absence of a showing of undue suggestivity, "[a] defendant may challenge the admission of such testimony by raising a timely objection to its admissibility at trial on the ground that under the law of evidence testimony is so inherently weak or unreliable as to lack probative value." Id. at 967. The court did not specify under what circumstances identification testimony would be so devoid of probative value as to render it inadmissible even *1377 in the absence of any showing of undue suggestivity. The court did, however, refer to our earlier decision in Reavis.
In that case, this court addressed the question whether eyewitness testimony was admissible under the law of evidence by resorting to conventional relevance analysis. The court explained that identification testimony, like any other evidence, is relevant if it has a tendency to establish the proposition sought to be proved, or "to make the existence or non-existence of a fact more or less probable than would be the case without that evidence." Reavis, supra, 395 A.2d at 78 (quoting Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977) (other citations omitted)). To be admissible, the proffered evidence, standing alone, need not be sufficient to go to the jury. Id.[6]
In the present case, the two complaining witnesses had the opportunity to observe Hunter for an appreciable period of time. They identified him within ten minutes after the robbery. Each man expressed certainty that police had the right man. Their identifications thus incontestably rendered the fact to be provedthat Hunter was Robber No. 1more probable than it would have been without this evidence. Reavis, supra, 395 A.2d at 78.[7] There was therefore no basis in the law of evidence for excluding their testimony.[8]
IV.
CONCLUSION
We have recognized, as have other courts, that eyewitness identification by strangers may often be fraught with peril. See, e.g., Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993). Even if a witness says that he is sure, "positive" can mean "mistaken at the top of one's voice." Id. (citations omitted); see also Crawley v. United States, 320 A.2d 309, 312 (D.C.1974). It is undoubtedly the trial judge's responsibility to be alert to any danger that the wrong man is in the dock.
This responsibility does not, however, permit the judge to exclude probative evidence from the jury simply because the judge has doubts as to its reliability. We conclude that in this case, the judge, in her laudable attempt to assure fairness to the accused, treated a question of admissibility as though it were one of insufficiency. In doing so, in our view, the judge trespassed into the province of the jury; suppression here was incompatible with the court's duty "to limit the societal costs of a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact." Manson, supra, 432 U.S. at 110, 97 S.Ct. at 2251.
For the foregoing reasons, the order of the trial court suppressing the identification testimony is
Reversed.
NOTES
[1] Four police officers and the two victims of the robbery testified for the prosecution at the motions hearing. The defense called no witnesses. The testimony was quite extensive, and we summarize in this opinion only those parts of it which we perceive to be relevant to the question whether the victims' eyewitness testimony was properly suppressed.
Aside from the imperfect description by Jones and Juame of the emblem on Hunter's t-shirt an issue which is discussed in some detail below Hunter also points to certain other alleged discrepancies and weaknesses in the testimony adduced by the government. In our view, however, none of these asserted discrepancies or weaknesses even arguably supports the extreme remedy of suppression.
[2] It appears that the police attempted to photograph Hunter in the t-shirt, but the film came back "blank." The prosecutor requested leave to recall one of the police officers so that the officer could prepare a drawing of the emblem on the shirt, but the judge declined to reopen the record.
[3] Following the suppression of the identification testimony, the judge granted the government's motion to dismiss the indictment. The government proposes to seek a new indictment, however, and the case is not moot. See, e.g., United States v. Cefaratti, 91 U.S.App. D.C. 297, 299, 202 F.2d 13, 14 (1952), cert. denied, 345 U.S. 907, 73 S.Ct. 646, 97 L.Ed. 1343 (1953).
[4] It is true, as the judge indicated, that Jones' coat had been returned to him prior to his identification of Hunter, and that Jones was aware that a suspect had been captured in the alley where the coat was found. Jones had no idea, however, which of the two suspects had been apprehended in that alley, and he promptly exonerated the first man whom the officers displayed to him. See, e.g., United States v. Butler, 970 F.2d 1017, 1021 (2d Cir.), cert. denied, 506 U.S. 980, 113 S.Ct. 480, 121 L.Ed.2d 386 (1992) (witness' selective identification of two robbers, while failing to identify a third man, supported the conclusion that the identification procedures comported with due process). In any event, any witness at an on-the-scene identification procedure carried out a short time after a robbery surely knows, or at least surmises, that a person whom the police display to him is likely to be a suspect; Jones was told no more than that. Cf. United States v. Jones, 84 F.3d 1206, 1209-10 (9th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996).
The fact that Jones was present when Juame identified Hunter goes to the weight of his testimony, but does not constitute undue suggestivity warranting suppression. Harvey v. United States, 395 A.2d 92, 96 n. 9 (D.C.1978), cert. denied, 441 U.S. 936, 99 S.Ct. 2061, 60 L.Ed.2d 665 (1979); see also United States v. Wilson, 140 U.S.App. D.C. 331, 333, 435 F.2d 403, 405 (1970).
[5] We further explained that even though no finding as to reliability is required in the absence of a showing of undue suggestivity, we have encouraged trial judges to make such a finding "because, in that occasional case where we disagree with the no-suggestivity finding, or where that finding presents a close question, the appeal can be resolved based on the outcome of the reliability determination without the need to remand for findings on that point." Greenwood, supra, 659 A.2d at 828.
[6] In this case, there was plainly enough evidence to withstand the motion for judgment of acquittal. Two witnesses positively identified Hunter minutes after the commission of the crime. "This court has repeatedly held that the identification testimony of a single eyewitness is sufficient to sustain a conviction." In re R.H.M., 630 A.2d 705, 708 (D.C.1993) (citations omitted). If the evidence was sufficient to support Hunter's conviction, then, a fortiori, it must have been sufficiently probative to warrant its admission.
[7] If the evidence were excluded at trial, the jury might well assume that because the complainants could not recognize Hunter as Robber No. 1 only minutes after the robbery, he must surely be the wrong man.
[8] Hunter also relies on this court's decision in Beatty, supra. In that case, the "thought occur[red] to us" that even if a motion to suppress a pretrial identification on constitutional grounds is denied, the trial court may, upon an appropriate showing, rule that the pretrial identification is inadmissible under the rules of evidence. 544 A.2d at 703 n. 6. In Beatty, the question was whether the trial judge erred in denying a motion for judgment of acquittal where the one witness who had made a pretrial identification of the defendant was not asked to identify him at trial, and had cast serious doubt on the accuracy of his own pretrial identification. The court's discussion of suppression of an identification was not necessary for the disposition of the case, and it arose in this unusual factual contexta scenario entirely different from the present one.
| {
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FILED BY CLERK
JUL 28 2011
COURT OF APPEALS
IN THE COURT OF APPEALS DIVISION TWO
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2011-0136-PR
) DEPARTMENT A
Respondent, )
) OPINION
)
v. )
)
GERARDO POBLETE, )
)
Petitioner. )
)
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100CR200500234
Honorable Robert C. Brown, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Law Offices of Richard La Paglia
By Mary Z. La Paglia Eloy
Attorneys for Petitioner
B R A M M E R, Judge.
¶1 Petitioner Gerardo Poblete seeks review of the trial court‟s order denying
his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. “We
will not disturb a trial court‟s ruling on a petition for post-conviction relief absent a clear
abuse of discretion.” State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.
2007). Poblete has not sustained his burden of establishing such abuse here.
¶2 Pursuant to a plea agreement, Poblete was convicted of one count of
attempted possession of a narcotic drug for sale. The trial court suspended the imposition
of sentence and placed him on probation for a period of four years, ordering that he serve
sixty days in the county jail as a condition of probation. Poblete‟s probation was
terminated early, in September 2008. Poblete, who is a non-citizen, legal resident of the
United States, later consulted an immigration attorney in 2009, and the attorney informed
him that, as a result of his conviction, he was subject to deportation under 8 U.S.C.A.
§ 1227.
¶3 In December 2010, Poblete initiated Rule 32 proceedings, asserting his
failure to file timely his notice of post-conviction relief had not been his fault, but rather
“was attributable to the ineffectiveness of his prior criminal counsel” in not informing
him of the immigration consequences of his guilty plea. And, he maintained, he was
entitled to relief based on the Supreme Court‟s decision in Padilla v. Kentucky, ___ U.S.
___, 130 S. Ct. 1473 (2010), which he characterized as a significant change in the law for
purposes of Rule 32.1(g). Poblete averred that neither the trial court1 nor his attorney had
1
On review Poblete concedes that the trial court did warn him of the possible
immigration consequences of a guilty plea. Indeed, the court advised Poblete:
I also have to advise you by rule that if you are not a
citizen of the United States, pleading guilty or no contest to a
crime may affect your immigration status.
2
advised him “of the immigration consequences that would result from [his] plea of
guilty” and that he “would not have pled guilty” had he known of those consequences.
The court denied relief, concluding that because it had advised Poblete of the possible
immigration consequences of his plea he was not entitled to relief under Rule 32.2(f) and
that Padilla was not applicable retroactively and did not constitute a significant change in
the law.
¶4 In his petition for review, Poblete again maintains he could not have sought
post-conviction relief timely because “he did not become aware until . . . later that this
plea would result in mandatory removal from the United States” and argues Padilla was a
significant change in the law entitling him to relief. He contends the trial court erred in
concluding otherwise.
¶5 As the trial court correctly pointed out, Poblete‟s petition was untimely.
Therefore he is entitled to relief only on certain grounds, among them that he was
“without fault” for the delay in filing his notice, and that “[t]here has been a significant
change in the law that if determined to apply to defendant‟s case would probably overturn
the defendant‟s conviction or sentence.” Ariz. R. Crim. P. 32.1(f), (g) and 32.4(a).
Admitting guilt may result in your deportation even if
the charge is later dismissed. Your plea or admission of guilt
could result in your deportation or removal. Could prevent
you from ever being able to get legal status in the United
States or could prevent you from becoming a United States
citizen.
The court then asked Poblete if he understood “these potential consequences,” and
Poblete responded, “Yes.”
3
¶6 Poblete first claims he is entitled to relief under Rule 32.1(f) because he
“was not in a position to seek post-conviction relief within [ninety] days of his conviction
because he did not become aware until a few years later that this plea would result in
mandatory removal from the United States.” Rule 32.1(f) provides that a petitioner may
request the right to file a delayed notice of post-conviction relief if his failure to file
timely was “without fault on the [petitioner‟s] part.” Relief should be granted under this
rule if the trial court failed to advise the defendant of his right to seek of-right post-
conviction relief or if the defendant intended to seek post-conviction relief in an of-right
proceeding and had believed mistakenly his counsel had filed a timely notice or request.
See Ariz. R. Crim. P. 32.1(f) 2007 cmt.
¶7 Poblete is not arguing he was unaware of his right to petition for post-
conviction relief or of the time within which a notice of post-conviction relief must be
filed or that he intended to challenge the court‟s decision but his attorney or someone else
interfered with his timely filing of a notice as contemplated by Rule 32.1(f). See Ariz. R.
Crim. P. 32.1(f) 2007 cmt. Indeed, the trial court informed Poblete that he had a right to
seek post-conviction relief. Rather, his claim is essentially that, based on information
that later came to light, he regretted having failed to challenge his conviction. Such a
claim is not cognizable under Rule 32.1(f). See Ariz. R. Crim. P. 32.1(f) 2007 cmt.; cf.
State v. Montez, 102 Ariz. 444, 447, 432 P.2d 456, 459 (1967) (“[A] convicted felon may
acquiesce in the advice and decision of counsel not to appeal, so as to make that decision
his. We will not recognize the claim that the decision of counsel in which he acquiesced
deprived him of the right to counsel . . . so as . . . to permit it to be asserted as the basis of
4
good cause for a delayed appeal.”); David B. Wexler & Andrew Silverman, Representing
Prison Inmates: A Primer on an Emerging Dimension of Poverty Law Practice, 11 Ariz.
L. Rev. 385, 397-400 (1969) (“Plainly . . . a defendant‟s decision not to appeal . . . will
preclude the possibility of a subsequent delayed appeal.”).
¶8 We must then consider whether Poblete is entitled to relief under Rule
32.1(g), which provides relief when there has been a “significant change in the law.”
“Rule 32 does not define „a significant change in the law.‟ But plainly a „change in the
law‟ requires some transformative event, a „clear break from the past.‟” State v. Shrum,
220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009), quoting State v. Slemmer, 170 Ariz.
174, 182, 823 P.2d 41, 49 (1991).
¶9 In Padilla, the Supreme Court concluded “Padilla‟s counsel had an
obligation to advise him that the offense to which he was pleading guilty would result in
his removal from this country.” ___ U.S. at ___, 130 S. Ct. at 1478. Because counsel
had not so advised Padilla, the Court ruled he had established deficient performance
under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and
remanded the matter to the state court to determine whether Padilla could establish he had
been prejudiced by counsel‟s failure to advise him of the immigration consequences of
his guilty plea. Padilla, ___ U.S. at ___, 130 S. Ct. at 1483-84. Thus, under Padilla,
failure to advise a client of the immigration consequences of a guilty plea constitutes
deficient performance under Strickland. Id. at ___, 130 S. Ct. at 1483.
¶10 We agree with Poblete that Padilla constitutes a significant change in the
law. Before Padilla, the law in Arizona provided that an attorney‟s failure to advise a
5
defendant of the immigration consequences of his or her plea was not ineffective
assistance of counsel because such advice related to a “collateral” matter. See State v.
Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App. 1995). The majority of other
states and every federal circuit that had considered the issue pre-Padilla followed a
similar rule. See People v. Kabre, 905 N.Y.S.2d 887, 893-94 (Crim. Ct. 2010); see also
Miller v. State, 11 A.3d 340, 349-51 (Md. Ct. Spec. App. 2010). Because the Supreme
Court rejected this approach in Padilla, we conclude Padilla represents a significant
change in the law.
¶11 The question remains, however, whether this significant change in the law
applies to Poblete. See Ariz. R. Crim. P. 32.1(g) (relief based on significant change in the
law “that if determined to apply to defendant‟s case would probably overturn the
defendant‟s conviction or sentence.”) To answer that question, we must determine
whether Padilla is applicable retroactively to cases, like Poblete‟s, that were final at the
time it was decided. State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 831-32 (2003) (“A
defendant‟s case becomes final when „a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for certiorari elapsed or a
petition for certiorari finally denied.‟”), quoting Griffith v. Kentucky, 479 U.S. 314, 321
n.6 (1987).
¶12 New constitutional rules generally are not applicable to cases already final
when the rule is announced. See State v. Febles, 210 Ariz. 589, ¶ 8, 115 P.3d 629, 632
(App. 2005); see also Whorton v. Bockting, 549 U.S. 406, 416 (2007) (“[A]n old rule
applies both on direct and collateral review, but a new rule is generally applicable only to
6
cases that are still on direct review.”). A rule clearly is “new” when a court expressly
overturns its own precedent. Saffle v. Parks, 494 U.S. 484, 488 (1990). When, as in
Padilla, the court extends existing law, however, the determination of whether the rule
being announced is new is more complicated. Id.; see also Teague v. Lane, 489 U.S. 288,
301 (1989) (plurality opinion). In Teague, the Supreme Court defined a new rule as a
rule that “breaks new ground,” “imposes a new obligation on the States or the Federal
Government,” or was not “dictated by precedent existing at the time the defendant‟s
conviction became final.” 489 U.S. at 301.
¶13 Poblete argues on review that although Padilla “is new and is a significant
change in the law,” it was “not a new basis for setting aside a conviction,” and was
therefore not a new rule for retroactivity purposes.2 We disagree. We recognize that, as
Poblete suggests, the Padilla Court applied the existing Strickland standard. But,
although a new rule generally is not created by the application of an established rule, a
new rule may be announced if “the prior decision is applied in a novel setting, thereby
extending the precedent.” Stringer v. Black, 503 U.S. 222, 228 (1992). The “new rule”
principle is meant to “„validate[] reasonable, good-faith interpretations of existing
precedents . . . even though they are shown to be contrary to later decisions.‟” Saffle, 494
2
We note, however, in his petition below Poblete asserted Padilla was “new law,”
although apparently in the context of the meaning of “a significant change in the law”
under Rule 32.1(g). He made no separate argument about the retroactive application of
Padilla. Neither, however, did the state; it argued Padilla was “[n]ot new law” because
Rule 17.2(F), Ariz. R. Crim. P., was in effect when Poblete pled guilty and was sentenced
and Padilla “merely confirm[ed] what the State of Arizona had already codified into
statute.”
7
U.S. at 488. The question then is whether a “court considering [a defendant‟s] claim at
the time his conviction became final would have felt compelled by existing precedent to
conclude that the rule . . . was required by the Constitution.” Id.; Teague, 489 U.S. at
301. As discussed above, before Padilla, courts uniformly rejected claims of ineffective
assistance of counsel based on counsel‟s failure to advise the defendant of the
immigration consequences of a guilty plea.
¶14 Indeed, in Padilla, the Court noted that although it never had applied the
“distinction between direct and collateral consequences,” many other courts had. 3 ___
U.S. at ___, 130 S. Ct. at 1481, 1481 n.9. And, in his concurrence in Padilla, Justice
Alito characterized the Court‟s decision as a “dramatic departure from precedent.” Id. at
1488 (Alito, J., concurring). Although “the mere existence of conflicting authority does
not necessarily mean a rule is new,” Williams v. Taylor, 529 U.S. 362, 410 (2008), as to
this issue, significantly more than mere conflicting authority existed in the case law.
Most courts, including those in Arizona, would not have felt compelled to reach the same
conclusion as did the Court in Padilla; instead, they would have been compelled to reach
precisely the opposite conclusion. Thus, Padilla introduced a new rule. See Teague, 489
U.S. at 301.
¶15 Padilla therefore is not applicable to Poblete‟s case unless it falls within
certain narrow exceptions established by Teague. See Febles, 210 Ariz. 589, ¶ 8, 115
3
We note, however, that although the “denial of a writ of certiorari imports no
expression of opinion upon the merits of the case,” United States v. Carver, 260 U.S.
482, 490 (1923) (Holmes, J.), the Supreme Court denied certiorari in at least one case that
applied the “collateral consequences” rule. See United States v. Amador-Leal, 276 F.3d
511 (2002), cert. denied, 535 U.S. 1070 (2002).
8
P.3d at 632. “The first exception does not apply because it only relates to new rules that
forbid punishment of certain conduct and rules that prohibit a certain category of
punishment for a class of defendants because of their status offense.” Id. ¶ 14.
¶16 Likewise, we conclude the second Teague exception does not apply. That
exception provides that “watershed rules of criminal procedure that implicate the
fundamental fairness and accuracy of the proceeding” are applicable retroactively. Id.
¶ 15. This exception is extremely narrow and applies “„only to a small core of rules
requiring observance of those procedures that . . . are implicit in the concept of ordered
liberty.‟” Id., quoting Beard v. Banks, 542 U.S. 406, 417 (2004). Such a rule must be
“„central to an accurate determination of innocence or guilt.‟” Id., quoting Beard, 542
U.S. at 417. We cannot say the rule Padilla announced constitutes such a “core” rule.
See State v. Sepulveda, 201 Ariz. 158, ¶ 6, 32 P.3d 1085, 1087 (App. 2001) (noting
“second exception is construed narrowly to facilitate the finality of criminal convictions”
and no new constitutional rule satisfied second exception since Teague decided). “The
Teague watershed exception actually requires two showings. First, „[i]nfringement of the
rule must seriously diminish the likelihood of obtaining an accurate conviction.‟ In
addition, „the rule must alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.‟” Towery, 204 Ariz. 386, ¶ 17, 64 P.3d at 833
(citations omitted), quoting Tyler v. Cain, 533 U.S. 656, 665 (2001) (alterations in
Towery). We cannot say a violation of the rule introduced in Padilla would impact the
accuracy of conviction, and therefore it is not a watershed rule. Thus, although a
9
significant change in the law, we agree with the trial court that Padilla does not apply to
Poblete‟s case. Therefore, although we grant the petition for review, we deny relief.
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
10
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15 F.3d 856
UNITED STATES of America, Plaintiff-Appellee,v.Ralph HATLEY, Defendant-Appellant.
No. 92-30126.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 7, 1993.Opinion July 8, 1993.Opinion Withdrawn Feb. 1, 1994.Decided Feb. 1, 1994.
Des Connall and Wayne Mackeson, Portland, OR, for the defendant-appellant.
Fred N. Weinhouse, Assistant United States Attorney, Portland, OR, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: D.W. NELSON, TROTT, and T.G. NELSON, Circuit Judges.
ORDER
The opinion filed in this case on July 8, 1993, 999 F.2d 392, is ordered withdrawn. In its place, the opinion that follows is ordered filed.
OPINION
TROTT, Circuit Judge:
1
Ralph G. Hatley appeals his conviction for three counts of distribution of cocaine and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Hatley alleges on appeal that a search by police officers of an automobile that turned out to be inoperable violated his Fourth Amendment rights, and that the fruits of that search should therefore have been suppressed. Hatley also contends he was entitled to a two-level reduction under the Sentencing Guidelines for being a minor participant. United States Sentencing Commission, Guidelines Manual, Sec. 3B1.2 (Nov.1991).
2
The district court heard pretrial motions on December 12, 1991 and denied appellant's motion to suppress evidence. Appellant waived his right to a jury trial and the case was tried to the court on stipulated facts. The district court found appellant guilty on all four counts and sentenced him to 51 months in prison based on a Guideline range of 51 to 63 months.
3
* An informant purchased one-sixteenth ounce of cocaine from appellant on three separate occasions. Following the three "controlled buys," the informant arranged to purchase one-half pound of cocaine from the appellant for $6,900.00. Appellant and the informant agreed that the appellant would deliver the cocaine to the informant's house on September 11, 1991.
4
Law enforcement officers surveilled appellant's residence and observed appellant retrieve a box from one of his cars, a Honda. Appellant took this box into his residence. He then returned outside to retrieve a second box from another of his cars parked in the driveway, a Corvair.
5
Following a telephone call from the informant to the appellant finalizing the details of the purchase, the officers observed appellant leave the residence with the two boxes. He placed one box in the Corvair and the second box in the Honda. Appellant then drove the Honda away from the house.
6
The officers stopped appellant, took him back to his home, and advised him of his Miranda rights. After a discussion with Deputy Sheriff Susan Lambert in which she inappropriately threatened to take appellant's child into custody, appellant signed a consent form for police to search the two cars. Without a search warrant, law enforcement officers then seized eight ounces of cocaine from a closed container in appellant's Honda and 19 ounces of cocaine from a closed container in the Corvair. The Corvair was parked in the driveway of appellant's residence and according to appellant's testimony had been inoperable for four months. The officers were not aware that the Corvair was inoperable at the time they searched it.
7
In connection with a motion to suppress evidence seized from the automobiles, the district court held that because appellant believed his child would be taken into custody if he refused to consent to the search, the consent was not voluntary. The record fully supports this conclusion. Deputy Lambert's manifestly improper behavior rendered defective the signed consent form as a basis for the admissibility of anything found in the defendant's cars. The court correctly held, however, that probable cause existed to search the cars independent of Deputy Lambert's misconduct, and the disputed evidence was admitted for all purposes. See United States v. Parr, 843 F.2d 1228, 1232 (9th Cir.1988) ("police who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed within the car may make a probing search of compartments and containers."); see also California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068, 85 L.Ed.2d 406 (1985) (vehicles subject to different treatment than fixed buildings); Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988) (" '[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred....' " (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984))).
II
8
Appellant contends the district court erred in refusing to suppress the cocaine seized from the Corvair. He argues that the vehicle exception does not apply because the Corvair was inoperable and on his property at the time of the search. The issue of the lawfulness of an automobile search is a mixed question of fact and law which is reviewed de novo. United States v. Vasey, 834 F.2d 782, 785 (9th Cir.1987).
9
Law enforcement officers are entitled to search an automobile without first obtaining a warrant in those cases where the police "have probable cause to believe that an automobile contains evidence of a crime ..." United States v. Alvarez, 899 F.2d 833, 839 (9th Cir.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1991). This "vehicle exception" to the warrant requirement is founded on two basic principles. First, automobiles are mobile and "can be moved quickly outside the jurisdiction of the magistrate from whom the warrant must be sought." United States v. Hamilton, 792 F.2d 837, 842 (9th Cir.1986). Second, "the expectation of privacy in one's vehicle is reduced by the pervasive regulations governing vehicles capable of traveling upon public roads." Id.
10
Though we have never addressed the precise issue of whether the vehicle exception applies to an inoperable vehicle, we have explicitly held that the vehicle exception applies to a search of a vehicle parked on a private driveway. Hamilton, 792 F.2d at 843. In Hamilton, police searched a motor home that was parked in a residential driveway. The motor home was attached to the home's electric utilities by an extension cord. Id. at 843. The Hamilton court suggested several factors which bear on whether or not a vehicle comes within the automobile exception for Fourth Amendment purposes: "its location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road." Id. (quoting California v. Carney, 471 U.S. at 394 n. 3, 105 S.Ct. at 2071 n. 3 (1985)).
11
With the exception of "whether the vehicle is readily mobile," the factors set forth in Carney and Hamilton indicate that the vehicle exception to the warrant requirement applies to the Corvair. The car was not connected to utilities, and "[b]ecause it was located in a residential driveway, it had easy access to a public road." Id.
12
Though the Corvair was not actually mobile, it was apparently mobile. There was nothing apparent to the officers to suggest the car was immobile. It was not up on blocks, and there is no information in the record to indicate the tires were flat or that wheels of the car were missing. In matters of search and seizure, we apply an objective test of reasonableness: would the facts available to the officer at the moment warrant a person of reasonable caution to believe that the car was operable? Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990). As the Supreme Court held in Rodriguez:
13
[t]o satisfy the 'reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government--whether the magistrate issuing the warrant, or the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement--is not that they always be correct, but that they always be reasonable.
14
497 U.S. at 185, 110 S.Ct. at 2799 (emphasis added).
15
It would be unduly burdensome to require the police to establish that every car that appeared to be mobile was indeed mobile before making the search. We therefore hold, as the Eighth Circuit has, that the Fourth Amendment does not require that officers ascertain the actual functional capacity of a vehicle in order to satisfy the exigency requirement. United States v. Hepperle, 810 F.2d 836, 840 (8th Cir.) cert. denied, 483 U.S. 1025, 107 S.Ct. 3274, 97 L.Ed.2d 772 (1987). In this case, the Fourth Amendment's reasonableness requirement was met because the officers reasonably believed the car was mobile.
III
16
Appellant argues the district court erred in refusing to consider him a minor participant for purposes of sentencing. The Sentencing Guidelines permit a two-level reduction if the court finds the defendant was a minor participant in the offense. U.S.S.G. Sec. 3B1.2. A minor participant is any participant who is less culpable than most other participants, but whose role could not be described as minimal. Section 3B1.2 provides:
17
Based on the defendant's role in the offense, decrease the offense level as follows:
18
(a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels.
19
(b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels.
20
U.S.S.G. Sec. 3B1.2.
21
In determining whether a defendant was a minimal or a minor participant in any criminal activity, a district court sentencing a defendant after November 1, 1990 shall consider all conduct within the scope of Sec. 1B1.3 (Relevant Conduct), not just conduct cited in the count of conviction. United States v. Webster, 996 F.2d 209 (9th Cir.1993). The issue of whether a defendant is a minor or minimal participant in a criminal offense under the particular facts of the offense is reviewed for clear error. United States v. Zweber, 913 F.2d 705, 708 (9th Cir.1990). The district court's legal interpretation of the Guidelines is reviewed de novo. Id.
22
In the instant case, the district court did not have the benefit of Webster before determining that Hatley was not entitled to be considered a "minor participant." Consequently, there is much discussion in the record about whether the court was permitted to consider the comparative activities of his unindicted partner in crime, Valdez. However, it is clear from the record that the court did not limit the scope of the inquiry to the count of conviction. The court's conclusion that the defendant was not a minor participant was amply supported under any test. The presentence report stated:
23
[T]here is no information from official reports which would suggest that role adjustments are appropriate in this case.... In the current offense, the defendant was involved in three controlled cocaine buys which culminated in the defendant's arrest shortly after he agreed to supply a CRI with one half pound of cocaine. A search of the defendant, his residence, and his car subsequent to his arrest resulted in the seizure of over 700 grams of cocaine, a weapon, and currency which the defendant admitted was proceeds from cocaine sales. Defense counsel argues that the codefendant was involved in 'fairly high level' cocaine distribution, but his participation in the current offense appears limited to having been in the defendant's apartment at the time the search warrant was served.
24
Presentence Report, Addendum, p. 2. On the basis of these facts, we hold the district court's conclusion that appellant was not a minor participant was fully justified.
25
On the basis of the foregoing, we hold the police search of Hatley's apparently mobile Corvair did not violate Hatley's Fourth Amendment rights. We also hold the district court correctly determined that Hatley was neither a minimal nor a minor participant in the drug trafficking events resulting in his conviction. Accordingly, the district court's judgment and sentence are AFFIRMED.
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255 F.Supp. 613 (1966)
Alfred S. V. CARPENTER, Plaintiff,
v.
A. G. ERICKSON, District Director of Internal Revenue, Portland District, Portland, Oregon, Defendant.
Civ. No. 64-478.
United States District Court D. Oregon.
June 20, 1966.
G. W. Kellington, Harbison, Kellington & Kellington, George M. Roberts, Roberts, Branchfield & Heffernan, Medford, Or., for plaintiff.
Richard M. Roberts, Acting Asst. Atty. Gen., Jerome Fink, Gary P. Smith, Attys., Dept. of Justice, Sidney I. Lezak, U. S. Atty., Michael L. Morehouse, Asst. U. S. Atty., Portland, Or., for defendant.
OPINION
SOLOMON, Chief Judge:
Plaintiff filed this action to recover additional taxes and interest assessed *614 and paid after a claimed "business bad debt loss" was reclassified as a "non business bad debt loss" on his 1960 income tax return. The sole question is whether the loss arose out of a business or a non business debt.
Plaintiff guaranteed loans for Southern Oregon Moulding Co. (Somco) in 1958, 1959, and 1960. In 1960 the loans totaled $102,500.00. Plaintiff had no other financial interest in Somco. He guaranteed these loans for a fee of ¼ of 1% per annum. In 1960, on demand of the lending bank, plaintiff paid the Somco loans which he had guaranteed. It is agreed that $58,061.09 is the amount of the loss.
Plaintiff contends that he was engaged in the business of financing small businesses from 1955 through 1962 and that the loss was incurred in that business. If so, Section 166(a) (1) of the Internal Revenue Code of 1954 permits plaintiff to deduct the entire loss from gross income.
The Government contends that this loss is a "non business bad debt loss" because plaintiff was an investor and not engaged in the financing business. A "non business debt" is defined as,
"* * * a debt other than (A) a debt created or acquired (as the case may be) in connection with a trade or business of the taxpayer; or (B) a debt the loss from the worthlessness of which is incurred in the taxpayer's trade or business." Section 166(d) (2), Internal Revenue Code of 1954. 26 U.S.C.A. § 166(d) (2).
A loss arising out of a "non business debt" is treated as a short term capital loss and is restricted by Section 1211, Internal Revenue Code of 1954, to offsetting capital gains plus $1,000.00 of other income. 26 U.S.C.A. § 1211(b).
Plaintiff and his deceased wife were people of great wealth, and the bulk of their income came from International Business Machines Corporation and other "blue-chip" stocks and bonds. He owned a pear orchard. His 1960 income tax return listed his occupation as an "orchardist".
It is conceded that plaintiff financed at least seven corporations and individuals on one or more occasions from 1955 through 1962. In each instance plaintiff guaranteed a bank loan and received a fee of ¼ of 1% of the loan per annum. The loans ranged in size from $7,500.00 to $133,000.00. He was known in his community for financing local business he thought would succeed. In Atterbury v. Carpenter, 9 Cir. 1963, 321 F.2d 921, a case involving the same loan, the Court noted, "* * * Somco then got in touch with appellee Carpenter who, it knew, had engaged in the business of corporate financing."
Because of the source of most of plaintiff's income, the Government contends that he was an investor and that the guarantee agreements are part of his investment activities. An investor is not engaged in a "business" under this statute. Higgins v. Commissioner of Internal Revenue, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783 (1941). However, a taxpayer may have more than one business or trade for income tax purposes. Oliver v. Commissioner of Internal Revenue, 4 Cir. 1943, 138 F.2d 910. It is a factual issue in each case whether a taxpayer is involved in a particular business. Higgins v. Commissioner of Internal Revenue, supra.
This case was submitted to me on the pleadings, the pretrial order, a statement of agreed facts, plaintiff's deposition, and exhibits.
I find that the plaintiff was in the business of financing businesses by loaning money and credit from 1955 through 1962 and that the loss of $58,061.09 was incurred in that business. The loss therefore was a business bad debt and is deductible from gross income.
I am not impressed by the Government's arguments that plaintiff's activities do not constitute a business because he guaranteed loans primarily to improve his community and he charged *615 too little interest. A public-spirited motive does not deprive an enterprise of "business" status. It is no more relevant than the fact that plaintiff contributed millions to educational institutions and charities from 1958 to 1961. In seeking to develop his community, plaintiff was doing what every bank professes to do. Shall banks lose their bad debt deduction? Plaintiff probably did not fully appreciate the hazards of guaranteeing this loan; or, knowing them, did not charge a high enough fee. But poor business judgment does not disqualify an activity from being a "business."
This opinion will serve as findings of fact and conclusions of law under Rule 52(a) of Fed.R.Civ.P. Counsel are directed to compute the refund in accordance with these findings.
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587 F.Supp. 473 (1984)
MANHATTAN TANKERS, INC., Plaintiff,
v.
Elizabeth H. DOLE, et al., Defendants,
and
Ogden Challenger Transport, Inc., Intervenor-Defendant.
Civ. A. No. 83-3628.
United States District Court, District of Columbia.
June 29, 1984.
*474 William E. McDaniels, Kevin T. Baine, F. Lane Heard, III, and Steven R. Kuney of Williams & Connolly, Washington, D.C., for plaintiff.
Scott T. Kragie, Asst. U.S. Atty., Washington, D.C., for defendants.
Philip W. Buchen, Hugh N. Fryer, Dierdre A. Burgman, and Craig S. King of Dewey, Ballantine, Bushby Palmer & Wood, Washington, D.C., for intervenor-defendant.
OPINION
CHARLES R. RICHEY, District Judge.
INTRODUCTION
This case involves a challenge by the plaintiff, owner of the oil tanker MANHATTAN, to the action of the Coast Guard in permitting the entry of a competitor, the oil tanker OGDEN COLUMBIA (formerly the ARKAS), into the United States coast-wise trade pursuant to the Wrecked Vessel Statute, 46 U.S.C. § 14. Before the Court is a motion to dismiss, or in the alternative for summary judgment, plaintiff's cross-motion for summary judgment, supplemental memoranda, and the entire record herein. After careful consideration, and for the reasons stated below, the Court finds that the plaintiff has standing to bring this lawsuit and the defendants' motion to dismiss must be denied. The Court will rule on the cross-motions for summary judgment following oral argument by the parties.
BACKGROUND
On March 31, 1982, the ARKAS, a foreign built ship then under Liberian flag, collided with a towboat on the Mississippi River, resulting in substantial damage to the tanker. In July of the same year, the ship was purchased by Avondale Shipyards, Inc. ("Avondale"), a subsidiary of the Ogden Corporation and at the time an affiliate of Ogden Challenger Transport. The purchase *475 price, including bunkers (engine fuel), was $7.75 million. Within days, Avondale requested that the Coast Guard determine that the ARKAS was a wrecked vessel qualified for documentation for employment in the coastwise trade under the Wrecked Vessel Statute, 46 U.S.C. § 14, and the regulations promulgated thereunder, 46 C.F.R. § 67.19-9. Section 27 of the Merchant Marine Act of 1920 ("Jones Act"), 46 U.S.C. § 883, requires that vessels engaged in the transportation of merchandise in the coastwise trade be built and documented under the laws of the United States and owned by American citizens. The Wrecked Vessel Statute, set out in full infra, allows documentation for the coastwise trade of a vessel wrecked in U.S. waters provided that the vessel was purchased by a U.S. citizen and repaired in a U.S. shipyard if a determination is made that the cost of the repairs is at least three times the salved value of the vessel. On November 17, 1983, a Certificate of Documentation was issued entitling the ARKAS (by then renamed the OGDEN COLUMBIA) to be employed in the coastwise trade. The plaintiff asserts that the Coast Guard's decision to document the vessel should be set aside because, inter alia, the proceedings pursuant to which the decision was made were tainted with bias, plaintiff was denied a meaningful opportunity to participate in the proceedings, and the decision was arbitrary, capricious, and an abuse of discretion.
THE PLAINTIFF HEREIN HAS STANDING
The threshold issue before the Court is whether the plaintiff has standing to bring this lawsuit. The concept of standing invokes concerns of both constitutional and prudential dimension. Constitutionally,
Art. III requires the party who invokes the court's authority to "show [1] that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," * * * [2] that the injury "fairly can be traced to the challenged action" and [3] "is likely to be redressed by a favorable decision" * * * * * *
Autolog Corporation v. Regan, 731 F.2d 25, 28 (D.C. Cir.1984) (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted)).
The plaintiff meets the standing requirements of Article III of the Constitution. It operates a vessel, the MANHATTAN, in the coastwise trade. The challenged Certificate of Documentation allows the OGDEN COLUMBIA to directly compete with plaintiff's vessel. Thus, it will suffer competitive harm because of the defendants' action. See Sea-Land Service, Inc. v. Dole, 723 F.2d 975, 977-78 (D.C. Cir.1983).
The prudential consideration relevant here is whether the plaintiff's complaint falls "arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Ass'n of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970) (emphasis added). While standing vis-a-vis the "zone" test is a difficult concept, the case law indicates that any doubts must be resolved in favor of the litigant seeking to assert his rights. The "test `requires some indicia-however slight-that the litigant before the court was intended to be protected, benefited or regulated by the statute under which suit is brought.'" Autolog, 731 F.2d at 29 (quoting Copper & Brass Fabricators Council v. Dep't of the Treasury, 679 F.2d 951, 952 (D.C. Cir.1982) (emphasis added). This Court should "give broad compass to a statute's `zone of interests' in recognition that this test was originally intended to expand the number of litigants able to assert their rights in court." Id. at 29-30.
The statute at issue here reads:
The Commissioner of Customs may issue a register or enrollment for any vessel wrecked on the coasts of the United States or her possessions or adjacent waters, when purchased by a citizen or citizens *476 of the United States and thereupon repaired in a shipyard in the United States or her possessions, if it shall be proved to the satisfaction of the Commissioner, if he deems it necessary, through a board of three appraisers appointed by him, that the said repairs put upon such vessels are equal to three times the appraised salved value of the vessel: Provided, That the expense of the appraisal provided for shall be borne by the owner of the vessel: Provided further, That if any of the material matters of fact sworn to or represented by the owner, or at his instance, to obtain the register of any vessel are not true, there shall be a forfeiture to the United States of the vessel in respect to which the oath shall have been made, together with tackle, apparel, and furniture thereof.
Wrecked Vessel Statute, 46 U.S.C. § 14. On its face, the statute seeks to protect the interests of American shipyards through its requirement that repairs be made in an American yard and amount to three times the vessel's salved value. And, it would seem to seek to protect the interests of American shipowners through its requirement that the wrecked vessel be American owned. But the Court's analysis is not limited to the Wrecked Vessel Statute itself.
In Autolog, supra, a group of plaintiffs (land carriers, United States-flag water carriers and a union representing seamen) challenged the legality of certain shipping services provided by a foreign-flag water carrier. The action was brought under Sections 289 and 883 of the coastwise shipping laws, 46 U.S.C. §§ 289, 883 (1976 & Supp. V 1981). Foreign-flag water carriers are barred by Section 289 from transporting passengers, directly or by a way of a foreign port, between U.S. ports, and by Section 883 from transporting merchandise between U.S. ports. The Circuit Court, in finding that the union had standing to bring the lawsuit, read Section 289 together with other statutory provisions of the coastwise trade laws and determined that "[t]he union represents the seamen whose livelihood Section 289 is meant to protect. Thus, the union must be found within Section 289's zone of interests." Autolog, 731 F.2d at 30. Significantly, in reviewing the coastwise trade laws, the Circuit Court found that "[t]hese statutory provisions function together to ensure the American monopoly over all aspects of coastwise shipping...." Id. at n. 3 (emphasis added).
CONCLUSION
When the Wrecked Vessel Statute is read together with other provisions of the Coastwise shipping laws, specifically the Jones Act, 46 U.S.C. § 883, it cannot be said that the plaintiff is not arguably within the zone of interests the Wrecked Vessel Statute seeks to protect. The plaintiff is a Jones Act operator which, by law, does not have to compete with foreign owned or foreign built vessels in the United States coastwise trade. Accordingly, the plaintiff has standing and the defendants' motion to dismiss must be denied.
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585 F.2d 1252
UNITED STATES of America, Plaintiff-Appellee,v.Nino Rinsi CADENA, Pedro A. Ballesteros Esquebel, GilbertoYepes Borjas, Cesar Dela Rosa, Narciso Barba Cadena, DanielGarcia Gomez, Efrain Carreazo Cardales, Pedro Ruiz Arrieta,Jorge Lopez Wagner, Nicanor Rivera Diaz, Alajandro ValleMantaress, Andres Gomez Ortega, and Francisco M. Ceba Bruno,Defendants-Appellants.
No. 77-5395.
United States Court of Appeals,Fifth Circuit.
Nov. 14, 1978.Rehearing Denied Jan. 16, 1979.See 588 F.2d 100.
Philip Carlton, Jr., Thomas A. Wills, Miami, Fla., for defendants-appellants.
Jack V. Eskenazi, U. S. Atty., Miami, Fla., Michael P. Sullivan, Asst. U. S. Atty., Mervyn Hamburg, Atty., Appellate Section, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before SKELTON,* Senior Judge, and FAY and RUBIN, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
1
At the heart of this case lies the question: May the United States Coast Guard validly board a foreign vessel carrying contraband intended for delivery to this country while the vessel is in international waters, arrest its crew for conspiracy to violate the laws of the United States, and seize its cargo? Like the seas where the vessel was boarded, the problem is deep and shark-infested. Unlike them, the answer is not clearly charted. We voyage toward a conclusion:
I.
2
The United States Coast Guard boarded a freighter carrying a cargo of marijuana in international waters and arrested the thirteen Colombian crew members aboard. Their arrest was the culmination of an investigation that began two months before, when federal agents in Florida received a tip that Thomas Albernaz was seeking a vessel to rendezvous with a freighter on the high seas, to receive a large quantity of marijuana from it, and to deliver the shipment to shore in Florida. During the following weeks, Drug Enforcement Administration agents plotted with Albernaz and others to supply such a vessel. The trial of Albernaz and his co-defendants and the on-shore facts of this case are considered in a separate opinion, United States v. Rodriguez, 5 Cir. 1978, 585 F.2d 1234.
3
After some difficulty, the vessel, Catchalot II, which was secretly provided by the government, found the freighter, the Labrador, on the high seas, about 200 miles off the Florida coast, and signaled a pre-arranged code to it. Appellant Cadena, the master of the Labrador, and the only English-speaking person aboard, declared that he had 1000 bales of marijuana (containing 50 pounds each) to deliver and requested payment of $1000 in cash. Cadena permitted his crew members, who are also appellants herein, to unload 150 bales of the marijuana during daylight hours after protesting that he had "never done anything like this before in daylight."
4
The Coast Guard vessel, Dauntless, was summoned by the Catchalot II, and arrived on the scene that evening. It hailed the freighter in Spanish and English. Cadena immediately called to the Catchalot II on the Labrador's citizen band radio "Shark! Shark!", a pre-arranged warning signal indicating the presence of law enforcement officers in the vicinity. The Labrador ignored the Dauntless' signals and continued to sail away. Only after the Dauntless resorted to two three-round bursts of machine gun fire and a volley from its cannon did the freighter stop and permit the Coast Guard to board.
5
The boarding party found plastic and burlap sacks in the holds containing about 54 tons of marijuana. They found a 1975 Canadian registration certificate and a 1976 Colombian certificate indicating that the ship had been inspected for rats. The freighter was sailing without lights; it had shown no flag by day and it was flying none when it hove to. During the chase its crew members had been seen discarding papers and small packages into the ocean.
6
Appellants were convicted of both counts of a two count indictment charging a conspiracy to import marijuana into the United States in violation of 21 U.S.C. § 963 and a conspiracy to distribute marijuana within the United States in violation of 21 U.S.C. § 846. Appellants challenge those convictions on a number of grounds but focus their fire on the legality of the search and seizure of the vessel. Appellants in the companion case, United States v. Rodriguez, supra, also challenge the search.
II.
7
Appellants' manifold objections to the search and seizure reduce to several contentions: there was no authority, statutory or otherwise, for seizing, boarding and searching a foreign vessel in international waters; if authority existed, the search and seizure nonetheless violated the Convention on the High Seas1 which overrides any domestic law to the contrary; the Fourth Amendment was violated because no warrant was obtained and because the lack of authority for the search and the violation of the Treaty rendered the search unreasonable for Fourth Amendment purposes. We separately consider and reject each of these theories.
A. Authority for Searching Vessels
8
The Coast Guard2 is empowered to search and seize any vessel on the high seas that is subject to the jurisdiction or operation of any law of the United States. 14 U.S.C. § 89(a).3 This provision authorizes seizures and searches of domestic vessels on the high seas.4 United States v. Warren, 5 Cir. en banc 1978, 578 F.2d 1058; United States v. Odom, 5 Cir. 1976, 526 F.2d 339; United States v. One (1) 43 Foot Sailing Vessel "Winds Will", 5 Cir. 1976, 538 F.2d 694; United States v. Hillstrom, 5 Cir. 1976, 533 F.2d 209, Cert. denied, 1977, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749; Cf. United States v. Winter, 5 Cir. 1975, 509 F.2d 975, 983-984 n. 30. The Constitution does not forbid such action. See, e. g., United States v. Lee, 1927, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Maul v. United States, 1927, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171.
9
The statute is not, on its face, limited to domestic vessels or domestic waters. It contemplates that vessels on the high seas will, under some circumstances, be subject to the "jurisdiction, or to the operation of any law, of the United States," for it specifically provides for "searches, seizures, and arrests upon the high seas And waters over which the United States has jurisdiction" (emphasis added).5 Because the Act does not further define those vessels that may be seized and searched, we must determine the scope of that clause. This requires a brief excursus into the waters of jurisdiction over the Offense, an issue that is relevant to the authority, Vel non, for the Search.
B. Jurisdiction Over the Offense
10
That the vessel was outside the territorial waters does not, of course, mean that it was beyond United States jurisdictional limits or the operation of domestic law. Jurisdictional and territorial limits are not co-terminous. The nation has long asserted the objective view, under which its jurisdiction extends to persons whose acts have an effect within the sovereign territory even though the acts themselves occur outside it. Ford v. United States, 1927, 273 U.S. 593, 620, 47 S.Ct. 531, 540, 71 L.Ed. 793, 805; United States v. Winter, supra, 509 F.2d at 980-982; United States v. Fernandez, 5 Cir. 1974, 496 F.2d 1294; Rivard v. United States, 5 Cir. 1967, 375 F.2d 882, 886, Cert. denied, 1967, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181; Marin v. United States, 5 Cir. 1965, 352 F.2d 174; Carmichael, At Sea with the Fourth Amendment, 32 U. Miami L. Rev. 51, 64 (1977).6
11
In United States v. Winter, supra, therefore, we sustained jurisdiction over a conspiracy involving two non-resident aliens who were arrested on the high seas, had never entered the United States or its territorial limits, but had participated in a conspiracy to import marijuana into the United States by serving as crew members. 509 F.2d at 983. See also Rivard, supra. In Winter, as here, there was proof of overt acts committed within the territorial United States by at least one co-conspirator.7 See Ficken, The 1935 Anti-Smuggling Act Applied to Hovering Narcotics Smugglers Beyond the Contiguous Zone: An Assessment Under International Law, 29 U. Miami L. Rev. 700, 701 n. 5 (1975) on whether crimes defined in the Comprehensive Drug Abuse Prevention and Control Act of 19708 fall within the United States special maritime and territorial jurisdiction.
C. Authority for the Search
12
However, because the court did not determine the validity of the search of a foreign vessel on the high seas, Winter does not sound bottom for us. Jurisdiction over the crime does not necessarily imply jurisdiction over the vessel that is being used to accomplish it.
13
No statute has been cited to us by the United States, despite an opportunity for reconsidering the issue, and we have found none, expressly asserting "jurisdiction" over the vessel by the United States, to be enforced either by the Coast Guard or any other domestic force. The anti-smuggling statute, 19 U.S.C. § 1701 permits the President to declare portions of the high seas to be customs enforcement areas.9 See Ficken, Supra. Customs enforcement under 19 U.S.C. § 158110 extends to jurisdictional limits defined in 19 U.S.C. § 1401(j) (12 miles or as permitted by treaty). See Carmichael, Supra, at 53, n. 9, 60-61, 65-75. The "special maritime and territorial jurisdiction of the United States" set forth in 18 U.S.C. § 7 extends to the high seas, but does not cover foreign vessels. United States v. Holmes, 1820, 18 U.S. (5 Wheat.) 412, 5 L.Ed. 122. See also, United States v. Davis, 1837, C.C.D.Mass. 25 F. Cas. 786 (No. 14,932); United States v. Jackson, 1843, C.C.S.D.N.Y., 26 F. Cas. 558 (No. 15,457). None of these extends jurisdiction to a foreign vessel in the area where the Labrador was boarded, which was over 200 miles from shore.
14
Without aid from any other jurisdictional statute, then, the authority of the Coast Guard to act upon the high seas must depend upon whether a vessel sailing there is "subject to . . . the operation of any law, of the United States." 14 U.S.C. § 89(a). The defendants were engaged in a violation of the domestic conspiracy statute, 21 U.S.C. § 963, which we have applied extraterritorially and to non-resident aliens. Winter, supra. The Coast Guard detained the vessel and searched it to detect and prevent a violation of the laws of the United States, thus acting in accordance with the purpose of the statute as set forth in its opening sentence.11
15
Because importation necessarily originates in an act in a foreign country, it is apparent that Congress intended that 21 U.S.C. § 952 and § 963 apply to persons who commit acts or a series of acts that at least commenced outside the territorial limits of the United States. See Winter, supra; See also United States v. Bowman, 1922, 260 U.S. 94, 97-98, 43 S.Ct. 39, 41, 67 L.Ed. 149. Moreover, as noted previously, others who were co-conspirators with these defendants committed acts in furtherance of the conspiracy within these territorial limits. We find statutory authority for the search and seizure implicit in 14 U.S.C. § 89(a) by virtue of its application to the search and seizure of vessels and individuals on the high seas if they are "subject . . . to the operation of any law, of the United States."12
D. Jurisdiction Over the Person
16
Because a defendant in a criminal trial may not challenge the court's jurisdiction over his person on the ground that his presence was unlawfully secured, Winter, supra, 509 F.2d at 983-989, we need not determine the validity of the arrest of the defendants outside of territorial waters, Id. at 983-84, n. 30, or whether the construction of 14 U.S.C. § 89(a) adopted with respect to the search and seizure would apply with respect to the arrest of individuals aboard the vessel.
17
E. Effect of the Convention On the High Seas
18
It is generally settled that, whether he is an alien or a citizen, even a person abducted from beyond the territorial limits of the United States may not successfully challenge the jurisdiction of the trial court over his person on the grounds that his presence was unlawfully secured. See United States v. Winter, supra, 509 F.2d at 986-989, discussing Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Ker v. Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421.13 As to the rights of aliens, See United States v. Winter, supra; United States v. Herrera, 5 Cir. 1974, 504 F.2d 859, 860.
19
If an arrest is made in clear violation of a treaty limiting the right of the United States to board vessels of other sovereign nations and a timely plea contesting jurisdiction is made, then the court will, for purposes of giving force to the treaty, dismiss the indictment. Ford v. United States,supra (no timely objection); United States v. Winters, supra, 509 F.2d at 988-989 (dictum); United States v. Schouweiler, S.D.Cal.1927, 19 F.2d 387; United States v. Ferris, N.D.Cal.1927, 19 F.2d 925; See also Cook v. United States, 1933, 288 U.S. 102, 121-122, 53 S.Ct. 305, 312, 77 L.Ed. 641 (no jurisdiction over the vessel). Here, the motion contesting jurisdiction, although made after a plea, Cf. Ford v. United States, supra was timely; the strict pleading requirements in Ford, if still viable, were satisfied by an order of the court extending the time for pretrial motions. The court's obligation to give effect to a binding treaty may also require suppression of any evidence seized in violation of it, See Cook v. United States, supra, whether or not that same violation mandates suppression for Fourth Amendment reasons. But there is no authority for dismissal of the indictment in the absence of a clear violation of a treaty. Winter, supra.
20
The Convention on the High Seas, 450 U.N.T.S. 82, 13 U.S.T. 2312, T.I.A.S. No. 5200, is a codification of international law,14 and a treaty that purports to be binding upon all signatories. It prohibits the boarding of a foreign merchant ship on the high seas by a warship unless there are reasonable grounds for suspecting that the ship is engaged in piracy, slave trade, or, although flying a foreign flag or refusing to show its flag,15 is of the same nationality as the warship. Article 22, Convention on the High Seas.16 The Convention of 1958, if applicable, supersedes prior domestic law to the contrary, Cook v. United States, supra, including the authority provided by 14 U.S.C. § 89(a) (enacted in 1949).17 See also Chae Chan Ping v. United States (The Chinese Exclusion Case), 1889, 130 U.S. 581, 9 S.Ct. 623, 32 L.Ed. 1068. If applicable, its express terms were violated by the search, seizure and arrest.
21
Neither Canada nor Colombia is a party to the Convention. In United States ex rel. Lujan v. Gengler, 2 Cir. 1975, 510 F.2d 62, 67, Cert. denied, 1975, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668, a case involving abductions from foreign soil, the Second Circuit adopted the view that only signatory nations to a treaty, and not their individual citizens, can protest its violation. See also Restatement (Second) of the Foreign Relations Law of the United States, § 1 comment (f), and § 115 comment (e) (1965). Even if individuals have standing to raise treaty violations, their personal rights are derived from the rights of a signatory state. Article 32 of the Convention provides that it is subject to ratification,18 and, although representatives for both Canada and Colombia signed the Convention, neither country has ratified it. See Treaties in Force (1978) at 326; 13 U.S.T. 2312; British Institute of International and Comparative Law, Developments in the Law of the Sea 1958-1964 at 43 (1965); 6A Benedict on Admiralty at 567-568 and 1977 supplement thereto. The treaty is not an act of disinterested benevolence for the peoples of the world. There is no indication in the treaty, or elsewhere, that it was intended to confer rights on non-member nations or on vessels of non-member nations, let alone on citizens of non-member nations. Compare Edye v. Robertson, 1884, 112 U.S. 580, 598-99, 5 S.Ct. 247, 254, 28 L.Ed. 798; Restatement (Second) of the Foreign Relations Law of the United States § 139(a) (1965); See, e. g., The Vienna Convention on The Law of the Treaties, Art. 36 (May 23, 1969).
22
Appellants contend that, because the treaty merely restates, as it recites, principles of international law, they have standing to assert those underlying doctrines that are part of the corpus juris of nations. But see United States ex rel. Lujan v. Gengler, supra, 510 F.2d at 68; Restatement (Second) of the Foreign Relations Law of the United States, § 1 comment (f), § 175 (1965). Even if we accept these premises, there is no basis for concluding that violation of these international principles must or should be remedied by application of the exclusionary rule or by dismissal of the indictment unless Fourth Amendment interests are violated. Indeed that would be a singular application for none of the other signatory nations appears to have a similar exclusionary rule or to attach such consequences to a violation of the Convention.
23
The violation of international law, if any, may be redressed by other remedies and does not depend upon the granting of what amounts to an effective immunity from criminal prosecution to safeguard individuals against police or armed forces misconduct. Article 22 of the Convention, for example, specifies the right to compensation for damages suffered as a consequence of its violation; if only this remedy is available to citizens or vessels of member nations, citizens of non-member nations ought not enjoy the benefits of greater prophylaxis, such as exclusion or dismissal of indictments, by virtue of their nation's failure to ratify. In the absence of a foreign state's ratification that would ensure reciprocal respect for these principles of international law, neither comity, domestic law, nor concepts of due process and fundamental fairness, require such a purging. See United States ex rel. Lujan v. Gengler, supra, 510 F.2d at 68 n. 9. Indeed, such unilateral enforcement of the terms of the treaty with respect to non-member nations might ultimately undermine its effectiveness by reducing the incentive for ratification. Congress or the Executive might decide that this nation should unilaterally enforce those principles, but, in the absence of such a directive, we find no authority for granting the relief requested.
F. The Fourth Amendment
24
Finally, appellants contend that the Fourth Amendment was violated by the failure to procure a warrant; alternatively it is suggested that, because international law was violated by the search and seizure, the actions of the Coast Guard were unreasonable and violated the Fourth Amendment.19
25
Although the search and seizure were authorized by 14 U.S.C. § 89(a), this does not establish that the government's conduct, or that law, are not in violation of the Fourth Amendment. Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. The Fourth Amendment prohibits unreasonable searches and seizures and the issuance of warrants but upon probable cause.20 Its applicability is not limited to domestic vessels or to our citizens; once we subject foreign vessels or aliens to criminal prosecution, they are entitled to the equal protection of all our laws, including the Fourth Amendment. United States v. Winter, supra; Noro v. United States, 5 Cir. 1945, 148 F.2d 696, 698, Cert. denied, 1945, 326 U.S. 720, 66 S.Ct. 25, 90 L.Ed. 426; See also Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148; Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Williams v. Blount, D.D.C.1970, 314 F.Supp. 1356.
26
The Fourth Amendment issue may per se involve logical circularity: if there is probable cause for a warrant, the issue of the jurisdiction of a magistrate to issue a warrant for a search in international waters must be considered. See Rule 41(a), Fed.R.Crim.Pro. To assume the magistrate's authority assumes jurisdiction over the vessel; to assume a lack of authority would lead either to the conclusion that no warrant was needed or that it was impossible to make a valid search. For purposes of this opinion, we assume that there was jurisdiction over the vessel, as we have decided, and, Arguendo, that a warrant might validly have been issued. See Berlin Democratic Club v. Rumsfeld, D.D.C.1976, 410 F.Supp. 144, 160.
27
In general, warrantless searches are unlawful even if made with probable cause. South Dakota v. Opperman, 1976, 428 U.S. 364, 96 S.Ct. 3092, 3103, 49 L.Ed.2d 1000; Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. The Constitution requires the "deliberate, impartial judgement of a judicial officer," Opperman, supra, rather than a decision " by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436. See Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Prior determinations by judicial officers ensure that the record existing at the time of the decision is accurately preserved and enhance meaningful review.
28
However, in a variety of exceptional circumstances, a warrant is not prerequisite to a valid search. We have specifically sustained the constitutionality of an inspection, made without a warrant or probable cause pursuant to 14 U.S.C. § 89(a), of United States flag vessels, but implied that this exception is permissible only with respect to domestic vessels because of the special interest of the nation in the conduct and operation of its citizens' vessels.21 United States v. One (1) 43 Foot Sailing Vessel "Winds Will", S.D.Fla.1975, 405 F.Supp. 879, 882, Aff'd per curiam, 5 Cir. 1976, 538 F.2d 694. Additionally, we have indicated that the Coast Guard has authority to search a domestic vessel for safety, documentary purposes and "to look for obvious customs and narcotics violations". United States v. Warren, supra, 578 F.2d at 1065.22
29
Here, the government clearly had probable cause to search.23 Appellants do not contest this, but contend instead that probable cause existed several days before the search; hence there could be no exigent circumstances that would excuse the failure to secure a warrant. See United States v. Robinson, 1976, 174 U.S.App.D.C. 351, 355 n. 9, 533 F.2d 578, 582 n. 9, indicating that with respect to automobiles, probable cause must be accompanied by exigent circumstances or another exception to the warrant requirement.24 Had the Coast Guard vessel been waiting in ambush for the foreign vessel, and seized it Only on the basis of information known to it for a considerable length of time without exigent circumstances, its failure to obtain a prior warrant would be of greater significance. But here the validity of the seizure is not dependent upon the facts known to government agents before the Labrador made its rendezvous with the Catchalot II.
30
The location of the Labrador was uncertain, and it was difficult to determine where it and the Catchalot II would converge. As the facts recited in Rodriguez, supra, show, even the masters of these two vessels had difficulty effecting their tryst. It was impossible for the government agents to know in advance where the vessels would meet. There was no way to await their union without being seen.
31
Upon encountering the vessel, the Coast Guard conveyed a "heave to" message via international signal flags. It was authorized to stop the vessel by 14 U.S.C. § 89, and such a stop was justified by the existence of probable cause.25 The vessel began to flee, and stopped only after cannon and machine gun fire traversed its bow. This attempted flight created exigent circumstances if none existed previously.
32
We need not consider whether a warrantless search would otherwise have been constitutionally infirm; considering the mobility of vessels, it suffices that, as the facts unfolded, the government's conduct was justified by the circumstances present when it occurred.26 Until the search and seizure were made, the failure to obtain the warrant was but an inchoate error without effect on individual rights; at the time of the search and seizure, there was justification for proceeding without a warrant. As the Supreme Court held in Cardwell v. Lewis, 1974, 417 U.S. 583, 595, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325:Exigent circumstances with respect to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. (Citation omitted.) The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation's necessitating prompt police action.27
33
See also United States v. Mitchell, 5 Cir. 1976, 538 F.2d 1230, 1233, 5 Cir. en banc, 1976 cert. denied, 1977, 430 U.S. 945, 97 S.Ct. 1578, 51 L.Ed.2d 792.
34
We assume, Arguendo, that principles of international law were violated by the search and seizure of the vessel, Cf. Restatement (Second) of the Foreign Relations Law of the United States, § 165 (1965). It does not inexorably follow that the government's actions were unreasonable for Fourth Amendment purposes. The principles, if any, that were violated by the government's actions are not intended to secure the rights of privacy but rather of free navigation of international waters. See Article 2, Convention on the High Seas. Whether the search and seizure were Fourth-Amendment-unreasonable must be established by showing that the interests to be served by the Fourth Amendment were violated, and not merely by establishing the violation of general principles of international law.28
35
Accordingly, we affirm the trial court in denying the appellants' motions to suppress.29
III. Other Contentions
36
Appellants were not prejudiced by the prosecution's display of several bales of marijuana which were marked for identification and clearly admissible, but were inadvertently never introduced into evidence. United States v. Bringhurst, 5 Cir. 1972, 468 F.2d 604, 605, Cert. denied, 1973,410 U.S. 938, 93 S.Ct. 1399, 35 L.Ed.2d 603. Compare the display of inadmissible evidence in United States v. Kwitek, 7 Cir. 1970, 433 F.2d 18 and United States v. Reid, 7 Cir. 1969, 410 F.2d 1223; See also United States v. Lawson, 7 Cir. 1974, 507 F.2d 433, Cert. denied, 1975, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762. The nature and identification of the substance was clearly established. Nor was prejudicial error committed by permitting introduction of the parties' joint stipulation to the chemical analysis of the samples notwithstanding the failure to introduce them. The stipulation was properly put before the jury. United States v. Cantu, 5 Cir. 1975, 510 F.2d 1003, 1004. If proof of the nature of the prohibited substance is made beyond reasonable doubt, the substance itself need not be put in evidence. United States v. Crisp, 5 Cir. 1977, 563 F.2d 1242, 1244; United States v. Quesada, 5 Cir. 1975, 512 F.2d 1043, 1045, Cert. denied, 1975, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277, and cases cited therein.
37
Permitting the jury to use a seating chart prepared by the prosecuting attorney,30 showing the names and pictures of the appellants in the order in which they sat during trial, did not constitute prejudicial error. Identity, like fingerprints or blood samples, may be established by testimony. Delegal v. United States, 5 Cir. 1964, 329 F.2d 494, Cert. denied, 1964, 379 U.S. 821, 85 S.Ct. 44, 13 L.Ed.2d 32. The identity of each defendant was properly proved. Had the jury found some of the defendants not guilty, then the accuracy of the chart might have had an impact on their verdict. No defendant was prejudiced by the chart because the jury found all guilty alike.
38
The defendants also contest the sufficiency of the evidence to sustain the verdict. With respect to the conspiracy to import charge, the evidence presented by the prosecution on direct was outlined in Part I. Cadena communicated by radio with the Catchalot II, speaking English. He arranged the meeting of the two vessels. He agreed reluctantly to transfer the cargo in daylight saying that this was the first time he had ever done something like this in the daytime. He demanded a cash payment. The Catchalot II bore the designation West Palm Beach below its name. There was also evidence that the cargo had a characteristic smell of marijuana. The crew participated in the transfer of 150 bales of the cargo. The clandestine nature of the operations made it apparent that the voyage was for some illegal purpose.
39
As part of their defense, Cadena and the members of the crew testified that they did not speak or understand English. As to Cadena, there was, of course, testimony to the contrary. The defense attempted to counter the prosecution case by the testimony of Cadena and one crew member to the effect that neither Cadena nor the crew knew the purpose of the voyage when they started it, and they were compelled at gunpoint to take the contraband aboard at Venezuela. Initially, the crew and Cadena thought the contraband was coffee to be smuggled abroad; the next day, after the gunman left, Cadena and some of the crew examined the cargo and learned that it was not coffee, but they never knew what it was. They never knew the cargo was destined for the United States. But they continued on the voyage north for 45 days to the rendezvous point without apparent compulsion. They knew they were engaged in some illicit operation, but thought they were smuggling an unknown commodity into the Bahamas or Canada.
40
The jury might have considered all of this defense evidence as an inventive effort to fabricate some explanation for the admittedly unlawful activity that would free it from the taint of conspiracy to import marijuana into the United States. The jury might have concluded that the destination of the cargo was obvious from the vessel's course, and the apparent nationality of the Catchalot II and its crew. It might reasonably have concluded that the crew became aware that the cargo was marijuana at least when they assisted in transferring it to the Catchalot II. See United States v. Alvarez, 5 Cir. 1977, 548 F.2d 542, 544 (presence of seven men unloading bales of marijuana on the banks of the Rio Grande established existence of conspiracy).
41
The only evidence that the defendants did not know the purpose of their mission when the voyage commenced, and did not knowingly engage in a conspiracy to import marijuana to the United States came on defense from the lips of Cadena and one crew member. Much of Cadena's testimony was directly contradicted by the testimony of other witnesses for the prosecution. It is evident that none of crew was a master member of the venture, but there was evidence sufficient for the jury to believe that they participated knowingly in it, at least at its terminus.
42
Those who join an ongoing conspiracy are responsible for its full course. United States v. Wilson, 5 Cir. 1974, 500 F.2d 715, 727, Cert. denied, 1975, 420 U.S. 977, 95 S.Ct. 1403, 43 L.Ed.2d 658; United States v. Reynolds, 5 Cir. 1975, 511 F.2d 603. There was sufficient evidence to support the conclusion that, by the time the cargo was transferred to the Catchalot II, the crew knew that there was marijuana aboard and that it was destined for the United States. Once the existence of a conspiracy and the defendant's participation in it are both established, slight evidence of the defendant's knowledge of the scheme may be sufficient to sustain the jury's finding that he or she was a member. E. g., United States v. Evans, 5 Cir. 1978, 572 F.2d 455, 469; United States v. Trevino, 5 Cir. 1977, 556 F.2d 1265, 1268; United States v. Barnard, 5 Cir. 1977, 553 F.2d 389, 393; United States v. Alvarez, 5 Cir. 1977, 548 F.2d 542, 544. See United States v. Dunn, 9 Cir. 1977, 564 F.2d 348, 357 n. 21. The pre-arranged code and other communication between Cadena and the Catchalot II provided proof that there was an agreement between the land conspirators and the conspirators on the vessel although each member may not have known the entire scope of the conspiracy or the identity of the other co-conspirators. United States v. Bolts, supra, 558 F.2d at 328; United States v. Netterville, 5 Cir. 1977, 553 F.2d 903, 912, Cert. denied, 1978, 434 U.S. 1009, 98 S.Ct. 719, 54 L.Ed.2d 752; United States v. Avalos, 5 Cir. 1976, 541 F.2d 1100, 1118, Cert. denied, 1977, 430 U.S. 97, 97 S.Ct. 1656, 52 L.Ed.2d 363. The crew members participated in transferring a cargo they knew to be contraband, and that the jury may have been satisfied they knew to be marijuana, to the Catchalot II, off United States shores. Unlike the situation in United States v. Falcone, 1940, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, these defendants knew of the conspiracy that they facilitated; they supplied an illegal substance, not an article of free commerce. See Direct Sales Co. v. United States, 1943, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674.31
43
Because the crew members, other than Cadena, were accorded concurrent sentences,32 we need not consider the sufficiency of the evidence against them with respect to the conspiracy to possess with intent to distribute. As to Cadena, like Smigowski of the land conspiracy, See United States v. Rodriguez, supra, there was no evidence that he knew of a distribution scheme when he conspired to import the marijuana. Unlike the situation presented by an ongoing enterprise, Cadena had no interest in or awareness of what plans, if any, had been reached to dispose of the marijuana once he reached these shores. Although a conspiracy to import facilitates a conspiracy to distribute, one cannot joint a conspiracy, whether by conduct or verbal accord, unless one knows that it has in fact been concocted. Although we have indicated that there was sufficient evidence from which it might be inferred that Rodriguez and Albernaz had joined distribution plans, from Cadena's perspective, it was not apparent that any accord had yet been reached, either tacitly or otherwise.
44
Because there was insufficient evidence to sustain Cadena's conviction on Count II, that count of the indictment must be dismissed with respect to him.
45
Accordingly, the judgment of the district court is REVERSED in part, AFFIRMED in part, and remanded for further proceedings consistent with this opinion.
46
SKELTON, Senior Judge, concurring in part and dissenting in part:
47
I concur in all of the majority opinion except that portion of part III wherein the convictions of the following members of the crew of the ship Labrador on Count I and Count II were affirmed: Pedro A. Ballesteros Esquebel, Gilberto Yepes Borjas, Cesar Dela Rosa, Narciso Barba Cadena, Daniel Garcia Gomez, Efrain Carreazo Cardales, Pedro Ruiz Arrieta, Jorge Lopez Wagner, Nicanor Rivera Diaz, Alajandro Valle Mantaress, Andres Gomez Ortega and Francisco M. Ceba Bruno.1
48
I cannot agree that the members of the crew were properly convicted on the charges in Counts I and II, because in my opinion, there was no evidence that they had knowledge of the conspiracy to import marijuana into the United States or the conspiracy to distribute it.
49
The first error made by the majority is to treat and consider the crew members and Cadena as if they were one and the same, and to hold the crew members accountable for everything that Cadena did. This was wrong, because there was a vast difference between them. Cadena, who was the captain and boss of the ship and its cargo, was clearly involved in the conspiracy to import marijuana into the United States and the majority properly so held. Whereas, the situation with respect to the crew was entirely different.
50
The crew members were nothing but laborers who were recruited in various places in Colombia, in South America, to do the manual labor on the ship Labrador in transporting coffee and other items from one country to another. On the first trip, the ship went to Panama and picked up televisions, radios, refrigerators and clothing, and transported them to the island of Aruba off the coast of South America. Thereafter, the ship proceeded to a desert area on the north coast of Colombia to a place called La Guajira where the people are very poor and make a living by illegal means such as dealing in contraband. They are called Guajiros, and they rule the area by the use of guns and without any respect for law and order. When the ship stopped in this area, a number of armed Guajiros boarded the ship and, after forcing the crew into a corner of the galley, proceeded to load the ship with bags and bales which they told the crew contained coffee. The Guajiros gave Cadena instructions where to take the cargo.
51
Had the crew known that the cargo was marijuana when it was put aboard, they could not have abandoned the ship even if they had wanted to because to have done so in that desolate area in the face of the armed Guajiros would have been suicidal.
52
After the ship left La Guajira, the crew discovered that the cargo was marijuana. At that time there was nothing they could do about it short of mutiny, and that is very dangerous on any ship and could hardly have been expected of these lowly seamen who had no interest or stake in the marijuana. The ship did not stop at any port during the voyage from La Guajira to the point on the high seas where it met the ship Catchalot II. Accordingly, the crew had no opportunity to leave the Labrador, but found themselves victims of circumstances over which they had no control. Upon meeting the Catchalot, Cadena ordered the crew to transfer a quantity of the marijuana to the Catchalot. Some, but not all, of the crew complied. They were assisted by the crew of the Catchalot. Thereafter, the United States Coast Guard arrived and arrested Cadena and the crew. All of this took place in international waters on the high seas more than 200 miles from the shores of the United States and outside its territorial waters.
53
Cadena and the crew were taken to Florida where they were charged, indicted, tried, and convicted of conspiracy to import marijuana, and conspiracy to distribute it, into and in the United States.
54
At the trial the crew was required to sit at all times in numbered seats in a group according to a chart. None of the prosecuting witnesses knew them except by reference to the chart. It is clear to me that they were convicted as a group contrary to law and not as individuals as required by law and by the charge of the court. In this connection, the court charged the jury:
55
"The jury should give separate consideration, and render separate verdicts with respect to, each defendant, and as to each count. Each defendant is entitled to have his guilt or innocence as to each of the crimes charged determined from his own conduct and from the evidence which applies to him as if he were being tried alone. If the jury finds that a defendant is guilty beyond a reasonable doubt of any one of the crimes charged in the indictment, a verdict of guilty should be returned as to him. The guilt or innocence of any one defendant of any of the crimes charged should not influence the jury's verdicts respecting the other defendant(s). The jury may find any one or more of the defendants guilty or not guilty of the offenses with which they are charged." (Emphasis supplied.)
56
"However, in determining whether a particular defendant was a member of the conspiracy, if any, You may consider only his own acts and statements. He cannot be bound by the acts or declarations of other participants unless and until it is established that a conspiracy existed, and that he was one of its members." (Emphasis supplied.)
57
"It is necessary, however, that the Government prove beyond a reasonable doubt that each defendant was aware of the common purpose, and was a willing participant, with the intent to advance the purpose of the conspiracy. On the other hand, A person who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator. Mere similarity of conduct among various persons, and the fact that they may have associated with each other, and may have assembled together and discussed common aims and interests does not necessarily establish proof of the existence of a conspiracy. Mere knowledge that an offense is being committed, or even physical presence at the commission of a crime is not equivalent to participation in a conspiracy." (Emphasis supplied.)
58
It is obvious that the jury did not follow these instructions when they convicted the members of the crew. As shown by the charge, the prosecution was required to prove beyond a reasonable doubt that each member of the crew, acting Individually and not as a member of the group, had knowledge of the conspiracies and willingly participated in them as shown by his own individual acts, statements and conduct. This the Government wholly failed to do. For instance, let us select one of the crew members at random, namely, Daniel Garcia Gomez, and see if there is any evidence that he had knowledge of the conspiracies and willingly and with intent participated in them. We search in vain through the record and find no such evidence. The same is true with respect to each of the other members of the crew. All that the Government proved was that the members of the crew were present on the ship and some of them transferred some of the marijuana from it to the Catchalot. Even though this furthered the object or purposes of the conspiracies, and even though the crew had knowledge an offense was being committed and they were present at the time and place, these facts, by the express provisions of the court's charge, are not equivalent to participation in the conspiracies if the crew had no knowledge of the conspiracies.
59
Furthermore, the crew was not bound by the acts and declarations of Cadena unless the crew members were members of the conspiracies, and the court so charged the jury, as shown above. Notwithstanding the charge of the court, it is clear that the jury convicted the crew members as a group and not as individuals because of the acts and conduct of Cadena, and because they were present on the ship when the marijuana was off-loaded. This is clearly insufficient to convict the crew of being co-conspirators in the two conspiracies.
60
This case is similar to and its disposition is controlled by United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In that case the defendants sold sugar, yeast and cans to whiskey distillers knowing that they were to be used in the illicit distilling of whiskey. They were indicted and convicted as co-conspirators along with the buyers who had conspired with others to distill spirits in violation of the revenue laws. The evidence did not show that the sellers had knowledge of the conspiracy of the distillers, and the Supreme Court reversed the convictions on the ground that without this knowledge the sellers could not be convicted as conspirators. In this connection the Court said:
61
"The gist of the offense of conspiracy as defined by § 37 of the Criminal Code, 18 USCA § 88, is agreement among the conspirators to commit an offense attended by an act of one or more of the conspirators to effect the object of the conspiracy. Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419; Marino v. United States (CCA 9th) 91 F.2d 691, 113 A.L.R. 975, supra; Troutman v. United States (CCA 10th) 100 F.2d 628; Beland v. United States (CCA 5th) 100 F.2d 289; cf. Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370, supra. Those having no knowledge of the conspiracy are not conspirators, United States v. Hirsch, 100 U.S. 33, 34, 25 L.Ed. 539, 540; Weniger v. United States, (CCA 9th) 47 F.2d 692, 693; And one who without more furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge." (311 U.S. at 210, 61 S.Ct. at 207, 85 L.Ed. at 132) (Emphasis supplied.)
62
The facts in that case were much stronger against the defendants than those against the crew members here, because the defendants there knew that the products they were selling would be used for an illegal purpose, and, as owners, they had a stake in the sales because they received money for them. In our case the crew members did not own nor possess the marijuana, had no control over its disposition, and were not to receive any money for its delivery or sale to anyone. The most that they could be accused of was having the knowledge that somewhere, somehow and someday the marijuana, because of its nature, might be or could be used for an illegal purpose by someone. But even if they had known this as a positive fact, that would not have been enough to convict them of conspiracy, as that was exactly the situation in the Falcone case. Furthermore, if the last paragraph of that opinion is paraphrased to fit our case it would read as follows:
63
"One (a crew member) who without more furnishes supplies (marijuana) to an illicit distiller (user or dealer) Is not guilty of conspiracy even though his sale (furnishing) may have furthered the object of a conspiracy to which the distiller (user or dealer) was a party but of which the supplier (crew members) had no knowledge." (Emphasis supplied.)
64
Consequently, the operation of the ship by the crew members to transport the marijuana and its transfer by some of them from the Labrador to the Catchalot may have furthered the object of the conspiracies, but according to the court's charge and the decision in the Falcone case, since there was no evidence that the crew members had knowledge of the conspiracies, they could not be convicted of conspiracy.
65
The majority acknowledges that this is the law, but has failed to apply it to the crew members.
66
The majority attempts to distinguish this case from the Falcone case by saying that the crew members knew of the conspiracies because they "supplied an illegal substance" citing Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). No law of the United States has been cited, and none called to my attention, that makes marijuana found in a foreign ship on the high seas in international waters more than 200 miles from the shores of the United States and far beyond its territorial waters an "illegal substance." Furthermore, even if the marijuana was an illegal substance under these circumstances, which I doubt, such fact would not prove, without more, that the crew members had knowledge of the conspiracies on which they were convicted.
67
It should be noted that in the Direct Sales Co. case the Supreme Court reaffirmed its holding in the Falcone case when it said:
68
"That decision (Falcone ) comes down merely to this, that one does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally." (319 U.S. at 709, 63 S.Ct. at 1268, 87 L.Ed. at 1680).
69
"Without the knowledge, the intent cannot exist. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128, supra. Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. Ibid. This, because charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning what, in that case, was called a dragnet to draw in all substantive crimes." (319 U.S. at 711, 63 S.Ct. at 1269, 87 L.Ed. at 1681). (Emphasis supplied.)
70
The above quotations from the Direct Sales Co. decision show that the case is actually authority that supports the crew members in the instant case in that it reaffirms the holding of the Court in Falcone that one must have knowledge of a conspiracy before he can become a party to it and this knowledge cannot be supplied by inference drawn from the sale or furnishing of articles knowing they will be used illegally. The knowledge of the conspiracy must be established by evidence that is clear and unequivocal and cannot be made out by piling inference on inference. By these standards, the crew members in the instant case clearly had no knowledge of the conspiracies involved here and could not be guilty of the charges on which they were convicted.2
71
I condemn the importation of marijuana into the United States and its distribution here as much or perhaps more than my brothers, especially in quantities such as are involved here, but I cannot allow my prejudice against this illicit traffic to cause me to approve the convictions of the crew members when there is no evidence that they had knowledge of the conspiracies or that they knowingly or willingly participated in them.
72
The majority holds that although Cadena is guilty as a co-conspirator to import marijuana into this country, the evidence is insufficient to sustain his conviction as a co-conspirator to distribute the marijuana, and orders his conviction under Count II reversed and Count II dismissed as to him. Paradoxically the majority affirms the convictions of the crew members on both counts when there is not a scintilla of evidence that members of the crew knew of the conspiracy to distribute marijuana or participated therein. This is unequal justice under the law and I cannot approve it. The majority says that they need not consider the sufficiency of the evidence against the crew members with respect to the conspiracy to possess with intent to distribute because they got concurrent sentences on both counts. This reasoning is insufficient in my opinion to justify the failure to consider and dispose of this issue, because the convictions of the crew members on Count II are nevertheless convictions that will go against their records, and as such may work hardships on them in the future. In any event, such convictions are wrong.
73
Finally, I would point out that the crew members were Latin American laborers who could neither read, write nor speak English. We can assume that because of this handicap they hardly knew what was going on during the trial. They have been in jail since February 3, 1977, which is a lot of punishment for them, especially when the record shows that the evidence was insufficient to sustain their convictions on either count.
74
I would reverse their convictions and order both counts dismissed as to them. I would affirm the remainder of the judgment of the district court as modified by the majority opinion.
*
Senior Judge of the United States Court of Claims, sitting by designation
1
450 U.N.T.S. 82, 13 U.S.T. 2312, T.I.A.S. No. 5200
2
14 U.S.C. § 2 establishes the Coast Guard as the primary maritime agency charged with the enforcement of federal law at sea and sets forth the primary duties of the Coast Guard. It provides in relevant part:
The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on and under the high seas and waters subject to the jurisdiction of the United States; shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States . . .; shall develop, establish, maintain, and operate, with due regard to the requirements of national defense, aids to maritime navigation, icebreaking facilities, and rescue facilities for the promotion of safety on, under, and over the high seas and waters subject to the jurisdiction of the United States; . . . and shall maintain a state of readiness to function as a specialized service in the Navy in time of war.
3
14 U.S.C. § 89(a) provides in relevant part:
The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested . . .; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture . . . such vessel or such merchandise, or both, shall be seized.
4
For definitions of the three divisions of the water- internal waters, territorial sea and high seas- see Carmichael, At Sea with the Fourth Amendment, 32 U. Miami L. Rev. 51, 56-59 (1977)
5
Article 24 of the Convention on the Territorial Sea and Contiguous Zone, 1958, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205, to which the United States is a party is not raised here. It has been suggested elsewhere, See United States v. Winter, supra, 509 F.2d at 983-984 n.30 that the Convention may limit the term "high seas and waters over which the United States has jurisdiction" to the 12 miles from the coast. See Ficken, Supra, 29 U. Miami L.Rev. at 713-727
6
See also United States v. Pizzarusso, 2 Cir. 1968, 388 F.2d 8, Cert. denied, 1968, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395; Rocha v. United States, 9 Cir. 1961, 288 F.2d 545, Cert. denied, 1961, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241; Restatement (Second) of the Foreign Relations Law of the United States § 33 (1965) (suggesting that a state may prescribe a rule of law attaching legal consequences to conduct outside its territory that merely threatens its security)
7
The appellants were charged in the same indictment with appellants in the companion case, United States v. Rodriguez, 5 Cir. 1978, 585 F.2d 1234. A number of the overt acts charged and proved concerned meetings among the defendants who were tried separately and that occurred on land. The fact that none of the appellants who were tried in this case is charged with an overt act on land merely results from the fortuity of a bifurcated trial and is not decisive
8
21 U.S.C. §§ 801-803, 811, 812-829, 841-851, 871-886, 901-904, 951-966
9
A customs enforcement area created under 19 U.S.C. §§ 1701, 1703-11 may extend up to 62 miles outward from the coast and laterally up to 100 miles in each direction, thus creating a rectangular enforcement zone of 200 miles by 62 miles
10
19 U.S.C. § 1581 states in relevant part:
(a) Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, (19 U.S.C. §§ 70, 1401 et seq., 1581 et seq., 1701 et seq.; 46 U.S.C. §§ 60 et seq., 277 et seq.;) or any other authorized place without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.
(b) Officers of the Department of Commerce (Treasury) and other persons authorized by such department may go on board of any vessel at any place in the United States or within the customs waters and hail, stop, and board such vessel in the enforcement of the navigation laws . . ..
(e) If upon the examination of any vessel or vehicle it shall appear that a breach of the laws of the United States is being or has been committed so as to render such vessel or vehicle, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel or vehicle, liable to forfeiture or to secure any fine or penalty, the same shall be seized and any person who has engaged in such breach shall be arrested.
(g) Any vessel, within or without the customs waters, from which any merchandise is being, or has been, unlawfully introduced into the United States by means of any boat belonging to, or owned, controlled, or managed in common with, said vessel, shall be deemed to be employed within the United States and, as such, subject to the provisions of this section.
11
But see note 22 Infra
12
We need not consider whether Congress intended to reach a conspiracy involving only persons physically outside the United States and having as its objection only the commission of acts outside its territory. Obviously, we do not touch upon whether the statute would apply to acts committed by non-resident aliens within their own states, or whether there is authority to arrest citizens or non-resident aliens while they reside in a foreign country
13
This rule is subject to an exception in cases of outrageous governmental conduct involving emotional and physical brutality, United States v. Toscanino, 2 Cir. 1974, 500 F.2d 267
14
The preamble to the Convention on the High Seas states:
The States Parties to this Convention desiring to codify the rules of international law relating to the high seas recognizing that the United Nations Conference on the Law of the Sea, held at Geneva from 24 February to 27 April 1958, adopted the following provisions as generally declaratory of established principles of international law.
15
Nationless ships are not afforded protection under the treaty, See Article 6, C.H.S.; and ships are deemed to have the "nationality of the state whose flag they are Entitled to fly." Article 5, C.H.S. (emphasis added). See Restatement (Second) of The Foreign Relations Law of the United States § 28 and Comment (b) (1965). See also Oppenheim's International Law 546 (7th ed. 1948); Molvan v. Attorney General for Palestine, 1948 Law Reports (A.C.) 351. There was testimony by the Coast Guard operation officer that the law does not require the flying of flags at night (when the ship was arrested). Although the flags of several nations were found on board, the Coast Guard officer testified that it is customary for a ship to fly the flag of a nation as it enters that nation's port. Hence, we may not conclude as a matter of law that the vessel was a nationless one
16
The government concedes that for these purposes, the Coast Guard vessel is a warship. See Maul v. United States, 1927, 274 U.S. 501, 512-531, 47 S.Ct. 735, 739-46, 71 L.Ed. 1171 (Brandeis, J., concurring); Carmichael, Supra, 32 U. Miami L.Rev. at 52 n. 6
17
Cook involved the Treaty of May 22, 1924, 43 Stat. 1761, and § 581 of the Tariff Act of 1922, 19 U.S.C. § 1581; its reasoning is equally applicable here
18
Article 34(2) of the Treaty provides:
For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
19
For a useful examination of the Fourth Amendment jurisprudence respecting automobile searches, administrative searches, and border searches, and its applicability to searches at sea, see Carmichael, Supra, 32 U.Miami L.Rev. at 81-90
20
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
21
Because the search did not take place in territorial waters, and our borders were not crossed, the jurisprudence respecting border searches is inapplicable. See United States v. Stanley, 9 Cir. 1976, 545 F.2d 661; United States v. Brennan, 5 Cir. 1976, 538 F.2d 711, Cert. denied, 1977, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538; United States v. Tilton, 9 Cir. 1976, 534 F.2d 1363; United States v. Jones, 9 Cir. 1975, 528 F.2d 303, Cert. denied, 1976, 425 U.S. 960, 96 S.Ct. 1745, 48 L.Ed.2d 206; United States v. Ingham, 5 Cir. 1974, 502 F.2d 1287, Cert. denied, 1975, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777
22
Judge Fay dissented in the en banc decision in Warren, but reluctantly considers the majority views binding upon us
23
Although Section 89(a) provides authority for the search of a foreign vessel, there is no reason for the Coast Guard to conduct safety or documentation inspections of foreign vessels on the high seas. If we assume both that the Fourth Amendment protects non-resident aliens on a foreign vessel and that, if it does, they can invoke the exclusionary rule, the existence of probable cause to believe that a crime subject to the operation of the laws of the United States has been, or is being, committed would justify the search of a foreign vessel on the high seas. This standard is satisfied here. We need not consider whether it is permissible to conduct a safety or documentation search of a foreign vessel in domestic waters, nor need we consider the standards governing safety and documentary inspections of domestic vessels either in domestic waters or upon the high seas
24
Under Texas v. White, 1975, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209, if a warrantless search of a vehicle is permissible at the time of detention, it remains permissible notwithstanding an intervening opportunity to procure a warrant. As to the analogy of automobile searches to vessel searches, see Carmichael, Supra, 32 U. Miami L.Rev. at 81-83
25
An arrest without a warrant may be made if the arresting officer had probable cause to believe that the arrestee has or is committing a felony. Draper v. United States, 1959, 358 U.S. 307, 314, 79 S.Ct. 329, 333, 3 L.Ed.2d 327
26
The full search was too broad in scope to be justified as a search incident to arrest which must be limited to the area from which the arrestee might obtain a weapon or something that could be used as evidence against him. Chimel v. California, 1969, 395 U.S. 752, 768, 89 S.Ct. 2034, 2043, 23 L.Ed.2d 685; See also United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427
27
We intimate no view with respect to whether we would apply the exclusionary rule in similar circumstances if the object of the search were one in which the privacy interest is stronger such as in the search of a home or of personal effects. See South Dakota v. Opperman, supra, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000, 1004 (". . . warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not"). The search did not involve private living quarters or personal belongings, but common areas of the ship
28
For example, if an officer violates the federal "knock and announce" statute, 18 U.S.C. § 3109, in conducting a search of a home, the search is unreasonable and its fruits are inadmissible, Sabbath v. United States, 1968, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828, because the statute is designed to serve Fourth Amendment interests; if the officer violated a speeding statute, or a regulation with force of law prohibiting use of a particular firearm in making the arrest, suppression is not warranted because the conduct, although violative of law, is not unreasonable for Fourth Amendment purposes
29
There is no suggestion that the arrests and appellants' treatment after the arrests did not satisfy international standards of procedural justice. See Restatement (Second) of the Foreign Relations Law of the United States, § 179 (1965)
30
Appellant Cadena prepared a chart while he was in custody. This was not submitted to the jury but was used to verify the accuracy of the prosecutor's chart
31
Our brother, dissenting in part, sees fit to recite, as if it were proved fact, the testimony of Cadena and one crew member offered by the defense. The jury did not see fit to credit this, and they were not obliged to. Our opinion is based on the sufficiency of the evidence offered by the government, construed, as we are required to construe it, most favorable to the government. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680
32
Appellant Gilberto Yepes Borja was sentenced to concurrent terms of imprisonment of four years; appellant Cadena was sentenced to consecutive terms of imprisonment of three years; the remaining eleven appellants were sentenced to concurrent terms of imprisonment of two years. In addition, each appellant received a special parole term of two years on each count, to run concurrently except as to appellant Cadena
1
I do not consider Nino Rinsi Cadena to be a member of the crew. He was actually the captain of the ship. Accordingly, when reference is made to the Ship's "crew" or to the "crew members" he is not included. He will be referred to as Cadena
2
The Supreme Court distinguished the Falcone case from the Direct Sales Co. case on the facts by pointing out that in Falcone there was no conspiracy between the seller and the buyer as the conspiracy was between the buyer and others to make illegal whiskey of which conspiracy the seller had no knowledge. Whereas, in Direct Sales Co. the conspiracy existed between the seller and the buyer themselves and consequently the seller had knowledge of it. In any event, both cases hold that before a person can be convicted of conspiracy he must have knowledge on it. Therefore, the reliance of the majority on Direct Sales Co. is misplaced
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Court of Appeals
of the State of Georgia
ATLANTA,____________________
September 02, 2015
The Court of Appeals hereby passes the following order:
A16E0003. IN THE INTEREST OF J. T., E. T., AND L. T., CHILDREN.
In this termination of parental rights action, the father of three minor children
has filed a “Motion for Leave to File an Out of Time Discretionary Appeal” from the
trial court’s denial of his motion for new trial. He asserts that his trial counsel did not
receive “a copy of said Order until well after the time for a discretionary appeal had
elapsed.”
When a trial court fails to timely provide an order to an aggrieved party, the
remedy is for that party to file a motion to have the order vacated and re-entered to
begin a new time for filing an appeal. See Cambron v. Canal Ins. Co., 246 Ga. 147,
148 (1) (269 SE2d 426) (1980). Such a motion is authorized by OCGA § 9-11-60 (g).
See id.; Crawford v. Kroger Co., 183 Ga. App. 836 (360 SE2d 274) (1987). And
because it is not made pursuant to OCGA § 9-11-60 (d), no application for
discretionary appeal is required to appeal a trial court’s order denying such a motion.
See id. Accordingly, the father’s motion in this court requesting leave to file an out-
of-time discretionary application is hereby DISMISSED.
Court of Appeals of the State of Georgia
09/02/2015
Clerk’s Office, Atlanta,____________________
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.
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578 F.3d 696 (2009)
Rhoda HOPGOOD, on behalf of LG, a minor, Plaintiff-Appellant,
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
No. 08-2491.
United States Court of Appeals, Seventh Circuit.
Argued March 30, 2009.
Decided August 25, 2009.
*697 Kristen Anne Kobayashi, (argued), Law Offices of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff-Appellant.
Julie L. Bentz, James B. Geren (argued), Social Security Administration, Office of the Regional Chief Counsel, Region V, Chicago, IL, for Defendant-Appellee.
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge.
The mother of LG, a minor, applied for Supplemental Security Income ("SSI") after LG's diagnosis with Attention Deficit Hyperactivity Disorder ("ADHD"). Following a hearing, the administrative law judge ("ALJ") denied benefits. In determining that LG was not disabled within the meaning of the Social Security Act and ineligible for SSI payments, the ALJ made conclusory statements that contradicted the evidence presented and failed to address portions of medical and school records that were favorable to LG. As a result, we conclude that the ALJ's decision was not supported by substantial evidence, and we remand for further proceedings.
I. BACKGROUND
Rhoda Hopgood filed an application in June 2004 for SSI on behalf of LG, her minor son, alleging disability due to ADHD. The SSI application was initially denied, and Ms. Hopgood sought a hearing. Testimony at the August 15, 2006 hearing and other evidence established that LG was born in 1990 and was diagnosed in 1997 with ADHD, which resulted in academic and behavioral problems.[1]*698 LG, who was 15 at the time of the hearing, testified that he sometimes forgot to brush his hair and that his mother had to tell him to take a shower and brush his teeth. He also testified that he had difficulties in school and did not understand some of the work despite help from his teacher. LG stated that he sometimes walked out of his classroom, wandered the halls, and received many suspensions and detentions from school for fighting. Finally, he mentioned that he fought with his sister, who was 12 at the time, broke drawers and hit doors when he became angry, and explained that the medication he took made him sleepy.
Ms. Hopgood testified that in the previous school year LG frequently had been suspended or had to serve detention for being disrespectful to teachers, fighting, and walking the halls. She further explained that in addition to having to remind LG daily to bathe and brush his teeth and hair, she also had to tell him to complete his weekly chores and that as a result LG talked back to her. She testified that police were called once when LG and his friends got into a fight with a group of other boys. As a result, LG received court-ordered community service, and he completed his service by performing maintenance at the Salvation Army where Ms. Hopgood worked. She also said that LG failed the fourth grade and that in the previous school year had brought homework home only two or three times. Ms. Hopgood testified that she always asked him about his homework and that when LG's explanations did not pan out, she monitored a progress report system created by his teachers until LG suddenly stopped bringing the reports home. Ms. Hopgood explained that LG had been taking Risperdal for more than a year, but that he remained off task at school until she brought this to the attention of his psychiatrist, who then increased his dosage to twice a day. She further stated that the Adderall LG had previously been prescribed made him act "like a zombie" he would just sit in his room, watch television and sleep. Ms. Hopgood explained that LG was incapable of riding a city bus or going to the mall by himself.
Following the hearing, the ALJ issued a decision finding that LG suffered from ADHD, but was not disabled because his impairments did not meet, or medically or functionally equal, the criteria required under the Social Security Administration's Listing of Impairments. The ALJ also found the testimony of Ms. Hopgood to be "generally credible," but tending to show that LG was not disabled. The Appeals Council denied review, leaving the ALJ decision as the final one of the Commissioner of Social Security. Ms. Hopgood sought judicial review pursuant to 42 U.S.C. § 405(g), and a magistrate judge, presiding by consent, upheld the denial of benefits. This appeal follows.
II. ANALYSIS
A. The ALJ's determination was not supported by substantial evidence.
We reverse the Commissioner's final decision only if it is not supported by substantial evidence or is based on a legal error. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.2009). "An ALJ's findings are supported by substantial evidence if the ALJ identifies supporting evidence in the record and builds a logical bridge from that evidence to the conclusion." Giles ex rel. Giles v. Astrue, 483 F.3d 483, 486 (7th Cir.2007). But if the decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review," a remand is required. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.2002).
We begin our discussion with the ALJ's finding that LG's impairment is not functionally equivalent to the listing for *699 ADHD. See 20 C.F.R. pt. 404, subpt. P, App. 1, § 112.11. A child qualifies as disabled and therefore may be eligible for SSI if he has a "medically determinable physical or mental impairment, which results in marked and severe functional limitations" and the impairment "has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 1382c(a)(3)(C)(i). Whether a child meets this definition requires a three-step analysis. 20 C.F.R. § 416.924(a). First, if the child is engaged in substantial gainful activity, the Social Security Administration ("SSA") will deny the claim. Id. Second, if the child does not have a severe medical impairment or combination of impairments, then he is not disabled and his claim will be denied. Id. Third, the child's impairments must meet a duration requirement and must meet, medically equal or functionally equal, the severity of any of the Listings of Impairments contained in 20 C.F.R. pt. 404, subpt. P, App. 1. Id.
At issue is whether LG's impairments functionally equaled the listings. To determine if an impairment is functionally equivalent to a listing, an ALJ analyzes the severity of the impairment in six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(1). To functionally equal the listings, the ALJ must find an "extreme" limitation in one category or a "marked" limitation in two categories. 20 C.F.R. § 416.926a(a). A "marked" limitation exists when the impairment seriously interferes with the child's "ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(i). An "extreme" limitation exists when a child's "impairment interferes very seriously with [his] ability to independently initiate, sustain or complete activities." 20 C.F.R. § 416.926a(e)(3)(I) (emphasis added).
The ALJ found that LG established the first two steps of the three-part inquiry because he had not engaged in substantial gainful activity and because he suffers from ADHD. The ALJ then determined that LG had less than "marked" limitations in acquiring and using information, attending and completing tasks, and interacting and relating with others. The ALJ found no limitations in the other categories. Only the three domains in which the ALJ found less than marked limitations are at issue in this appeal.
1. Acquiring and using information
Acquiring and using information refers to how well a child acquires or learns information and how well he uses the information he has learned. 20 C.F.R. § 416.926a(g). Adolescents between the ages of 12 and 18 should be able to demonstrate what they have learned in academic assignments and be able to use what they have learned in daily living situations without assistance (e.g., going to the store and using public transportation). 20 C.F.R. § 416.926a(g)(2)(v). They should be able to "comprehend and express both simple and complex ideas" and use "complex language in learning and daily living situations." Id. They should also learn to apply these skills practically in order to enter the workplace after finishing school. Id.
The ALJ found LG had less than marked limitations in this domain based on statements from his teachers and the conclusions of four of LG's doctors, but the ALJ did not articulate what statements or reports supported this finding. The ALJ acknowledged LG's placement in special education and noted his level of academic knowledge. The ALJ stated LG's grades improved to As, Bs, Cs and Ds in his Individualized Education Program *700 ("IEP"). The ALJ also noted a February 1, 2006 IEP report, which stated LG had difficulties beginning and completing assignments, but was capable when he remained focused and on task. Finally, the ALJ mentioned that an eighth grade teacher reported LG required additional explanation and examples to grasp new concepts.
Ms. Hopgood argues that the ALJ did not explain what in the teachers' reports supported the ALJ's findings and that the ALJ failed to discuss several portions of the teachers' reports that were favorable to LG. Specifically, the ALJ did not address the report of Ms. Johnson, LG's eighth grade special education teacher, that indicated "obvious" or "serious" problems in six of the ten activities listed on an SSA form for acquiring and using information. The ALJ also did not address the report of Ms. Mathew, another of LG's special education teachers, explaining that he had "obvious" problems in all areas related to this domain. Ms. Hopgood criticizes the ALJ for finding LG improved his grades, when under his IEP he was required to turn in only 60% of the assignments given to other children in his special education class. Ms. Hopgood further argues that the ALJ failed to explain his reliance on the doctors' reports and that he ignored portions of these reports favorable to LG, including, for example, Dr. Polczinki's opinion that LG's medications significantly impacted his ability to function. Finally, the ALJ failed to address the testimony of Ms. Hopgood, who testified that LG could not catch a city bus or go to the store alone. The Commissioner counters that the ALJ was not required to describe all of the evidence in detail, that he did not need to explain the teachers' reports because they were consistent with his findings, and that the ALJ indirectly took the effects of LG's medications into account because the evaluations occurred when he was on medication.[2]
Several aspects of the ALJ's analysis in this domain strike us as deficient. Specifically, the ALJ failed to explain why he did not credit portions of the record that were favorable to LG, including the teachers' reports that found LG had serious or obvious problems in this domain. See Murphy v. Astrue, 496 F.3d 630, 634-35 (7th Cir. 2007). The ALJ's conclusion that LG's grades improved to As, Bs, Cs and Ds, did not take into account that LG's IEP required him to turn in only 60% of his assignments, which shows that teachers recognized LG's limitations. Moreover, the ALJ's assessment of Ms. Hopgood's testimony is less than complete. The ALJ found Ms. Hopgood to be "generally credible," but did not explain why he did not find her testimony regarding LG's limited functioning in this domain persuasive. Ms. Hopgood testified about LG's inability to use public transportation or go the store alonea skill set specifically addressed in the regulation related to this domain. See Giles, 483 F.3d at 489 ("If ... [claimant's] testimony was credible, the ALJ was required to explain why the testimony did not support a finding that [the child] was markedly limited in attending and completing tasks."). Furthermore, the ALJ did not explain its reason for finding Ms. Hopgood generally credible, as required for the benefit of subsequent reviewers. See id. at 488.
2. Attending and completing tasks
Attending and completing tasks refers to how well the child is able to focus and maintain his attention, and how well he *701 begins, carries through, and finishes his activities, including the pace at which he performs activities and the ease with which he changes them. 20 C.F.R. § 416.926a(h). Adolescents should be able to pay attention to increasingly longer presentations and discussions, maintain concentration while reading textbooks, independently plan and complete long-range academic projects, organize materials and plan time to complete school assignments. 20 C.F.R. § 416.926a(h)(2)(v). They should also be able to maintain attention on a task for extended periods of time and not be unduly distracted by peers or unduly distracting to them in a school or work setting. Id.
The ALJ reasoned that he accepted LG's testimony that he needed to be in a collaborative environment to stay on task. The ALJ acknowledged that LG struggled in reading, math, and writing. But the ALJ found that LG's academic deficiencies were likely due to his frequent absences and failure to complete assignments outside the classroom. He noted that teachers described LG's lack of interest and failure to participate in schoolwork. The ALJ noted LG's A, B and C grades in the previous school year. The ALJ accepted LG's ADHD diagnosis and concluded that any limitations he had were based on his absences, incomplete homework, volitional choices on his part and lack of parental supervision and involvement.
Ms. Hopgood argues that the ALJ did not point to any evidence that she was a contributing factor in LG's problems and that the ALJ improperly blamed LG for his difficulties by attributing them to volitional choices. Ms. Hopgood further contends the ALJ ignored favorable portions of doctors' and teachers' reports relating to this domain. Finally, she argues that LG never made the statement that he needed to work in a collaborative environment to stay on task. The Commissioner maintains that teachers' and doctors' reports are consistent with the ALJ's findings because none said LG had a "serious" limitation in this domain, and the teachers stated that he missed class and frequently failed to do homework. The government also notes that Ms. Hopgood testified that sometimes LG did not just forget to complete tasks, he refused to do them.
We find Ms. Hopgood's arguments relating to this domain to be persuasive. Even if we accept the Commissioner's argument that the teachers' and doctors' reports do not conclusively establish marked or extreme limitations, which in and of itself would be difficult to do since the ALJ failed to address these reports with specificity, we are troubled by the ALJ's conclusion that LG's problems are a result of volitional choices or lack of parental involvement. Indeed, the record shows the contrary to be true. School reports indicate that Ms. Hopgood was involved with LG's teachers and informed the school that she was concerned about his academics and behavior problems. Ms. Hopgood requested that he receive extra help at school in order to make academic progress. She also asked that the school start a daily behavior sheet so she could monitor LG, and she developed a system to reward LG for good behavior. Moreover, Ms. Hopgood attended family therapy sessions with LG at Shorehaven Behavioral Health. The ALJ failed to point to any evidence supporting the theory that Ms. Hopgood was a contributing factor in LG's problems and in fact ignored evidence that she made efforts to assist him. See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.2003) ("There is little evidence in the record regarding the origin of [claimant's] low IQ scores and no evidence that an enriched school environment would remedy the situation. This assessment is the result of a hunch and an ALJ may not rely on a hunch.").
*702 Furthermore, we are troubled by the ALJ's conclusion that LG's problems were a result of volitional choices. The ALJ did not point to any medical evidence supporting his finding that LG's difficulties were of his own doing, which flies in the face of our instruction that determinations must be based on testimony and medical evidence in the record. See Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996) ("ALJs must not succumb to the temptation to play doctor and make their own independent medical findings."). The record demonstrates that LG could not control himself, which is precisely why doctors prescribed numerous medications to him and why his IEP required him to complete only 60% of the assignments given to his classmates. These special accommodations indicate that teachers and medical professionals do not believe LG's problems occur by choice. As a result, we reject the ALJ's line of thinking that LG is to blame for his difficulties, which are textbook symptoms of ADHD. We further note that, like Ms. Hopgood, we failed to find any reference in LG's testimony that he needed to work in a collaborative setting in order to remain on task.
3. Interacting and relating with others
Interacting and relating with others refers to how well the child initiates and sustains emotional connections with others, cooperates with others, complies with rules, responds to criticism, and respects and takes care of the possessions of others. 20 C.F.R. § 416.926a(i). An adolescent should be able to initiate and develop friendships with same-aged children, relate appropriately to other children and adults, and begin to be able to solve conflicts between himself and peers or family members or other adults. 20 C.F.R. § 416.926a(i)(2)(v). The child should be able to express his feelings and follow social rules for interaction and conversation. Id.
The ALJ found LG's ability to interact socially was not "completely impaired." The ALJ found that LG socializes with friends in the neighborhood and gets along relatively well with his family, save for arguments with his sister over use of the phone. The ALJ noted that Ms. Hopgood testified that there were no significant problems with his behavior except a tendency to become quickly grumpy, moody, or rebellious. The ALJ acknowledged that LG's behavior escalated in April 2006, evidenced by several suspensions, but that it improved with medication according to Dr. Semon. The ALJ also noted LG leaves class and wanders the halls, but that his eighth grade teachers said he is a good worker and can understand concepts when focused. Finally, the ALJ stated records showed LG could behave acceptably, but that he often was not motivated to do so.
Ms. Hopgood asserts that the ALJ's conclusion that he was not "completely impaired" misstates the regulations, which require only a serious interference. Ms. Hopgood also contends that the ALJ blamed LG for his problems when he found LG was not "motivated" to comport his behavior. Ms. Hopgood finally argues the ALJ ignored favorable portions of doctors' and teachers' reports relating to this domain and ignored Ms. Hopgood's testimony about his behavior problems that resulted in suspensions and a call to police. The Commissioner counters that the ALJ aptly described LG, and not the legal standard, as not "completely impaired." The Commissioner also maintains that the ALJ did not have to fully discuss teachers' and doctors' reports, because his findings were consistent with the reports that indicated LG had only "slight" or "obvious" problems in this domain.
*703 Ms. Hopgood is correct that the regulations do not require a complete impairment, only serious interference, to qualify as a marked limitation, see 20 C.F.R. § 416.926a(e)(2)(i), but we are not convinced that the ALJ's statement referred to the regulations themselves and not merely his analysis of LG's limitations. Although the ALJ stated LG's behavior could be different if he was motivated, he did not point to any evidence demonstrating this. In fact, LG had been prescribed medication since 2004, but even the medication did not ameliorate his behavior as shown through his continued fights and multiple suspensions. The ALJ's conclusion that eighth grade teachers reported that LG could be a good worker if he remained focused ignores the evidence that shows LG could not focus because of his ADHD. For example, in the same report to which the ALJ referred, the teacher wrote that LG's disability affected his involvement and progress with the curriculum and that his attention span, inability to focus and impulsivity interferes with his learning. The ALJ failed to explain how this and other favorable portions of the record did not persuade him that LG was disabled. See Giles, 483 F.3d at 488. Although the ALJ pointed to Dr. Semon's opinion that LG was better on medication, the ALJ did not address a portion of Dr. Semon's notes where he stated that Adderall was not helpful and that LG continued to be combative with his younger sister. Finally, the ALJ failed to address reports favorable to a finding of disability, including an October 28, 2004 report from one of LG's special education teachers, Mr. Eckman. Contrary to the Commissioner's assertion that teachers found LG's limitations in this domain to be "slight" or "obvious," Mr. Eckman determined that LG had a "very serious" problem with respecting/obeying adults in authority on an hourly basis. He further reported that LG had a "serious" problem in following rules on an hourly basis and in using language appropriate to the situation and listener on a daily basis. The ALJ erred when he failed to explain why he disregarded this pertinent evidence. Murphy, 496 F.3d at 634-35.
III. CONCLUSION
For the reasons explained above, we VACATE the decision of the district court, and REMAND the case to the Social Security Administration for further proceedings consistent with this opinion.
NOTES
[1] We refer to LG's medical and school records where relevant in the analysis section of the opinion.
[2] We decline to address the Commissioner's final argument that the teachers' reports stating LG had "obvious" problems equated to less than marked limitations because the ALJ never offered this rationalization in making his determination.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-4091
___________
Reginald A. Quinones, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
DaimlerChrysler Corporation, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: January 4, 2007
Filed: January 18, 2007
___________
Before SMITH, MAGILL, and BENTON, Circuit Judges.
___________
PER CURIAM.
Reginald A. Quinones appeals the district court’s1 Fed. R. Civ. P. 12(b)(6)
dismissal of his employment-discrimination action against his former employer,
DaimlerChrysler Corporation. Upon de novo review, see Springdale Educ. Ass’n v.
Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998), we conclude that the district
court’s dismissal was appropriate. Accordingly, we affirm. See 8th Cir. R. 47B.
1
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
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807 F.Supp. 487 (1992)
John C. BLEAVINS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 90-3178.
United States District Court, C.D. Illinois, Springfield Division.
November 16, 1992.
John C. Bleavins, Decatur, IL, for plaintiff.
James A. Lewis, Asst. U.S. Atty., Springfield, IL, David C. Hickman, Trial Atty., Tax Div., Washington, DC, for defendant.
*488 OPINION
RICHARD MILLS, District Judge:
The Government went after Bleavins to collect taxes.
This lawsuit is a direct result of that lawful effort.
The Government is entitled to summary judgment in its favor.
I. Facts
In his complaint, Plaintiff claims that the United States Internal Revenue Service (IRS) willfully violated the Internal Revenue Code, 26 U.S.C. § 6103, by disclosing tax return information through the filing of a federal tax lien and the issuance of various notices of levy. Therefore, Bleavins argues, he is eligible to receive damages for unlawful disclosure under 26 U.S.C. § 7431. (He also asserts that the IRS did not act in good faith because it was aware, through letters from Plaintiff, that the tax laws did not apply to him.)
II. Summary Judgment
Under Fed.R.Civ.P. 56(c), summary judgment should be entered "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 a judgment as a matter of law." Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). Nevertheless, the rule is also well established that the mere existence of some factual dispute will not frustrate an otherwise proper summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Thus, the "preliminary question for the judge [is] not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it upon whom the onus of proof is imposed." Id. at 251, 106 S.Ct. at 2511 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448, 20 L.Ed. 867 (1872)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Applying this standard, the Court now turns to the case at bar.
III. Analysis
First, we will consider the IRS' motion for summary judgment. Before damages are available under § 7431, a violation of § 6103 must be shown. The IRS maintains that it followed federal law when filing a lien against Plaintiff's property and the levy against Plaintiff's income. The IRS notes § 6103(k)(6) which states:
An Internal Revenue officer or employee may, in connection with his official duties relating to any audit, collection activity, or civil or criminal tax investigation ... disclose return information to the extent that such disclosure is necessary in obtaining information ... or with respect to the enforcement of any other provision of this title.
(Emphasis added). In other words, the IRS may disclose information when attempting to collect taxes. This is precisely what the IRS did. Maisano v. United States, 908 F.2d 408, 410 (9th Cir.1990).
When filing a levy under § 6331, the IRS is required to provide the taxpayer with a demand for payment and notification ten days prior to the levy. IRS Officer Alexander gave the notification by registered mail in compliance with § 6331(d). According to Officer Alexander, Bleavins refused to pay the taxes that the IRS determined he owed, he further refused to provide any documentation to support his claim that he was not required to file income tax returns, and he stated that his financial information was none of the IRS officer's business.
Assuming Bleavins believes this, he is mistaken. Not only does the IRS have the right to such information, it is Bleavins' responsibility to provide the information, if he wishes to clear up what he claims is IRS error. Otherwise, he is in no position to complain of that error. A certified copy of a Certificate of Assessments and Payments is presumptively accurate and Plaintiff has the burden of discrediting *489 it. Gold Emporium v. Commissioner of Internal Revenue, 910 F.2d 1374, 1378 (7th Cir.1990); Ruth v. United States, 823 F.2d 1091, 1093 (7th Cir.1987); United States v. Pomponio, 635 F.2d 293, 296 (4th Cir.1980); Psaty v. United States, 442 F.2d 1154, 1159-60 (3d Cir.1971). Regardless, § 7431 does not apply to disputed merits of an assessment; it only addresses civil damages for disclosure violations of § 6103.
The IRS also asserts an affirmative defense that it acted in good faith by following departmental regulations. Similarly, however, it is unnecessary to ask the good faith question under § 7431, because this Court has determined that there was no violation of § 6103. Maisano at 410 n. 1.
Second, we turn to Plaintiff's motion to strike. Plaintiff states that the Certificates of Assessments and Payments are not valid, prove nothing, and should not be stricken because they are not authenticated by the custodian of individual tax files located in West Virginia. Plaintiff refers to United States v. Buford, 889 F.2d 1406 (5th Cir.1989), which is clearly distinguishable because, as a criminal case, the government has the burden of proof. More importantly, Plaintiff incorrectly asserts that a certificate must be a non-computer generated tax file original in order to be proof of a tax debt. United States v. Chila, 871 F.2d 1015, 1017-18 (11th Cir.), cert. denied, 493 U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501 (1989); United States v. Dixon, 672 F.Supp. 503, 505 (M.D.Ala. 1987), aff'd per curiam, 849 F.2d 1478 (11th Cir.1988).
Plaintiff also claims error is evidenced by the certificates showing his current address and not his address from when the tax burden accrued. In doing so, Plaintiff ignored the fact that the certificates were printed and signed by a manager of certification at the time they were sent in January 1991, when Plaintiff did live at his current address.
Third, Plaintiff says the IRS cannot use an unsworn affidavit to support its claim that the Plaintiff owes taxes. On the contrary, 28 U.S.C. § 1746 states that an unsworn declaration is admissible with the full force and effect of a sworn affidavit if it is signed under the penalty of perjury. Officer Alexander's perjury statement in his declaration uses the exact wording suggested by the statute.
Plaintiff also maintains that Officer Alexander can attest only to what he saw on a computer screen, and "[w]hat a computer says is blatant hearsay!" While, no doubt there are times when computer operators might share Plaintiff's distaste for the machines, in the eyes of the law, official computer generated records of tax information are accepted as completely valid representations of tax liability. Fed. R.Evid. 803(8); see Chila, 871 F.2d at 1017-18; Dixon, 672 F.Supp. at 505; Hughes v. United States, 953 F.2d 531, 540 (9th Cir. 1992); United States v. Farris, 517 F.2d 226, 227-29 (7th Cir.), cert. denied, 423 U.S. 892, 96 S.Ct. 189, 46 L.Ed.2d 123 (1975).
Finally, we briefly address Plaintiff's motion for summary judgment. The arguments he raises are refuted in our discussion of the other two motions. But, in essence, Plaintiff claims that the IRS' evidence is hearsay which provides no factual or affirmative defenses to Plaintiff's complaint. Again, this Court need not reach any conclusion regarding affirmative defenses, because the IRS has provided ample evidence to show full compliance with § 6103(k)(6), and Plaintiff has provided absolutely nothing with which to sustain his complaint.
IV. Conclusion
Ergo, for the reasons noted above, Defendant's motion for summary judgment is ALLOWED.
Plaintiff's motion to strike is DENIED.
Plaintiff's motion for summary judgment is DENIED.
This case is DISMISSED WITH PREJUDICE.
Case CLOSED.
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
LARRY DEWAIN BRAND, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-501
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed November 10, 2014.
An appeal from the Circuit Court for Alachua County.
Phillip A. Pena, Judge.
Nancy A. Daniels, Public Defender, Tallahassee, and Diana L. Johnson of Johnson
and Lufrano, P.A., Jacksonville, for Appellant.
Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
VAN NORTWICK, RAY, and OSTERHAUS, JJ., CONCUR.
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258 B.R. 765 (2001)
In re EYECARE OF SO. CALIFORNIA, A Medical Group, Inc., Debtor.
Eyecare of So. California, A Medical Group, Inc., Plaintiff,
v.
Paul T. Urrea, et al., Defendants.
Bankruptcy No. LA 00-28045-SB. Adversary No. 00-02134-SB.
United States Bankruptcy Court, C.D. California.
January 25, 2001.
*766 *767 Law Offices of Stephen W, Johnson, Santa Ana.
Doreen Mercado, Esq., Ricker & Mercado, Whittier.
James R. DiFrank, Esq., Whittier.
Robin Prindergast, Esq., Los Angeles.
Christopher L. Blank, Esq., Newport, Beach.
OPINION ON REMOVAL JURISDICTION
SAMUEL L. BUFFORD, Bankruptcy Judge.
I. Introduction
Defendants move this court to remand this adversary proceeding to state court, on the grounds that the court lacks jurisdiction over an adversary proceeding removed to this court prior to the entry of an order for relief in the underlying involuntary bankruptcy case.[1] The court holds that a bankruptcy court has jurisdiction over an adversary proceeding that is removed from state court at any time after the filing of the underlying bankruptcy case. This rule applies to an involuntary case, whether or not an order for relief has been issued.
II. FACTS
Debtor Eyecare of Southern California Medical Group, A Medical Group, Inc. (Eyecare) is an association of some 24 physicians who are board-certified as specialists in ophthalmology. Eyecare has a contract with Adventist Health Southern California Medical Foundation to provide ophthalmological services to some 90,000 patients: half are served through The White Memorial Medical Center in Boyle Heights, just east of downtown Los Angeles, and half through Glendale Adventist Medical Center in Glendale. Dr. Paul T. Urrea is a physician in the Eyecare group.
More than two years before the filing of this involuntary bankruptcy case, Eyecare brought a civil action in Los Angeles County Superior Court against Dr. Urrea and his corporation, Paul T. Urrea, M.D., M.P.H., Inc. The complaint alleges that defendants engaged in unfair competition with the debtor and committed related violations of Eyecare's rights. Various cross-complaints were filed in that action, including one against debtor's major shareholder, Dr. R. Phillip Doss.
On June 21, 2000, Dr. Doss filed an involuntary chapter 7 petition against Eyecare. The next day he removed the state action to this court. Dr. Urrea challenges the removability of the state action and the jurisdiction of this court.
III. DISCUSSION
Defendants argue that removal to this court was premature, because it was accomplished before the entry of an order for relief in the involuntary bankruptcy case. In consequence, defendants argue, this court lacks jurisdiction over the action removed from state court.[2]
Three or more creditors[3] who hold undisputed, non-contingent claims totaling more than $10,775 may file an involuntary bankruptcy case against a debtor under chapter 7 or chapter 11 of the Bankruptcy Code. See 11 U.S.C. § 303(b)(1) (West 2000). If, as in this case, the debtor *768 does not contest the entry of an order for relief, it is granted.[4]
The removal to bankruptcy court of state court litigation relating to a bankruptcy case is governed by 28 U.S.C. § 1452(a) (West 2000), which provides:
A party may remove any claim or cause of action in a civil action . . . to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
Section 1334, the basic jurisdictional statute for bankruptcy cases and related proceedings, grants jurisdiction over bankruptcy cases to the federal district courts. It provides in relevant part:
(a) . . . the district courts shall have original and exclusive jurisdiction of all cases under [the Bankruptcy Code].
(b) . . . the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under [the Bankruptcy Code], or arising in or related to cases under [the Bankruptcy Code].
28 U.S.C. § 1334(a)-(b) (West 2000).
The reference of bankruptcy cases and proceedings from district court to bankruptcy court is authorized by 28 U.S.C. § 157(a) (West 2000), which provides:
Each district court may provide that any or all cases under [the Bankruptcy Code] and any or all proceedings arising under [the Bankruptcy Code] or arising in or related to a case under [the Bankruptcy Code] shall be referred to the bankruptcy judges for the district.
By general order the Central District of California has referred to the bankruptcy judges all matters within the scope of section 157(a).
Where such an order is in effect, removal is made directly to the bankruptcy court.[5]See, e.g., Princess Louise Corp. v. Pacific Lighting Leasing Co. (In re Princess Louise Corp.), 77 B.R. 766, 772 (Bankr.C.D.Cal.1987); Marketta Development, Ltd. v. North Am. Funding Corp. (In re North Am. Funding Corp.), 64 B.R. 795, 796 (Bankr.S.D.Tex.1986).
Removal is accomplished by the filing in the bankruptcy court of a verified application containing a short and plain statement of the facts that entitle the applicant to remove the action from state court. The application must be accompanied by a copy of all process and pleadings filed in the state court. Promptly after filing the application (and a bond if required), the applicant is required to serve a copy of the application on all parties to the removed claim or cause of action. The removal is effective upon the filing of a copy of the removal application (without the accompanying copy of all process and pleadings) in the court from which the action is removed. The parties are then enjoined from proceeding any further in that court unless and until a remand is ordered by the bankruptcy court. See Fed. R. Bankr. P. 9027.
The removal of a claim or cause of action to this court is proper only if this court has jurisdiction over such a removed claim or cause of action pursuant to §§ 1334 and 157. Such jurisdiction is limited to proceedings arising under the Bankruptcy Code, or arising in or related to a bankruptcy case. See Princess Louise, 77 B.R. at 772. Under Ninth Circuit law, a proceeding is "related to" a bankruptcy case if "the outcome . . . could conceivably have any effect on the estate being administered in bankruptcy." Fietz *769 v. Great Western Savings (In re Fietz), 852 F.2d 455, 457 (9th Cir.1988). An action is also related to a bankruptcy case if the outcome could alter the debtor's rights, liabilities, options or freedom of action (either positively or negatively) and in any way impacts upon the handling and administration of the bankrupt estate. Id. The moving parties concede sub silencio that this litigation is related to the pending bankruptcy case.
Removal to bankruptcy court is implemented by Federal Rule of Bankruptcy Procedure 9027(a)(2), which states:
If the claim or cause of action in a civil action is pending when a case under the Code is commenced, a notice of removal may be filed only within the longest of (A) 90 days after the order for relief in the case under the Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under § 362 of the Code, or (C) 30 days after a trustee qualifies in a chapter 11 reorganization case but not later than 180 days after the order for relief.
While this rule specifies the last date for filing a notice of removal, it makes no mention of the first day when removal is available.
Absent any other relevant authority, we must return to the basic statutory grant of bankruptcy jurisdiction. Under section 1334(a), federal jurisdiction applies to "all cases" under the Bankruptcy Code. Such jurisdiction arises upon the filing of a bankruptcy case. Similarly, section 1334(b) jurisdiction over "civil proceedings . . . related to cases under [the Bankruptcy Code]" arises upon the filing of a bankruptcy case.
An involuntary bankruptcy case is filed under Bankruptcy Code § 303 (West 2000). Thus it is a "case" within the meaning of section 1334(a). In consequence, federal jurisdiction over a civil proceeding, like this adversary proceeding, that is related to the involuntary case commences with the filing of the involuntary petition.
IV. CONCLUSION
The removal of this adversary proceeding to this court was proper, even though the court had not yet entered an order of relief in this involuntary bankruptcy case. The filing of the case, whether voluntary or involuntary, is a sufficient basis for bankruptcy jurisdiction over the state court action. The action became a related proceeding upon the filing of the bankruptcy petition, so long as it satisfied the requirement that it be "related to" the bankruptcy case.
NOTES
[1] Defendants also move for abstention. However, abstention is not available where a case has been removed to federal court, because there is no case still pending in state court that can proceed while the federal court abstains. See 28 U.S.C. § 1334(c)(2) (West 2000); Schulman v. California (In re Lazar), 237 F.3d 967, 982 (9th Cir.2001).
[2] Defendants also argue that the action was removed to avoid monetary and evidentiary sanctions and an imminent jury trial in state court. These issues are not addressed in this opinion.
[3] If the debtor lacks twelve qualifying creditors, a single creditor meeting the requirements may file the involuntary petition. See 11 U.S.C. § 303(b)(2) (West 2000).
[4] The involuntary petition in this case was filed as a chapter 7 case. The debtor stipulated to the entry of an order for relief and the conversion of the case to a case under chapter 11.
[5] Bankruptcy Rule 9027(a) provides that a removal petition for a bankruptcy-related case is filed with the clerk. See Fed. R. Bankr. P. 9027(a). The "clerk" is the bankruptcy clerk of the district (if one has been appointed). See Fed. R. Bankr. P. 9001(3).
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813 F.Supp.2d 1238 (2011)
Shane McMILLAN, Plaintiff,
v.
WILEY, Fox, Jones, Javernick, Collins, Fenlon, Madison, Nalley, Watts, Lappin, and Davis, Defendants.
Civil Action No. 09-cv-01709-WYD-KLM.
United States District Court, D. Colorado.
September 14, 2011.
*1242 Jason M. Lynch, Katherine Anna Roush, Glenn E. Roper, Reilly Pozner, L.L.P., Denver, Co, for Plaintiff.
Juan Gonzalo Villasenor, U.S. Attorney's Office, Denver, CO, for Defendants.
ORDER
WILEY Y. DANIEL, Chief Judge.
I. INTRODUCTION
THIS MATTER is before the Court on both Defendants' Motion for Judgment on the Pleadings (ECF No. 65), filed February 23, 2011, and Plaintiff's Motion for Leave to File Amended Complaint (ECF No. 86), filed May 11, 2011. I note that a response, reply and surreply were filed in connection with the Motion for Judgment on the Pleadings. Plaintiff's Motion for Leave to File Amended Complaint was referred to Magistrate Judge Mix for a Recommendation by order of reference dated February 16, 2010. On May 27, 2011, Magistrate Judge Mix issued a Recommendation that the Motion for Leave to File Amended Complaint be denied. Plaintiff filed a timely objection to the Recommendation and Defendants filed a response. The motions are fully briefed and ripe for my review. Since the issues addressed in the two motions are related, I address them both in this Order.
II. BACKGROUND
This action involves the circumstances associated with Plaintiff's incarceration at the United States Penitentiary, Administrative Maximum Prison in Florence, Colorado ("ADX"). Until October 2010, Plaintiff was proceeding pro se until he secured the services of defense counsel through his placement on the Court's list of individuals in need of pro bono counsel. On October 28, 2010, pro bono counsel for the Plaintiff filed their entries of appearance in this matter.
*1243 On February 23, 2011, Defendants filed the pending Motion for Judgment on the Pleadings seeking to dismiss Plaintiff's claims in their entirety. Since the parties disagree as to the scope of Plaintiff's current Complaint (the Second Amended Complaint, filed February 8, 2010), contemporaneous to Plaintiff responding to the Motion for Judgment on the Pleadings, Plaintiff sought leave to amend his Second Amended Complaint to further clarify the claims at issue.[1]
III. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
In the Second Amended Complaint, Plaintiff brings three claims against the Defendants under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).[2] Plaintiff has sued the following individual Defendants: former ADX Warden Wiley; ADX Associate Warden Fox; ADX Associate Warden Jones; ADX Unit Manager Javernick; ADX Unit Manager Collins; Fenlon, Plaintiff's case manager; Madison, Plaintiff's counselor; Bureau of Prisons ("BOP") North Central Regional Director Nalley, who works in Kansas City, Kansas; Watts, who is the BOP's national inmate appeals coordinator in Washington, D.C.; BOP Director Lappin, who works in the District of Columbia; and ADX Warden Davis. (Second Am. Compl. at 2-3.)
In Claim 1(a), Plaintiff alleges that his confinement at the ADX violates procedural due process. (Second Am. Compl. at 4.) In Claim 1(b), Plaintiff alleges that his confinement violates the Cruel and Unusual Clause of the Eighth Amendment. (Second Am. Compl. at 4.) In Claim 2, Plaintiff alleges that Defendants have conspired to violate his Fifth and Eighth Amendment rights by allegedly committing the Constitutional violations contained in Claim 1. (Second Am. Compl. at 13.) Plaintiff has sued the Defendants in both their official and individual capacities and is seeking monetary, declaratory, and injunctive relief. (Second Am. Compl. at 17-18.)[3]
Defendants seek dismissal of all claims arguing the following: (1) the Court lacks subject matter jurisdiction over Plaintiff's claim for money damages against Defendants in their "official capacities" as sovereign immunity bars such claims; (2) the Court lacks personal jurisdiction over Defendants Lappin, Nalley and Watts as they do not have minimum contacts with Colorado; (3) even if the Court has jurisdiction, Plaintiff lacks a Bivens remedy for his procedural due process claim; (4) even if Plaintiff had such a remedy, he has failed to allege sufficient facts showing that his confinement at the ADX deprived him of a constitutionally protected liberty interest or an adequate process to challenge his confinement; (5) Plaintiff has failed to allege that the conditions of his confinement at the ADX violates the Eighth Amendment; (6) Plaintiff has failed to allege a viable claim for civil conspiracy against the Defendants; and (7) Defendants are entitled *1244 to qualified immunity as to all of Plaintiff's claims.
By way of background, in the Second Amended Complaint, Plaintiff alleges that he was designated to the ADX in 2007 and that he is being held in "solitary confinement." (Second Am. Compl. at 4.) He contends that he is confined to a cell measuring 8'x12' behind double doors. (Second Am. Compl. at 6.) Plaintiff further alleges that he leaves his cell up to five times per week for two hours of recreation in a single man cage, that he consumes his meals alone in his cell and that he has "no human contact unless he is shackled and chained to be escorted by guards from his cell." (Second Am. Compl. at 6.) He also alleges that these conditions of confinement do not meet the "criteria for general population." (Second Am. Compl. at 6.) Plaintiff goes on to claim that he does not have the opportunity to go to a gym, library, cafeteria, religious services, "or any other activity with other inmates." (Second Am. Compl. at 12.)
Plaintiff claims that Defendant Wiley, with the approval of BOP Director Lappin and Regional Director Nalley, "transformed" certain ADX general population units into "control units," but continued to refer to them as "general population." (Second Am. Compl. at 7.) Plaintiff further alleges that Defendants Fox and Jones have ignored his "pleas for fair treatment" and that both have stated in government documents that Plaintiff is housed in the general population despite "the overwhelming evidence that proves otherwise." (Second Am. Compl. at 9.) Moreover, Plaintiff contends that Defendants Fenlon, Collins and Madison have allegedly "signed off" on administrative remedies stating that Plaintiff is not housed in solitary confinement. (Second Am. Compl. at 9-10.) Plaintiff alleges that Defendant Javernick also signed administrative remedies, stating that Plaintiff is not due any process. (Second Am. Compl. at 10.) Plaintiff goes on to claim that Warden Davis has "adopted the same views as [former Warden] Wiley." (Second Am. Compl. at 10.)
Plaintiff alleges that Defendants are aware of his conditions of confinement but they have shown "a total and complete lack of concern for [his] rights." (Second Am. Compl. at 11). Plaintiff contends that while Defendants "know that Plaintiff is housed in solitary confinement they have repeatedly signed off on falsified gov't documents stating that" certain ADX units are "general population" units. (Second Am. Compl. at 13). He alleges that Defendants "continue to conspire to keep" him in solitary confinement, and that Defendants have "engaged in conspiratorial acts to violate [his] constitutional rights." (Second Am. Compl. at 13).
A. Standard of Review
Defendants' Motion for Judgment on the Pleadings seeks to dismiss Plaintiff's claims in the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(c). Rule 12(c) states that "[a]fter the pleadings are closedbut early enough not to delay triala party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "The Rule 12(c) motion may be employed by the defendant as a vehicle for raising several of the defenses enumerated in Rule 12(b) after the close of the pleadings.... In this context, Rule 12(c) is merely serving as an auxiliary or supplementary procedural device to determine the sufficiency of the case before proceeding any further and investing additional resources in it." 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2002).
The Tenth Circuit has instructed that courts analyze Rule 12(c) motions under the same standards applicable to motions *1245 under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Park University Enterprises, Inc. v. American Casualty Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006). Under Rule 12(b)(6), the court must "accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff." Jordan-Arapahoe, LLP v. Board of County Com'rs of County of Arapahoe, 633 F.3d 1022, 1025 (10th Cir. 2011). "To survive a 12(b)(6) motion to dismiss, a plaintiff must allege that `enough factual matter, taken as true, [makes] his claim for relief ... plausible on its face.'" Id. (quotation and internal quotation marks omitted). "A claim has facial plausibility when the [pleaded] factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009)). Plaintiff "must include enough facts to `nudge[] [his] claims across the line from conceivable to plausible.'" Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted). "Under Rule 8, a plaintiff must provide a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Tuttamore v. Lappin, 429 Fed.Appx. 687, 689 (10th Cir.2011) (quoting Fed.R.Civ.P. 8(a)(2)). As with Rule 12(b)(6), "to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible." Id. Indeed, "Rule 8(a)'s mandate ... has been incorporated into the 12(b)(6) inquiry." U.S. ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir.2010). Rule 8 enables "the court and the defendants to know what claims are being asserted and to determine how to respond to those claims." Tuttamore, 429 Fed.Appx. at 689.
B. Subject Matter Jurisdiction Over Plaintiff's Official Capacity Claims for Damages
Defendants seek to dismiss Plaintiff's claims for monetary damages against the Defendants in their official capacities because there is no waiver of sovereign immunity. The United States, as a sovereign, is immune from suit unless it has waived its immunity. Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). "Because the jurisdiction of federal courts is limited, there is a presumption against ... jurisdiction, and the party invoking federal jurisdiction bears the burden of proof." Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir.2005) (quoting Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir.1999)).
In response, Plaintiff concedes that the United States has not waived its sovereign immunity as to the availability of money damages for his claims. Based on my careful review of the record, I find that Plaintiff's claims for monetary damages against the Defendants in their official capacities are barred by sovereign immunity and are properly dismissed for lack of subject matter jurisdiction.
C. Personal Jurisdiction Over Defendants Lappin, Nalley and Watts
Defendants Lappin, Nalley and Watts move to dismiss the Complaint for lack of personal jurisdiction. As an initial matter, *1246 I note that in his response, Plaintiff concedes that the Court lacks personal jurisdiction over Watts. Thus, I dismiss Plaintiff's claims against Defendant Watts.
Neither Lappin nor Nalley resides or works in the State of Colorado. According to the Complaint, Lappin is the National Director of the BOP and resides in Washington, D.C. (Second Am. Compl. at 3.) Nalley is the Regional Director of the BOP and resides in Kansas City, Kansas. (Second Am. Compl. at 3.) Plaintiff bears the burden of establishing that the Court has personal jurisdiction over both Lappin and Nalley. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir.2000). As a court of limited jurisdiction, this Court may only exercise jurisdiction over nonresident defendants if: (1) the long-arm statute of Colorado permits personal jurisdiction in this case; and (2) the exercise of personal jurisdiction in Colorado comports with the Due Process Clause of the United States Constitution. Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1276 (10th Cir.2005). The Supreme Court of Colorado interprets Colorado's long-arm statute "to confer the maximum jurisdiction permitted by the due process clauses of the United States and Colorado constitutions." Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193 (Colo.2005). Therefore, a due process analysis of jurisdiction in this case will also satisfy Colorado's long-arm statute.
Due process first requires that Plaintiff demonstrate that both Lappin and Nalley have "minimum contacts" with the forum state, which is Colorado. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Although Plaintiff contends that Lappin and Nalley "had direct knowledge of and approved the transformation of [Plaintiff's] ADX housing unit" from a general population unit into a solitary confinement "control" unit (ECF No. 74 at 6), such "attempts to make out a case for personal jurisdiction over these defendants by arguing that each of them authorized or implemented [actions] knowing that the effects of these [actions] would be felt by him in Colorado" are insufficient to establish minimum contacts. Hale v. Ashcroft, 2007 WL 2350150 at *3 (D.Colo. 2007); Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1534 (10th Cir.1996) (noting that "the mere foreseeability of causing injury in another state is not a sufficient benchmark for exercising personal jurisdiction").
Moreover, "[i]t is not reasonable to suggest that federal prison officials may be hauled into court simply because they have regional and national supervisory responsibilities over facilities within a forum state." Hill v. Pugh, 75 Fed.Appx. 715, 719 (10th Cir.2003). Thus, I find that allegations against Lappin and Nalley for actions taken in their supervisory roles, and their awareness and alleged approval of the "transformation" of Plaintiff's unit to solitary confinement are not sufficient to establish personal jurisdiction. Accordingly, Plaintiff's claims against Lappin and Nalley are dismissed for lack of personal jurisdiction.
D. Qualified Immunity
Defendants assert that they are entitled to qualified immunity to suit on Plaintiff's claims. Government officials are entitled to qualified immunity from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person in their position would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity also offers protection from trial and other burdens of litigation. See Mitchell v. Forsyth, *1247 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
When Defendants raise qualified immunity in a Rule 12(b)(6) motion to dismiss, the Court employs a two-step process. The threshold inquiry is whether the facts taken in the light most favorable to the plaintiff sufficiently allege a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. However, "if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id.[4]
Courts must determine whether the constitutional right was clearly established in "the context of the particular case before the court, not as a general, abstract matter." Simkins v. Bruce, 406 F.3d 1239, 1241 (10th Cir.2005). That is, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer [in each defendant's position] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151; see also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Further, in order for a constitutional right to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clear weight of authority from other circuits must establish the constitutional right. Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). In other words, there must be case authority in which a constitutional violation was found based upon similar conduct. See Callahan v. Millard County, 494 F.3d 891, 903 (10th Cir.2007).
E. Fifth Amendment Claim
In Claim 1(a), Plaintiff alleges that the conditions in the general population unit at ADX implicate a liberty interest. Additionally, Plaintiff contends that his placement and continued confinement at ADX is in violation of his Fifth Amendment right to due process.
The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law. . . ." U.S. CONST. Amend. V. The Supreme Court has recognized Bivens liability for violations of the Fifth Amendment Due Process Clause. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (finding implied damages remedy under the Due Process Clause of the Fifth Amendment). To state a due process claim, Plaintiff must allege two elements: (1) that a recognized liberty or property interest has been interfered with by the Defendants, and (2) that the procedures attendant to that deprivation were not constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Here, Defendants contend that Plaintiff has not sufficiently pled a due process violation because he has failed to demonstrate the loss of a liberty interest.
Prisoners retain "`only a narrow range of protected liberty interests.'" Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994) (quoting Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), overruled in part on other grounds by Sandin v. Conner, 515 *1248 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). The Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). An inmate contending that the conditions of confinement give rise to a constitutionally-protected liberty interest must show that the conditions constitute an "atypical and significant hardship" when compared to the ordinary incidents of prison life. Id. at 223, 125 S.Ct. 2384.
The Tenth Circuit has applied several factors in analyzing whether conditions impose such an atypical and significant hardship that a liberty interest exists. These factors include whether: "(1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement . . .; and (4) the placement is indeterminate. . . ." Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d 1334, 1342 (10th Cir.2007). "[A]ny assessment must be mindful of the primary management role of prison officials who should be free from second-guessing or micro-management from the federal courts." Id.
Here, I find that Plaintiff's allegations fail to establish that he is deprived of a liberty interest by being confined at the ADX because the conditions are not atypical and significant. First, Plaintiff's criminal history supports his placement at the ADX based on a legitimate penological interest. Plaintiff has convictions for conspiracy to possess and to distribute methamphetamine, contempt of court, and for assault of a government employee. (ECF No. 65.) The Court may take judicial notice of Plaintiff's criminal history, as it is in the public record. United States v. Ahidley, 486 F.3d 1184, 1192 n. 5 (10th Cir. 2007).
Second, while Plaintiff's allegations of restricted liberty, amenities, recreation, and social opportunities demonstrate harsh conditions, I find that they are both conclusory and fail to rise to a condition that is sufficiently atypical or significant in relation to the ordinary course of prison life to implicate a liberty interest. In recent matters, the conditions at ADX have been found to not give rise to a protected liberty interest. See Georgacarakos v. Wiley, 2010 WL 1291833 *12 (D.Colo.2010); Saleh v. Federal Bureau of Prisons, 2010 WL 5464294 (D.Colo.2010); Rezaq v. Nalley, 2010 WL 5157317 (D.Colo.2010). I further find that Plaintiff's contention that the labeling of ADX units as general population instead of solitary confinement does not render the conditions of confinement extreme or atypical.
Third, Plaintiff alleges that his placement is "indefinite" because Defendants Collins and Fenlon have told him that he "does not need a due process hearing" and that he "could be held in such conditions indefinitely." (Second Am. Compl. at 10.) However, BOP procedures provide "that an inmate's security classification is reviewed on at least an annual basis, if not more frequently due to intervening events." Georgacarakos, 2010 WL 1291833 at *6. Also, under federal law, confinement at ADX does not disqualify Plaintiff from earning good time credits. See 18 U.S.C. § 3624(b)(1) (providing that all BOP inmates, who are serving a term of imprisonment of more than one year other than a life sentence, may receive good-time credit). I find that Plaintiff's allegation that his confinement in ADX is "indefinite" is not plausible in light of both the BOP regulations and 18 U.S.C. § 3624(b)(1).
Fourth, Plaintiff has failed to allege that his confinement at ADX increases the length of his sentence. See Wilkinson v. *1249 Austin, 545 U.S. 209, 224, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (finding a protected liberty interest when the confinement is both indefinite and where placement in the OSP automatically rendered an inmate ineligible for parole). Therefore, I find that Plaintiff's allegations do not give rise to a protected liberty interest to support a claim for violation of due process based on Plaintiff's placement and continued confinement at ADX.
However, even if a protected liberty interest exists, Defendants assert that Plaintiff received adequate due process. The Court considers three factors in determining what level of process is due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). "Prisoners held in lawful confinement have their liberty interests curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all." Wilkinson, 545 U.S. at 225, 125 S.Ct. 2384. Due process is satisfied if Plaintiff received the following: (1) a sufficient initial level of process, i.e., a reasoned examination of the assignment; (2) the opportunity to receive notice of and respond to the decision; and (3) safety and security concerns are weighed as part of the placement decision. DiMarco, 473 F.3d at 1344 (citation omitted).
I find that the BOP's regulation on security classification, which provides for review on at least an annual basis, along with its process governing admissions to the Step-Down Program, where inmates receive "a review of their placement at least every six months via program reviews" provide a sufficient level of due process. Saleh v. Federal Bureau of Prisons, 2010 WL 5464294 at *5; see Georgacarakos, 2010 WL 1291833 at *6. Further, Plaintiff states in his Second Amended Complaint that he has utilized these administrative procedures and submitted numerous "administrative remedy forms" or "BP-9's" to BOP officials that have been reviewed and signed by the warden. (See Second Am. Compl. at 7-9); see 28 C.F.R. § 542.14 (outlining the procedure an inmate must follow in filing a formal written Administrative Remedy Request or BP-9).
Thus, I agree with Defendants that this claim should be dismissed because Plaintiff fails to state a plausible claim that his confinement at ADX interferes with a liberty interest or that he was deprived of a sufficient level of procedural due process.[5] Moreover, to the extent that Plaintiff asserts this claim against the Defendants in their individual capacities, they are entitled to qualified immunity. I find that there is no clearly established law that the conditions in the ADX general population implicate a liberty interest for which certain procedural protections are due. Thus, the Defendants are entitled to qualified immunity on this claim.
F. Eighth Amendment Claim
In Claim 1(b), Plaintiff alleges that his confinement violates the Eighth Amendment to the United States Constitution. The Eighth Amendment provides protection *1250 against cruel and unusual punishment. This protection imposes a duty on prison officials to maintain humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and a duty to provide inmates with reasonable protection from serious bodily harm. Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.2008).
"To prevail on a `conditions of confinement' claim under the Eighth Amendment, an inmate must establish that (1) the condition complained of is `sufficiently serious' to implicate constitutional protection, and (2) prison officials acted with `deliberate indifference' to inmate health or safety." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir.2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)) (internal quotation marks omitted). As to the first requirement, an inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id.
The deliberate indifference requirement provides that a prison official must act wanton or willfully and have a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834-35, 114 S.Ct. 1970 (quotation omitted). "[T]he Supreme Court has explained that `deliberate indifference entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with the knowledge that harm will result.'" DeSpain, 264 F.3d at 972 (quoting Farmer, 511 U.S. at 835, 114 S.Ct. 1970). "The Court defined this `deliberate indifference' standard as equal to `recklessness,' in which `a person disregards a risk of harm of which he is aware.'" Id. (quoting Farmer, 511 U.S. at 836-37, 114 S.Ct. 1970).
The test for deliberate indifference is both objective and subjective. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.2009). "The objective component of the test is met if the `harm suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause' of the Eighth Amendment." Id. (quoting Mata v. Saiz, 427 F.3d 745, 752-53 (10th Cir.2005)). To prevail on the first prong, even severe restrictions do not satisfy the objective component if the inmate is not deprived of "the minimal civilized measure of life's necessities." Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998). This Court recently found that the conditions of confinement at ADX do not rise to the level of an Eighth Amendment violation, "nor do they constitute an atypical and significant hardship sufficient to give rise to a liberty interest." Georgacarakos, 2010 WL 1291833 at *12. "The conditions at ADX are undoubtedly extremely restrictive. However, they are not so extreme or inhumane that they could be deemed a significant departure from contemporary standards of decency, applied to the prison context." Id. Additionally, the Tenth Circuit has also concluded that the conditions of ADX do not violate the Eighth Amendment. See Ajaj v. United States, 293 Fed.Appx. 575, 582-84 (10th Cir.2008) (finding conditions such as "lockdown 23 hours per day in extreme isolation," "indefinite confinement," and "limited ability to exercise outdoors" did not, individually or in concert, amount to an 8th Amendment violation).
Based on my review of the Second Amended Complaint, I find that Plaintiff has failed to make sufficient allegations to establish that he has been deprived life's most basic needs. In fact, Plaintiff states that he receives meals, is housed in a cell, and has limited, but regular, recreation periods. (See Second Am. Compl. at 6) (stating that Plaintiff eats his meals alone, leaves his cell up to five times per week for recreation in a man cage, and has no human contact unless he is shackled and *1251 escorted by guards.) Rather, Plaintiff's primary complaint seems to be his lack of social opportunities. "These conditions are common to many high-security prisons around the country, and can hardly be said to violate contemporary standards of decency." Georgacarakos, 2010 WL 1291833 *12. Thus, I find that Plaintiff's allegations fail to satisfy the objective component of the deliberate indifference test.
To prevail on the subjective component of the deliberate indifference test, an inmate must show that the prison official: (1) knows of a substantial risk of serious harm posed to the inmate and (2) disregards that risk by failing to take reasonable steps to abate the risk. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). To recklessly disregard a risk, "[a] prison official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. "[E]ven if a prison official has knowledge of a substantial risk of serious harm to inmates, he is not deliberately indifferent to that risk unless he is aware of and fails to take reasonable steps to alleviate that risk." Id. Finally, the Tenth Circuit has indicated that the subjective component requires the prison official to disregard the specific risk of harm claimed by the prisoner, not a more general risk. Id.
Here, Plaintiff has failed to show harm from his conditions of confinement, let alone that Defendants knew such harm and acted with deliberate indifference to cause it. Plaintiff's allegations regarding the classification of his housing unit and that he is not actually confined in a "general population" unit fail to show that prison officials acted with a culpable state of mind. Thus, Plaintiff's Eight Amendment claim fails and should be dismissed. Furthermore, since Plaintiff has not established a necessary element of an Eighth Amendment constitutional violation, he cannot satisfy the first prong of the qualified immunity analysis. Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (holding that "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."). Therefore, Defendants are entitled to qualified immunity on Plaintiff's Eighth Amendment claim.
G. Conspiracy Claim
In Claim 2, Plaintiff alleges that Defendants have conspired to violate his Fifth and Eighth Amendment rights. (Second Am. Compl. at 13.) The Tenth Circuit has stated that "a conspiracy to deprive a plaintiff of a constitutional or federally protected right under the color of state law" is actionable. Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir.1990). However, in order to succeed on a conspiracy claim under 42 U.S.C. § 1983, "a plaintiff must plead and prove not only a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other will be insufficient." Id. Further, "[w]hile a deprivation of a constitutional right is essential to proceed under a § 1983 claim, proof of an agreement to deprive will often require examination of conduct occurring prior to the deprivation." Id. at 701-02. To establish the existence of a conspiracy, a plaintiff seeking redress must show that there was a "single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences." Id. (internal citations omitted).
Here, because I find that Plaintiff is not entitled to relief on his Fifth or Eighth Amendment claims, Defendants cannot be guilty of participating in a conspiracy to violate these constitutional rights. See Snell, 920 F.2d at 701. Moreover, since I have determined that Defendants are entitled *1252 to qualified immunity on Plaintiff's underlying Fifth and Eighth Amendment claims, "by definition, Plaintiff[] fail[s] to state a claim for conspiracy." Gehl Group v. Koby, 838 F.Supp. 1409, 1419 (D.Colo. 1993). Accordingly, this claim is dismissed.
H. Administrative Procedure Act ("APA") Claim
Plaintiff contends that he asserted a fourth claim for relief under the APA. The claim is located in the "Request for Relief" section of the Second Amended Complaint. (Second Am. Compl. at 17.) While Defendants argue that Plaintiff has not properly pleaded this claim, because Plaintiff was pro se when he filed his Second Amended Complaint, I will liberally construe his filing and address this claim.[6]See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, I will not be a pro se litigant's advocate, nor will I "supply additional factual allegations to round out [Plaintiff's Second Amended] [C]omplaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1174-74 (10th Cir.1997).
In his Surreply, Plaintiff clarifies that in this claim, he is challenging "the BOP's failure to abide by its own policies and the Code of Federal Regulations in its treatment and [sic] of ADX prisoners." (ECF No. 82 at 3.) Thus, based on my review of the operative filings, I construe this claim to be alleging that the Defendants violated the APA by classifying D Unit at ADX as a general population unit instead of a control unit. (See Second Am. Compl. at 8) (generally alleging that the conduct of Defendants should be declared an abuse of agency discretion pursuant to the APA). Throughout his Second Amended Complaint, Plaintiff alleges that while D Unit is classified as a general population unit, it is, in effect, a control unit equivalent to solitary confinement. By federal regulation, before inmates may be placed in a control unit, certain requirements must be met and certain processes must be provided to the inmate. 28 C.F.R. §§ 541.40-.50. Plaintiff argues that Defendants' arbitrary classification of D Unit is an abuse of agency discretion under the APA. As a result of Defendants' improper designation of D Unit as general population, Plaintiff alleges that he was deprived due process because inmates designated to a general population unit are not afforded the same protections or due process as inmates designated to a control unit.
While most agency actions are reviewable under the APA, there are two notable exceptions. "The notable two exceptions, found in 5 U.S.C. § 701(a)(1) and (2), are for situations in which judicial review is expressly precluded by statute or the agency action is committed to agency discretion by law." Payton v. United States Dep't of Agric., 337 F.3d 1163, 1167-68 (10th Cir.2003). Here, the second exception is applicable, namely whether the agency action is committed to agency discretion by law. This exception applies when the "statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
By statute, the BOP has the authority to house and classify prisoners. The statute allows the BOP to develop
an integrated system which will assure the proper classification and segregation *1253 of Federal prisoners according to the nature of the offenses committed, the character and mental conditions of the prisoners, and such other factors as should be considered in providing an individualized system of discipline, care, and treatment of the persons committed to such institutions.
18 U.S.C. § 4081. Considering this language, facility classifications are clearly committed to the discretion of the BOP, and thus, I have no meaningful standard upon which to judge the appropriateness of those decisions. See Heckler, 470 U.S. at 830, 105 S.Ct. 1649.
I further note that the Second Circuit has considered the authority conferred by § 4081 and noted that this, and a related statute "vest . . . broad unreviewable discretion in the Attorney General." Wolfish v. Levi, 573 F.2d 118, 125 & n. 13 (2d Cir.1978). While Wolfish was later overruled on other grounds, this portion of the Second Circuit's holding has not been overturned. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Moreover, the Supreme Court has recognized that "Congress has given federal prison officials full discretion" pursuant to § 4081 and there is "no legitimate statutory" basis for a prisoner to challenge classifications derived from such discretion. Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); see also Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir.1976) (noting that "the classification of prisoners rests within the sound discretion of the Attorney General"). Accordingly, I find that this claim should be dismissed for lack of subject matter jurisdiction.
IV. RECOMMENDATION ON PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (ECF No. 89)
While the Motion for Judgment on the Pleadings was pending before me, on May 11, 2011, Plaintiff filed a Motion for Leave to File Amended Complaint (ECF No. 86). The motion was referred to Magistrate Judge Mix by order of reference dated February 16, 2010. On May 27, 2011, Magistrate Judge Mix issued a Recommendation on Plaintiff's Motion for Leave to File Amended Complaint, which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), D.C.COLO.LCivR. 72.1. Magistrate Judge Mix recommends therein that Plaintiff's Motion for Leave to File Amended Complaint be denied.
Magistrate Judge Mix advised the parties that they had fourteen (14) days to serve and file written, specific objections to the Recommendations. On June 13, 2011, Plaintiff filed timely objections to the Recommendation which necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).
A. Standard of Review
The Court should grant leave to amend a complaint "freely . . . when justice so requires." Fed.R.Civ.P. 15(a)(2). Leave to amend need not be given, however, "upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). In response to the Motion for Leave to File Amended Complaint, Defendants argue that the requested relief should be denied because each proposed claim or amendment is futile. (ECF No. 88 at 4-14.) In her Recommendation, *1254 Magistrate Judge Mix also applied Fed. R.Civ.P. 16(b) to the relief requested.
B. Analysis
Magistrate Judge Mix recommends that Plaintiff's Motion for Leave to File Amended Complaint be denied. (ECF No. 89 at 1258-59.)
1. Fed.R.Civ.P. 16(c)Good Cause
Initially, Magistrate Judge Mix noted that the Scheduling Order provided that the deadline for seeking leave to amend pleadings expired on September 17, 2010. (ECF No. 55.) Plaintiff filed his motion to amend long after the expiration of this deadline, thus, it is untimely. Under these circumstances, and prior to review of the motion pursuant to Fed.R.Civ.P. 15(a), the Court considers whether Plaintiff has shown "good cause" under the standard set out in Fed.R.Civ.P. 16(b) for seeking to amend the current Second Amended Complaint (ECF No. 21). See Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D.Colo.2000) (quoting Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C.1997), aff'd, 129 F.3d 116 (4th Cir.1997) ("Rule 16(b)'s `good cause' standard is much different than the more lenient standard contained in Rule 15(a). . . . Properly construed, `good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts. . . . Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.")). "To establish `good cause,' the party seeking to extend the deadline must establish that the scheduling order's deadline could not have been met with diligence." Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993); see also Fed.R.Civ.P. 16(b) (a scheduling order deadline "may be modified only for good cause and with the judge's consent").
Relevant to this case, the addition of counsel generally does not amount to good cause under the standard set out in Fed.R.Civ.P. 16(b). See, e.g., Marcin Eng'g, LLC v. Founders at Grizzly Ranch, LLC, 219 F.R.D. 516, 521 (D.Colo.2003) ("That new counsel is dissatisfied with the state of the case it inherited is not" good cause for action requested "long after the court-ordered deadlines have passed."). Although the pleading amendment deadline expired before the appearance of any counsel (as opposed to Plaintiff securing new counsel), Magistrate Judge Mix notes that once pro bono counsel entered their appearance, they delayed approximately six months before seeking leave to amend the Second Amended Complaint. Moreover, counsel did not move for an extension of time to seek amendment nor acknowledge in the Motion to Amend that they had an obligation to do so. Magistrate Judge Mix found that "[s]uch history does not necessarily evidence diligence." (ECF No. 89 at 1260.) Magistrate Judge Mix concluded that while the motion is subject to denial on this basis, she "resolves the [m]otion on Defendants' argument that amendment would be futile." (ECF No. 89 at 1260.) While I find no error with this portion of the Recommendation, I, too, will review the Recommendation and analyze the motion for leave pursuant to Fed.R.Civ.P. 15(a).
2. Fed.R.Civ.P. 15(a)Futility of Amendment
"Although Fed.R.Civ.P. 15(a) provides that leave to amend shall be given freely, the district court may deny leave to amend where amendment would be futile. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999); see also Bellmon, 935 F.2d at 1109-10 ("Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss . . ., a court may dismiss sua sponte when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity *1255 to amend his complaint would be futile.") (citations omitted).
Here, Magistrate Judge Mix correctly noted that there are two grounds upon which Plaintiff's proposed Third Amended Complaint could be subject to dismissal: (1) lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) (Claims Three and Four); and (2) failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) (Claims One, Two and Five). (ECF No. 89 at 1260-61.)
I note that the proposed Third Amended Complaint adds two APA claims (Claims Three and Four) along with adding Defendants and factual allegations to the claims currently pending in the Second Amended Complaint.
a. Proposed Amendments to Claim One
Magistrate Judge Mix recommends that the proposed amendment to Claim One, which alleges a procedural due process violation, are futile. (ECF No. 89 at 1261-62.) Plaintiff proposes additional factual information regarding his designation and confinement at ADX. Magistrate Judge Mix found that the proposed Third Amended Complaint lacks sufficient or unique factual information to justify a different result. This is particularly true here given that Plaintiff does not allege that his confinement at ADX prolongs his prison term or that it is indefinite (beyond arguments raised and rejected in prior cases), two crucial facts in the establishment of a liberty interest. Saleh I, 2010 WL 5464295, at *16 (citing Townsend v. Fuchs, 522 F.3d 765, 772 (7th Cir.2008)).
In the objection, Plaintiff argues that he has put forth additional allegations that his confinement at ADX is indefinite. Thus, he contends that he has properly stated a claim that Plaintiff's conditions of confinement implicate a liberty interest.
I incorporate by reference the cited authority and discussion on this very issue contained in section III(E) of this Order. Based on the enumerated DiMarco factors and recent case law, I find that Magistrate Judge Mix properly found that Plaintiff's proposed amendment does not implicate a liberty interest in his confinement at ADX. See Saleh, 2010 WL 5464294 at *3-*5; Rezaq, 2010 WL 5157317 at *6-*13; Georgacarakos, 2010 WL 1291833 at *12-*13; Jordan v. Fed. Bureau of Prisons, 191 Fed.Appx. 639, 652 (10th Cir.2006); Saleh I, 2010 WL 5464295, at *13; and Matthews v. Wiley, 744 F.Supp.2d 1159 (D.Colo. 2010).
After carefully reviewing the additional allegations put forth by Plaintiff, I find they are conclusory and devoid of sufficient detail. See Iqbal, 129 S.Ct. at 1950. For example, Plaintiff alleges that he "has been held in extreme and indefinite solitary confinement. . . ." (Proposed Third Am. Compl. ¶ 1.) Plaintiff further alleges that "[b]y keeping Plaintiff in solitary confinement in the conditions described above for an indefinite duration, Defendants have deprived Plaintiff of basic human needs. . . ." (Proposed Third Am. Compl. ¶ 48.) These generalized and conclusory allegations of the conditions of confinement do not state that Plaintiff is subject to different conditions than any other inmate at ADX or different conditions than those that have been determined not to impose atypical or significant hardship.
Notably, Plaintiff's own allegations concede that he received at least two reviews for entry into the Step-Down Program, but the Committee has "arbitrarily denied [him] entry into the Program." (Proposed Third Am. Compl. ¶ 70.) While Plaintiff contests the meaningfulness of his program reviews, DiMarco does not require the level of process alleged by Plaintiff in order for a term of confinement to be considered definite. See DiMarco, 473 F.3d at 1343-44. It is clear that Plaintiff *1256 has received at least two reviews of his confinement and the opportunity to administratively appeal an unsuccessful review. Therefore, based on my findings set forth in Section III(E) of this Order and my review of the proposed Third Amended Complaint, I find that Plaintiff has failed to sufficiently allege a protected liberty interest and overrule his objection. I agree with Magistrate Judge Mix's conclusion that amendment of this claim to assert additional factual information or Defendants would be futile.
b. Proposed Amendments to Claim Two
Claim Two addresses an alleged conspiracy by Defendants to violate Plaintiff's constitutional rights. Because I agree with Magistrate Judge Mix that Plaintiff is not entitled to relief on his Fifth Amendment claim or his Eighth Amendment claim (discussion to follow), Defendants cannot be guilty of participating in a conspiracy to violate these constitutional rights. (See Section III(G) of this Order.) I overrule Plaintiff's objection and find that amendment of this claim to assert additional factual information or Defendants would be futile.
c. Proposed Claim Three
Claim Three addresses whether proposed Defendant BOP's decision to deny Plaintiff placement in the Step-Down Unit Program at ADX violates the APA. In her Recommendation, Magistrate Judge Mix accurately noted that while most agency actions are reviewable pursuant to the APA, there are two exceptions. The exception at issue here is statutory preclusion. See Payton v. United States Dep't of Agric., 337 F.3d at 1167-68 (10th Cir.2003). Specifically, 18 U.S.C. § 3621 confers "discretion on the BOP to designate a prisoner's place of imprisonment." Wedelstedt v. Wiley, 477 F.3d 1160, 1162 (10th Cir.2007); see also Matthews, 744 F.Supp.2d at 1175 (noting that pursuant to § 3621, and in the context of placement at ADX, BOP can consider any seemingly relevant information in determining where to house an inmate). Thus, Magistrate Judge Mix found that "[p]ursuant to the clear language of the statute, decisions about where to incarcerate an inmate (which, when ADX is involved, necessarily include consideration of whether an inmate is entitled to be placed in particular units pursuant to the Step-Down Unit Program), fall within § 3621." (ECF No. 89 at 1263.) However, Magistrate Judge Mix stated that under 18 U.S.C. § 3625, placement decisions governed by § 3621 are "exempt[] . . . from the APA's judicial review provisions." See Jordan v. Wiley, 411 Fed.Appx. 201, 214 (10th Cir.2011) (holding that the APA does not apply to substantive BOP disciplinary determinations involving the reduction of good-time credits); see also Redmon v. Wiley, 349 Fed.Appx. 251, 256 (10th Cir.2009) (stating that the APA barred review of a BOP decision determining a particular prisoner's eligibility in a prison early release program governed by § 3621). Noting that this particular issue (whether the Court has jurisdiction to review the BOP's eligibility decisions for the Step-Down Unit Program) has not yet been decided, based on the cited authority and the similarities of those cases to the instant matter, Magistrate Judge Mix reasoned that Plaintiff's proposed Claim Three would be barred by statute.
In his objection, citing Ajaj v. Federal Bureau of Prisons, 2011 WL 902440 (D.Colo.2011), Plaintiff argues that § 3621 does not exempt a review of the BOP's denial of his entry into the Step-Down Unit Program. However, I do not find Ajaj to be sufficiently analogous to the allegations put forth in the instant matter. In Ajaj, the plaintiff made an APA claim directed at a disciplinary notice issued by the defendants. Essentially, plaintiff asserted that the decision to find him guilty of certain charges was arbitrary and capricious *1257 because the defendants failed to consider plaintiff's written statement and medical records. Id. at *12. The issue of whether the Court had jurisdiction to consider the APA claim was not addressed. In fact, the defendants' sole basis for seeking dismissal of the claim was that is was rendered moot by plaintiff's transfer to another facility. Id. Thus, I find Plaintiff's objection to be without merit, and it is overruled. I agree with Magistrate Judge Mix's well-reasoned recommendation that amendment to assert this new claim against proposed Defendant BOP would be futile.
d. Proposed Claim Four
Claim Four challenges whether proposed Defendant BOP's designation of the D Unit at ADX as a general population unit violates the APA. Magistrate Judge Mix recommends that amendment of this claim would be futile. (ECF No. 89 at 1263-64.) I incorporate by reference the cited authority and discussion contained in section III(H) of this Order. Based on my earlier finding that I have no meaningful standard upon which to judge the appropriateness of the BOP's decision to classify D Unit as a general population unit because facility classifications are clearly committed to the discretion of the BOP, I overrule Plaintiff's objection. I agree and find no error with Magistrate Judge Mix's recommendation that amendment to assert this claim against proposed Defendant BOP would be futile.
e. Proposed Claim Five
Claim Five addresses whether the conditions in the general population unit at ADX violate the Eighth Amendment. Magistrate Judge Mix recommends that amendment of this claim to assert additional factual information or Defendants would be futile. (ECF No. 89 at 1264-65.) I incorporate by reference the cited authority and discussion contained in section III(F) of this Order.
In his objection, Plaintiff asserts that by alleging additional facts, he has stated a plausible Eighth Amendment claim. Specifically, Plaintiff adds allegations that "he is held in solitary confinement in his cell for twenty-two to twenty-four hours a day." (Proposed Third Am. Compl. ¶ 39). He goes on to allege that when he "is permitted to leave his cell, it is only to go to a single man, dog-kennel-type cage for up to two hours of `recreation.'" (Proposed Third Am. Compl. ¶¶ 40-41). Frequently, Plaintiff is denied outdoor recreation. (Proposed Third Am. Compl. ¶¶ 40-41.) Plaintiff claims that he "has little to no human contact" and has very limited opportunity to speak to other inmates. (Proposed Third Am. Compl. ¶¶ 43-45). Plaintiff is deprived "of basic human needs such as contact with other people, environmental stimulation, and sufficient exercise." (Proposed Third Am. Compl. ¶¶ 48.)
After reviewing the additional factual allegations, I see no reason to deviate from my earlier finding that Plaintiff has failed to put forth sufficient allegations of an Eighth Amendment claim. He has failed to add any information to refute my finding that he receives basic needsmeals, shelter, and regular recreation opportunities. As I previously stated, Plaintiff's allegations about the lack of interaction with other inmates fail to satisfy the objective component of the deliberate indifference test. See Georgacarakos, 2010 WL 1291833 at *12.
With respect to the subjective component of the deliberate indifference test, Plaintiff's conclusory allegations that the conditions of confinement have caused him "significant psychological and physical harm" are insufficient to show that Defendants knew about such harm and acted with deliberate indifference to cause it. See Callahan, 471 F.3d at 1159 (10th Cir. 2006); Farmer, 511 U.S. at 837, 114 S.Ct. *1258 1970. Thus, I overrule Plaintiff's objection and agree with Magistrate Judge Mix's recommendation that amendment of this claim to assert additional factual information or Defendants would be futile.
V. CONCLUSION
Based on the foregoing, it is
ORDERED that Defendants' Motion for Judgment on the Pleadings (ECF No. 65), filed February 23, 2011, is GRANTED. In accordance therewith, Claim 1(a), Claim 1(b), and Claim 2, contained in the Second Amended Complaint, are DISMISSED WITH PREJUDICE for failure to state a claim. Plaintiff's APA Claim, contained in the "Request for Relief" section of the Second Amended Complaint, is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Thus, the Second Amended Complaint is DISMISSED in its entirety. It is
FURTHER ORDERED that the Recommendation of United States Magistrate Judge Mix (ECF No. 89) is AFFIRMED AND ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Plaintiff's Motion for Leave to File Amended Complaint (ECF No. 86), filed May 11, 2011, is DENIED.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, United States Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for Leave to File Amended Complaint [Docket No. 86; Filed May 11, 2011] ("Motion to Amend"). Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C. COLO.LCivR 72.1C.3., the Motion has been referred to this Court for a recommendation.[1] The Court has reviewed the Motion to Amend, the proposed Third Amended Complaint [Docket No. 86-1], Defendants' Response in opposition to the Motion [Docket No. 88], the entire file, relevant legal authority, and is fully advised in the premises. Although the deadline for a reply has not yet expired, I may review the matter at any time pursuant to D.C.COLO.CivR 7.1C. For the reasons stated below, the Court RECOMMENDS that the Motion to Amend be DENIED.
I. Case Background
This matter involves the circumstances associated with Plaintiff's incarceration at the United States Penitentiary, Administrative Maximum Prison in Florence, Colorado ("ADX"). Until October 2010, Plaintiff was proceeding pro se. At that time, Plaintiff secured the services of counsel through his placement on the Court's list of individuals in need of pro bono counsel [Docket Nos. 46, 58 & 59]. On February 23, 2011, Defendants filed a Motion for Judgment on the Pleadings [Docket No. 65] seeking to dismiss Plaintiff's claims. That motion is fully briefed and pending before Chief Judge Wiley Y. Daniel. Because the parties disagree as to the scope of Plaintiff's current Complaint [Docket No. 21], simultaneous with Plaintiff responding to the Motion for Judgment on *1259 the Pleadings, Plaintiff sought leave to amend his Complaint to clarify the claims at issue. See Response [#74] at 24-25. Chief Judge Daniel notified Plaintiff that requests to amend could not be contained in a responsive pleading and directed him to seek permission to amend via separate motion [Docket No. 78]. This Motion followed.
The proposed Third Amended Complaint [Docket No. 86-1] at issue in the Motion to Amend seeks to set forth two additional claims and to add factual information applicable to Plaintiff's pending claims. Motion [#86] at 4-6. Plaintiff also seeks to amend his Complaint by adding and subtracting certain individual Defendants and asserting claims against the Bureau of Prisons ("BOP"). See id. Defendants oppose the Motion to Amend on the grounds that the claims asserted in the proposed Third Amended Complaint would be futile. Response [#88] at 4-14.
II. Analysis
The Court should grant leave to amend a complaint "freely . . . when justice so requires." Fed.R.Civ.P. 15(a)(2). Leave to amend need not be given, however, "upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). As noted above, Defendants argue that the Motion to Amend should be denied because each proposed claim or amendment is futile. Response [#88] at 4-14. Although not raised by Defendants, the Court also notes the application of Fed.R.Civ.P. 16(b) to the relief requested.
A. Fed.R.Civ.P. 16(b)Good Cause
As an initial matter, the Scheduling Order [Docket No. 55] provided that the deadline for seeking leave to amend pleadings expired on September 17, 2010. Scheduling Order [#55] at 1. Plaintiff filed the Motion to Amend long after the expiration of this deadline. Thus, the Motion is untimely. Under these circumstances, and prior to review of the Motion pursuant to Fed.R.Civ.P. 15(a), the Court considers whether Plaintiff has shown "good cause" under the standard set out in Fed.R.Civ.P. 16(b) for seeking to amend the current Complaint [Docket No. 21]. See Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D.Colo.2000) (quoting Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997), aff'd, 129 F.3d 116 (4th Cir.1997) ("Rule 16(b)'s `good cause' standard is much different than the more lenient standard contained in Rule 15(a). . . . Properly construed, `good cause' means that scheduling deadlines cannot be met despite a party's diligent efforts. . . . Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.")). "To establish `good cause,' the party seeking to extend the deadline must establish that the scheduling order's deadline could not have been met with diligence." Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993); see also Fed. R.Civ.P. 16(b) (a scheduling order deadline "may be modified only for good cause and with the judge's consent").[2]
*1260 The addition of counsel generally does not amount to good cause under the standard set out in Fed.R.Civ.P. 16(b). See, e.g., Marcin Eng'g, LLC v. Founders at Grizzly Ranch, LLC, 219 F.R.D. 516, 521 (D.Colo.2003) ("That new counsel is dissatisfied with the state of the case it inherited is not" good cause for action requested "long after the court-ordered deadlines have passed."). Although the pleading amendment deadline expired before the appearance of any counsel (as opposed to Plaintiff securing new counsel), the Court notes that counsel delayed approximately six months after entering an appearance before seeking leave to amend. Moreover, counsel did not move for an extension of time to seek amendment nor acknowledge in the Motion to Amend that they had an obligation to do so. Such history does not necessarily evidence diligence. Arguably, the Motion is subject to denial on this basis. Nevertheless, the Court resolves the Motion on Defendants' argument that amendment would be futile.
B. Fed.R.Civ.P. 15(a)Futility of Amendment
"Although Fed.R.Civ.P. 15(a) provides that leave to amend shall be given freely, the district court may deny leave to amend where amendment would be futile. A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 859 (10th Cir.1999); see also Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir. 1991) ("Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss. . ., a court may dismiss sua sponte when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." (citations omitted)). In this case, there are two grounds upon which Plaintiff's proposed Third Amended Complaint could be subject to dismissal: (1) lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) (Claims Three and Four); and (2) failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) (Claims One, Two and Five).
Because futility is based on whether a claim could survive a motion to dismiss, the applicable standards for resolving a motion to dismiss are relevant here. The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Dismissal of a federal claim for lack of subject-matter jurisdiction "is proper only when the claim is `so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974)).
A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995). When reviewing a factual attack on a complaint supported by affidavits or other documents, the Court makes its own factual findings and need not convert the motion to one brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Id. at 1003.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). To survive a Rule 12(b)(6) motion, "[t]he complaint *1261 must plead sufficient facts, taken as true, to provide `plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, a complaint must include "enough facts to state a claim to relief that is plausible on its face." TON Servs., Inc. v. Qwest Corp., 493 F.3d 1225, 1235 (10th Cir.2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 1949, 173 L.Ed.2d 868 (2009). Moreover, "[a] pleading that offers `labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Id. (citation omitted).
"The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Id. (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). However, "[t]he court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (citation omitted). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'" Ashcroft, 129 S.Ct. at 1949 (citation omitted).
1. Claim One[3]
Claim One alleges that Plaintiff's conditions in the general population unit at ADX implicate a liberty interest. In addition, Plaintiff contends that his placement and continued confinement at ADX is in violation of his Fifth Amendment right to due process. This claim has been repeatedly denied on summary judgment on the basis that prisoners do not possess a liberty interest in avoiding the conditions in the general population unit at ADX. See Jordan v. BOP, 191 Fed.Appx. 639, 653 (10th Cir.2006) (unpublished decision) (control unit); Saleh v. BOP, No. 05-cv-02467-PAB-KLM, 2010 WL 5464294, at *3-6 (D.Colo. Dec. 29, 2010) ("Saleh II") (unpublished decision); Rezaq v. Nalley, Case No. 07-cv-02483-LTB-KLM, 2010 WL 5157313, at *1 (D.Colo. Dec. 14, 2010), adopting 2010 WL 5157317 ("Rezaq II") (unpublished decision) (general population unit); Georgacarakos v. Wiley, No. 07-cv-01712-MSK-MEH, 2010 WL 1291833, at *11-13 (D.Colo. Mar. 30, 2010) (unpublished decision) (general population unit). Moreover, in ruling on a motion to dismiss, District Judge Philip A. Brimmer recently *1262 adopted a recommendation to dismiss an identical due process claim involving ADX conditions in the general population unit. See Matthews v. Wiley, 744 F.Supp.2d 1159, 1170-73 (D.Colo.2010).
Recently, the Court noted that given the evolution of jurisprudence regarding this specific issue, it is unlikely that any prisoner in the general population unit at ADX can survive a motion to dismiss on this claim. See Saleh v. BOP, No. 05-cv-02467-PAB-KLM, 2010 WL 5464295, at *13 (D.Colo. Nov. 23, 2010) ("Saleh I") (unpublished decision), adopted by Saleh II, 2010 WL 5464294. Indeed, since that recognition, at least one other ADX general population case has been dismissed on a motion to dismiss. See Deberry v. Davis, No. 10-cv-00725-CMA-BNB, 2011 WL 1258509, at *3 (D.Colo. Mar. 31, 2011) (unpublished decision) (dismissing claim that ADX general population unit conditions violated due process because "the conditions faced by Plaintiff in [that unit] were no more burdensome than conditions faced by other inmates in cases where the courts have found no due process violations"). Plaintiff's proposed Third Amended Complaint lacks sufficient or unique factual information to justify a different result. This is particularly true here given that Plaintiff does not allege that his confinement at ADX prolongs his prison term or that it is indefinite (beyond arguments raised and rejected in prior cases), two crucial facts in the establishment of a liberty interest. Saleh I, 2010 WL 5464295, at *16 (citing Townsend v. Fuchs, 522 F.3d 765, 772 (7th Cir.2008)).
Moreover, to the extent that Plaintiff intended to assert this claim against Defendants in their individual capacities, Defendants are likely entitled to qualified immunity.[4]Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir.2007) ("The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages `insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known.'" (citation omitted)); see also Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if Plaintiff fails either inquiry, no further analysis need be undertaken and qualified immunity is appropriate). Here, there is no clearly established law that the conditions in the ADX general population implicate a liberty interest for which certain procedural protections are due. Indeed, cases which have addressed this issue both on summary judgment and motions to dismiss have all held to the contrary. See, e.g., Saleh II, 2010 WL 5464294, at *3-6 (summary judgment); Matthews, 744 F.Supp.2d at 1170-73 (motion to dismiss). Accordingly, amendment of this claim to assert additional factual information or Defendants would be futile.
2. Claim Two
Claim Two addresses an alleged conspiracy by Defendants to violate Plaintiff's constitutional rights. Because I find that Plaintiff is not entitled to relief on his Fifth Amendment claim (see above) or his Eighth Amendment claim (discussion to follow), Defendants cannot be guilty of participating in a conspiracy to violate these constitutional rights. See, e.g., Dixon v. City of Lawton, 898 F.2d 1443, 1449 & n. 6 (10th Cir.1990) (noting that proof of deprivation of a constitutional right is a necessary predicate for any constitutional conspiracy claim). Moreover, when "qualified immunity exists on Plaintiff['s] underlying claim[s], by definition, [Plaintiff fails] to state a claim for conspiracy." See, e.g., *1263 Gehl Group v. Koby, 838 F.Supp. 1409, 1419 (D.Colo.1993). Accordingly, amendment of this claim to assert additional factual information or Defendants would be futile.
3. Claim Three
Claim Three addresses whether proposed Defendant BOP's decision to deny Plaintiff placement in the Step-Down Unit Program at ADX violates the APA. A recent Recommendation found that the Court lacked jurisdiction over a similar claim brought pursuant to the Federal Tort Claims Act. See Saleh v. United States, No. 09-cv-02563-PAB-KLM, Recommendation [# 57] at 9-11 (decision pending). The use of alternative statutory authority as a predicate for the claim does not prompt a different result, but does require a slightly different analysis.
While most agency actions are reviewable pursuant to the APA, there are two notable exceptions. "The notable two exceptions, found in 5 U.S.C. § 701(a)(1) and (2), are for situations in which judicial review is expressly precluded by statute or the agency action is committed to agency discretion by law." Payton v. United States Dep't of Agric., 337 F.3d 1163, 1167-68 (10th Cir.2003). The exception at issue here is statutory preclusion. Specifically, 18 U.S.C. § 3621 confers "discretion on the BOP to designate a prisoner's place of imprisonment." Wedelstedt v. Wiley, 477 F.3d 1160, 1162 (10th Cir.2007); see also Matthews, 744 F.Supp.2d at 1175 (noting that pursuant to § 3621, and in the context of placement at ADX, BOP can consider any seemingly relevant information in determining where to house an inmate). Pursuant to the clear language of the statute, decisions about where to incarcerate an inmate (which, when ADX is involved, necessarily include consideration of whether an inmate is entitled to be placed in particular units pursuant to the Step-Down Unit Program), fall within § 3621. However, pursuant to 18 U.S.C. § 3625, placement decisions governed by § 3621 are "exempt[ ] ... from the APA's judicial review provisions." Jordan v. Wiley, 411 Fed.Appx. 201, 214 (10th Cir.2011) (unpublished decision) (discussing whether federal court can review prison disciplinary decisions pursuant to the APA and concluding that it cannot); see also Redmon v. Wiley, 349 Fed.Appx. 251, 256 (10th Cir.2009) (unpublished decision) (noting that APA barred review of BOP decision determining particular prisoner's eligibility in prison program governed by § 3621). Although the question of whether the Court has jurisdiction to review Step-Down Unit Program decisions related to a particular prisoner pursuant to the APA does not yet appear to have been decisively addressed, given the above, it is likely that such a claim would be barred by statute. See id. Accordingly, amendment to assert this claim against proposed Defendant BOP would be futile.
4. Claim Four
Claim Four addresses whether proposed Defendant BOP's designation of the D Unit at ADX as a general population unit violates the APA. This claim has been addressed and rejected in this District. See Rezaq v. Nalley, No. 07-cv-02483-LTB-KLM, 2008 WL 5172363, at *13-14 (D.Colo. Dec. 10, 2008) ("Rezaq I") (unpublished decision). Specifically, as in Rezaq I, Plaintiff argues that D Unit is, in essence, a control unit. By federal regulation, before inmates may be placed in a control unit, certain prerequisites must exist and certain process must be provided to the inmate. See 28 C.F.R. §§ 541.40-.50 (2007). Plaintiff claims that he was deprived of the process he was due as a result of BOP's designation of D Unit as a general population unit and consequent elimination of protections afforded to individuals designated to a control unit.
*1264 As noted above, judicial review pursuant to the APA is subject to two exceptions. The second exception, namely that "the agency action is committed to agency discretion by law," is applicable here. Payton, 337 F.3d at 1167-68. As I noted in Rezaq I, this exception applies when "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
The statute which gives the BOP the authority to house and classify prisoners allows the BOP to develop
an integrated system which will assure the proper classification and segregation of Federal prisoners according to the nature of the offenses committed, the character and mental conditions of the prisoners, and such other factors as should be considered in providing an individualized system of discipline, care, and treatment of the persons committed to such institutions.
18 U.S.C. § 4081. Considering this language, facility classifications are clearly committed to the discretion of the BOP, and this Court has no meaningful standard upon which to judge the appropriateness of those decisions. See Heckler, 470 U.S. at 830, 105 S.Ct. 1649.
The Second Circuit has considered the authority conferred by § 4081 and noted that this, and a related statute "vest ... broad unreviewable discretion in the Attorney General." Wolfish v. Levi, 573 F.2d 118, 125 & n. 13 (2d Cir.1978). While Wolfish was later overruled on other grounds, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the applicable portion of the Second Circuit's holding has not been overturned. Further, the Supreme Court has recognized that "Congress has given federal prison officials full discretion" pursuant to § 4081 and there is "no legitimate statutory" basis for a prisoner to challenge classifications derived from such discretion. Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); see also Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir.1976) (noting that "the classification of prisoners rests within the sound discretion of the Attorney General"). Accordingly, amendment to assert this claim against proposed Defendant BOP would be futile.
5. Claim Five
Claim Five addresses whether the conditions in the general population unit at ADX violate the Eighth Amendment. This claim has also been addressed and rejected. See Ajaj v. United States, 293 Fed.Appx. 575, 582-84 (10th Cir.2008) (unpublished decision); Matthews, 744 F.Supp.2d at 1175-77; Georgacarakos, 2010 WL 1291833, at *12; see also Sattar v. Gonzales, No. 07-cv-02698, 2009 WL 606115, at *3-4 (D.Colo. Mar. 6, 2009) (unpublished decision) (involving conditions in an even more-restrictive unit at ADX). Simply, courts have repeatedly held that there is nothing about conditions in the ADX general population unit which can be said to shock the conscience or deprive prisoners of the basic necessities required by the Eighth Amendment. See, e.g., Hill v. Pugh, 75 Fed.Appx. 715, 721 (10th Cir. 2003) (unpublished decision) (holding that ADX general population conditions show "neither an unquestioned and serious deprivation of basic human needs, nor intolerable or shocking conditions"). Moreover, to the extent that Plaintiff intended to assert this claim against Defendants in their individual capacities, Defendants are likely entitled to qualified immunity. There is no clearly established law that the conditions at ADX rise to the level of those within the purview of the Eighth Amendment. Indeed, cases which have addressed this issue have all held to the contrary. See, e.g., Ajaj, 293 Fed.Appx. at *1265 582-84; Matthews, 744 F.Supp.2d at 1175-77. Accordingly, amendment of this claim to assert additional factual information or Defendants would be futile.
III. Recommendation
For the reasons given above, the Court respectfully RECOMMENDS that Plaintiff's Motion to Amend [# 86] be DENIED and that Plaintiff's current Complaint [# 21] be addressed in relation to the pending Motion for Judgment on the Pleadings [# 65].
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir.1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir.1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).
Dated: May 21, 2011.
NOTES
[1] After reviewing Plaintiff's response to the Motion for Judgment on the Pleadings, I issued a Minute Order, dated April 5, 2011, notifying the Plaintiff that any requests to amend his Second Amended Complaint could not properly be contained in a responsive pleading and must be filed in a separate motion under D.C.COLO.L.CivR 7.1.C and controlling case law.
[2] There is some disagreement as to whether Plaintiff asserts a fourth claim under the APA. I address this issue later in the Order.
[3] I note that on February 9, 2010, District Judge Brimmer issued an Order dismissing the Bureau of Prisons ("BOP") as a party, holding that sovereign immunity barred Plaintiff's claims against the BOP. (ECF No. 22.)
[4] In a recent decision, the Supreme Court held that courts are no longer required to follow the Saucier format in evaluating a qualified immunity claim. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
[5] In light of my finding that Plaintiff's Fifth Amendment claim is dismissed for failure to state a claim, I need not address Defendants' alternative argument that Plaintiff lacks a Bivens remedy for this type of injury.
[6] As I previously stated, Plaintiff is currently represented by pro bono defense counsel, who entered appearances in the case subsequent to the filing of the Second Amended Complaint.
[1] A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1461, 1462-63 (10th Cir.1988). Whether motions to amend are dispositive is an unsettled issue. Chavez v. Hatterman, No. 06-02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13, 2009) (unpublished decision) (citing cases). When an order denying a motion to amend removes a defense or claim from the case it may be dispositive. Cuenca v. Univ. of Kan., 205 F.Supp.2d 1226, 1228 (D.Kan. 2002). For the purposes of resolving the present Motion, the Court will assume that the issues involved are dispositive and require a recommendation.
[2] It is the practice in this District to utilize the two-step analysis even though the Court of Appeals for the Tenth "[C]ircuit has not yet decided whether a party seeking to amend its pleadings after the scheduling order deadline must show `good cause' under Rule 16(b) in addition to the Rule 15(a) requirement." Strope v. Collins, 315 Fed.Appx. 57, 62 n. 4 (10th Cir.2009) (unpublished decision) (internal quotation omitted).
[3] Although the primary purpose of amendment is to add two APA claims to Plaintiff's case (Claims Three and Four), the proposed Third Amended Complaint also adds Defendants and factual allegations which apply to the currently pending claims (Claims One, Two and Five). As such, I consider whether amendment would be futile as to any claims contained in the proposed Third Amended Complaint. Although this review arguably overlaps with the Chief Judge's review of the pending Motion for Judgment on the Pleadings, such is unavoidable and is not intended to be binding as to that motion.
[4] The Court need not address Defendants' alternative argument that Bivens claims cannot lie for this type of injury. See Response [# 88] at 9.
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Matter of Young v Rios (2017 NY Slip Op 05007)
Matter of Young v Rios
2017 NY Slip Op 05007
Decided on June 16, 2017
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on June 16, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
823 CAF 16-00210
[*1]IN THE MATTER OF JOHN F. YOUNG, PETITIONER-APPELLANT,
vMERRY L. RIOS, RESPONDENT-RESPONDENT.
PAUL M. DEEP, UTICA, FOR PETITIONER-APPELLANT.
MICHAEL N. KALIL, ATTORNEY FOR THE CHILD, UTICA.
Appeal from an order of the Family Court, Oneida County (Randal B. Caldwell, J.), entered December 22, 2015 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father commenced this violation proceeding, alleging that respondent mother has not allowed him visitation with their child despite a prior order that, inter alia, allowed the father visitation "at times and places as [the] parties can agree." The Attorney for the Child (AFC) moved to dismiss the petition on the ground that the father was equitably estopped from asserting his visitation rights due to his failure to establish a relationship with the child. Family Court proceeded with a hearing on both the violation petition and the AFC's motion and thereafter granted the motion of the AFC. The father appeals. We affirm the order dismissing the petition, but our reasoning differs from that of the court.
We agree with the father that the court erred in invoking the doctrine of equitable estoppel in the context of a violation petition and in granting the AFC's motion based on that doctrine. "The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position" (Matter of Shondel J. v Mark D., 7 NY3d 320, 326). Here, there is a prior order establishing the father's visitation rights, and he is alleging that the mother violated that order; he is not seeking visitation rights in the first instance (cf. Matter of Johnson v Williams, 59 AD3d 445, 445; Matter of Razo v Leyva, 3 AD3d 571, 571-572; see generally Jean Maby H. v Joseph H., 246 AD2d 282, 285-290).
Nevertheless, because the court proceeded with a full hearing on the merits, we have an adequate record and may determine the merits of the father's violation petition " in the interest of judicial economy and to avoid further delay' " (Matter of Maher v Maher, 1 AD3d 987, 988). We conclude that the father failed to establish by clear and convincing evidence that the mother willfully violated the order regarding visitation (see Matter of Palazzolo v Giresi-Palazzolo, 138 AD3d 866, 867; see also Matter of Oravec v Oravec, 89 AD3d 1475, 1475). Finally, we note that the father's contention that a specific visitation schedule is in the child's best interests is not properly before us in the context of this violation petition, but the father may properly raise that contention in the context of a modification petition.
Entered: June 16, 2017
Frances E. Cafarell
Clerk of the Court
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87 B.R. 248 (1988)
In re HBA EAST, INC., Round One Productions, Inc., Jeffrey D. Levine, Debtors.
Bankruptcy No. 187-70557-353.
United States Bankruptcy Court, E.D. New York.
June 3, 1988.
*249 Arthur Steinberg, John P. Sirico, Kaye, Scholer, Fierman, Hays & Handler, Norman Klasfeld, Beal, Klasfeld, Lentz & Romash, New York City, for debtors.
Brian M. Cogan, Elaine Nussbaum, Stroock & Stroock & Lavan, New York City, H. Dixon Montague, Vinson & Elkins, Houston, Tex., for movants.
JEROME FELLER, Bankruptcy Judge.
We are confronted with another instance, recently occurring with increasing frequency in the bankruptcy courts, in which the right to seek relief under Chapter 11 of the Bankruptcy Code is challenged on the grounds that the reorganization petition was not filed in good faith. Specifically, before the Court for determination is a motion filed on July 6, 1987 by JEA Boxing Company, Inc. ("JEA") and Pine Hill Investments, Inc. d/b/a Houston Boxing Association ("Pine Hill") (collectively "Movants") to dismiss the Debtors' Chapter 11 petitions, for cause, pursuant to 11 U.S.C. § 1112(b), or to lift the automatic stay, for cause, pursuant to 11 U.S.C. § 362(d) based upon the Debtors' lack of good faith in filing their petitions. Alternatively, Movants request abstention pursuant to 28 *250 U.S.C. § 1334(c) from considering the parties' state law claims in Adversary Proceeding No. 187-0086 (JEA Boxing Company, Inc. et al., v. HBA East, Inc., et al.) so as to permit adjudication of those claims in a pending pre-petition Texas state court lawsuit instituted by Movants.
The Debtors vigorously oppose the motion. Affidavits in support of the motion and in opposition thereto were filed. Pre-hearing memoranda of law were filed by both sides and evidentiary hearings were held on July 30, 1987, September 21, 1987 and October 13, 1987. Much testimony was adduced, numerous exhibits introduced and considerable argument heard. Following receipt of post-hearing submissions, the Court held final argument on November 24, 1987 and reserved decision. We are informed that final settlement discussions between the parties terminated without success on May 14, 1988.
For the reasons hereinafter set forth, which constitute the Court's findings of fact and conclusions of law, the motion to dismiss the Debtors' Chapter 11 cases as not being filed in good faith is granted. After careful review of the totality of facts, all the circumstances surrounding the Chapter 11 filings and the applicable law, we can only conclude that these Chapter 11 cases were commenced for purposes inconsistent with the underlying spirit, intent and overall policy aims of the Chapter. As such, dismissal is mandated in order to protect the jurisdictional integrity of the bankruptcy court and to prevent misuse of the bankruptcy reorganization process. In light of the Court's granting of the dismissal motion, we need not address the alternative relief sought by Movants.
FACTS
I. Background
This bitter dispute involves a business relationship between two boxing industry entrepreneurs gone sour. In one corner stands Josephine Abercrombie ("Abercrombie"); in the other stands Jeffrey D. Levine ("Levine"). Both pugilists operated through a maze of corporate entities often hopelessly confused in the record of these proceedings. Parsed down to its bottom line essentials, Abercrombie and/or her entities were to supply the funds in an enterprise variously referred to in the record as a joint venture, association, partnership or limited partnership. Levine and/or his entities, on the other hand, were to operate and manage that enterprise. After approximately two years, the relationship ruptured in or about December 1986. Charges of fraud, deceit, misconduct and overreaching were hurled, one against another. Funding of Levine's boxing promotion operations were terminated in or about January 1987 and a major lawsuit was commenced on March 3, 1987, in a Texas state court against Levine and his corporations.
The Texas state court litigation was automatically stayed by virtue of 11 U.S.C. § 362(a) when, on March 27, 1987, Levine and two of his corporations, HBA East, Inc. ("East") and Round One Productions, Inc. ("Round One") (collectively "Debtors") each filed separate petitions for reorganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of New York. Since that date, the Debtors have remained in the possession of their property and the operation of their business pursuant to 11 U.S.C. §§ 1107 and 1108.
East and Round One are New York corporations located in Garden City, New York. Exhibit A annexed to their Chapter 11 petitions describes their businesses as packaging and promoting boxing events and the individual careers of professional prize fighters. Levine is the sole shareholder and President of both East and Round One. Exhibit A annexed to Levine's Chapter 11 petition identifies Debtor-Levine as the sole operating officer of two corporations engaged in the business of promoting professional prize events, presumably referring to East and Round One.
The Debtors' antagonists, at least nominally, are JEA and Pine Hill. JEA and Pine Hill are two Abercrombie owned Texas corporations located in Houston, Texas and, like the Debtors, are engaged in the business of boxing promotion. Abercrombie is the sole shareholder and a director of *251 both corporations. She is also Chairman of the Board of JEA. As indicated, JEA and Pine Hill are the Movants herein and Plaintiffs in both the Texas state court litigation and Adversary Proceeding No. 187-0086 filed in this Court.
With this background in mind, we now present a detailed exposition of the facts pieced together, as simply as possible, from a voluminous record, marked by inconsistencies, outright contradictions, vagueness and vehement factual disputes between the parties. The disagreements are so pervasive that the parties even dispute their disagreements.
II. The Genesis and Development of the Business Relationship Between Levine, Abercrombie and their Respective Corporations
Levine entered the boxing promotion business in 1979. Prior to connecting with Abercrombie in or around October 1984, Levine, with the apparent assistance of his attorney, friend, advisor and landlord, Michael M. Perlman, Esq. ("Perlman")[1], formed a number of corporations to conduct his boxing ventures.[2] In 1980, Round One, was formed. In 1984, Levine formed Round One Promotions, Inc., Ring Sports Promotions, Inc. and Ring Network, Inc. Through the latter two entities, Levine attempted to develop and sell a "pay per view" boxing series to television. Ring Sports Promotions, Inc. was to handle the boxing cards and Ring Network, Inc. was to handle the relationships with the television and/or cable networks. This venture failed. The investors ceased providing funds which Levine believed necessary to make the "pay per view" series successful and by the fall of 1984 Levine's boxing business was tottering on the brink of financial collapse.[3]
Levine met Abercrombie in or about October 1984. In the ensuing two or three months there were a number of meetings, conferences or discussions between Levine, Perlman, Abercrombie and her coterie of advisors or consultants. On or about October 22, 1984, Levine obtained from Abercrombie a $75,000 loan. Receipt of the monies was acknowledged by Ring Sports Promotions, Inc. and Ring Network, Inc., the repayment of which was secured by a 51% interest in Round One, a Debtor herein (Movants' Exh. R). Apparently, Abercrombie grew disenchanted with the "pay per view" venture and declined to further provide monies for that operation. However, Levine and Abercrombie agreed to collaborate in the promotion of prize fighters and boxing events, thereby incepting an undefined and unstructured business relationship to be formalized in the future. This new relationship was referred to in a letter to Abercrombie, dated November 29, 1984, on the letterhead of Round One Promotions, Inc. (Movants' Exh. Q). On November 30, 1984, Abercrombie sent Levine a check in the sum of $40,000 (Movants' Exh. S).
The business arrangement between Levine and Abercrombie contemplated a mutually rewarding relationship whereby Abercrombie would supply the monies and Levine would provide the expertise and contacts for the promotion of boxing events. Levine deferred to Abercrombie in determining the precise form of their business relationship. Ultimately, it was decided that a limited partnership would be the appropriate structure to formalize the relationship.[4]
*252 In December 1984, Perlman incorporated East, the principal Debtor herein, on behalf of Levine to serve as the corporate vehicle to implement Levine's business relationship with Abercrombie and/or her corporations. That linkage is reflected by the appellation chosen. The initials "HBA" in East's name derive from "Houston Boxing Association", Abercrombie's corporate entity otherwise known as Pine Hill. For some sixteen (16) months, Abercrombie's lawyers and accountants, drafted, redrafted and circulated countless variants of a limited partnership agreement in an attempt to memorialize the Levine and Abercrombie relationship. In May 1986, Levine signed a limited partnership agreement (Movants' Exh. T and U), which agreement was made effective as of January 31, 1985. The terms of this complex agreement essentially provide that East is to promote boxing events on behalf of a limited partnership between East and Pine Hill denominated as HBA East, Ltd ("Limited Partnership"). JEA was admitted into the limited partnership as a general partner by way of amendment to the limited partnership agreement. East is designated as a general and managing partner under the limited partnership agreement.
Levine contests vigorously the legality of the limited partnership agreement and the very existence of the Limited Partnership.[5] He asserts, among other things, that there never was a meeting of the minds on salient aspects of the limited partnership agreement and that such agreement, together with companion documents, were filed with the Texas Secretary of State in violation of a separate agreement to hold all the documents in escrow, pending resolution of outstanding issues. See, Debtors' Exh. Nos. 14 and 15.
East and the other Debtors received substantial funds from Abercrombie, Movants and/or other Abercrombie entities during the approximate two year period of the Levine-Abercrombie business relationship. Levine was utterly dependent upon these funds to conduct his boxing business (Testimony of Levine, Transcript of October 13, 1987 at pp. 107-108, 140). Movants assert that they provided funds to East and the other Debtors of at least $1.2 million, from which they have seen no repayment, return or accounting. Not surprisingly, the Debtors vigorously dispute the claim and apparently assert an array of defenses, offsets and counterclaims. See, Debtors' Proposed Findings of Fact and Conclusions of Law at p. 32.
III. The Rupture and Ensuing State Court and Bankruptcy Court Litigation
In or about December 1986, the business relationship between Levine and Abercrombie deteriorated beyond the point of repair. Although the underlying cause of the rift is disputed, it would appear that irreconcilable differences arose over whether East should relocate from Garden City to Manhattan, and more importantly, the management of the alleged Limited Partnership,[6] the use of monies provided by Movants[7] and the extent of Levine's control over business operations. As a result of these disputes, Movants terminated all funding to East in early 1987 and thereafter purport to have invoked § 7.05 of the limited partnership agreement (Movants' Exh. U at 16), which provides that in the event of breach by East, Movants have the right to convert the interest of East in the partnership from general partner to limited partner and oust East from any further participation *253 in the management and control of the partnership.[8]
Movants also took other action. On March 3, 1987, Movants commenced an action against the Debtors and other Levine entities in a Texas state court ("Texas Action")[9], alleging Texas state law claims for declaratory and injunctive relief, a constructive trust and an accounting, as well as unspecified compensatory and consequential damages arising from the Debtors' alleged fraud, breach of contract, breach of fiduciary duty, and diversion of business opportunity in connection with the limited partnership agreement. In addition, Movants sought the appointment of a receiver.
In early March 1987, or about the time Movants commenced the Texas Action and purported to have invoked § 7.05 of the limited partnership agreement, Movants transmitted a series of letters to boxers or other third parties already assertedly bound by contract to the Debtors (Debtors' Exh. Nos. 2-8). These letters made reference to provisions of the limited partnership agreement, initiation of the Texas Action and the consequent impact of such matters on the Abercrombie-Levine business relationship.[10]
The Debtors filed their Chapter 11 petitions in this Court on March 27, 1987, shortly prior to expiration of the time to answer the complaint in the Texas Action. Among other things, Levine's affidavit accompanying the Chapter 11 petitions of East and Round One asserts that the Texas lawsuit is without merit and further that the Texas court lacked jurisdiction to adjudicate the controversy. However, by filing on March 27, 1987, the Debtors were able to invoke the automatic stay, thereby rendering it unnecessary to answer, respond, or otherwise appear in the Texas Action. Confronted by the stay of the Texas Action triggered by the Chapter 11 filings, Movants commenced an Adversary Proceeding in this Court on April 24, 1987 against the Debtors (No. 187-0086) alleging state law claims similar to those raised in the Texas Action, as well as a claim that the monies allegedly owed by Levine to Movants constitute a non-dischargeable debt under 11 U.S.C. § 523. Having thus effectively transferred the situs of the litigation, the Debtors filed an answer to the complaint in Adversary Proceeding 187-0086 on or about May 20, 1987, denying all material allegations contained in the complaint and containing several counterclaims seeking, among other things, unspecified sums in compensatory and consequential damages plus punitive damages in an amount "upwards of" $1 million. Movants have replied to the counterclaims.
On July 6, 1987, Movants filed the instant motion seeking dismissal of the Debtors' Chapter 11 cases.
*254 IV. Assets, Liabilities and Operations of Debtors[11]
A. East
1. Assets East's Chapter 11 petition reflects assets as of March 24, 1987 aggregating $268,500, comprised of the following: cash $5,000; accounts receivable $40,000; furniture and equipment $2,500; boxing contract rights $200,000; video tapes of fight films $5,000; a 1986 Lincoln Mark VII automobile $16,000. The schedules executed by Levine on May 12, 1987 report East's assets in the sum of $376,000. The discrepancy is apparently attributable to inclusion in East's schedules of an intercompany debt owing from Round One in the amount of $148,000 and omission from East's schedules of the $40,000 accounts receivable item. Round One's schedules, also executed on May 12, 1987 by Levine, reflect the intercompany debt to East for monies borrowed in the amount of only $83,000. In any event, whatever the correct figure might be, the monies owing from Round One is a highly dubious asset in that Round One is a comatose entity with no assets other than a hotly disputed boxing contract with one fighter.[12]
East's only assets of any possible significance are the boxing contract rights, particularly its claimed rights to certain prize fighters Tony Tucker, Vincent Borgese, Tony Martin, Roger Mayweather and Terry Marsh.[13] With the possible exception of Tony Tucker, East has never made money to speak of from the other fighters.[14] Moreover, and most importantly, all of East's contract rights may not even constitute assets of the Debtor at all. As indicated, Movants stoutly assert that such contracts belong to the Limited Partnership and that Movants ousted East/Levine from management and control over the Limited Partnership assets under the terms of the underlying limited partnership agreement.[15]
2. Liabilities East's Chapter 11 petition reflects liabilities as of March 24, 1987 aggregating $378,000, comprised of the following: secured debt (auto loan) $16,000; priority debt (taxes) $75,000; general unsecured debt $287,000. East lists twelve (12) general unsecured creditors. The bulk of the unsecured debt ($250,000 87%) is listed as disputed obligations to Movants, i.e., JEA $125,000 and Pine Hill $125,000.[16] There are two (2) other unsecured creditors with disputed claims totaling $22,400. The remaining eight (8) unsecured creditors hold East's only undisputed unsecured debt. The latter totals only $14,900 or approximately 5% of East's general unsecured debt. These obligations range from dues owing the Mid-American Boxing News and the International Hall of Fame in the sums of $35.00 and $25.00, respectively, to bills for unpaid accounting services in the amount of $6,500 to Joel J. Ratzker, C.P.A.
3. Operations East is a one man business run by Levine. Apart from Levine, it employs one other person, a secretary. East was never a self sustaining operation prior to the filing of the petition. Absent *255 the monies provided from Abercrombie sources, East could not have survived. Testimony of Levine, Transcript of October 13, 1987 at pp. 107-108, 140. Although certain boxing promotions were profitable, according to Levine, on the whole, East never made money from its inception to the time of its Chapter 11 filing, a period of approximately 2¼ years. Transcript of October 13, 1987 at p. 101.
Since the filing of its Chapter 11 petition, East's operations have been sustained primarily as a result of one boxing event it co-promoted involving Tony Tucker on August 1, 1987, a fight between Tucker and Mike Tyson.[17] Since Movants/Abercrombie dispute East/Levine's contract rights to Tucker, East's deposit of some $140,000 in its operating account from the Tucker fight was a result of a stipulation agreed to by the parties after a bitter battle and so ordered by the Court. In accordance with the stipulation, a sum of $175,000 from the fight was placed in escrow pending further order of the Court. Subsequently and predictably, a dispute arose as to the proper allocation of the monies from the Tucker fight as between East's debtor in possession operating account and the escrow account.[18]
B. Round One
1. Assets Round One's Chapter 11 petition reflects assets as of March 26, 1987 consisting of cash in the sum of $366.00 and contract rights valued at $50,000.[19] The $50,000 in contract rights comprises Round One's only asset and refers to an asserted exclusive promotional rights contract with Carl Williams ("Williams"), a ranking heavyweight contender. The schedules executed by Levine on May 12, 1987 value the Williams promotional contract at $225,000. In his testimony, Levine even went further in representing that Williams "was probably one of the two remaining opponents out there for Mr. Williams [i.e., Mike Tyson]" and that the right deal for a Williams-Tyson match would be worth $250,000 $750,000.[20] Transcript of September 21, 1987 at p. 148.
Most significantly, however, whatever the value of the Williams contract might be to Round One, such value may well be academic. The very existence of that contract dating back to March 7, 1984 is subject to a dispute between Round One and Williams in pending litigation before this Court (Round One Productions, Inc. v. Carl Williams, Adversary Proceeding No. 187-0015). Williams contends that the promotional rights contract has expired by its very terms long ago and he has filed a motion for summary judgment predicated upon the alleged expiration. Moreover, even assuming that the Williams contract is still in existence, Movants/Abercrombie assert substantial interests in that contract predicated upon, among other things, i) a 51% security interest in the assets of Round One arising out of the $75,000 loan in October 1984 to Ring Sports Promotions, Inc., Ring Network, Inc. and/or Levine (Movants' Exh. R, Testimony of Levine, Transcript of October 13, 1987 at pp. 45-47); *256 and ii) advances of at least $65,000 $70,000 by Movants/Abercrombie specifically in connection with the promoting of Williams (Testimony of Levine, Transcript of October 13, 1987 at pp. 99-100).[21]
2. Liabilities Round One's Chapter 11 petition reflects liabilities aggregating $257,500, all unsecured debt, of which $250,000 (97%) is listed as disputed obligations to Movants, i.e., JEA $125,000 and Pine Hill $125,000.[22] Round One lists only two (2) general unsecured creditors other than Movants in the sum of $7,500, one of whom may well be an insider. Round One lists a debt of $2,500 for unpaid accounting services to Joel J. Ratzker. Mr. Ratzker owns a 5% interest in Williams. Testimony of Levine, Transcript of October 13, 1987 at p. 90.
3. Operations Round One is essentially a defunct, non-operating company employing one person, Levine himself. It has but one claimed asset, the hotly disputed Williams contract. As Levine so aptly stated, "it's [i.e., Round One] strictly the Carl Williams situation." Transcript of October 13, 1987 at p. 78. The last time Round One made a profit was February 1986 (Testimony of Levine, Transcript of October 13, 1987 at pp. 90-91). Round One's "statements of operations" since the filing of its Chapter 11 petition reflect little more than de minimis interest income amounting to approximately $1,000.
C. Levine
First and foremost to any meaningful consideration of Levine's Chapter 11 filing, the inextricable relationship and virtual identity between Levine and his two corporations, East and Round One, must be recognized. Levine's filing, like the filings of East and Round One, was precipitated by his disputes with Abercrombie. Indeed, Levine's affidavit accompanying his Chapter 11 petition sets forth only the Texas action as the reason for the filing. Assertions by Levine regarding difficulties in meeting certain day to day personal obligations such as the monthly mortgage payments on his home[23] strain credulity, particularly in light of his payments of substantial retainers ($45,000) to the two law firms retained to prosecute the three (3) Chapter 11 cases.
Levine's Chapter 11 petition reflects assets and liabilities of $161,000 and $294,000, respectively. Levine's only reported asset of value ($160,000) is a one-half interest in his jointly owned home in Dix Hills, New York. The value of his ownership of East and Round One, identified in his schedules as "corporations in companion Chapter 11 proceeding [sic], corporations presently insolvent" is reflected as "unknown". Apart from an accelerated one-half principal amount of mortgage debt on his home ($80,000) and some estimated and disputed tax obligations ($37,000), Levine's Chapter 11 petition reflects liabilities to eighteen (18) general unsecured creditors, each in sums of less than five-hundred dollars ($500.00). The total of these eighteen (18) general unsecured claims is only $3,030. Included therein are disputed debts to Movants of $2.00, i.e., JEA $1.00 and Pine Hill $1.00.[24] Levine's four (4) remaining general unsecured claims arise out of a dental bill (approximately $1,250), a medical bill ($1,855), a loan from his accountant, Joel J. Ratzker ($70,000), and a loan from one Jeffrey Schwartz ($100,000). No evidence was adduced regarding the terms, conditions and circumstances underlying these loans. Further, regarding the loan from Jeffrey Schwartz, no evidence was adduced regarding his relationships or connections to Levine.
*257 V. The Camacho Affair
Prior to Levine's connection with Abercrombie he had promoted certain boxing contests for a fighter named Hector "Macho" Camacho ("Camacho") through Round One Promotions, Inc. Camacho left Levine to use other promoter services and efforts were made by Levine to attract him back to his fold. In late February 1987, when the dispute between Levine and Abercrombie was reaching its high point, Camacho was training at Abercrombie's facilities in Houston, Texas with Pine Hill picking up the expenses. Presumably, Camacho's presence in Houston was attributable to the business relationship between Movants/Abercrombie and the Debtors which was then in the process of evisceration.
Abruptly, for reasons that are sharply disputed by the parties, on or about February 26, 1987, Camacho packed his bags and left Houston. Shortly after the departure, Camacho was signed up for a bout with Howard Davis in Atlantic City, New Jersey on May 2, 1987 by a newly formed corporation, Ring Warriors, Inc. ("Ring Warriors"). Ring Warriors was formed on March 17, 1987, two weeks after the Texas Action was commenced by Movants and ten (10) days prior to the filing of the Debtors' Chapter 11 petitions. This new entity was incorporated by Perlman, Levine's close friend and the Debtors' pre-petition attorney, through the filing of a certificate of incorporation identical to the one earlier used by Perlman to incorporate East. Ring Warriors' start up capital consisted of $10.00 contributed by Perlman, who is the corporation's sole officer, director and shareholder. Levine is variously described as a "principal employee" or "sales agent" of Ring Warriors. Ring Warriors realized approximately $300,000 in gross revenues for the promotion of the May 2, 1987 Camacho-Davis bout and Levine received $10,000, which sum is variously described as a "commission" or "referral fee".
Movants cite the Camacho saga as a blatant manifestation of Levine's seizure of Limited Partnership business opportunities and/or misuse of the Chapter 11 process by way of diversion of estate assets. Underlying this assertion is the alleged existence of a promotional rights contract entered into between Camacho and East. Levine disputes the existence of such a contract, asserting that East merely had a form of letter from Camacho allowing Levine to explore with the networks and other promotors the availability of boxing contests for Camacho. Significantly, the document referred to by the parties to buttress their respective positions vanished and was never produced. Furthermore, this Court attaches little credibility to the self-interested testimony of the parties regarding such vanished document.
Levine contends that Ring Warriors was formed because Camacho refused further direct or indirect involvement with Abercrombie or her companies because of alleged personally disparaging remarks made to him by representatives of Movants and threats of litigation against him made by Movants if he went to work for the Debtors. Thus, according to Levine, Camacho was "steered" to Ring Warriors, an entity divorced from the warring factions. Movants, of course, vigorously dispute these assertions as a matter of fact and as credible reasons for the formation of Ring Warriors and that company's promotion of the Camacho-Davis fight. Significantly, neither party called Camacho as a witness to shed light on the situation and the reasons for his signing a contract with Ring Warriors remain a mystery.
We are unable to make any ultimate findings or determinations vis a vis the Camacho dispute on this record. The evidence in that regard is incomplete and in hopeless conflict. Happily, resolution of the instant motion to dismiss the Debtors' Chapter 11 petitions does not hinge on its divination. The Camacho dispute does have, however, ancillary significance to the dismissal motion in that the charge of diversion of assets so graphically portrays the intensity and depth of the two party dispute between Abercrombie and Levine. In that connection, it should be pointed out that the Debtors, in turn, counter punch in charging that Movants/Abercrombie have diverted their assets and/or seized their business opportunities through, among other *258 things, the formation by Abercrombie of a new entity, HBA, Inc., in April 1987.[25]
DISCUSSION
Every bankruptcy reorganization provision since 1898 has incorporated expressly, or by judicial interpretation, a good faith standard for the commencement, maintenance and confirmation of bankruptcy rehabilitation cases. In re Victory Construction Co., Inc. 9 B.R. 549, 551-558, 565-569 (containing detailed and excellent historical survey), modified on other grounds, 9 B.R. 570 (Bankr.C.D.Cal.1981), vacated as moot, 37 B.R. 222 (B.A.P. 9th Cir.1984). Although good faith is required for confirmation of a reorganization plan, 11 U.S.C. § 1129(a)(3), Chapter 11 does not expressly condition the right to file or maintain a Chapter 11 case on good faith of the debtor at the time the case is initiated. However, 11 U.S.C. § 1112(b) permits a bankruptcy court to dismiss a Chapter 11 case "for cause". The provision lists ten (10) examples of cause, but the list is not exhaustive.[26] In that connection, the pertinent legislative history points out that the court is empowered to consider other factors to reach appropriate results in particular cases. H.R.Rep. No. 595, 95th Cong., 1st Sess. 406 (1977), S.Rep. 989, 95th Cong., 2nd Sess., 117 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5787, 5903, 5963, 6365. The precise perimeters of "cause" are intentionally omitted from the statute so as to afford maximum flexibility and, among other things, to enable a bankruptcy court to dismiss a Chapter 11 case for any reason cognizable to the equity power and conscience of the court as constituting an abuse of the bankruptcy reorganization process. Thus, inherent in the statute and clearly inferred in 11 U.S.C. § 1112(b) is the requirement of good faith on the part of a debtor to file and maintain a Chapter 11 case. This implicit good faith Chapter 11 prerequisite has been consistently upheld by the courts. See, e.g., Natural Land Corporation v. Baker Farms, Inc. (In re Natural Land Corporation), 825 F.2d 296 (11th Cir.1987); Little Creek Development Co. v. Commonwealth Mortgage Corp. (In re Little Creek Development Co.), 779 F.2d 1068 (5th Cir.1986); In re Winshall Settlor's Trust, 758 F.2d 1136 (6th Cir.1985); Albany Partners, Ltd. v. W.P. Westbrook, Jr. (In re Albany Partners, Ltd.), 749 F.2d 670 (11th Cir.1984); Furness v. Lilienfield, 35 B.R. 1006 (D.Md. 1983); In re Victory Construction Co., Inc., supra; In re 299-Jack Hemp Associates, 20 B.R. 412, 413 (Bankr.S.D.N.Y.1982) (Bankruptcy court in construing § 1112(b) "follows by what is now impressive judicial gloss that an indispensable ingredient of every [Chapter 11] petition filed . . . is that it be in good faith").
The good faith requirement provides parties in interest and the bankruptcy courts with an important and useful policing tool for preserving the reorganization process for those Chapter 11 cases for which it was actually intended. Its proper application makes certain that debtors who seek bankruptcy reorganization protection do so for no purpose other than to accomplish the legitimate aims and objectives of the statute. The Congressional design in enacting Chapter 11, like its predecessor reorganization provisions under the former Bankruptcy Act, was to encourage resort to bankruptcy reorganization as a means of avoiding premature or unnecessary liquidations *259 thereby maximizing payments to creditors, saving jobs and, if possible, preserving shareholder interests. Congress clearly described that goal as follows:
"The purpose of a business reorganization case, unlike a liquidation case, is to restructure a business's finances so that it may continue to operate, provide its employees with jobs, pay its creditors, and produce a return for its stockholders. The premise of a business reorganization is that assets that are used for production in the industry for which they are designed are more valuable than those assets sold for scrap. Often, the return on assets that a business can produce is inadequate to compensate those who have invested in the business. Cash flow problems may develop, and require creditors of the business, both trade creditors and long term lenders, to wait for payment of their claims. If the business can extend or reduce its debts, it often can be returned to a viable state. It is more economically sufficient to reorganize than to liquidate, because it preserves jobs and assets.
. . . .
The purpose of the reorganization . . . case is to formulate and have confirmed a plan of reorganization . . . for the debtor. The plan determines how much creditors will be paid, and in what form (cash, property or securities, for example); whether the stockholders will continue to retain any interest in the company; and in what form the business will continue. . . . "
H.R.Rep. No. 595, 95th Cong., 1st Sess. 220-21 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5963, 6174, 6180. The key phrases in this explanation of the Chapter 11 purpose are "restructure a business's finances" and "business reorganization".
No single factor is determinative of the issue of good faith, but rather the bankruptcy courts must examine the facts and circumstances of each case in light of several established guidelines or indicia. As the Fifth Circuit observed in In re Little Creek Development Company, supra, 779 F.2d at 1072:
"Determining whether the debtor's filing for relief is in good faith depends largely upon the bankruptcy court's on-the-spot evaluation of the debtor's financial condition, motives. . . . Findings of lack of good faith in proceedings based on . . . [Section] 1112(b) have been predicated on certain recurring but non-exclusive patterns, and they are based on a conglomerate of factors rather than on any single datum."
These guidelines, insofar as here applicable, require consideration of the following: i) whether the Debtors filed their Chapter 11 petitions as a tactic to obtain a litigation advantage, ii) whether the Debtors' reorganization effort is essentially a two party dispute, iii) the nature and extent of the Debtors' assets, debts and business operations and iv) whether there is a reasonable probability that a reorganization plan can be proposed and confirmed.
The filing of the Debtors' Chapter 11 petitions on March 27, 1987 was strategically timed and calibrated to events in Texas. A period of approximately three months had elapsed since the complete breakdown of the Abercrombie-Levine business relationship and concomitant termination of funding the Debtors' operations. Movants had taken concrete steps to cure or mitigate their alleged hurt arising out of that relationship, the most significant of which was commencement of the Texas Action on March 3, 1987. By filing on the eve of their answering date in the Texas Action and not before, the Debtors were able to use the automatic stay as a sword to avoid appearing in that lawsuit, and were able to shift the forum of their disputes with Movants to this Court, a forum they believed might be more favorable to their plight.[27] As a general rule where, *260 as here, the timing of the filing of a Chapter 11 petition is such that there can be no doubt that the primary, if not sole, purpose of the filing was a litigation tactic, the petition may be dismissed as not being filed in good faith. Furness v. Lilienfield, supra; In re Karum Group, Inc., 66 B.R. 436 (Bankr.W.D.Wash.1986); In re Smith, 58 B.R. 448 (Bankr.W.D.Ky.1986); In the Matter of Jesus Loves You, Inc., 46 B.R. 37 (Bankr.M.D.Fla.1984); In re Wally Findlay Galleries (New York), Inc., 36 B.R. 849 (Bankr.S.D.N.Y.1984).
The Debtors do not deny that their Chapter 11 petitions were filed as a litigation tactic. Instead, the Debtors argue that Chapter 11 filings may be dismissed only in situations where the litigation tactic rises to the level of being "abusive", such as where either i) a trial date was imminent in a non-bankruptcy forum and a debtor sought to avoid the day of reckoning by filing a Chapter 11 petition; or ii) a debtor sought to avoid an order of a non-bankruptcy forum by filing a Chapter 11 petition. Since no trial was imminent in the Texas Action and the state court in that lawsuit had not issued any orders, the argument is made that there is no basis to dismiss the Debtors' Chapter 11 petitions as a litigation tactic. This argument has no merit. The Debtors make a distinction without a difference and would have this Court draw an impossible distinction between a permissible litigation tactic and an impermissible one. This Court will not embark upon such futile efforts. Chapter 11 petitions filed for the purpose of frustrating the legitimate processes of a non-bankruptcy forum constitute use of the reorganization vehicle inconsistent with the congressional intent. In re Martin, 51 B.R. 490, 495 (Bankr.M.D. Fla.1985). Chapter 11 relief should not be available to entities filing to obtain a perceived advantage in litigation with others or to provide an alternate judicial forum. Northwest Place, Ltd. v. Lawrence E. Cooper (In re Northwest Place, Ltd.), 73 B.R. 978, 982 (Bankr.N.D.Ga.1987). As one court succinctly put it, "[t]he automatic stay was not intended to grant defendants a last-minute escape chute out of pending civil litigation." Furness v. Lilienfield, supra., 35 B.R. at 1009.
It is abundantly clear that but for the disputes between Debtors/Levine and Movants/Abercrombie and commencement of the Texas Action no Chapter 11 cases would have been filed by the Debtors. In essence, these Chapter 11 cases involve little more than a private two-party dispute. Other than the disputed claims of Movants, the Debtors' debts were surely not so significant or pressing to require resort to Chapter 11. Indeed, no evidence was adduced by the Debtors showing that their relatively few other creditors, most of whom hold de minimis claims, were pressuring for payment. The Debtors' problems are intrinsically interwoven with their disputes with Movants and cannot be cured absent their favorable resolution. The Chapter 11 petitions were filed for that purpose.
An important factor to consider in determining whether a Chapter 11 case was initiated in good faith is whether the reorganization effort essentially involves a two-party dispute which can be resolved in a non-bankruptcy forum. In re Van Owen Car Wash, Inc., 82 B.R. 671, 673 (Bankr.D. N.H.1988); In re Heritage Wood 'N' Lakes Estates, Inc., 73 B.R. 511, 514 (Bankr.M.D. Fla.1987); In re Cooper Properties Liquidating Trust, Inc., 61 B.R. 531, 536 (Bankr.W.D.Tenn.1986); In re Wellwood Corp., 60 B.R. 319, 320-21 (Bankr.M.D.Fla. 1986); In re Martin, supra, 51 B.R. at 495; In re American Property Corporation, 44 B.R. 180, 182 (Bankr.M.D.Fla.1984); In re Mildevco, 40 B.R. 191, 192 and 194 (Bankr. S.D.Fla.1984). These Chapter 11 cases do not represent efforts pitched to a "business reorganization" or to "restructure a business's finances". They are essentially a two-party civil lawsuit involving non-bankruptcy law brought in the bankruptcy court in the guise of being a reorganization of some sort under Chapter 11. Chapter 11 was never intended to be used as a fist in a two party bout. The Chapter is entitled reorganization and not litigation.
*261 Other factors developed by the cases evidencing an absence of good faith in the filing and maintenance of Chapter 11 cases must also be considered. Reorganization presupposes the existence of monies to pay the expenses of operating a business and assets to generate the funds for implementation of a reorganization plan. These Debtors had minimal cash when they filed ($5,366.01)[28] and report even less ($2,059.62) in their debtor-in-possession operating accounts as of the most recent date available, i.e., April 30, 1988.[29] The Debtors' only assets of any possible significance are the boxing promotional contracts. Not only are these assets highly speculative, but even more importantly their ownership and control are vigorously disputed by Movants. Indeed, the asset claimed to be the most valuable, the Williams contract, is attacked from two fronts Movants laying claim to the contract and Williams himself asserting that the contract has expired by its very terms. The existence of disputes or contingencies relating to a debtor's only possible significant assets constitutes basis for dismissal of a Chapter 11 petition as not being filed in good faith. See, In re Winshall Settlor's Trust, supra, 758 F.2d at 1137.
The Debtors' boxing business has never been a self sufficient operation. Levine's utter dependence upon funding from Abercrombie sources is an undeniable fact and even with the substantial funds emanating from Abercrombie sources the Debtors, according to Levine, have never operated profitably over a sustained period of time. Levine's pre-Abercrombie boxing ventures were similarly unsuccessful, resulting in major litigation upon the refusal of other persons to provide further funding. The history of the Debtors, disputes regarding the ownership and control of their assets, and the absence of funding from outside sources support the conclusion that these Debtors have no realistic chance of successfully reorganizing. The absence of a realistic probability of successful reorganization is grounds for dismissal of a Chapter 11 petition as not being filed in good faith. Albany Partners, Ltd., v. W.P. Westbrook, Jr. (In re Albany Partners, Ltd.), supra, 740 F.2d at 674; In re Winshall Settlor's Trust, supra, 758 F.2d at 1137 (Whether there is a probability of a plan of reorganization being proposed and confirmed is a factor to be considered in determining whether a Chapter 11 petition was filed in good faith). Neither the bankruptcy courts nor creditors should be subject to the costs and delays of reorganization proceedings where there is little more than visionary hopes of rehabilitation.
The Debtors insist that because Chapter 11 of the Bankruptcy Code contains no express requirement for the filing of reorganization petitions, if a debtor is motivated by plausible, legitimate reorganization purposes and not by the mere desire to prevent foreclosure or hinder creditors, bad faith is not present in a Chapter 11 case. As authority for this proposition, the Debtors cite In re Clinton Centrifuge, Inc., 72 B.R. 900 (Bankr.E.D.Pa.1987), appeal pending, and In re The Bible Speaks, Inc., 65 B.R. 415 (Bankr.D.Mass.1986). The Debtors further remind the Court that entities should be accorded the opportunity to reorganize under the Bankruptcy Code's policy of "open access" to the reorganization process. In re Johns-Manville Corp., 36 B.R. 727, 735-37 (Bankr.S.D.N.Y.1984), appeal dismissed, 39 B.R. 234 and 998 (D.S.D.N.Y.), mandamus petition denied sub. nom. In re Committee of Asbestos-Related Litigants, 749 F.2d 3 (2d Cir.1984).
The short answer to the Debtors' contentions is that every petitioner for reorganization purports to possess "plausible, legitimate reorganization purposes". The bankruptcy court, however, must examine all of the circumstances surrounding the filing of the petition in determining the issue of good faith, for the standard is an objective one rather than a question of the *262 subjective intention of the petitioners. Appellate courts and countless lower courts have labored hard to eliminate subjectivity in resolving issues of good faith in the filing and maintaining of Chapter 11 cases by establishing objective guidelines. Mindful of the fact that in the end good faith determinations are "subject to judicial discretion under the circumstances of each case", In re Nancant, Inc., 8 B.R. 1005, 1006 (Bankr.D.Mass.1981), we are reluctant to commence argument with the Clinton Centrifuge and Bible Speaks cases. However, to the extent that Clinton Centrifuge and Bible Speaks may be construed to give undue reliance on the subjective intent of Chapter 11 petitioners and mere lip service to the good faith requirement, this Court respectfully disagrees with those decisions.
We do agree with the Debtors that Congress in the enactment of Chapter 11 did legislate a policy of "open access" to the reorganization process. This hardly means, as the Debtors would suggest, unbridled entitlement to that process. These Debtors filed their Chapter 11 petitions as a litigation tactic. The ensuing Chapter 11 cases involve little more than a two party conflagration, i.e., an effort to "reorganize" the disagreements with Movants. There are hardly any other creditors apart from Movants and there is no evidence that even such other creditors are clamoring for payment. The Debtors' one man business operation is highly speculative and the assets are disputed. There is virtually no money to run the business, no cognizable assets to fund a plan of reorganization and no realistic probability of a successful reorganization. Where, as here, the totality of facts and circumstances rise to a level of egregiousness compelling a conclusion that the reorganization process is being perverted, we are constrained to dismiss the Chapter 11 petitions as not being filed and maintained in good faith.
The Debtors further argue that they properly filed their Chapter 11 petitions to obtain the much needed protection of a breathing spell provided by the automatic stay contained in 11 U.S.C. § 362(a) as against Movants. This argument is fallacious. The protection of the automatic stay is not per se a valid justification for a Chapter 11 filing; rather, it is a consequential benefit of an otherwise good faith filing. A perceived need for the automatic stay, without more, cannot convert a bad faith filing to a good faith one. In re Herndon Executive Center, Inc., 36 B.R. 803, 806 (Bankr.M.D.Fla.1984). Similarly, it has been held that Chapter 11 petitions filed merely to take advantage of other singular provisions of the Bankruptcy Code are improper and may be dismissed as not being filed in good faith. In re Southern California Sound Systems, Inc., 69 B.R. 893 (Bankr.C.D.Cal.1987) (Chapter 11 petition filed to reject executory contract pursuant to 11 U.S.C. § 365(a)); Northwest Place, Ltd. v. Cooper (In re Northwest Place, Ltd.) supra, 73 B.R. 978 (Chapter 11 petition filed to invoke trustee's avoidance powers under Bankruptcy Code); In re Cardi Ventures, Inc., 59 B.R. 18 (Bankr.S. D.N.Y.1985) (Chapter 11 petition filed to assume and assign lease pursuant to 11 U.S.C. § 365(f)); In re Nancant, Inc., supra, 8 B.R. 1005 (Chapter 11 petition filed to have certain tax liability determined pursuant to 11 U.S.C. § 505).
Finally, Debtors assert that Movants lack standing to bring their motion to dismiss the Chapter 11 petitions because it would appear that the funds loaned, transferred or advanced to the Debtors were made in large measure by Abercrombie and not the Movants. This contention is obviously without merit. Movants were scheduled as creditors by the Debtors themselves, albeit disputed ones. It is clear that by virtue of 11 U.S.C. § 101(9)(A) the term "creditor" is defined to mean an "entity that has a claim against the debtor that arose . . . before the order for relief concerning the debtor". In turn, the term "claim" is defined in 11 U.S.C. § 101(4)(A) to mean a "right to payment, whether or not such right is . . . disputed". Accordingly, Movants are creditors and have standing to raise the issue of bad faith. 11 U.S.C. § 1109(b) ("A party in interest, including . . . a creditor . . . may *263 raise and may appear and be heard on any issue in a case under this chapter").[30]
CONCLUSION
Chapter 11 on its face does not discourage petitioners from trying to take advantage of the bankruptcy system. However, there is nothing in the legislative history which would indicate that Congress by omitting an express requirement of good faith intended to do away with this long established safeguard against misuse and abuse of bankruptcy reorganizations. Good faith is the gatekeeper of the equity court. Bankruptcy courts are equity courts with powerful tools at their disposal to interfere with or disrupt traditional laws. Were there no good faith limits on the invocation of these powers, they could easily cause injustice and thwart useful social policy. This can occur in several ways. Bad faith filings protect unworthy "debtors" and correspondingly inflict harm on their creditors or adversaries. Bad faith cases crowd out legitimate reorganization cases by the disproportionate amount of judicial attention that must be devoted to them. The successful maintenance of bad faith reorganizations brings disrepute on the bankruptcy system in the eyes of the public and in the long run drives up the cost of credit. The frequency of dubious Chapter 11 filings throughout the country accentuates a need for scrutiny and vigilance to prevent misuse of bankruptcy reorganizations and to protect the jurisdictional integrity of the bankruptcy court.
ORDER
Based on all the foregoing, it is ORDERED, ADJUDGED AND DECREED that the motion to dismiss the above-captioned Chapter 11 cases filed by JEA Boxing Company, Inc. and Pine Hill Investments, Inc. d/b/a Houston Boxing Association be, and hereby is, granted; and it is further
ORDERED, ADJUDGED AND DECREED that the Chapter 11 cases of HBA East, Inc., Round One Productions, Inc. and Jeffrey D. Levine be, and the same hereby are, dismissed.
NOTES
[1] Perlman is the landlord of 585 Stewart Avenue, Garden City, New York, the location from which Levine and his corporations have throughout operated their businesses. Perlman conducts his affairs out of a suite, shared with Levine, at the same address.
[2] The basis for placement by Levine of assets or transactions in particular corporations is entirely unclear in the record. See, e.g., Testimony of Levine, Transcript of October 13, 1987 at pp. 79-80.
[3] Subsequently, Levine, Ring Sports Promotions, Inc. and Ring Network, Inc. sued the investors for millions of dollars and the investors interposed substantial counterclaims. That action is apparently still pending in Supreme Court, Nassau County.
[4] The limited partnership structure was selected by Abercrombie, based upon the advice of her lawyers and accountants, for purposes of liability and tax protection. Debtors' Exh. 1 at 42.
[5] Movants have also claimed the existence of some other form of partnership interest entity with the Debtors. This contention is vigorously disputed by Levine as well.
[6] Abercrombie wished to add one Stanley Hoffman ("Hoffman"), a boxing manager, as an additional party to the business venture comprised of Movants and East. Hoffman is or was a friend and associate of Levine who ultimately switched allegiance and went to work for the Abercrombie forces.
[7] The Debtor's contend that the record does not support any assertion that there was disagreement among the parties as to the use of monies provided to East. This Court believes that this disagreement is implicit in the entire record.
[8] Section 7.05 of the limited partnership agreement reads as follows:
"At any time, if the Managing Partner is in breach of its duties hereunder, JEABCO shall have the right, exercisable by written notice to that effect from JEABCO to the Managing Partner [East] and without any further action, to convert the interest of the Managing Partner in the Partnership from a general partner interest to a limited partner interest in the Partnership. Such conversion shall not change such Managing Partner's Percentage Interest, its rights under Article V hereof, or its liabilites in connection with the Partnership or this Agreement to the extent same had accrued prior to the date of such notice, but shall preclude the Managing Partner from any further participation in the management and control of the Partnership."
[9] JEA Boxing Company, Inc. and Pine Hill Investments, Inc. d/b/a Houston Boxing Association v. HBA East, Ltd., et al. (No. 87-10167, Dist.Ct. of Harris Cy., Tex., 157th Judicial District). The non-debtor Levine entities sued were Ring Network, Inc. and Ring Sports Promotions, Inc.
[10] Levine contends that these letters were part of a concentrated effort by Abercrombie, through her agents, to interfere with or divert assets of East. Movants assert, in turn, that such assets belong to the alleged Limited Partnership or, at least, some other partnership entity with the Debtors, and that it was Levine who consistently usurped or diverted the boxing contracts from the partnership to East.
[11] All figures in this section of the decision are rounded off.
[12] For a description of this "asset" of Round One and the disputes related thereto, see discussion of Round One's assets, infra, at p. 255.
[13] Terry Marsh has retired due to epilepsy. Testimony of Levine, Transcript of October 13, 1987 at p. 92.
[14] Levine testified that East's most valuable asset is the Tucker promotional rights contract (September 21, 1987 Transcript at p. 151, October 13, 1987 Transcript at p. 123) and prior to August 1, 1987 East made a net profit of $75,000 on Tucker (October 13, 1987 Transcript at pp. 92-93).
[15] Although not reflected on East's Chapter 11 petition or schedules, Levine testified that he, presumably referring to East, has an interest in certain fighters Frank Tate, Choo Choo Dixon, David Garvin and Vincent Bulware signed by Movants (Transcript of September 21, 1987 at pp. 173-174). Movants/Abercrombie surely dispute this assertion as energetically as East/Levine's claim to East's other contract rights. It would appear that East's only undisputed asset may well be Levine's boxing industry acumen, experience and contacts.
[16] Levine did not know the basis upon which the $250,000 figure was selected. Testimony of Levine, Transcript of October 13, 1987 at pp. 83-86. As indicated, Movants claim to have advanced the Debtors at least $1.2 million.
[17] Tucker lost the August 1, 1987 fight with Tyson.
[18] After the close of the record on the instant dismissal motion, East in or around November, 1987, acquired the promotional rights to Roberto Duran, a former boxing champion and a current ranking middle weight contender. In February, 1988, Duran beat Rick Stackhouse in a middle weight contest co-promoted by East/Levine. In light of the closing of the record on October 13, 1987, Movants/Abercrombie have not been heard in respect of the Roberto Duran contract rights. In any event, we would note that East's statement of operations for April, 1988 reflect year to date losses of $67,000 on a cash basis and $32,000 on a accrual basis. The balance in East's debtor in possession operating account as of April 30, 1988 was reported at $114.00. East also reported the sum of $4,400 in a debtor in possession money market account as of April 30, 1988.
[19] The balance sheet also reflects an accounts receivable item of $8,000. However, this figure is neither included in the tally of total assets in that balance sheet or Exhibit A annexed to the petition. We can only conclude therefore that this item was either included erroneously or is valueless.
[20] With all due respect to Williams' pugilistic abilities, it may be noted that over the recent few years Williams has lost bouts with top heavyweight fighters such as Larry Holmes, Mike Weaver and Bert Cooper.
[21] In addition, Movants contend that ownership of the Williams contract is in the Limited Partnership and not Round One. (Testimony of Robert F. Spagnola, Transcript of September 21, 1987 at pp. 50-51).
[22] The basis for the listed $250,000 disputed debt to Movants was never explained. See, footnote 16, supra.
[23] Levine testified that he was "about three or four months" in arrears on the home mortgage. September 21, 1987 Transcript at p. 171.
[24] See, footnotes 16 and 22, supra.
[25] We thus have a total of no less than four (4) "HBA" entities in these proceedings i) HBA East Inc., the principal Debtor herein; ii) Pine Hill Investments, Inc. d/b/a Houston Boxing Association, one of the Movants herein, iii) HBA East Ltd., the alleged Limited Partnership; and now iv) HBA Inc., a new Abercrombie entity. This phenomenon along with the virtual identity between Levine and his companies, Abercrombie and her companies, plus the poor or non-existent bookkeeping practices of the parties was responsible for the tendency of the parties, and per force this Court, to be imprecise in their references to the various entities throughout the instant dismissal motion proceedings.
[26] 11 U.S.C. § 1112(b) reads, in relevant part, as follows: "[O]n request of a party in interest . . . the court may dismiss a case under this chapter . . . for cause, including. . . ." [Emphasis Added]. The list of ten (10) enumerated causes for dismissal are set forth immediately thereafter. The phrase "including" is specifically recognized by the statute as a term which is "not limiting". 11 U.S.C. § 102(3) (rule of construction).
[27] Levine asserts that the Texas Action was too expensive to defend and that he obtained an estimate that it would cost approximately $30,000 in legal fees just to litigate the jurisdiction of the Texas court. Interestingly, the Debtors paid $45,000 in retainers to their lawyers in connection with their Chapter 11 cases and have incurred further substantial Chapter 11 legal and accounting expenses without any progress towards resolving their disputes with Movants.
[28] The Debtors' Chapter 11 petitions reflect cash as follows: East $5,000, Round One $366.01, Levine 0.
[29] Cash balances in the operating accounts were reported as follows: East $114.22, Round One $1,945.40. Levine has not filed his monthly operating report for April, 1988.
[30] In any event, the bankruptcy court has the power to raise the issue of good faith, sua sponte, to prevent misuse of its jurisdiction and miscarriage of its processes. 11 U.S.C. § 105(a).
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13 U.S. 122
9 Cranch 122
3 L.Ed. 677
DRUMMOND'S ADMINISTRATORSv.MAGRUDER & CO'S. TRUSTEES.
Feb. 9, 1815
Absent. LIVINGSTON, J. STORY, J. and TODD, J.
1
THIS was an appeal from the decree of the Circuit Court for
2
the Virginia district, in a suit in chancery brought by the trustees for the creditors of W. B. Magrader & Co. against Drummond's administrators, to compel the latter to account for funds put into the hands of their intestate by W. M. Magruder & Co.
3
The Defendants, in their answer, say they know no such firm or co-partnership as Wm. B. Magruder & Co. they cannot admit it, and hope the Complainants will be put to the proof of it. They have no knowledge of the deed of trust mentioned in the bill, and hope the Complainants will be required to make ample proof thereof. That W. B. Magruder was largely in debt to their intestate, and they believe the funds put into his hands by Magruder were intended to be applied to that debt.
4
The only proof of the deed of trust appearing in the transcript of the record, was a copy certified by one Gibson, who calls himself clerk of Baltimore county; without any certificate from the presiding judge that his attestation was in due form. It purported to be an assignment of personal estate only, and was not required by the laws of Maryland to be recorded.
5
P. B. KEY, for Appellants, contended,
6
1. That the Complainants have not shown any title to call the Defendants to account.
7
2. That on reversal this Court must dismiss the bill.
8
They claim as favored creditors at the expense of Drummond, who is an equally meritorious creditor of Magruder. They have no equity to be let in to new proof to make a new case.
9
If the Court below had dismissed the bill, relief could not have been given on a bill of review, unless new evidence, not known at the time of the first trial, should have been produced. This Court cannot send the cause back for a new trial; or if they can, they will not in favor of these exclusively favored creditors.
10
R. I. TAYLOR, contra.
11
The cause is now placed on very different ground from that on which it appeared in the Court below. There the question was, whether the Defendants could set off a debt due to their intestate from W. B. Magruder, against this claim in the right of W. B. Magruder & Co.
12
The only question now is whether the Court below erred in giving a decree in favor of the Complainants without evidence of the execution of the original deed of assignment. The Court below could not have decreed in favor of the Complainants, unless they had been satisfied of the execution of the deed, or the proof of its execution had been waved by the other party. This Court, therefore, will presume that the execution of the deed was so proved, or the proof waved. Exhibits may be proved viva voce at the trial. It was not necessary to reduce the testimony to writing. Harrison Ch. Prac. 403. Laws of U. S. vol. 1, p. 68. vol. 6, p. 100. If incompetent evidence was admitted in the Court below without objection, it is no cause for reversal of the decree.
13
P. B. KEY, in reply.
14
The execution of the deed was put in issue by the answer, and it ought to appear upon the record that it was proved. If the Complainants have failed to put the proof upon the record it is their own fault.
15
The answer puts in issue the right of the Complainants to sue. A copy from the record, even if properly authenticated, would not have been sufficient, because it is not such a deed as the law requires to be recorded.
February 25th. Absent. TODD, J.
16
WASHINGTON, J. delivered the opinion of the Court as follows:
17
The Appellees filed their bill on the equity side of the Circuit Court of Virginia for the purpose of recovering a sum of money due from William Drummond to William B. Magruder & Co. To entitle themselves to sustain this suit, they allege in their bill that they are creditors and trustees of William B. Magruder & Co. by virtue of a deed of assignment annexed to the bill as part thereof. This exhibit purports to be an assignment to the Complainants of all the partnership effects, debts and credits of William B. Magruder & Co. in trust for the payment of certain favored creditors of that company, amongst whom are the Complainants.
18
The Appellants filed their answer denying any knowledge of such a co-partnership as William B. Magruder & Co. and call upon the Complainants to prove the same. They also deny any knowledge of the deed of trust mentioned in and annexed to the bill, and call upon the Complainants to make full proof of it. To this answer there was a general replication; and the cause being heard upon these proceedings, the exhibits and examination of witnesses and the report of the master commissioner, a decree was rendered for the Complainants for the sum reported to be due from the Defendant to William B. Magruder & Co. from which decree the Defendants appealed to this Court.
19
The exhibit mentioned in and annexed to the bill, alleged to be an indenture of assignment from William B. Magruder & Co. to the Complainants, appears to be a copy of a sealed instrument certified to be a true copy from the records of Baltimore county Court, under the hand of William Gibson, who styles himself clerk of that Court. The record contains no other evidence of the authenticity of this instrument; and the question is, whether the Circuit Court erred in decreeing upon this evidence in favor of the Appellees.
20
The right of the Appellees to bring this suit is, by their own showing, merely derivative; and, consequently, it was incumbent on them to prove by legal evidence that the deed of assignment from William B. Magruder & Co. under which they claimed this right to sue a debtor of that house, was duly executed. The answer put this matter directly in issue by denying any knowledge of the deed exhibited with the bill, and requiring full proof to be made of it. This Court is not at liberty to presume that any other proof of this deed was given in the Court below than what appears on the record. That proof consists in the certificate of a person who styles himself clerk of Baltimore county Court, that the paper to which his certificate is annexed, is a copy of a deed taken from the records of the Court of that county; but there is no such certificate as the act of congress requires to satisfy the Court that the attestation affixed to this copy, is in due form. It follows that the instrument so certified cannot be noticed as a copy of a deed from William B. Magruder & Co.; and as it is the foundation of the Complainants' right, the Court erred in decreeing in favor of the Complainants upon such defective evidence. But as this Court cannot fail to perceive that the objection to the proof of this instrument is merely technical, and was probably not made at all in the Circuit Court, it would seem improper to dismiss the bill absolutely. The Court is unanimous in reversing the decree; and a majority are of opinion that the cause ought to be remitted to the Circuit Court of Virginia for further proceedings to be had therein.
21
Decree reversed and remanded for further proceedings.
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224 F.Supp.2d 463 (2002)
Charles Edward DAVIS, Plaintiff,
v.
LYNBROOK POLICE DEPARTMENT, a municipal entity, Joseph Neve, Chief of Police, individually and in his official capacity, and Detective James Curtis, individually and in his official capacity, Defendant.
No. 98CV0015(ADS)(MLO).
United States District Court, E.D. New York.
September 17, 2002.
*464 *465 *466 Charles Edward Davis, Beacon, NY, Plaintiff Pro Se.
Thurm & Heller, LLP, New York, NY (Milton Thurm, Angel Rios, of Counsel), for Defendants Lynbrook Police Department and Joseph Neve.
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, New York, NY (Jeffrey K. Van Etten, of Counsel), for Defendant James Curtis.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
Charles Edward Davis ("Davis" or the "plaintiff") commenced this action by filing a complaint on December 30, 1997, alleging that Detective James Curtis ("Curtis" or a "defendant"), Joseph Neve ("Neve" or a "defendant"), and the Lynbrook Police Department ("LPD" or a "defendant") (collectively, the "defendants") deprived him of his constitutional rights in violation of 42 *467 U.S.C. § 1983. Presently before the Court is a motion by Neve and the LPD (collectively, the "Lynbrook Defendants") for summary judgment.
I. BACKGROUND
A. The Parties
For the purpose of deciding the Lynbrook Defendants' motion for summary judgment, the following facts are undisputed unless otherwise indicated. The LPD is a department within the Village of Lynbrook. Neve became a member of the LPD on February 8, 1977 and has been Chief of the Department since his appointment in March 1991. Curtis was appointed as a police officer for the LPD on March 19, 1973.
B. Curtis' June 7, 1993 Automobile Accident
On June 7, 1993, Curtis was involved in a line-of-duty automobile accident in which he allegedly sustained injuries to his neck, back, left wrist, and elbow. The Lynbrook Defendants allege that as a result of these injuries, Curtis was on "partial disability leave" and was not assigned to full-time police duty on April 12, 1995, the date of the incident at issue in this case. They also allege that Curtis had not been on active police duty for more than one year preceding April 12, 1995. Davis alleges that despite being on "partial disability leave," Curtis continued to work as a police officer, making arrests and assisting other arresting officers, arrests from June 7, 1993 through April 12, 1995.
On December 8, 1993, Curtis informed Neve that he had applied for disability retirement to the New York State & Local Retirement System based on the injuries he sustained on July 7, 1993. On January 14, 1994, in connection with that application, Curtis signed an authorization for the release of his medical records to the Medical Board of the Retirement System. On August 18, 1994, Neve submitted Curtis' medical records to the New York State & Local Retirement System. On February 7, 1995, Neve rescinded his request for an appeal regarding Curtis' disability pension, "[i]n light of recent medical evidence." On June 13, 1995, Neve informed one John Black, an attorney who works in an unknown capacity for an unidentified state organization, that the Nassau County District Attorney ("NCDA") had been advised that Curtis submitted his brother's x-rays to the New York State & Local Retirement System in an attempt to receive a disability pension. Curtis' brother had been granted a disability pension on or about September 22, 1990. The Lynbrook Defendants maintain that Curtis' application for a disability retirement was still pending on April 12, 1995, but Davis disputes that allegation.
C. The Surveillance of Curtis
In a report to Neve dated March 5, 1995, one Clifford S. Trotter ("Trotter"), a private investigator, detailed the information he had gathered regarding Curtis. The first two paragraphs of the report confirmed that Neve had contacted Trotter's firm and asked Trotter to "initiate discreet surveillance operations relating to James E. Curtis." The report states that Neve had informed Trotter that Curtis was not working due to a disability, and that Neve had asked Trotter to determine Curtis' current activities. The report describes Trotter's observations of Curtis on three consecutive Thursdays: February 16, February 23, and March 2, 1995.
D. The April 12, 1995 Incident
On April 11, 1995 at approximately 11:00 p.m., Curtis, wearing civilian clothes, went to the Swiss Tavern in Lynbrook, where *468 he played darts and drank until 3:00 a.m. on April 12, 1995. When Curtis left the Swiss Tavern, he drove south on Ocean Avenue. The plaintiff, who also was driving south on Ocean Avenue, was on his way to Tri-State Newspapers, Inc., where he worked as a substitute newspaper carrier. The plaintiff was driving behind Curtis and saw the blue Cadillac that Curtis was driving swerving from side to side. The plaintiff thought the driver of the Cadillac might be drunk, so he "kept his distance".
Curtis pulled his car to the side of the road, allowing the plaintiff to pass. After Davis passed Curtis, Curtis resumed his drive south on Ocean Avenue, now following Davis. Davis observed the driver of the car behind him flashing his high beams and assumed that the driver needed assistance. Davis pulled his vehicle off to the side of the road.
Davis stopped his car, rolled down the driver's side window, and waited for the other motorist to stop his car. Davis had been driving with his high beams on because one of his headlights was not working properly. Curtis pulled up alongside Davis' car, yelled at Davis to get his lights fixed, and screamed profanities and racial slurs at him. Davis noticed that Curtis' speech was slurred and concluded that Curtis was drunk. Davis responded by saying, "All right, no problem," and drove away.
Curtis pulled out behind Davis and began following him. Curtis put on his high beams, "deliberately blinding" Davis, and tailgated Davis' car. Davis continued to the intersection of Ocean and Atlantic Avenues, where he stopped at a red light. Curtis stopped next to Davis' car. When Davis turned to look at Curtis, he saw that Curtis was grinning. Davis turned back to the light and waited for it to turn green, at which point Curtis said to Davis, "[H]ey asshole, hey asshole." Davis kept looking straight ahead at the light, and Curtis said to him, "[H]ey asshole, I'm a cop". Davis saw Curtis flash something silver, which Davis assumed was a badge.
Davis made a left turn onto Atlantic Avenue, and Curtis followed him. Davis made a right turn onto Access Road, which opened into the parking lot behind the Tri-State Newspapers warehouse. Curtis followed Davis onto Access Road. At this point, Davis became frightened because Access Road is not regularly traveled and is not well-lit. Davis drove quickly down Access Road, parked his car in the Tri-State Newspapers parking lot, and started walking toward the warehouse because he knew people would be inside.
Davis turned and saw Curtis' blue Cadillac enter the parking lot and come to a stop. Curtis jumped out of his car drawing a Smith & Wesson nine-millimeter semi-automatic firearm. Curtis pointed the weapon at Davis and asked him, "[Y]ou think I'm a cop now?" Curtis asked Davis where he was going, and Davis responded that he was on his way to work. Curtis asked Davis where he worked, and Davis replied that the worked in the warehouse in front of which they were standing. Curtis, who was still pointing the gun at Davis, told Davis to lie face-down on the ground, and Davis complied. Curtis threatened Davis, saying that "he had a license to kill niggers" and that "he could kill [Davis], get away with it." Davis began screaming desperately for help.
Byron Perez ("Perez"), one of the workers inside the warehouse, heard Davis' screams. Perez went to the rear of the warehouse, opened the door, and stepped into the parking lot. There, he saw Davis lying face-down on the ground with his hands behind his back and Curtis standing over him with a gun pointed at him. Curtis identified himself as a police officer and *469 showed Perez what appeared to be a badge. Perez noticed that Curtis appeared intoxicated. Perez did not know Davis personally but knew that he was an employee. Davis yelled to Perez, "tell him I work here." Perez told Curtis that Davis was an employee at the newspaper facility. After receiving this information, Curtis holstered his gun or tucked it in his belt.
Perez called to his brother-in-law, Edwin Morales ("Morales"), another worker at the newspaper facility. Morales went to the rear of the warehouse, opened the door, and saw a man pointing a gun at another man. Morales told Curtis to lower the gun, but Curtis refused and instead showed him a silver bade and directed him to call 911. Morales went inside and told a co-worker to call 911. When Morales returned to the parking lot, Curtis identified himself as a police officer.
After Curtis holstered his gun, Davis stood up, and the two men began to argue. Curtis asked Davis for identification, and Davis began walking toward his car. Curtis came up behind Davis and pushed him. Davis turned around and pushed back. The argument escalated into a shoving match, and Davis grabbed Curtis' gun from his waistband.
Davis pointed the gun at Curtis and asked him, "Who are you?" Curtis did not respond. Morales heard Davis tell Curtis, "I'm going to kill you," but Davis denies having made such a threat. Curtis ran toward the warehouse, and Davis squeezed the trigger of Curtis' gun. The trigger did not move. Curtis ran into the warehouse through the back door, and Davis ran after him with the gun. As Davis ran by his co-workers, they yelled to him, "Don't do it!"
Davis encountered Curtis inside the warehouse. He pointed the gun at Curtis, "[p]ulled the top piece of the gun back," and told Curtis to stop and get on the ground. Davis wanted to hold Curtis in the warehouse until the police arrived, so he tried to hit Curtis to the ground by striking him across the back. Instead, Davis hit Curtis on the head with the gun. The gun discharged, and a bullet lodged in Curtis' brain. As a result of the shooting, Curtis is unable to speak, unable to see out of one eye, and is partially paralyzed.
After the incident, the Nassau County Medical Examiner's Office determined that Curtis' blood alcohol level at the time of the shooting was .16. The Medical Examiner's Office found traces of marijuana in his blood as well.
On September 27, 1996, following a jury trial, Davis was found guilty of Attempted Murder in the Second Degree, Attempted Manslaughter in the First Degree, Criminal Use of a Firearm in the First Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. In a decision dated February 8, 1999, the Appellate Division, Second Department, unanimously affirmed Davis' judgment of conviction. People v. Davis, 258 A.D.2d 528, 685 N.Y.S.2d 455 (2d Dept.1999). On April 28, 1999, the Court of Appeals denied Davis' application for leave to appeal to that Court. People v. Davis, 93 N.Y.2d 898, 689 N.Y.S.2d 710, 711 N.E.2d 986 (1999).
E. Davis' Criminal Complaint
Sometime between April 12 and April 20, 1995, Davis filed a criminal complaint with the NCDA alleging that Curtis "engaged in various acts of criminal conduct in connection with a series of incidents that occurred ... on April 12, 1995." On or about April 20, 1995, the NCDA commenced an investigation into Davis' allegations, and on June 21, 1995 determined that "there is insufficient evidence to warrant *470 its seeking to initiate a criminal prosecution against Curtis in connection with the matters set forth in Davis' [complaint]."
F. Curtis' Applications for Benefits
On or about March 7, 1996, Curtis filed an application with the New York State & Local Retirement Systems for accidental disability retirement benefits for the injury he suffered on April 12, 1995. A hearing was held and, in a decision dated June 25, 1999, the New York State Comptroller denied the application, finding that "the applicant has failed to meet the burden of proof necessary to establish that the incident in question was an accident sustained in the service upon which his membership is based." Curtis appealed the decision to the Appellate Division, Third Department. In a decision dated March 15, 2001, the Appellate Division affirmed the Comptroller's determination that Curtis did not sustain an accident while in service. See Curtis v. New York State Comptroller, 281 A.D.2d 780, 722 N.Y.S.2d 116 (3d Dept. 2001).
Curtis also applied for workers' compensation benefits, and in a decision dated February 17, 1999, the New York State Workers' Compensation Board awarded Curtis the benefits he sought. In particular, the Workers' Compensation Board found that Curtis had "proven that the accident occurred in the course of employment."
G. Prior Criticisms and Complaints Regarding Curtis' Conduct
In his affidavit in opposition to the Lynbrook Defendants' motion, Davis describes nine criticisms and complaints different people had made regarding Curtis' conduct as a police officer. In their reply affirmation, the Lynbrook Defendants do not deny the existence of these complaints. Rather, they assert that "the complaints lodged against Curtis during his twenty two years of service were either unsubstantiated or not the type which would have placed the [LPD] on notice he possessed a potential threat to the rights of the public." Because the Lynbrook Defendants do not assert that the complaints were not filed, the Court finds that their existence is undisputed. Accordingly, a brief discussion of the complaints follows.
1. March 28, 1974
In a report to the Commanding Officer of the LPD, dated March 28, 1974, one Sergeant M. French ("French") wrote that at 2:30 that morning, he responded to a disturbance call at the Twin Harps Bar. When French entered the bar, he saw Curtis who called him over and said that he wanted to arrest one Mounir Mina ("Mina") for harassment. Curtis told French that Mina had been "giving him a hard time." French observed that Curtis "had had quite a bit to drink," and advised Curtis to go home. French returned to headquarters, telephoned the bar, and spoke to Curtis. He again advised Curtis to home and get some sleep. Later that night, French learned that Curtis was in Brooklyn at the 69th Precinct of the New York City Police Department, where he was having Mina arrested.
In a report dated March 29, 1974, one Lieutenant Tierney ("Tierney") advised the Commanding Officer of the LPD of the March 28, 1974 incident involving Curtis at the Twin Harps Bar. In addition to the information contained in French's report, Tierney stated that Curtis had "chased" Mina from Lynbrook to the 69th Precinct in Brooklyn. Tierney also reported that Curtis and Mina dropped the charges they had filed against one another. Tierney wrote that he spoke on the telephone with Curtis while he was still at the 69th Precinct *471 and advised him that he should not have chased Mina to Brooklyn and was in danger of losing his job.
2. July 8, 1974
In a report to the Commanding Officer of the LPD, dated July 8, 1974, French wrote that at 6:30 p.m. that day, one Richard Michaels ("Michaels") arrived at the LPD headquarters to complain about the conduct of a Lynbrook police officer. Michaels explained that he was stopped at a red light on Sunrise highway when a Camaro stopped next to him. The driver of the Camaro looked over at Michaels and revved the motor of his car. When the light turned green, both cars proceeded forward, and the driver of the Camaro cut in front of Michaels, almost hitting his car. The cars continued along Sunrise Highway, and the driver of the Camaro again cut in front of Michaels and stopped his vehicle. The driver exited his car, walked up to Michaels, and said that he was a police officer and that his shield number was "1010." The police officer demanded to see Michaels' license, registration, and insurance card. Michaels produced his license and registration and said that he did not have an insurance card because he had rented the car. The police officer called Michaels a "scum bag" roughly 15 times and said, "[I]f I ever get you in Lynbrook you will get a load of tickets." Michaels noticed that the police officer was carrying a gun. At the bottom of his report, French wrote, "Shield # 1010 belongs to P.O. James Curtis, who owns a Blue Camero [sic]."
3. December 4, 1978
By letter dated December 4, 1978 to Frank Kehr, Police Chief of the LPD ("Kehr"), one Kenneth A. Heller ("Heller") filed a "formal complaint" against "the officer in your command with badge number 1010." Heller stated that at 9:20 p.m., the officer was driving west at an excessive speed on a side street one block south of the intersection between Sunrise Highway and Broadway. Heller was traveling north on Broadway, approaching the intersection. The officer failed to stop at the posted stop sign, and had Heller not honked his horn, the officer would have collided with Heller. Heller continued driving and stopped at a red light at the intersection of Sunrise Highway and Broadway. The officer followed him at an excessive speed and stopped directly behind the rear bumper of Heller's car. The officer turned on his police lights and ordered Heller to pull to the side of the road. When the officer approached, Heller asked him whether there was a problem. The officer "became verbally obscene and abusive in language, and gesticulated in such a manner that I immediately became silent, fearing for my physical safety from this man." The officer issued a traffic violation, which Heller claimed was not justified.
4. April 16, 1981
In a letter to Kehr, dated April 16, 1981, the NCDA wrote that it had investigated allegations of false arrest and police brutality that had been filed by one Frederick Incorvaia against Curtis and his brother, Police Officer John Curtis. The NCDA informed Kehr that it had reviewed the evidence and had determined that a criminal prosecution of the officers was not warranted.
5. October 20, 1981
In a letter to Kehr dated October 20, 1981, an unnamed complainant describes an incident with Curtis. It appears that there may be a second page of the letter, which might identify the complainant by his or her signature, but the second page *472 is not included in Davis' exhibits. In any event, the complainant states that on October 10, 1981 at 12:05 a.m., Curtis directed him to pull his vehicle to the side of the road. Curtis informed the complainant that his dealer plate did not have a '81 sticker on it. The complainant gave Curtis his license and registration to demonstrate that the vehicle had been registered in 1981, a fact that Curtis verified on the computer system. The complainant's letter states that Curtis "became very nasty and abusive to me," at which point, the complainant asked "if there was anything I personally had done to him." Curtis responded by yelling at him and telling him that he did not have a picture on his chauffeur license. Curtis handed the complainant two tickets, one for failing to signal a right turn, and one for failing to have a picture on his license.
6. July 24, 1983
In a letter to "Chief Kiermier" dated July 24, 1983, one Nicholas Passeggio, an Auxiliary Police Officer, wrote that he had observed a car accident earlier that day. He stopped his car, assisted the driver, directed a passerby to telephone the police, ensured that the fluids leaking from the car were not gasoline, and directed traffic. Curtis was among the four or five police officers who arrived on the scene. Passeggio approached him and said, "It looks like you can handle this." Curtis asked for Passeggio's name and badge number and told him that they could handle it and to "get lost." Passeggio described Curtis as rude and obnoxious and opined that "action should be taken against Officer Curtis."
7. July 23, 1985
On July 23, 1985, the Village of Lynbrook received a document from one A. Anthony Miller ("Miller"), entitled, "In the Matter of the Claim of A. Anthony Miller against the Incorporated Village of Lynbrook, N.Y." In this document, Miller notifies the Mayor and the Clerk of the Village of Lynbrook that on April 27, 1985 at 9:30 a.m., Curtis arrested Miller pursuant to a warrant that Curtis had invalidly obtained. According to Miller, the crime either had not been committed or had not been committed in Lynbrook.
8. February 10, 1987
One of Davis' exhibits in support of his opposition papers is a letter dated February 10, 1987, from one Michael Axelrod ("Axelrod"), attorney for the Lynbrook P.B.A., to Shirley Moskowtiz, Village Clerk, regarding a case entitled, Herman Langford v. Lynbrook P.O. James Curtis, Civ. Action No. 86-3523 (Wexler, J.). In this letter, Axelrod requests the name of the Village's liability carrier, so that he could contact the carrier's attorney regarding representation issues.
9. August 2, 1988
In a letter dated August 2, 1988 to Chief Joseph Lauriano, the NCDA wrote that after completing its investigation into the allegations of police misconduct in regard to People v. Raymond Jackson and People v. Ernest Jackson, it had determined that criminal prosecution of the police officers in those matters was unwarranted.
F. The Present Action
As noted above, Davis filed the complaint in this action on December 30, 1997. On September 20, 2001, Davis filed an amended complaint after having received permission from the Court to do so. Davis claims that Curtis unlawfully detained him and questioned him, used excessive force against him, and deprived him of his right to due process, in violation of the rights secured to him by the Fourth, Fifth, *473 Eighth, and Fourteenth Amendments to the United States Constitution. Davis alleges that the Lynbrook Defendants were responsible for the training, supervision, and discipline of Curtis but failed to fulfill this obligation in a manner that amounted to deliberate indifference to the rights of those who would come into contact with Curtis. Davis further contends that Neve had notice of allegations that Curtis was violating citizens' constitutional rights but failed to make any meaningful investigation into those allegations. In addition, Davis contends that by failing to take any action regarding Curtis' behavior, Neve and the LPD essentially condoned his conduct thus making it the LPD's standard operating procedure.
The Lynbrook Defendants move for summary judgment arguing that Curtis was not acting under color of state law when he encountered Davis on April 12, 1995. They further contend that the municipality cannot be liable for any alleged violation of Davis' constitutional rights because Davis has not established that the alleged violation was due to an official policy or custom of the Village or the LPD. The Lynbrook Defendants also argue that Neve cannot be found liable in his official capacity because he is entitled to qualified immunity and cannot be found liable in his individual capacity because he was not personally involved in any violation of Davis' constitutional rights.
II. DISCUSSION
A. The Rule 56.2 Notice
A district court cannot grant a motion for summary judgment in a case involving a pro se litigant unless (1) the court apprises the pro se litigant of the consequences of failing to respond to the motion, see Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir.1994); (2) an opposing party has already provided the litigant with the requisite notice, see Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996); or (3) it is clear that the litigant understands "the nature and consequences of summary judgment," see M.B. # XXXXX-XXX v. Reish, 119 F.3d 230, 232 (2d Cir.1997). See Vital v. Interfaith Medical Center, 168 F.3d 615, 620-21 (2d Cir.1999) (holding that the failure of the district court to apprise a pro se litigant of the consequences of failing to respond to a motion for summary judgment is grounds for reversal). To fulfill this duty, the United States District Courts for the Eastern and Southern Districts of New York adopted Local Rule 56.2 on September 23, 1999. See E.D.N.Y. Administrative Order 99-6 (citing Vital, 168 F.3d 615). Local Rule 56.2 provides, in relevant part:
Any represented party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment" in the form indicated below.
The notice referred to in the rule advises the pro se litigant of the possibility that the complaint may be dismissed and informs the litigant that he or she must submit evidence countering the facts asserted by the defendant and raising issues of fact for trial.
The Lynbrook Defendants have included in their motion papers a separate document entitled, "Rule 56.2 Notice." The Court has reviewed the Rule 56.2 Notice submitted by the Lynbrook Defendants and finds that it is contains all of the language that appears in the sample notice provided in Local Rule 56.2. The Lynbrook Defendants also have attached to their Rule 56.2 Notice a photocopy of (1) the cover of a book containing the Fed. R.Civ.P., and (2) Rule 56 in its entirety. *474 Based on the foregoing, the Court finds that the defendants have satisfied the requirements of Local Rule 56.2, and the plaintiff has been apprised of the consequences of failing to respond to a motion for summary judgment.
B. The Summary Judgment Standard
A motion for summary judgment should be granted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2550, 91 L.Ed.2d 265 (1986). The moving party bears the burden of establishing the absence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). "When the movant demonstrates through competent evidence that no material facts are genuinely in dispute, the non-movant `must set forth specific facts showing that there is a genuine issue for trial.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (quoting Fed. R.Civ.P. 56(e)). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Id. (internal quotations and citations omitted); see Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (holding that the "non-moving party may not rely on conclusory allegations or unsubstantiated speculation"). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers, and depositions in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994).
The existence of disputed facts that are not material to the issue at hand will not defeat summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of judgment." Id. A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If there is evidence in the record, including affidavits, exhibits, interrogatory answers, and depositions, as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See Lane v. New York State Electric & Gas Corp., 18 F.3d 172, 176 (2d Cir.1994); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991).
Notably, "[t]he trial court's task at the summary judgment motion stage of litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to decid[e] them. Its duty, in short, is confined at this point to issue-finding, it does not extend to issue resolution." Gallo v. Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir.1994); see Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987) (holding that on a motion for summary judgment, the court "cannot try issues of fact; it can only *475 determine whether there are issues to be tried").
In making this determination, the Court is mindful that Davis' pro se status means that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)); Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit rights by virtue of his lack of legal training. See Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983). Indeed, courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law.'" Traguth, 710 F.2d at 95 (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981)).
C. Color of State Law
Section 1983 states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ..., subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party in an action at law.
In order to succeed in a Section 1983 action, a plaintiff must prove that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981)).
It is axiomatic that "`under color of law means under pretense of law' and that `acts of officers in the ambit of their personal pursuits are plainly excluded.'" Pitchell, 13 F.3d at 547-48. In determining whether an officer's actions were taken as part of a personal pursuit or under color of state law, a court must look beyond whether the officer was on or off-duty when the incident at issue occurred. See Pitchell, 13 F.3d at 548. The Court must consider the nature of the officer's conduct and the relationship of the conduct to the officer's official duties. See Pitchell, 13 F.3d at 548. Thus, "liability may be found where a police officer, albeit off-duty, nonetheless invokes the real or apparent power of the police department." Pitchell, 13 F.3d at 548; see Bonsignore v. City of New York, 683 F.2d 635, 638-39 (2d Cir. 1982) (holding that an off-duty police officer can be liable under Section 1983 for acts "committed in the performance of any actual or pretended duty").
Viewing all of the evidence in the light most favorable to Davis and drawing all reasonable inferences in his favor, the Court finds that a jury could rationally conclude that Curtis was acting under color of state law on April 12, 1995. This is so even though Curtis may have begun the evening acting "in the ambit of his personal pursuits." Pitchell, 13 F.3d at 548 (quoting Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945)). He dressed in civilian clothes and went to a local bar where he played darts *476 and drank alcohol for approximately four hours. However, the nature of Curtis' conduct changed when he encountered Davis. Angered by Davis' bright headlights, Curtis allowed Davis to pass and then, in essence, effectuated a traffic stop by repeatedly flashing his lights to notify Davis to pull over. Although Davis does not claim to have believed that Curtis was a police officer at this point, Davis' subjective reaction to Curtis' conduct is not relevant to determining whether Curtis was acting under color of state law. Pitchell, 13 F.3d at 548.
A reasonable jury could conclude that when Curtis pulled alongside Davis at the intersection of Ocean and Atlantic Avenues, he invoked "the real or apparent power of the police department," Pitchell, 13 F.3d at 548, by informing Davis that he was a police officer and flashing what appeared to be a badge. See Pitchell, 13 F.3d at 548 (stating that the relationship of the officer's conduct to the performance of his official duties is a factor in determining whether the officer was acting under color of state law). Similarly, a jury could find that when Curtis followed Davis into the parking lot of Tri-State Newspapers, directly after identifying himself as a police officer, he was in his role as a police officer, investigating Davis' conduct for possible criminal activity.
Moreover, a reasonable jury could rationally conclude that Curtis' actions in the parking lot, specifically, when he jumped out of his car, drew his firearm, pointed it at Davis and asked him, "[Y]ou think I'm a cop now?," were those of a person performing the actual or pretended duties of a police officer. Indeed, the jury could find that these actions are very similar to those of an arrest of a suspect a police officer believes is dangerous. That Curtis identified himself as a police officer and showed a badge to Perez and Morales would support this interpretation of his conduct. Curtis also asked Davis questions that police officers typically ask motorists during a traffic stop or suspects apprehended on the street: "Can I see some identification?"; "Where are going?"; and "Where do you work?" Viewing the evidence in the light most favorable to Davis, the Court finds that a reasonable jury could find that Curtis' conduct bore such similarity to the performance of a police officer's official duties that Curtis invoked the real or apparent power of the police department. See Pitchell, 13 F.3d at 548.
That Curtis may have been on partial or total disability leave at the time of the incident is not relevant to determining whether he was acting under color of state law, because a reasonable jury could have determined that he was invoking the apparent power of the police department or performing the pretended duty of a police officer. See Pitchell, 13 F.3d at 548; Bonsignore, 683 F.2d at 638-39. In addition, the Court is not persuaded by the Lynbrook Defendants' argument that Curtis' inebriation deprived him of the intent to act under color of state law. The Lynbrook Defendants offer no legal authority to support this argument and the Court, in its own independent research, could not find any. Indeed, the color-of-state-law analysis is an objective one that focuses on nature of the officer's conduct, see Pitchell, 13 F.3d at 548-49, not on his or her subjective intent. Further, even if Lynbrook Defendants' legal assertion were viable, the Court finds that whether Curtis was so drunk that he lacked the ability to form intent would be a genuine issue of material fact that would preclude summary judgment on the color-of-state-law issue.
In sum, the Lynbrook defendants motion for summary judgment on the ground that Curtis was not acting under color of state law is denied because, drawing all *477 reasonable inferences in favor of the plaintiff, a rational jury could conclude that Curtis was acting under color of state law.
D. Section 1983 Liability Against the LPD
The LPD is an administrative arm of the Village of Lynbrook. Under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued. See Hall v. City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y.2002) (dismissing claim against the police department); Polite v. Town of Clarkstown, 60 F.Supp.2d 214, 216 (S.D.N.Y.1999); Umhey v. County of Orange, 957 F.Supp. 525, 530-31 (S.D.N.Y. 1997); Wilson v. City of New York, 800 F.Supp. 1098, 1101 (E.D.N.Y.1992). Therefore, the complaint must be dismissed as against the LPD.
E. Section 1983 Liability Against the Municipality
Although Davis has not specifically named the Village of Lynbrook as a defendant, he has named the individual defendants in their official capacities. Davis is therefore deemed to have named the municipality as a defendant because "[t]he real party in interest in an official-capacity suit is the government entity and not the named official." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); see Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir.1998) (suit brought against county Commissioner of Social Services, in his official capacity is equivalent to a suit against the county). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Bender v. Williamsport Area School District, 475 U.S. 534, 544, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
In their memorandum of law, the Lynbrook Defendants state that they are addressing Davis' claims against Neve in his official capacity as claims against the Village of Lynbrook because an official capacity suit is equivalent to a suit against the entity of which the named defendants were employed at the time of the incident. Clearly, the municipality has received notice of the action and has responded. Accordingly, the Court will treat the official-capacity claims against Neve as claims against the Village of Lynbrook, and will direct the Clerk of the Court to amend the caption of the complaint to substitute the Village of Lynbrook for Neve in his official capacity and for the LPD.
Because a municipality can act only through its employees, the question of liability turns on whether it can be held liable for the unconstitutional acts of its employees. Municipal liability under Section 1983 cannot be based on a theory of respondeat superior. See Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 404-05, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 694, 98 S.Ct. 2018, 2036, 2038, 56 L.Ed.2d 611 (1978); Jeffes v. Barnes, 208 F.3d 49, 56-57 (2d Cir.2000); DeCarlo, 141 F.3d at 61. Rather, the plaintiff must show that the constitutional violation by a municipal employee resulted from a custom, policy, or practice of the municipality. See Monell, 436 U.S. at 694, 98 S.Ct. at 2036; DeCarlo v. Fry, 141 F.3d at 61; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). A plaintiff need not demonstrate that the municipality had a formal rule or regulation that cause the deprivation. See Vann, 72 F.3d at 1048; *478 Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991).
A plaintiff can show a municipal custom, policy or practice by establishing that an official who is a final policymaker directly committed or commanded the constitutional violation, or by showing that a policymaker indirectly caused the misconduct of a subordinate municipal employee. See Monell, 436 U.S. at 690, 98 S.Ct. 2018, 56 L.Ed.2d 611; Jeffes, 208 F.3d at 61. Liability based on indirect causation can be established by showing "`acquiescence in a longstanding practice or custom which constitutes the "standard operating procedure" of the local government entity.'" Jeffes, 208 F.3d at 61 (citation omitted). A municipal policy or practice can also be inferred from a failure by policymakers to train their subordinates amounting to "deliberate indifference" to the rights of those who come in contact with the municipal employees. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); DeCarlo, 141 F.3d at 61; Ricciuti, 941 F.2d at 123.
A plaintiff can also prove such deliberate indifference by showing "that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges that its agents were violating citizens' constitutional rights." DeCarlo, 141 F.3d at 61; Vann, 72 F.3d at 1049 (holding that a plaintiff "may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference"); Ricciuti, 941 F.2d at 123; Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983) ("[M]unicipal inaction such as the persistent failure to discipline subordinates who violated civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell.").
"The mere assertion, however, that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993); see also Batista, 702 F.2d at 397. Similarly, "the simple recitation that there was a failure to train [supervise] municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiff's injury." Dwares, 985 F.2d at 100. He must produce "some evidence that policymakers were aware of a pattern of [unconstitutional conduct] but failed to [respond]." Walker v. City of New York, 974 F.2d 293, 300 (2d Cir.1992). In addition, an official policy, practice or custom cannot be inferred from a single incident alleged in a complaint against a municipal employee not vested with policymaking authority. City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Dwares, 985 F.2d at 100; Ricciuti, 941 F.2d at 123.
Davis claims that the Village of Lynbrook had a custom or policy that caused the violation of his constitutional rights because it had notice of charges that Curtis violated citizens' constitutional rights but failed to make a meaningful investigation into those claims. In support of his allegations, Davis refers to, and attaches as exhibits, documents that purportedly describe nine complaints regarding Curtis' behavior. Of those nine complaints or criticisms, three are irrelevant to Davis' claim. The July 24, 1983 letter from Passeggio simply describes Curtis as a rude and obnoxious police officer. It does not allege an illegal seizure, excessive force, or a deprivation of due process. The February 10, 1987 letter from Axelrod to Moskowitz only refers to a civil action, *479 filed in federal court, in which Curtis was named as a defendant. It does not describe the nature of the lawsuit, much less indicate that the plaintiff was asserting a violation of his constitutional rights. Third, there is no indication that the August 2, 1988 letter from the NCDA to Chief Joseph Lauriano relates to Curtis because it does not mention the officers whom the NCDA had investigated.
However, the Court finds that drawing all reasonable inferences in favor of Davis, a jury could rationally conclude that the six remaining letters of complaints and criticisms demonstrate an "obvious need for more or better supervision to protect against constitutional violations." Vann, 72 F.3d at 1049; Fiacco v. City of Rensselaer, 783 F.2d 319, 331 (2d Cir.1986). French's March 28, 1974 complaint describes an incident in which Curtis chased Mina in a car to Brooklyn, where he filed charges against Mina, which he subsequently dropped. On July 8, 1974, December 4, 1978, and October 20, 1981 citizens complained that Curtis conducted unwarranted and inappropriate traffic stops. On April 16, 1981, the LPD was notified that the NCDA had decided not to file criminal charges against Curtis based on allegations of police brutality and false arrest. On July 23, 1985, the Miller alleged that Curtis had improperly obtained a warrant for his arrest. All six of these complaints, letters, or reports were addressed to the Commanding Officer of the LPD, the Village of Lynbrook, or the Chief of the LPD and were placed in Curtis' personnel file. Viewing this documentary evidence in the light most favorable to Davis, the Court is of the view that a reasonable jury could infer from these repeated complaints an obvious need for more or better supervision to protect against constitutional violations. See Vann, 72 F.3d at 1049; Fiacco, 783 F.2d at 331.
The Court also finds that, drawing all reasonable inferences in favor of Davis, a jury could rationally conclude that the Village failed to conduct a meaningful investigation into any of the claims regarding Curtis' conduct. Initially, the Court notes that although Davis alleges that the LPD failed to investigate these complaints in a meaningful way, he does not supply any evidence in support of his position. Further, the March 28, 1974 report indicates that Tierney spoke with Curtis regarding his conduct and warned him that he could lose he job if he continued to behave in this manner. Nevertheless, whether Tierney's actions constitute a "meaningful attempt on the part of the municipality to investigate or to forestall further incidents," Vann, 72 F.3d at 1049, is a disputed and genuine issue of material fact that is more appropriately decided by the jury. Further, the absence of evidence describing the investigatory steps and disciplinary actions taken by the LPD might, in fact, demonstrate a failure to conduct meaningful investigations into repeated complaints regarding Curtis' conduct. The Court cannot deprive Davis of the opportunity to go forward simply because he cannot prove a negative. This is especially true given Davis' pro se status, the fact that he is incarcerated, and the lack of evidence submitted by the movants to show either that the LPD investigated the complaints and reports or that Curtis was ever disciplined for his conduct.
In sum, the Court finds that viewing the evidence in the light most favorable to the plaintiff a reasonable jury could find from six letters, reports, and complaints an obvious need for more or better supervision to protect against constitutional violations. See Vann, 72 F.3d at 1049. The Court also finds that the absence of evidence that these complaints were investigated could lead a reasonable jury to infer deliberate *480 indifference. See Vann, 72 F.3d at 1049. Put differently, the Lynbrook Defendants have failed to demonstrate "through competent evidence that no material facts are genuinely in dispute" in regard to Davis' claim of municipal liability based on deliberate indifference. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990). Accordingly, their motion for summary judgment on that claim is denied.
F. The Action Against Neve in His Official and Personal Capacities
Davis names Neve as a defendant in both his official and personal capacities. As noted above, the suit against Neve in his official capacity is the equivalent of a suit against the Village of Lynbrook. See Hall, 185 F.Supp.2d at 303; Polite, 60 F.Supp.2d at 216; Umhey, 957 F.Supp. at 530-31; Wilson, 800 F.Supp. at 1101. Therefore, because the Court has denied the Lynbrook Defendants' motion for summary judgment on the issue of municipal liability, their motion for summary judgment on the claims against Neve in his official capacity must be denied as well. See generally, Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001) (when claims against a municipality are dismissed, claims against the police officers in their official capacities should be dismissed also). In addition, although the Lynbrook Defendants move for summary judgment on qualified immunity grounds, this defense is unavailable in official capacity suits. See Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir.1995); Pinaud v. County of Suffolk, 52 F.3d 1139, 1146-47 (2d Cir. 1995); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir.1993) ("[The] personal privilege[s] of absolute or qualified immunity ... are available to governmental officials only with respect to damage claims asserted against them in their individual capacities").
To establish the personal liability of an officer, a plaintiff must prove that he or she was personally involved in or responsible for the misconduct. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001); Woods v. Goord, 2002 WL 731691 *6 (S.D.N.Y. Apr.23, 2002); Timmins v. Toto, 174 F.Supp.2d 56, 60-61 (S.D.N.Y.2001). The plaintiff can demonstrate the personal involvement of a supervisory official by showing any one of the following: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring." See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Applying these standards to the facts of this case, the Court finds that the plaintiff has failed to introduce evidence that Neve was personally involved in the constitutional violation.
Davis does not assert that Neve was present on the morning of April 12, 1995. Nor does Davis claim that he filed a formal complaint with Neve regarding Curtis' conduct, and that Neve failed to conduct a meaningful investigation of Davis' claims. Moreover, even had Davis made such a claim, the Court finds no merit in an assertion that Neve failed to remedy the wrong. Given the injury Curtis suffered to his brain, he will not serve as a police officer again, and thus, Neve could not remedy the wrong by disciplining, *481 suspending, or firing Curtis. Davis also fails to submit any evidence showing that Neve was aware of the prior claims against Curtis or that other police officers committed wrongful acts, and that Neve was grossly negligent in supervising these officers. Although Davis' Section 1983 claim against the municipality has survived summary judgment, Davis fails to establish that Neve created or continued a custom or policy of deliberate indifference. All six of the complaints and criticisms about Davis' conduct were made prior to Neve's appointment as the chief of the LPD. Although these complaints and reports may have been in Curtis' personnel file, the plaintiff has presented no evidence that Neve knew about them. Hence, there is no evidence that he displayed deliberate indifference to Davis' rights by failing to act on information that Curtis was violating citizens' constitutional rights. As such, there is no evidence that Neve personally perpetuated a custom or policy of deliberate indifference.
That Neve had hired a private investigator to conduct surveillance of Davis' activities does not alter this conclusion. Trotter was hired to observe Curtis while he was at home, not while he was conducting arrests or traffic stops, which was the nature of the complaints regarding his conduct as a police officer. In addition, Neve hired Trotter in or about February 1995, when he withdrew his appeal for Curtis' disability pension, "[i]n light of recent medical evidence." The timing of the investigation and the fact that Trotter was watching Curtis at home indicate that Neve was trying to determine whether Curtis' application for a disability pension was fraudulent, not whether Curtis was violating citizens' constitutional rights.
In sum, the Court finds that based on the evidence presented, no reasonable jury could conclude that Neve was personally involved in the alleged violation of the plaintiff's constitutional rights. Accordingly, the Lynbrook Defendants' motion for summary judgment on the claims against Neve in his personal capacity is granted, and those claims are dismissed.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the motion by the Lynbrook Defendants for summary judgment is DENIED in regard to the claims against the municipality; and it is further
ORDERED, that the motion by the Lynbrook Defendants for summary judgment is GRANTED in regard to the claims against Neve in his personal capacity, and those claims are dismissed; and it is further
ORDERED, that the Clerk of the Court is directed to amend the caption of the complaint to read as follows:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CHARLES EDWARD DAVIS,
Plaintiff,
against
DETECTIVE JAMES CURTIS, individually and in his official capacity, and the VILLAGE OF LYNBROOK,
Defendant.
and it is further
ORDERED, that the Court will hold a status conference via telephone conference call on October 9, 2002, and the attorneys for the defendants are directed to initiate and arrange the conference call, including notifying the facility in which the plaintiff is incarcerated; and it is further
*482 ORDERED, that the parties are directed to appear on October 29, 2002 at 9:00 a.m. to select a jury.
SO ORDERED.
| {
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594 F.Supp. 629 (1984)
Ralph BAILEY, Plaintiff,
v.
CONTAINER CORPORATION OF AMERICA, Defendant.
Civ. A. No. C-1-84-0878.
United States District Court, S.D. Ohio, W.D.
October 2, 1984.
Opinion on Reconsideration January 10, 1985.
*630 James B. Helmer, Jr., Virginia Conlan Whitman, Ann Lugbill, Cincinnati, Ohio, for plaintiff.
Stephen S. Eberly, Cincinnati, Ohio, for defendant; Dinsmore & Shohl, Cincinnati, Ohio, of counsel.
MEMORANDUM AND ORDER
DAVID S. PORTER, Senior District Judge:
This age discrimination case is before the Court upon defendant's motion to dismiss or strike (doc. 3), plaintiff's response (doc. 5) and defendant's reply (doc. 7). Plaintiff has requested oral argument; however, since we resolve the issues raised in his favor, hearing is unnecessary.
The complaint asserts two causes of action. The first arises under the Age Discrimination in Employment Act, 29 U.S.C. § 626 and related statutes, jurisdiction obtaining under 29 U.S.C. § 626 and 28 U.S.C. § 1331. The second arises under Ohio's age discrimination law, Ohio Rev.Code Ann. § 4101.17 (Page's 1980), jurisdiction obtaining under 28 U.S.C. § 1332, there being diversity of citizenship. Plaintiff also alleges pendent jurisdiction over the state law claim.
Defendant raises a plethora of arguments regarding the propriety of plaintiff's maintaining either of his claims in this forum; we consider them seriatim.
Facts
Plaintiff was a 22-year employee of defendant, a foreign corporation, at one of its Cincinnati, Ohio facilities. He was terminated on July 28, 1982, at which time he was 42 years old. The complaint alleges, and defendant apparently does not dispute, that plaintiff properly filed a timely complaint with the Equal Employment Opportunity Commission more than 60 days prior to filing this action on June 8, 1984.
About a week after the complaint in this case was filed, plaintiff sent notice, by registered mail, of his allegations to the Ohio Civil Rights Commission. That notice informed the OCRC that the complaint herein *631 had been filed, and purported to reserve plaintiff's right to proceed in this Court (doc. 5, Exhibit A).
A. Motion to Dismiss Federal Claim
Ohio is concededly a "deferral State" as that term was used in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2072, 60 L.Ed.2d 609 (1979) in interpreting Section 14(b) of the Age Discrimination in Employment Act, 29 U.S.C. § 633(b). Because that is the case, discriminatees are obliged to seek review of the facts of their case by the relevant State agency. § 633(b) provides that in deferral States, "no suit may be brought under ... this Act before the expiration of 60 days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated ...."
As defendant notes, Oscar Mayer provides that providing deferral states with an opportunity to resolve age discrimination grievances is mandatory and jurisdictional. 441 U.S. at 756-58, 99 S.Ct. at 2071-73. Because that is true, defendant invokes the peculiarities of Ohio's age discrimination laws in an attempt to show that plaintiff is forever barred from prosecuting an ADEA claim. Examination of the Ohio scheme is necessary to develop defendant's claim.
An Ohioan who believes that he or she was a victim of age discrimination has three alternatives: Filing a claim with the OCRC under Ohio Rev.Code Ann. § 4112.05 (Page's 1980); filing a civil action "in a court of competent jurisdiction" under Ohio's general employment discrimination statute, Ohio Rev.Code Ann. § 4112.02(N) (Page's 1980); or filing a civil action based upon the specific age discrimination statute, Ohio Rev.Code Ann. § 4107.17 (Page's 1980).
The difficulty arises from the fact that the legislature made each of these three remedies exclusive. That is, a discriminatee who files a complaint with the OCRC may not sue his employer under either of the statutory provisions, and one who sues under one of the statutory provisions may not gain review of his or her claim by the OCRC, or sue under the other civil-action statute.
Defendant asserts that filing with the OCRC is a prerequisite to filing an ADEA complaint in this Court; that by filing claims based upon Ohio law in this Court, plaintiff has lost his right to file a claim with the OCRC; and that because plaintiff cannot file with the OCRC, he cannot prosecute an ADEA claim.
Whatever the superficial logic of this argument, it is of no legal moment. In Oscar Mayer, 441 U.S. at 759, 99 S.Ct. at 2073, the Court noted that Section 14(b)
requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement no other obligation is placed upon the ADEA grievant. In particular, there is no requirement that, in order to commence state proceedings and therefore preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law.
Because "Congress did not intend to foreclose federal relief simply because state relief was also foreclosed," id. at 761, 99 S.Ct. at 2074, the Court ruled that the plaintiff, who had not proceeded before the State conciliation agency at all, "may yet comply with the requirements of § 14(b) by simply filing a signed complaint" with the agency. Id. at 764, 99 S.Ct. at 2075. "Meanwhile, the federal suit should be held in abeyance." Id.
While acknowledging that there may be differences between a state statute of limitations and the provision under consideration here, we think the similarities between this case and Oscar Mayer render that case clearly controlling. The convolutions of Ohio's statutory scheme are such that plaintiffs who choose to proceed under both federal and state law are forced to do as has this plaintiff. This Court has repeatedly held that the appropriate procedure is for a letter complying with the terms of § 14(b) to be sent to the OCRC after filing of the federal case, with the *632 federal case stayed for 60 days. Perazzo v. Top Value Enterprises, Inc., 590 F.Supp. 428, 432 (S.D.Ohio 1984) (Rice, J.); Merkel v. Scovill, Inc., 570 F.Supp. 133, 137 (S.D.Ohio 1983) (Spiegel, J.); Krenning v. Darling & Co., 572 F.Supp. 923 (S.D. Ohio 1983) (Rubin, C.J.).[1] We see no reason whatsoever to, as defendant urges, "depart from these holdings and to find plaintiff's ADEA claim foreclosed by his choice" to sue under State, as well as federal, law. Since well over 60 days have elapsed since plaintiff sent his letter to the O.C.R.C., we need impose no stay to permit the O.C.R.C.'s processes to proceed.
B. Preemption
Defendant next argues that, "to the extent [Ohio law] seeks to permit recovery of compensatory and punitive damages by a victim of age discrimination, it is preempted by the ADEA." The rule is that
[p]reemption occurs when compliance with both federal and state regulations is physically impossible, the nature of the subject matter requires federal supremacy and uniformity, or Congress intended to displace state legislation.
Simpson v. Alaska State Commission for Human Rights, 423 F.Supp. 552, 555 (D.Alaska 1976), aff'd, 608 F.2d 1171, 1175 (9th Cir.1979), citing Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-48, 83 S.Ct. 1210, 1217-20, 10 L.Ed.2d 248 (1963). It is clear that compliance with both federal and state law in this instance is not physically impossible; it simply ups the ante. Defendant does not aver that "the nature of the subject matter requires federal supremacy and uniformity," nor could it, given the peaceful coexistence of federal and state regulation of employment discrimination in recent years.
Defendant does, however, suggest that "Congress intended to displace state legislation" on the matter of what damages are available under the ADEA. As defendant poses the matter, if Ohio permits such damages, then the goal of "accomplishment and execution of the full purposes and objectives of an Act of Congress" is frustrated. Doc. 3 at 6, citing Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941) (States may not require aliens to register with State agency in light of Congressional enactments establishing federal registration.)
Defendant refers us to no cases which have so held. Simpson, 423 F.Supp. at 555-56, is the only case to which we are referred which has dealt with the issue at all. There, plaintiff sued under Alaska's age discrimination laws, which provided no cutoff age parallelling that in the ADEA. 29 U.S.C. § 631. Defendant asserts that Simpson "is not ... contrary to its position", doc. 3 at 9, since the court there found "that the state and federal laws were complementary, with no specific conflicts between them." Id.
Before evaluating this contention, we set out the language by which the Simpson court disposed of the preemption argument:
The essence of defendant's attack is based on the theory that the [ADEA] has preempted state statutes to the extent that such statutes are broader than the federal law. Under this theory any state age discrimination statute would be confined to the ages 40 to 64. Such a construction would affect several other states with employment discrimination statutes using only the term `age' as well as others which specifically delineate limits beyond the federal bounds.
This doctrine of `partial preemption,' if available at all, does not apply to this case. In the field of employment practices states possess broad authority under their police powers and state laws in the field are not easily preempted .... Nothing in the scope or intent of the [ADEA] indicates that Congress intended to oust the states from this area of concern.
423 F.Supp. at 556 (footnotes and citation omitted; emphasis supplied).[2]
*633 Defendant asserts, as the sole area of alleged preemption, that the Congressional purpose of seeking agency conciliation of employment discrimination claims is seriously undermined by the potential for punitive damages: "With the promise of a punitive damages award beckoning him forward, a plaintiff understandably will forego the agency process in favor of a shot at the proverbial punitive damages pot-of-gold." Doc 3 at 9.
It is certainly true that neither compensatory nor punitive damages are available under the ADEA. See Hill v. Spiegel, 708 F.2d 233, 235-36 (6th Cir.1983) and cases cited therein. However, the Ohio legislature has, it appears, concluded that its constituency is permitted to seek such damages in age discrimination cases. This is not a case where State law requires either party "to do precisely what the federal Act forbids them to do." Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, ___ U.S. ___, ___, 104 S.Ct. 2518, 2527, 81 L.Ed.2d 399 (1984). Rather, the situation here is that Ohio has seen fit to provide remedies for discriminatees in addition to those provided for in the Fair Labor Standards Act, and to do so in an area of the law where Congress has specifically encouraged the states to act. See 29 U.S.C. § 633(a) and (b).
Plaintiff responds to defendant's argument by asserting that the availability of enhanced remedies under Ohio law may well increase the possibility of conciliation, since "the primary obstacle to settlement is the employer's basic unwillingness to negotiate and entertain the possibility of settlement, not the unemployed victim's desire" for punitive damages. Doc. 5 at 17. We see no reason to enter this dispute, except to note that both sides probably have a point. Let it suffice to say that it is our best judgment that because there is no clear statement of Congressional intent to preempt, no requirement upon any party to act in accordance with state law at the risk of violating federal law, and nothing inherent in the nature of age discrimination which requires federal preeminence, this is not an appropriate case for preemption.
C. Abstention
Defendant next asserts that we should abstain from determination of plaintiff's State-law claims based upon Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943).[3] We find this suggestion wholly without merit, and so discuss it only briefly.
Burford abstention is, as Professor Wright notes, "proper if there is a difficult question of state law bearing on policy problems of substantial public importance transcending the result in the case at bar." C. Wright, Law of Federal Courts 311 (4th ed. 1983). Here, plaintiff points to the fact that federal courts in the two districts of Ohio have reached different decisions as to the availability of punitive and compensatory damages under Ohio law. Compare Schlosser v. Firestone Tire & Rubber Co., Civil Action No. C82 ___ (N.D.Ohio, April 27, 1983) (such damages not available under Fawcett v. G.C. Murphy & Co., 46 Ohio St.2d 245, 348 N.E.2d 144 (1976)) with Merkel v. Scovill, 573 F.Supp. 1055, 1061, 1065-68 (S.D.Ohio 1983) (such damages available). We first note that reliance upon Fawcett, 46 Ohio St.2d 245, 348 N.E.2d 144, is arguably misplaced, since that cases's holding that § 4101.17 conferred no private right of action has been effectively reversed by legislative enactment. However, assuming that Schlosser and Merkel are irreconcilable, "the mere potential for conflict in the results of adjudications, does not, without more, warrant staying exercise of federal jurisdiction." Colorado River Water Conservation District v. United States, 424 U.S. 800, 816, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1974).
In addition, we are persuaded by plaintiff's presentation of the OCRC's position that in lawsuits under § 4101.17, "the Court may award compensatory damages, punitive damages, and attorney fees." Doc. 5, Exhibit D at 3. While not controlling, the OCRC's interpretation of the very *634 statute it is responsible for enforcing certainly suggests that the matter is substantially less murky than defendant asserts. Cf. Baker v. Cincinnati Metropolitan Housing Authority, 490 F.Supp. 520, 526 (S.D.Ohio 1980), aff'd 675 F.2d 836 (1982).
In sum, there is nothing about this case which takes it outside the realm of garden-variety diversity suits, which frequently require the court to predict "the decision of ... Judges of the highest [State] court ...." Cooper v. American Airlines, Inc., 149 F.2d 355, 359 (2d Cir.1945). There is no basis for abstention.
D. Stay
Defendant next asserts that the statelaw claims herein should be stayed pending the outcome of the ADEA claim; specifically, it asserts that such a stay is mandated by the "plain language" of 29 U.S.C. § 633(a). That statute provides that
[n]othing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supercede any State action.
As to that argument, it suffices to note that this Court is not "any agency of any State;" we therefore see no applicability of the statute to the situation at bar.
Defendant also asserts that permitting the claims based upon Ohio law to go forward together with the ADEA claim is prohibited under Hill v. Spiegel, 708 F.2d 233 (6th Cir.1983). In that case, the trial court permitted the jury to award damages for plaintiff's pain and suffering in an ADEA case. The Court of Appeals first determined that such damages are not available under the ADEA, id. at 235, and then determined that evidence of pain and suffering, irrelevant to any issues legitimately before the Jury, was inadmissible and therefore prejudicial. Id. at 236.
Hill does not, we believe, suggest that courts trying ADEA cases may never permit additional claims to be tried simultaneously. Trial courts have far too much experience in effectively trying, for example, claims based upon Title VII and 42 U.S.C. § 1981, for such a rule to be read into Hill absent an express holding to that effect. Cf. Burnett v. Grattan, ___ U.S. ___, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (State constitutional claims appended to federal civil rights claims). We are also aware that this Court has recent experience in presenting ADEA claims together with State-law claims to juries, with acceptable results. See Merkel, 573 F.Supp. 1055. Finally, we note that under the Federal Rules of Civil Procedure, trial courts have open to them means other than staying of a cause of action by which to assure that parties are not prejudiced by presentation of more than one claim to a jury. We therefore decline defendant's invitation to stay the State-law claims herein.
E. Availability of Damages
By way of anticlimax, defendant finally argues that compensatory and punitive damages are not available under § 4101.17. As the foregoing has perhaps indicated, we disagree, based upon the Merkel cases, as well as upon the interpretation of the statute by the Ohio Civil Rights Commission. In support of its assertion, defendant cites Barker v. Scovill, Inc., 6 Ohio St.3d 146, 149, 451 N.E.2d 807 (1983), where the Ohio Supreme Court referred to the ADEA as "the federal counterpart to R.C. [§] 4101.17." Barker, however, addressed only issues pertaining to burden of proof and definitory matters. The case contains no mention of issues of damages. Given the absence of holdings either way by Ohio courts, we find the statement of the Ohio Civil Rights Commission persuasive, and therefore agree with this Court's prior holding in the Merkel cases that such damages are available.
F. Conclusion
Defendant's motion to dismiss or strike is overruled in all regards. Of course, if the United States Court of Appeals for the Sixth Circuit, before which the Merkel cases are now pending, or the courts of Ohio render decisions between the date of this Order and trial herein, the matters here determined may be brought before the Court again. However, for such to occur, leave to file an additional motion must be sought by way of a brief submission.
SO ORDERED.
ON MOTION FOR RECONSIDERATION
Evidence has been brought before the Court which calls into question the propriety *635 of reliance upon the document generated by employees of the Ohio Civil Rights Commission entitled "Notice to Charging Parties Alleging Age Discrimination Under Federal and/or State Law." It appears that, at a minimum, that document was drafted not to reflect the official position of the OCRC, but rather only to reflect this Court's prior decision in Merkel v. Scovill, Inc., 573 F.Supp. 1055 (S.D. Ohio 1983) (app. pending). Because our conclusion that compensatory and punitive damages are, in an appropriate case, available under the Ohio age discrimination statute was based upon both the Merkel holding and upon the OCRC document, we now vacate that portion of the principal opinion which relies upon the "Notice to Charging Parties" and base our holding that such damages are available exclusively upon Merkel.
Defendant has also tendered a brief order from an Ohio Court of Common Pleas which dismissed claims for such damages, South v. The Toledo Edison Company, No. 83-2525 (Lucas Co. Ct. Com. Pleas, September 28, 1984). We do not view that decision, bereft as it is of reasons for the conclusion reached, as significantly militating against our adoption of Merkel, and so we decline to reconsider the holding on that basis.
In view of the controversy surrounding this issue and the fact that it will undoubtedly be resolved by both Federal and State Courts of Appeals, we anticipate structuring the trial of this action in such a way as to avoid the necessity of a retrial of the entire matter in the event that our conclusion on the damages issues proves erroneous.
Because defendant appears to concede that its motion to strike plaintiff's jury demand on the state claims hinges upon dismissal of the claims for compensatory and punitive damages, see doc. 22 at 9-14, our determination that those claims may be maintained effectively moots defendant's motion to strike, and it is therefore denied. Of course, the Court will serve as trier of fact for all equitable issues presented at trial.
SO ORDERED.
NOTES
[1] Defendant submits that Chief Judge Rubin has since reversed the position he took in Krenning, 572 F.Supp. at 924, and now does not entertain combined federal and state age-based claims. We are not in a position to comment on this representation, as the orders entered in the unreported cases to which defendant refers do not delineate reasons for the dismissal of the state claims therein. However, we do note that those asserted only pendent jurisdiction as the basis for the Court's jurisdiction over the Ohio-law claims, while in this case the Ohio claim is before us under diversity of citizenship. Equally to the point, there is no authoritative indication that Krenning is not still viable in appropriate circumstances.
[2] We note that the Ninth Circuit, noting the "care and precision" with which the district court addressed this issue, specifically adopted this language as its own. Simpson, 608 F.2d at 1175.
[3] Defendant actually invokes both Burford and Pullman abstention doctrines, see Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Reference to Pullman is, we believe, especially inapposite here since such abstention lies "where state action is being challenged in federal court as contrary to the federal constitution, and there are questions of state law that may be dispositive of the case." C. Wright, Law of Federal Courts 303 (4th ed. 1983) (emphasis supplied).
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782 N.E.2d 1022 (2003)
Lisa RETSECK, Appellant-Petitioner,
v.
FOWLER STATE BANK, Successor Trustee of Trust Under Will of Myrtle Avery, Appellee-Respondent.
No. 04A03-0205-CV-160.
Court of Appeals of Indiana.
February 7, 2003.
*1023 Laura J. Wyatt, P.C., Chesterton, IN, Attorney for Appellant.
John T. Casey, Blaney, Casey & Walton, Rensselaer, IN, Attorney for Appellee.
OPINION
SULLIVAN, Judge.
Lisa Retseck appeals from the trial court's order that Lisa is not an "intended [sic] beneficiary" of the Last Will and Testament of Myrtle Avery ("Will"). Appellant's Appendix at 10.[1] She presents one issue for our review, whether a class was created in which Lisa is a member. In its brief, the Trust requests that it be awarded attorney fees.[2]
We affirm.
Myrtle Avery ("Myrtle") had two sons, Robert and Maurice. On August 25, 1967, she executed a will in which she divided her estate into halves, bequeathing half of the estate to Maurice and appointing him trustee over a trust of the other one-half created for the benefit of the children of Robert. The relevant sections, all contained in Part II of the Will, establishing the trust for her grandchildren, state:
"2) ... In making this Will, I desire to create a trust for the benefit, support, maintenance and education of the children of Robert D. Avery, and for the use, benefit and support of Robert D. Avery after his children are grown.
* * *
4) ... I do give, devise and bequeath to Maurice P. Avery, in trust, however, for the use, benefit, support and education of the children of Robert D. Avery, named as follows: Robert D. Avery, Jr., John Fremont Avery, Mary Sue Avery, and William Avery, and for the use and *1024 benefit of my son, Robert D. Avery, as hereinafter provided.
(a) This trust is created primarily for the use and benefit of the children of Robert D. Avery, as heretofore named, and for their support, maintenance and education, but in the event my son, Robert D. Avery, should, during the existence of this trust, be in need of food, clothing, medical care, or other actual maintenance, then the Trustee shall herein have the right and power to use the proceeds of such trust for such purposes.
* * *
(c) The Trustee shall have the power and authority to use the earnings of the trust estate, or so much of the principal as in his opinion may be necessary, at any time, for the support, maintenance or education of the children of Robert D. Avery, with the Trustee being the sole judge as to the method or propriety of such expenditures.
* * *
(f) The Trustee shall hold the property devised to him in trust, subject to the provisions herein contained, until the youngest of the children of Robert D. Avery, as heretofore named, shall become twenty-three years of age. Upon the youngest of said children becoming twenty-three years of age, then the trust so created shall no longer constitute a trust for the use and benefit of the children of Robert D. Avery but shall then and thereafter continue during the lifetime of Robert D. Avery as a trust for his sole use and benefit.
* * *
(h) In the event Robert D. Avery should precede me in death, or should the said Robert D. Avery die during the existence of the trust herein created, then the trust so created shall continue for the use and benefit of his children, and upon the youngest of said children becoming twenty-three years of age, the trust estate shall then be divided equally among such children and the trust shall then cease and terminate. Likewise, upon the death of Robert D. Avery after the youngest of his children shall become twenty-three years of age, the trust estate shall then be divided equally among his children and the trust shall then terminate. If, however, any of such children shall die leaving a child or children surviving, distribution shall then be made to the children of Robert D. Avery, and the children of the child so dying shall then take their parent's share in the trust estate." Appellant's App. at 40-42. (emphasis supplied).
At the time the Will was executed, Lisa had not yet been born. Rather, Lisa was born on January 6, 1970, of the marriage of her mother, Florence, to her natural father, Robert MacDonald. Subsequent to Lisa's birth, Florence married Robert D. Avery.[3] On February 5, 1982, Robert D. Avery adopted Lisa.
Lisa contends that she should receive a share of the trust estate upon the death of her father because the Will states that "upon the death of Robert D. Avery after the youngest of his children shall become twenty-three years of age, the trust estate shall then be divided equally among his children and the trust shall *1025 then terminate." Appellant's App. at 42. (emphasis supplied). She asserts that because the language of this provision of the Will provides for a distribution of the assets to the children generally, it does not specifically limit the beneficiaries of the final distribution of the trust assets to those four grandchildren for whom the trust had originally been created. She asserts that Myrtle intended to create a class gift to all of Robert's children regardless of whether the child was entitled to the trust earnings prior to the final distribution of the trust estate.
The Trust counters that Lisa cannot be deemed a beneficiary of the Will because the "stranger-to-the-adoption" rule applies.[4] In the alternative, the Trust argues that the language creating the trust indicates that Myrtle's intent is clear in indicating that Lisa is not an intended beneficiary and does not receive any property in the final distribution of the trust assets. It is this second contention which controls in this case.
The interpretation, construction, or legal effect of a will is a question to be determined by the court as a matter of law. Hershberger v. Luzader, 654 N.E.2d 841, 842 (Ind.Ct.App.1995), trans. denied. Our primary focus is upon the intent of the testatrix in construing the language of a will. Id. We look to the four corners of the will and the language used in the instrument in determining the testatrix's intent. Id. Also, the will in all its parts must be considered together. Epply v. Knecht, 141 Ind.App. 491, 496, 230 N.E.2d 108, 111 (1967). When construing the language of a will, the court should strive to give effect to every provision, clause, term, or word if possible. Hershberger, 654 N.E.2d at 843.
In Matter of Walz, 423 N.E.2d 729 (Ind. Ct.App.1981), this court reviewed the language employed in establishing an inter vivos trust to determine whether the settlor intended to include his adopted son as a trust beneficiary. In that case, the settlor had two children by a previous marriage. At the time he executed the trust, the settlor had remarried and his wife had a child from her previous marriage who lived with settlor and his wife. Approximately six months after establishing the trust, settlor adopted his wife's son. The language of the trust document which was in question stated:
"Upon the death of Lorraine I Walz, the remainder of the trust property shall be divided and distributed among the children of the Grantor, namely Donald Walz and Jacqueline Keown, equally, share and share alike or to the Grantor's descendants per stirpes, as their absolute property forever." Id. at 731. (emphasis supplied).
In determining the appropriate beneficiaries of the trust, this court noted that courts interpret instruments establishing both inter vivos and testamentary trusts for the actual intent of the individual establishing the trust. Id. at 736. In deciding that the adopted son was not a beneficiary of the trust, this court analyzed the several different phrases used to describe the beneficiaries and determined that the settlor, aware that he had only two children who were his "root or stock issue," intended to exclude his future adopted son as a trust beneficiary. Id. at 736. In so holding, this court noted that an individual's descendants is a changing class as births, adoptions, and deaths occur. Id. at 737. When specific children within that *1026 class are named, however, the broader class is limited and the settlor's intent is clear. Id.[5]
Lisa relies upon this court's holding in Hershberger, in which this court reviewed the language of a will bequeathing the testatrix's estate to her grandnephews and grandnieces. In the clause of the will disposing of the residuary of the estate, the testatrix ordered that the assets be divided equally among her grandnephews and grandnieces, and further, she listed the names of the beneficiaries, excluding one grandnephew. In previous portions of her will, the testatrix had listed the grandnephews and grandnieces generally and had made no limitation on the class by listing specific individuals. The grandnephew, whose name was excluded from the clause distributing the residuary, requested that the court determine that his name was left out because of an oversight. This court, however, reading the will as a whole, determined that had the testatrix meant to include the omitted grandnephew as a recipient of the residue of her estate, she would not have listed specific individuals but would have used the same general language which had been used throughout the rest of the will. Hershberger, 654 N.E.2d at 844. Lisa asserts that the Will in this case is similar to the will in Hershberger in that Myrtle used both general and specific language, indicating that she intended to draw distinctions among the classes of recipients for the various types of distributions arising out of the trust. However, we must disagree.
Reviewing the language of the relevant portions of the Will, one can readily ascertain that Myrtle frequently alternated between the use of general and specific language in referring to the beneficiaries of the trust. The first reference to the children of Robert D. Avery is general and established that the trust is for the "benefit, support, maintenance and education of the children of Robert D. Avery." Appellant's App. at 40. This language does not limit the beneficiaries of the trust; rather, from this language, all of Robert D. Avery's children, whether born or adopted before or after the will was written, would seem to be included. However, the next reference to the children of Robert D. Avery specifically limits the beneficiaries of the trust to the four children specifically named in the will. Following this specific limitation on the beneficiaries of the trust, the Will then made several references to the specific class of beneficiaries by employing the use of the terms "heretofore named," "said children," and "such children." Id. at 41-42. Nevertheless, the Will also made several references to the beneficiaries of the trust by using the general term "children" without any limiting language. Id. at 40-42.
There can be no dispute, and indeed the parties agree, that the proceeds from the trust, which were payable throughout the years since the trust was established, were solely for the benefit of the four grandchildren *1027 named in the Will. This is so even in light of the use of the general term "children" without any qualifiers in several locations. The reason for this is that Myrtle's intent in providing for the four named grandchildren was clear.
It also appears that Myrtle's intent was to provide for only those same four grandchildren in the final distribution of the trust assets. The clause outlining the conditions for final distribution of the trust assets was set forth in the same subpart of the Will which provided for the support of the specifically named grandchildren. It would be difficult, if not impossible, to deduce from the mixed use of general and specific terms, and their placement in close proximity, that Myrtle intended to give the term "children" different meanings. In fact, it is noteworthy that Part II, subpart 4 of the Will is where Myrtle makes her first declaration that the trust be maintained for the use, benefit, support, and education of the four named grandchildren. Every other instruction relating to the disbursement of proceeds from the trust, including the final distribution of the trust assets, is included under this subpart. Also, subpart (4)(f) states that the trust is no longer to be used for the benefit of the children when the youngest of the "children of Robert D. Avery, heretofore named," becomes twenty-three years of age. Appellant's App. at 41. In subpart (4)(h), one of the conditions for the final distribution of the trust assets is that the youngest of the children become twenty-three years of age. It would be inconsistent to read this condition in subpart (4)(h) to be different than that in subpart (4)(f), and further, it would be illogical to interpret the term "children" in subpart (4)(h) to be specific to the four named grandchildren for the purpose of satisfying the conditions to terminate the trust but to read it to be general, and thereby including Lisa, for the purpose of distributing the trust assets. Moreover, had Myrtle intended to recognize and provide for grandchildren that may have been born after her Will was executed, she could have clearly stated that such was her intention in light of her specific recognition by name of her grandchildren at the time she executed the Will. Based upon these considerations, the trial court did not err in determining that Lisa was not a member of the class to receive a share of the trust assets upon final distribution. There is no means by which this court can determine that Myrtle's intent was anything other than to maintain only the four previously named grandchildren as beneficiaries of the final distribution of the trust assets.
In its brief, the Trust requests attorney fees by asserting that Lisa could not be a beneficiary of the final distribution of the trust assets. The Trust specifically asserts that Lisa was precluded by Ind.Code § 29-1-6-1(d) (Burns Code Ed. Repl.2000) from receiving a share of the trust assets.
Indiana Appellate Rule 66(E) allows for the assessment of damages if an appeal, petition, motion, or response is frivolous or in bad faith. The assessment of damages is discretionary and may include attorney fees. Id. Appellate damages for lack of merit should be applied only when the appellant's contentions and arguments are utterly devoid of all plausibility. Lutz v. Fortune, 758 N.E.2d 77, 85 (Ind.Ct.App.2001), trans. dismissed.
The Trust's request for attorney fees hinges upon whether Lisa could have received a share of the trust assets, or rather, whether she was automatically precluded by statute. Further, the Trust assumes that the appeal is in bad faith and that Lisa purposefully failed to cite the statutory authority relating to the "stranger-to-the-adoption" rule. With this we do not *1028 agree. It is not apparent from the material before us that Lisa purposefully and in bad faith failed to cite relevant statutory authority. Further, her contention that she was a member of the class who should receive a share of the trust assets was not devoid of all plausibility.
Addressing the contention that Lisa failed to cite relevant statutory authority, we note that neither party directed the trial court to the statute and that no mention was made of the statute by the trial court. It would be improper to assess damages against Lisa for failing to do something at trial which the Trust also failed to do. That the Trust has now located what it believes to be relevant authority precluding Lisa's claim does not entitle it to attorney fees.
As stated above, our decision does not rest upon the statutory embodiment of the "stranger-to-the-adoption" rule. However, to fully assess whether the Trust's claim for attorney fees has merit, we must address the "stranger-to-the-adoption" rule in some detail. As originally created, the "stranger-to-the adoption" rule provided that when one made provision for her own children in a will, an adopted child was deemed to be included unless there was something in the will or in the extraneous circumstances to rebut said presumption. Beck v. Dickinson, 99 Ind.App. 463, 469, 192 N.E. 899, 901 (1934). However, when one made provision for the child or children of some person other than herself, it was deemed that the testatrix did not intend to include the adopted child of that other person unless there was something in the will or the extraneous circumstances to rebut said presumption. Id.
Since that time, the General Assembly has amended the "stranger-to-the-adoption" rule by enactment of the 1953 Probate Code. See Lutz, 758 N.E.2d at 82-83. However, Lutz did not explicitly state what effect the changes may have had on the rule. Indiana Code § 29-1-6-1(d) states in relevant part:
"In construing a will making a devise to a person or persons described by relationship to the testator or to another, any person adopted prior to the person's twenty-first birthday before the death of the testator shall be considered the child of the adopting parent or parents and not the child of the natural or previous adopting parents."
While this language does seem to imply that Lisa could not be included in the Will because she was not adopted prior to Myrtle's death, we have found no case, nor has the Trust directed this court to any, which has interpreted the relevant portion of the statute. We note that under the "old rule," whether the adopted child was to be included or excluded from the will was a presumption which could be rebutted by something in the will or through extraneous circumstances. We say this only to acknowledge that it is likely that it would still be possible, based upon the circumstances of a particular case, that a party could establish that she was an intended beneficiary of a will even though she was not adopted prior to the testatrix's death. To determine otherwise may be to construe a will against the testatrix's intent. It is in this light that Lisa contends in her reply brief that had she been given the opportunity to respond to this argument during the trial, she may have been able to show that she was not excluded by presenting evidence of the date of her parent's marriage and the death of her grandmother. From this, one presumes that Myrtle knew Lisa and it may have been possible for Lisa to remove herself from the controlling language of the statute. However, Lisa has been unable to convince this court that it is possible to construe the Will so as to include her as a beneficiary.
*1029 Regarding the plausibility of Lisa's argument, it is not beyond reason to conclude that the use of general language, such as employed in the Will, would create a class of which Lisa may have been a part. However, such is not the case here. Nevertheless, while we have determined that her claim must fail, it was not devoid of all plausibility, and indeed, a review of the case law demonstrates that the use of both general classifications and specific limiting language may, in some cases, result in the determination that the testatrix intended to create different classes of beneficiaries. The Trust's request for attorney fees is denied.
The judgment of the trial court is affirmed.
BAILEY, J., and MATHIAS, J., concur.
NOTES
[1] Although the trial court used the phrase "intended beneficiary," it is clear that the court's order states that Lisa is not a beneficiary.
[2] The interested parties opposing Lisa's petition, namely the children or descendents of Robert D. Avery specifically mentioned in the Will, were treated as intervenors and will be referred to as the "Trust."
[3] The record is unclear as to the date of Myrtle's death. However, the Will was initially filed with the Clerk of the Lake Circuit Court prior to September 20, 1972. Therefore, the date of Myrtle's death is sometime previous to the date of filing of the Will.
[4] The "stranger-to-the-adoption" rule (See Lutz v. Fortune, 758 N.E.2d 77 (Ind.Ct.App. 2001), trans. dismissed) is contained in Ind. Code § 29-1-6-1(d) (Burns Code Ed. Repl. 2000) and is discussed infra.
[5] The Walz decision involved an inter vivos trust rather than, as here, a testamentary trust. The court noted that the provisions of an inter vivos trust are not controlled by the Probate Code. Nevertheless, the court acknowledged that the public policy enunciated in the Probate Code to the effect that "an adopted child is to be treated as though the natural child of the adopting parent" was entitled to strong consideration when construing terms of a trust. 423 N.E.2d at 733. That consideration, however, was held to not alter the manner in which the words used in the trust instrument were to be construed. In so holding, the court stated, apropos of the case before us, "It is a well established rule for the construction of will provisions that gifts to named individualsalso described by a reference to a class to which they belong are presumed to be gifts to the individuals named and not a gift to the class". Id. at 735.
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29 Cal.App.4th 1772 (1994)
36 Cal. Rptr.2d 117
THE PEOPLE, Plaintiff and Respondent,
v.
ROBIN RE SHARP, Defendant and Appellant; In re ROBIN RE SHARP on Habeas Corpus.
Docket Nos. A060424, A062916.
Court of Appeals of California, First District, Division Two.
November 14, 1994.
*1776 COUNSEL
J. Frank McCabe, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Sonna B. Chew and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
PHELAN, J.
I. INTRODUCTION
Appellant Robin Re Sharp timely appeals from his conviction after a jury trial of seven felony counts of forcible lewd and lascivious conduct with a child under the age of fourteen years (Pen. Code, § 288, subd. (b) [counts 3, and 5, relating to Joann G.; counts 20, 22, 24 and 26, relating to Tammy G.; count 44, relating to Vanessa P.]),[1] one felony count of forcible penetration with a foreign object (§ 289, subd. (a) [count 4, relating to Joann G.]), three felony counts of nonforcible lewd and lascivious conduct with a child under the age of fourteen years (§ 288, subd. (a) [counts 6 and 7, relating to Joann G.; count 43, relating to Vanessa P.]), two felony counts of rape (§ 261, subd. (a)(2) [counts 11 and 13, relating to Tammy G.]), three felony counts of forcible oral copulation with a person under the age of fourteen years (§ 288a, subd. (c) [counts 19, 21 and 23, relating to Tammy G.]), and one misdemeanor count of battery (§ 242 [count 9, relating to Joann G.]). Appellant was also convicted, based on a plea of no contest, to five counts of receiving stolen property (§ 496.1 [counts 33, 40, 42, 51 and 52]), eleven counts of residential burglary (§ 459 [counts 31, 32, 34, 35, 36, 37, 38, 39, *1777 41, 47 and 48], one felony count of forcible lewd and lascivious conduct with a child under the age of fourteen years (§ 288, subd. (b) [count 49, relating to Rebecca F.]), and one felony count of attempted kidnapping (§§ 207, subd. (a), 664 [count 50, relating to Rebecca F.]).
After a bench trial, the court found true the allegation of a prior conviction of a serious felony, first degree rape of a 12-year-old girl in the state of Washington. (§ 667, subd. (a).) The trial court sentenced appellant to a total of 129 years in state prison for the foregoing offenses.
Appellant's primary contention on appeal (and the sole issue presented in his petition for writ of habeas corpus) is that he was deprived of his constitutional right to face-to-face confrontation with his accuser when the prosecutor positioned herself in the courtroom so that one of the young victim witnesses, Tammy G., did not have to look at him while testifying about his acts of sexual molestation. Appellant also contends that the trial court erred in denying his request for a new attorney to investigate a possible new trial motion based on incompetence of trial counsel. In the published portion of this opinion, we hold that the procedure used by the prosecutor to question Tammy did not violate appellant's confrontation clause rights, and that the trial court did not abuse its discretion by rejecting his posttrial claim of ineffective assistance.
Appellant also claims that the trial court erred by admitting certain hearsay and similar act evidence, and by failing to inquire about an incident in which two jurors were reported to have cried after hearing the victim witnesses' testimony. Finally, appellant contends that the evidence was insufficient to support the convictions on several of the sex offenses, and that the trial court erred in its computation of his sentence. We address all but one of these claims in the unpublished portion of the opinion. As to appellant's claim that there was insufficient evidence of a "lewd or lascivious act" to support the conviction on count 6, we conclude in a published portion of the opinion that even a seemingly innocent act, such as stroking a child's hair or rubbing her back, can be found to be "lewd or lascivious" when viewed in the totality of the circumstances in which it occurred.
Finding no reversible error, we affirm the judgment of conviction in its entirety and deny the petition for writ of habeas corpus. However, we remand for resentencing to correct an error which, respondent concedes, was committed by the trial court in the determination of appellant's sentence.
II. FACTUAL AND PROCEDURAL BACKGROUND
Appellant's claims of error all relate to his convictions, entered upon the jury's verdict, of sex offenses against three young girls. Joann G. was nine or *1778 ten years old when she lived on Heidi Place in Santa Rosa, where appellant was her neighbor from 1989 to 1992. Joann testified to four incidents of lewd and lascivious conduct.
In the first incident, charged in counts 6 and 7, Joann and a friend were washing appellant's truck when appellant told her he wanted to show her something in the backyard. Joann followed him, waited at the fence and, while she was there, appellant "dangled" her hair[2] and massaged her back. Appellant also reached down and around under her shirt and pinched her breast. Appellant told her, "[I]t's okay, you don't have to do nothing, just don't tell your mom or nothing." Joann said this made her afraid. Joann then returned to the truck. Appellant tried to touch her breast again, but she put her hand down to block him.
On another occasion, charged in count 3, appellant rubbed Joann's genital area hard enough so that it hurt. When Joann returned home, she started to bleed when she went to the bathroom. On yet another occasion, charged in count 4, appellant used his hand to pull down her shorts and panties and then put something "really greasy up [her] butt." She did not know what it was and did not turn around to look because she was afraid. She said her rectum hurt that day and the next day. Trudy Crough, a physician's assistant and the pediatric sexual abuse coordinator at the county hospital, examined Joann in February 1992 and found a tear in her anus in a position consistent with penetration while she was standing. Crough found no signs of trauma to Joann's vagina.
In the fourth incident, charged in counts 5 and 9, Joann saw appellant walking on the street looking disheveled, with his penis exposed. Appellant told her to approach him and then accused her of telling her mother about his prior conduct. He also made her touch his penis by holding her hand to it and, when she did, he slapped her. She then fell down and appellant tried to kick her. Earlier, appellant had told her he would kill or hurt her or her family if she told anyone.
Appellant also sexually assaulted Joann's younger sister, Tammy G., who was eight years old at the time of the incidents alleged in this case. Tammy initially testified that appellant never touched her, but that she was afraid of him. At that point, the prosecutor asked for a recess. After the break, the prosecutor moved to a position in the courtroom so Tammy would not have to look at appellant while testifying. Tammy then testified that appellant took her into his bedroom twice and touched her in the vaginal and anal *1779 areas. She also said that, on one occasion, he took her clothes and his clothes off and lay on top of her but did not penetrate her. At that point, Tammy told the court she was tired and her testimony was continued to the next court day.
When Tammy took the stand again two days later, she testified that appellant penetrated her vagina twice with his penis. On either that or another occasion, appellant penetrated her rectum with his hand. She further testified that he touched her rectum with his penis three or four times when she was in his bedroom, and put his mouth on her vagina three times. Appellant told her not to tell anyone or he would kill her mom.
Trudy Crough also examined Tammy in February 1992 and found a tear in her hymen that she believed was caused by penetration. There was also, however, undisputed evidence that Tammy had been molested by a friend's father between July 1990 and February 1992. During the examination by Crough, Tammy said that appellant molested her by, among other things, anal-penile and anal-finger contact.
The jury also heard testimony from Carol Brandt, a special education teacher for the Santa Rosa School District who works with children with learning disabilities. Brandt described her work with both Tammy and Joann. As to Tammy, Brandt said she had disabilities in auditory memory, auditory perception, and language development. In her opinion, Tammy was able to remember events but sometimes had difficulty explaining them. When asked if Tammy was truthful, Brandt said, "I think so." In 1989, Brandt also worked with Joann who, at the time, had an auditory attention deficiency and difficulty in focusing. According to Brandt, Joann's memory seemed fine and she appeared to be truthful.
Appellant molested a third neighborhood girl, Vanessa P., when she was eight or nine years old. Vanessa testified that appellant would occasionally pay her to wash his truck. One time, while Vanessa was washing the truck, appellant touched her breast. She tried to get away from appellant by moving to the other side of the truck, but he went around and tickled her on the breast again. Appellant said he was not going to hurt her. Vanessa further testified to another occasion on which appellant picked her up after she fell off a swing and held her for "[k]ind of long" and "[a] little tight," touching her knee with his penis.
Appellant did not take the stand in his own defense. In fact, the only defense witness to testify was Dr. Kevin Coulter, a pediatrician, who reviewed the slides of the anal and vaginal areas of Joann and Tammy G. taken *1780 in February 1992. Dr. Coulter testified that he did not find any abnormalities, but admitted that there have been studies showing that known penetrations do not necessarily lead to abnormal findings.
The jury trial in this case began on July 27, 1992. On July 31, appellant pleaded no contest to counts 31 through 42, and 47 through 52 of the 52-count information, as described above. On September 3, the court granted appellant's motion for acquittal on eleven of the remaining counts. On September 4, the jury rendered its verdict. On the same date, the court dismissed five additional counts that were charged as alternatives or as lesser counts of crimes for which he was convicted. The court also dismissed one count of burglary "in the interest of justice." On September 10, the court found true the allegation of a prior conviction of a serious felony.
On October 29, appellant moved through counsel to withdraw his no contest pleas. On November 2, he also moved for a new trial based on newly discovered evidence. Both appellant and his trial counsel filed briefs in support of the new trial motion. On November 12, the court denied both motions. Thereafter, appellant moved in pro per seeking appointment of substitute counsel because of alleged ineffective assistance of his trial attorney. After a hearing in chambers with appellant and his trial counsel, the court denied this motion on November 30. Appellant was sentenced on December 1, 1992. This timely appeal followed.
III. DISCUSSION
A. The Prosecutor's Questioning of One of the Young Victim Witnesses, With the Child Looking Away From the Defense Table, Did Not Deprive Appellant of His Right to Face-to-face Confrontation.
(1a) Appellant's first contention is that he was deprived of his right to face-to-face confrontation with his accuser (U.S. Const., Amend. VI; Cal. Const., art. I, § 15) when the prosecutor sat or stood next to the witness stand so Tammy could look away from the defense table while she was testifying. Tammy was the victim in nine of the seventeen counts of which appellant was convicted by the jury, and much of the testimony given in this unorthodox fashion was central to the prosecution's case on the counts involving Tammy.
Appellant relies primarily on Herbert v. Superior Court (1981) 117 Cal. App.3d 661 [172 Cal. Rptr. 850, 19 A.L.R.4th 1276] (Herbert), a prosecution for oral copulation and lewd acts upon a child, in which the defendant claimed his confrontation rights were violated by an arrangement by which *1781 the young victim witness was seated so the defendant could hear but not see her as she testified at the preliminary examination. Apparently, the magistrate in that case sat in the jury box facing the child, who was seated in the witness chair, but the defendant was seated across the courtroom from the magistrate such that his view of the witness stand was obstructed by the bench. (Id. at pp. 664-665, fn. 1.) The magistrate had ordered this unusual arrangement after finding that the child was reluctant or unable to testify because she "`was disturbed by the number of people in the courtroom and in particular with the presence of the defendant... [.]'" (Id. at p. 664.)
The Third District held that the arrangement violated the defendant's confrontation rights: "By allowing the child to testify against defendant without having to look at him or be looked at by him, the trial court not only denied defendant the right of confrontation but also foreclosed an effective method for determining veracity." (Herbert, supra, 117 Cal. App.3d at p. 668.) As the court explained, "The historical concept of the right of confrontation has included the right to see one's accusers face-to-face, thereby giving the fact-finder the opportunity of weighing the demeanor of the accused when forced to make his or her accusation before the one person who knows if the witness is truthful." (Id. at p. 671.)
Herbert is distinguishable from the instant case. In that case, the courtroom was arranged so it was physically impossible for the defendant and witness to see one another during the child's testimony.[3] (117 Cal. App.3d at pp. 664-665, fn. 1.) Here, by contrast, appellant was able to watch Tammy as she gave sworn testimony, limited only in his view of a portion of her face. Evidence presented in connection with appellant's habeas petition indicates that appellant was able to see the side and back of Tammy's head during the prosecutor's examination. Thus, even if he could not clearly see all of her facial expressions, appellant could observe the witness's general demeanor and reactions to the questioning. Tammy, on the other hand, was able but *1782 chose not to look at appellant. The relevant fact finder the jury was able to view both the defendant and Tammy, and their reactions to one another and the questioning, during the child's testimony. We find nothing improper about this procedure.
Indeed, the situation in this case is not materially different from one in which a witness might stare at the floor, or turn her head away from the defendant while testifying. In such a case, "[t]he Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; [the witness] may studiously look elsewhere." (Coy v. Iowa, supra, 487 U.S. at p. 1019 [101 L.Ed.2d at p. 866].) The mere fact that the prosecutor facilitated Tammy's decision to look away from appellant does not transform this innocuous act into a violation of the confrontation clause.
A contrary holding would border on the absurd. Surely, appellant cannot be claiming a constitutional right to stare down or otherwise subtly intimidate a young child who would dare to testify against him. Nor can he claim a right to a particular seating arrangement in the courtroom. A witness who avoids the gaze of the defendant may be exhibiting fear, embarrassment, shyness, nervousness, indifference, mendacity, evasiveness, or a variety of other emotional states or character traits, some or all of which might bear on the witness's credibility. (2) It is, however, the function of the jury to assess such demeanor evidence and "draw its own conclusions" about the credibility of the witness and her testimony. (Coy v. Iowa, supra, 487 U.S. at p. 1019 [101 L.Ed.2d at p. 866].) There was no interference with the jury's ability to perform that function in this case.
(1b) Although we decline to follow Herbert on the ground that it is distinguishable, we also have serious doubts about the precedential value of that case. Herbert appears to hold that a criminal defendant has an absolute right under the confrontation clause of both the federal and state Constitutions (U.S. Const., Amend. VI; Cal. Const., art. I, § 15) to see and be seen by his accusers during any testimony, regardless of the age of the witness, the type of crimes charged, and the potential for further psychological trauma to the particular child from having to testify under the hostile glare of the defendant. Herbert has been criticized by the California Supreme Court because of its assumption that the state and federal Constitutions require such a result in a preliminary hearing. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1077 [2 Cal. Rptr.2d 160, 820 P.2d 262].) The holding of Herbert has also been limited by statutes which were enacted by the California Legislature to provide special protection to young children who are called to testify as victims of sexual molestation. (§ 1346 et seq.)
(3) Since Herbert was decided, moreover, the United States Supreme Court has held that a trial court may employ procedures allowing something *1783 less than literal face-to-face confrontation between an adult defendant and his or her child victims in a sexual molestation prosecution. (Maryland v. Craig, supra, 497 U.S. at pp. 849-850 [111 L.Ed.2d at pp. 680-681].) Such procedures will pass constitutional muster if: (1) they are necessary in a given case to protect a child witness from emotional trauma that would be caused by testifying in front of the defendant, at least where such trauma would impair the child's ability to communicate; and (2) the reliability of the testimony is otherwise assured by rigorous adversarial testing. (Id. at pp. 850, 857 [111 L.Ed.2d at pp. 681, 686].)
(1c) Under the two-part test established by Maryland v. Craig, supra, we conclude that the procedure approved by the trial court in this case did not violate appellant's confrontation clause rights. We first note that the arrangement of the courtroom during Tammy's testimony resulted in only the most minimal interference with appellant's right to confront his accuser. Tammy and the other accusing witnesses physically appeared in open court to give live testimony against appellant before judge and jury. They testified under oath and were subject to contemporaneous cross-examination. No physical barrier or screen was erected between appellant and the witnesses as they testified. No technological devices were employed to insulate the witnesses from the accused. (Cf. 497 U.S. at pp. 849-850 [111 L.Ed.2d at pp. 680-681].) Indeed, the only limitation on appellant's right to confront Tammy was that he did not have a full, frontal view of her face.
Balanced against appellant's interest in having a literal face-to-face meeting with Tammy were the important interests of the state in obtaining a complete and accurate account of the interactions between appellant and Tammy, and in protecting Tammy from unnecessary emotional trauma. (Maryland v. Craig, supra, 497 U.S. at pp. 845-846, 852-853 [111 L.Ed.2d at pp. 678-679, 682-683].) Although the trial court did not make explicit findings, it is apparent from the record of her testimony that Tammy was experiencing considerable distress and suffering inexplicable memory lapses about sex acts she had theretofore consistently reported.[4] It also appears that Tammy was having difficulty focusing, as the prosecutor repeatedly had to ask her to "[l]ook at me [the prosecutor]" while she was testifying.[5] She was, in short, unable to participate effectively in the proceedings when seated in the conventional position in the witness box, facing appellant.
*1784 When the prosecutor began her direct examination on the morning of August 11, Tammy initially testified that appellant never touched her anywhere. Tammy then gave a series of flatly contradictory answers to the prosecutor's questions. For example, she answered "Yeah," when the prosecutor asked, "Did anything happen when you were in Robin's house?" Immediately thereafter, however, she answered "No," when the prosecutor asked if Robin said or did anything to her when she was in his house. Obviously concerned that Tammy was becoming aphonic, the prosecutor asked Tammy if she was scared. At first, Tammy would only nod her head but, eventually, she testified that she was scared of appellant "in particular." Tammy then testified she told a detective that appellant asked her if she wanted to play a game. Tammy answered "Yeah" when the prosecutor asked if she remembered what happened next. But when the prosecutor asked if she could tell the jury what happened, she said, "I forgot." The balance of Tammy's testimony on the morning of August 11 is riddled with inconsistency, forgetfulness, evasiveness, and confusion.
After a two-hour recess, the prosecutor obtained the court's permission to continue her examination of Tammy from a chair to the right of the witness stand, so the child would not have to look at appellant. At that time, the prosecutor argued that "I think that it was clear to all present that when Tammy was testifying earlier today she was scared and was unable to participate." The prosecutor conducted the rest of her examination of Tammy with the child facing away from the defense table. It was during her testimony on the afternoon of August 11, and on the following court day, that Tammy described the numerous sex acts for which appellant was convicted.
After a careful review of the record, we are persuaded that the minor interference with appellant's right to face-to-face confrontation was fully justified in the circumstances of this case. Allowing Tammy to look away from the defense table while giving live, in-court testimony, maximized appellant's opportunity to have a face-to-face meeting with a key prosecution witness, while minimizing the resulting emotional trauma to the young witness. It also afforded the jury an opportunity to hear and see a full account of Tammy's claims, ranging from complete denial to detailed descriptions of multiple acts of sexual molestation. The jury was as free to decide that Tammy was being truthful when she said appellant never touched her, as it was to accept her graphic testimony about acts of sexual intercourse, oral copulation, penetration with a foreign object, and sodomy. There *1785 was no error in the trial court's decision to authorize this procedure, which clearly "preserve[d] the essence of effective confrontation." (Maryland v. Craig, supra, 497 U.S. at p. 857 [111 L.Ed.2d at p. 686].)
Two recent cases from other jurisdictions are in accord with our conclusion. (Brandon v. State (Alaska App. 1992) 839 P.2d 400; Stanger v. State (Ind. Ct. App. 1989) 545 N.E.2d 1105.) In Stanger, the court considered whether placement of a witness chair at a slight angle toward the jury and away from the accused during the testimony of the child witnesses violated the defendant's confrontation rights. (545 N.E.2d at p. 1112.) The procedure utilized did not prevent the defendant from hearing or seeing the child witnesses. It did not prevent the witnesses from being heard or seen by the judge or jury. Nor did it prevent the witnesses from hearing or seeing the defendant. The defendant's only objection was that the witnesses were not facing directly at him. (Ibid.) The Indiana Court of Appeals held that the arrangement did not violate the defendant's right of confrontation, as guaranteed by either the federal or state constitution: "Where, as here, the method of eliciting testimony permits jury, witness, and defendant all to see and hear each other and possesses the added virtue of actually facilitating the truthfinding function at the trial, positioning the witness away from the defendant is but a reasonable limitation on the defendant's interest in physical confrontation." (Id. at p. 1113, fn. omitted.)
Brandon v. State, supra, involved a defendant accused of beating his wife nearly to death while his three-year-old son watched. (839 P.2d at p. 402.) The defendant in that case claimed he was deprived of his confrontation clause rights when the trial court arranged for the son to testify from a small chair and table, rather than from the witness stand. This arrangement placed the boy's chair perpendicular to his father, in a position from which he could probably see his father out of the corner of his eye. (Id. at p. 409.) Evidence presented by the prosecutor indicated that the boy was "`particularly afraid of testifying against his father, knowing his father will be here in the court.'" (Ibid.) The Alaska Court of Appeals held that the defendant's right of confrontation was not infringed. (Id. at p. 410.) The court based its holding on the facts that the child's position relative to his father was "`not really different from where their positions would be if he were in the regular witness chair,'" and that the trial judge did not require defense counsel to question the child from any particular part of the courtroom. Thus, if defense counsel had questioned the child from the podium or the normal defense counsel's chair, the child would have had to face the defendant in order to respond directly to counsel. (Ibid.)
As did the courts in the foregoing cases, we recognize that trial courts are regularly called upon to make tough decisions about how to afford criminal *1786 defendants the full measure of procedural protections to which they are entitled under the confrontation clause, without unduly traumatizing victim witnesses whose contributions to the truth-seeking process are so vital. When the victim witness is a young child, the risks of damage to both the witness and the truth-seeking function can be especially great. (See Maryland v. Craig, supra, 497 U.S. at p. 857 [111 L.Ed.2d at p. 686]; and see generally, Cecchettini-Whaley, Children as Witnesses After Maryland v. Craig (1992) 65 So.Cal.L.Rev. 1993, 2005-2018.) The special procedure approved by the trial court in this case minimized those risks, while maximizing appellant's opportunity for a face-to-face meeting with his principal accuser. This procedure did not violate the confrontation clause.
B., C.[*]
.... .... .... .... .... .... .... .
D. The Trial Court Did Not Abuse Its Discretion in Denying Appointment of Substitute Counsel for the Purpose of Investigating a Claim of Incompetence of Trial Counsel and a Second New Trial Motion.
(4a) Appellant next contends that the trial court failed to adequately inquire into his posttrial claim that his counsel was incompetent, and his concomitant request for substitute counsel. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal. Rptr. 156, 465 P.2d 44]; People v. Stewart (1985) 171 Cal. App.3d 388 [217 Cal. Rptr. 306].) We conclude that the trial court's denial of appellant's Marsden/Stewart motion was adequately informed, and well within its discretion in that appellant did not there and does not here make a proper showing of ineffective assistance by his appointed counsel.
(5) The decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney is a matter entrusted to the sound discretion of the trial court. (People v. Marsden, supra, 2 Cal.3d at p. 123.) "When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would `substantially impair' the defendant's right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435 [285 Cal. Rptr. 31, 814 P.2d 1273]; People v. Marsden, supra, 2 Cal.3d at pp. 123-125 [trial court must give defendant an opportunity to explain the *1787 reasons for desiring new counsel].) "[T]he inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past." (People v. Smith (1993) 6 Cal.4th 684, 695 [25 Cal. Rptr.2d 122, 863 P.2d 192], italics in original.) "If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel." (People v. Stewart, supra, 171 Cal. App.3d at pp. 396-397.) The same standard of proof applies to a motion for substitute counsel made in the trial court whether it is made before or after conviction. (People v. Smith, supra, 6 Cal.4th at p. 696.)
(4b) Appellant's claim of ineffective assistance was presented to the trial court in a Marsden motion filed by appellant in propria persona, literally on the eve of sentencing. In that motion, appellant argued that his court-appointed attorney, Barry Collins, had failed to investigate and subpoena a favorable defense witness Vanessa's grandmother, Beatrice Helmick and to prepare a motion to suppress evidence obtained through illegal searches of his home and vehicles. Evidence obtained in those searches included a box containing numerous photographs and negatives that had been shot surreptitiously or stolen from the homes of young girls in the Santa Rosa area, distinctive articles of clothing that had been described by victims as having been worn by a burglar who had been prowling the same area, and a handwritten note containing Tammy's phone number.
In response to appellant's Marsden motion, the trial court conducted an evidentiary hearing at which appellant was afforded a full and fair opportunity to air his grievances against his trial counsel. Mr. Collins also testified briefly, informing the court that he had been aware of and considered each of the questions raised by appellant. Mr. Collins also said he believed he had at all times acted in appellant's best interests but declined to comment further, saying that he did not want to do anything that might affect appellant's appeal. At the conclusion of the hearing, the court denied the motion, stating that the matters raised therein had already been considered and rejected by the court, or should be raised on appeal. The court also commented that Mr. Collins had "done an admirable job," and noted that the relationship between appellant and Mr. Collins was still functional: "This is not a situation where there's been a breakdown in communication or such a strain between you that you could no longer effectively operate as a defense team." The court further noted and appellant agreed that Mr. Collins was in a better position to represent appellant at sentencing than would be any newly appointed attorney.
The court's inquiry into appellant's Marsden motion was adequate. It considered the specific examples of counsel's inadequate representation that *1788 appellant enumerated, all of which were based upon acts or omissions which occurred at trial or the effect of which could be evaluated by what occurred at trial. Thus, the trial court was fully justified in ruling on the motion for new trial without substituting new counsel. (People v. Webster, supra, 54 Cal.3d at pp. 435-436; People v. Stewart, supra, 171 Cal. App.3d at pp. 396-397.)
As to Ms. Helmick, the trial court was fully apprised of the fact that she had been available to testify for the defense at trial but had not been called. This information was presented to the court both in the opposition to appellant's motion for a new trial and in the Marsden proceeding. In addition, the court had before it an offer of proof as to what she would say if called as a witness. There was no error in the trial court's finding that her testimony had only minimal probative value and would not have made any difference in the outcome of the trial. Indeed, even if fully credited, Ms. Helmick's proposed testimony that she did not see appellant molest her granddaughter or any other young girl would have added almost nothing to the defense case. Several other neighbors had already testified that they were in a position to, but never did, see appellant sexually molest the girls who spent time at his house. Reasonable defense counsel could also conclude that calling Ms. Helmick to, in essence, accuse her own granddaughter of lying about appellant's acts of molestation would be more harmful than helpful to his client's cause. We see no reason to disturb the trial court's findings with respect to this claim of ineffective assistance of counsel.
The trial court was also fully apprised of the circumstances of each of the searches that yielded evidence against appellant, having before it sworn testimony about them during the preliminary hearing. The court was also familiar with the applicable case law. There is no dispute that appellant was at all relevant times a parolee, subject to warrantless searches. (6) Such searches are lawful if based on a reasonable suspicion that the parolee is involved in criminal activity or otherwise violating the terms of his parole. (People v. Johnson (1988) 47 Cal.3d 576, 594 [253 Cal. Rptr. 710, 764 P.2d 1087]; People v. Burgener, supra, 41 Cal.3d at pp. 533-536.) (4c) There was not and, we think, cannot be any serious question but that the searches were conducted upon reasonable suspicion. Further, although appellant correctly notes that parolees retain the right to object to searches conducted in an unreasonable manner (see People v. Bravo (1987) 43 Cal.3d 600, 607 [238 Cal. Rptr. 282, 738 P.2d 336]), or undertaken for purposes of harassment (People v. Clower (1993) 16 Cal. App.4th 1737, 1741-1742 [21 Cal. Rptr.2d 38]), the record of this case is utterly devoid of any indication that the searches of appellant's residence, car, and work vehicle were improper in either motive or manner of execution. No other plausible basis for challenging the searches appears in the record, or in appellant's briefs.
*1789 It is true that, as a "layman totally unschooled in the law," appellant could not be expected to conduct an investigation and determine whether a motion to suppress the seized items would have been meritorious. It is also true, however, that appellant was not left entirely to his own devices to deal with this issue. As we have discussed, the trial court was familiar with the case law governing parole searches and the circumstances of the searches conducted in this case. Appellant has also had the benefit of an independent review of this matter by his court-appointed appellate/habeas counsel. That review has yielded no new facts or case authority to warrant further inquiry into the competence of trial counsel in his handling of the search and seizure question. It would be pointless to remand to the trial court for further proceedings on this issue.[6]
E., F.[*]
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G. There Was Sufficient Evidence to Support the Convictions on All the Sex Offenses.
Appellant next contends that there was insufficient evidence to support the convictions on several of the sex offenses in this case. We will discuss each of his contentions in turn.
1. Count 6.
(7) First, he argues that there was no "lewd or lascivious act" proven as the predicate for count 6. (§ 288, subd. (a).) As framed for the jury by the prosecutor during closing argument, that count consisted of appellant's conduct in "dangling" Joann's hair while she was standing by his fence after having been lured there by appellant on the pretense that he wanted to show her something in the backyard followed by the rubbing of her back. At that time, appellant told her, "[I]t's okay, you don't have to do nothing, just don't tell your mom or nothing." The prosecutor argued that, while the particular acts charged in count 6 "may seem somewhat innocent," it could *1790 be inferred from the circumstances that the acts were "lewd and lascivious" and that appellant had the specific intent to arouse himself or Joann. Among the circumstances the prosecutor asked the jury to consider were appellant's other, more obviously sexual contacts with Joann, as well as with Tammy and Vanessa.
The issue here is whether appellant's conduct in "dangling" Joann's hair and rubbing her back can constitute a "lewd or lascivious act" within the meaning of section 288.[7] Appellant argues as a matter of law that it cannot, citing a line of cases which hold that an "innocuous or innocent touching," even one performed with the requisite intent, is insufficient to constitute a violation of section 288. (People v. Wallace (1992) 11 Cal. App.4th 568, 571 [14 Cal. Rptr.2d 67]; People v. Webb (1958) 158 Cal. App.2d 537, 542 [323 P.2d 141]; see also People v. Gaglione (1994) 26 Cal.4th 1291, 1297-1298 [32 Cal. Rptr.2d 169]; People v. Filson (1994) 22 Cal. App.4th 1841, 1852 [28 Cal. Rptr.2d 335]; People v. Self (1993) 12 Cal. App.4th 1222, 1226-1227 [16 Cal. Rptr.2d 67].) Under this line of cases, "[a] lewd or lascivious act is defined as any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire. [Citation.] In sum, it is a sexual act." (People v. Wallace, supra, 11 Cal. App.4th at p. 579, italics in original; and see People v. Webb, supra, 158 Cal. App.2d at p. 542 [defining a lewd or lascivious act as "an act which is lustful, immoral, seductive or degrading"].)[8] As the Wallace court explained, "[A] mere intention of the accused to commit a crime or his belief that he is committing a crime, does not give rise to criminal liability. Apart from the mens rea, there must be some act or conduct in violation of law which itself is socially harmful." (11 Cal. App.4th at pp. 579-580.)
Respondent urges us to follow another line of cases which hold that any touching done with the requisite intent can be a "lewd or lascivious *1791 act" within the meaning of section 288. (People v. Marquez (1994) 28 Cal. App.4th 1315, 1325-1326 [33 Cal. Rptr.2d 821]; People v. Gilbert (1992) 5 Cal. App.4th 1372, 1380 [7 Cal. Rptr.2d 660] [rubbing stomach, back and thigh sufficient to constitute lewd or lascivious act when done with requisite intent as established by course-of-conduct evidence]; People v. Dontanville, supra, 10 Cal. App.3d at pp. 795-796 [rubbing victim's stomach, with requisite intent, can be a lewd or lascivious act]; People v. Hobbs (1952) 109 Cal. App.2d 189, 190-192 [240 P.2d 411] [kissing and rubbing the leg of a 12-year-old girl under her skirt was lewd or lascivious act within the meaning of section 288]; see also People v. Austin, supra, 111 Cal. App.3d at p. 113; People v. Pitts, supra, 223 Cal. App.3d at pp. 887-889.) As the Hobbs court explained, "Section 288 of the Penal Code was enacted to protect children from the lustful advances and tamperings of callous and unscrupulous persons as well as from the assaults of depraved unfortunates. In all cases arising under this statute the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. In People v. Owen [(1945)] 68 Cal. App.2d 617, 620..., it is said that `It is not the accomplishment but the intent of the party that is the basis of the commission of the acts condemned in Penal Code section 288.' If intent of the act, although it may have the outward appearance of innocence, is to arouse, or appeal to, or gratify the lust, the passion or the sexual desire of the perpetrator it stands condemned by the statute, or, if it is intended to arouse feelings of passion or sexual desire in the child, it likewise stands condemned. The intent with which the act is done is manifested by the circumstances under which it was committed. (§ 21.) As is said in People v. Owen, supra, each case involving a lustful advance upon a child `must be decided by the evidence introduced and is not necessarily controlled by a previous decision.'" (People v. Hobbs, supra, 109 Cal. App.2d at p. 192, italics in original.)
We find the circumstances of this case to be sufficient under either of these two lines of authority. The instant case presents a good example of seemingly "innocent" acts stroking a child's hair and rubbing her back that take on a markedly sexual cast when viewed in context. There was ample evidence from which an objectively reasonable person could conclude that these acts, committed after appellant lured Joann to a secluded spot on a pretense and reassured her of her safety but instructed her "not to tell," were "sexual" in nature even under the definition stated in People v. Wallace, supra, 11 Cal. App.4th at page 579. This is perforce true given the evidence of other acts of a similar nature committed by appellant on the other young female victims in this case. (People v. Gilbert, supra, 5 Cal. App.4th at pp. 1380-1381.) In addition, the jury could readily find that appellant's conduct was not merely "preparatory" to some "ultimate" lewd *1792 or lascivious act. (Cf. People v. Webb, supra, 158 Cal. App.2d at p. 542.) Unlike the defendant in People v. Webb, who placed his arm around the shoulder of a young boy to lead him into a bungalow to molest him, appellant began to fondle Joann's hair and back after they arrived at the location he had selected for the molestation. Finally, only a very calloused individual would fail to recognize that, even if appellant had stopped or had been interrupted on that particular occasion after rubbing Joann's back, his conduct as charged in count 6 was itself "socially harmful" and "sexual" in nature when viewed in context. (People v. Wallace, supra, 11 Cal. App.4th at p. 580.) It is likely that, by that point, he had already inspired the fear Joann said she experienced and violated the social compact by which adults are expected to care for, protect, and nurture children, and not to manipulate them as objects to satisfy the adult's sexual urges. In the totality of the circumstances in which the alleged touchings occurred, we conclude that there was sufficient evidence from which a rational trier of fact could conclude beyond a reasonable doubt that appellant committed a "lewd or lascivious act" within the meaning of section 288, subdivision (a), when he "dangled" Joann's hair and rubbed her back.
Although we apply the "objectively reasonable person" test announced in People v. Wallace, supra, 11 Cal. App.4th at page 579, we do not thereby endorse the requirement that a "lewd or lascivious act" must be a "sexual act." We note that concept has been incorporated in the Comment to revised CALJIC Instruction No. 10.41 ("The Wallace court require[s] that the act be by itself lewd." (Italics added.)). We do agree with Wallace that a "lewd or lascivious act," and the specific "intent of arousing, appealing to, or gratifying the lust or passions or sexual desires," are separate elements which must be proven and which must coincide (§ 20) to establish a violation of section 288. (11 Cal. App.4th at pp. 578-579.) Furthermore, we share the concern that the pre-Wallace CALJIC definition of a "lewd or lascivious act" can be read as conflating these two elements. (See id. at p. 581.) We are troubled, however, by the Wallace court's attempt to limit the reach of section 288 to only those touchings which an "objectively reasonable person" would find to be "sexual" in nature. (People v. Wallace, supra, 11 Cal. App.4th at pp. 579-580.)[9] Apparently, the Wallace court believed that there are some types of touchings which are inherently and incontestably "innocuous or innocent" and, thus, incapable of serving as the predicate for a section 288 violation. (11 Cal. App.4th at pp. 571, 578.) For example, the Wallace court strongly suggests that "innocuous" acts such as "brushing a child's hair or touching a child's arm" could never qualify as "lewd or lascivious acts," regardless of the surrounding circumstances and even if *1793 done with the requisite intent. (Id. at pp. 575-576, 580.) Similarly, the Wallace court sharply criticizes dicta in People v. Austin, supra, 111 Cal. App.3d at pages 113-114, which suggested that a violation of section 288 was complete when a knife-wielding defendant offered to pay a child to pull down her pants and then, when the child was indecisive, touched her in the course of pushing and guiding her to a secluded spot in an orange grove. (11 Cal. App.4th at pp. 575-577.) The Wallace court also implies that nothing "sexual" or "socially harmful" was done to the 11-year-old victim in People v. Webb, supra, 158 Cal. App.2d at page 542, by the time the defendant a janitor who befriended the child over the course of the summer while working at a public school adjacent to the boy's home lured the boy onto the school grounds on the pretense he had a job for him, told the boy's friend to remain outside the locked gates to the school, and placed his arm around the boy's shoulder as he led the child to a bungalow (where he subsequently forced the child to perform an act of oral copulation that formed the basis of a separate count under section 288a). (11 Cal. App.4th at pp. 576-577.)
We reject the Wallace court's narrow view of what constitutes a "sexual" and "socially harmful" touching of a child. The 11-year-old victim in People v. Webb, supra, may well have been terrified when the defendant isolated him away from his friends and began to touch him by placing an arm around his shoulder. The same was undoubtedly true of the eight-year-old girl in People v. Austin, supra, 111 Cal. App.3d at pages 112-114, as she was being shoved at knife point toward an isolated location for the purpose of completing the proposed molestation. Likewise, in this case, Joann testified that appellant's acts of touching at his back fence were alarming to her.
The five-year-old girl in People v. Gaglione, supra, may not have been sophisticated enough to be afraid of the stranger who lured her into a utility closet in her apartment complex with a promise of payment, then initiated physical contact by asking her first to touch him on the shoulder, then on his genitals. (26 Cal. App.4th at pp. 1295, 1298.) Like the young victims in Webb, Austin, and the instant case, however, the girl's personal security and bodily privacy were clearly compromised as of the first touching. Nevertheless, if the child's babysitter had interrupted the defendant after this first contact, rather than seconds later as she did, Wallace would require dismissal of the section 288 charge. (See People v. Gaglione, supra, 26 Cal. App.4th at p. 1295.)[10]
We think it beyond purview that social harm is done when an adult draws a child into his or her confidence, lures the child to an isolated location, acts *1794 surreptitiously, and commences touching the child in a manner that invades the child's bodily privacy and, at least in most instances, causes the child to be fearful.[11] As the foregoing discussion reveals, many such incidents at least at the outset involve acts that are not obviously "sexually indecent," and would not "tend[] to arouse sexual desire" in a normal, objectively reasonable person. (Cf. People v. Wallace, supra, 11 Cal. App.4th at p. 579.) When committed in an isolated location and accompanied by secretive conduct, however, the sexual nature of even the most ostensibly "innocuous" touching of a young child by an adult becomes apparent. Section 288 should not be read in such a restrictive fashion that there can be no criminal sanction until the defendant has accomplished a blatantly "sexual" act, or in cases where the transaction is interrupted or the child escapes before the "touching" has progressed to the point that the "sexual" nature of the act is evident without reference to the context in which it occurred.
Accordingly, we hold that any touching of any part of the body of a child under the age of 14 can be "a lewd or lascivious act" within the meaning of section 288 if, in the totality of the circumstances in which it occurred, including any secretive or predatory conduct by the defendant, a reasonable person could conclude it was sexual in nature. We further conclude that the instructions given in this case (CALJIC Nos. 10.41, 3.31, 2.02 (5th ed. 1988)), coupled with the prosecutor's argument that the seemingly "innocent" acts alleged in count 6 were "lewd and lascivious" when viewed in the circumstances in which they occurred, were in substantial conformity with our holding and were sufficient to advise the jury of each of the elements *1795 which the prosecution must prove, beyond a reasonable doubt, to establish a violation of section 288.[12]
Of course, inadvertent or casual, nonoffensive touching, unaccompanied by other direct or circumstantial evidence of an intent to arouse, appeal to or gratify lust, passion, or sexual desire of the defendant or the child, will not qualify as a "lewd or lascivious act" for purposes of section 288. Distinguishing the former touchings from the latter is, however, ordinarily a question of fact for the jury to decide on the basis of the evidence presented in each case. (People v. Hobbs, supra, 109 Cal. App.2d at p. 192 [each case involving a lustful advance upon a child must be decided by the evidence introduced and is not necessarily controlled by a previous decision].) Trial judges must be especially sensitive and alert to this issue and, in appropriate cases, grant motions for a judgment of acquittal (§ 1118.1) at the conclusion of the prosecution's case-in-chief to assure that an innocent touching is not made criminal. Additionally, in close cases, appropriate lesser offense instruction under sections 647.6 (misdemeanor child molesting)[13] and 664 (attempts) must be given.
In this case, the jury must have found that appellant's touching of Joann's hair and back were sexual in nature. We will not disturb this finding, which is supported by substantial evidence.
2.-4.[*]
.... .... .... .... .... .... .... .
H. This Matter Must Be Remanded for Resentencing.[*]
.... .... .... .... .... .... .... .
*1796 IV. CONCLUSION
For all the foregoing reasons, the judgment of conviction is affirmed in its entirety, and the petition for writ of habeas corpus is denied. The cause is remanded for resentencing in accordance with the views expressed in this opinion.[16]
Kline, P.J., and Smith, J., concurred.
Appellant's petition for review by the Supreme Court was denied November 30, 1994, and appellant's petition for review by the Supreme Court was denied February 16, 1995. Mosk, J., was of the opinion that the petition should be granted.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, part I, part II, part III, subsections A, D, and G.1., and part IV, are certified for publication.
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] To indicate how appellant "dangled with" her hair, Joann demonstrated by "twirling [her] index finger right at the back of [her] neck."
[3] In this respect, Herbert is closely analogous to Coy v. Iowa (1988) 487 U.S. 1012 [101 L.Ed.2d 857, 108 S.Ct. 2798]. In Coy, an Iowa trial court had invoked a statutory procedure to allow two 13-year-old girls to testify from behind a large screen about an incident in which the defendant stole into their tent as they were camping in the back yard of the house next door to his, shined a flashlight in their faces and sexually assaulted them. (Id. at pp. 1014-1015 [101 L.Ed.2d at pp. 862-863].) Taking a very literal, absolutist view of the confrontation clause guarantee, a five-justice majority of the Supreme Court held that the procedure deprived the defendant of his right to confront the witnesses against him. (Id. at pp. 1020-1021 [101 L.Ed.2d at pp. 866-867].) However, Coy was called into question just two years after it was decided when a different five-justice majority decided Maryland v. Craig (1990) 497 U.S. 836 [111 L.Ed.2d 666, 110 S.Ct. 3157], and approved a statutory procedure televised testimony by an accusing witness who never had to appear in the courtroom that arguably interfered more severely with the defendant's right to face-to-face confrontation. (Id. at pp. 849-850 [111 L.Ed.2d at pp. 680-681].)
[4] Maryland v. Craig, supra, seems to require a trial court finding that a procedure affording less than literal face-to-face confrontation is necessary to protect the particular child witness. (497 U.S. at p. 855 [111 L.Ed.2d at pp. 684-685].) Appellant did not request and the trial court did not provide such a finding. However, any error on this point was harmless because the record of Tammy's testimony amply supports an implied finding of necessity for the limited intrusion on appellant's confrontation rights.
[5] In her closing argument, the prosecutor further described Tammy's condition while testifying: "And every time I asked Tammy a question, she looked over there, she looked at you, and then she looked at me. And she had difficulty answering. Every time a question was asked, she looked over there, and then she looked back. You could see the terror in her eyes. You could see the fear. And she had to take a break."
[6] In his original Marsden motion, appellant raised a number of additional grounds for finding his trial counsel incompetent, including: failure to "impeach" Tammy with inconsistencies in her trial testimony; entry into an "illegal plea agreement" with the trial court; exclusion of appellant from side-bar conferences; and failure to move for exclusion of appellant's prior conviction for impeachment purposes. Appellant did not press any of these claims during the Marsden hearing. Nor has his appellate/habeas counsel developed any factual or legal support for the additional grounds. We, thus, deem all but the Helmick and suppression issues abandoned. (See People v. Stewart, supra, 171 Cal. App.3d at p. 393, fn. 1.)
[7] Appellant also challenges the jury instruction used in this case to define such an act for purposes of section 288, subdivision (a). (CALJIC No. 10.41 (5th ed. 1988).) This instruction states that "[a] lewd or lascivious act is defined as any touching of the body of a person under the age of fourteen years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party." (Ibid., italics added.)
[8] Beginning with People v. Wallace, supra, 11 Cal. App.4th at page 579, this line of cases has raised doubts about the definition of a "lewd or lascivious act" contained in CALJIC No. 10.41 (see ante, fn. 7), the essence of which has been approved for use for nearly a quarter of a century. (See People v. Dontanville (1970) 10 Cal. App.3d 783, 796 [89 Cal. Rptr. 172]; People v. Austin (1980) 111 Cal. App.3d 110, 113 [168 Cal. Rptr. 401]; People v. Pitts (1990) 223 Cal. App.3d 606, 887 [273 Cal. Rptr. 757].) In response, the Committee on Standard Jury Instructions adopted the alternative definition proposed in Wallace which, the committee suggests, may be used if the trial court so chooses. (Use Note to CALJIC No. 10.41 (1993 rev.) (5th ed. 1994 pocket pt.).) The instruction as revised provides that "A lewd or lascivious act is defined as any touching of the body of a person under the age of fourteen years ... which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire." (CALJIC No. 10.41 (1993 rev.) (5th ed. 1994 pocket pt.), internal brackets omitted.)
[9] Plainly, the statute itself is not so limited. (People v. Marquez, supra, 28 Cal. App.4th 1315 at p. 1326.)
[10] The defendant's criminal history included six prior convictions for oral copulation and kidnapping. (People v. Gaglione, supra, 26 Cal. App.4th at p. 1296, fn. 1.)
[11] There are, of course, many possible variations on this scenario. The defendant's efforts to draw the child into his or her confidence may be extended (see People v. Webb, supra, 158 Cal. App.2d at p. 539 [befriending the child over a period of months]), or quite brief (see People v. Gaglione, supra, 26 Cal. App.4th at p. 1295 [offer by stranger to pay child for helping with a simple task]). If the child balks at attempts to lull her or him into a false sense of security, the molester may resort to the use of force to accomplish the sexual objective. (See People v. Austin, supra, 111 Cal. App.3d at pp. 112-114.) The surreptitious conduct may consist of exhortations by the defendant "not to tell," or efforts to avoid detection. (See People v. Webb, supra, at p. 539 [separating a child from his or her companions]; People v. Gaglione, supra, at p. 1295 [taking child into utility closet and closing the door].) The fact that the defendant is a stranger to the child or to the community may also be significant. (See People v. Gaglione, supra, at p. 1295 [stranger posing as a meter reader].) Further, a fearful reaction by the victim may be sufficient, but is not necessary, to indicate that social harm has been inflicted by the defendant. (See ibid. [child did not seem disturbed after being directed to touch, and touching, defendant's genital area].) Finally, it is well established that it is not necessary to show that either the child or the defendant was actually aroused by the interaction. (See ibid. [neither child nor defendant seemed flustered, surprised, or disturbed by transaction in which defendant directed child to touch his genital area]; People v. McCurdy (1923) 60 Cal. App. 499, 503 [213 P. 59].)
[12] We do not quarrel with the alternative definition in CALJIC No. 10.41 (July 1994 rev.) that a lewd or lascivious act under section 288 is "any touching ... which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire." (Internal brackets omitted.) That formulation does permit the jury to consider the totality of circumstances in assessing the lewd nature of the act. As we have discussed, where we part company with Wallace is in its conclusion that, as the Comment to the revised CALJIC No. 10.41 notes, "the act be by itself lewd." (Italics added.) We agree with the Marquez court that "section 288, subdivision (a) does not require the touching to be overtly sexual in itself." (People v. Marquez, supra, 28 Cal. App.4th at p. 1326.) We do, however, believe the instruction could be improved by including the phrase "under the totality of the circumstances in which it occurred."
[13] The court gave an instruction based on section 647.6 in this case. (CALJIC No. 16.440 (5th ed. 1989 re-rev.).) Under this section, "the annoying or molesting act need not, in and of itself, be lewd...." (People v. Thompson (1988) 206 Cal. App.3d 459, 463-466 [253 Cal. Rptr. 564] [repeated staring and gesturing sufficient].)
[*] See footnote, ante, page 1772.
[16] The trial court should also address a discrepancy between its sentencing order and the abstract of judgment. Although it does not affect the sentence imposed, the conviction on count 39 (§ 459) does not appear on the abstract of judgment.
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148 F.3d 1070
Monroev.U.S.*
NO. 96-9258
United States Court of Appeals,Eleventh Circuit.
June 15, 1998
Appeal From: N.D.Ga. ,No.94001272CVWCO
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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873 F.2d 165
131 L.R.R.M. (BNA) 2505, 111 Lab.Cas. P 11,137
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.BROOKE INDUSTRIES INCORPORATED, Respondent.
No. 88-2405.
United States Court of Appeals,Seventh Circuit.
Submitted April 3, 1989.Decided April 26, 1989.
Aileen A. Armstrong, N.L.R.B., Washington, D.C., for petitioner.
John M. Loomis, Beck, Chaet & Loomis, Milwaukee, Wis., for respondent.
1
POSNER, Circuit Judge (in chambers).
2
This is Round 2 of an absurd (as it seems to me) dispute between the Labor Board and me. In Round 1, the Board had submitted for my signature a consent judgment, which I refused to sign because it contained a prohibition (against the employer's "advancing harsh and vindictive bargaining proposals") that I considered excessively vague. See NLRB v. Brooke Industries, Inc., 867 F.2d 434 (7th Cir.1989) (Posner, J., in chambers). Having taken the position that I had no power to refuse to sign a consent judgment, no matter what it provided, the Board in its latest submission argues from Rule 27(a) of the Federal Rules of Appellate Procedure that a single judge has no power to refuse--on any ground whatsoever--to sign a consent judgment. The argument is passing strange. The Board does not suggest that a single judge lacks the power to sign a consent judgment; on the contrary, the judgment form that it submitted, in this as in all cases where it asks this court to enforce a consent judgment, provides a space for only one judge's signature. The Board's argument is that one judge only lacks the power not to sign it. No matter how absurd, repulsive, or even illegal the terms of the consent judgment ("respondent agrees that in the event of a violation of this agreement he will sacrifice his first-born to the Chairman of the NLRB"), the judge to whom the judgment is submitted must sign it, thereby making it legally binding.
3
Alternatively and more plausibly, the Board asks that the court review my action in refusing to sign the judgment. Rule 27(c) provides that "the action of a single judge may be reviewed by the court," i.e., by a three-judge panel. Pioneer Properties, Inc. v. Martin, 776 F.2d 888, 890 n. 1 (10th Cir.1985). The only complication is that, in addition to asking for review of my refusal to sign the consent judgment, the Board requests dismissal, without prejudice, of its original application for enforcement. This request appears to be unrelated to my refusal to sign the consent judgment. The ground for the request is that not only is the company in full compliance with the Board's order but the union that brought the unfair labor practice proceeding that eventuated in the order is no longer interested in representing the company's employees.
4
Ordinarily, voluntary dismissals of appeals don't require action by even one judge; the parties need only sign and file with the clerk of this court an agreement that the proceeding be dismissed. See Fed.R.App.P. 42(b). The wrinkle here is that the respondent wants the dismissal to be with prejudice. We can attach conditions to a voluntary dismissal--Rule 42(b) expressly so provides--and making the dismissal with prejudice is a common condition. But this requires action by three judges when as here the condition is contested. Hence both the motion to review my refusal to sign the consent judgment and the request for leave to dismiss the petition to enforce the Board's order should go to a three-judge panel. Dismissal of the petition to enforce may of course moot the petition to review, but that is an issue for the panel to sort out. A panel will be duly convened to consider the Board's latest submission and the company's response.
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532 So.2d 158 (1988)
Elmore J. McCARROLL
v.
Kevin Ray KINCHEN and U-Haul.
No. 88-C-1952.
Supreme Court of Louisiana.
October 21, 1988.
Denied.
COLE, J., would grant the writ.
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742 A.2d 1187 (1999)
STATE
v.
Charles AUSTIN.
No. 1997-219-C.A.
Supreme Court of Rhode Island.
December 20, 1999.
*1188 Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Aaron L. Weisman, Providence, for plaintiff.
Francis S. Holbrook, II, Newport, for defendant.
OPINION
PER CURIAM.
In the early morning hours on February 5, 1994, Charles Austin, the defendant, in a fit of jealous rage struck his former girlfriend Martha Fernandez (Fernandez), some twenty times about her head and body with an empty brandy bottle. He was arrested, charged with an assault with a dangerous weapon, tried before a Superior Court jury, and convicted. On July 19, 1996, he was sentenced to a term of fifteen years, five of which were to be served, with the remaining ten years being suspended with probation. Judgment of conviction was entered and the defendant appealed.
On November 16, 1998, following a prebriefing conference, the parties were directed to appear before this Court on a day certain to show cause why the issues raised in the defendant's appeal should not be summarily decided. On November 9, *1189 1999, the parties came before the Court for oral argument, pursuant to the Court's earlier show cause hearing order. After hearing oral arguments and considering the parties' prebriefing statements, we are of the opinion that the parties have failed to showcause why the issues raised in this appeal should not be summarily decided, and therefore we proceed to do so at this time.
The trial facts underlying the defendant's conviction are quite clear, despite his post trial attempts to reconstruct, explain, and excuse their condemning nature. In October 1991, Fernandez and the defendant became entangled in an amorous dalliance that blossomed and bloomed until Fernandez discovered that the defendant was a married man. Her interest in the affair quickly cooled, but the defendant's attraction to Fernandez remained at a constant 212° Fahrenheit. He continued to visit her at her apartment in Pawtucket, and on one occasion in May 1993, he followed her to Santo Domingo, where she had gone to visit with family.
It was back in Pawtucket, however, where the defendant's ever-blazing interest in Fernandez boiled over and finally did him in. At about midnight on February 4, 1994, he was in the Pawtucket area when he discovered that the battery in his Mercedes automobile needed to be charged. He went to Fernandez's apartment to request permission to use an electrical outlet in order to charge the battery in his vehicle, which, in the meantime, he had parked in the driveway. She permitted him to do so. He made the necessary electrical connections and, after doing so, reentered the apartment and then proceeded to dress down to only his underwear. While so attired, he waited for his car battery to be charged. While waiting, one of Fernandez's platonic friends, Frank Medrano (Medrano), whose finances, but not battery, were in need of recharging, also happened to drop in on Fernandez, purportedly to borrow cab fare in order to get to his home in Massachusetts or, in the alternative, to stay overnight in her apartment. At this point, apparently more than the battery in the defendant's Mercedes was undergoing an electrical charge, and the defendant began calling Medrano obscene names and threatened him with immediate violence. Medrano, perhaps mindful of the defendant's blackbelt in karate, quickly exited the apartment, sans cab fare but still in good health and with all his body parts intact.
The defendant remained in the apartment for a short time, and after composing himself, put on his clothing and went out into the cold night to unplug the electrical cord that was charging the battery in his Mercedes. Instead of driving off, however, the defendant decided to return to the apartment, where he expected that he was still welcome, in order to share a cigarette with Fernandez. His expectations of a warm welcome and a peaceful smoke were not as he believed they would be, and he became enraged. He picked up a nearby brandy bottle and began hitting Fernandez with the bottle, "like crazy, like twenty times" until she passed out.
A short time later, Fernandez's young daughter, who had been asleep in an adjoining bedroom, awakened and discovered her mother, sprawled on the living room floor, bleeding from the head. The defendant was not in the apartment. The daughter called 911. When the police arrived at about 3 a.m., Fernandez was taken to Rhode Island Hospital, where she was treated for her injuries and kept until later in the day.
The next day, a Saturday, the defendant repeatedly telephoned Fernandez, who by now had returned to her apartment but who, because of her injuries, was unable to speak with him. The following day, the defendant persisted in telephoning Fernandez. In desperation, she had her daughter telephone for police assistance. The daughter was told to tape record the telephone calls, which she did. In those recorded telephone calls, the defendant made statements that would later serve to *1190 incriminate him at his trial. At that trial, he admitted to hitting Fernandez in an alleged battle of bottles, maintaining that he had done so only in an attempt to protect himself from Fernandez, who he said had earlier burned him with a cigarette and was threatening him with a Heineken beer bottle.
The defendant argues here on appeal that manifold errors occurred in his Superior Court trial. He asserts (1) that the trial justice erroneously excluded relevant evidence of Fernandez's occult practices, (2) that the trial justice erred by permitting to be introduced as evidence portions of the recorded telephone conversations between him and Fernandez, as well as with Fernandez's daughter, Cynthia, (3) that the trial justice erred in refusing to grant his motion to pass the case following Fernandez's testimony, (4) that the trial justice erred in giving an improper self-defense instruction to the jury, (5) that his right to a fair trial was denied him because of prejudicial pretrial remarks made by the state's prosecutor and because of the trial justice's later alleged pro-prosecution bias, and finally, (6) that because of the twenty-one month delay in bringing him to trial, he had been denied his right to a speedy trial.
We reject all of his appellate assertions, deny his appeal, and affirm the judgment of conviction.
I
The Occult Practices
On appeal, the defendant argues that he should have been allowed at trial to introduce evidence that Fernandez practiced voodoo and witchcraft and when doing so, often went into trances as a result of such practices. He asserted that in the past during these voodoo-inspired trances, Fernandez had attacked him, thus leading him to believe that she was about to attack him again during the early-morning altercation on February 5, 1994. The trial justice sustained the state's objection to the proffered occult testimony on relevancy grounds.
We have consistently held that questions pertaining to the relevancy of evidence proffered at trial are subject to the sound discretion of the trial justice. State v. Tempest, 651 A.2d 1198, 1215 (R.I. 1995). Absent a showing that a trial justice has abused his or her discretion, this Court will defer to thetrial justice's determination of relevancy. State v. Cote, 691 A.2d 537, 543 (R.I. 1997) (citing Tempest, 651 A.2d at 1216.)
Our review of the record before us clearly reveals that the trial justice in this case did not abuse her discretion in excluding the defendant's proposed voodoo and witchcraft testimony. The trial record indicates that she allowed extensive testimony concerning the alleged prior assaults upon him by Fernandez to come before the jury in support of his self-defense theory, but that she chose not to overburden the jury with the speculative evidence pertaining to past occult-induced trances and assaults by Fernandez. The trial justice found that such evidence had little relevance to the issues at trial. That choice, we believe, was well within the bounds of sound discretion and was without error.
II
The Recorded Telephone Conversations
The defendant next argues that the trial justice committed reversible error by permitting introduction of redacted portions of the tape-recorded telephone conversations that he had initiated with Fernandez and her daughter Cynthia after the assault. The tapes, partly in English and partly in Spanish, included statements that the defendant had made to the effect that he would burn down Fernandez's house, and which also described various acts of violence that he said he was capable of committing. He asserts now that the redacted tapes were irrelevant, highly prejudicial in nature and served only to confuse and inflame the jury. We disagree.
*1191 On the basis of the trial facts before her, the trial justice concluded that the probative value of the redacted tapes reflected the defendant's state of mind at the time of his violent assault upon Fernandez and was not substantially outweighed by any danger of unfair prejudice resulting therefrom to the defendant. In making that determination, the trial record indicates that the trial justice took greatcare to identify and review those portions of the tapes that defense counsel claimed were unduly prejudicial, and in turn, proceeded to rule on each of those portions. As a result of this careful balancing of the probative value versus any undue prejudice that might have followed from introduction of the contents of those tapes, we conclude that the redacted portions that were actually admitted into evidence were relevant to the elements of the crime charged, which elements the state was required to prove beyond a reasonable doubt during the course of the trial. We cannot say that on the basis of the record before us the trial justice abused her discretion by permitting introduction of the challenged recordings.
III
The Motion to Pass
During trial, Fernandez chose to testify without the assistance of an interpreter. On one particular occasion, she employed words that, when taken in the context of the particular answer given by her, seemed out of place. On that occasion, the trial justice asked Fernandez to clarify what she had meant by her use of the word "training" while responding to a question concerning her relationship with the defendant. She responded to the trial justice's question by saying that she meant to say "threatening" instead of the word "training" that she had used in responding to the prosecutor's question. Defense counsel then moved to pass the case, noting that the prosecutor had not presented any evidence that the defendant had previously made any threats to Fernandez. The trial justice denied defense counsel's motion to pass the case, but did give a cautionary instruction to the jury, that was acceptable to defense counsel as well as to the state's prosecutor, in which the jury was told to disregard Fernandez's testimony that had been given in response to the trial justice's question.
On appeal, the defendant claims that the trial justice's cautionary instruction was ineffective. He argues that the effect of Fernandez's "threatening" testimony, coupled with the admission of the recorded telephone conversations, served to paint him as possessing the criminal propensity to commit "murder, arson, mayhem, and other serious felonies," crimes for which he had never been accused of, and thus constituted reversible error. We do not agree.
It is well settled that a motion to pass a case during the progress of trial is left to the sound discretion of the trial justice and that his or her determination is given great weight and will not be disturbed on appeal unless clearly wrong. State v. Figueroa, 673 A.2d 1084, 1091 (R.I. 1996); Tempest, 651 A.2d at 1207.
After reviewing the trial record, we believe that the word "threatening" used by Fernandez in responding to the trial justice's question was not so inflammatory as to thereafter hinder the trial jurors in their ability to deliberate impartially. Further, because we believe that the remark was certainly expiable, we conclude that the trial justice's cautionary instruction to the jury, which was given in both a timely and correct manner, and which specifically ordered the jurors to disregard entirely Fernandez's answer, ameliorated any potential prejudicial damage to the defendant during the jury's deliberation.
IV
The Self-Defense Instruction
The defendant next asserts that the trial justice's instruction to the jury concerning *1192 his right of self-defense against Fernandez was erroneous. He contends that the trial justice's jury instruction effectively gutted his self-defense theory upon which he relied at trial. After reviewing the trial record, we are of the opinion that this issue is not properly before us, because it was not raised below.
"According to our well-settled `raise or waive' rule, issues that were not preserved by a specific objection at trial, `sufficiently focused so as to call the trial justice's attention to the basis for said objection, may not be considered on appeal.'" State v. Bettencourt, 723 A.2d 1101, 1107 (R.I. 1999) (quoting State v. Toole, 640 A.2d 965, 972-73 (R.I.1994)). "Consequently, allegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level." Id. at 1107-08 (quoting Toole, 640 A.2d at 973).
In this case, the record reveals that defense counsel interposed only a general objection to the entire "doctrine of retreat" jury instruction, rather than a specific objection to the particular portion of the "self-defense" instruction, of which he now claims error. Defense counsel's mere general objection to the instruction was not sufficiently focused to call to the trial justice's attention the particular controverted instruction, and thus did not serve to preserve the issue of its propriety for our appellate review. Therefore, we conclude that under the "raise or waive" rule, the defendant's argument is rendered nugatory and any analysis of the merits of his argument is unwarranted.
V
The Prosecutor's and the Trial Justice's Remarks
The defendant next cites as error, an incident that took place prior to the start of his trial, outside the jury's presence, when the state's prosecutor called the trial justice's attention to certain provocative comments that had been directed to him by the defendant in the hallway leading to the courtroom. The trial justice, in the absence of the jury, then questioned the defendant about the particular incident and she concluded her colloquy with him by cautioning him generally about his need to avoid any inappropriate conduct during the course of his trial so that the trial could be conducted in a fair and impartial fashion. The defendant couples that allegation of error on the part of the trial justicewith a later statement by the trial justice during the trial made while the defendant was testifying about his knowledge of martial arts and Eastern philosophy. He contends that the trial justice improperly commented on his testimony by stating, "[h]ighly skilled. I am impressed."
When a criminal defendant on appeal claims error because of allegedly prejudicial remarks made by a prosecutor or by the trial justice, this Court must weigh the potential prejudicial impact that any such comments might have had on the trial jury. Figueroa, 673 A.2d at 1090 (citing State v. Costa, 111 R.I. 602, 609-10, 306 A.2d 36, 40 (1973), and State v. Peters, 82 R.I. 292, 297, 107 A.2d 428, 430-31 (1954)). In this case setting, we note initially that the prosecutor's statements had not been made in the presence of the jury.
Elaborating on well-established principle cited in Figueroa, we discern nothing in the present case's trial record suggesting that the defendant's right to a fair trial was in any manner prejudiced by the out-of-court statements made by the prosecutor, by the remarks made by the trial justice in the absence of the jury cautioning the defendant about his conduct, nor by the trial justice's comment during the defendant's testimony. On the contrary, our careful review of the trial record reveals that the trial justice's conduct throughout the trial was commendably fair and impartial. The prosecutor's statement, as noted earlier, was made outside the presence of the trial jury and thus *1193 never reached the jury. Further, the trial justice's justifiable concern that the defendant say and do nothing during his trial that might adversely prejudice him during the trial was a proper concern, and is evident from her colloquy with him. Thus, we are unable to ascertain any possible prejudice that might have resulted to the defendant and his right to a fair and impartial trial.
We find a similar lack of evidence in the trial record to support the defendant's claims that the trial justice in her comments and rulings during trial exhibited any pro-prosecution bias. "At no time didthe trial justice assume the role of an advocate," as alleged by the defendant, and we discern no evidence in the record to indicate that she was anything less than totally fair and impartial to both the state and the defendant. State v. Dionne, 442 A.2d 876, 885 (R.I.1982). Although the trial justice did make the challenged comment "[h]ighly skilled. I am impressed," the trial record clearly reflects that at the time it was made, she was not commenting upon the defendant's testimony, but instead, was referring to the proficiency of the court reporter, whose services she had just called upon to read back the defendant's answer.[1] The record also reflects that the trial justice during her initial pretrial jury instructions repeatedly instructed the jury that rulings and remarks that she might make during the course of the trial should not be construed as evidence, nor as indicative of her feelings about the facts or testimony. We also note that at the conclusion of the trial, the trial justice in her final instruction to the jury again emphatically reemphasized her neutrality concerning the trial evidence. Based upon the foregoing analysis, we conclude that the trial justice at all times during the defendant's trial maintained the requisite judicial impartiality, and that the defendant's claims of error are without merit.
VI
Right to a Speedy Trial
The defendant's last and final ground for appeal concerns his claim that he was denied his right to a speedy trial as guaranteed by our State and Federal Constitutions. He contends that the trial justiceerred in finding that he had not been denied his right to a speedy trial and in denying his motion to dismiss for that reason.
"Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), enunciates a four factor test to determine whether a defendant has been denied the right to a speedy trial." State v. Austin, 731 A.2d 678, 683, (R.I.1999). "The court must consider `(1) the length of the delay, (2) the reason for delay, (3) the defendant's assertion of his [or her] rights, and (4) the prejudice to the accused.'" Id. (quoting State v. Allan, 433 A.2d 222, 224 (R.I.1981)). The denial of a right to a speedy trial impinges upon our constitutional safeguards, and thus the ultimate determination here whether Austin's constitutional rights have been infringed must be reviewed de novo. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911, 919 (1996). "Despite this de novo standard regarding ultimate determinations, however, the Supreme Court has warned `that a reviewing court should take care * * * to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts * * *.'" Powers v. State, 734 A.2d 508, 514 (R.I.1999) (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d at 920). Therefore, though we review de novo the trial justice's ultimate determination that Austin's constitutional *1194 rights had not been violated, we continue to give great deference to the historical findings and the inferences made by the trial justice. Id.
A review of the travel of this case indicates that Austin was arrested on February 5, 1994, was arraigned on August 2, 1994, and was not tried until May 14, 1996, some twenty-one months later. We find this delay to be presumptively prejudicial and consequently turn to the other prongs of the Barker test. See Austin, 731 A.2d at 683; State v. Bleau, 668 A.2d 642, 645 (R.I.1995); State v. Tarvis, 465 A.2d 164, 175 (R.I.1983).
After reviewing the record, we believe, as did the trial justice, that the prime reasons for the delay were attributable to the defendant and/or his defense counsel's failure to prepare and proceed with trial. We note that the defendant has been almost uniformly discontented with his various court-appointed counsel, and in the course of the twenty-one month pretrial period, has had five attorneys represent him at various stages of these proceedings. The defendant asserts to us in this appeal that he should not be penalized for his particular acumen in being able to evaluate the caliber of his legal representation and for his ability to point out his defense counsel's alleged systematic failure to adequately represent him. Notwithstanding his vigorous assertions, we are of the opinion that his difficulty in dealing with his defense counsel was of his own choosing and fault, and weighed heavily against him in his alleged quest for a speedy trial. Austin, 731 A.2d at 683; State v. Johnson, 688 A.2d 285, 288 (R.I.1997). Our review of the lack of speedy trial assertions by the defendant reveals that the primary reason that it took twenty-one months for the defendant to arrive at the courtroom door was because he kept stumbling over his various attorneys along the way.
We similarly conclude that the third and fourth prongs of the Barker test also weigh against him. The trial justice found that the defendant's assertion of his right to a speedy trial was first claimed in February 1996 and she noted "[i]t's now May of '96 and we are going to trial." Further, the trial justice considered the fact that the defendant had been released on bail and had not been incarcerated while waiting for trial. She found that the defendant suffered no perceptible prejudice from the delay. Thus, in applying the Barker test to the record facts before us, we cannot say that the trial justice was clearly wrong in finding that the defendant was himself responsible for most of the delay and that his right to a speedy trial had not been violated in this case.
For all the reasons stated, the defendant's appeal is denied. His judgment of conviction is affirmed and the papers in this case are remanded to the Superior Court.
NOTES
[1] Austin also asserted in his appeal that the court reporter omitted from the transcript laughter from the trial justice and laughter and comments from a juror during his testimony. In the absence of defense counsel's motion to amend or correct the trial record, and in the absence of a timely objection at trial, we presume the stenographer accurately transcribed the trial proceeding and we will not consider this issue on appeal.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6629
JAMES GREGORY ARMISTEAD,
Plaintiff - Appellant,
v.
LAURA P. WATSON; JENNIE BOWEN; TIMOTHY WARE; ROGER
SHACKLEFORD; MOSE DORSEY; SETH EDWARDS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-ct-03274-BO)
Submitted: June 7, 2019 Decided: June 24, 2019
Before NIEMEYER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
James G. Armistead, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Gregory Armistead appeals the district court’s order dismissing his 42
U.S.C. § 1983 (2012) complaint under 28 U.S.C. § 1915(e)(2)(B)(i) (2012). We have
reviewed the record and find no reversible error. Accordingly, we deny the pending
motions and affirm for the reasons stated by the district court. See Armistead v. Watson,
No. 5:18-ct-03274-BO (E.D.N.C. Apr. 19, 2019). We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
2
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575 S.E.2d 505 (2003)
276 Ga. 103
BROWN
v.
The STATE.
No. S02A1860.
Supreme Court of Georgia.
January 13, 2003.
*506 Carl P. Greenberg, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee.
FLETCHER, Chief Justice.
A jury convicted Michael Brown of the malice murder of Willie Ben Nelson, Jr., aggravated assault of Gregory Ladson, and possession of a firearm during the commission of a felony.[1] Brown contends that the trial court erred in instructing the jury that it could infer his intent to kill from the use of a deadly weapon. Because of the overwhelming evidence of malice, we conclude that the improper jury charge was harmless error and affirm.
1. Brown lived in the basement apartment of Nelson's house in northwest Atlanta where they had an argument on October 26, 1999. Later that afternoon, Nelson was sitting on a retaining wall at Walter Lasseter's house and drinking beer with Lasseter and Ladson when Brown walked up and Nelson spoke to him. Brown then pulled a black handgun out of his belt and fired several times, hitting Nelson in the back and buttocks and Ladson in the arm and leg. Ladson survived the shooting, but Nelson died of internal bleeding from his gunshot wounds. Police found five .380 cartridge casings at the scene that were fired from the same pistol as the two bullets they recovered. Both Lasseter and Ladson identified Brown, whom they had known since childhood, as the shooter. When the fugitive squad attempted to arrest Brown several weeks later, Brown jumped from a second story window and suffered head injuries from his fall. Asserting an alibi defense at trial, Brown testified that he was selling crack cocaine on a nearby street at the time of the shooting and did not even own a gun. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.[2]
*507 2. This Court in Harris v. State[3] held that it was error for trial courts to charge jurors that they could infer the intent to kill from the use of a deadly weapon. Subsequently, however, we have concluded that the giving of the charge is not reversible error when the evidence of malice is overwhelming.[4] In this case, Brown pulled a gun on three unarmed men with no warning or provocation and fired five times. Brown hit Nelson once. As Nelson lay on the ground, Brown continued to shoot and hit Ladson, with whom he had no dispute. Under these facts, we conclude that it is highly probable that any error in giving the Harris charge did not contribute to the jury's verdict of guilty.[5]
Judgment affirmed.
All the Justices concur.
NOTES
[1] The shootings occurred on October 26, 1999, and Brown was indicted on March 3, 2000. A jury found him guilty on all counts of the indictment on November 17, 2000, and the trial court sentenced him to life imprisonment for malice murder, ten years consecutive imprisonment for aggravated assault, and five years consecutive imprisonment for the firearm possession count. Brown filed a motion for new trial on December 1, 2000, which the trial court denied on June 19, 2002. Brown filed a notice of appeal on July 18, 2002; the record was filed in the clerk's office on August 20, 2002; and the case was submitted for decision without oral arguments on October, 14, 2002.
[2] See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] 273 Ga. 608, 543 S.E.2d 716 (2001).
[4] See, e.g., Harris v. State, 274 Ga. 422, 426-427, 554 S.E.2d 458 (2001).
[5] See Rouse v. State, 275 Ga. 605, 571 S.E.2d 353 (2002).
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 28, 2009
Nos. 08-16571 & 09-11167
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00605-CR-PAS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO SALDANA,
a.k.a. Frank,
a.k.a. Frank Rivera,
a.k.a. Warren G,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 28, 2009)
Before EDMONDSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Francisco Saldana, who was sentenced to life imprisonment in 1996 after
being convicted of drug trafficking offenses, appeals the district court’s denial of
his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2). Saldana
based his motion on Amendment 706 to the United States Sentencing Guidelines,
which reduced the base offense levels applicable to crack cocaine offenses. He
contends that the court lacked jurisdiction to impose a sentence of life
imprisonment because the government filed an inadequate 21 U.S.C. § 851 notice
of enhancement before his original sentencing hearing.
The district court correctly denied Saldana’s § 3582(c)(2) motion because
his term of life imprisonment was based on the statutory mandatory minimum in
21 U.S.C. § 841(b)(1)(A). Thus Saldana was not eligible for a sentence reduction
under Amendment 706 because that amendment does not lower his applicable
guideline range. See United States v. Williams, 549 F.3d 1337, 1339–40 (11th
Cir. 2008) (holding that a defendant sentenced the to statutory minimum was not
eligible for a sentence reduction because Amendment 706 had no effect on his
statutory minimum term of imprisonment); U.S.S.G. § 1B1.10, cmt. 1(A) (noting
that a defendant is not eligible for a reduction if “the amendment does not have the
effect of lowering the defendant’s applicable guideline range because of the
operation of [a] statutory provision (e.g., a statutory mandatory minimum term of
2
imprisonment)”). Saldana’s attempt to avoid this fact by attacking the sufficiency
of the government’s § 851 notice fails because § 3582(c)(2) proceedings are not de
novo resentencings and, therefore, are not the proper avenue to present that type of
challenge. See United States v. Bravo, 203 F.3d 778, 781-82 (11th Cir. 2000)
(noting that “all original sentencing determinations remain unchanged with the
sole exception of the guideline range that has been amended since the original
sentencing” and that § 3582(c)(2) “does not grant to the court jurisdiction to
consider extraneous resentencing issues”).1
AFFIRMED.
1
Saldana also argues that the district court (1) erred by refusing to consider his post-
sentencing conduct when deciding whether to reduce his sentence and (2) violated his Fifth and
Sixth Amendment rights by finding him responsible for more than 4.5 kilograms of crack cocaine
when the superseding indictment in his case alleged only a “detectable amount.” These
arguments are aimed not at whether Saldana is eligible for a reduction under Amendment 706 but
instead at what amount of reduction would have been appropriate had he been eligible for one.
Because he was not, however, Williams, 549 F.3d at 1339–40, we do not address them.
3
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116 N.W.2d 461 (1962)
Troy JONES, Appellee,
v.
George O'BRYON, Appellant.
No. 50661.
Supreme Court of Iowa.
July 24, 1962.
*462 Kennedy, Kepford, Kelsen & White, Waterloo, for appellant.
Haupert & Robertson, Marshalltown, for appellee.
MOORE, Justice.
Preparatory to obtaining a pilot's license, defendant on April 16, 1958, in a Luscombe airplane rented from plaintiff, made a solo cross-country flight from Eldora to Charles City, to Garner, and then returned to Eldora. At Eldora the plane approached from the north and on first contact with the ground bounced about 20 feet in the air, bounced again, proceeded south down the runway, veered off the runway, flipped over and was damaged beyond repair.
In this action for damages defendant contended the crash was caused by cross-air turbulence. Plaintiff contended the turbulence, if any, was not marked and therefore of no consequence and in any event defendant failed to exercise ordinary care in making the landing irrespective of weather conditions.
The case was tried to the court. The court found defendant attempted to make a "power-off stall landing", made a poor landing, flew the plane toward the ground at high speed instead of stalling it near the earth, lost control of the plane and locked the brakes, all of which caused the plane to overturn with the resulting damages. The court also found the main cause, or at least a concurring proximate cause of the crash, was defendant's flying the plane into the ground and locking the brakes, contrary to his training and experience, and his deviation from correct procedure was too great for even a student.
From a judgment for $1400 and costs defendant has appealed.
I. Defendant's first contention is that the court erred in overruling objections to the testimony of plaintiff and the witness John Butler.
Plaintiff testified he had been a licensed pilot about 15 years, had flown his Luscombe airplane several years, using the Eldora field, he was not at the field but about two miles away when the crash occurred, he had observed the weather conditions that morning prior to and after the crash, in his opinion the wind velocity at the field was about 15 miles per hour at the time of the crash.
*463 He was then asked his opinion as to how much of the strip it would have taken to land that airplane that morning. Defendant objected, asserting the answer would be irrelevant and immaterial to any issue in the case as the basis on which any opinion might be given was too vague, indefinite and entirely too remote. The objection was overruled. Plaintiff answered, "A third of the field, a third of the runway." We shall decide the question raised with those involving opinions of the witness Butler.
John Butler testified he was a licensed airplane pilot of many years; he held a commercial license, single and multi-engine rating; he held instructor's and instrument ratings; he held a ground instructor's rating for aircraft and engines, meteorology, civil aeronautics regulation and navigation, to acquire these various ratings requires a considerable amount of study and instruction; for 10 or 11 years he had been an instructor, he had instructed from 50 to 60 students, one of whom was defendant. He testified defendant had 50 hours flying time, had received 16 hours instruction before he soloed and before the accident defendant had been given complete instruction as to the proper methods of making a landing. Most of the instructions were given in plaintiff's airplane.
Butler testified he went to the scene of the accident soon after it occurred, at which time he observed the plane in its damaged condition, together with tracks and other conditions then existing at the scene. In his opinion there was then a wind velocity from the southwest of approximately 15 miles per hour. Butler stated defendant told him at the time of the landing the wind velocity was about 15 miles per hour from the southwest with some gusts and turbulence.
To a series of questions over defendant's objections the evidence was irrelevant and immaterial, remote and speculative and improperly invaded the province of the court as no proper foundation had been laid, Butler was permitted to give his opinions based on observation and knowledge as follows: a student with 50 hours should have adequate experience to contend with gusts of 15 miles per hour or a straight wind of 15 miles per hour coming out of the southwest on the day in question; a student with 50 hours of flying time and with the instruction defendant had should not have encountered any degree of difficulty in making a landing on the day of the mishap under the conditions then existing; a person with 50 hours of flying time and with the instruction defendant had should have been able to make the three types of landings to which the witness referred; he believed the airplane initially touched down at a proper point with respect to the length of the runway but the tracks indicated it took off again, touched down a second time, took off again and finally touched down a third time and came to an abrupt halt; the airplane was flying at the time of the attempted landing and it had not been stalled for a landing; the primary factor causing the airplane to bounce was that the stick was not held back and a secondary factor was the cross-wind; because the stick was not back there was not enough pressure on the tail to hold the craft down when the brakes were applied; the plane was flown into the ground with sufficient speed that it caused the craft to jump into the air; a man with 50 hours flying time such as defendant had should have been able to safely land the plane under the circumstances; what caused the airplane to turn over at the end of its run that day was primarily the failure to have the stick back and secondarily application of the brakes so the wheels were locked and not turning.
In Brower v. Quick, 249 Iowa 569, 578, 88 N.W.2d 120, 125, we said:
"It is well settled in Iowa that if a witness is possessed of special training, experience, or knowledge in respect to the matter under investigation, and if his opinion based on evidentiary facts will be of aid to the jury in reaching a correct conclusion, and if the opinion expressed does not bind the jury to accept it, but leaves the *464 ultimate conclusion to be determined by the judgment of the jurors themselves, such testimony is not improper nor prejudicial."
We also so held in Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646; Waterloo Sav. Bank v. Waterloo, C. F. & N. R., 244 Iowa 1364, 60 N.W.2d 572; Brady v. McQuown, 241 Iowa 34, 40 N.W. 2d 25, and Roberts v. Koons, 230 Iowa 92, 296 N.W. 811.
The admission of opinion evidence rests largely in the sound discretion of the court and considerable leeway is allowed in this field of evidence for the reason that no matter how the opinion question is phrased or formulated, it remains an opinion which the trier of facts is at liberty to reject. Therefore only in clear cases of abuse would admission of such evidence be found prejudicial. Doane v. Farmers Cooperative Co., 250 Iowa 390, 94 N.W.2d 115, 81 A.L.R.2d 128; Brower v. Quick, 249 Iowa 569, 88 N.W.2d 120; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 29 N.W.2d 204.
The Grismore case, often referred to as the leading one in Iowa involving the questions raised by defendant's objections, was thoroughly discussed by the trial court and counsel. In its many rulings the court diligently attempted to follow the law as established by that opinion.
We hold the trial court did not abuse its discretion in receiving the opinion of plaintiff and those of the witness Butler.
II. Defendant next contends the trial court erred in not applying the doctrine of sudden emergency. In Young v. Hendricks, 226 Iowa 211, 215, 283 N.W. 895, 898, we said:
"An emergency has been variously defined as (1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action; exigency; pressing necessity. 20 C.J. 499; U. S. v. Sheridan-Kirk Contract Co., D.C., 149 F. 809."
The burden is on the party urging the existence of a sudden emergency to sustain his contention that such an emergency had developed as would constitute a legal excuse for some omission on his part. Cunningham v. Court, 248 Iowa 654, 82 N.W.2d 292; Luppes v. Harrison, 239 Iowa 880, 32 N.W.2d 809; Young v. Hendricks, supra.
Defendant testified he encountered turbulence and wind gusts as he approached Garner, while en route from Garner to Eldora he observed a change in wind velocity over Latimer and Coulter, the air continued rough until he reached Eldora, he was aware of a turbulent condition before attempting to make a landing and described the condition as "gusty".
There is a total lack of evidence of any sudden change of the wind velocity or any increased turbulence during the approach and landing of the plane. Plaintiff claimed defendant failed to exercise ordinary care during that time. The trial court so found.
Under the facts the court properly gave no further consideration to defendant's claim of sudden emergency.
III. Defendant argues the court erred in holding plaintiff in bailing his plane did not assume the risk of defendant's inexperience. On this issue, the trial court in the findings and conclusions stated:
"Plaintiff knew he was bailing his plane to a student. So far as defendant's standard of care is concerned, this knowledge is important as we have seen. Plaintiff assumed the risk as to conduct which might reasonably be expected of a student. The situation is akin to the master-servant cases in which the servant assumes those risks `which naturally and usually remain incident to such business'. Johnson v. Minneapolis & St. L. R. R., 183 Iowa 101, 165 N.W. 51.
*465 "But as we have also seen, defendant did not conduct himself with the care which might reasonably be expected even of a student. Assumption of risk, as applied to plaintiff's conduct as distinguished from defendant's, requires actual knowledge, not merely that defendant was a student, but of defendant's culpability as a student, and voluntary assumption of that culpability. Bohnsack v. Driftmier, 243 Iowa 383, 52 N.W.2d 79.
"The Court is clear no such knowledge has been established. The burden is on defendant. Gordon v. Chicago, R. I. & P. Ry., 148 [146] Iowa 588, 123 N.W. 762. The required knowledge will not be assumed by the Court; on the contrary, the general rule is that one person may normally presume the exercise of due care by others here the due care of a student pilot. See Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17."
We agree with the trial court's rulings on this issue.
IV. Defendant's last two assignments of error are that the court erred in overruling defendant's motion for a directed verdict made at the close of all the evidence and his motion for judgment notwithstanding the verdict and for new trial. In these we find no merit.
In considering these assigned errors it is our duty to view the evidence in the light most favorable to plaintiff. It was for the trial court to determine the credibility of the witnesses and the weight of the evidence. Harlan Production Credit Ass'n v. Schroeder Elev. Co., Iowa, 112 N.W. 320; Roth v. Headlee, 238 Iowa 1340, 29 N.W.2d 923; In re Estate of Martens, 226 Iowa 162, 283 N.W. 885; Murphy v. Callan, 199 Iowa 216, 199 N.W. 981. The decision below on the facts has the force and effect of a jury verdict. We review it only upon assigned errors of law. Rule 334, Rules of Civil Procedure, 58 I.C.A.; Wunschel v. McKinney, 251 Iowa 881, 103 N.W.2d 81; Roth v. Headlee, supra; In re Estate of Gollobit, 231 Iowa 1074, 3 N.W.2d 191.
This case involves the law of bailments. The rule is well established that a bailor makes out a prima facie case by proof of delivery of the property in good condition, redelivery in damaged condition, and the amount of damages. The bailee must then go forward with his proof to rebut this presumption or prima facie case by showing the cause occurred through something consistent with due care on his part, in which case he is entitled to the verdict, unless the bailor sustains his burden of proof with evidence that, nevertheless, the loss would not have occurred but for the negligence of the bailee. Stevenson v. Reimer, 240 Iowa 652, 35 N.W.2d 764; Reimers v. Petersen, 237 Iowa 550, 22 N.W.2d 817; Walters v. Sanders Motor Co., 229 Iowa 398, 294 N.W. 621; Hunter v. Ricke Bros., 127 Iowa 108, 102 N.W. 826.
After plaintiff's testimony, defendant testified and was followed by Butler. Among other things, defendant stated he had been instructed in power-off stall landing, he attempted to make such a landing, he knew by experience this plane stalled at 40 miles per hour, he knew the plane would not stall out at 70 miles per hour, the plane was traveling between 60 and 70 miles per hour on the first ground contact. We held in Walters v. Sanders Motor Co., supra, a fact question for the jury may be created by a bailee's evidence. It appears we have another such case but we need not so hold in view of Butler's testimony.
We find no support in the record for defendant's assigned errors.
Affirmed.
All Justices concur.
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STATE OF MICHIGAN
COURT OF APPEALS
In re Guardianship/Conservatorship of HAROLD
WILLIAM GERSTLER.
JANICE ROWLAND and TAMMY DYKSTRA, FOR PUBLICATION
Guardian/Conservator of HAROLD WILLIAM June 5, 2018
GERSTLER, 9:00 a.m.
Appellees,
v No. 338935
Allegan Probate Court
ANGELEE GERSTLER, LC Nos. 16-060110-CA;
16-060111-GA
Appellant.
Before: GLEICHER, P.J., and M. J. KELLY and CAMERON, JJ.
GLEICHER, P.J.
The issue presented is whether the probate court erred by appointing a public guardian
and conservator for Harold Gerstler, bypassing Gerstler’s daughter, Angelee Gerstler. The
Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., establishes an order of
priority that must be followed when a probate court selects a guardian and conservator for a
protected person. MCL 700.5313; MCL 700.5409. Angelee was at the top of the list, and no
evidence suggests that she was incompetent to serve or otherwise unsuitable for the position.
The probate court failed to make any factual findings in this regard, however, and refused to
apply the statutory priority framework. We vacate the guardianship and conservatorship orders
and remand for further proceedings consistent with this opinion.
I
Harold Gerstler is 75 years old and suffers from dementia. He and his wife, Penni, lived
for many years in Texas while Harold worked as a mechanical engineer for a steel company. He
and Penni retired to California. Angelee Gerstler is Harold’s adult daughter and only surviving
child. Angelee lives in a home in Texas that Harold and Penni helped her purchase. There is no
dispute about Harold’s current need for a guardian and conservator.
-1-
Janice Rowland is Harold’s sister and a resident of Allegan County, Michigan. Before
the events giving rise to this case, Harold had no ties to Michigan other than the presence of
Rowland and another sister.
In May 2013, Harold and Penni signed California “statutory durable powers of attorney”
granting Angelee the power to carry out real estate transactions on their behalf. Two years later,
Harold signed another California statutory durable power of attorney empowering Angelee to
engage in his real estate transactions and “banking and other financial institution transactions.”
In early 2016, a neurologist determined that Harold suffered from Alzheimer’s disease.
Penni died that same year, on October 4, 2016.
Shortly before Penni’s death, Rowland brought Harold to Michigan. The circumstances
surrounding this trip are unclear. On October 11, 2016, one week after Penni died, Rowland
persuaded Harold to sign a power of attorney in Rowland’s favor. That document enabled
Rowland to control Harold’s finances and estate. A short time later, Rowland sent Angelee this
text message:
Angie, this is your Aunt Janice’ [sic]. As you may know by now, I have
durable and medical power of attorney for your dad’s money and estate. I want
you to be comfortable with this, knowing that this is not for my benefit. This is
for your dad’s care. The money transfer from Texas to his Raymond James
account here will be completed by the end of today. I need to put you down as
beneficiary and therefore I need your Social Security number. I have your phone
number and address already. I have a meeting with the Financial people
tomorrow and would like to finish the paperwork. Please give me a call. . . .
[Emphasis added.]
Apparently, Angelee balked at these demands.
On November 4, 2016, Rowland filed in California a “Request for Elder or Dependent
Adult Abuse Restraining Order[],” asserting that Angelee was engaged in “financial abuse,”
“talked [Harold] into giving her his money,” and attempted to “coerce” Harold to move to Texas.
For good measure, Rowland alleged in an attachment that Angelee “has 5 children (4 are
illegitimate) by different fathers,” that one was “give[n] to the father,” a second “given up for
adoption,” another “taken” by child services due to Angelee’s “drug use,” and that Angelee “is
currently unemployed by choice.” There is no proof of any of these allegations in the record,
which includes multiple pages of California social services reports and several guardian ad litem
reports authored in Michigan. We recount them only because Rowland’s troubling accusations
help explain the decisions initially made by the probate court.1
1
While we understand that a court hearing Rowland’s unproven charges about Angelee may
have harbored justifiable concerns about Angelee’s suitability to serve as Harold’s guardian or
conservator, we are far less sanguine about the performance of Kenneth Prins, who was
-2-
Rowland’s request for a California restraining order is notable for two additional reasons.
First, it fails to mention that Harold had twice granted Angelee powers of attorney before
Harold’s dementia diagnosis, specifically authorizing Angelee to make financial and real estate
transfers on his behalf. Second, the form Rowland filled out in support of her request for a
restraining order includes Angelee’s correct address on Rolling Forest Lane in Hockley, Texas.
Predictably and appropriately, California launched an investigation into Rowland’s
charges. Ultimately, the allegations were found “unsubstantiated,” but that determination came
long after the Allegan Probate Court’s wheels had firmly turned in Rowland’s direction.
On November 22, 2016, Rowland filed a petition in the Allegan Probate Court, seeking
appointment as Harold’s guardian. The petition identified Angelee as Harold’s daughter, but
listed her address as “17600 Badtke Road” in Hockley, Texas, and her telephone number as
“unknown.” Angelee did not receive this petition, as the address Rowland identified belongs to
an industrial facility.
Rowland averred that the emergency appointment of a temporary guardian was necessary
so that Harold’s investments could be transferred to an Edward D. Jones account in Douglas,
Michigan. She announced her intention to sell Harold’s California property under the power of
attorney he had granted her, but acknowledged that Edward D. Jones’s legal department
questioned Harold’s mental capacity and required a guardianship before effectuating any
transfers. Rowland’s petition for conservatorship rehashed the same information and
misinformation.
The probate court appointed Kenneth Prins as Harold’s guardian ad litem and conducted
an emergency hearing on December 9, 2016. Rowland, Prins and Michael McClellan, a
representative of the Michigan Department of Health and Human Services, attended the hearing.
Prins testified that according to Rowland, Angelee persuaded Harold to give her at least
$73,000 in addition to monthly checks of approximately $1,500. Harold had an estate worth
$660,000, Rowland advised, consisting of a Texas Wells Fargo account and a California home.
Prins relayed the “concern” of “family members” that Angelee “is going to try to get this money
and take custody of the dad and take conservatorship and take the money and then basically,
run.” Relying solely on information provided by Rowland, Prins testified that Angelee “has had
a very difficult life,” that “[a]ll five [of her] children were taken away from her through adoption
or Child Protective Services.” Prins reiterated Rowland’s claim that Angelee “does have a drug
problem, a prescription drug problem, in the past, so that’s why we [are] here today.” After
expressing that Angelee is “a little bit untrustworthy from what I hear,” Prins told the court that
Rowland took “very good care” of Harold.
appointed by the probate court as Harold’s guardian ad litem. As we discuss later in this
opinion, Prins recounted Rowland’s allegations to the court without bothering to verify them,
poisoning the probate waters. As a result, Angelee entered the litigation at a significant and
undeserved disadvantage. In our view, Prins acted as Rowland’s advocate rather than Harold’s.
-3-
Prins added that he had talked to Harold, who “wouldn’t mind living” in Michigan but
preferred warm weather. Harold told Prins that “if I do go to Texas . . . my daughter says she
wants $93,000 to pay off the house, and she can have it. . . .” According to Prins, Harold was
“just not thinking straight[.]” McClellan advised that his counterparts in California were still
investigating Rowland’s allegations. He and Prins recommended the appointment of a
temporary guardian.
Rowland explained that Harold had lived and worked in Texas, then retired to California
with his wife. She described that he developed dementia symptoms three years previously and
currently was unable to recognize and understand common, everyday things. Rowland went to
California and decided “to take charge” after Penni died. She obtained Harold’s power of
attorney and arranged with an Edward D. Jones agent to bring Harold’s money from Texas to
Michigan.
The probate court appointed Rowland as Harold’s temporary guardian but opted for a
public conservator, Kimberly Milbocker, “until we get this sorted out.” The court appointed
Jeremy Baier to serve as Harold’s attorney.
Prins filed a GAL report three days later. For the most part, his report recapitulated the
information he provided at the emergency hearing. He added that had since spoken with
Angelee and learned her correct phone number and address. Angelee told him that her father
bought the house in which she lived in Texas, the home was ready for Harold to live in, and that
she wanted to be her father’s guardian and conservator. Nevertheless, Prins recommended that
the trial court appoint Rowland as Harold’s guardian and conservator.
At a December 16, 2016 hearing, Prins advised that both Rowland and Angelee desired
appointment as Harold’s guardian and conservator. He verified that Rowland went to California
and brought Harold back to her home in Fennville, Michigan, where Harold then resided, and
that Angelee had a place for him to live in Texas. Harold told Prins that he wanted to give
Angelee $99,000 to pay off the debt on the Texas home, and that he disliked winter weather and
wanted to live in Texas during the winter and with Rowland during the summer. Prins testified
that he knew that Rowland would provide Harold excellent care. After admitting that he “didn’t
know Angie very well,” Prins recommended that Rowland serve as Harold’s guardian and
conservator.
Baier, Harold’s attorney, testified that Harold would “much rather be in Texas,” as he felt
“more comfortable there.” He recommended that Angelee serve as Harold’s guardian, but was
“not fully convinced” that she should also be his conservator. “[I]t may be in [Harold’s] better
interests,” Baier suggested, “to have a public conservator.”
McClellan told the court that he had communicated with California Adult Protective
Services, which questioned how Harold came to Michigan and whether he did so by his own
choosing. McClelland also interviewed Harold, who indicated that he planned to go with
Angelee to Texas. However, McClelland claimed, California Adult Protective Services
substantiated that Angelee had financially exploited Harold and that Harold had given Angelee
checks and large sums of money. McLellan expressed concern regarding appointing Angelee as
the conservator but he had no opinion regarding the guardianship appointment.
-4-
Milbocker suggested that the money transferred to Angelee might be considered during a
“look-back period review” if Harold ever needed long-term care benefits, and speculated that the
residence in Texas might be construed as a second home. She recommended that the
conservatorship be awarded to someone other than Angelee.
Rowland urged the court to appoint her as both Harold’s guardian and conservator. She
claimed that she brought Harold to Michigan because she needed to secure his money in an
Edward D. Jones investment account. Harold executed the powers of attorney only three or four
days after his wife died, Rowland admitted. Rowland maintained that she did not trust Angelee
and that Angelee could not provide Harold needed care.
Angelee asserted that Rowland fraudulently obtained the power of attorney five days
after her mother’s death and then filed an abuse case in California that required her to go to
California to defend herself. Angelee explained that the house in Texas belonged to Harold, she
paid him rent and the mortgage, and that Harold bought it with the understanding that she would
care for him in that home. Her father always intended to return to Texas, Angelee declared. She
affirmed her love for Harold and lamented that Rowland took him away.
The court reaffirmed Harold’s need for a guardian and a conservator and opined that an
independent person should manage Harold’s finances. Due to the circumstances surrounding
Harold’s grant of powers of attorney to Rowland and the fact that he had dementia at that time,
the court suspended them. Because Rowland and Angelee could not work together, the trial
court appointed Milbocker as Harold’s guardian and conservator. Milbocker thereafter approved
a plan to have Harold visit Angelee in Texas to finish out the winter months.
In April 2017, Milbocker filed a petition to modify Harold’s guardianship and
conservatorship by permitting her resignation. Milbocker’s petition prompted Angelee to file her
own petitions for appointment as Harold’s guardian and conservator.
In a lengthy probate court submission, Angelee described the gradual onset of Harold’s
dementia and contended that he lacked the capacity to execute the power of attorney in favor of
Rowland. The petition chronicled Angelee’s contacts with Rowland before Rowland filed the
Michigan petition, demonstrating Rowland’s awareness of Angelee’s correct address and
telephone number. Angelee charged that Rowland had knowingly misrepresented Angelee’s
address in the initial petition to deny her timely notice of the proceedings.
Angelee also took issue with much of the evidence introduced through Prins at the earlier
hearings. She supplied the court with copies of the powers of attorney that Harold signed in
2013 and 2015, and other documents refuting Rowland’s claims. No evidence supported that
Angelee financially abused Harold, the petition averred. Therefore, as Harold’s only adult child
and his sole heir, no good cause existed to prevent her from being appointed Harold’s guardian
and conservator. Angelee also sought an accounting of Rowland’s handling of Harold’s assets,
personal property, and financial affairs. Angelee accused Rowland of impropriety and breaches
of fiduciary duties.
Rowland responded by denying Angelee’s allegation that Rowland had acted improperly.
She asserted that she had four different addresses for Angelee and did not know Angelee’s
-5-
current address so she mailed her petitions to one of the addresses. She admitted that she
obtained an invalid power of attorney from Harold as he lacked the capacity at the time to make
such a grant. Rowland argued that Angelee had no right to an accounting because the transfers
of Harold’s assets occurred at Milbocker’s direction.
During the subsequent hearing, Angelee’s counsel contended that she had priority for
appointment and sought to prove that all of the money transfers condemned by Rowland had
been proper. He emphasized that no evidence supported that Angelee was unqualified to be
Harold’s guardian or conservator. Milbocker testified that Harold had received good care in
Michigan and in Texas, and expressed no concerns about either placement. She reported that
California had reopened the adult protective series case and concluded that none of the
allegations against Angelee could be substantiated.2 Milbocker, too, believed that Harold’s
transfers to Angelee reflected no wrongdoing on her part. In a report prepared two days later,
Milbocker advised the court that “[t]he [Texas] home was obtained in August 2015, prior to any
documented knowledge of Harold’s dementia, that I have been able to find within his physician
evaluations and documentation in California. Angelee has maintained the mortgage payments
with Harold maintaining the cost of home insurance and property taxes.” Milbocker expressed at
the hearing that either Angelee or Rowland could serve as Harold’s guardian.
The probate court opined that Angelee had failed to identify any problems with having a
public guardian and maintaining the status quo. In the court’s view, the arrangement had worked
well. “[T]he focus here is not the rights of either the sister or the daughter,” the court ruled, “the
focus is Mr. Gerstler himself. What’s in his best interest . . . for him right now, no matter what
the history is. . . .” Because Harold seemed happy, was able to see his sisters and Angelee, and
“despite any presumption or priority as far as relatives,” the court determined that the best
arrangement for Harold was to maintain an independent public guardian and conservator. The
court appointed Tammy Dykstra as successor guardian and conservator per Milbocker’s
recommendation.
A few days later, Milbocker filed a final report clarifying certain facts for the court’s
records. Milbocker noted that “Harold has verbalized a desire to take care of his only daughter
stating, ‘Of course I want to help her.’ ” In a private conversation with Milbocker, Harold
expressed “guilt for the extensive time spent on caring for Angelee’s [deceased] brothers [who
suffered from muscular dystrophy] and a neglect of Angelee which he believed led to her
previous problems of substance abuse.” Milbocker noted that Angelee had taken an
unannounced drug test at Milbocker’s request and that Angelee had passed the test.
Milbocker’s report also clarified that Rowland received $72 per day for Harold’s personal
care and $800 per month for Harold’s room and board. She noted that Rowland did not
cooperate with Angelee to enable her to visit Harold despite Milbocker’s attempts to intervene,
and that California Adult Protective Services never substantiated any malfeasance by Angelee
regarding use or abuse of Harold’s funds. She advised that she and the California Adult
2
The California APS report also observed that Harold “never expressed any concerns against
Angelee and did not appear to be fearful or intimidated by Angelee.”
-6-
Protective Services reviewed transactions and receipts respecting all funds given to Angelee and
found only a minimal discrepancy that raised no concern. Harold told her he desired to help
Angelee, and the Texas home was purchased in 2015 before any documentation of Harold’s
dementia. Angelee paid the mortgage, and Harold had paid the insurance and taxes. Milbocker
advised that when Harold first traveled to Texas he lived in an assisted living facility briefly, did
not like it, and moved into Angelee’s Texas home with Milbocker’s knowledge. Rowland called
the police and claimed that Angelee kidnapped Harold even though the assisted living facility
had discharged Harold to live with Angelee. While in Texas, Harold had a comfortable stay.
Angelee communicated with Milbocker consistently.
The probate court denied Angelee’s motion for reconsideration, and she now appeals.
II
This Court has recently summarized the standard of review applicable to this case as
follows:
We review the probate court’s dispositional rulings for an abuse of
discretion. A probate court abuses its discretion when it chooses an outcome
outside the range of reasonable and principled outcomes. We review the probate
court’s findings of fact for clear error. A factual finding is clearly erroneous
when this Court is left with a definite and firm conviction that a mistake has been
made. We review de novo any statutory or constitutional interpretation by the
probate court. [In re Guardianship of Redd, 321 Mich App 398, 403-404; 909
NW2d 289 (2017), lv pending (quotation marks and citations omitted).]
We conclude that the probate court abused its discretion by appointing Dykstra as
Harold’s successor guardian and conservator because the court failed to make any factual
findings relevant to the statutory framework that governs this case, and otherwise neglected to
apply the law governing guardianship and conservatorship appointments.
III
MCL 700.5313 addresses the appointment of a guardian of a legally incapacitated person.
The statute provides for orders of priority and preference as follows:
(2) In appointing a guardian under this section, the court shall appoint a person, if
suitable and willing to serve, in the following order of priority:
(a) A person previously appointed, qualified, and serving in good standing
as guardian for the legally incapacitated individual in another state.
(b) A person the individual subject to the petition chooses to serve as
guardian.
(c) A person nominated as guardian in a durable power of attorney or
other writing by the individual subject to the petition.
-7-
(d) A person named by the individual as a patient advocate or attorney in
fact in a durable power of attorney.
(3) If there is no person chosen, nominated, or named under subsection (2), or if
none of the persons listed in subsection (2) are suitable or willing to serve, the
court may appoint as a guardian an individual who is related to the individual who
is the subject of the petition in the following order of preference:
(a) The legally incapacitated individual’s spouse. This subdivision shall
be considered to include a person nominated by will or other writing signed by a
deceased spouse.
(b) An adult child of the legally incapacitated individual.
(c) A parent of the legally incapacitated individual. This subdivision shall
be considered to include a person nominated by will or other writing signed by a
deceased parent.
(d) A relative of the legally incapacitated individual with whom the
individual has resided for more than 6 months before the filing of the petition.
(e) A person nominated by a person who is caring for the legally
incapacitated individual or paying benefits to the legally incapacitated individual.
(4) If none of the persons as designated or listed in subsection (2) or (3) are
suitable or willing to serve, the court may appoint any competent person who is
suitable and willing to serve, including a professional guardian as provided in
[MCL 700.5106]. [Emphasis added.]
With respect to the appointment of a conservator, MCL 700.5409 provides as follows:
(1) The court may appoint an individual, a corporation authorized to exercise
fiduciary powers, or a professional conservator described in [MCL 700.5106] to
serve as conservator of a protected individual’s estate. The following are entitled
to consideration for appointment in the following order of priority:
(a) A conservator, guardian of property, or similar fiduciary appointed or
recognized by the appropriate court of another jurisdiction in which the protected
individual resides.
(b) An individual or corporation nominated by the protected individual if
he or she is 14 years of age or older and of sufficient mental capacity to make an
intelligent choice, including a nomination made in a durable power of attorney.
(c) The protected individual’s spouse.
(d) An adult child of the protected individual.
-8-
(e) A parent of the protected individual or a person nominated by the will
of a deceased parent.
(f) A relative of the protected individual with whom he or she has resided
for more than 6 months before the petition is filed.
(g) A person nominated by the person who is caring for or paying benefits
to the protected individual.
(h) If none of the persons listed in subdivisions (a) to (g) are suitable and
willing to serve, any person that the court determines is suitable and willing to
serve.
(2) A person named in subsection (1)(a), (c), (d), (e), or (f) may designate in
writing a substitute to serve instead, and that designation transfers the priority to
the substitute. If persons have equal priority, the court shall select the person the
court considers best qualified to serve. Acting in the protected individual’s best
interest, the court may pass over a person having priority and appoint a person
having a lower priority or no priority. [Emphasis added.]
MCL 700.5106 addresses the appointment of a professional guardian or a professional
conservator in relevant part as follows:
(1) Subject to subsections (2) and (3), the court may appoint or approve a
professional guardian or professional conservator, as appropriate, as a guardian or
conservator under this act, or as a plenary guardian or partial guardian as those
terms are defined in . . . MCL 330.1600.
(2) The court shall only appoint a professional guardian or professional
conservator as authorized under subsection (1) if the court finds on the record all
of the following:
(a) The appointment of the professional guardian or professional
conservator is in the ward’s, developmentally disabled individual’s, incapacitated
individual’s, or protected individual’s best interests.
(b) There is no other person that is competent, suitable, and willing to
serve in that fiduciary capacity in accordance with [MCL 700.5212, MCL
700.5313, or MCL 700.5409]. [Emphasis added.]
In short, MCL 700.5106(2) provides that, before appointing a professional guardian or a
professional conservator, a probate court must find that the appointment of a professional
fiduciary is in the incapacitated person’s best interests and that there is no other person who is
competent, suitable, and willing to serve in that fiduciary capacity in accordance with, as
relevant here, MCL 700.5313 or MCL 700.5409. MCL 700.5313(4) similarly allows
appointment of a professional guardian only if none of the persons listed in MCL 700.5313(2) or
(3) are suitable or willing to serve. With respect to the appointment of a conservator, MCL
700.5409(2) likewise allows for departure from the statutory order of priority in the best interests
-9-
of the protected individual, and MCL 700.5409(1)(h) allows appointment of any person that is
suitable and willing to serve if none of the persons listed in MCL 700.5409(1)(a)-(g) are suitable
and willing to serve. This Court has explained the meaning of suitability in the context of a
guardianship by holding that “a ‘suitable’ guardian is one who is qualified and able to provide
for the ward’s care, custody, and control.” Redd, 321 Mich App at 408.
Here, Angelee claimed priority as Harold’s sole surviving adult child, and there is no
dispute that Angelee holds the highest position of priority or preference for appointment as
Harold’s guardian and conservator under the statutory provisions set forth above. Yet the trial
court instead appointed Dykstra, a professional guardian and conservator. In order to appoint a
professional fiduciary such as Dykstra, the trial court was required to find that the appointment
of such a professional served Harold’s best interests and that no other person was competent,
suitable, and willing to serve in that fiduciary capacity in accordance with the governing
statutory provisions. MCL 700.5106(2).
The trial court made terse findings regarding Harold’s best interests by stating that
“perfect harmony” had been achieved by the appointment of the previous professional guardian
and conservator, Kimberly Milbocker, and that Harold was “happy” in the existing arrangement
because he was traveling back and forth between Texas and Michigan in order to see both
Angelee and his sisters. According to the court, this arrangement was “working . . . because
we’ve an independent third party that’s keeping track.” The court also noted that if Harold ever
needed Medicaid or other benefits, a clear record from an independent third party would exist
and there would be no need to “prov[e] the nuances that might be there as far as making it work.”
The court emphasized that its “main focus is [Harold’s] welfare. And I do find, despite any
presumption or priority as far as relatives, the best resource, the best answer for him at this point
is independent.” The court again stated that Harold presently “likes what’s happening, he likes
what’s taking place, it’s working, and so the best way to accomplish as pointed out by [Harold’s
court-appointed attorney] is to have a public guardian and conservator and we’re lucky to have
another one.”
While the probate court’s focus on Harold’s welfare is commendable, the court missed a
critical step in its analysis. When Milbocker resigned as Harold’s guardian and conservator,
Angelee petitioned to be appointed to fill those roles. At that juncture, the probate court was
required to reconsult the statutory framework before appointing another public administrator.
The court never articulated any findings regarding Angelee’s competence and suitability to
serve. Absent those findings, the court erred by appointing Dykstra.
Neither MCL 700.5313 nor MCL 700.5409 references the standard of proof applicable to
a probate court’s determination of whether to depart from the statutory priority and appoint a
public administrator as guardian and conservator. This Court has noted in the analogous context
(a petition for removal of a guardian) that when a standard of proof is undescribed, the default
preponderance-of-the-evidence standard applies in determining a person’s suitability. See Redd,
-10-
321 Mich App at 408-410. By using the mandatory term “shall,”3 MCL 700.5106(2) requires
that, in order to appoint a professional guardian or professional conservator, the probate court
must find that the appointment of such a professional is in the incapacitated person’s best
interests and that no other person in priority under the applicable statutes for appointment of
guardians and conservators is competent, suitable, and willing to serve in that fiduciary capacity.
See Redd, 321 Mich App at 409 (noting that the use of the word “shall” “indicates a mandatory
and imperative directive[]”) (quotation marks and citation omitted). It follows that to depart
from the statutory priority provisions and appoint a public guardian and public conservator, the
probate court was tasked with finding by a preponderance of the evidence that Angelee was not
competent and suitable to serve in that fiduciary capacity. That analysis was not made.
Alternatively stated, the probate court failed to make any determination of whether Angelee was
competent, suitable, and willing to serve as Harold’s guardian and conservator. Absent this
requisite finding, the court abused its discretion by appointing a professional fiduciary in lieu of
appointing Angelee, who held the position of statutory priority or preference for appointment.
On remand, the probate court must reconsider the appointment of a new guardian and
conservator in conformity with EPIC. The court must make specific findings of fact regarding
Angelee’s competence, suitability and willingness to serve in those capacities. Relevant facts
that should enter into the court’s analysis include Angelee’s history of satisfactory care for her
father and that unlike Rowland, Angelee does not charge her father for rent or any of his living
expenses. Should Rowland provide evidence in the remand proceedings, we direct the court to
weigh her credibility carefully in light of the incorrect information she provided in her initial
petition regarding Angelee’s address and telephone number, and her conduct in obtaining
Harold’s power of attorney despite awareness that he was incompetent to give it. Given our
determination that further proceedings are required, we need not consider Angelee’s remaining
issues on appeal.
We vacate the guardianship and conservatorship orders and remand for further
proceedings consisted with this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
/s/ Thomas C. Cameron
3
Again, MCL 700.5106(2) states that “[t]he court shall only appoint a professional guardian or
professional conservator . . . if the court finds on the record all of the following . . . .”
-11-
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Case: 09-50773 Document: 00511159486 Page: 1 Date Filed: 06/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2010
No. 09-50773
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KEVIN SHORTER
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-281-1
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kevin Shorter appeals his conviction for possession with intent to
distribute more than five grams of a mixture and substance containing a
detectable amount of cocaine base. He argues that the district court erred by
admitting physical and documentary evidence pertaining to the cocaine involved
in his offense because the chain of custody of the cocaine was not sufficiently
established.
Shorter challenged the admission of the evidence below, and we therefore
review his claim for an abuse of discretion. See United States v. Dixon, 132 F.3d
*
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: 09-50773 Document: 00511159486 Page: 2 Date Filed: 06/30/2010
No. 09-50773
192, 197 (5th Cir. 1997). “[A] ‘break in the chain of custody simply goes to the
weight of the evidence, not its admissibility.’” Id. (quoting United States v.
Sparks, 2 F.3d 574, 582 (5th Cir. 1993)). When the defendant questions the
authenticity of evidence, the district court must determine whether there is
substantial evidence from which the jury could infer that the evidence is
authentic. United States v. Jardina, 747 F.2d 945, 951 (5th Cir. 1984).
The record establishes that the Government set forth sufficient evidence
to establish the authenticity of the disputed evidence. See id; United States v.
Smith, 481 F.3d 259, 264-65 (5th Cir. 2007). Accordingly, the district court did
not abuse its discretion in allowing the evidence to be admitted. See Dixon, 132
F.3d at 197.
The judgment of the district court is AFFIRMED.
2
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211 So.2d 139 (1968)
UNITED SECURITY LIFE INSURANCE COMPANY (Garnishee)
v.
BIRMINGHAM TRUST NATIONAL BANK et al.
6 Div. 407.
Supreme Court of Alabama.
May 2, 1968.
Rehearing Denied June 20, 1968.
*140 Alan W. Heldman and Deramus & Johnston, Birmingham, for appellant.
S. P. Keith, Jr., Birmingham, for appellee Reid.
HARWOOD, Justice.
This is an appeal from a judgment entered in a garnishment proceeding.
The Birmingham Trust National Bank, hereinafter referred to as the plaintiff or the bank, recovered a judgment against Joe W. Reid, hereinafter referred to as the defendant.
In an effort to collect this judgment of $4,486.36, the plaintiff instituted garnishment proceedings against Reid's employer, the United Security Life Insurance Company, hereinafter referred to as the garnishee or garnishee-appellant.
The garnishee filed an answer to the garnishment asserting it was not indebted to the defendant. Reid and the bank filed *141 contests of the garnishee's answer. The garnishee then filed a number of pleas to these contests of garnishee's answer. Demurrers to pleas 4, 5, 6, and 9, which were pleas of set off, were sustained, and were overoverruled as to pleas 7 and 8, which were also pleas of set off.
At the conclusion of the nine day hearing, had without a jury, the court adjudged that the garnishee was indebted to the defendant Reid in the amount of $13,460.87, of which amount the garnishee was ordered to pay the plaintiff the amount of its judgment to the plaintiff bank.
The garnishee perfected an appeal from this judgment and the defendant Reid has attempted to cross assign errors. The plaintiff bank has not joined in the appeal.
This has been a most tedious record to review. It is some 585 pages in length, with many exhibits in the form of ledger sheets, and much testimony relating to figures, calculations, and accounts. Added to this, the transcript of the evidence is heckled continuously throughout by the wrangling and colloquy between counsel.
The evidence shows that the defendant Reid went to work for United Security in 1958 as manager of its credit life department. His compensation was to be one half of the profits of his department after certain expenses, including the general office expenses of his department were deducted. Reid could draw against his prospective earnings, such prepayments to be recognized upon annual settlements.
There were disputes between Reid and the company as to whether certain expenses charged to him were valid, and in 1959 his contract of employment was orally modified to fix his expenses at a flat $1200.00 per year. In 1961 or 1962 the company again modified the contract to fix Reid's department expenses as 1% of the overall overhead expense of the home office expenses. Reid contends he never agreed to this latter change.
The garnishee's evidence was directed toward showing that Palmer Keith, Jr., a director of United Security, Sykes Manasco, and Joe Dust formed a corporation in 1966 to deal in used automobiles. After several months Reid acquired Manasco's interest in this corporation (Joe Dust, Inc.). Mr. William DeLong, then president of the garnishee, also purchased $15,000.00 of unissued stock in Joe Dust, Inc., shortly before a loan was made by United Security Life Insurance Company through its officer DeLong to Joe Dust, Inc.
Joe Dust, a witness for the garnishee, testified that he was in complete charge of Joe Dust, Inc., and neither Reid nor Keith exercised any control over his operation of Joe Dust, Inc.
Dust further testified that around 1 February 1966, Joe Dust, Inc., owed C.I.T. approximately $50,000.00, and that Reid and Keith were personally liable as endorsers on this account. Dust then went to DeLong, then president of the garnishee, and obtained a loan from the garnishee sufficient to pay off the C.I.T. account. Reid and Keith were not endorsers of this loan from the garnishee.
Dust testified he did not discuss the matter of obtaining the loan from the garnishee with either Reid or Keith, and did not notify them of the transaction until several days after the transaction had been completed. Reid and Keith testified to this same effect. DeLong died on 8 March 1966.
It is garnishee's contention that the above facts necessarily raise the inference that Keith, Reid, and Dust conspired to obtain the loan from the garnishee in order to relieve themselves of personal responsibility on the C.I.T. loan by paying off that loan with the proceeds of the loan from the garnishee, for which the Joe Dust, Inc., only would be liable. Joe Dust, Inc., had little, or no, assets.
To draw this inference, however, the court below would have had to disregard the testimony of the garnishee's own witness, *142 Joe Dust, for whom the garnishee had vouched by placing him on the stand.
The defendant Reid's evidence was directed toward showing that the garnishee had never properly accounted to him for monies owing under the contract between himself and garnishee, and that for the years 1961-63, the garnishee owed him a balance of $43,879.08, for 1964 $6,153.25, and for 1965 $5,311.31. Reid's testimony was based on calculations made from his own records, and from the records of the company. On the other hand, officials of the garnishee testified that only $45.76 was owed Reid on his account through 1965.
In this connection it might be noted that garnishee's witness Latsis testified that an error of $15,000.00 had been made in garnishee's records in determining the profits of Reid's department payable in 1964, and with a proper entry of this $15,000.00, Reid would be due half of this $15,000.00 in determining the amount due him for 1964.
Garnishee-appellant's assignments of error 1, 2, 3, and 4, relate respectively to the action of the trial court in sustaining demurrers to its pleas 4, 5, 6, and 9, which were pleas of set off filed to contests interposed by Reid and the bank to the answer of the garnishee denying it was indebted to Reid.
The appellant-garnishee also filed pleas 7 and 8 to said contests and demurrers to these pleas were overruled.
It appears rather clearly from a reading of all the pleas that all matters provable under pleas 4, 5, 6, and 9, were likewise subject to proof under pleas 7 and 8, to which appellant's demurrers were overruled. No reversible error therefore resulted from the court's action in sustaining the demurrers to pleas 4, 5, 6, and 7. First National Bank v. Steiner, Lobman and Frank, 168 Ala. 243, 53 So. 172; Bush v. Thomas, 172 Ala. 77, 55 So. 622; Trammell v. Robinson, 34 Ala.App. 91, 37 So.2d 142.
Assignment of error 5, relates to the action of the court in sustaining objections to a question propounded by the appellant to the witness, J. J. Latsis, as to the amount of annual commissions paid by the garnishee-appellant to all its agents.
Mr. Latsis has been comptroller of the garnishee-appellant since 1962.
The evidence shows that in 1961 or 1962, the method of computing indirect expenses chargeable against Reid was altered to a basis of $1200.00 per year. In 1963, the method of computing the indirect expenses to Reid was changed by the garnishee to 1% of the general home office expenses.
Reid testified he never agreed to this change.
In this connection Jack S. Parrish, a Certified Public Accountant was employed by Mr. Aspinwall, the then president of the garnishee company to examine the garnishee's books and procedures. Mr. Parrish testified that Mr. Aspinwall wanted to reduce Reid's income from the company, and the 1% charge for indirect expenses was put into effect. The 1% figure was picked out of the air. Parrish testified that Reid objected to this change, was mad about it, and complained continuously about it. Mr. Latsis likewise testified that Reid objected to the imposition of the 1% formula for computing the indirect expenses chargeable to him.
Counsel for appellant argues that the evidence sought by the question addressed to Latsis to which the objection was interposed would show the reasonableness of the new method for computing indirect expenses, and Reid's tacit agreement to the change.
Since the undisputed evidence from all of the witnesses shows that Reid did not agree to the change, the tenuous method by which counsel sought to establish Reid's "tacit" agreement to the change by showing the commissions paid to all agents of the garnishee, possessed no probative value. The court properly sustained the objection in this instance.
*143 Appellant has grouped and argued jointly assignments of error 6 through 14.
Assignment 14 is that the court erred in sustaining an objection to a question propounded to the defendant-cross appellant Reid as to whether he knew of any stock (in Joe Dust, Inc.) having been changed between stockholders Manasco, Dust, and Keith after he became a stockholder in Joe Dust, Inc.
The record shows that the witness answered "no" to this question. Thereafter upon the attorney for Reid interposing an objection after the above answer, said objection was formally overruled. Thus the question was answered, and the tardy objection was overruled, not sustained.
Likewise no error attaches to the court's action in sustaining an objection to a question propounded by appellant to Reid as follows:
"Q. Are you now an officer or director of any other corporation besides United Securities?" (Italics ours.) (Assignment No. 6)
The "now" in the above question must be deemed to mean at the time of trial. Such information would be irrelevant to the issues being litigated.
In assignment No. 9, the appellant's question to Reid to which objection was sustained was as follows:
"Q. Are you and Mr. Keith partners or co-venturers in any business endeavor or have you been, at any time during your employ by United Security?"
The latter part of this question limits the period of time of any business venture between Keith and Reid to the time of their employment by United Security. The first part of this bifurcated question is not so limited, and could call for irrelevant testimony.
Where a part of a question is subject to objection, and a part is not, a court will not be put in error in sustaining an objection to the entire question. Low v. Low, 255 Ala. 536, 52 So.2d 218; Brooks v. State, 32 Ala.App. 389, 27 So.2d 48.
Since several of the assignments of error (6 through 14), grouped for argument, are unrelated and at least three of the grouped assignments are without merit, as shown above, we pretermit consideration of the remaining assignments in this group. See Ala.Dig. Vol. II A, for innumerable authorities.
Assignments 15 through 18, have likewise been grouped for argument. As stated in appellant's brief:
"Each of these assignments is based upon the action of the trial court in sustaining objections to questions put by garnishee-appellant to the witness Joe Dust as to his conversations with S. Palmer Keith, Jr., about organizing an automobile business."
The original stockholders in Joe Dust, Inc., were S. P. Keith, Jr., Sykes Manasco, and Joe Dust. Reid later acquired the interest of Manasco in Joe Dust, Inc., the record not being clear as to the date of Reid's acquisition of Manasco's interest.
Not being a stockholder at the time Dust may have talked to Keith, nor owning any interest in Joe Dust, Inc., at such time, any conversation between Keith and Joe Dust relative to organizing an automobile business would be hearsay as to Reid.
Counsel for appellant argues that such conversation between Dust and Keith would be admissible as res gestae, and cites Pollard v. Rogers, 234 Ala. 92, 173 So. 881, in support of his argument. Pollard v. Rogers, supra, simply holds that a statement by defendant's locomotive engineer made at the time of, and during a continuing injury, was admissible as a part of the res gestae of the injury. We do not see the application of this principle to the present factual situation. The evidence sought in the present case was not only hearsay, but immaterial and irrelevant to the issues.
*144 Assignment of error No. 19 is based upon the action of the court below in sustaining an objection to a question propounded by the garnishee-appellant as to whether the $1000.00 capital shown in the certificate of incorporation of Joe Dust, Inc., was actually paid in.
Counsel for appellant contends the evidence sought was critical in that "If the capital paid in had never been paid in, this would certainly bear upon whether the fiction of separate corporate entity should have been preserved in this case."
This argument ignores the fact that the garnishee-appellant itself had introduced into evidence, over objection, the certificate of incorporation of Joe Dust, Inc. This certificate contained an affidavit by Sykes Manasco that all capital stock ($1000.00) had been paid for by the transfer of office furniture and equipment and shop equipment.
As stated in Brown v. French, 159 Ala. 645, 49 So. 255:
"It is a familiar statement of the law of estoppel that `a party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, is estopped to assume a position inconsistent therewith, to the prejudice of the adverse party.'" (Numerous citations omitted.)
Assignment of error No. 19 is without merit.
Assignment of error No. 20 asserts error in the action of the court below in sustaining an objection to the following question addressed by the garnishee-appellant to the witness Joe Dust:
"Where did you get the idea of making a loan with United Security?"
Counsel for appellant argues that:
"Two of the officers of United Security owned 98% of Joe Dust, Inc., and yet they disavow any connection with steering Joe Dust to United Security to get a loan. It is apparent that if the question had been allowed answered and the answer had been `Mr. Reid' then Mr. Reid's supposed defense would have been sorely weakened. * * * The question sought a declaration against interest by the defendant."
The question as framed is faulty. If the word "where" refers to geographical location, it calls for irrelevant testimony. If "where" be deemed to mean "when" the question called for a mental operation.
Further, the record shows that just prior to the above question, the witness Dust had testified he did not remember whether or not he had discussed with Reid a loan by United Security prior to its being made, and that he had not had any such discussion with Keith.
Had counsel desired to ask Dust if he had discussed the possibility of a loan from United Security with Reid, he should have sought the information directly.
Assignment of error No. 21 is based on the action of the trial court in sustaining an objection propounded by the garnishee-appellant to its witness Joe Dust to the following question:
"Q. Did he (Reid) say anything to you in response to your having told him that the loan had been made?" (Par. added)
Immediately preceding this question the record shows the following:
"Q. Did you and Mr. Reid ever discuss this loan after it was made other than you just telling him it had been made?
"Mr. Fulford: Object.
"The Court: Overruled.
"Q. The question is this, other than you have already testified about the loan, did you and he (Reid) have any further conversation about the loan being made?
"A. No, just the fact that the loan had been made." (Par. added)
*145 It is thus apparent that the appellant-garnishee had already had the benefit of testimony covering the testimony sought to be elicited by the question to which the objection was sustained. No injury probably affecting any substantial right of appellant-garnishee therefore resulted from the ruling made the basis of assignment No. 21. Sup. Ct. Rule 45.
Assignment of error No. 22 relates to the action of the court in sustaining an objection to the admission in evidence of garnishee-appellant's offer of a carbon copy of a check issued by the garnishee, dated 19 January 1962, in the amount of $5,688.46, payable to Joe Reid, together with the bottom part of the sheet on which the copy of the check appeared. This bottom part was separated from the check by a perforated line. On the bottom part appears "Balance in full for 1961," and the amount shown is the same amount as the check. On the top of this bottom part of the sheet is the instruction, "Please detach before depositing."
Reid admitted receiving and depositing this check, but testified he did not remember whether the portion below the perforated line was attached to the check at the time he received it.
In the earlier stages of his testimony Reid testified that the above mentioned check was in full settlement of his account with the garnishee-appellant for 1961. Later during his testimony, he denied that the check was in settlement of the 1961 account.
Under these circumstances the carbon copy of the check with the accompanying bottom part shed light on the question of whether a settlement in full had been made with Reid by the garnishee-appellant for the year 1961. The proper predicate was laid by officials of the garnishee-appellant to establish the retained carbon copy as a business record. As such it was admissible. Sec. 415, Tit. 7, Code of Alabama 1940.
Appellant's argument under assignment No. 22 is directed toward showing the admissibility of this record. The argument does not, however, show wherein the appellant was injured by the ruling.
In his earlier testimony Reid contended that the garnishee was indebted to him in the amount of $2,700.48 for 1962, $4,276.96 for 1963, $6,153.25 for 1964, and $5,311.31 for 1965.
During the course of the trial and under a subpoena duces tecum, records of the garnishee pertaining to Reid's account were produced in court and Reid was given an opportunity to examine them. Thereafter he testified that from an examination of these records the garnishee was indebted to him for the years 1960 through 1963 in the amount of $43,879.08, and for the years 1964 and 1965, the amount owed was the same as he previously calculated, that is $6,153.25 for 1964, and $5,311.31 for 1965.
From the amount awarded Reid by the court below it can be rationally inferred only that the court considered the years 1964 and 1965 in determining the amount due Reid by the garnishee.
In brief and argument of the garnishee-appellant filed in opposition to appellee Reid's cross assignments of error based on inadequacy of damages only, this view is also held by the garnishee-appellant, for counsel writes:
"It appears that the trial court correctly considered that fact (failure of proof of Reid's claims for 1960 through 1963) since the size of the award made is consistent only with rejecting 1960 through 1963, and accepting Mr. Reid's testimony on 1964 and 1965." (Par. added)
This being so, the refusal of the trial court to admit in evidence the carbon copy of the paper relating to the alleged 1961 settlement and made the basis of this assignment of error could not under appellant's own view, have injuriously affected any substantial right of the appellant. Sup. Ct. Rule 45.
Assignment of error No. 23 asserts error in the action of the trial court in sustaining *146 an objection to a question by the garnishee addressed to the witness Palmer Keith, Jr., as to whether he was a director in Joe Dust, Inc.
The garnishee introduced in evidence the articles of incorporation of Joe Dust, Inc. This shows that Keith was a director. This fact was never contradicted. The answer sought by the question therefore related to uncontradicted evidence already before the court. Clearly the appellant could not probably have been injured in any substantial right by this ruling. Sup.Ct. Rule 45.
Assignment of error No. 24 relates to the action of the court in sustaining an objection to a question propounded to its witness Frank M. Lynch, Chairman of the Management Committee Board of Directors, as to whether Mr. DeLong, who had made the loan to Joe Dust, Inc., for the garnishee, had been given authority to make loans for as much as $50,000.00.
The court's ruling was free from error. The records of the garnishee were the best evidence of any limitations placed upon DeLong in the matter of making loans. These records, presumably in the possession of the garnishee, should have been produced, or their absence accounted for.
The defendant-appellee has forwarded to the clerk of this court his purported cross assignment of errors questioning the adequacy of the damages awarded the appellee.
Since these purported cross assignments are not written in the record as required by Supreme Court Rule 3, they cannot be considered. Waters v. American Casket Co., 261 Ala. 252, 73 So.2d 524.
The judgment is due to be affirmed, and it is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.
| {
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622 F.2d 1042
*dSchroederv.Sherman
79-1991
UNITED STATES COURT OF APPEALS Fifth Circuit
7/15/80
1
E.D.La.
AFFIRMED
| {
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936 F.2d 570
Harstonv.C.I.R.S.*d
NO. 91-4039
United States Court of Appeals,Fifth Circuit.
JUN 27, 1991
1
Appeal From: U.S.T.C.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
d
Local Rule 47.6 case
| {
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IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 05-0432
════════════
In re The Lynd Company,
Relator
════════════════════════════════════════════════════
On Petition for Writ of Mandamus
════════════════════════════════════════════════════
Chief Justice Jefferson delivered the
opinion of the Court.
Justice Green did not participate in
the decision.
In this
mandamus action, we consider whether a court may imply the date on which a
complaining party received late notice of judgment from an order granting a
motion to extend post-judgment deadlines pursuant to Texas Rule of Civil
Procedure 306a. Rule 306a allows for extensions of post-judgment deadlines when
a party first receives notice of a judgment more than twenty, but less than
ninety-one, days after it is signed. Tex. R. Civ. P. 306a(4). Relator The
Lynd Company (Lynd) seeks a writ of mandamus that (1) compels the court of
appeals to vacate its order directing the trial court to withdraw its order
granting new trial and (2) directs the trial court to vacate its February 28,
2005 order withdrawing the order granting new trial. Because we hold that the
record supports implied notice,[1] the trial court had jurisdiction to
grant Lynd’s motion for new trial pursuant to Rule 306a; therefore, the court of
appeals abused its discretion in ordering the trial court to vacate that order.
Accordingly, we conditionally grant Lynd’s petition for writ of mandamus.
John Adrian
Anthony sued Lynd for injuries he sustained when he fell from the second story
of an apartment complex Lynd managed. Lynd filed an answer. On November 21,
2003, the trial court granted Anthony’s motion for sanctions and ordered Lynd to
pay $80,000 for its failure to respond to Anthony’s request for disclosures.
Five months later, Anthony filed a Motion for Entry of Final Judgment. After a
hearing, which Lynd did not attend, the court signed an order entitled “Final
Default Judgment” on May 18, 2004.
Lynd claims
it first became aware of the default judgment when a sheriff’s deputy arrived at
its offices on August 4, 2004 to seize assets to satisfy the judgment. On August
27, 2004, Lynd filed a motion to set aside the default judgment and a motion for
new trial. Pursuant to Texas Rule of Civil Procedure 306a(4), Lynd sought to
invoke the trial court’s otherwise-expired plenary power to grant the motions.
The rule provides:
If within
twenty days after the judgment or other appealable order is signed, a party
adversely affected by it or his attorney has neither received . . . notice
. . . nor acquired actual knowledge of the order, then with
respect to that party [the period of the trial court’s plenary power and the
time for filing certain post-judgment motions] shall begin on the date that such
party or his attorney received such notice or acquired actual knowledge of the
signing, whichever occurred first, but in no event shall such periods begin more
than ninety days after the original judgment or other appealable order was
signed.
Tex. R. Civ. P. 306a(4); see also
Mem. Hosp. of Galveston Cty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987).
Absent an extension of post-judgment deadlines under Rule 306a, the trial
court’s power to entertain Lynd’s motions expired on June 17, 2004, thirty days
after it signed the final judgment. Tex.
R. Civ. P. 329b(f); see also Gillis, 741 S.W.2d at 365. After an
evidentiary hearing on the Rule 306a motion, the trial court granted Lynd’s
motion for new trial on September 7, 2004. The trial court, however, did not
make a written finding confirming the date Lynd first received notice of the
judgment.
Anthony
sought mandamus relief in the court of appeals, arguing that the trial court
abused its discretion because the November 21, 2003 sanctions order was a final
judgment, and, therefore, the court could not invoke its plenary power pursuant
to Rule 306a(4).[2] See In re Sw. Bell Tel. Co., 35
S.W.3d 602, 605 (Tex. 2000) (holding that mandamus is the proper avenue for
relief when the trial court issues an order after its plenary power has
expired). Anthony argued in the alternative that even if the May 18, 2004 order
was the final judgment, the order granting new trial was still void, because the
court did not satisfy Rule 306a’s requirements and, therefore, lacked plenary
power to grant the motion. The court of appeals conditionally granted mandamus
relief, holding that the May 18, 2004 order was the final judgment, but that the
order granting new trial was void due to the trial court’s failure to
specifically find the date Lynd first received notice or acquired actual
knowledge of the judgment. __ S.W.3d __, __. Accordingly, the court of appeals
ordered the trial court to withdraw the September 7, 2004 order. See id.
at __. The trial court has since complied.
Post-judgment
procedural timetables—including the period of the trial court’s plenary
power—run from the day a party receives notice of judgment, rather than the day
judgment is signed, if the party: (1) complies with the sworn motion, notice and
hearing requirements mandated by Rule 306a(5), and (2) proves it received notice
of the judgment more than twenty (but less than ninety-one) days after it was
signed. See Tex. R. Civ. P.
306a. Specifically, Rule 306a(5) requires that the party alleging late
notice of judgment file a sworn motion with the trial court establishing the
date the party or its counsel first learned of the judgment. Tex. R. Civ. P. 306a(5); see also
Gillis, 741 S.W.2d at 365. The motion must be filed before the trial court’s
plenary power—measured from the date of notice established under Rule
306a(4)—expires. John v. Marshall Health Servs., 58 S.W.3d 738, 741 (Tex.
2001). The sworn motion establishes a prima facie case that the party lacked
timely notice and invokes a trial court’s otherwise-expired jurisdiction for the
limited purpose of holding an evidentiary hearing to determine the date on which
the party or its counsel first received notice or acquired knowledge of the
judgment. See Grondona v. Sutton, 991 S.W.2d 90, 91‑92 (Tex. App.–Austin
1998, pet. denied); Cont’l Cas. Co. v. Davilla, 139 S.W.3d 374, 379 (Tex.
App.–Fort Worth 2004, pet. denied); see also Jon v. Stanley, 150 S.W.3d
244, 248 (Tex. App.–Texarkana 2004, no pet.).
We agree with
the court of appeals that the May 18, 2004 judgment was the final judgment. A
default judgment is deemed final if it expresses an unequivocal intent to
finally dispose of the case. In re Burlington Coat Factory Warehouse of
McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005). The November 21, 2003 order,
entitled “Order on Motion for Sanctions” stated that it was a default judgment
as to Anthony’s “liquidated claim” against Lynd, but the order contained no
language stating it finally disposed of all claims and all parties. See
Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (judgment
containing language expressly disposing of all claims and all parties may be
deemed a final judgment). Furthermore, the order on the motion for sanctions did
not resolve Anthony’s claims for pain and suffering, medical expenses, or lost
earning capacity. See id. (holding that regardless of its language, a
judgment that disposes of all claims, based on the record in the case, may be
deemed final). In contrast, the May 18, 2004 “Final Default Judgment” left
nothing further to resolve and, therefore, was the final judgment in this
case.
We disagree,
however, with the court of appeals’ holding that the trial court did not
properly invoke its plenary power to grant Lynd’s motion for new trial because
it omitted a written finding of the date Lynd received notice of final judgment.
Unlike the parallel appellate rule, Texas Rule of Appellate Procedure 4.2, Rule
306a does not require that the trial court issue a signed order with such a
finding. Compare Tex. R. App.
P. 4.2(c) with Tex. R.
Civ. P. 306a(5). Rather, when the trial court fails to specifically find
the date of notice, the finding may be implied from the trial court’s judgment,
unless there is no evidence supporting the implied finding or the party
challenging the judgment establishes as a matter of law an alternate notice
date. See Abrams v. Jones, 35 S.W.3d 620, 627 (Tex. 2000) (the legal
sufficiency of implied findings may be challenged on appeal); see also Powell
v. McCauley, 126 S.W.3d 158, 161‑62 (Tex. App.–Houston [1st Dist.] 2002, no
pet.) (if the trial court fails to make a written finding of the date the
complaining party received notice of judgment, the appellate court may imply the
finding). To the extent that some courts of appeals have held otherwise, we
disapprove those decisions. See Lejune v. Pow‑Sang, No. 01‑04‑00843‑CV,
2006 Tex. App. LEXIS 2740, at *32 n. 17 (Tex. App.–Houston [1st Dist.] April 6,
2006, no pet. hist.); In re Parast, No. 04‑03‑00340‑CV, 2003 Tex. App.
LEXIS 5826, at *6 (Tex. App.–San Antonio July 9, 2003, orig. proceeding) (mem.
op.); In re Ray, 967 S.W.2d 951, 954 (Tex. App.–Dallas 1998, orig.
proceeding); In re Jones, 974 S.W.2d 766, 768 (Tex. App.–San Antonio
1998, orig. proceeding); Metro Dairy Queen Stores v. Dominguez, 883
S.W.2d 322, 324 (Tex. App.–El Paso 1994, no writ); Hannon v. Crest Cadillac,
Inc., No. 05‑99‑01503‑CV, 2000 Tex. App. LEXIS 1957, at *2-*3 (Tex.
App.–Dallas March 27, 2000, no pet.) (not designated for publication). We note,
however, that a trial court could dispel ambiguities about the notice date if,
in ruling on 306a motions, it followed the procedure mandated by Texas Rule of
Appellate Procedure 4.2(c) and issued a finding of the notice date as a matter
of course. Parties should also consider requesting such a finding, as it may
help circumvent disputes like this one.
Here, there
is ample evidence to imply from the trial court’s new trial order a finding that
Lynd first received notice of the judgment on August 4, 2004. Along with the
Rule 306a motion, Lynd submitted verified affidavits from its president, his
secretary, the company’s corporate representative, and its attorney, all of whom
swore that they did not learn of the judgment until the sheriff’s deputy arrived
at Lynd’s offices on August 4, 2004. Lynd’s president and his secretary offered
similar testimony at the Rule 306a evidentiary hearing.
Because
August 4, 2004 was more than twenty, but less than ninety-one, days after the
default judgment was signed, and because Lynd timely filed its Rule 306a sworn
motion and accompanying motion for new trial within thirty days of first
receiving notice of the judgment, Rule 306a operated to extend the trial court’s
plenary power to grant Lynd’s motion for new trial. See Tex. R. Civ. P. 306a(4), (5); see
also John, 58 S.W.3d at 741. Thus, pursuant to Rule 306a, August 4, 2004
served as the date from which all post-judgment deadlines and the trial court’s
plenary power began to run. See Tex. R. Civ. P. 306a(4) (date party
received notice substitutes for the date judgment was signed as starting point
from which post-judgment deadlines run). Accordingly, the trial court had
jurisdiction on September 7, 2004 to issue its order granting Lynd’s motion for
new trial. See Tex. R. Civ.
P. 329b. Therefore, the court of appeals abused its discretion in
ordering the trial court to vacate that order.
Accordingly,
without hearing oral argument, we conditionally grant Lynd’s petition for writ
of mandamus, direct the court of appeals to vacate its ruling, and order the
trial court to vacate its February 28, 2005 order withdrawing the September 7,
2004 order granting new trial. Tex. R.
App. P. 52.8(c), (d). The writ will issue only if the lower courts fail
to comply.
______________________________
Wallace
B. Jefferson
Chief
Justice
OPINION DELIVERED: June 9, 2006
[1] The real party in interest argues that Lynd should be
denied relief because it did not include the transcript of the Rule 306a
evidentiary hearing with its petition. See Tex. R. App. P. 52.7(a) (relator must
file record which includes any document or transcript relevant to its claim).
The real party in interest, however, filed a supplemental record that included
the transcript. See id. 52.7(b) (any party to the proceeding may
supplement record). Thus, the record before us contains all that is necessary to
consider Lynd’s petition for writ of mandamus.
[2] Rule 306a(4) does not apply and cannot serve to extend
a trial court’s plenary power when a party learns of final judgment more than
ninety days after it is signed. Levit v. Adams, 850 S.W.2d 469, 470 (Tex.
1993) (noting that in such cases a bill of review is the proper method of
seeking relief). If judgment was final on November 21, 2003, ninety days would
have elapsed on February 19, 2004, well before the date Lynd alleged it learned
of final judgment. | {
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368 Mich. 405 (1962)
118 N.W.2d 430
PEOPLE
v.
SIEMIENIEC.
Docket No. 65, Calendar No. 49,302.
Supreme Court of Michigan.
Decided December 4, 1962.
*406 Frank J. Kelley, Attorney General, Eugene Krasicky, Solicitor General, Ronald H. Lange, Prosecuting Attorney, for the people.
Gore & Williams, for defendant.
SOURIS, J.
In People v. Wright, 367 Mich 611, decided September 10, 1962, we affirmed an order of the circuit court quashing an information because it was based upon evidence seized by authority of a search warrant issued upon affidavit reciting observation of facts 6 days prior to its making. Our decision was based upon the failure of the affidavit to assert facts indicating continuance of the alleged illegal activity from the time of the affiant's observations to the time of his making the affidavit. We applied the rule found in People v. Chippewa Circuit Judge, 226 Mich 326, that no warrant may issue except upon a showing that facts exist at the time of issuance to justify such a "special proceeding * * * hedged by strict constitutional provisions."
In the case at bar, defendant was convicted for violation of CL 1948, § 436.32 (Stat Ann 1957 Rev § 18.1003), the information charging that on September 21, 1958 she "unlawfully did offer for sale, keep for sale, barter, furnish, import, import for sale, transport for sale, or possess for sale, a large quantity of wine, whiskey, beer, mixed liquors or alcoholic liquor, without having first filed a bond with, and without having a license from, the liquor control commission of the State of Michigan." The evidence upon which she was convicted was obtained on the date of the alleged offense by State police officers armed with a search warrant. The search warrant was issued by a justice of the peace on September *407 17th upon complaint and affidavit made on that date by a police officer. In his affidavit, the officer stated that he had observed defendant and her husband 4 days earlier furnishing "alcoholic spirits to certain [persons] in return for money and in return for the presentation of certain tickets or cards previously issued by the said Stanley Siemieniec and Bernice Siemieniec, the same being furnished in particular to the affiant herein at said time and place."
Defendant's motion to quash the information and to suppress the evidence so obtained should have been granted. If Mrs. Siemieniec unlawfully sold or furnished for sale alcoholic beverages on September 13, 1958, she could have been prosecuted for doing so, but such sale alone afforded no ground for a finding of reasonable cause to believe that on September 17th, four days later, she was continuing to do so, thereby justifying issuance of the search warrant. Whether the affiant's observations are made 4, 6 or 66 days before application for a search warrant, the warrant may issue only upon a showing that reasonable cause exists to believe illegal activity is occurring at the time the warrant is sought. Just as in People v. Wright, supra, there was nothing in the affidavit presented in this case to indicate that the acts observed on September 13th continued to occur on September 17th.
For the reasons stated, the search warrant was improvidently issued and the defendant's motion to quash should have been granted.
Reversed.
CARR, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, and OTIS M. SMITH, JJ., concurred.
ADAMS, J., did not sit.
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91 P.3d 1031 (2004)
208 Ariz. 188
PINAL VISTA PROPERTIES, L.L.C., an Arizona limited liability company, Plaintiff-Appellant,
v.
Jim L. TURNBULL, Pinal County Treasurer; Pinal County Board of Supervisors and Lionel D. Ruiz, Sandie Smith, Jimmie B. Kerr, as members of and constituting the Board of Supervisors, Pinal County; Pinal County, a political subdivision of the State of Arizona; State of Arizona ex rel. Pinal County Board of Supervisors, Real Party in Interest, Defendants-Appellees.
No. 1CA-TX 03-0008.
Court of Appeals of Arizona, Division 1, Department T.
June 17, 2004.
*1032 Mark L. Manoil, P.C. by Mark L. Manoil, Phoenix, Attorneys for Plaintiff-Appellant.
Terry Goddard, Attorney General by J.W. Ranby, Assistant Attorney General, Phoenix, Attorneys for Defendant-Appellee State of Arizona.
Helm & Kyle, Ltd. by Roberta S. Livesay, Tempe, Attorneys for Defendant-Appellee Turnbull, Pinal County, and Pinal County Board of Supervisors.
OPINION
HALL, Judge.
¶ 1 Pinal Vista Properties, L.L.C. (Pinal Vista) appeals from summary judgment in favor of Pinal County (County) and the State of Arizona (State) (collectively, Defendants). The issue presented is whether the transfer of real property to the State by issuance of a treasurer's tax deed extinguishes any privately held tax liens.
¶ 2 The relevant facts are undisputed. In October 2001, Pinal Vista acquired Pinal County Certificate of Purchase No. 143308-87 (the CP) for Tax Assessor's Parcel No. 101-06-005D0 (the Property) by assignment. The CP evidenced payment of delinquent taxes for the years 1987 through 1992 and represented a $70,312.46 investment by Pinal Vista's predecessor in interest.
¶ 3 In 1992, the Pinal County Assessor (the Assessor) initially valued the land covered by the CP at $59,242 and the improvements at $170,016. The Assessor subsequently learned that the improvements had been destroyed, presumably by a fire. Accordingly, the Assessor revalued the Property for the 1993 tax year at the full cash value of $29,621 and changed the assessment ratio to reflect the Property's new status as vacant land.
¶ 4 Because no one purchased any of the subsequently accruing tax liens, they were assigned to the State pursuant to Arizona Revised Statutes (A.R.S.) section 42-18113 (1999). On June 4, 2001, after giving notice to lienholders, the Pinal County Board of Supervisors foreclosed on the Property and issued a treasurer's deed to the Property to the State in accordance with A.R.S. § 42-18261 (1999).
¶ 5 On November 21, 2001, Pinal Vista filed a claim against the Defendants for the redemption value of the tax liens, which it calculated to be $167,926.50 plus accruing interest. When the County declined to act, Pinal Vista sued for a declaratory judgment and special action relief. The parties filed cross-motions for summary judgment. The trial court granted the Defendants' motions and entered judgment accordingly.
DISCUSSION
¶ 6 On appeal from a summary judgment in which the material facts are not in dispute, we review the issues of law de novo and determine only whether the tax court correctly applied the law to the undisputed *1033 facts. Southern Pac. Transp. Co. v. Dep't of Revenue, 202 Ariz. 326, 329-30, ¶ 7, 44 P.3d 1006, 1009-10 (App.2002). Questions of statutory interpretation are issues of law and also subject to de novo review. Boynton v. Anderson, 205 Ariz. 45, 46, ¶ 4, 66 P.3d 88, 89 (App.2003).
I
¶ 7 To secure payment of delinquent taxes on real property, a county treasurer may sell a tax lien at a judicial sale. A.R.S. §§ 42-18101 to -18126 (1999). Following the sale, the treasurer issues a certificate of purchase to the successful bidder. § 42-18118. The certificate is evidence of the holder's right to a treasurer's deed at the end of the applicable statutory period. A.R.S. §§ 42-18201 to -18207 (1999).
¶ 8 Relying on Bauza Holdings, L.L.C. v. Primeco, Inc., 199 Ariz. 338, 18 P.3d 132 (App.2001), Pinal Vista argues that A.R.S. § 42-17153 (1999) requires governmental entities that acquire real property to take such property subject to any existing tax liens. In Bauza, one tax lien investor sought to foreclose the right of another tax lien investor through judicial foreclosure. Id. at 339, ¶ 1, 18 P.3d at 133. Both investors were private purchasers of tax lien certificates and each held certificates for three nonconsecutive years of delinquent taxes. Id. at 340, ¶ 6, 18 P.3d at 134. Reasoning that A.R.S. § 42-17153(B)(3) (1999),[1]amended by 2001 Ariz. Sess. Laws, ch. 242, § 1, establishes parity, not priorities, between tax lienholders, we required the foreclosing lienholder to redeem or compromise competing liens to receive free and clear title to the property. Id. at 343, ¶¶ 19-23, 18 P.3d at 137.
¶ 9 Pinal Vista argues that Bauza requires that the State be treated no differently than private investors, i.e., that property tax liens held by the State have parity, not priority, over other-year property tax liens sold to a certificate of purchase holder. Defendants assert that Bauza's determination that "parity" exists amongst private holders of CPs has no application to the issue here, namely, does the conveyance of title to real property to the State by issuance of a treasurer's tax deed extinguish all privately held tax liens?
¶ 10 To answer this question we must examine related provisions of Arizona's property tax lien statutes. Our primary goal in construing a statute is to determine and give effect to the intent of the legislature. Luchanski v. Congrove, 193 Ariz. 176, 178, ¶ 9, 971 P.2d 636, 638 (App.1998). Generally, when the language of the statute is clear, we follow its direction without resorting to other methods of statutory interpretation. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003). However, statutes relating to the same subject or having the same general purpose, i.e., statutes that are in pari materia, "should be read in connection with, or should be construed with other related statutes, as though they constituted one law." Bauza, 199 Ariz. at 342, ¶ 14, 18 P.3d at 136 (quoting State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970)). Further, each word or phrase of a statute must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant. Guzman v. Guzman, 175 Ariz. 183, 187, 854 P.2d 1169, 1173 (App.1993).
*1034 ¶ 11 We begin by examining § 42-17153(B)(3), which provides that a tax lien "is prior and superior to all other liens and encumbrances on the property, except liens or encumbrances held by this state." In Bauza, we interpreted the first clause, in conjunction with § 42-18204(B),[2] applicable to judicial foreclosures of redemption rights, as establishing parity among private tax lienholders. Pinal Vista argues that we should similarly interpret the language "except liens or encumbrances held by this state" as establishing parity between the State and private lienholders. We disagree.
¶ 12 Arguably, the quoted language standing alone supports Pinal Vista's argument in favor of parity rather than superiority of tax liens held by the State. However, a "parity" interpretation is inconsistent with the etiology of the exception language, which can be traced to Steinfeld v. State, 37 Ariz. 389, 294 P. 834 (1930). In Steinfeld, the supreme court construed paragraph 4845 of the 1913 Civil Code, the remote predecessor to § 42-17153, as treating a privately held tax lien superior to a prior mortgage held by the state. The court based its holding on the last sentence of paragraph 4845, which provided that a tax lien "shall be prior and superior to all other liens and encumbrances upon the said property."[3] In response, the Legislature amended the last sentence to read: "The lien shall be prior and superior to all other liens and encumbrances upon the property, except liens or encumbrances held by the state of Arizona." 1931 Ariz. Sess. Laws, ch. 106, § 1. (Emphasis added.) The purpose of the amendment was to supercede Steinfeld and provide that state liens, of any type whatsoever, were superior toand not simply on an equal footing withtax liens held by private investors. State v. Martin, 59 Ariz. 438, 443, 130 P.2d 48, 50 (1942) (recognizing that the amendment "was a very definite and plain declaration by the legislature that mortgages held by the state were a lien prior and superior to a tax lien"); Shumway v. State, 63 Ariz. 400, 406, 163 P.2d 274, 276 (1945) (same). Moreover, under Arizona's statutory scheme for the collection of taxes, state tax liens, unlike state mortgages, have historically been accorded superior status vis-à-vis all other tax liens. See, e.g., Bd. of Supervisors of Yuma County v. Miners & Merchants Bank of Bisbee, 59 Ariz. 460, 470, 130 P.2d 43, 47 (1942) (upon issuance of tax deed to State, paragraph 4845 and related tax sale procedures "wiped out" previously existing tax lien arising from levy of special tax by county); City of Phoenix v. Elias, 64 Ariz. 95, 166 P.2d 589 (1946) (issuance of a tax deed to the State extinguished pre-existing City of Phoenix tax liens).
¶ 13 The Legislature's intent to treat state tax liens as superior to those held by private investors is clarified when one considers A.R.S. §§ 42-18261 to -18267 (1999) (Title 42, Chapter 18, Article 6.1), which govern conveyances to the State on failure to redeem. In such administrative proceedings, the county treasurer is required, before preparing a treasurer's deed, to conduct a limited title search sufficient to "identify all parties who have a legal or equitable interest in the property recorded with the county recorder," § 42-18263, and to provide notice to such persons by certified mail at least ninety days before the date of delivering the deed to the board of supervisors, § 42-18264. Then, if the tax lien is not redeemed before the date stated in the notice, § 42-18267 requires that the county treasurer
execute and deliver to the board of supervisors, acting on behalf of this state, a treasurer's deed conveying to the state of Arizona the real property that was assigned at the tax sale. On the delivery of *1035 the deed, the redemption rights of all persons terminate, whether or not they were named in the notice.
(Emphasis added.) The holder of a certificate of purchase has a legal or equitable interest in the property that may be recorded with the county recorder. See A.R.S. §§ 42-18117, -18151(A)(3) (1999). Thus, a tax lienholder may ensure receipt of a notice of a pending administrative foreclosure by recording its interest with the county recorder. In contrast, the judicial foreclosure proceeding at issue in Bauza did not require that notice be provided to holders of other tax liens, 199 Ariz. at 343, ¶ 20, 18 P.3d at 137 (citing § 42-18202 (1999)), a circumstance that "bolstered" the court's conclusion that foreclosure by one tax lienholder does not extinguish competing liens: "Given the super-priority accorded to tax lienholders, if the legislature had intended foreclosure by one tax lienholder to extinguish all competing liens, we believe the legislature would have included tax lienholders among those entitled to such notice." Id. Conversely, the notice requirement of §§ 42-18263 and 42-18264 lends further support to our conclusion that the transfer of real property to the State by issuance of a treasurer's tax deed extinguishes any privately held tax liens.
¶ 14 Pinal Vista's reliance on Bauza is further undercut because in an administrative foreclosure proceeding neither the State nor County stand in the same shoes as a private investor in tax lien certificates:
[T]he state, in taking title to property for non-payment of taxes, acts solely in aid of the taxing authorities in collecting taxes against the property and for that purpose takes title to the property in its governmental capacity and not as a proprietor.
Bigler v. Graham County, 128 Ariz. 474, 476, 626 P.2d 1106, 1108 (App.1981) (citation omitted). In that capacity, "[t]he State is authorized to accept title, not for the purpose of profiting therefrom but to take care of a temporary situation and to insure the payment by the owner of the taxes that are paid by all property owners." Hill v. Gila County, 56 Ariz. 317, 324, 107 P.2d 377, 379 (1940). See A.R.S. §§ 42-18301 to -18303 (1999) (providing for sale of land held by the state by tax deed with proceeds used to pay off back taxes). Taken as a whole, the statutory scheme benefits the public by providing an orderly means to transfer title to the state and return properties to productive, tax-paying status.
¶ 15 The contrary approach advocated by Pinal Vista would put the State in the curious positions of making private tax lien investments secure and of paying its own taxes by redeeming the liens. Not only would the Property escape taxation for the years covered by Pinal Vista's CP, but the State would have to pay a penalty for the exemption in the form of interest to Pinal Vista. As a result, investors would be encouraged to purchase tax liens beyond full cash value, wait for the State to take title, and receive sixteen percent interest on the guaranteed investment. See A.R.S. § 42-18053 (1999) (establishing interest on delinquent taxes "at the rate of sixteen per cent per year simple until paid"). Even assuming some ambiguity in the statutory scheme, the Legislature could not have intended such a result. Knight Transp., Inc. v. Ariz. Dep't of Transp., 203 Ariz. 447, 452, ¶ 22, 55 P.3d 790, 795 (App. 2002) (noting statutes must be given a sensible construction that accomplishes the legislative intent and avoids absurd results).[4]
II
¶ 16 Pinal Vista nonetheless argues that A.R.S. § 37-804 (2003) mandates that the State take title subject to the treasurer's deed. The statute provides:
A. If this state or any agency or instrumentality of this state acquires real or personal property, whether by purchase, exchange, condemnation, gift or otherwise, the entity acquiring the title to the property may require the *1036 owner of subject property to provide sufficient funds to pay to the county treasurer any taxes on the property that were unpaid as of the date of acquisition, including penalties and interest, prorated to reflect the area of the acquisition.
B. The lien for unpaid delinquent taxes, penalties and interest on property acquired by this state:
1. Is not abated, extinguished, discharged or merged in the title to the property.
2. Is enforceable in the same manner as other delinquent tax liens.
¶ 17 Subsection A empowers the government, when acquiring property, to demand that the owner or seller set aside "funds" to pay all taxes including penalties and interest due on the property. Clearly, this section has no application here. The owner had failed to pay real property taxes for more than five years. Statutes cannot be interpreted to require a futile act. See Campbell v. Superior Court, 105 Ariz. 252, 255, 462 P.2d 801, 804 (1969) (holding that there is a presumption that legislatures do not intend to act in a futile manner by including a provision that is not operative or that is inert or trivial). In this case, requiring the owner to pay the delinquent taxes would be futile.
¶ 18 Pinal Vista's argument fares no better under subsection B. That section provides that any taxes unpaid at acquisition survive and become a lien on the Property. Arizona follows a policy that the government, when acting in a purely governmental capacity, cannot be subjected to taxes. See Interlott Tech., Inc. v. Ariz. Dep't of Revenue, 205 Ariz. 452, 458, ¶ 36, 72 P.3d 1271, 1277 (App. 2003) (noting governmental agencies are subject to taxation unless they are exercising purely governmental functions).
¶ 19 When the government obtains property by foreclosing tax liens, it acts in a governmental capacity, not a proprietary capacity. If we interpret A.R.S. § 37-804 (2003) to apply to property acquired by the government only in its proprietary capacity, the dilemma of compelling the State to pay its own taxes as required by Pinal Vista's proposed interpretation of the statute does not exist. Instead, the statute would properly apply when either no prior liens purchased by private investors were at issue or the government acquired the property by means other than a tax lien foreclosure. In the latter instance, the lien would follow the property after the government sold it to a new owner, and the taxes would be paid. This interpretation leaves Title 42 intact and makes sense of § 37-804.[5]
¶ 20 In contrast, under Pinal Vista's interpretation either the government must pay the certificate of purchase holder for the value of its investment or the lien remains attached to the property, thereby decreasing its marketability and possibly delaying its return to tax-paying status.
¶ 21 Moreover, the legislative history surrounding the passage of § 37-804 demonstrates that its purpose was to correct the "adverse impact" of City of Eloy v. Pinal County, 158 Ariz. 198, 761 P.2d 1102 (App. 1988). In that case, this court held that preexisting *1037 tax liens were extinguished when a city obtained land under the Slum Clearance and Redevelopment Law, A.R.S. § 36-1471. Id. at 201, 761 P.2d at 1105. The Legislature was concerned that a taxpayer would "avoid paying due taxes by either selling or transferring the property to a municipality to extinguish the lien" and then leasing the property back from the City. Final Revised Fact Sheet for H.B. 2623 at 1 (Ariz. Sen.1998). To avoid this possibility, the law required the county board of supervisors to approve the abatement of tax liens attached to "property purchased by municipalities." Id. Therefore, the Legislature was preventing a private landowner from acting in concert with local government to avoid taxes; it did not intend to allow tax liens to survive a deed to the State acting in its tax collection capacity.
¶ 22 Pinal Vista counters that § 37-804 applies in cases of eminent domain, which by definition require the State to function in a governmental capacity. In such a case, however, the State acts for a specific public use or necessity and not because taxes have not been paid and no investor has stepped forward. More importantly, the statute expressly includes condemnation within its purview, but makes no reference to transfer of title following a lien foreclosure. Moreover, the statute is included under Title 37, not Title 42, thereby indicating that title to property is taken in a proprietary capacity.
¶ 23 Nonetheless, Pinal Vista argues that § 37-804 trumps Title 42, Article 6.1. It is fundamental that when two statutes deal with the same subject, the more specific statute controls. Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982). Whereas § 37-804 is a general statute concerning the acquisition of property by the State, the procedures in Article 6.1 are specific and deal with the transfer of title to the State through a treasurer's deed.[6]
¶ 24 Because we affirm the trial court's ruling on statutory grounds, we do not reach the State's argument that adoption of Pinal Vista's statutory approach would be inconsistent with Article 9, Sections 2(13) and 7 of the Arizona Constitution. See Goodman v. Samaritan Health Sys., 195 Ariz. 502, 505, ¶ 11, 990 P.2d 1061, 1064 (App.1999) ("It is sound judicial policy to avoid deciding a case on constitutional grounds if there are nonconstitutional grounds dispositive of the case.").
CONCLUSION
¶ 25 We affirm the trial court's summary judgment to the Defendants. In addition, we deny Pinal Vista's request for attorneys' fees.
CONCURRING: DONN KESSLER, Presiding Judge and SUSAN A. EHRLICH, Judge.
NOTES
[1] As in effect during the applicable time frame in Bauza and in this case, § 42-17153 provided in relevant part:
A. [A] tax that is levied on real or personal property is a lien on the assessed property.
B. The lien:
1. Attaches on January 1 of each year.
2. Is not satisfied or removed until one of the following occurs:
(a) The taxes, penalties, charges and interest are paid.
(b) Title to the property has finally vested in a purchaser under a sale for taxes.
(c) A certificate of removal and abatement has been issued pursuant to § 42-18353.
3. Is prior and superior to all other liens and encumbrances on the property, except liens or encumbrances held by this state.
The Legislature codified Bauza in 2001. See 2001 Ariz. Sess. Laws, ch. 242, § 1. As amended and renumbered, former subsection (B)(3) now provides that a tax lien "is prior and superior to all other liens and encumbrances on the property, except: (a) Liens or encumbrances held by this state; (b) Liens for taxes accruing in any other years." A.R.S. § 42-17153(C)(3) (Supp. 2003).
[2] Section 42-18204(B) provides: "After entering judgment the parties whose rights to redeem the tax lien are thereby foreclosed have no further legal or equitable right, title or interest in the property subject to the right of appeal and stay of execution as in other civil actions."
[3] Paragraph 4845 read in full:
Every tax levied under the provisions or authority of this act upon any real or personal property is hereby made a lien upon the property assessed, which lien shall attach on the first Monday in January in each year and shall not be satisfied or removed until such taxes, penalty, charges, and interest are all paid, or the property has absolutely vested in a purchaser under a sale for taxes. Said lien shall be prior and superior to all other liens and encumbrances upon the said property.
[4] Indeed, the Bauza court acknowledged that state tax liens are entitled to priority over those purchased by a private party.
Id. at 341, ¶ 13 n. 5, 18 P.3d at 135 n. 5 (citing Linville v. Cheney, 60 Ariz. 325, 137 P.2d 395 (1943) for proposition that "tax liens held by state were not affected by foreclosure of plaintiff's tax lien; statute gave express priority to state's liens over those bought by private party").
[5] Pinal Vista argues that Bigler somehow eliminates the distinction between the acquisition of property by the government in its proprietary and governmental capacity. As the legislative history demonstrates, this distinction survives the statute's enactment and justifies its existence.
Neither are we persuaded by Pinal Vista's reliance upon Hill. Hill, like Bauza, concerned two types of private investors and did not involve a foreclosure of tax liens by the State. Instead, Hill bought the liens and wanted to redeem them. Our supreme court stated:
The duty of the delinquent property to pay taxes does not cease upon a sale thereunder, whether it be to a private investor or to the state. Each year thereafter it is required to be assessed to the owner until title passes to a purchaser or his assignee, or to the state or its assignee....
Id. at 322, 107 P.2d at 379. Similarly, when tax certificates are foreclosed, all redemption rights terminate under A.R.S. § 42-18267 (1999).
Likewise, Christmas Copper Corp. v. Kennedy, 58 Ariz. 216, 217-18, 118 P.2d 1110, 1111 (1941), provides no support for Pinal Vista's arguments. There, the owner tendered an amount for redemption after the county advertised that the State had applied for a treasurer's deed. Pinal Vista and the Property owner also received notice and chose not to redeem. Unlike the appellant in Christmas Copper, Pinal Vista forfeited its property rights.
[6] Contrary to Pinal Vista's representation, Article 6.1 is not the "by-product of the Legislature's sunsetting of the administrative foreclosure mechanism for private investors." The provision Pinal Vista refers to is Article 6, the repeal of which will not take effect until January 1, 2006. In any event, the articles serve different functions. Article 6 provides a mechanism for private investors foreclosing tax liens; Article 6.1 addresses governmental lien foreclosure situations like this one.
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139 Cal.App.3d 195 (1983)
188 Cal. Rptr. 552
ORANGE COUNTY FOUNDATION FOR PRESERVATION OF PUBLIC PROPERTY et al., Plaintiffs and Appellants,
v.
IRVINE COMPANY et al., Defendants and Respondents; COUNTY OF ORANGE et al., Respondents.
Docket No. 24992.
Court of Appeals of California, Fourth District, Division One.
January 18, 1983.
*198 COUNSEL
Berry & Berry and Phillip S. Berry for Plaintiffs and Appellants.
George Deukmejian, Attorney General, N. Gregory Taylor, Assistant Attorney General, Peter H. Kaufman, Deputy Attorney General, Latham & Watkins, Joseph A. Wheelock, Jr., and Albert F. Shamash for Defendants and Respondents.
Adrian Kuyper, County Counsel, Arthur C. Wahlstedt, Assistant County Counsel, Terry C. Andrus, Deputy County Counsel, Michael H. Miller, City Attorney, and Robert H. Burnham, Assistant City Attorney, for Respondents.
OPINION
WORK, J.
In this case we hold public monies paid to compromise an invalid real property title claim, known to be baseless by the claimant, is not an expenditure for a public purpose, and constitutes a prohibited gift of public funds. Further, the constitutional bar to such "gifts" transcends the public policy favoring settlement of disputed claims, and permits the state to recoup such disbursements. Because we find the evidence discloses a triable issue of fact whether the Irvine Company's compromised title claims to certain islands were knowingly spurious, we reverse the summary judgment in its favor.
*199 Factual and Procedural Background
Claiming the State of California had made an unconstitutional gift (Cal. Const., art. XVI, § 6) and had wasted public monies (Code Civ. Proc., § 526a),[1] an association of taxpayers, the Orange County Foundation for Preservation of Public Property (Foundation) and others, sued the Irvine Company (Irvine) and the State of California (State) to set aside a settlement agreement resolving a dispute over title to three islands in upper Newport Bay (UNB) resulting in the payment of money to Irvine to clear the State's title to those properties. The Foundation alleged the islands were always tidelands and submerged lands protected by a public trust in which Irvine had no disputable interest.
Also sued was First American Title Insurance Company (First American) to recover under the policy it issued to the State in connection with the settlement agreement. First American's policy provided, if final judgment declared the disputed islands were always tidelands legally belonging to the State, First American would pay the State 90 percent of the settlement price. Coverage was for five years. The suit, filed within five years after the policy was issued, asked First American be required to pay that amount to the State under the policy.
Foundation also sought an injunction requiring the State Attorney General and Controller to recover the money allegedly owed to the State by Irvine and First American.
Finally, the County of Orange (County) and City of Newport Beach (City) were named by Foundation as "necessary and indispensable parties." The agreement which Foundation seeks to set aside provides for payment by Irvine to County and City of $1.65 million in taxes, and City and County were joint grantees of the three UNB islands.
The State demurred to the second amended complaint, claiming it stated no facts supporting a cause of action. These demurrers were sustained without leave to amend. City and County joined in the State's demurrer, and separately demurred on the ground Foundation's complaint sought no relief against them. These demurrers were also sustained without leave to amend. Irvine's and First American's motions for summary judgment were granted.
The Summary Judgment for Irvine
(1) One moving for summary judgment must show, by declarations or affidavits containing admissible facts, the claims or defenses of the adverse party *200 are entirely meritless and, lacking that showing, adverse parties need not demonstrate the validity of their claims or defenses by opposing documents. (Code Civ. Proc., § 437c; Rowland v. Christian (1968) 69 Cal.2d 108, 111 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)
Irvine claims its evidence shows Foundation cannot support its action under any theory. (2) It stresses the settlement of a good faith dispute between the State and a private party is an appropriate use of public funds, neither wasteful within the meaning of section 526a, nor a gift barred by article XVI, section 6, because the relinquishment of a colorable legal claim in return for settlement funds paid by the State is good consideration and accomplishes a valid public purpose. Although this is a correct statement of the law, it does not support the summary judgment for Irvine. The pleading alleges Irvine knew the three UNB islands in question were tidelands, and was aware it had no legal claim to them. If this allegation in Foundation's complaint is found true by the trier of fact, it will be sufficient to sustain a judgment in Foundation's favor against Irvine. "`[A] promise to compromise a claim utterly unfounded will not be regarded as a valuable consideration.' [Wharton on Contracts]." (City Street Improvement Co. v. Pearson (1919) 181 Cal. 640, 650 [185 P. 962, 20 A.L.R. 1317], overruled on other grounds in Hoffman v. City of Red Bluff (1965) 63 Cal.2d 584, 593-594 [47 Cal. Rptr. 553, 407 P.2d 857].) If Irvine knew the islands it was claiming in UNB were tidelands legally belonging to the State, its claim to title was in bad faith, and its relinquishment of that knowingly unfounded claim was inadequate consideration to support the State's obligation to pay money to Irvine.
Irvine argues public expenditures for a public purpose are not "gifts" within the meaning of article XVI, section 6, even though payment is made to a private party. This is correct, but there must be some real benefit to the State which constitutes the "public purpose" justifying the expenditure.
(3) "It is well settled that the primary question to be considered in determining whether an appropriation of public funds is to be considered a gift is whether the funds are to be used for a public or private purpose. If they are to be used for a public purpose, they are not a gift within the meaning of this constitutional prohibition. (County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281 [106 P.2d 11, 130 A.L.R. 1141].) `The benefit to the State from an expenditure for a "public purpose" is in the nature of consideration and the funds expended are therefore not a gift even though private persons are benefited therefrom.' (Id., at p. 281.)
"Thus, in order for payment under the contracts here involved to constitute an appropriation of public money in violation of article IX, section 8 [prohibiting the expenditure of state funds for the support of private schools], the payment *201 must be without adequate consideration." (California Teachers Assn. v. Board of Trustees (1978) 82 Cal. App.3d 249, 257 [146 Cal. Rptr. 850], italics added.)
In California Teachers Assn. the court, analogizing article IX, section 8 with article XVI, section 6, found the expenditure in that case was supported by adequate consideration i.e., the accomplishment of "a public purpose." However, our case presents this question: when is the consideration purportedly supporting the State's payment of funds so utterly lacking as to make the payment one which is, as a matter of law, not for a "public purpose," and therefore in violation of article XVI, section 6?
(4) Compromise of a wholly invalid claim is inadequate consideration to support a contract. (Union Collection Co. v. Buckman (1907) 150 Cal. 159, 164 [88 P. 708]; City Street Imp. Co. v. Pearson, supra, 181 Cal. 640, 649.) (2b) We hold that, when state funds are expended pursuant to a settlement agreement in exchange for the relinquishment of such a claim, no "public purpose" is achieved. Such an expenditure violates the gift clause.
Irvine's motion for summary judgment did not directly address the issue whether Irvine knew its claim to title in the UNB islands was invalid. Irvine thus did not meet its burden of proof to show no triable issue of fact (Murphy v. Allstate Ins. Co. (1978) 83 Cal. App.3d 38, 41 [147 Cal. Rptr. 565]). Irvine could not have met its burden even with a flat denial of Foundation's allegation because this would have left a disputed, triable issue. Since Irvine's knowledge of the validity of its claim could not be resolved by the pretrial papers before the trial court, it was error to grant Irvine's summary judgment motion.
The Summary Judgment for First American
First American relies on section 339 to support its summary judgment. That statute requires an action be brought within two years if "founded upon a contract, obligation or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guarantee of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder." (Italics added.)
The part of the policy issued by First American and sued upon here, rather than guaranteeing the vendor can convey good title, guarantees the vendee did not already have good title. The parties argue at length whether this is "title insurance" within the meaning of section 339. (5) We need not determine that issue here, because even if the limitation of section 339 applies, the action was *202 brought within the period prescribed by the statute. There could not be any loss or damage recoverable against First American on the policy unless a court first found the UNB islands were tidelands. Thus, it is only when such a determination is made the statute of limitations begins to run. There has not yet been such a finding.
In the alternative, First American argues summary judgment was proper because no cause of action has yet arisen under which liability may be predicated under the policy terms. It relies on the specific language contained in indorsement C, as follows:
"6(a) The liability of the Company under this policy is as follows:
"(i) In the event there is a final judgment by a court of competent jurisdiction that the lands described as Parcels 2, 3 and 4 in Schedule C are sovereign tide or submerged lands and such lands are either held by the insured in its sovereign capacity ... then the liability of the Company shall be 90% of the full amount of this policy. In the event a portion of those lands ... are so held ..., then the liability of the Company shall be a proportionate amount of the total liability under this paragraph...."
However, there appears to be no reason why First American may not be made a party to this lawsuit which itself is asking for a declaratory "final" judgment upon which its liability is based.[2]
Demurrers by the State, the Attorney General and the Controller
(6) In addition to seeking refund to the State of money paid for the three UNB islands, Foundation sought an injunction compelling the State, and its officers, to seek recovery of the money the State allegedly gave away for no consideration, and/or recovery on the policy issued by First American.
In its demurring papers, the State relied largely on statutes of limitation. Foundation correctly states one of these, section 337, is inapplicable to its equitable action since it is not founded on written contract, but upon the statutory duties of these defendants.
The other, section 338, provides a three-year limitation for "[a]n action upon a liability created by statute...." Foundation argues persuasively its action is *203 based on a continuous statutory duty imposed on these defendants so, assuming arguendo section 338 applies to this action, the limitation period cannot have run. The defendants' statutory obligations exist now just as they existed at any time since the allegedly illegal payment of State funds.
On this appeal, the State chooses not to rely on a statute of limitations. Instead, it argues Foundation cannot require it to prosecute a suit against Irvine and First American, because only by proving the case against those defendants can Foundation prove the State's duty to bring suit. This is obviously true, so Foundation's action against the State is pointless, since this action can only succeed by a favorable conclusion of the lawsuit Foundation wants the State to prosecute. Foundation's appropriate remedy is to proceed as private attorney general, and it is not prejudiced by sustaining the demurrer in question because, if it obtains judgment against either Irvine or First American on behalf of the State, the State is duty bound to attempt to enforce the judgment.
Demurrers of City and County
Foundation named City and County in its complaint as "necessary and indispensable parties." City and County apparently felt otherwise and, in addition to joining in the State's demurrer, demurred on the ground no relief was sought against them. Since City and County choose not to be parties in this lawsuit, we see no reason to disturb the trial court's decision as to them.
Disposition
The demurrers granted to City, County, the State, the Attorney General and the Controller are affirmed. The summary judgments for Irvine and First American are reversed.
Brown (Gerald), P.J., and Staniforth, J., concurred.
A petition for a rehearing was denied February 9, 1983.
NOTES
[1] All statutory references are to the Code of Civil Procedure unless otherwise specified.
[2] The insurance contract provisions are susceptible to an interpretation its coverage term lapses unless final judgment is obtained by some entity within the five-year period. If so, the time has expired. However, First American did not raise this issue below, and we are obligated to review the summary judgments based on the issues presented to the trial court. (Rowland v. Christian, supra, 69 Cal.2d 108, 111.)
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6618
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMOND ERNEST BROWN, a/k/a Bae Bae, a/k/a Goon, a/k/a Goonie,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Rebecca Beach Smith, Senior District Judge. (4:09-cr-00081-RBS-FBS-
15; 4:16-cv-00005-RBS)
Submitted: October 24, 2019 Decided: December 10, 2019
Before FLOYD and RUSHING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Raymond Ernest Brown, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Ernest Brown seeks to appeal the district court’s order denying relief on
his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2012). A
certificate of appealability will not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief
on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists
would find that the district court’s assessment of the constitutional claims is debatable or
wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a debatable claim of the denial of
a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Brown has not made
the requisite showing. Accordingly, we remove this appeal from abeyance, deny a
certificate of appealability and dismiss the appeal. * We dispense with oral argument
*
After the district court entered its final order, the Supreme Court decided United
States v. Davis, 139 S. Ct. 2319 (2019). In Davis, the Supreme Court held that the residual
clause of the definition of a crime of violence in 18 U.S.C. § 924(c)(3)(B) (2012) is
unconstitutionally vague. Davis, 139 S. Ct. at 2336. We recently held that Hobbs Act
robbery, 18 U.S.C. § 1951(a) (2012), qualifies as a crime of violence under
§ 924(c)(3)(A)’s force clause. See United States v. Mathis, 932 F.3d 242, 266 (4th Cir.
2019).
2
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
DISMISSED
3
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554 N.W.2d 413 (1996)
S.B. FOOT TANNING COMPANY, et al., Respondents,
v.
Leo PIOTROWSKI, et al., Appellants.
No. C4-96-758.
Court of Appeals of Minnesota.
October 1, 1996.
Review Denied December 17, 1996.
*415 Jo Ann Strauss, James L. Haigh, Cousineau, McGuire, & Anderson, Chartered, Minneapolis, for Respondents.
Victor A. Kreuziger, Edina, for Appellants.
Considered and decided by HUSPENI, P.J., and RANDALL and AMUNDSON, JJ.
OPINION
RANDALL, Judge.
The trial court denied appellants' motion for a new trial finding that respondents had no duty to cooperate with appellants in preparing or presenting their claim against a third-party tortfeasor and that respondents had not waived their right to subrogation. The trial court also determined appellants' requested attorney fees to be unreasonable. We affirm in part, reverse in part, and remand to consider more appropriate attorney fees for appellant.
FACTS
In March 1989, while employed by respondent S.B. Foot Tanning Company (S.B. Foot Company), appellant Leo Piotrowski was injured using a lift table manufactured by Southworth Products Corporation (Southworth). As a result, S.B. Foot Company, through its insurer, respondent St. Paul Fire and Marine Insurance Company (St. Paul Fire), paid to and on behalf of Piotrowski $118,392.51 in workers' compensation benefits. In July 1990, the parties entered into a stipulated settlement of Piotrowski's workers' compensation claims. The settlement was approved by a workers' compensation judge and provided that, except for future medicals, it was to be a full, final, and complete satisfaction of all claims by Piotrowski. In addition, the stipulation provided that both S.B. Foot Company and St. Paul Fire "retain any rights of subrogation which they may have under the law and do not waive their rights to subrogation."
In May 1990, appellants retained Victor Kreuziger to represent them in a lawsuit against Southworth. The employment agreement signed by appellants provided, inter alia, that if the suit were successful, Kreuziger would receive a contingency fee of one-third the amount of any recovery, the costs of trial or settlement were to be deducted from the clients' share, and if appellants discharged Kreuziger prior to the conclusion of the case, he would receive $120 per hour for the time spent on the case. The agreement also provided that if the client decided to appeal any decision of the court, appellants would pay the out-of-pocket expenses and that "the fee for such appeal will be agreed upon by the attorney and the client prior to appeal."
Although appellants' action was initially brought in state court, Southworth removed the matter to federal district court. In October 1992, a jury returned a verdict in favor of appellants and against Southworth in the amount of $469,218.98. The jury found Leo Piotrowski to be 10 percent at fault, S.B. Foot Company 68 percent at fault, and Southworth to be 22 percent at fault. Applying Minnesota's comparative fault statute, the federal district court entered judgment in the amount of $422,297, plus interest, for Leo Piotrowski and $31,500 for his wife, appellant Katherine Piotrowski.
Southworth appealed the verdict and the Eighth Circuit Court of Appeals affirmed the jury's verdict. Southworth paid the judgment amount into federal district court, and the court released the proceeds to appellants' attorney in December 1994. S.B. Foot Company then filed a state court action in Hennepin County District Court, asserting its subrogation right to recover benefits paid or *416 payable under the workers' compensation statute.
In January 1995, appellant's attorney disbursed the award except for what he considered to be respondents' subrogation interest, placing this amount in his trust account. S.B. Foot Company then brought a motion requesting the court to order appellants to set aside $79,000 in trust pending an equitable distribution. Appellants' attorney informed the court that he had disbursed the funds and was holding what he considered to be respondents' subrogation interest in his trust account. The trial court ordered appellants' attorney to continue to retain that amount in his trust account.
The following figures were submitted to the Department of Labor and Industry by appellants' attorney:
1. The amount of recovery: $422,297.00
2. The cost of collection, including
attorney fees
and out-of-pocket expenses: $232,679.00
3. The amount of workers'
compensation benefits
paid: $118,392.51
On January 21, 1996, appellants filed a motion for summary judgment, arguing that respondents had abandoned their subrogation interest in preference to protecting against a possible contribution claim by Southworth. Appellants' motion was based on a letter written by respondents' attorney dated July 7, 1994, that states in part:
[Southworth's attorney] had indicated to me that if Mr. Piotrowski collects anything on the judgment against Southworth, a contribution claim will be brought against S.B. Foot. Under the circumstances, we are not in a position to assist you in attempting to collect that judgment.
During the pre-trial conference, appellants waived a jury trial and agreed that all remaining issues were to be decided by the court. The trial court also ruled that appellants' attorney would not be allowed to testify as to his fees in the action against Southworth, but that he would be allowed to submit an affidavit on the issue.
At trial, respondents called Mr. James Dunn as an expert witness. Dunn testified to the reasonableness of the collection costs, the employment agreement between appellants and their attorney relative to other such agreements in the legal community, and to the calculations made pursuant to the workers' compensation statute. Over respondents' objection, the trial court allowed appellants' attorney to submit an affidavit regarding his fees in the action against Southworth.
The trial court denied appellants' summary judgment motion and found appellants' costs of collection, including attorney fees, to be unreasonable. The trial court denied appellants' post-trial motions for amended findings or a new trial. The trial court did, however, issue amended findings of fact, conclusions of law, and an order. This appeal follows.
ISSUES
1. Does an employer/insurer have a duty to cooperate with an employee in the employee's efforts to prepare and present a claim against a third-party tortfeasor?
2. Did respondents waive or abandon their subrogation interests?
3. Did the trial court err in calculating the employer's future credit pursuant Minn.Stat. § 176.061, subd. 6(d)?
4. Did the trial court properly conclude that appellants' requested attorney fees were unreasonable?
5. Did the trial court err in awarding prejudgment interest?
ANALYSIS
On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). On appeal, this court must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).
A trial court's findings of fact will not be set aside unless clearly erroneous and due regard shall be given to the trial court's *417 opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Further, this court "will only reverse a trial court's findings of fact if, upon review of the entire evidence, it is left with the definite and firm conviction that a mistake has been made." In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn.App.1993), review denied (Minn. Aug. 16, 1993) (citation omitted).
The decision to grant a new trial lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn.1990). Where the trial court exercises no discretion, but instead, bases its order on an error of law, this court's review is de novo. Id.
I.
Appellants argue that an employer/insurer has a duty to cooperate with an employee in the employee's efforts to prepare and present his claim against a third-party tortfeasor. Appellants maintain that where an employer/insurer has a vested interest in the outcome of the employee's legal action, it has a clear duty to cooperate with the employee whose success ultimately determines the employer/insurer's subrogation recovery. Appellants contend that a breach of this duty results in an employer/insurer surrendering all, or part, of its subrogation interest against the employee. We disagree.
Appellants rely on a line of cases discussing the standard by which an insured satisfies an automobile indemnity policy's cooperation clause in the insurer's efforts to defend the insured on a third-party claim. See, e.g., Caron v. Farmers Ins. Exch., 252 Minn. 247, 256, 90 N.W.2d 86, 92 (1958) (requiring insured to stand "upright at all times as an honest man"); Annis v. Annis, 250 Minn. 256, 258, 84 N.W.2d 256, 259 (1957) (insured must report material facts as he remembers and reasonably believes them to be). Appellants maintain this duty to cooperate also applies to the insurer when it is the insured bringing suit against the third-party tortfeasor.
While appellant raises a compelling argument, the cases cited by appellant are distinguishable by the fact that here there is no cooperation clause in place between the parties. These cases simply hold that an insured satisfies the requirements of the co-operation clause by telling the truth as he in good faith or reasonably believes it to be. Caron, 252 Minn. at 256, 90 N.W.2d at 92. No legal authority exists establishing a duty on the part of an employer/insurer to cooperate with an employee in presenting a claim against a third party tortfeasor. To the contrary, the Minnesota Supreme Court has recognized that while the workers' compensation statute "creates an incentive for the compensation carrier, in the ordinary case, to assist the employee * * * it does not impose upon the employer any duty to inform the employee of his rights." Olson v. Horton, 258 N.W.2d 610, 614 (Minn.1977). The logical extension of this principle is that, absent an agreement to the contrary, an employer/insurer, while it may have an incentive to do so, does not have a legal duty to cooperate with the employee in the employee's efforts to bring suit against a third-party tortfeasor. Accordingly, the trial court did not err as a matter of law in finding that S.B. Foot Company and St. Paul Fire had no duty to cooperate with appellants in preparing and presenting their claim against Southworth.
II.
Appellants argue that the trial court erred when it concluded the S.B. Foot Company and St. Paul Fire did not abandon or waive their subrogation claim.
Generally, "abandonment `means the act of intentionally relinquishing a known right absolutely and without reference to any particular person or purpose.'" Erickson v. Sinykin, 223 Minn. 232, 239, 26 N.W.2d 172, 176 (1947) (citation omitted). Abandonment must be clearly expressed by the acts and conduct of the parties sufficient to be positive and unequivocal. See Desnick v. Mast, 311 Minn. 356, 365, 249 N.W.2d 878, 884 (1976) (mutual abandonment must be clearly expressed and the acts of the parties must be positive and unequivocal).
*418 Appellants point to the letter dated July 7, 1994, from S.B. Foot Company's attorney stating that it was unable to assist them in collecting the judgment against Southworth because Southworth would bring a contribution claim against S.B. Foot Company if appellants collected on the judgment. Appellants maintain that respondent abandoned or waived their subrogation interest by failing to assist in collecting the judgment and choosing to protect against a possible Lambertson[1] claim from Southworth. However, appellants offer no legal support for this position and from respondents' actions no such conclusion is warranted. Simply stated, there is no authority for the proposition that because an employer/insurer is protecting against a Lambertson claim, it has waived or abandoned its right to subrogation.
Here, the letter standing alone does not show a clear expression by respondents to unequivocally relinquish their right to subrogation. The letter simply states that under the circumstances S.B. Foot Company was unable to assist appellants in collecting the judgment. It makes no mention that they were abandoning or waiving their right to subrogation under Minn.Stat. § 176.061, subd. 6 (1994). We also note that the stipulated settlement of Leo Piotrowski's workers' compensation claims specifically provides that respondents retained and did not waive their right to any subrogation interest they may have under the law. Respondents have consistently sought to preserve their rights to any subrogation interest. The trial court properly concluded that respondents did not abandon or waive their right to subrogation.
III.
Appellants next argue that the trial court erred in interpreting the future credit provision of Minn.Stat. § 176.061, subd. 6(d), by not limiting it to a maximum of $40,000, the amount the jury specifically determined to be Leo Piotrowski's future medical costs. After applying the statutory formula, the trial court determined respondents' future credit to be $73,252.
The workers' compensation statute allows an employee and his employer/insurer to settle out all claims and obligations regarding such items as the employee's lost wages, past medical expenses, and disability. See Minn.Stat. § 176.521 (1994) (settlement of claims). However, contrary to appellants' assertion, the workers' compensation statute does not prohibit the compromise and settlement of future medical expenses, and appellant fails to cite any legal authority to support this proposition.
Appellants claim respondents should not be entitled to the full balance for future credit under Minn.Stat. § 176.061, subd. 6(d), because in light of the parties' settlement, the only future workers' compensation expense for which respondents will be liable is future medical costs. Appellants argue that because the jury determined Leo Piotrowski's future medicals to be $40,000, this is the limit of respondents' future workers' compensation exposure.
Here, in determining respondents' future credit, the trial court applied the statutory formula set forth in Minn.Stat. § 176.061, subd. 6. Under the statutory guidelines, the trial court is to first subtract the reasonable costs of collection, including attorney fees, from the total verdict received by the injured employee. Minn.Stat. § 176.061, subd. 6(a). From this amount, one-third is immediately payable to the employee irrespective of any subrogation interest. Minn.Stat. § 176.061, subd. 6(b) The employer is then reimbursed in an amount equal to all workers' compensation benefits paid less the product of the cost deducted for costs of collection divided by the total proceeds received by the employee multiplied by all benefits paid by the employer to the employee. Minn.Stat. § 176. 061, subd. 6(c). From this, the employer must pay to the employee a proportionate share of the costs of recovery without any future credit. The balance left over is to be paid to the employee with that amount as a credit to any benefits the employer/insurer is obligated to *419 pay, but has not paid or is obligated to pay in the future. Minn.Stat. § 176.061, subd. 6(d).
As respondents note, appellants fail to cite any relevant legal authority to support their position that an employer's future credit is limited to the future medical expenses as determined by a jury in a third-party action. It is settled that where an employee's injuries are within the workers' compensation statute, the rights and remedies afforded the employee, employer, and others who may have any right of action on account of the employee's injury are governed exclusively by the workers' compensation statute to the exclusion of all other remedies. Hartman v. Cold Spring Granite Co., 247 Minn. 515, 519, 77 N.W.2d 651, 654 (1956). Having applied the statutory guidelines to arrive at respondents' future credit, we cannot say the trial court erred in refusing to reduce the amount of respondents' future credit based on the jury's verdict.
IV.
Appellants argue that respondents lacked standing to challenge the reasonableness of his attorney fees and that the trial court erred as matter of law in concluding his attorney fees were unreasonable.
Appellants' argument regarding standing is without merit. In the context of the reasonableness of attorney fees under Minn.Stat. § 176.061, subd. 6, an employer has the right to be heard on the issue. Lang v. William Bros. Boiler & Mfg. Co., 250 Minn. 521, 533, 85 N.W.2d 412, 420 (1957); see also Schmidt v. Apple Valley Health Care Ctr., 460 N.W.2d 349, 354 (Minn.App. 1990) (standing exists where a party will suffer an injury in fact), review denied (Minn. Oct. 25, 1990). Otherwise, an employee and his attorney could effectively deny the employer its share in the proceeds from a third-party action by simply asserting that the attorney fees were agreed to and were reasonable.
More importantly, appellant argues the trial court erred in finding his requested attorney fees to be unreasonable under Minn. Stat. § 176.061, subd. 6(a). We agree. A determination of what are reasonable attorney fees under Minn.Stat. § 176.061, subd. 6(a), as a general statement, are within the discretion of the trial court, not the employee's attorney. Lang, 250 Minn. at 533, 85 N.W.2d at 421. But the trial court has to recognize and reward the remarkable efforts by Kreuziger in this case on behalf of his clients, the Piotrowskis. Kreuziger's efforts were monumental in preparing the case, going through difficult discovery, fighting off his own workers' compensation carrier who had another agenda, working hard to preserve the win on appeal, and then the daunting task of collecting the judgment from an almost defunct defendant for his clients. The Piotrowskis recognize all that Kreuziger did for them, and not only do they not disapprove of his request for attorney fees over and above a flat one-third, they actively support his present request for what amounts to 54 percent of the amount recovered plus a few more reasonable costs and disbursements.
First, the trial court erred in basically looking only at the initial written agreement between appellants and their attorney, Victor Kreuziger. That was the retainer agreement dated May 7, 1990, calling for a contingency fee of one-third of any recovery. The trial court found that there had been no modification to this agreement. Kreuziger submitted to the Minnesota Department of Labor and Industry a request for 54 percent of the jury award for the combined costs of collection for trial and appeal, and then an additional 1.10 percent of the jury award for reasonable costs. The trial court concluded that as a percentage of the total verdict, 55.10 percent was unreasonable.
During trial, James Dunn testified as respondents' expert on the issue of reasonable attorney fees. Dunn testified that based on his 29 years of experience in this area of law (products liability) and based on the custom and practice in the profession, the average fee, including costs, for recovery in such cases is 37 percent. Dunn stated that he had never heard of a fee approaching 55 percent and considered such a fee "absolutely unreasonable," whether agreed to in the beginning, the middle, or after the verdict. He also *420 concluded the time spent on the case by appellants' attorney was unreasonable. In Dunn's opinion, a one-third contingency fee was reasonable in a case such as appellants'. However, according to Kreuziger's undisputed affidavit, the original retainer agreement was amended by letter once on March 4, 1993, to provide for hourly fees to oppose respondents' appeal to the Eighth Circuit Court of Appeals, and then again on July 18, 1994, to provide for hourly fees in his efforts to collect the judgment, after preserving the win on appeal. After preserving the win on appeal, there was no insurance company ready and willing to extend a check. Kreuziger and the Piotrowskis had to continue to fight to get their money. Kreuziger agreed to waive his fees if appellants were unsuccessful in their efforts. Kreuziger's affidavit detailed the time spent on the case, the responsibilities assumed, the nature and difficulties of the propositions involved, the financial abilities of the clients, and the difficulties involved with the appeal and in the collection.
Also, even the original fee agreement entered into between Kreuziger and the Piotrowskis, which the trial court purported to rely on, provided that Kreuziger would be entitled to more than a straight one-third contingency fee, if his clients, the Piotrowskis, requested him to file an appeal. Although the agreement did not happen to cover what the additional fees would be if the Piotrowskis were successful, and the other side appealed, we take judicial notice that defending an appeal (which you must do or risk losing by default) can be as much work as appealing. In recognition of this fact, the Piotrowskis and Kreuziger twice amended their original employment agreement to provide for additional hourly fees to oppose the appeal and collect the judgment. Kreuziger successfully fought respondents' appeal. The spirit of his fee agreement with the Piotrowskis easily lends itself to the only commonsense interpretation, which is that if the Piotrowskis were willing to pay an additional fee of more than one-third if they wanted to appeal, they are willing to pay something more than the contingent fee if they have to fight the other side's appeal. The Piotrowskis are in complete accord with this.
Most importantly, Kreuziger's lengthy affidavit went unrefuted. In his affidavit, Kreuziger details, among other things, how difficult the appeal was, how he had to chase the third-party tortfeasor in three different states, and how he received no cooperation from S.B. Foot Company because they preferred to have no subrogation claim, rather than expose themselves to a potential Lambertson claim from Southworth. Respondents concede that Kreuziger's clients, the Piotrowskis, support his claim for attorney fees. Had the Piotrowskis come into court and opposed his request for attorney fees of 55 percent of the recovery, this may have been a different story. They did not.
Here, the record easily supports the conclusion that attorney fees, plus costs and disbursements, in addition to 33-1/3 percent are proper here because Kreuziger succeeded on appeal and then succeeded on a most difficult collection. Accordingly, we reverse the trial court's limitation of 33-1/3 percent and remand to the trial court to reconsider more appropriate attorney fees.
V.
Lastly, appellants argue the trial court erred in awarding prejudgment interest. The trial court's award of prejudgment interest is governed by Minn.Stat. § 549.09 (1994). As such, it is a question of law reviewed de novo by this court. Sorenson v. St. Paul Ramsey Medical Ctr., 457 N.W.2d 188, 190 (Minn.1990) (construction of statute is question of law reviewed de novo).
Generally, Minnesota law allows a trial court to award prejudgment interest in the case of a liquidated claim or where the amount of damages is ascertainable by computation. Gand v. Jay Bros., Inc., 367 N.W.2d 645, 647 (Minn.App.1985).
Appellants argue that pursuant to Minn. Stat. § 549.09, subd. 1(b)(1), prejudgment interest is not allowable in the present case. Section 549.09 provides, in part:
Except as otherwise provided by contract or allowed by law, preverdict, preaward, or prereport interest shall not be awarded on the following:
*421 (1) judgments, awards, or benefits in workers' compensation cases, but not including third-party actions;
Although the underlying action in this case is appellants' suit against a third-party tortfeasor, respondents' action to collect its subrogation interest was brought pursuant to the workers' compensation statute. See Minn.Stat. § 176.061, subd. 3 (where an employee receives benefits from the employer the employer is subrogated to the right of the employee to recover damages against the other party). Thus, Minn.Stat. § 549.09, subd. 1(b)(1), applies to prohibit an award of prejudgment interest in this case. We reverse the trial court's decision awarding prejudgment interest.
DECISION
Respondents had no duty to cooperate with appellants in their efforts to prepare and bring a claim against Southworth. Respondents did not abandon or waive it rights to subrogation simply because they chose to protect against a potential Lambertson claim. We conclude the trial court properly applied Minn.Stat. § 176.061, subd. 6, and did not err when it refused to limit respondents' future credit under Minn.Stat. § 176.061, subd.6(d), to the amount of future medical costs as determined by the jury.
In light of the difficulties associated with preparing this case, going through trial, successfully defending the appeal, and the difficulty in collecting on the judgement, the record does not support the trial court's determination that appellants' attorney is limited to a straight one-third contingency fee. We remand to the trial court to reconsider more appropriate attorney fees and costs for appellants' attorney.
Because respondents' action to collect its subrogation interest was brought pursuant to the workers' compensation statute, the trial court erred in awarding respondents' prejudgment interest. Accordingly, we reverse on this issue.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] Under a Lambertson claim, a third-party tortfeasor has a limited right to contribution from an at-fault employer up to the amount the employer is obligated to pay the employee in workers' compensation benefits. Lambertson v. Cincinnati Corp., 312 Minn. 114, 130, 257 N.W.2d 679, 689 (1977).
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 16 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
KENNEDY DENETCLAW,
Plaintiff-Appellant,
No. 98-2152
v. (D.C. No. CIV-98-75)
(Dist. New Mex.)
UNITED STATES OF AMERICA,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
Kennedy Denetclaw was convicted of assault with a dangerous weapon,
assault resulting in serious bodily injury, and maiming. The conviction was
affirmed. See United States v. Denetclaw, 96 F.3d 454 (10th Cir. 1996). Relying
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
on a separate concurrence in our opinion in Denetclaw, Mr. Denetclaw contends
in this action under 28 U.S.C. § 2255 that his Sixth Amendment right to effective
assistance of counsel was violated when his attorney in the criminal action did not
properly object to the admission of his tribal court guilty plea, which was used to
impeach his credibility. The district court held that Mr. Denetclaw’s Sixth
Amendment rights were not violated, granted a Certificate of Appealability, and
denied Mr. Denetclaw’s motion to proceed in forma pauperis on appeal. We grant
ifp status and affirm.
Mr. Denetclaw’s section 2255 petition was referred to a magistrate judge
who wrote a careful analysis explaining why Mr. Denetclaw’s right to effective
assistance of counsel was not violated under the standards set out in Strickland v.
Washington, 466 U.S. 668 (1984). The district court adopted that analysis.
Because we agree substantially with the magistrate judge’s Recommended
Disposition, we hold that Mr. Denetclaw received effective assistance of counsel
in his criminal trial and appeal.
The judgment of the district court denying Mr. Denetclaw’s section 2255
petition is AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
-2-
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Case: 17-50909 Document: 00514538336 Page: 1 Date Filed: 07/02/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50909
Fifth Circuit
FILED
Summary Calendar July 2, 2018
Lyle W. Cayce
JENNIFER JORRIE, Clerk
Plaintiff–Appellant,
v.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as
successor-in-interest to all permitted successors and assigns of JP Morgan
Chase Bank, National Association, as Trustee for Specialty Underwriting and
Residential Finance Trust Mortgage Loan Asset-Backed Certificates Series
2005-BC2,
Defendant–Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:16-CV-490
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Jennifer Jorrie bought a home in 2005 after executing a promissory note
and deed of trust (collectively, the Note). Four years later, she stopped making
payments on the Note. The Note was accelerated in 2009, and the Bank of
New York Mellon Trust Company (the Bank) made its first of many attempts
* 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: 17-50909 Document: 00514538336 Page: 2 Date Filed: 07/02/2018
No. 17-50909
to sell the home at a foreclosure sale. Jorrie prevented these attempts by filing
numerous lawsuits, obtaining numerous temporary restraining orders (TROs)
against the Bank, and petitioning for bankruptcy several times. The Bank
rescinded its first acceleration in March 2014, but accelerated the Note again
in November 2015 as Jorrie continued to default. Jorrie then brought this
action and obtained another TRO in December 2015. Relevant to this appeal,
Jorrie’s lawsuit included a quiet title claim premised on the argument that
Texas’s four-year statute of limitations had rendered the Bank’s lien
unenforceable. In a summary judgment ruling, the district court rejected
Jorrie’s argument that her pendent bankruptcy petition automatically stayed
district court proceedings and ruled for the Bank on the quiet title claim,
concluding that the limitations period had not expired. Jorrie appealed. We
affirm.
I
Jennifer Jorrie and her husband James Jorrie bought a home in San
Antonio, Texas. Jorrie executed a promissory note and deed of trust on
January 7, 2005 for $193,100. Through a series of assignments, the Note was
ultimately assigned to the Bank on June 17, 2009.
Jorrie stopped making payments on the Note in 2009. The Note was
accelerated on June 8, 2009, and the Bank soon made its first of several
attempts to sell the home in a foreclosure sale. Jorrie stymied the Bank’s first
three attempts by filing lawsuits the day before each of the scheduled
foreclosures and obtaining ex parte TROs that enjoined the planned foreclosure
sales. She dismissed those lawsuits with prejudice the day before each
temporary injunction hearing.
A fourth foreclosure was halted when Jorrie filed a bankruptcy petition
on August 3, 2010 (the 2010 Bankruptcy). An automatic stay issued that
prevented the Bank from foreclosing on Jorrie’s home for the duration of the
2
Case: 17-50909 Document: 00514538336 Page: 3 Date Filed: 07/02/2018
No. 17-50909
2010 Bankruptcy. The bankruptcy court dismissed the petition 85 days later,
on October 27, 2010.
The Bank’s fifth foreclosure resulted in Jorrie’s filing a fourth lawsuit
and obtaining a fourth ex parte TRO. At the temporary injunction hearing on
July 19, 2011, the district court entered an “Agreed Order” instead of granting
a temporary injunction. The Agreed Order provided that (1) Jorrie would pay
the Bank $10,000 within ten days; (2) she would reinstate or pay off the Note
before a September 2011 foreclosure sale; (3) the Bank would be free to conduct
a foreclosure sale in September 2011 or later; and (4) if Jorrie failed to make
the $10,000 payment on time or reinstate or pay off the Note, the case would
be dismissed.
Though Jorrie did not reinstate or pay off the Note by the end of
September 2011, the lawsuit was not dismissed. Jorrie instead applied for a
temporary injunction to prevent the Bank from foreclosing on her home while
she pursued her lawsuit. The state court issued an injunction (the 2011
Temporary Injunction) on October 4, 2011, ordering that the Bank be
“prevent[ed] . . . from foreclosing on” Jorrie’s home. The court also ordered
that Jorrie deposit $44,400 into the court registry and make a monthly
payment of $1,700 to the court registry during the pendency of her lawsuit.
Jorrie failed to make these payments. The state court dismissed her lawsuit
on April 30, 2012, thereby lifting the 2011 Temporary Injunction 208 days after
its entry.
The Bank attempted foreclosure a sixth time. On the day of the
foreclosure sale, August, 7, 2012, Jorrie filed a fifth lawsuit and obtained her
fifth ex parte TRO. The state court later dismissed this lawsuit for want of
prosecution.
Despite Jorrie’s continued nonpayment, the Bank mailed to Jorrie a
Notice of Rescission of Loan Maturity (the Rescission Notice) on March 27,
3
Case: 17-50909 Document: 00514538336 Page: 4 Date Filed: 07/02/2018
No. 17-50909
2014. The Rescission Notice purported to “rescind[] the [a]cceleration of the
debt and maturity of the Note” and to place the Note “in accordance with [its]
original terms and conditions, as though no acceleration took place.”
Jorrie filed a second bankruptcy petition on April 1, 2014. This petition
was dismissed on August 29, 2014.
Meanwhile, Jorrie remained in default. The Bank sent Jorrie a notice of
default on November 17, 2014 and explained that it would accelerate the Note
again if Jorrie did not cure the default. When she did not cure the default, the
Bank sent a notice of acceleration on November 19, 2015. This notice explained
that the Bank had accelerated the Note and would sell the home at a
foreclosure sale on January 5, 2016.
Once more, Jorrie delayed foreclosure by filing the present lawsuit on
December 30, 2015, and obtaining another ex parte TRO the next day. Of her
several claims, only the quiet title claim is relevant to this appeal. She
contended that the Bank’s lien on her property is unenforceable under Texas’s
four-year limitations period for enforcing real property liens. The Bank
removed the case to federal court and the parties filed cross-motions for
summary judgment.
While those motions were pending, Jorrie filed a third bankruptcy
petition in April 2017. The bankruptcy court quickly dismissed this petition
after Jorrie missed filing requirements. Jorrie then filed a fourth bankruptcy
petition in July 2017 and filed a suggestion of bankruptcy in this case. She
argued to the district court that the Bankruptcy Code’s automatic stay under
11 U.S.C. § 362(a) prevented her lawsuit against the Bank from proceeding in
district court.
The district court resolved the bankruptcy issue and the summary
judgment motions in the Bank’s favor on September 11, 2017. It first ruled
that the bankruptcy had no effect on Jorrie’s lawsuit because the automatic
4
Case: 17-50909 Document: 00514538336 Page: 5 Date Filed: 07/02/2018
No. 17-50909
stay does not apply to proceedings against a non-debtor. It then held that the
limitations period had not expired on the Bank’s lien and that the Bank was
thus entitled to judgment as a matter of law on Jorrie’s quiet title claim. Jorrie
timely appealed.
II
This appeal involves no factual disputes. It presents two purely legal
questions, which we review de novo. 1 The first question is whether Jorrie’s
July 2017 bankruptcy filing deprived the district court of the power to rule on
the pending summary judgment motions. It did not.
Jorrie’s July 2017 bankruptcy filing did not trigger an automatic stay of
the present litigation. That is because Jorrie is the plaintiff in this case, and
11 U.S.C. § 362(a)’s automatic stay applies only to judicial proceedings that are
“against the debtor.” 2
Jorrie’s alternative argument, that the district court improperly
withdrew the case from the bankruptcy court, is also unavailing. Jorrie did
not make this argument to the district court. She thus forfeited it for purposes
of this appeal. 3
Moreover, even if properly preserved, this argument would still fail
because the lawsuit was never transferred to the bankruptcy court. The
Western District of Texas’s standing Order of Reference of Bankruptcy Cases
1 FED. R. CIV. P. 56(a) (providing that summary judgment for the movant is
appropriate “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”).
2 11 U.S.C. § 362(a) (emphasis added); see GATX Aircraft Corp. v. M/V Courtney
Leigh, 768 F.2d 711, 716 (5th Cir. 1985) (explaining the “limited scope of the automatic stay
in bankruptcy proceedings,” which “acts to stay any judicial proceeding against the debtor”
(internal quotations omitted)); see also In re Versoy, 306 F. App’x 65, 68-69 (5th Cir. 2009)
(explaining that “if the debtor brings the initial claim, [11 U.S.C.] § 362 has no effect”).
3 See, e.g., Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d
307, 316-17 (5th Cir. 2000) (“It is a bedrock principle of appellate review that claims raised
for the first time on appeal will not be considered.”).
5
Case: 17-50909 Document: 00514538336 Page: 6 Date Filed: 07/02/2018
No. 17-50909
and Proceedings provides that civil actions filed before a related bankruptcy
petition are not automatically referred to bankruptcy court. 4 A district judge
may refer such cases to the bankruptcy court, but Jorrie never made that
request to the district court. 5 Since the case was never transferred to
bankruptcy court, the district court could not have withdrawn it, let alone have
done so contrary to 28 U.S.C. § 157(d). The district court correctly concluded
that the July 2017 bankruptcy petition did not affect this litigation.
III
The second legal question is whether the district court erred in granting
summary judgment to the Bank on Jorrie’s quiet title claim. The parties
dispute only one element of that claim: whether the Bank’s lien, though facially
valid, is invalid or unenforceable. Jorrie sought to establish this element by
showing that Texas’s four-year limitations period for enforcing the lien had
expired when she brought her quiet title action. The district court rejected this
argument on summary judgment, concluding that the limitations period had
not run when Jorrie filed her claim and that she thus could not prevail in her
quiet title claim.
In Texas, a secured lender has four years to foreclose real property from
the day the lender’s foreclosure cause of action accrues. 6 For accelerated notes
like the one here, an action accrues “when the holder actually exercises its
option to accelerate” the note. 7 Once four years have expired, the lender’s lien
is typically unenforceable. 8
4 Western District of Texas Order 13-01, Order of Reference of Bankruptcy Cases and
Proceedings (Oct. 4, 2013), http://www.txwb.uscourts.gov/sites/txwbcoop/files/Order%20
of%20Reference%20BK%20Cases.pdf.
5 Id.
6 TEX. CIV. PRAC. & REM. CODE § 16.035(a).
7 See Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015) (quoting Holy
Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001)).
8 TEX. CIV. PRAC. & REM. CODE § 16.035(d).
6
Case: 17-50909 Document: 00514538336 Page: 7 Date Filed: 07/02/2018
No. 17-50909
Two doctrines can alter this calculation, however. First, the equitable
tolling doctrine pauses the limitations clock when “a [party] is prevented from
exercising [its] legal remedy by the pendency of legal proceedings . . . .” 9 This
time will “not be counted against [that party] in determining whether
limitations have barred [its] right” to legal remedy. 10
Second, if foreclosure was triggered by accelerating a lien (as it was
here), acceleration can be abandoned. Abandonment resets the statute of
limitations clock by “restoring the contract to its original condition” and
“restoring the note’s original maturity date.” 11 There are several ways to
abandon acceleration. The parties can abandon acceleration “by agreement or
other [joint] action.” 12 The lender can abandon acceleration if it “continues to
accept payments without exacting any remedies available to it upon declared
maturity” (i.e. upon acceleration). 13 Or, as relevant here, the lender “may
unilaterally abandon acceleration” “by sending notice to the borrower that the
lender is no longer seeking to collect the full balance of the loan and will permit
the borrower to cure its default by providing sufficient payment to bring the
note current under its original terms.” 14
These doctrines, applied to the undisputed timeline, show that the
limitations period had not expired when Jorrie filed her quiet title claim. The
Bank’s cause of action accrued on June 8, 2009, when the Bank first
accelerated the Note. Absent equitable tolling, the limitations period would
9 Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991) (quoting Walker v.
Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e)).
10 Id. (quoting Walker, 570 S.W.2d at 540).
11 Boren, 807 F.3d at 104 (quoting Khan v. GBAK Props., 371 S.W.3d 347, 353 (Tex.
App.—Houston [1st Dist.] 2012, no pet.)).
12 Id. (quoting Kahn, 371 S.W.3d at 353).
13 Id. (quoting Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.
2001)).
14 Id. at 105.
7
Case: 17-50909 Document: 00514538336 Page: 8 Date Filed: 07/02/2018
No. 17-50909
have expired by June 8, 2013. But when legal proceedings twice prevented the
Bank from exercising its right to foreclose, equitable tolling paused the
limitations clock. The first pause happened during the 2010 Bankruptcy,
when the automatic stay kept the Bank from foreclosing for 85 days. The
second pause occurred during the 2011 Temporary Injunction, which enjoined
the Bank from foreclosing for 208 days.
The limitations period was thus equitably tolled for a combined 293
days—85 days from the 2010 Bankruptcy plus 208 days from the 2011
Temporary Injunction. This means that the Bank’s lien would have expired
four years and 293 days from June 8, 2009—or March 28, 2014. The Bank
successfully abandoned its acceleration on March 27, 2014, when it notified
Jorrie that the Note’s full balance was no longer due and that she could cure
the default by resuming her original loan payments. By abandoning
acceleration before the limitations period expired, the Bank stopped the
limitations clock from running.
The Bank accelerated the Note again on November 19, 2015. This
acceleration caused a four-year limitations period to run anew. But Jorrie filed
her quiet title claim just a few months later, on December 30, 2015. So this
new limitations period had not yet expired when Jorrie filed her claim.
Jorrie challenges just one aspect of the foregoing calculation. She argues
that the limitations period should not have been tolled during the 87 days that
the district court’s Agreed Order prevented the Bank from foreclosing and that
the district court erred by not subtracting those 87 days from the 208-day
period associated with the 2011 Temporary Injunction.
This argument has no merit for several reasons, one of which is that the
Agreed Order and the 2011 Temporary Injunction covered different time
periods. The Agreed Order prevented foreclosure from July 5, 2011 to
September 30, 2011. The 2011 Temporary Injunction prevented foreclosure
8
Case: 17-50909 Document: 00514538336 Page: 9 Date Filed: 07/02/2018
No. 17-50909
from October 4, 2011 to April 30, 2012. The 208-day period that the district
court used to calculate the equitable tolling period did not include the 87 days
during which the Agreed Order was in effect.
The district court properly applied the doctrines of equitable tolling and
abandonment and correctly concluded that the limitations period had not
expired when Jorrie filed her quiet title claim.
* * *
For these reasons, we AFFIRM the judgment of the district court.
9
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMANDA FRLEKIN; TAYLOR No. 15-17382
KALIN; AARON GREGOROFF;
SETH DOWLING; DEBRA D.C. Nos.
SPEICHER, on behalf of 3:13-cv-03451-WHA
themselves and all others 3:13-cv-03775-WHA
similarly situated, 3:13-cv-04727-WHA
Plaintiffs-Appellants,
v. ORDER
CERTIFYING A
APPLE, INC., a California QUESTION TO THE
corporation, SUPREME COURT
Defendant-Appellee. OF CALIFORNIA
Filed August 16, 2017
Before: Susan P. Graber and Michelle T. Friedland, Circuit
Judges, and Consuelo B. Marshall, * District Judge.
*
The Honorable Consuelo B. Marshall, United States District Judge
for the Central District of California, sitting by designation.
2 FRLEKIN V. APPLE
SUMMARY **
Certification of Question to Supreme Court of
California
The panel certified the following question of state law to
the Supreme Court of California:
Is time spent on the employer’s premises
waiting for, and undergoing, required exit
searches of packages or bags voluntarily
brought to work purely for personal
convenience by employees compensable as
“hours worked” within the meaning of
California Industrial Welfare Commission
Wage Order No. 7?
ORDER
We respectfully ask the Supreme Court of California to
exercise its discretion to decide the certified question set
forth in Part II of this Order. See Cal. R. Ct. 8.548. The
answer to this question of California law would be
dispositive of the appeal before us, and no clear controlling
California precedent exists. Id. Moreover, because the
question that we certify is of extreme importance to
numerous employees and employers in California,
considerations of comity and federalism suggest that the
court of last resort in California, rather than our court, should
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FRLEKIN V. APPLE 3
have the opportunity to answer the question in the first
instance. See Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192,
1196B97 (9th Cir. 2013) (order); Klein v. United States,
537 F.3d 1027, 1028 (9th Cir. 2008) (order).
I. Administrative Information
We provide the following information in accordance
with California Rule of Court 8.548(b)(1):
The caption for this case is:
AMANDA FRLEKIN, TAYLOR KALIN; AARON
GREGOROFF; SETH DOWLING; DEBRA
SPEICHER, on behalf of themselves and all others
similarly situated,
Plaintiffs-Appellants,
v.
APPLE, INC.,
Defendant-Appellee,
and the case number in our court is 15-17382.
The names and addresses of counsel are:
For Plaintiffs - Appellants Amanda Frlekin, et al.:
Kimberly A. Kralowec, Kathleen S. Rogers, and Chad A.
Saunders, The Kralowec Law Group, 44 Montgomery
Street, Suite 1210, San Francisco, California; Lee S. Shalov,
Brett R. Gallaway, and Wade C. Wilkinson, McLaughlin &
Stern LLP, 260 Madison Avenue, 18th Floor, New York,
New York; Peter R. Dion-Kindem, Peter R. Dion-Kindem,
P.C., 21550 Oxnard Street, Woodland Hills, California; and
4 FRLEKIN V. APPLE
Jeff Holmes, 3311 E. Pico Boulevard, Los Angeles,
California.
For Defendant - Appellee Apple, Inc.: Richard H. Rahm,
Littler Mendelson, P.C., 333 Bush Street, 34th Floor, San
Francisco, California; Julie A. Dunne, Littler Mendelson,
P.C., 501 W. Broadway, Suite 900, San Diego, California;
Todd K. Boyer, Littler Mendelson, P.C., 50 W. San
Fernando Street, 15th Floor, San Jose, California; Michael
G. Leggieri, Littler Mendelson, P.C., 1255 Treat Boulevard,
Suite 600, Walnut Creek, California, Theodore J. Boutrous,
Jr., Gibson, Dunn & Crutcher LLP, 333 South Grand
Avenue, Los Angeles, California; and Joshua L. Lipshutz,
Gibson, Dunn & Crutcher LLP, 555 Mission Street, San
Francisco, California.
For Amicus Curiae – California Employment Lawyers
Association: Michael D. Singer, Cohelan Khoury & Singer,
605 “C” Street, Suite 200, San Diego, California.
As required by Rule 8.548(b)(1), we designate Amanda
Frlekin, Taylor Kalin, Aaron Gregoroff, Seth Dowling, and
Debra Speicher as the petitioners, if our request for
certification is granted. They are the appellants before our
court.
II. Certified Question
We certify to the California Supreme Court the following
question of state law that is now before us:
Is time spent on the employer’s premises
waiting for, and undergoing, required exit
searches of packages or bags voluntarily
brought to work purely for personal
convenience by employees compensable as
FRLEKIN V. APPLE 5
“hours worked” within the meaning of
California Industrial Welfare Commission
Wage Order No. 7?
Our phrasing of the question should not restrict the
California Supreme Court’s consideration of the issues
involved; that court may reformulate the questions. Cal. R.
Ct. 8.548(f)(5).
We agree to accept and to follow the decision of the
California Supreme Court. Cal. R. Ct. 8.548(b)(2); see also
Klein, 537 F.3d at 1029 (holding, with respect to a certified
question, that the Ninth Circuit is bound by the California
Supreme Court’s interpretation of California law).
III. Statement of Facts
Amanda Frlekin, Taylor Kalin, Aaron Gregoroff, Seth
Dowling, and Debra Speicher (“Plaintiffs”) brought this
wage-and-hour class action on behalf of current and former
non-exempt employees who have worked in Defendant
Apple, Inc.’s retail stores in California since July 25, 2009.
Plaintiffs seek compensation for time spent waiting for and
undergoing exit searches pursuant to Defendant’s
“Employee Package and Bag Searches” policy (the
“Policy”), which states:
Employee Package and Bag Searches
All personal packages and bags must be
checked by a manager or security before
leaving the store.
6 FRLEKIN V. APPLE
General Overview
All employees, including managers and
Market Support employees, are subject to
personal package and bag searches. Personal
technology must be verified against your
Personal Technology Card (see section in this
document) during all bag searches.
Failure to comply with this policy may lead
to disciplinary action, up to and including
termination.
Do
• Find a manager or member of the security
team (where applicable) to search your
bags and packages before leaving the
store.
Do Not
• Do not leave the store prior to having
your personal package or back [sic]
searched by a member of management or
the security team (where applicable).
• Do not have personal packages shipped to
the store. In the event that a personal
package is in the store, for any reason, a
member of management or security
(where applicable) must search that
package prior to it leaving the store
premises.
FRLEKIN V. APPLE 7
Employees receive no compensation for the time spent
waiting for and undergoing exit searches, because they must
clock out before undergoing a search. Employees who fail
to comply with the Policy are subject to disciplinary action,
up to and including termination.
On July 16, 2015, the district court certified a class
defined as “all Apple California non-exempt employees who
were subject to the bag-search policy from July 25, 2009, to
the present.” Because of concerns that individual issues
regarding the different reasons why employees brought bags
to work, “ranging from personal convenience to necessity,”
would predominate in a class-wide adjudication, the district
court (with Plaintiffs’ consent) made clear in its certification
order that “bag searches” would “be adjudicated as
compensable or not based on the most common scenario,
that is, an employee who voluntarily brought a bag to work
purely for personal convenience.”
On November 7, 2015, the district court granted
Defendant’s motion for summary judgment and denied
Plaintiffs’ motion for summary judgment. The district court
ruled that time spent by class members waiting for and
undergoing exit searches pursuant to the Policy is not
compensable as “hours worked” under California law
because such time was neither “subject to the control” of the
employer nor time during which class members were
“suffered or permitted to work.” Plaintiffs timely appealed.
IV. Explanation of Certification
California law provides no clear answer to the certified
question. Employees who bring a bag or package to work
may not leave the premises before undergoing a search. An
employee must find a manager, wait for the manager to
search his or her belongings, and wait for the manager to
8 FRLEKIN V. APPLE
verify that any Apple products belong to the employee. That
time is not compensable under federal law. Integrity Staffing
Sols., Inc. v. Busk, 135 S. Ct. 513 (2014). But the California
Supreme Court has held that state law “provide[s] greater
protection to workers” than the federal scheme and that “the
federal statutory scheme, which differs substantially from
the state scheme, should be given no deference” when
interpreting California’s wage and hour laws. Morillion v.
Royal Packing Co., 995 P.2d 139, 147, 151 (Cal. 2000)
(internal quotation marks omitted).
California Industrial Welfare Commission Wage Order
No. 7 provides: “Every employer shall pay to each
employee . . . not less than the applicable minimum wage for
all hours worked in the payroll period . . . .” Cal. Code Regs.
tit. 8, § 11070(4)(B). The Wage Order further provides:
“‘Hours worked’ means the time during which an employee
is subject to the control of an employer, and includes all the
time the employee is suffered or permitted to work, whether
or not required to do so.” Id. § 11070(2)(G). The California
Supreme Court has held that the two parts of the definition—
“time during which an employee is subject to the control of
an employer” and “time the employee is suffered or
permitted to work, whether or not required to do so”—
independently define whether time spent is compensable as
“hours worked.” Morillion, 995 P.2d at 143–47. 1 Moreover,
“in light of the remedial nature of the legislative enactments
authorizing the regulation of wages, hours and working
conditions for the protection and benefit of employees, the
1
Morillion concerned a different Wage Order, but that difference is
immaterial because the definition of “hours worked” in Wage Order No.
7 is identical to the definition of “hours worked” that was at issue in
Morillion. See 995 P.2d at 142 (noting that 13 of California’s 15 Wage
Orders “contain the same definition of ‘hours worked’”).
FRLEKIN V. APPLE 9
statutory provisions are to be liberally construed with an eye
to promoting such protection.” Id. at 150 (internal quotation
marks omitted).
As Defendant concedes, employees who bring a bag or
package to work and therefore must follow the search
procedures are clearly under the “control” of the employer
while awaiting, and during, the search. Under threat of
sanctions and loss of employment, the employees may not
leave the premises until the search is conducted. Under a
strictly textual analysis, then, Plaintiffs are entitled to
compensation for the time spent undergoing the search
because they are “subject to the control of an employer.”
Cal. Code Regs., tit. 8, § 11070(2)(G).
Defendant nevertheless contends that “control” during
the search is insufficient to constitute “hours worked.”
According to Defendant, the search also must be “required.”
Because the employees may avoid a search by declining to
bring a bag or package to work, the search is not “required.”
Thus, Defendant contends, Plaintiffs’ claim necessarily fails.
Defendant’s argument finds strong support in the
California Supreme Court’s decision in Morillion. Morillion
addressed “whether an employer that requires its employees
to travel to a work site on its buses must compensate the
employees for their time spent traveling on those buses.”
995 P.2d at 140. The court held that the employee-plaintiffs
were entitled to compensation from the employer, Royal
Packing Company (“Royal”). Id. at 152. The court
reasoned:
[P]laintiffs’ compulsory travel time, which
includes the time they spent waiting for
Royal’s buses to begin transporting them,
was compensable. Royal required plaintiffs
10 FRLEKIN V. APPLE
to meet at the departure points at a certain
time to ride its buses to work, and it
prohibited them from using their own cars,
subjecting them to verbal warnings and lost
wages if they did so. By directing and
commanding plaintiffs to travel between the
designated departure points and the fields on
its buses, Royal controlled them within the
meaning of "hours worked" under
subdivision 2(G).
Id. at 147 (internal quotation marks and brackets omitted).
Morillion made clear that the mandatory nature of the
bus ride was a dispositive fact and that, had the bus ride not
been mandatory, the time would not have been compensable.
For example, Morillion summarized its holding as follows:
As we have emphasized throughout, Royal
required plaintiffs to ride its buses to get to
and from the fields, subjecting them to its
control for purposes of the “hours worked”
definition. However, employers may provide
optional free transportation to employees
without having to pay them for their travel
time, as long as employers do not require
employees to use this transportation.
Id. at 152; see also id. at 148 n.5 (distinguishing Vega v.
Gasper, 36 F.3d 417 (5th Cir. 1994), by holding that “the
fact that the Vega employees were free to choose—rather
than required—to ride their employer’s buses to and from
work” was “a dispositive, distinguishing fact”). The
California Court of Appeal has applied that principle:
FRLEKIN V. APPLE 11
In [Morillion], the California Supreme
Court held that employees must be
compensated for travel time when their
employer requires them to travel to a work
site on employer-provided buses. . . . As it is
undisputed that Disney employees were not
required to drive to work and take the shuttle,
we conclude this case falls outside the
mandate of Morillion.
Overton v. Walt Disney Co., 38 Cal. Rptr. 3d 693, 694 (Ct.
App. 2006); see also id. at 699 (holding that “the key factor
is whether Disney required its employees who were assigned
parking in the [remote] lot to park there and take the shuttle”
rather than reaching the park entrance by other means of
their choosing).
Applying Morillion, the searches here are voluntary in
the antecedent sense that employees may choose not to bring
a bag or package to work. Accordingly, the time spent
undergoing the search is not compensable.
But we are uncertain whether Morillion applies in that
straightforward manner. First, unlike Morillion, Overton,
and other cases, this case does not involve a question about
time spent traveling to a work site. Instead, this case
involves an on-site search during which the employee must
remain on the employer’s premises. That difference may
matter.
Much of Morillion’s analysis of the relevant legal
sources concerned travel time specifically. In the context of
travel to a work site, an employer’s interest typically is
limited to the employee’s timely arrival. It is irrelevant to
the employer how an employee arrives, so long as the
employee arrives on time. So it makes little sense to require
12 FRLEKIN V. APPLE
the employer to pay for travel time unless, as discussed at
length in Morillion, the employer requires the employee to
use the employer-provided transportation. For voluntary bus
rides, the employer is not exercising “control” over the
employee.
That analysis may not apply in the same manner to on-
site searches because both the level of control and the
employer’s business interest are greater. Once an employee
has crossed the threshold of a work site where valuable
goods are stored, an employer’s significant interest in
preventing theft arises. The employer’s exercise of control
over the bag-toting employee—albeit at the employee’s
option of bringing a bag—advances the employer’s interest
in loss prevention. For that reason, the mandatory/voluntary
distinction applied in Morillion may make less sense here.
Although the search is voluntary in that the employee could
have avoided it by leaving his or her belongings at home, the
employer nevertheless exercises control over the employee
who does bring a bag or package to work. It is unclear under
Morillion whether, in the context of on-site time during
which an employee’s actions and movements are compelled,
the antecedent choice of the employee obviates the
compensation requirement.
Even if Morillion’s rule applies equally to on-site
searches, we are uncertain whether Plaintiffs’ claim
necessarily fails. Whether an activity is “required” is a
flexible concept. At one end of the spectrum are highly
discretionary actions. For example, in the absence of truly
exceptional circumstances, no one would seriously dispute
the voluntariness of a search policy that applied only to
steamer trunks that an employee brings to work. At the other
end of the spectrum are actions that are, practically speaking,
required, even though they are nominally voluntary. For
FRLEKIN V. APPLE 13
example, a search policy in a cold climate that applied to all
jackets would be effectively unavoidable, even if a person
theoretically could commute to work without a jacket.
Although we are not aware of a California appellate
decision on point, federal courts have recognized this
spectrum. In Alcantar v. Hobart Service, 800 F.3d 1047,
1055 (9th Cir. 2015), for example, we held that only
“genuine” choices—and not “illusory” choices—avoid
compensation liability under California’s Wage Orders. We
held that the plaintiff could prevail at trial by proving that
“employees are, as a practical matter, required to commute
in [the defendant’s] vehicles.” Id. at 1054–55. Similarly, in
Greer v. Dick’s Sporting Goods, Inc., No. 2:15-cv-01063-
KJM-CKD, 2017 WL 1354568, at *8 (E.D. Cal. Apr. 13,
2017) (order), a federal district court granted class
certification in a case involving a search policy that
“pertained to ‘jacket[s], bags, and other personal
belonging[s],’ and therefore applied to a greater proportion,
if not the entire, putative class.” (First alteration added.)
The policy at issue here falls somewhere between the
two ends of the spectrum. The case at issue involves only
those employees who voluntarily brought bags to work
purely for personal convenience. It is thus certainly feasible
for a person to avoid the search by leaving bags at home.
But, as a practical matter, many persons routinely carry bags,
purses, and satchels to work, for all sorts of reasons.
Although not “required” in a strict, formal sense, many
employees may feel that they have little true choice when it
comes to the search policy, especially given that the policy
applies day in and day out. Because we have little guidance
on determining where to draw the line between purely
voluntary actions and strictly mandatory actions, we are
uncertain on which side of the line Plaintiffs’ claim falls.
14 FRLEKIN V. APPLE
The consequences of any interpretation of the Wage
Order will have significant legal, economic, and practical
consequences for employers and employees throughout the
state of California, and it will govern the outcome of many
disputes in both state and federal courts in the Ninth Circuit.
Many cases, in addition to this case, have raised the issue of
the applicability of California Wage Orders to a variety of
employment security checks. See, e.g., Greer, 2017 WL
1354568; Roberts v. Marshalls of CA, LLC, No. 13-cv-
04731-MEJ, 2017 WL 1152967 (N.D. Cal. Mar. 28, 2017)
(order); Scott-George v. PVH Corp., No. 2:13-cv-0441-
TLN-AC, 2016 WL 3959999 (E.D. Cal. July 22, 2016)
(order); Moore v. Ulta Salon, Cosmetics & Fragrance, Inc.,
311 F.R.D. 590 (C.D. Cal. 2015) (order); Ogiamien v.
Nordstrom, Inc., No. 2:13-cv-05639-ODW-JCG, 2015 WL
773939 (C.D. Cal. Feb. 24, 2015) (order); Quinlan v. Macy’s
Corp. Servs., Inc., No. 12-00737-DDP, 2013 U.S. Dist.
LEXIS 164724 (C.D. Cal. Aug. 22, 2013) (order); Otsuka v.
Polo Ralph Lauren Corp., No. C 07-02780 SI, 2010 WL
366653 (N.D. Cal. Jan. 25, 2010) (order); Cervantez v.
Celestica Corp., 618 F. Supp. 2d 1208 (C.D. Cal. 2009)
(order); Bibo v. Fed. Express, Inc., No. C 07-2505 TEH,
2009 WL 1068880 (N.D. Cal. Apr. 21, 2009) (order);
Kurihara v. Best Buy Co., No. C 06-01884 MHP, 2007 WL
2501698 (N.D. Cal. Aug. 30, 2007) (order).
We therefore submit that this question is worthy of
decision by the California Supreme Court. Because the
outcome of this case depends on the answer, we also submit
that this case presents a suitable vehicle for the California
Supreme Court to address the question. Cal. R. Ct. 8.548(a).
V. Accompanying Materials
The clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
FRLEKIN V. APPLE 15
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of the record, and an original and
ten copies of this order and request for certification, along
with a certification of service on the parties, pursuant to
California Rule of Court 8.548(c), (d).
This case is withdrawn from submission, and the clerk is
directed to administratively close this docket, pending
further order from this court. The parties shall notify the
clerk of this court within seven days after the California
Supreme Court accepts or rejects certification. If an opinion
is rendered by that court, the parties shall again notify the
clerk of this court within seven days of the issuance of the
opinion. The panel retains jurisdiction over further
proceedings.
IT IS SO ORDERED.
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Serowik v Leardon Boiler Works Inc. (2015 NY Slip Op 04773)
Serowik v Leardon Boiler Works Inc.
2015 NY Slip Op 04773
Decided on June 9, 2015
Appellate Division, First 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 June 9, 2015
Friedman, J.P., Acosta, Moskowitz, Richter, Feinman, JJ.
15350 309306/10 83704/11
[*1] Jozef Serowik, et al., Plaintiffs-Respondents,
vLeardon Boiler Works Inc., et al., Defendants-Appellants-Respondents.
Leardon Boiler Works Inc., et al., Third-Party Plaintiffs- Appellants-Respondents,
GDT Associates, Inc., Third-Party Defendant- Respondent-Appellant.
French & Casey, LLP, New York (Joseph A. French of counsel), for appellants-respondents.
Nicoletti Gonson Spinner LLP, New York (Kevin S. Locke of counsel), for respondent-appellant.
Saftler & Bacher, PLLC, New York (Lawrence B. Saftler of counsel), for respondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered August 23, 2013, which granted plaintiff Jozef Serowik's motion for partial summary judgment on liability on his claim pursuant to Labor Law § 240(1), denied defendants/third-party plaintiffs' motion for summary judgment dismissing the complaint, and on their third-party claims for common law indemnification and contribution, and denied third-party defendant GDT Associates, Inc.'s (GDT) motion for summary judgment dismissing plaintiff's Labor Law § 240(1) and 241(6) claims, unanimously modified, on the law, defendants/third-party plaintiffs' motion granted to the extent of dismissing the common law negligence and Labor Law § 200 claims and awarding them conditional summary judgment on their third-party claim for common law indemnification, and otherwise affirmed, without costs.
Plaintiff, an employee of GDT, was injured while helping to lower a tank weighing at least four to five hundred pounds down a flight of stairs. The tank was attached to one end of the rope, and plaintiff and four others held the rope near the other end, to act as counterweights slowing the tank's descent. However, when the tank was pushed over the edge of the top step, plaintiff was pulled forward into a pipe around which the rope was wrapped, resulting in the rope severing his index finger and part of his middle finger, a grave injury pursuant to Workers' Compensation Law § 11.
Plaintiff's injury was due to the application of gravity to the tank, and the elevation differential was not de minimis given the weight of the tank, which generated sufficient force to pull plaintiff into the pipe and cause injury (Runner v New York Stock Exch., Inc., 13 NY3d 599, 605 [2009]). Even if he had wrapped the rope around his arm, such action was not the sole proximate cause of his accident, as plaintiff was not provided with adequate safety devices. In addition, plaintiff's work was a necessary step in the installation of the tank in the building, constituting alterations or other activities protected by Labor Law § 240(1) (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 882-883 [2003]). Accordingly, the motion court correctly granted plaintiff summary judgment as to liability on his claim under section 240(1).
Contrary to defendants/third-party plaintiffs' argument that defendant Leardon Boiler Works, Inc. (Leardon) was not a general contractor that may be liable under the Labor Law, Leardon contracted with defendant owner 125 East 84th Street Corporation to install a new boiler system at the premises, and may be held liable under the Labor Law as the agent of the owner for injuries arising from work within the scope of its contract (Russin v Louis N. Picciano & Sons, 54 NY2d 311, 318 [1981]).
To the extent the motion court denied defendants/third party plaintiffs' cross motion for failure to annex copies of the pleadings, it erred since the moving papers were "sufficiently complete" inasmuch as copies of the pleadings had been submitted by plaintiff and GDT (Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675 [1st Dept 2013][internal quotation marks omitted]). Because defendants/third-party plaintiffs did not supervise or control plaintiff's work, they are entitled to dismissal of plaintiff's Labor Law § 200 and common law negligence claims (Alonzo v Safe Harbors of the Hudson Hous. Dev. Fund Co., Inc., 104 AD3d 446, 449 [1st Dept 2013]). They are also entitled to common law indemnification on their third-party claims for the same reason.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 9, 2015
CLERK
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11-2987-cr
United States v. Daley
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2012
6
7
8 (Argued: September 6, 2012 Decided: December 7,2012)
9
10 Docket No. 11-2987
11
12 - - - - - - - - - - - - - - - - - - - -x
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 - v.-
19
20 COURTNEY DALEY,
21
22 Defendant-Appellant.
23
24 - - - - - - - - - - - - - - - - - - - -x
25
26 Before: JACOBS, Chief Judge, CARNEY, Circuit
27 Judge, and GLEESON, District Judge.*
28
29 Defendant Courtney Daley appeals from the judgment of
30 the United States District Court for the Eastern District of
31 New York (Korman, J.), convicting him of illegal reentry
32 under 8 U.S.C. § 1326, following a conditional plea. Daley
33 challenges the denial of his motion to dismiss the
*
The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
1 indictment. The district court ruled that the entry of the
2 removal order against Daley in absentia was not
3 fundamentally unfair because there was no reasonable
4 probability that Daley would have obtained relief had he
5 received notice of the removal proceeding and been present.
6 Because the district court properly considered Daley’s
7 completed criminal conduct in making this discretionary
8 determination, we affirm the judgment.
9 YUANCHUNG LEE, Federal Defenders
10 of New York, Inc., New York, NY,
11 for Appellant Courtney Daley.
12
13 TIANA A. DEMAS (David C. James,
14 on the brief), Assistant United
15 States Attorneys, for Loretta E.
16 Lynch, United States Attorney
17 for the Eastern District of New
18 York, Brooklyn, NY, for Appellee
19 United States of America.
20
21 DENNIS JACOBS, Chief Judge:
22
23 Defendant Courtney Daley appeals from the judgment of
24 the United States District Court for the Eastern District of
25 New York (Korman, J.), convicting him of illegal reentry
26 under 8 U.S.C. § 1326, following a conditional plea. Daley
27 moved to dismiss the indictment on the ground that he was
28 given no notice of the 1998 removal proceedings after which
29 a removal order was entered in absentia. The United States
2
1 District Court for the Eastern District of New York (Korman,
2 J.) ruled that the entry of the removal order was not
3 fundamentally unfair because there was no reasonable
4 probability that Daley would have obtained relief had he
5 received notice of the removal proceeding and been present.
6 While his 1998 immigration proceedings were pending,
7 Daley was arrested for robbery under the Hobbs Act and
8 detained at the Metropolitan Detention Center in Brooklyn,
9 New York. Although he notified the Immigration and
10 Naturalization Service (“INS”) of his new address, INS did
11 not properly process the address change and failed to notify
12 Daley of his ongoing immigration proceedings, so that he was
13 ordered removed in absentia.
14 Daley was removed to Jamaica, his country of origin,
15 but he subsequently returned to the United States. He was
16 arrested again--this time following a domestic altercation
17 with his estranged wife--and indicted for illegal reentry
18 under 8 U.S.C. § 1326. He moved to dismiss the indictment
19 pursuant to 8 U.S.C. § 1326(d), on the ground that his 1998
20 removal order was fundamentally unfair because he was
21 removed in absentia. In order to show fundamental
22 unfairness, however, Daley had to show that, but for the
3
1 Government’s error, there was a reasonable probability that
2 he would have obtained relief from the Immigration Judge
3 (“IJ”). The district court concluded that there was no such
4 probability. Daley ultimately entered a conditional guilty
5 plea that preserved his right to appeal the denial of his
6 motion to dismiss the indictment. Daley was sentenced to 30
7 months’ imprisonment and timely appealed. For the reasons
8 discussed below, we affirm the judgment.
9
10 BACKGROUND
11 Daley was born in Kingston, Jamaica, in 1968, and came
12 to the United States at the age of fifteen as a lawful
13 permanent resident. In 1995, Daley was indicted in New York
14 for possession of a loaded firearm and bail jumping. After
15 he served a one-year sentence, INS initiated removal
16 proceedings on January 14, 1998, pursuant to Section
17 237(a)(2)© of the Immigration and Nationality Act (which
18 allows removal of any alien convicted of certain firearm
19 offenses).
20 At Daley’s initial appearance before the IJ in February
21 1998, he was granted additional time to find a lawyer. A
22 preliminary hearing was eventually scheduled for September
4
1 18, 1998. In May 1998, however, Daley was arrested and
2 arraigned in the Eastern District of New York on federal
3 robbery charges under the Hobbs Act (18 U.S.C. § 1951).
4 Daley pled guilty on August 18, 1998, but that conviction
5 did not become final until March 1999.
6 During the summer of 1998--because of his Hobbs Act
7 arrest--Daley was held without bail at the Metropolitan
8 Detention Center (“MDC”) in Brooklyn. At Daley’s request,
9 his girlfriend notified the INS that he was in custody at
10 the MDC and submitted a change-of-address form on his
11 behalf. It was received by INS and listed Daley’s full
12 name, alien registration number, and Bureau of Prisons
13 number, clearly indicating that Daley was now residing at
14 the MDC in Brooklyn.
15 INS somehow misplaced or mishandled this form.
16 Presumably because he was not informed of the date, Daley
17 failed to appear for his September 1998 hearing before the
18 IJ. At the hearing, INS suggested that Daley might be
19 incarcerated, and the IJ adjourned to permit INS counsel to
20 determine Daley’s whereabouts. Daley did not appear at the
21 subsequent hearing on October 23, 1998, and INS wrongly
22
5
1 informed the IJ that Daley was not in federal or state
2 custody. The IJ ordered Daley removed in absentia.
3 Daley was subsequently sentenced to 37 months’
4 imprisonment for his Hobbs Act conviction, and upon
5 completing that sentence in January 2001, he was deported to
6 Jamaica. Within a year, Daley returned to the United
7 States.
8 In February 2010, Daley was again arrested--this time
9 for allegedly threatening his then-estranged wife in
10 Brooklyn. As a result of that arrest, immigration
11 authorities learned of Daley’s unlawful presence in the
12 United States. A grand jury indicted Daley in the Eastern
13 District of New York for illegal reentry after deportation,
14 in violation of 8 U.S.C. §§ 1326(a), (b)(2).
15 Daley moved to dismiss the indictment pursuant to Rule
16 12 of the Federal Rules of Criminal Procedure and 8 U.S.C.
17 § 1326(d). Daley argued, pursuant to 8 U.S.C. § 1326(d),
18 that it would be fundamentally unfair to rely on the 1998
19 removal order to establish an element of the illegal reentry
20 offense because the 1998 removal order was entered in
21 violation of his due process rights.
22 At a November 2010 evidentiary hearing on Daley’s
23 motion to dismiss the indictment, Marguerite Mills,
6
1 Assistant Chief Counsel for U.S. Immigration and Customs
2 Enforcement, testified as follows concerning INS policy in
3 place at the time: if the IJ had been notified of Daley’s
4 Hobbs Act guilty plea on the day of Daley’s removal hearing
5 (October 23, 1998), the IJ would have administratively
6 closed the case until the Hobbs Act conviction became final;
7 and after the conviction became final, the IJ could have
8 reopened the case, denied Daley any discretionary relief
9 (including cancellation of removal), and ordered him
10 removed.
11 In response, Daley relied almost exclusively on United
12 States v. Scott, 394 F.3d 111 (2d Cir. 2005), arguing that
13 the district court should not consider “future occurrences”
14 when determining whether entry of the removal order was
15 fundamentally unfair. Id. at 119.
16 The district court denied Daley’s motion from the
17 bench, on the ground that the failure of notice did not
18 prejudice Daley because he would not have been granted
19 cancellation of removal on October 23, 1998. The district
20 court carefully distinguished Scott: “I’m not looking at
21 future occurrences. I’m looking at what had occurred at the
22 time of the hearing. . . . And it’s what distinguishes
23 Scott. In other words . . . if I am going to look at all of
7
1 the relevant factors at the time of the hearing, then you
2 lose.” Tr. of Mot. Hr’g, at 39-40 (Nov. 22, 2010)
3 (App. 208-09). The district court explained further:
4 [T]he temporal limitation of Scott deals with a crime
5 that’s committed after that hearing. If you wanted to
6 consider[] what happened, all the relevant information
7 as of the date of the hearing and the relevant
8 information includes his guilty plea for which he was
9 ultimately sentenced, and then the question becomes he
10 wouldn’t have gotten relief. At most, they would have
11 put off the hearing but . . . he probably wouldn’t have
12 gotten relief based on the admission that he made that
13 he committed [Hobbs Act] extortion . . . .
14 Id. at 43 (App. 212). In short, the district court found no
15 reasonable probability that Daley would have been granted
16 relief had he been present at the 1998 hearing, thus he was
17 not prejudiced, and could not dismiss his indictment for
18 illegal reentry under Section 1326(d). Id. at 52
19 (App. 221).
20 Daley thereafter entered a conditional plea to illegal
21 reentry, preserving his right to appeal the denial of the
22 motion to dismiss. On May 3, 2011, the district court
23 sentenced Daley to 30 months’ imprisonment. After the
24 district court issued its judgment, Daley timely appealed
25 the denial of the motion to dismiss the indictment.
26
27
8
1 DISCUSSION
2 Daley’s appeal turns on a single issue: whether the
3 district court properly determined that there was no
4 reasonable probability that Daley would have obtained relief
5 had he been notified of his removal proceeding. Before
6 analyzing this issue in light of United States v. Scott, 394
7 F.3d 111 (2d Cir. 2005), we review the relevant legal
8 standards applicable in these circumstances.
9
10 I
11 The question whether the district court properly denied
12 Daley’s motion to dismiss the indictment is a mixed question
13 of fact and law, subject to de novo review. United States
14 v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). We
15 review the district court’s factual findings for clear
16 error. United States v. Cerna, 603 F.3d 32, 39 (2d Cir.
17 2010).
18 Section 1326(d) places limits on an alien’s ability to
19 collaterally attack a removal order when seeking to dismiss
20 an indictment for illegal reentry. In relevant part,
21 Section 1326(d)provides:
22 In a criminal proceeding under this section, an
23 alien may not challenge the validity of the
24 deportation order . . . unless the alien
9
1 demonstrates that–
2
3 (1) the alien exhausted any administrative
4 remedies that may have been available to seek
5 relief against the order;
6
7 (2) the deportation proceedings at which the
8 order was issued improperly deprived the alien
9 of the opportunity for judicial review; and
10
11 (3) the entry of the order was fundamentally
12 unfair.
13 8 U.S.C. § 1326(d). The only prong of Section 1326(d) at
14 issue in this appeal is the third one: whether entry of the
15 removal order was fundamentally unfair. The district court
16 found--and the Government does not dispute--that Daley
17 established the first two prongs (i.e., exhaustion of
18 administrative remedies and deprivation of opportunity for
19 judicial review).
20 The alien bears the burden of showing that entry of the
21 removal order was fundamentally unfair. “To show
22 fundamental unfairness [under Section 1326(d)(3)], a
23 defendant must show both a fundamental procedural error and
24 prejudice resulting from that error.” United States v.
25 Copeland, 376 F.3d 61, 70 (2d Cir. 2004) (internal quotation
26 marks omitted). More specifically, “in order to demonstrate
27 prejudice an alien must show that his proceeding contained
28 errors so fundamental that he might have been deported in
10
1 error.” Fernandez-Antonia, 278 F.3d at 159. We have
2 adopted the same test for prejudice as used to decide claims
3 of ineffective assistance of counsel: “[P]rejudice is shown
4 where ‘there is a reasonable probability that, but for [the
5 error], the result of the proceeding would have been
6 different.’” Copeland, 376 F.3d at 73 (quoting Strickland
7 v. Washington, 466 U.S. 668, 694 (1984)). In sum, the
8 relevant inquiry for the district court--and now for us--was
9 whether there was a reasonable probability that Daley would
10 have been granted cancellation of removal at his October 23,
11 1998 removal hearing.
12 Cancellation of removal is a discretionary form of
13 relief available if an alien “has been . . . lawfully
14 admitted for permanent residence for not less than 5 years,”
15 “has resided in the United States continuously for 7 years
16 after having been admitted,” and “has not been convicted of
17 any aggravated felony.” 8 U.S.C. § 1229b(a). An IJ’s
18 decision regarding cancellation of removal consists of
19 “discretionary and factual determinations.” Barco-Sandoval
20 v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2007). The IJ may
21 consider “various positive and negative discretionary
22 factors” when making this determination, including a
23 criminal record, which can “weigh[] strongly against
11
1 granting . . . discretionary relief.” Ledesma v. Holder,
2 450 F. App’x 51, 53 (2d Cir. 2011); see also Rosario v.
3 Holder, 627 F.3d 58, 62 (2d Cir. 2010) (noting that
4 “factfinding and factor-balancing . . . are at the core of
5 [the IJ’s] discretion”).
6 With these legal standards in mind, we turn to examine
7 whether the district court properly considered Daley’s Hobbs
8 Act guilty plea (and the likely results of that guilty plea)
9 when determining whether there was a reasonable probability
10 that Daley would have obtained cancellation of removal.
11
12 II
13 Fundamental unfairness arises when a “fundamental
14 procedural error” is coupled with “prejudice resulting from
15 that error.” Copeland, 376 F.3d at 70. The Government
16 concedes that Daley established procedural error, and that
17 on October 23, 1998, Daley was technically eligible for
18 cancellation of removal. But Daley had to show a resulting
19 prejudice: a reasonable probability that but for the error,
20 he would not have been ordered removed. The district court
21 found that Daley “wouldn’t have gotten relief”
22 notwithstanding that the Hobbs act conviction to which he
23 had pled had not yet become final. Tr. of Mot. Hr’g, at 43
12
1 (App. 212). The district court credited the testimony of
2 Marguerite Mills as to what would have happened had the IJ
3 been aware of Daley’s Hobbs Act guilty plea, but also took a
4 broader view, concluding that regardless of whether Daley’s
5 Hobbs Act guilty plea had yet become a final conviction, an
6 IJ considering “all the relevant information as of the date
7 of the hearing” would not have granted Daley discretionary
8 relief. Id. at 39, 43-44 (App. 208, 212-13).
9 On appeal, Daley relies on United States v. Scott, 394
10 F.3d 111 (2d Cir. 2005). In that case, a lawful permanent
11 resident was ordered removed in 1996 after two criminal
12 convictions in New York. Id. at 113-14. He was ordered
13 removed in absentia and never applied for waiver of
14 deportation (the equivalent of cancellation of removal at
15 that time). Id. He later claimed that his counsel during
16 the removal proceedings was ineffective. Id. In 1998,
17 after the IJ issued the removal order but before he was
18 deported, Scott was convicted for possession of burglar’s
19 tools. Id. After his deportation and subsequent reentry,
20 he was arrested in New York for grand larceny (among other
21 things). Id. at 114. Following that arrest, he was charged
22 with illegal reentry after deportation under 8 U.S.C. § 1326
23 and sought to dismiss his indictment and collaterally
13
1 challenge his deportation pursuant to Section 1326(d).
2 We ruled that the district court erred by considering
3 “ex post data”--specifically, Scott’s 1998 conviction for
4 possession of burglar’s tools--in determining whether, in
5 1996, Scott would have had a reasonable probability of
6 relief at his deportation proceeding. Id. at 118.
7 As we explained, Section 1326(d)’s “focus on the
8 ‘entry’ of the [removal] order suggest a temporal limitation
9 on the district court’s inquiry.” Id. “In other words, the
10 statute itself indicates that, contrary to the district
11 court’s analysis, the only pertinent issue is whether entry
12 of the deportation order in 1996 prejudiced
13 Scott--regardless of Scott’s potential deportability for
14 some later crimes.” Id. (emphasis in original). “[A]s we
15 are presently concerned about the process afforded to Scott
16 at his deportation proceeding in 1996, it would be anomalous
17 to consider criminal conduct after that date.” Id. at 119
18 (emphasis added). In sum, “in assessing whether the
19 defendant-alien had a reasonable probability of not being
20 deported at his proceeding but for [the error], the district
21 court should reconstruct events as they existed at the time
22 of the disputed deportation proceeding, without considering
23 future occurrences.” Id.
14
1 Here, the district court’s ruling--that there was no
2 reasonable probability that Daley would have been granted
3 cancellation of removal--was based on circumstances as they
4 existed on October 23, 1998, the day of Daley’s removal
5 proceeding. Tr. of Mot. Hr’g, at 39, 43-44 (App. 208, 212-
6 13). It therefore did not run afoul of Scott.
7 In determining whether there was a reasonable
8 probability of relief, the district court could and did
9 consider Daley’s entire criminal record as it existed at the
10 relevant time, including his Hobbs Act guilty plea.
11 Copeland, 376 F.3d at 74 (allowing review of entire criminal
12 record prior to removal proceeding); Scott, 394 F.3d at
13 118-19 (same). It considered “all relevant information”
14 that would have been available on the day of the removal
15 proceeding, including the fact that Daley had pled guilty to
16 Hobbs Act robbery, when making its determination as to
17 whether the IJ would have afforded Daley discretionary
18 cancellation of removal. Tr. of Mot. Hr’g, at 53
19 (App. 222). Unlike the criminal conduct in Scott--which
20 occurred after the removal order was entered--Daley made his
21 Hobbs Act guilty plea before October 23, 1998, the date of
22 his removal proceedings.
23
15
1 Two considerations support this conclusion. First, the
2 district court’s “reasonable probability” analysis, by its
3 nature, requires some degree of speculation. We have
4 explained that “the courts must necessarily play the role of
5 prognosticator, and divine whether, had the error not
6 occurred, the defendant would likely have obtained
7 immigration relief.” Edwards v. INS, 393 F.3d 299, 311 (2d
8 Cir. 2004). Daley’s critique that the district court’s
9 determination was speculative or uncertain therefore gains
10 no traction.
11 In addition, the IJ’s underlying determination whether
12 to grant cancellation of removal is also highly
13 discretionary. See Barco-Sandoval, 516 F.3d at 36.
14 Cancellation of removal is essentially a matter of
15 administrative grace. Argueta v. Holder, 617 F.3d 109, 113
16 (2d Cir. 2010); see Jay v. Boyd, 351 U.S. 345, 354 (1956).
17 Here, the district court analyzed circumstances as they
18 existed on October 23, 1998 and concluded that there was no
19 reasonable probability that the IJ would have exercised his
20 discretion in Daley’s favor. Daley presents no compelling
21 reason to disturb that determination.
22 While an extreme reading of Scott could suggest that
23 the district court should not consider anything that
16
1 occurred or could have occurred after the day of the removal
2 order, the upshot of Scott is to prohibit consideration of
3 criminal conduct occurring after entry of the removal order.
4 Scott, 394 F.3d at 119 (noting that “it would be anomalous
5 to consider criminal conduct after” the relevant date). To
6 achieve Daley’s desired result, one must read the line from
7 Scott suggesting that a district court judge should
8 “reconstruct events as they existed at the time of the
9 disputed deportation proceeding, without considering future
10 occurrences” to mean that the judge cannot consider the
11 likely effects of already completed conduct. Such a reading
12 would be inconsistent with the district court’s inherently
13 speculative role in carrying out the “reasonable
14 probability” analysis and with the IJ’s broad discretion in
15 granting relief.
16
17 CONCLUSION
18 For the foregoing reasons, we affirm the judgment.
17
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42 N.W.2d 76 (1950)
SNOOK
v.
LONG et al.
No. 47554.
Supreme Court of Iowa.
April 4, 1950.
Hoegh & Meyer, and W. W. Bulman, Chariton, Eugene Poston, Corydon, attorneys for plaintiff-appellant.
Stuart & Stuart, Chariton, attorneys for defendants-appellees.
*77 HAYS, Justice.
Plaintiff, while riding in a car owned and operated by her husband, sustained serious personal injuries due to a head-on collision with a car driven by defendant's decedent, Earl H. Turner. Turner died as a result of injuries sustained and this action is brought against his Administrator to recover damages. At the close of all of the testimony there was a directed verdict for the defendant and plaintiff appeals. Where reference is made to Appellee, it is intended to refer to the deceased driver, Earl H. Turner.
Appellant in her petition asserts seven acts of negligence upon the part of Appellee. In substance they present but two propositions; (1) Violation of Section 321.285, Code 1946, I.C.A., being the "assured clear distance ahead statute", and (2), defective and illegal lights. On this appeal the propositions or errors relied upon for a reversal center upon the refusal of the trial court to submit these two propositions to the jury.
Many material facts are not in dispute. At about 10:45 p. m. July 10, 1948, Appellant, her husband, Marvin Snook, and two other people left the Town of Humiston in her husband's Ford Coupe. Appellant did not drive a car and had no control thereof on the night in question. Leaving Humiston they drove North on Highway No. 65. At a point about two miles North, they approached a car being driven by one Dean Schecter which was likewise proceeding North at about 40 miles per hour. The night was clear, but dark and the pavement dry. When Appellant's car came within about 35 feet of the Schecter car, it turned into the left lane, or west side, of the pavement for the purpose of passing and when at a point approximately five feet to the rear and to the left of the Schecter car, collided head-on with Appellee's car which was approaching from the North. Appellee's car was at all times in its proper lane on the pavement.
The testimony in regard to the condition of the lights on Appellee's car is in sharp conflict. Testimony offered in behalf of Appellant tends to show that about ten days prior to the collision, the Appellees' car was being operated with head lights that cast a dull yellow glow and threw but little light on the pavement in front of it. On the night in question and just prior to the collision, Appellee's car was observed upon the highway No. 65 and that its lights were flickering on and off and casting a dull yellow to red light. Marvin Snook testified that he saw the Schecter car when he was about two hundred feet behind it. That he observed two dim yellow colored lights ahead which did not cast a light ahead on the pavement and appeared to be about a quarter to a half a mile down the highway. That he pulled to the left intending to pass the Schecter car and observed Appellee's car immediately in front of him and about 25 feet away. That the dim yellow lights on Appellee's car deceived him as to their distance in front of him at the time he turned into the left lane. Appellant, as a witness, stated that as they started to pass the Schecter car she noticed two dim yellow lights ahead which appeared to be about a half a mile away.
The Schecters, as witnesses for Appellee, testified that they observed Appellee's car as it approached them from the North. That its headlights appeared to be like those on any car and that as they approached it, the lights were dimmed. That they cast a clear white light ahead.
The record clearly shown that Appellant had no right of control over her husband's car. Under this situation, contributory negligence of her husband, if any, is not to be imputed to her. Carpenter v. Wolfe, 223 Iowa 417, 272 N.W. 169; Schwind v. Gibson, 220 Iowa 377, 260 N.W. 853. Also, a verdict having been directed for Appellee, Appellant is entitled to have the facts reviewed and considered in their most favorable light. Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559.
I. Did the court err in failing to submit to the jury, the issue of the assured clear distance ahead rule? We think not. This statute, Section 321.285, Code 1946, I.C.A., provides that no person shall drive at a speed greater than will permit *78 him to stop within the assured clear distance ahead, such driver having the right, however, to assume that all persons using the highway will observe the law. The words "within the assured clear distance ahead" mean the distance from which discernible objects, reasonably expected or anticipated to be upon the highway, may be observed. Central States Electric Co. v. McVay, 232 Iowa 469, 5 N.W.2d 817; Blowers v. Waterloo, Cedar Falls & Northern Ry. Co., 233 Iowa 258, 8 N.W.2d 751.
In the instant case, Appellee was in his rightful place on the highway. He was entitled to assume that any one approaching him from the opposite direction would observe the law, in this instance. Section 321.303, Code 1946, I.C.A., which prohibits one from passing another car on the left unless it can be done without interference with cars approaching from the opposite direction. Appellant's driver clearly violated this law and created a situation which would not reasonably be anticipated by Appellee. As we said in Coon v. Rieke, 232 Iowa 859, 6 N.W.2d 309, this statute is a speed statute and where a driver of a motor vehicle, in his proper place on the highway, meets an oncoming car which does not give way to the right, there is no clear distance ahead in which to determine the proper speed at which he should drive. Section 321.285 is not applicable and we find no merit in this assignment of error.
II. Did the trial court err in refusing to submit to the jury the issue of Appellee's defective and illegal head lights? We hold that it did.
Appellee in his brief and argument states that on the question of negligence there was some meager evidence which merited examination and scrutiny. The trial court, in its ruling on the motion for a directed verdict stated that if any ground of negligence would be sustained by the evidence it would be as to the defective lights, but that if Appellant's driver saw the lights a quarter to a half a mile ahead, then the dimness of the lights, if established, would not be the proximate cause of the collision. Thus we may examine this assignment of error primarily from the view point of proximate cause. Negligence is the proximate cause of an injury which follows such negligent act, if it can fairly be said that in the absence of such negligence the injury or damage complained of would not have occurred. Gray v. City of Des Moines, 221 Iowa 596, 265 N.W. 612, 104 A.L.R. 1228.
It is Appellant's theory that, due to the defective and illegal lights on Appellee's car, appellant's driver was deceived in estimating the distance ahead he had for safe passing of the Schecter car. This in substance is the assertion of a legal excuse by Appellant's driver for his negligence in violating the law as to the passing of cars on the left. Even though not pleaded, where there is evidence of a legal excuse for the violation of a statute the question is one for the jury. Sanford v. Nesbit, 234 Iowa 14, 11 N.W.2d 695. Had this action been brought by the driver of the Appellant's car, we believe under the facts in this record, that he would be entitled to have this alleged legal excuse considered by a jury as bearing upon the question of his contributory negligence. Schroeder v. Kindschuh, 229 Iowa 590, 294 N.W. 784.
While Appellant is not to be charged with contributory negligence upon the part of her driver, she is to be charged therewith if it is found to be the sole proximate cause of the collision. If, however, the Appellee is negligent under the facts in this case and but for such negligence appellant's driver would not have been lulled into a sense of security and attempted to pass the Schecter car, then even though the negligence of her driver was a contributing cause to the collision, such negligence would not entitle Appellee to a directed verdict. In the case of Wolfson v. Jewitt Lumber Co., 210 Iowa 244, 227 N.W. 608, 230 N.W. 336, we held that a defendant whose negligence operates proximately to produce an injury to a passenger in another car is not entitled to a directed verdict because the host of such injured party was guilty of negligence which also operated proximately to produce the injury. *79 We believe under this record that whether or not the Appellee's car had defective headlights and, if so whether this was a proximate cause of the collision, was a question for the jury and that the trial court erred in not so holding.
For the reasons stated, the judgment of the trial court is reversed.
Reversed and remanded. All Justices concur.
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35 Cal.App.2d 329 (1939)
THE PEOPLE, Respondent,
v.
HAROLD R. McATEE, Appellant.
Crim. No. 1696.
California Court of Appeals. Third Appellate District.
October 31, 1939.
J. Oscar Goldstein, Burton J. Goldstein and James M. Popper for Appellant.
Earl Warren, Attorney-General, and J. Q. Brown, Deputy Attorney-General, for Respondent.
Thompson, J.
The defendant, who was acting as special investigator and also as clerk for J. R. King, Jr., the district attorney and the public administrator of Butte County, was convicted by a jury on three counts of an indictment charging him, under section 114 of the Penal Code, with wilfully mutilating, altering and falsifying the register of probate proceedings kept by the public administrator, with respect to three separate estates which he was probating. The register was kept pursuant to section 1151 of the Probate *331 Code. A judgment of conviction was rendered accordingly. A motion for a new trial was denied. From the order denying a new trial and from the judgment this appeal was perfected.
For the purpose of this appeal it is conceded the defendant altered the probate register as charged in the indictment. It is contended, however, that the probate register of the public administrator is not such "public record" as is contemplated by sections 113 and 114 of the Penal Code, the altering of which constitutes a felony. On the contrary, it is asserted that register is merely a private record of probate cases which the public administrator is authorized to change at will, and that the defendant merely altered it at the request of that officer. A reversal of the judgment is also sought for alleged errors of the trial court in refusing to give to the jury certain proffered instructions.
The judgment of conviction is adequately supported by the evidence. The record shows that J. R. King, Jr., was the duly elected, qualified and acting public administrator of Butte County. As such officer he maintained a register of probate proceedings, as required by section 1151 of the Probate Code. In 1938, he was engaged in probating three estates of deceased persons, namely, the estates of Estelle Dillingham, Della Tarleton and William Simonton. In his register of probate proceedings, he had entered as required by law the amount of money and property which came into his possession as administrator of those estates, together with the other data of probate proceedings required by the preceding section. The defendant, as the clerk and agent of Mr. King, collected money and took possession of property belonging to those estates, some of which were not accounted for. He had access to the probate register. In November, 1938, he cut out and destroyed one page of the register containing a portion of the record of the Tarleton estate. During the same month he removed and destroyed a part of the probate record of the Dillingham estate, and he erased, changed and reduced the figures showing the cash received in the Simonton estate. [1] He claims to have destroyed or altered those records at the request of Mr. King. Even though he violated the provisions of section 113 of the Penal Code, by mutilating, destroying, altering and falsifying the records of the public administrator's register at that officer's request, which we do not determine, he would still be guilty as a principal under *332 the provisions of section 971 of the Penal Code. The question of the motive with which the defendant altered and destroyed the records was solely a problem for the determination of the jury. In effect, the jury found that he did so alter and destroy portions of the record wilfully and feloniously.
[2] The register of probate proceedings which the public administrator is required by law to keep pursuant to section 1151 of the Probate Code constitutes a public record, the mutilation, falsification or destruction of which comes within the inhibitions of sections 113 and 114 of the Penal Code. Section 4181 of the Political Code requires the public administrator to perform the duties imposed upon him by chapter 20, division 3 of the Probate Code. Section 1151 of the Probate Code provides that:
"The public administrator shall keep a book, to be labeled 'Register of Public Administrator', in which he shall enter the name of every decedent whose estate he administers, the date of granting letters, the money received, the property appraised and its value, the proceeds of all sales of property, the amount of his fees, the expenses of administration, the amount of the estate after all charges and expenses have been paid, the disposition of property on distribution, the date of his discharge, and such other matters as may be necessary to give a full and complete history of each state administered by him"
The public administrator is charged with a trust of vital importance. As a public officer he is entrusted with the administration of estates of deceased persons who have no relatives within the jurisdiction. (Sec. 422, Prob. Code; 11B Cal.Jur. 900, sec. 1369; 24 C.J. 1201, sec. 2872.) He should be efficient, diligent and scrupulously honest in handling the property and estates entrusted to him. For that reason he is required by law to keep a register of actions in which he must enter all proceedings specified in section 1151 of the Probate Code. He must also render to the probate court every six months a full and true report of all property and proceedings incident thereto, and he must also publish those reports in a newspaper or post them in the office of the county clerk and file them in the estates pending in the probate court. (Sec. 1153, Prob. Code.) The evident purpose of those sections is to prevent fraud and insure an honest administration of the estates. The evil of permitting wilful alterations *333 of such a public register of probate actions required by law to be kept by the public administrator is apparent. Clearly the wilful mutilation, falsification, alteration or destruction of that probate register comes directly within the inhibitions of sections 113 and 114 of the Penal Code.
Section 113 of the Penal Code provides that:
"Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of stealing, wilfully destroying, mutilating, defacing, altering or falsifying, removing or secreting the whole or any part of such record, map, book, paper, or proceeding, or who permits any other person so to do, is punishable by imprisonment in the state prison not less than one nor more than fourteen years."
The following section, under which the defendant in this case was convicted, reads as follows:
"Every person not an officer such as is referred to in the preceding section, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding one hundred dollars, or by both."
There is therefore no fatal variance between the allegations of the indictment and the proof which was adduced. The judgment is supported by the evidence.
The case of Dwinelle v. Henriquez, 1 Cal. 387, upon which the appellant relies, is not in conflict with our theory that the public administrator's register of actions is a public record, the wilful alteration, falsification or destruction of which is punishable by the terms of sections 113 and 114 of the Penal Code. All that case determined is that under the statutes as they then existed a public administrator was personally liable for the payment of compensation to an attorney hired to probate an estate. That was true until section 1619 of the Code of Civil Procedure, now section 910 of the Probate Code, was amended in 1905 to allow the attorney to apply directly to the estate for his compensation. The Dwinelle case makes no reference to the probate register of the public administrator required by law to be kept. It does, however, concede that the public administrator is a public officer. There can be no doubt of that fact. Section 4013 *334 of the Political Code includes the public administrator among the legally enumerated county officers. The public administrator has been definitely held to be a public officer. (County of Los Angeles v. Kellogg, 146 Cal. 590 [80 P. 861]; Estate of Miller, 5 Cal.2d 588, 593 [55 PaCal.2d 491].) In 21 California Jurisprudence, page 923, section 100, it is said: "A public administrator obtains letters of administration not as an individual, but by virtue of his office." As such public officer the law requires him to keep a register of probate proceedings which is included among the books, documents and records, the wilful alteration, falsification or destruction of which constitutes a felony under the provisions of sections 113 and 114 of the Penal Code.
[3] The court did not err in refusing to give to the jury defendant's proffered instructions numbered 18, 19 and 20. Those instructions were adequately covered by other instructions which were given to the jury in the charge of the court. Defendant's instruction number 18, which was refused, contained four elements. By its terms the jury was charged that the defendant must be acquitted unless they found that, (1) he made the alterations in the administrator's register as charged in each count of the indictment; (2) that the alterations were not made by him "in the ordinary course of business"; (3) that the alterations were false entries in the record, and, (4) that he knew them to be false.
We may assume that alterations in a public record would not violate sections 113 and 114 of the Penal Code unless they are false, and that the accused person knew the alterations were false. If a record is changed in good faith to make an erroneous statement of facts speak the truth, such alteration would lack the criminal intent to violate the provisions of the statute. (People v. Tomalty, 14 Cal.App. 224, 229 [111 P. 513].) The charge which was given to the jury covered all of the elements of the crime included in the refused instruction. The defendant was acquitted on the first count, and we shall, therefore, not consider the application of the omitted instruction to that portion of the indictment. In instruction number 5, the court specifically charged the jury with respect to each essential detail of the offense of "unlawfully, wilfully, knowingly and feloniously" altering, mutilating, falsifying and destroying portions of the public administrator's probate register. The jury was informed *335 with respect to the second count that the defendant removed, destroyed and secreted page 37 of that book affecting the estate of Dillingham, and inserted in lieu thereof "spurious, incomplete and false written entries" which were known to him "to be wholly false". With respect to the third count, the jury was charged that he did "remove, destroy and secrete" page 23 of the probate record affecting the estate of Tarleton, and inserted in lieu thereof "certain spurious, incomplete and false written entries" which were known by him "to be wholly false". With respect to the fourth count the jury was charged that the defendant "did falsify and alter" page 74 of the probate record affecting the estate of Simonton, by changing the figure representing cash receipts so as to reduce a charge of $199 to the sum of $184.50, and changed another item of $184.50 to the sum of $100; that these alterations were wholly false and known to the defendant to be "false, spurious and untrue". That instruction then charged the jury that "each element of the offenses must be so proved", and that every material allegation of each count of the indictment must be proved by the prosecution beyond a reasonable doubt, or the defendant would be entitled to an acquittal. In instruction number 11 the court specifically charged the jury that "alterations made in the ordinary course of business are not prohibited by the said section 114". It follows that the jury was elsewhere fully charged upon every essential element contained in that refused instruction. For the purpose of this appeal the defendant admitted that he made the alterations and changes in the probate register with which he was charged in the indictment. The refusal to give to the jury defendant's instruction number 18 was neither prejudicial nor erroneous.
Instruction number 19, the refusal of which is assigned as erroneous, was covered by instruction number 11, above referred to, which was given to the jury in almost the exact language contained in the refused instruction.
Instruction number 20, the refusal of which is assigned as reversible error, covers the same points which were included in number 18 which we have previously discussed. It merely informed the jury that the defendant could not be convicted unless the prosecution proved beyond a reasonable doubt that the entries which he made in the probate record were false, and that he knew they were false. For the reasons *336 above assigned, the refusal of this instruction was neither prejudicial nor erroneous.
The judgment and the order are affirmed.
Tuttle, J., and Pullen, P. J., concurred.
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976 F.2d 1299
Kenneth L. ERICKSON, Plaintiff-Appellant,v.UNITED STATES of America; Bryon Simon; Douglas Hebert;Kenneth Ingleby; Charles Hill, Defendants-Appellees.
No. 91-55292.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 7, 1992.Decided Oct. 7, 1992.
David M. Korrey, San Diego, Cal., for plaintiff-appellant.
John R. Neece, Asst. U.S. Atty., San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before: WALLACE, Chief Judge, BROWNING, Circuit Judge, and JONES,* District Judge.
PER CURIAM:
1
Erickson appeals the district court's dismissal of his action for damages on several theories of constitutional tort, as well as under the Federal Tort Claims Act (the Act), against the United States government and several officials of the Drug Enforcement Administration (DEA) and the United States Customs Service (Customs Service). Erickson alleges DEA and Customs Service officials sent him to Mexico with inadequate protection, where he was arrested, imprisoned, and tortured by Mexican authorities. He challenges the district court's dismissal of his constitutional tort claims for failure to state a claim, and the court's grant of summary judgment to the defendants on his claim under the Act. We affirm the dismissal of the constitutional tort claim, but vacate and remand the dismissal of Erickson's claim under the Act.
I.
2
While operating a financially troubled limousine service in San Diego, Erickson learned one of his customers wished to purchase an aircraft to smuggle drugs from Mexico into the United States. Erickson contacted the DEA, which arranged for him to meet with DEA agent Herbert and Customs Service agent Simon. At the meeting, Erickson discussed the drug smuggling plans and explained he needed money to support his ailing business. The two agents responded he would receive a percentage of any assets seized as a result of information he provided, and gave Erickson their telephone numbers to enable him to relay information to them. Erickson also alleges the agents promised to protect him. The agents, however, say they warned him they could not guarantee his safety in Mexico.
3
Over the next few months, Erickson periodically contacted the officials and provided them with information. The drug smugglers had purchased an aircraft and Erickson's company was one of the registered owners. Subsequently, the smugglers asked Erickson to go to Mexico to clear up a title dispute concerning the aircraft. Erickson advised agent Herbert of these developments. Erickson alleges Herbert directed him to go to Mexico, find the aircraft, and cause it to land in the United States. Herbert, however, says that, after consulting with his superiors, he told Erickson the DEA would not authorize his trip.
4
Erickson traveled to Mexico. After meeting with the drug smugglers, he was arrested by Mexican authorities and taken to jail, where he was tortured. Initially, the DEA feared news of Erickson's arrest was a ruse by the smugglers designed to expose the DEA's operations. Consequently, the DEA refused to confirm its role with any outsider. However, once it learned Erickson was in the hands of Mexican authorities, DEA officials worked through diplomatic channels to protect him in prison and to secure his release. Erickson was imprisoned for a total of seven months.
II.
5
The district court ruled Erickson "has failed to establish that acts of [the] defendants arose to a constitutional violation. In addition, the individually named defendants would be qualifiedly immune as there was no clearly established constitutional principle prohibiting the acts alleged by the plaintiff."
6
We review de novo the district court's dismissal of Erickson's claims of deprivation and conspiracy to deprive him of his rights under the first, fourth, fifth, and fourteenth amendments to the constitution,1 and may affirm on any ground fairly supported by the record. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989).
7
Fundamental principles of judicial restraint require federal courts to consider nonconstitutional grounds for decision prior to reaching constitutional questions. Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996, 86 L.Ed.2d 664 (1985). Thus, a federal court should decide constitutional questions only when it is impossible to dispose of the case on some other ground. Id.; McMichael v. County of Napa, 709 F.2d 1268, 1271 (9th Cir.1983). Because the doctrine of qualified immunity disposes of this case, we do not reach the question whether the individual defendants violated Erickson's constitutional rights.
8
Qualified immunity is a common law defense available to members of the executive and judicial branches. Scheuer v. Rhodes, 416 U.S. 232, 241, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974); Spalding v. Vilas, 161 U.S. 483, 498-99, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896). The defense protects " 'government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); see also Meyer v. Fidelity Sav., 944 F.2d 562, 575 (9th Cir.1991). We have divided the qualified immunity analysis into three inquiries:
9
(1) the identification of the specific right allegedly violated; (2) the determination of whether that right was so "clearly established" as to alert a reasonable officer to its constitutional parameters; and (3) the ultimate determination of whether a reasonable officer could have believed lawful the particular conduct at issue.
10
Romero, 931 F.2d at 627. Erickson "bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct." Id.
11
Erickson cannot meet his burden of proof. Initially, he fails to identify the specific right allegedly violated, pointing only to the broad, abstract right "to be safe, secure and protected from harm to his body and his business interests." As the Supreme Court has explained, however,
12
if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow [v. Fitzgerald]. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.... It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.
13
Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987). Even if Erickson had identified the rights involved with the requisite specificity, however, we are aware of no authority that clearly establishes a constitutional right against the kind of official conduct involved in this case.
14
We affirm the district court's ruling that the individual defendants are entitled to qualified immunity.
III.
15
We review de novo the district court's grant of summary judgment to the government on Erickson's claims under the Act for negligence and negligent infliction of emotional distress.2 Kruso, 872 F.2d at 1421. Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).
16
Under the Act, the government may be sued for the torts of government employees, with certain exceptions. Cominotto v. United States, 802 F.2d 1127, 1129 (9th Cir.1986). One such exception prevents liability for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). Thus, government agents may be liable only for actions or inactions occurring in the United States. Even as to acts occurring in the United States, a tort action may not be brought on the basis that a government agency or employee performed, or failed to perform, a "discretionary function or duty," even if the discretion involved was abused. 28 U.S.C. § 2680(a). In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the Court explained § 2680(a) will bar a suit if: (1) the agency or employee's action was a matter of choice under the applicable statutes, regulations, and policies; and (2) that choice is grounded in public policy. Id. at 536-37, 108 S.Ct. at 1958-59; Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1025 (9th Cir.1989).
17
The district court did not reach the question whether Erickson's claim arose in the United States or in Mexico. Rather, the court entered summary judgment for the government on the basis of the discretionary function exception. Neither Erickson nor the government offered any evidence that the agents' alleged actions were a matter of choice under the applicable statutes, regulations, and policies. When the district court decided the case, the law in this circuit as to which party had the burden of proving the exception's applicability had not been clearly stated. See Kennewick Irrigation Dist., 880 F.2d at 1027; Seyler v. United States, 832 F.2d 120, 122-23 (9th Cir.1987); ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir.1987). Since the district court's decision, however, we have explicitly stated the government has the burden of proving the discretionary function exception. Prescott v. United States, 959 F.2d 793, 797-98 (9th Cir.1992). The government had no opportunity to provide evidence on this issue and the district court has not yet had an opportunity to apply this new standard. Therefore, we vacate the district court's summary judgment and remand for further proceedings on this issue.
18
The government argues summary judgment can be affirmed on the alternative ground of the Act's foreign country exception. See 28 U.S.C. § 2680(k). Because this is a factually intensive issue that the district court did not address, we will not do so here. On remand, the district court, in its discretion, may entertain a motion for summary judgment based on this defense.
19
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
*
Honorable Robert E. Jones, United States District Judge, District of Oregon, sitting by designation
1
The Supreme Court has held that individuals may sue for damages directly under the Constitution for violations of the fourth and fifth amendments. Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 2278-79, 60 L.Ed.2d 846 (1979) (fifth amendment); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971) (fourth amendment). We have held that an individual may also bring a constitutional tort action for violations of the freedom of speech clause of the first amendment. Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir.1986). We are aware of no authority approving a constitutional tort action against a federal official for a violation of the fourteenth amendment, which applies by its terms only to state action. U.S. Const. amend. XIV, § 1 ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")
2
28 U.S.C. § 1346(b) provides that the United States may be sued for injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 2674 provides, "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."
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15-3321-cv
Poughkeepsie Supermarket Corp. v. Dutchess County
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.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
13th day of May, two thousand sixteen.
Present: ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________________________
POUGHKEEPSIE SUPERMARKET CORP., d/b/a MARKET
FRESH, individually and on behalf of all others similarly situated,
Plaintiff-Appellant,
v. 15-3321-cv
DUTCHESS COUNTY, NEW YORK,
Defendant-Appellee.1
_____________________________________________________
Appearing for Appellant: Robert N. Isseks (Kevin D. Bloom, Bloom & Bloom, P.C., New
Windsor, NY, on the brief), Middletown, NY.
Appearing for Appellee: David L. Posner, McCabe & Mack, LLP, Poughkeepsie, NY.
Appeal from the United States District Court for the Southern District of New York
(Seibel, J.).
1
The Clerk of the Court is respectfully directed to amend the caption as above.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
Plaintiff-appellant Poughkeepsie Supermarket Corp. appeals from the October 15, 2015
opinion and order of the United States District Court of the Southern District of New York
(Seibel, J.), dismissing its complaint under Federal Rule of Civil Procedure 12(b)(6). The
complaint alleged that defendant-appellee Dutchess County’s Local Law No. 9 of 1991, which
requires that price stickers be placed on individual items for sale at retail, compelled commercial
speech in violation of the First Amendment. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.
We review a district court’s grant of a motion to dismiss de novo, construing the
complaint liberally, accepting its factual allegations as true, and drawing all reasonable
inferences in the plaintiff’s favor. See Deutsche Bank Nat’l Trust Co. v. Quicken Loans Inc., 810
F.3d 861, 865 (2d Cir. 2015); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
“It is undisputed that the speech in this case is commercial speech ‘entitled to the
protection of the First Amendment, albeit to protection somewhat less extensive than that
afforded “noncommercial speech.”’” Safelite Grp., Inc. v. Jepsen, 764 F.3d 258, 261 (2d Cir.
2014) (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S.
626, 637 (1985)).2 Restrictions on commercial speech are subject to intermediate scrutiny review
under Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447
U.S. 557 (1980). See Safelite Grp., Inc., 764 F.3d at 261 (“In Central Hudson, the Court
established that a restriction on commercial speech is subject to intermediate scrutiny, that is, a
determination of whether the restriction directly advances a substantial governmental interest and
is not overly restrictive.”). But, under Zauderer, “an informational disclosure law . . . [is] subject
to rational review, that is, a determination of whether the required disclosure is reasonably
related to the state’s interest,” Safelite Grp., Inc., 764 F.3d at 262. See Nat’l Elec. Mfrs. Ass’n v.
Sorrell, 272 F.3d 104, 113-15 (2d Cir. 2001) (explaining why informational disclosure laws are
subject to less scrutiny than are commercial speech restrictions).
Because Local Law No. 9 requires only the disclosure of purely factual and
uncontroversial information—namely, item pricing—about the retailer’s own goods, and because
the disclosure requirement is supported by an interest greater than the gratification of consumer
curiosity, we apply rationality review. See N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556
F.3d 114, 133 (2d Cir. 2009); cf. Safelite Grp., Inc., 764 F.3d at 263-64; Conn. Bar Ass’n v.
United States, 620 F.3d 81, 96 n.16 (2d Cir. 2010). When a party seeks to invalidate a law under
rational review, the “burden of persuasion [is] on the party challenging a law, who must disprove
‘every conceivable basis which might support it.’” Windsor v. United States, 699 F.3d 169, 180
(2d Cir. 2012) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993)), aff’d, 133 S. Ct. 2675 (2013).
2
The district court questioned whether the First Amendment applied to this case, reasoning that
the law at issue regulated conduct, not speech, but did not dismiss the complaint on this ground.
See Poughkeepsie Supermarket Corp. v. County of Dutchess, — F. Supp. 3d —, 2015 WL
6128800, at *3 (S.D.N.Y. Oct. 15, 2015). We note, however, that the parties agree that this law
compels commercial speech.
2
Although Poughkeepsie Supermarket alleges facts seeking to show that some of the reasons for
implementing the law are no longer valid, it failed to allege sufficient facts to demonstrate that
the law was not reasonably related to the state’s valid interest in providing complete price
information to consumers. The district court therefore correctly granted Dutchess County’s
motion to dismiss for failure to state a claim.
We have considered the remainder of Poughkeepsie Supermarket’s arguments and find
them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
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144 U.S. 310 (1892)
UNITED STATES
v.
SANGES.
No. 1454.
Supreme Court of United States.
Argued January 12, 13, 1892.
Decided April 4, 1892.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF GEORGIA.
*311 Mr. Attorney General and Mr. Solicitor General for plaintiff in error.
Mr. W.C. Glenn for defendants in error. Mr. A.H. Garland filed a brief in support of the motion to dismiss.
MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.
The jurisdiction of this court is invoked by the United States under that provision of the Judiciary Act of 1891, by which "appeals or writs of error may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court" "in any case that involves the construction or application of the Constitution of the United States." Act of March 3, 1891, c. 517, § 5; 26 Stat. 827, 828.
But the question which lies at the very threshold is whether this provision has conferred upon the United States the right to sue out a writ of error in any criminal case.
This statute, like all acts of Congress, and even the Constitution itself, is to be read in the light of the common law, from which our system of jurisprudence is derived. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 545; Rice v. Railroad Co., 1 Black, 358, 374, 375; United States v. Carll, 105 U.S. *312 611; Ex parte Wilson, 114 U.S. 417, 422; 1 Kent Com. 336. As aids, therefore, in its interpretation, we naturally turn to the decisions in England and in the several States of the Union, whose laws have the same source.
The law of England on this matter is not wholly free from doubt. But the theory that at common law the King could have a writ of error in a criminal case after judgment for the defendant has little support beyond sayings of Lord Coke and Lord Hale, seeming to imply, but by no means affirming it; two attempts in the House of Lords, near the end of the seventeenth century, to reverse a reversal of an attainder; and an Irish case and two or three English cases, decided more than sixty years after the Declaration of Independence; in none of which does the question of the right of the Crown in this respect appear to have been suggested by counsel or considered by the court. 3 Inst. 214; 2 Hale P.C. 247, 248, 394, 395; Rex v. Walcott, Show. P.C. 127; Rex v. Tucker, Show. P.C. 186; S.C. 1 Ld. Raym. 1; Regina v. Houston (1841) 2 Crawford & Dix, 191; The Queen v. Millis (1844) 10 Cl. & Fin. 534; The Queen v. Wilson (1844) 6 Q.B. 620; The Queen v. Chadwick (1847) 11 Q.B. 173, 205. And from the time of Lord Hale to that of Chadwick's Case, just cited, the textbooks, with hardly an exception, either assume or assert that the defendant (or his representative) is the only party who can have either a new trial or a writ of error in a criminal case; and that a judgment in his favor is final and conclusive. See 2 Hawk. c. 47, § 12; c. 50, §§ 10 et seq.; Bac. Ab. Trial, L. 9; Error, B; 1 Chit. Crim. Law, 657, 747; Stark. Crim. Pl. (2d ed.) 357, 367, 371; Archb. Crim. Pl. (12th Eng. and 6th Am. ed.) 177, 199.
But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority, that the State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.
*313 In a few States, decisions denying a writ of error to the State after judgment for the defendant on a verdict of acquittal have proceeded upon the ground that to grant it would be to put him twice in jeopardy, in violation of a constitutional provision. See State v. Anderson (1844) 3 Sm. & Marsh. 751; State v. Hand (1845) 6 Arkansas, 169; State v. Burris (1848) 3 Texas, 118; People v. Webb (1869) 38 California, 467; People v. Swift (1886) 59 Michigan, 529, 541.
But the courts of many States, including some of great authority, have denied, upon broader grounds, the right of the State to bring a writ of error in any criminal case whatever, even when the discharge of the defendant was upon the decision of an issue of law by the court, as on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment.
The Supreme Court of Tennessee, in 1817, in dismissing an appeal by the State after an acquittal of perjury, said: "A writ of error, or appeal in the nature of a writ of error, will not lie for the State in such a case. It is a rule of the common law that no one shall be brought twice into jeopardy for one and the same offence. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down, by repeated attempts to carry on a prosecution against him. Because of this rule it is that a new trial cannot be granted in a criminal case, where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. This is a rule of such vital importance to the security of the citizen, that it cannot be impaired but by express words, and none such are used in" the statutes of the State. "Neither does the constitution, art. 11, sec. 10, apply, for here the punishment does not extend to life or limb. The whole of this case rests upon the common law rule." State v. Reynolds, 4 Haywood, 110. In a similar case in 1829, the same court said: "The court are unanimously of opinion that no appeal lies for the State from a verdict and judgment of acquittal on a State prosecution. The State, having established her jurisdiction and tried her experiment, should be content. To permit appeals might be the means of unnecessary vexation." State v. *314 Hitchcock, cited in 6 Yerger, 360. In 1834, the same rule was applied, where, after a verdict of guilty, a motion in arrest of judgment had been made by the defendant and sustained by the court. State v. Solomons, 6 Yerger, 360.
In 1820, a writ of error obtained by the attorney for the Commonwealth to reverse a judgment for the defendant on demurrer to an information for unlawful gaming was dismissed by the General Court of Virginia, saying only: "The court is unanimously of opinion, that the writ of error improvidently issued on the part of the Commonwealth, because no writ of error lies in a criminal case for the Commonwealth." Commonwealth v. Harrison, 2 Virg. Cas. 202.
The Supreme Court of Illinois, in two early cases, as summarily dismissed writs of error sued out by the State, in the one case to reverse a judgment of acquittal upon exceptions taken at a trial by jury, and in the other to reverse a judgment reversing for want of jurisdiction a conviction before a justice of the peace. People v. Dill (1836) 1 Scammon, 257; People v. Royal (1839) 1 Scammon, 557.
In 1848, a writ of error by the State to reverse a judgment for the defendant on a demurrer to the indictment was dismissed by the Court of Appeals of New York, upon a careful review by Judge Bronson of the English and American authorities, including several earlier cases in New York in which such writs of error had been brought, of which the court said: "But in none of the cases was the question either made by counsel, or considered by the court, whether the people could properly bring error. Such precedents are not of much importance." People v. Corning, 2 N.Y. 9, 15. That decision has been since recognized and acted on by that court, except so far as affected by express statutes. People v. Carnal, 6 N.Y. 463; People v. Clark, 7 N.Y. 385; People v. Merrill, 14 N.Y. 74, 76, 78; People v. Bork, 78 N.Y. 346.
In 1849, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a writ of error did not lie in a criminal case in behalf of the Commonwealth; and therefore dismissed writs of error sued out to reverse judgments upon indictments in two cases, in one of which the defendant, *315 after pleading nolo contendere, had moved in arrest of judgment for formal defects in the indictment, and thereupon judgment had been arrested and the defendant discharged, and in the other the indictment had been quashed on the defendant's motion. Commonwealth v. Cummings, and Same v. McGinnis, 3 Cush. 212.
In the same year, the Supreme Court of Georgia made a similar decision, dismissing a writ of error sued out by the State upon a judgment quashing an indictment against the defendant; and, in an able and well considered opinion delivered by Judge Nisbet, said: "The rule seems to be well settled in England, that in criminal cases a new trial is not grantable to the Crown after verdict of acquittal, even though the acquittal be founded on the misdirection of the judge. This is the general rule, and obtains in the States of our Union. It excludes a rehearing after acquittal upon errors of law, and therefore, it would seem, denies also a rehearing upon judgments of the court upon questions of law, even when the jury have not passed upon the guilt or innocence of the prisoner. If the effect of the judgment is a discharge, there can be no rehearing, either by new trial or writ of error. Indeed it may be stated, as a general rule, that in criminal cases, upon general principles, errors are not subject to revision at the instance of the State." "These principles are founded upon that great fundamental rule of the common law, Nemo debet bis vexari pro una et eadem causa; which rule, for greater caution and in stricter vigilance over the rights of the citizen against the State, has been in substance embodied in the Constitution of the United States, thus: `Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb.'" After observing that this provision of the Constitution could have no direct bearing upon that case, which was of a misdemeanor only, and in which there had been no trial by jury, the court added: "The common law maxim, and the Constitution are founded in the humanity of the law, and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State. It is, doubtless, in the spirit of this benign rule of the common *316 law, embodied in the Federal Constitution a spirit of liberty and justice, tempered with mercy that, in several of the States of this Union, in criminal causes a writ of error has been denied to the State." State v. Jones, 7 Georgia, 422, 424, 425.
The Supreme Court of Iowa, in 1856, ordered a writ of error sued out by the State, after the defendant had been acquitted by a jury, to be dismissed, not because to order a new trial would be against art. 1, sec. 12, of the constitution of the State, declaring that "no person shall after acquittal be tried for the same offence," (for the court expressly waived a decision of that question,) but only because of "there being no law to authorize a writ of error on the part of the State in a criminal case." State v. Johnson, 2 Iowa, 549.
The Supreme Court of Wisconsin, in 1864, held that a writ of error did not lie in behalf of the State to reverse a judgment in favor of the defendant upon a demurrer to his plea to an indictment. State v. Kemp, 17 Wisconsin, 669. The Supreme Court of Missouri, in 1877, made a similar decision, overruling earlier cases in the same court. State v. Copeland, 65 Missouri, 497. And the Supreme Court of Florida, in 1881, held that the State was not entitled to a writ of error to reverse a judgment quashing an indictment, and discharging the accused. State v. Burns, 18 Florida, 185.
In those States in which the government, in the absence of any statute expressly giving it the right, has been allowed to bring error, or appeal in the nature of error, after judgment for the defendant on demurrer to the indictment, motion to quash, special verdict, or motion in arrest of judgment, the question appears to have become settled by early practice before it was contested.
In North Carolina, the right of the State has been strictly limited to the cases just enumerated, and has been denied even when the defendant was discharged upon a judgment sustaining a plea of former acquittal as sufficient in law, or upon a ruling that there was no legal prosecutor; and the Supreme Court has repeatedly declared that the State's right of appeal in a criminal case was not derived from the common law, or *317 from any statute, but had obtained under judicial sanction by a long practice; and has held that neither art. 4, sec. 8, of the State constitution of 1876, giving that court "jurisdiction to review upon appeal any decision of the courts below upon any matter of law or legal inference," nor art. 4, sec. 27, of the same constitution, providing that in all criminal cases before a justice of the peace "the party against whom judgment is given may appeal to the superior court, where the matter shall be heard anew," gave any right of appeal to the State, but only to the defendant. State v. Hadcock (1802) 2 Haywood, 162; State v. Lane (1878) 78 No. Car. 547; State v. Swepson (1880) 82 No. Car. 541; State v. Moore (1881) 84 No. Car. 724; State v. Powell (1882) 86 No. Car. 640.
The Court of Appeals of Maryland, in 1821, sustained a writ of error by the State to reverse a judgment in favor of the defendants on demurrer to the indictment, citing a number of unreported cases decided in that State in 1793 and 1817. State v. Buchanan, 5 Har. & Johns. 317, 324, 330. But the same court, in 1878, refused to construe a statute of 1872, providing that in all criminal trials it should be lawful for the attorney for the State to tender a bill of exceptions and to appeal, as authorizing the court, on such exceptions and appeal, to order a new trial after a verdict of acquittal. State v. Shields, 49 Maryland, 301.
In Louisiana, in the leading case, the court admitted that to allow the State to bring a writ of error in a criminal case was contrary to the common law of England, to the law of most of the States, and to the general opinion of the bar; and the later cases appear to be put largely upon the ground that the practice had become settled by a course of decision. State v. Jones (1845) 8 Rob. (La.) 573, 574; State v. Ellis (1857) 12 La. Ann. 390; State v. Ross (1859) 14 La. Ann. 364; State v. Taylor (1882) 34 La. Ann. 978; State v. Robinson (1885) 37 La. Ann. 673.
The Supreme Court of Pennsylvania, from an early period, occasionally entertained, without question, writs of error sued out by the State in criminal cases. Commonwealth v. Taylor (1812) 5 Binney, 277; Commonwealth v. McKisson (1822) 8 S. *318 & R. 420; Commonwealth v. Church (1845) 1 Penn. St. 105. The first mention of the question appears to have been in a case in which the only objection taken to the right of the Commonwealth to sue out a writ of error was that the writ had not been specially allowed; of which the court said: "There is nothing in the disabling provisos of the statutes to limit the right of the Commonwealth; and the powers of this court, whether deduced from the common law, from the old provincial act of 1722, or from legislation under our state constitutions, are quite competent to the review of any judicial record, when no statutory restraints have been imposed. It would be very strange if the Commonwealth might not appeal to her own tribunals for justice without the special consent of certain of her own officers." This theory that the State may sue out a writ of error, unless expressly denied it by statute, is opposed to the view maintained by a host of decisions above cited; and it is observable that such judges as Judge Thompson and Judge Sharswood were in favor of quashing writs so sued out. Commonwealth v. Capp (1864) 48 Penn. St. 53, 56; Commonwealth v. Moore (1882) 99 Penn. St. 570, 576.
In many of the States, indeed, including some of those above mentioned, the right to sue out a writ of error, or to take an appeal in the nature of a writ of error, in criminal cases, has been given to the State by positive statute. But the decisions above cited conclusively show that under the common law, as generally understood and administered in the United States, and in the absence of any statute expressly giving the right to the State, a writ of error cannot be sued out in a criminal case after a final judgment in favor of the defendant, whether that judgment has been rendered upon a verdict of acquittal, or upon a determination by the court of an issue of law. In either case, the defendant, having been once put upon his trial and discharged by the court, is not to be again vexed for the same cause, unless the legislature, acting within its constitutional authority, has made express provision for a review of the judgment at the instance of the government.
In the light of these decisions, we come to the consideration *319 of the acts of Congress on the subject of writs of error in criminal cases.
The appellate jurisdiction of this court rests wholly on the acts of Congress. For a long time after the adoption of the Constitution, Congress made no provision for bringing any criminal case from a Circuit Court of the United States to this court by writ of error. At February term, 1803, indeed, this court, no objection being made, took jurisdiction of a writ of error sued out by the United States to the Circuit Court for the District of Columbia in a criminal case. United States v. Simms, 1 Cranch, 252. But at February term, 1805, in a like case, this court, upon full argument and consideration, held that it had no jurisdiction of a writ of error in a criminal case, and overruled United States v. Simms, Chief Justice Marshall saying: "No question was made in that case as to the jurisdiction. It passed sub silentio, and the court does not consider itself as bound by that case." United States v. More, 3 Cranch, 159, 172. And it was thenceforth held to be settled that criminal cases could not be brought from a Circuit Court of the United States to this court by writ of error, but only by certificate of division of opinion upon specific questions of law. Ex parte Kearney, 7 Wheat. 38, 42; Ex parte Gordon, 1 Black, 503; Ex parte Yarbrough, 110 U.S. 651; Farnsworth v. Montana, 129 U.S. 104, 113; United States v. Perrin, 131 U.S. 55.
As to each of the Territories, except Washington, the Revised Statutes provided that final judgments and decrees of its Supreme Court, where the value of the matter in dispute exceeded $1000, might be reviewed by this court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court of the United States. Rev. Stat. §§ 702, 1909. The act of June 23, 1874, c. 469, § 3, provided that a writ of error should lie from this court to the Supreme Court of the Territory of Utah, "in criminal cases, where the accused shall have been sentenced to capital punishment, or convicted of bigamy or polygamy." 18 Stat. 254. The act of March 3, 1885, c. 355, provided, in § 1, that no appeal or writ of error should *320 be allowed from the Supreme Court of a Territory unless the matter in dispute exceeded $5000; and in § 2 that the preceding section should not apply to any case "in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute." 23 Stat. 443. At October term, 1885, this court, without objection, decided upon the merits a writ of error to the Supreme Court of the Territory of Utah by one convicted of a crime which was neither bigamy or polygamy, nor punishable with death. But at the same term, after argument upon its jurisdiction of a like writ of error, the court dismissed both writs of error, and, in answering the objection that it had taken jurisdiction of the first writ, said: "The question of jurisdiction was not considered in fact in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs. Probably both parties desired a decision on the merits." Cannon v. United States, 116 U.S. 55, and 118 U.S. 355; Snow v. United States, 118 U.S. 346, 354. The question whether the provision of the act of March 3, 1885, c. 355, § 2, authorizing a writ of error from this court to the Supreme Court of any Territory in any case "in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States," extended to criminal cases, was then left open, but at October term, 1888, was decided in the negative. Farnsworth v. Montana, 129 U.S. 104.
The manner of bringing up criminal cases from the Circuit Courts of the United States upon a certificate of division of opinion has undergone some changes by successive acts of Congress. Under the act of April 29, 1802, c. 31, § 6, whenever there was a division of opinion in the Circuit Court upon a question of law, the question was certified to this court for decision; provided that the case might proceed in the Circuit Court if in its opinion further proceedings could be had without prejudice to the merits, and that no imprisonment should be allowed or punishment inflicted, upon which the judges *321 were divided in opinion. 2 Stat. 159; United States v. Tyler, 7 Cranch, 285; United States v. Daniel, 6 Wheat. 542; United States v. Bailey, 9 Pet. 267. By the act of June 1, 1872, c. 255, § 1, "whenever, in any suit or proceeding" in a Circuit Court, there occurred any difference of opinion between the judges, the opinion of the presiding judge was to prevail for the time being; but upon the entry of a final judgment, decree or order, and a certificate of division of opinion as under the act of 1802, "either party" might remove the case to this court "on writ of error or appeal, according to the nature of the case." 17 Stat. 196. That act continued in force only about two years, when it was repealed by the Revised Statutes. By sections 650, 652 and 693 of those statutes, its provisions were restricted to civil suits and proceedings; and by sections 651 and 697 the provisions of section 6 of the act of 1802 were reënacted as to criminal cases. Ex parte Tom Tong, 108 U.S. 556, 559. In United States v. Reese, 92 U.S. 214, and in United States v. Cruikshank, 92 U.S. 542, argued at October term, 1874, and decided at October term, 1875, which were brought to this court by the United States, by writ of error and certificate of division of opinion, after judgment according to the opinion of the presiding judge, sustaining a demurrer to the indictment, or a motion in arrest of judgment, it appears, by the records and briefs on file, that the judgment below was entered and the certificate of division made under the act of 1872, and that no objection was taken to the jurisdiction of this court. The exercise of jurisdiction over those cases on writ of error is therefore entitled to no more weight by way of precedent than the exercise of appellate jurisdiction sub silentio in the cases, above cited, of United States v. Simms, 1 Cranch, 252, and Cannon v. United States, 116 U.S. 55.
The first act of Congress which authorized a criminal case to be brought from a Circuit Court of the United States to this court, except upon a certificate of division of opinion, was the act of February 6, 1889, c. 113, § 6, by which it was enacted that "in all cases of conviction" of a capital crime in any court of the United States, the final judgment "against *322 the respondent" might, on his application, be reëxamined, reversed or affirmed by this court on writ of error. 25 Stat. 656. The writ of error given by that act was thus clearly limited to the defendant; and the terms and effect of the act of June 23, 1874, c. 469, § 3, above cited, concerning writs of error from this court to the Supreme Court of the Territory of Utah, as well as those of the act of March 3, 1879, c. 176, giving a writ of error from the Circuit Court of the United States to a District Court, were equally restricted. 18 Stat. 254; 20 Stat. 354.
The provisions of the Judiciary Act of March 3, 1891, c. 517, material to be considered in this case, are those of § 5, by which appeals or writs of error may be taken from a Circuit Court directly to this court in certain classes of cases, among which are "cases of conviction of a capital or otherwise infamous crime," and "any case that involves the construction or application of the Constitution of the United States;" and those of § 6, by which the Circuit Courts of Appeals established by this act have appellate jurisdiction to review, by appeal or writ of error, final decisions in the District and Circuit Courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law," and the judgments or decrees of the Circuit Courts of Appeals are made final "in all cases arising under the criminal laws" and in certain other classes of cases, unless questions are certified to this court, or the whole case ordered up by writ of certiorari, as therein provided. 26 Stat. 827, 828.
The provision of section 5, authorizing writs of error from this court in cases of capital or otherwise infamous crimes, is clearly limited in terms and effect (like the provision of the act of 1889, authorizing a writ of error in cases of capital crimes, and earlier acts, above cited) to convictions only. Whether a writ of error by the defendant in a criminal case of lower grade would be included in the provisions of that section for bringing to this court cases in which the jurisdiction of the court below is in issue, or which involve the construction or application of the Constitution of the United States, or the validity of a law of the United States, or the *323 validity or construction of a treaty, or in which it is contended that the constitution or a law of a State contravenes the Constitution of the United States, is not now before us for decision.
The provision of section 6, giving the Circuit Courts of Appeals in general terms appellate jurisdiction of criminal cases, says nothing as to the party by whom the writ of error may be brought, and cannot therefore be presumed to have been intended to confer upon the government the right to bring it.
In none of the provisions of this act, defining the appellate jurisdiction, either of this court, or of the Circuit Court of Appeals, is there any indication of an intention to confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of the defendant. It is impossible to presume an intention on the part of Congress to make so serious and far-reaching an innovation in the criminal jurisprudence of the United States.
Writ of error dismissed for want of jurisdiction.
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FFP Marketing Company, Inc. v. Long Lane Master Trust IV and MTGLQ Investors, L.P.
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-057-CV
FFP MARKETING COMPANY, INC. APPELLANT
V.
LONG LANE MASTER TRUST IV APPELLEES
AND MTGLQ INVESTORS, L.P.
------------
FROM THE 67
TH
DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
Appellant FFP Marketing Company, Inc. (“FFP Marketing”) appeals from a summary judgment granted by the trial court in favor of Appellees Long Lane Master Trust IV (“LLMT”) and MTGLQ Investors, L.P. (“MTGLQ”). In six issues, FFP Marketing complains that the trial court erred in granting LLMT and MTGLQ’s motion for summary judgment because: (1) LLMT, as a trust, did not have capacity to bring this suit except through a trustee, (2) the amount of the final judgment cannot be calculated from either the face of the judgment or the summary judgment record, (3) LLMT and MTGLQ did not conclusively prove legal ownership of the notes and guaranties, (4) the trial court erred by overruling FFP Marketing’s special exceptions to LLMT and MTGLQ’s motion for summary judgment, (5) the trial court erred by overruling FFP Marketing’s objections to LLMT and MTGLQ’s summary judgment evidence, and (6) the trial court erred by granting a permanent injunction to LLMT and MTGLQ where none was requested in their motion for summary judgment. Because we hold that LLMT and MTGLQ failed to prove their claims as a matter of law, we reverse the trial court’s final judgment, including the injunction, and remand this case for trial on the merits.
I. Background Facts
FFP Operating Partners, L.P. (“FFP Operating”) operates a number of convenience stores and gas stations. In February and June of 1999, FFP Operating executed thirty-one promissory notes (the “Long Lane notes”) in favor of Franchise Mortgage Acceptance Company (“FMAC”). In connection therewith, FFP Marketing executed guaranties of payment (the “Long Lane guaranties”) in favor of FMAC for all thirty-one notes. FFP Operating also executed two additional notes in June of 1999 (the “MTGLQ notes”) in favor of FMAC with corresponding guaranties (the “MTGLQ guaranties”) by FFP Marketing. Loan and security agreements were executed in connection with all thirty-three transactions.
LLMT and MTGLQ assert that Bay View Franchise Mortgage Acceptance Company (“Bayview FMAC”) became the successor in interest to FMAC with respect to the notes, guaranties, and associated loan documents and, in turn, assigned all of its interests to LLMT and MTGLQ. LLMT and MTGLQ also assert that since January 11, 2003, FFP Operating has failed to make payments on the notes as scheduled and therefore has been in default of its obligations under the Long Lane notes and the MTGLQ notes. On January 20, 2003, LLMT gave notice to FFP Operating of the defaults, accelerated the obligations under the Long Lane notes, and demanded payment. MTGLQ did the same with respect to the MTGLQ notes on February 21, 2003.
On August 20, 2003, LLMT and MTGLQ again sent default notices to FFP Operating and demanded payment under the guaranties from FFP Marketing. The notes went unpaid. LLMT asserts that as of September 8, 2003, the outstanding principal under the Long Lane notes was $13,212,199.30, with unpaid interest of $1,488,899.04, and late fees of $9,610.00. Likewise, MTGLQ asserts that as of the same date, the outstanding principal balance under the MTGLQ notes was $373,832.94, with unpaid interest of $41,059.29, and late fees of $917.52.
On April 24, 2003, LLMT and MTGLQ filed suit against FFP Operating and FFP Marketing (collectively “the FFPs”) as a result of the alleged defaults under the thirty-three separate notes and guaranties. LLMT and MTGLQ subsequently filed a combined motion for summary judgment on their respective claims of default under the thirty-three notes and guaranties for the amounts due as of September 8, 2003.
In support of their motion for summary judgment, LLMT and MTGLQ offered the affidavit of Bradford A. Wagoner, Vice President of Asset Management of America, LLC, the general partner of Asset Management Company of America, L.P., the servicer of the Long Lane and MTGLQ notes, guaranties, and related loan documents. Attached to the Wagoner affidavit are sworn copies of those documents. In response, the FFPs amended their original answer to include a verified denial challenging LLMT’s capacity to sue. They also filed a response to LLMT and MTGLQ’s motion for summary judgment which included special exceptions to the summary judgment motion and evidence. Finally, the FFPs filed objections to the Wagoner affidavit.
The trial court held a hearing on the motion for summary judgment and on the objections and special exceptions filed by the FFPs.
Before the trial court ruled, however, FFP Operating filed for bankruptcy protection under chapter 11 of the Bankruptcy Code and was nonsuited from this cause. The trial court entered a final judgment that expressly granted LLMT and MTGLQ’s motion for summary judgment against FFP Marketing, overruled all of FFP Marketing’s special exceptions and objections to summary judgment evidence, and included an injunction pursuant to Texas Civil Practice and Remedies Code section 52.006(e).
(footnote: 1) This appeal resulted.
II. Summary Judgment on the Notes and Guaranties
A. Standard of Review
In a summary judgment case, the issue on appeal is whether the movants met their summary judgment burden by establishing that no genuine issue of material fact exists and that the movants are entitled to judgment as a matter of law.
(footnote: 2) The burden of proof is on the movants, and all doubts about the existence of a genuine issue of material fact are resolved against the movants.
(footnote: 3) Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant.
(footnote: 4)
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true.
(footnote: 5) Evidence that favors the movants' position will not be considered unless it is uncontroverted.
(footnote: 6) The summary judgment will be affirmed only if the record establishes that the movants have conclusively proved all essential elements of the movants' cause of action or defense as a matter of law.
(footnote: 7)
B. Ownership of the Notes and Guaranties
1. Parties’ Contentions
In its third issue, FFP Marketing contends that the trial court erred in granting summary judgment because LLMT and MTGLQ failed to prove conclusively their legal ownership of the respective thirty-three notes and guaranties. LLMT and MTGLQ respond that the notes are negotiable instruments governed by the Texas Uniform Commercial Code, that Texas law requires that they establish that they either own
or
hold the notes and guaranties, and that they established their status as holders of the notes and guaranties. Further, they point out that FFP Marketing has not denied under oath FFP Operating’s execution of the notes, its own execution of the guaranties, or the assignment of the notes and guaranties to LLMT and MTGLQ. LLMT and MTGLQ assert that absent such a sworn challenge, the notes, guaranties and other loan documents are to be received into evidence as fully proved. Accordingly, they argue that no issue of material fact exists as to this element of their cause of action.
In reply, FFP Marketing asserts that this court, along with most other Texas courts of appeals, has historically required a promissory note claimant to prove that he is both the owner
and
holder of the promissory note. In addition, FFP Marketing asserts that the Wagoner affidavit is internally inconsistent and thus insufficient to support summary judgment. FFP Marketing also argues that LLMT and MTGLQ cannot for the first time on appeal assert their entitlement to summary judgment under the Texas Uniform Commercial Code because LLMT and MTGLQ did not plead or prove the elements of a suit on a negotiable instrument. In particular, FFP Marketing argues that LLMT and MTGLQ have not proven that the notes are negotiable instruments subject to article 3 of the Texas Uniform Commercial Code.
2. The Thirty-three Promissory Notes are not Negotiable Instruments;
Proof of Ownership is Therefore Required
The Texas version of the Uniform Commercial Code (“the Code”) recognizes that the holder of a negotiable instrument has the right to enforce the instrument whether or not he is the instrument’s lawful owner.
(footnote: 8) Under the Code, the “holder” of a financial instrument is “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.”
(footnote: 9) However, to be subject to the Code’s governance, a promissory note must be a negotiable instrument.
(footnote: 10) A promissory note is a negotiable instrument subject to the Code if it is a written unconditional promise to pay a sum certain in money, upon demand or at a definite time, and is payable to order or to bearer.
(footnote: 11) The negotiability of an instrument is a question of law.
(footnote: 12)
In the case before us, both the Long Lane notes and the MTGLQ notes broadly define the maker’s liability to include obligations found outside the four corners of the instruments. That is, each note includes the following:
FOR VALUE RECEIVED, the Borrower promises to pay to the order of the Lender the Principal Amount specified above, together with interest, according to the following terms and conditions:
1.
DEFINITIONS.
. . .
. . . .
“
Obligations
”: All indebtedness and all liability, responsibility and obligation of the Borrower, each Guarantor or any of their respective Affiliates to the Lender or to any of the Lender’s Affiliates for payment or performance, whether accrued or contingent, whether direct or indirect, whether arising from tort, contract, or otherwise, and whether incurred in the capacity of maker, co-indorser or obligor or as surety, guarantor or in any other capacity, under: (I) this Note, (ii) the Loan Agreement, (iii) the Indenture, (iv) each Guaranty, (v) the other Loan Documents, or (vi) any other present or future agreement, commitment, undertaking, instrument or obligation of the Borrower to the Lender or any Affiliate of the Lender with respect to the Facility, including any future advances (whether or not pursuant to a written commitment); in each case whether due or to become due or whether now existing or subsequently incurred or arising. The term “
Obligations
” specifically includes but is in no way limited to principal, accrued interest and late payment processing fees under this Note, all advances made by or on behalf of the Lender under the Loan Agreement, the Indenture or any other Loan Document, and all collection and other costs and expenses incurred by or on behalf of the Lender, whether incurred before or after judgment, and specifically includes all Obligations, as such term is defined in the Indenture.
This overarching definition is referenced in several sections of the notes, including
section 2.7, stating that default interest “shall accrue on the outstanding Principal Amount of this Note and the other Obligations at the Default Rate”;
section 3.1, discussing “security for the payment and performance of this Note and the other Obligations”;
section 5.1, stating that, upon the occurrence of a Default Event, “[t]his Note and all of the other Obligations shall at the option of the Lender become immediately due and payable without further notice or demand”;
section 5.3, stating that, after a Default Event, “[t]he Lender may, immediately and without notice, hold, apply, freeze or set-off, on account of any Obligation, (I) funds on deposit with the Lender . . ., (ii) any funds that the Lender . . . may owe to the Borrower or any Guarantor . . . ; and (iii) any other funds or property, tangible or intangible, in or en route to the Lender’s . . . possession or control belonging or owed to the Borrower, [or] any Guarantor”; and
section 7.2., providing that the “Lender shall be under absolutely no duty . . . whatsoever to . . . seek repayment of any Obligation from any particular source.”
The presence of this definition in the notes defeats the sum certain requirement because one cannot determine from the face of each note the extent of the maker’s liability.
(footnote: 13)
In addition, the notes fail the requirement for an unconditional promise because each note specifically “incorporates by reference” the terms of other documents, requiring one to examine those documents to determine if they place conditions on payment.
(footnote: 14) Although a promise is not made conditional by reference to a separate writing for information regarding rights and obligations with respect to collateral,
(footnote: 15) here, as security for each note’s payment and performance, each note incorporates by reference
the terms
of both the loan and indenture agreements executed in conjunction with the transaction:
(footnote: 16)
3.
SECURITY
.
3.1.
Loan Agreement; Indenture
. As security for the payment and performance of this Note and the other Obligations, the Borrower has today signed and delivered the Loan Agreement and the Indenture (as defined in the Loan Agreement), granting the Lender a first lien and security interest in the “Collateral” and the “Trust Property”, as defined in the Loan Agreement. All of the terms of the Loan Agreement and the Indenture are incorporated into this Note by reference, with the same effect as if they were reprinted here in full.
Each note also incorporates by reference the waivers, consents, and acknowledgments of the maker found in other loan documents.
(footnote: 17) Thus, each note is governed by the terms of another writing, requiring one to look outside the note to determine if payment is conditional or if the terms of that document alter the rights with respect to payment. Accordingly, we conclude that the notes in this case are not negotiable instruments.
(footnote: 18) Because the promissory notes in this case are not negotiable instruments, the Code does not govern their enforcement; contract law does.
While negotiation or assignment can change ownership of a promissory note,
(footnote: 19) the endorsement of a non-negotiable promissory note does not create a presumption of ownership in the transferee.
(footnote: 20) Thus, to recover on a non-negotiable promissory note, the holder must establish his status as the instrument’s legal owner.
(footnote: 21) This same proof is required to establish LLMT and MTGLQ’s right to recover on the promissory notes through the guaranties.
(footnote: 22) A general denial is sufficient to raise the issue of legal ownership and places the burden on the plaintiff to prove his status.
(footnote: 23)
3. LLMT and MTGLQ’s Evidence of Ownership Is Internally Controverting
In support of their motion for summary judgment, LLMT and MTGLQ offered the affidavit of Bradford A. Wagoner, Vice President of their loan servicing agent. Attached to the Wagoner affidavit are sworn copies of the notes, guaranties, and related loan documents, including assignment documents evidencing assignment of the mortgages from Bay View FMAC (the alleged successor in interest to FMAC) to LLMT and MTGLQ. FFP Marketing filed no sworn challenge to the execution of the notes, guaranties, or related loan documents, or to the genuineness of the assignment of those instruments to LLMT and MTGLQ. On appeal, LLMT and MTGLQ argue, in effect, that FFP Marketing’s failure to file a verified plea challenging the execution of the instruments or the genuineness of the assignments precludes it from asserting that the evidence is insufficient to prove as a matter of law that LLMT and MTGLQ are both the legal owners and holders of the respective notes and guaranties. We disagree.
The absence of a sworn plea challenging the execution of an instrument or the genuineness of an assignment only affects waiver of a challenge to the execution of the instrument or the genuineness of the assignment; it does not preclude a party from arguing that the evidence is insufficient to support summary judgment.
(footnote: 24) Thus, FFP Marketing is not precluded on appeal from arguing that the evidence is insufficient to establish LLMT’s and MTGLQ’s status as legal owners and holders of the notes and guaranties.
On the other hand, a photocopy of a note attached to the affidavit of the holder, who swears that it is a true and correct copy of the note, is sufficient as a matter of law to prove the status of owner and holder of the note absent controverting summary judgment evidence.
(footnote: 25) In this case, however, controverting evidence is provided by the Wagoner affidavit and attachments. Specifically, FFP Marketing asserts that the Wagoner affidavit is internally inconsistent, and thus insufficient to support summary judgment, because Wagoner asserts in the affidavit that LLMT and MTGLQ are the beneficial owners and holders of the notes and guaranties, not the instruments’ lawful owners. We agree.
Rule 166a(c) of the Texas Rules of Civil Procedure provides in part that a summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.
(footnote: 26) Here, the affidavit testimony of Wagoner directly contradicts the summary judgment evidence attached to his affidavit.
In his affidavit, Wagoner states that LLMT is the current “holder and beneficial owner” of the Long Lane notes, the Long Lane guaranties, and related loan documents. Likewise, in his affidavit, Wagoner states that MTGLQ is the current “holder and beneficial owner” of the MTGLQ notes, the MTGLQ guaranties, and related loan documents. But attached to the Wagoner affidavit are copies of the notes, guaranties, and related loan documents, including evidence of assignment of
legal
ownership of those documents to LLMT and MTGLQ.
In his affidavit, Wagoner does not explain the inconsistency between the assertion in the affidavit that the ownership is beneficial and the implication in the attachments that the ownership is legal, nor do LLMT and MTGLQ attempt to explain the inconsistency on appeal. This inconsistency is sufficient to raise an issue because there is a difference under Texas law between the beneficial or equitable owner of a promissory note and the note’s legal owner.
(footnote: 27)
For example, under Texas law, the legal owner of a promissory note may maintain a cause of action even though actual or beneficial ownership of the note lies in another.
(footnote: 28) The beneficial owner of a promissory note is not even a necessary party to a suit on the note.
(footnote: 29) Importantly, it is legal ownership that must be proved to enforce a note.
(footnote: 30) Thus the inconsistency between the Wagoner affidavit and its attachments is sufficient to establish a genuine issue of material fact precluding summary judgment.
(footnote: 31) Resolving all conflicts in the evidence in favor of FFP Marketing, we hold that a genuine issue of material fact exists as to the current ownership of the notes and guaranties; consequently, LLMT and MTGLQ did not prove legal ownership of the notes and guaranties as a matter of law.
(footnote: 32) Accordingly, we sustain FFP Marketing’s third issue.
Because of our disposition of this issue we need not address the remainder of FFP Marketing’s issues; in the interest of judicial economy, however, we will address FFP Marketing’s fourth issue to the extent that it argues that LLMT and MTGLQ failed to conclusively prove the current balance due under the notes and guaranties.
(footnote: 33)
C. Amount Due
In its fourth point, FFP Marketing contends that the trial court erred by granting summary judgment based on an aggregated amount due and owing on the thirty-three separate promissory notes and guaranties. In addition, FFP Marketing asserts that the trial court erred in granting summary judgment because LLMT and MTGLQ failed to establish the applicable rate of interest on each note as a matter of law.
In a cause of action on a promissory note, the plaintiff must establish the amount due on the note.
(footnote: 34) Generally, an affidavit that sets forth the total balance due on a note is sufficient to sustain an award of summary judgment.
(footnote: 35)
Detailed proof of the balance is not required.
(footnote: 36) However, the summary judgment evidence must establish the applicable rate of interest on a note as a matter of law, otherwise the movants have failed to meet their summary judgment burden to establish the amount due on the note.
(footnote: 37) Further, where an affidavit submitted in support of summary judgment lumps the amounts due under multiple notes with varying terms and provisions, an ambiguity can arise as to the balance due, precluding summary judgment.
(footnote: 38)
In the case before us, each note provides for interest at the lesser of the interest rate specified in the note or at the highest rate allowed by Connecticut law. Similarly, in the event of default, each note provides for interest at the lesser of five percent over the note rate or the highest rate allowed by Connecticut law. Because nothing in the summary judgment evidence establishes the highest rate allowed under Connecticut law or, consequently, the actual default rate charged on any single note, we conclude that the evidence is insufficient to prove the applicable rate of interest for each note as a matter of law.
(footnote: 39)
Further, Wagoner’s affidavit provides that as of September 8, 2003, FFP Marketing owed $13,212,199.30 in principal, $1,488,899.04 in interest, and $9,610.00 in late fees, for a total of $14,710,708.34 on the thirty-one Long Lane notes. Similarly, the affidavit also provides that as of the same date, FFP Marketing owed $373,832.94 in principal, $41,059.28 in interest, and $917.52 in late fees, for a total of $415,809.24 on the two MTGLQ notes. FFP Marketing argues that Wagoner is an interested witness and that by providing only aggregated amounts due respectively under the thirty-one Long Lane notes and the two MTGLQ notes, the Wagoner affidavit fails the requirement of rule 166a(c) that an interested witness affidavit be easily controvertible.
(footnote: 40)
Specifically, FFP Marketing argues that the assertion of an aggregated amount due effectively denied it the opportunity at the trial court level to controvert the alleged amounts due on each note.
LLMT and MTGLQ respond that the assertion of a lump sum is sufficient to establish the amounts due on each note. In support of their assertion, LLMT and MTGLQ argue that this court, in
L&T Charters
,
Inc. v. American National Leasing Company
, recently held that an affidavit asserting a single collective balance due under multiple leases was sufficient to established a sum certain.
(footnote: 41) We disagree with LLMT and MTGLQ’s interpretation of our holding in that case
.
In
L&T Charters
,
the issue was not whether the
evidence
was sufficient to support the motion for summary judgment, but rather, whether the
final judgment
was sufficiently certain so that it could be understood and enforced by a ministerial officer.
(footnote: 42) Accordingly, this court’s holding in
L&T Charters
has no application to the case before us. After reviewing the summary judgment evidence, we conclude that the assertion of a lump sum balance, given multiple notes with varying principal balances and interest rates, creates an ambiguity sufficient to preclude summary judgment.
(footnote: 43)
Thus, because (1) no summary judgment evidence establishes the applicable interest rate on each note as a matter of law, and (2) an ambiguity exists in the summary judgment proof as to the amounts due on each note, we hold that LLMT and MTGLQ failed to establish the amounts due on each note as a matter of law.
(footnote: 44) Accordingly, we sustain FFP Marketing’s fourth issue to the extent that it contends that LLMT and MTGLQ failed to conclusively prove the current balance due on each note and guaranty.
III. Conclusion
Having held that LLMT and MTGLQ failed to establish as a matter of law (1) legal ownership of the promissory notes and guaranties and (2) the amount due on each note and guaranty, we reverse the trial court’s final judgment, including the injunction, and remand the case to the trial court for trial on the merits.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DELIVERED: July 7, 2005
FOOTNOTES
1:Tex. Civ. Prac. & Rem. Code Ann.
§ 52.006(e) (Vernon Supp. 2004-05).
2:Tex. R. Civ. P.
166a(c);
S.W. Elec. Power Co. v. Grant
,
73 S.W.3d 211, 215 (Tex. 2002);
City of Houston v. Clear Creek Basin Auth.
, 589 S.W.2d 671, 678 (Tex. 1979).
3:S.W. Elec. Power Co.
,
73 S.W.3d at 215;
Sci. Spectrum
,
Inc. v. Martinez
, 941 S.W.2d 910, 911 (Tex. 1997);
Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co.
, 391 S.W.2d 41, 47 (Tex. 1965).
4:Great Am.
, 391 S.W.2d at 47.
5:Harwell v. State Farm Mut. Auto. Ins. Co.
, 896 S.W.2d 170, 173 (Tex. 1995).
6:Great Am.
, 391 S.W.2d at 47.
7:Clear Creek Basin
, 589 S.W.2d at 678.
8:Tex. Bus. & Com. Code Ann.
§ 3.301 (Vernon 2002);
Jernigan v. Bank One
, 803 S.W.2d 774, 776 (Tex. App.—Houston [14th
Dist.] no writ) (indicating the Texas Business and Commerce Code allows for recovery by either the owner or holder of a promissory note).
9:Tex. Bus. & Com. Code Ann.
§ 1.201(21)(A) (Vernon Supp. 2004-05).
10:See id.
§ 3.102(a) (Vernon 2002).
11:Id.
§ 3.104(a);
Diversified Fin. Sys.
,
Inc. v. Hill
,
Heard
,
O’Neal
,
Gilstrap
,
& Goetz
,
P.C.
, 99 S.W.3d 349, 357 (Tex. App.— Fort Worth 2003, no pet.).
12:Cartwright v. Mbank Corpus Christi
,
N.A.
,
865 S.W.2d 546, 549 (Tex. App.—Corpus Christi 1993, writ denied).
13:See
Tex. Bus. & Com. Code Ann.
§ 3.104(a);
Bailey
,
Vaught
,
Robertson and Co. v. Remington Invs.
,
Inc.
, 888 S.W.2d 860, 864 (Tex. App.—Dallas 1994, no writ) (indicating “sum certain” requirement is designed to provide commercial certainty in transfer of negotiable instruments and to make negotiable instruments functional equivalent of money).
14:See
Tex. Bus. & Com. Code Ann.
§ 3.106(a).
15:See id
§ 3.106(b).
16:See Resolution Trust Corp. v. 1601 Partners
,
Ltd.
, 796 F. Supp. 238, 240 (N.D. Tex. 1992) (holding promissory note non-negotiable where deed of trust was incorporated by reference into promissory note).
17:See Cont’l Nat’l Bank of Fort Worth v. Conner
, 147 Tex. 218, 214 S.W.2d 928, 931 (1948) (indicating that an otherwise negotiable instrument can be rendered non-negotiable if it is burdened with the conditions of another agreement).
18:See
Tex. Bus. & Com. Code Ann.
§§ 3.104(a), 3.106(a);
Cont’l Nat’l Bank of Fort Worth
, 214 S.W.2d at 931;
Bailey
,
Vaught
,
Robertson and Co.
,
888 S.W.2d at 864;
Resolution Trust Corp.
, 796 F. Supp. at 240.
19:See Dillard v. NCNB Tex. Nat’l Bank
, 815 S.W.2d 356, 360 (Tex. App.—Austin 1991, no writ),
overruled on other grounds
,
Amberboy v. Societe de Banque Privee
, 831 S.W.2d 793, 797 (Tex. 1992).
20:See Diversified Fin. Sys.
, 99 S.W.3d at 357.
21:See id
. at 353;
Dillard
,
815 S.W.2d at 359 (
requiring plaintiff to establish ownership to recover in case involving non-negotiable promissory note);
see also Nitishin v. Fed. Debt Mgmt.
,
Inc.
, No. 05-95-00531-CV, 1996 WL 76232, at *4 (Tex. App.—Dallas Feb. 21, 1996, no writ) (not designated for publication) (indicating where a note is non-negotiable, a transferee can still recover as the owner of the note).
22:See Universal Metals & Mach.
,
Inc. v. Bohart
, 539 S.W.2d 874, 877-78 (Tex. 1976).
23:See
Tex. R. Civ. P.
92;
Schindler v. AG Aero Distribs.
,
Inc.
, 502 S.W.2d 581, 585 (Tex. Civ. App.—Corpus Christi 1973, no writ).
24:See
Tex. R. Civ. P.
93(7), (8);
Vahlsing v. Collier Cobb & Assocs. of Dallas
,
Inc.
, 560 S.W.2d 117, 117-118 (Tex Civ. App.—Dallas 1977, no writ) (indicating failure to file sworn plea waives challenge to genuineness of assignment, it does not dispense with proof of the existence of the transfer);
Am. Fiber Glass
,
Inc. v. Gen. Elec. Credit Corp.
, 529 S.W.2d 298, 300 (Tex. Civ. App.—Fort Worth 1975, writ ref’d n.r.e.) (indicating failure to file sworn plea waives challenge to execution of note, but that note must be introduced into evidence to prove its terms);
see also Clear Creek Basin
, 589 S.W.2d at 678 (indicating that failure to file response does not preclude one from arguing on appeal that evidence is insufficient as a matter of law to support summary judgment).
25:Zarges v. Bevan
, 652 S.W.2d 368, 369 (Tex. 1983).
26:Tex. R. Civ. P.
166a(c).
27:See Russell v. People’s Nat’l Bank of Belton
, 2 S.W.2d 961, 962 (Tex. Civ. App.—Austin 1928, writ ref’d);
Rabb v. Seidel
, 218 S.W. 607, 610-11 (Tex. Civ. App.—San Antonio 1920),
rev’d on other grounds
, 250 S.W. 420 (Tex. Comm. App. 1923).
28:Russell
, 2 S.W.2d at 962;
Rabb
, 218 S.W. at 610-11.
29:Rabb
, 218 S.W. at
611.
30:See Diversified Fin. Sys.
, 99 S.W.3d at 354.
31:See
Tex. R. Civ. P.
166a(c).
32:See Harwell
, 896 S.W.2d at 173.
33:See
Tex. R. App. P.
47.1.
34:See e.g.
,
Diversified Fin. Sys.
, 99 S.W.3d at 357.
35:Martin v. First Republic Bank
,
Fort Worth
,
N.S.
, 799 S.W.2d 482, 485 (Tex. App.—Fort Worth 1990, writ denied).
36:Hudspeth v. Investor Collection Servs. Ltd. P’ship
, 985 S.W.2d 477, 479 (Tex. App.—San Antonio 1998, no pet.).
37:See Bailey
,
Vaught
,
Robertson and Co.
, 888 S.W.2d at 867.
38:See Gen. Specialties
,
Inc. v. Charter Nat’l Bank—Houston
, 687 S.W.2d 772, 774 (Tex. App.—Houston [14th
Dist.] 1985, no writ).
39:See Bailey
,
Vaught
,
Robertson and Co.
, 888 S.W.2d at 867.
40:See
Tex. R. Civ. P.
166a(c).
41:See
No. 2-03-379-CV, 2004 WL 1219079, at *2 n.3 (Tex. App.—Fort Worth June 3, 2004, no pet.) (mem. op.).
42:See id.
at *1.
43:See Gen. Specialties
,
Inc.
, 687 S.W.2d at 774.
44:See
id
.;
Bailey
,
Vaught
,
Robertson and Co.
, 888 S.W.2d at 867.
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447 N.W.2d 562 (1989)
STATE of Iowa ex rel. Catherine Hansen EVERS, Appellee,
v.
Kim Carl BERRIDGE, Appellant.
No. 88-853.
Court of Appeals of Iowa.
August 23, 1989.
Clemens Erdahl, Iowa City, for appellant.
Thomas J. Miller, Atty. Gen., and J. Livingston Dunkle, Asst. Atty. Gen., for appellee.
Considered by OXBERGER, C.J., and HAYDEN and SACKETT, JJ.
OXBERGER, Chief Judge.
Kim Carl Berridge appeals from the district court order reinstating his $200 per month child support obligation even though he executed his consent to the adoption of his child and relinquished his parental rights in writing. The child was never adopted. Berridge contends the possible nonoccurrence of the adoption was within the contemplation of the parties and the court in 1983 and was therefore not a change of circumstance warranting a modification of the 1983 stipulated order. He also contends that because the State participated in the 1983 agreement through counsel it is therefore estopped from seeking to modify the resulting 1983 stipulated order. *563 Finally, he contends that under the circumstances of this case, the reinstatement of his child support obligation denied him due process and equal protection. Our scope of review is de novo. Affirmed.
Berridge fathered a child born in March 1980 to Catherine Hansen. They were never married. In 1981 Catherine married Richard Evers. Evers expressed the intent to adopt the child, but never did. Evers assumed a father role. The Hansen-Evers marriage dissolved in 1985. The State sought support under Chapter 252A of The Code from the natural father of the child when Catherine Hansen Evers began to receive AFDC benefits in 1983. The State entered into a court-approved agreement whereby Berridge acknowledged paternity and agreed to pay support until such time as he executed a relinquishment of parental rights and a consent to the child's adoption. The stipulated agreement was incorporated by reference in the paternity decree and support order issued by the court. Berridge executed the relinquishment and consent, and ceased support payments. In December 1986 the State filed a petition to modify the above paternity order, asking to reinstate the support obligation on Berridge because it was apparent that Mr. Evers never would adopt the child. The district court concluded that failure of the contemplated adoption was a substantial change of circumstances warranting a modification of the 1983 stipulated order.
A substantial change of circumstances not within the contemplation of the trial court and the parties when the original decree was entered enables modification of a 252A decree. Dep't of Social Services, ex rel. Brecht v. Brecht, 255 N.W.2d 342, 346 (Iowa 1977).
The decree at issue is a 252A court order of support and judgment for reimbursement on a finding of paternity. A stipulation regarding the execution of relinquishment of parental rights and consent to adoption was incorporated in the order by reference. Berridge has a statutory obligation to support this child. "[C]hildren are not responsible for their existence, and are necessarily dependent upon their father for support." Morrison v. Morrison, 208 Iowa 1384, 1388, 227 N.W. 330, 332 (1929). A father cannot be relieved from his duty to support a child by agreement of the mother. State of Iowa, ex rel. Iowa Dep't of Social Services v. Blakeman, 337 N.W.2d 199, 203 (Iowa 1983). Parental agreements which have the effect of making a child a public charge cannot be countenanced. Anthony v. Anthony, 204 N.W.2d 829, 833 (Iowa 1973). A parent cannot seek to terminate parental rights in regard to a child solely to relieve himself or herself of the child support obligation. In the Interest of D.W.K., 365 N.W.2d 32, 35 (Iowa 1985).
The agreement was essentially between Berridge and the State. The State was bargaining for recovery of AFDC payments from the natural father and imposition of support liability on someone other than the State, hopefully the acting father, soon to be adoptive parent. In exchange for complying with the State's solicitation of the clear path for adoption, Berridge bargained for release from further support obligation for his biological child. It could be argued that Berridge substantially performed when he signed his consent and release. The agreement did not specify that the agreement was conditioned on the prospective adoptive parent completing the adoption process. We hold that an agreement that fails to provide financial support for a child is void as against the public policy. See Anthony v. Anthony, 204 N.W.2d at 834 (waiver of decretory child support in exchange for surrender of visitation rights void as against public policy). When a parent contracts away his statutory duty to support his child, there must be another person who assumes the duty to support the child. Agreements that leave the financial obligation to support the child on the state are void as contrary to public policy.
Berridge does not contest paternity of the child. Paternity was further substantiated by the result of blood tests prior to the 1983 agreement. Iowa Code section 675.1 states in relevant part: "The parents of a child born out of wedlock ... owe the child *564 necessary maintenance, education, and support."
The State Department of Social Services has a cause of action through Iowa Code section 675.4 which states in relevant part: "The obligation of the father ... creates also a cause of action ... on behalf of third persons furnishing support ... where paternity has been judicially established ... or where paternity has been acknowledged by the father in writing ..." Paternity was judicially determined in 1983 and Berridge signed a writing admitting paternity.
Iowa Code section 675.5 provides that "[t]he obligation of the father other than that under the law providing for the support of poor relatives is discharged by complying with a judicial decree for support or with the terms of a judicially approved settlement. The legal adoption of a child into another family discharges the obligation for the period subsequent to the adoption."
Berridge complied with the stipulated paternity and support agreement incorporated in the court order of May 26, 1983, to the extent of executing his consent and relinquishment statement. However, it was understood by all parties that this formality was a condition precedent to the adoption of the child. The adoption seemed imminent at the time of the execution. But only the actual adoption could release Berridge from his obligation. Any other interpretation contravenes public policy.
The adoption never occurred. Therefore, the relinquishment of parental rights and release for adoption was never finalized by a court of law. Berridge's obligation to support his child continues. Berridge is still the legal father of this child and responsibilities flow from that status.
Berridge may petition the court for visitation rights under Iowa Code § 675.40. However, he cannot deny his support obligation simply by failing to exercise his parental rights.
Berridge's contention that he was deprived of due process and equal protection by judicial reinstatement of the support order is without merit. Berridge argues that he "was adjudicated the natural father by agreement, with the understanding he would not act as the father and would not pay as the father." He further contends that the fact that he was the father was never litigated.
Berridge admitted he is the father of the child in stipulation. The trial court decreed that Berridge was the father and incorporated the stipulations into the support order on May 26, 1983. The record includes an affidavit stating that Berridge is the father filed by the doctor who interpreted the results of the blood test given to Berridge to establish paternity. A trial on the issue of paternity culminated in the judgment of paternity and order of support.
Berridge had sufficient notice of the impending obligation that attends to fatherhood. He had the opportunity to be heard and was in no way enticed to sacrifice his parental rights in exchange for abatement of his duty to support his child. He was notified of the fact that his child was not adopted and was heard at the instant trial. He is not being substantially deprived of a fundamental right or interest in property by the trial court ruling. The record includes his financial statement as evidence of his ability to support his child. He is simply being held to the obligation to support his child.
AFFIRMED.
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735 F.2d 1366
Smithv.Chrans
83-2413
United States Court of Appeals,Seventh Circuit.
5/10/84
1
S.D.Ill.
AFFIRMED
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56 F.Supp.2d 716 (1999)
DELTA ENVIRONMENTAL PRODUCTS, INC., Ecological Tanks, Inc. and Aquaklear, Inc. Plaintiffs
v.
H.E. McGREW, Jr. Individually, H.E. McGrew, Inc., McGrew Construction Co., Inc., William A. Stegall, Individually, and Mo-Dad-1, Inc. Defendants
Mo-Dad-1, Inc. Counter-Plaintiff
v.
Aquaklear, Inc., Grady A. Tucker, Jr. and Marty Tittlebaum Counter-Defendants
No. CIV. A. 398CV550LN.
United States District Court, S.D. Mississippi, Jackson Division.
May 10, 1999.
Walter C. Morrison, IV, Upshaw, Williams, Biggers, Beckham & Riddick, Jackson, MS, for Plaintiffs.
*717 Alexander A. Alston, Jr., Joseph S. Gatlin, III Alston & Jones, David C. Dunbar, Grover Clark Monroe, II, Harris, Geno & Dunbar, P.A., Jackson, for Defendants.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, Chief Judge.
This cause is before the court on motion of counter-defendants Aquaklear, Inc., Grady A. Tucker, Jr. and Marty Tittlebaum to dismiss certain allegations by counter-plaintiff Mo-Dad-1, Inc. (Mo-Dad) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Counter-plaintiff Mo-Dad has responded in opposition.[1] The court, having considered the motion and submissions of the parties, finds that the motion is well taken and should be granted.
On or about August 18, 1998, plaintiffs filed a complaint against Mo-Dad and others alleging, inter alia, violations of the Lanham Act, stemming from the marketing and sale of certain aerobic treatment units. Thereafter, Mo-Dad filed a counterclaim against counter-defendants alleging various business torts. Specifically, in Paragraph 14 of Count 1 of the counterclaim, Mo-Dad alleges that "Counter-Defendants ... competed against Counter-Plaintiff while still working on its behalf and usurped opportunities within the Mississippi market that belonged to Counter-Plaintiff for their own benefit...." (Emphasis added.) Counter-defendants have moved to dismiss the allegation of usurpation of corporate opportunities contending that since the doctrine of "corporate opportunity" prohibits only officers and directors of a corporation from misappropriating corporate opportunities, and since neither Tucker nor Tittlebaum ever held such positions with Mo-Dad, they may not be held liable under this doctrine.
The existence of a duty or obligation to a business association is a creature of state common law. Gearhart Indus., Inc. v. Smith Intern., Inc., 741 F.2d 707, 719 (5th Cir.1984). Thus, the court looks to Mississippi law on the issue of counter-defendants' alleged duties to Mo-Dad. In this regard, the Mississippi Supreme Court discussed the "corporate opportunity" doctrine at length in Hill v. Southeastern Floor Covering, 596 So.2d 874 (Miss.1992), a case which received by far the most attention in the parties' briefs and which both parties cite in support of their respective positions.
Characterizing it as "[o]ne of the ways that the duty of good faith and loyalty may be breached," Hill defined the doctrine of corporate opportunity by stating, "`The doctrine ... prohibits directors and officers from appropriating to themselves business opportunities which in fairness should belong to the corporation.'" Hill, 596 So.2d at 877 (quoting 19 C.J.S. Corporations § 513 (1990)) (emphasis added). Since he was general manager of the corporation, "responsible for the day to day operations of the business and [with] full authority to do what he felt was best *718 for the business," the court held that the defendant was indeed an "officer" of the corporation and therefore subject to the corporate opportunity doctrine. Id.[2]
Turning to the allegations in the instant case, counter-plaintiff avers that Tucker was Mo-Dad's exclusive sales representative in Mississippi and that he had access to confidential and proprietary information regarding design, sales, engineering requirements, future development plans, dealer identities and installation of Mo-Dad's products. Tittlebaum, according to the counterclaim, was a consultant for Mo-Dad who helped design and test systems manufactured for Mo-Dad and who, as a "trusted confidant" of counter-plaintiff, had confidential and proprietary information regarding the design, engineering, production, new product development and strategies of Mo-Dad.
Counter-plaintiff argues that "by virtue of their position and responsibilities," Tucker and Tittlebaum "should be subject to the doctrine of corporate opportunity." Counter-plaintiff reads Hill as standing for the proposition that the term "officer," in the context of the corporate opportunity doctrine, refers to "any employees whose duties place them in a position of substantial authority or responsibility within the corporation." Tucker and Tittlebaum held "key positions," the argument goes, "by virtue of which [they] owed fiduciary duties to Mo-Dad."
Counter-plaintiff construes Hill too broadly. While the court did appear to indicate that title alone is not dispositive of who is and who is not an "officer" within a corporation, there is no indication at all that an employee with neither executive nor administrative authority could be fairly considered an "officer" for the purpose of the corporate opportunity doctrine. In fact, Hill introduced its discussion of the issue by stating that the defendant "occupied the position of general manager ... and was not just a mere employee.... [He] had full authority to do what he felt was best for the business." Hill, 596 So.2d at 874 (emphasis added). This focus on the employee's managerial or executive authority is consistent with the approach taken by courts in other jurisdictions when determining whether a particular individual is an "officer" of a corporation.[3]
In the case sub judice, it is undisputed that Tucker and Tittlebaum did not hold the traditional "officer" positions of president, vice-president or the like while employed by Mo-Dad. In addition, there is no allegation in the counterclaim that they had such significant authority as to have "general charge, direction, and control" of the affairs of Mo-Dad or that they were entrusted with any degree of administrative or executive functions. Counter-plaintiff does not allege that Tucker and Tittlebaum had "general power" to exercise their "judgment and discretion in dealing with corporate matters." There is certainly no indication that they "had full authority to do what [they] felt was best for the business."
Based on the foregoing, the court concludes that counter-plaintiff has failed to plead any allegation which would support a claim under Mississippi law that Tucker or *719 Tittlebaum were "officers" of Mo-Dad. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995)(dismissal is proper under Rule 12(b)(6) if the complaint lacks an allegation regarding a required element necessary to obtain relief). As a result, these counter-defendants are not subject to the doctrine of usurpation of corporate opportunities, and this aspect of the counter-claim is dismissed.[4]
NOTES
[1] As an alternative form of relief, counter-plaintiff requests in its response to the motion to dismiss that it be granted "leave ... to amend its Counterclaim ... as a matter of course, as provided for in Federal Rule of Civil Procedure 15." Federal Rule of Civil Procedure 15(a) provides that "[a] party may amend his pleadings once as a matter of course at any time before a responsive pleading is served...." Subsequent to the filing of the counterclaim, counter-defendants have thus far filed only this motion to dismiss, which is not a "responsive pleading." McGruder v. Phelps, 608 F.2d 1023, 1025 (5th cir.1979). Therefore, counter-plaintiff's right to amend its counterclaim as a matter of course remains, at this point, unimpeded. See Barksdale v. King, 699 F.2d 744, 747 (5th Cir.1983). The court would point out, however, that even had counter-defendants filed a "responsive pleading," the court likely would have granted leave to amend the counterclaim insofar as "`[a] dismissal under Rule 12(b)(6) is generally not final or on the merits, ... and a [party] should normally be given leave to file an amended [pleading].'" In re Ford Motor Co. Bronco II Prod. Liab. Litig., No. MD L-991, 1995 WL 491155, *5 (E.D.La.1995)(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed.1990)).
[2] The court further described a general manager as having "`general charge, direction, and control of the affairs of the company for the carrying on of which it was incorporated.'" Id. (quoting 19 C.J.S. Corporations §§ 468-71 (1990)).
[3] See, e.g., Lewis v. LeBaron, 254 Cal.App.2d 270, 61 Cal.Rptr. 903, 911 (1967)(defendant denied he was corporate officer, but court held he was, noting that "it appears that he executed a recorded deed for the corporation as its secretary," and that "[h]e was certainly [the corporation's] attorney"); Colonial Capital Co. v. General Motors Corp., 29 F.R.D. 514, 517 (D.Conn.1961)(clerical employee responsible for handling scheduling and shipment of dealers' car orders and for supervision of fleet sales has "no general power to exercise his judgment and discretion in dealing with corporate matters" and thus is not an officer); see also 48 Bus. Law. 215, 216 (1992)("The term `officer' is properly applicable only to those in whom administrative and executive functions have been entrusted and does not apply to those without judgment or discretion as to corporate matters.").
[4] The court is not suggesting that Tucker and Tittlebaum owed no fiduciary duties to Mo-Dad. However, while it is true that the Mississippi Supreme Court has used the broader term "corporate fiduciary" in discussing the doctrine of corporate opportunity, see, e.g., Ellzey v. Fyr-Pruf, Inc., 376 So.2d 1328, 1332 (Miss.1979), counter-plaintiff has cited no Mississippi cases and the court is aware of none applying the doctrine to any person other than a director, officer or other comparable official with managerial and executive authority within the corporation. The court has certainly uncovered no case standing for the proposition that this doctrine applies to all corporate fiduciaries. Cf. DSC Communications v. Next Level Communications, 107 F.3d 322, 326 (5th Cir.1997)(applying Texas law).
In fact, the only case aside from Hill cited by counter-plaintiff in support of its position on this issue is Derouen v. Murray, 604 So.2d 1086 (Miss.1992). In that case, the court described the corporate opportunity doctrine as concerning the actions of "directors and senior executives" and held that the doctrine was fully applicable to one who was "president, director and fifty percent shareholder in [the corporation]." Derouen, 604 So.2d at 1092. Derouen, like Hill, is distinguishable from the facts as pled in this case, and there is nothing in that opinion inconsistent with the court's dismissal of counter-plaintiff's corporate opportunity claim.
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Order Michigan Supreme Court
Lansing, Michigan
May 26, 2020 Bridget M. McCormack,
Chief Justice
160537 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 160537
COA: 348962
Saginaw CC: 14-039965-FC
MARKEST DIONTE THOMPSON,
Defendant-Appellant.
_____________________________________/
On order of the Court, the application for leave to appeal the September 23, 2019
order of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
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.
May 26, 2020
t0518
Clerk
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207 Pa. Superior Ct. 526 (1966)
Meyers
v.
Aetna Life Insurance Company, Appellant.
Superior Court of Pennsylvania.
Argued March 23, 1966.
April 26, 1966.
*527 Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
George M. Brodhead, with him Donald M. Tucker, Peter C. Paul, and Rawle & Henderson, for appellant.
M. Carton Dittmann, Jr., with him Morris Cheston, Jr., and Ballard, Spahr, Andrews & Ingersoll, for appellee.
OPINION PER CURIAM, April 26, 1966:
The order of the Court of Common Pleas of Philadelphia County is affirmed on the opinion of Judge CHARLES A. WATERS for the court below, reported at 39 Pa. D. & C. 2d 1.
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849 So.2d 87 (2003)
TOWN OF CHURCH POINT, et al.
v.
ACADIA PARISH POLICE JURY, et al.
No. 03-890.
Court of Appeal of Louisiana, Third Circuit.
July 14, 2003.
Order Denying Rehearing July 15, 2003.
J. Lee Wimberley, Jr., Vidrine & Wimberley, Church Point, LA, for Plaintiffs/Appellants *88 Town of Church Point, Et Al.
Andre' Doguet, Rayne, LA, for Defendants/Appellees Acadia Parish Police Jury, Et Al.
Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY H. EZELL, Judges.
THIBODEAUX, Judge.
This matter is before the court on the devolutive appeal of the plaintiffs-appellants, the Town of Church Point and Roger Boudreaux, the Mayor of the Town of Church Point. The plaintiffs are appealing a judgment of the trial court denying their request to enjoin a special tax election called for July 19, 2003. The plaintiffs argue the Acadia Parish Police Jury, acting as the governing authority of the Mosquito Control Sales Tax District #3 of Acadia Parish (hereinafter the "District"), had no statutory or constitutional authority to adopt a resolution calling for the July 19, 2003 election to authorize the District to levy and collect a tax.
The relevant facts are not in dispute. On May 20, 2003, the Acadia Parish Police Jury, relying on La.R.S. 33:2721.6, adopted Ordinance 854 creating Mosquito Control Sales Tax District # 3. Also on May 20, the Police Jury, acting as the governing authority of the District, adopted a resolution calling for a July 19, 2003 election to place a proposition before the voters of the district to authorize the District to levy and collect a tax. The Town of Church Point, as well as its mayor, filed suit on June 25, 2003, seeking an injunction and in the alternative, a request for mandamus to enjoin the election.
The trial court at a hearing on July 8, 2003, found that the Police Jury, not the District, called the election and that it had the statutory power to do so. The trial court, therefore, denied the injunction and in the alternative, the mandamus relief. The trial court did not address the issue of the possible unconstitutional delegation of the power by the Police Jury to authorize the district to levy a sales tax. It is from this ruling which appellants have sought the appeal.
For the reasons assigned below, we find that the trial court's judgment should be affirmed but on the ground that the plaintiffs' action is perempted.
This is an election suit objecting to the calling of a special election. Pursuant to La.R.S. 18:1405(G), such actions must be instituted within fourteen days after the calling of the election. The calling of the special election occurred on May 20, 2003 by resolution. Suit was not instituted until June 25, 2003, past the fourteen day period. Therefore, we must determine whether this time period pursuant to 18:1405(G) is peremptive.
This court in Small v. Desselle, 520 So.2d 1167 (La.App. 3 Cir.1987), set forth the analysis to be employed in determining whether a statutory time period for a cause of action is peremptive. The court therein stated:
An early case discussing peremption is Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900), which involved the contest of a tax proposition. The statute that allowed the tax election contest provided that any suit must be instituted within three months after the promulgation of the results of the election. The date of the election was July 26, 1894, and suit was filed on April 29, 1899. In discussing the statute, the court stated:
"When a statute creates a right of action, and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly *89 speaking one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost." Guillory, supra, 28 So. at 901.
In Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986), our Supreme Court discussed the criteria outlined in Guillory, supra, for distinguishing between peremption and prescription, stating:
"In Guillory v. Avoyelles Railway Co., the Louisiana Supreme Court found peremptive the three-month period to file suit when contesting the validity of a property tax election. The statute under consideration in Guillory both created the right of action and stipulated the delay during which the right could be exercised. Other statutes with both characteristics (creation of the right and stipulation of the delay for filing suit) have also been found to have established peremptive periods.10 Another characteristic of a statutorily created peremptive period is the existence of an underlying public interest that a right exist only for a limited period of time. Thus the Guillory court emphasized the need for one with grounds to challenge a tax to do so promptly, before large sums of money were expended under the authorization.11" (Footnotes omitted).
In Hebert, supra, the court discussed the differences between prescription and peremption stating:
"Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762 (1))12; peremption, however, extinguishes or destroys the right (La.Civ.Code art. 3458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand, may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues." (Footnote omitted).
We have considered the issue presented, in light of the foregoing principles, and conclude that the time period set forth in La.R.S. 18:1405B is peremptive.
The Election Code specifically provides for an action contesting an election to an office and stipulates that such action shall be instituted within seven (7) days after the election. The statute thus creates the cause of action and stipulates the delay within which the right is to be executed. In suits contesting elections or objecting to candidacy, public interest demands that the issue be disposed of quickly. Therefore, the right to contest an election or an individual's right to office should exist only for a limited period of time. Hebert, supra, at 722; Guillory, supra, 28 So. at 901. The need for finality of elections is of very high priority. Thus, litigants have a limited time period within which to institute suit and the courts are directed to hear such cases on a preferential basis. See La.R.S. 18:1409.
*90 In Evans v. West, 357 So.2d 916 (La. App. 2d Cir.1978), our brethren of the Second Circuit held that La.R.S. 18:1405A, which allows a ten day period for one to object to a candidate's qualifications for office, is a peremptive period. La.R.S. 18:1405A and B contain the same operative language with respect to delays, as both paragraphs state that actions "shall be instituted" within the time period set forth therein.
For these reasons, we conclude that plaintiff's action filed after expiration of the peremptive period of La.R.S. 18:1405B fails to state a cause of action. The judgment of the trial court is affirmed at appellant's cost.
520 So.2d at 1168-69.
In this case, we find that the time period set forth in La.R.S. 18:1405(G) was intended to limit the duration of the right of a party to contest the calling of a special election. Accordingly, the statute created a peremptive period. Having failed to file their claim within this period, the Plaintiffs' action is now lost, that is, the plaintiffs cannot now object to the calling of this special election. See La.R.S. 18:1405(G). Their remedy is now limited to challenging the legality of the election and tax, if authorized, pursuant to La.R.S. 18:1405(E).
The judgment of the trial court denying appellants' request for an injunction is affirmed. Costs of the appeal are assessed against the appellants, the Town of Church Point and Roger Boudreaux.
AFFIRMED.
SAUNDERS, J., Dissents and Assigns Written Reasons.
SAUNDERS, J., dissents.
Although the parties did not raise the issue of peremption, the majority is certainly correct in its determination that the question of peremption may be raised by the court on its own motion. In my view, the interest of justice would best be served by addressing the issues raised by the parties and either ruling that the election was properly and legally called, or that it was not properly called and should be enjoined. The course we follow here largely ensures further litigation and the very real possibility that the taxpayers of Acadia Parish may be saddled with the cost of an election levying a tax that may eventually be held to be unconstitutional. A definitive decision issued at this time would almost certainly save substantial expense, and I would prefer to follow this course rather than the one chosen by the majority.
REHEARING DENIED: The appellants' Motion for Rehearing is denied for the following reason. Pursuant to La.R.S. 18:1409(I), no application for rehearing "shall be entertained by any court ..." from a ruling in an election proceeding. The present suit is clearly an action pursuant to La.R.S. 18:1404(A)(2) and La. R.S. 18:1405(G), objecting to the calling of a special election.
SAUNDERS, J. dissents, and will assign written reasons on July 16, 2003.
SAUNDERS, J., dissenting.
Although the parties did not raise the issue of peremption, the majority is certainly correct in its determination that the question of peremption may be raised by the court on its own motion. Louisiana Revised Statute 18:1409(I) allows this court on its own motion to "correct manifest error to which its attention is called." In my view, the interests of justice would best be served by addressing the issues that have been raised by the parties and ruling either that the election was properly *91 and legally called, or that it was not properly called and should be enjoined.
In this case, the majority held that La. R.S. 18:1405(G) governs the disposition of this issue. Pursuant to La.R.S. 18:1405(G) actions objecting to the calling of a special election must be instituted within 14 days after the calling of the election. The calling of the special election took place on May 20, 2003, while the suit objecting to the calling of the special election was not instituted until June 25, 2003, well outside the prescribed 14-day statutory period. As such, according to the majority, the plaintiff's action filed after the expiration of the peremptive period of La.R.S. 18:1405(G) fails to state a cause of action and must be dismissed.
However, Louisiana has developed jurisprudence over the course of the last 96 years that contradicts the position held by the majority and should result in La.R.S. 18:1405(G) being found inapplicable to the case at hand. This jurisprudence, in the aggregate, stands for the proposition that if an election contains deficiencies "more serious than a mere irregularity," the election is void or is to be considered an absolute nullity. In these instances, rules applicable to the election code are inapplicable because the election itself is to be treated as if it has never occurred. In Police Jury of Tangipahoa v. Town of Ponchatoula, 118 La. 138, 42 So. 725 (1907) the police jury of Tangipahoa was petitioned to hold a local option election and passed an ordinance fixing the date for the election. The police jury of Tangipahoa took no action, instead the president of the police jury chose the place, time and ballot form of the election. The Louisiana Supreme Court held that the lack of action on the part of Parish authorities rendered the election void without the contestant being required to come forward with proof that the result would have differed if the police jury had selected the place, time and ballot form rather than its president. Prior to this decision, the contestant of the election was required to come forward with proof that the election result would have been different if the alleged irregularity had not occurred. In this case, however, the Louisiana Supreme Court recognized the principle that election deficiencies "more serious than mere irregularity" may result in an election being void without the requirement that the contestant come forward with proof that the result would have been different had the deficiency not arisen.
In Felder v. Police Jury of Livingston Parish, 207 La. 550, 21 So.2d 724 (1945) the Louisiana Supreme Court again addressed the issue of election deficiencies greater than mere irregularity. In that case the contestant to the election alleged that the election petition did not contain the signatures of the requisite percentage of qualified voters and that the election commissioners had been appointed beforehand by conspiracy. Again, the Louisiana Supreme Court held inapplicable the rule requiring one who contests an election for irregularities to demonstrate how they affect the outcome because in the instant case the plaintiffs were contending that the calling of this election by the police jury was unauthorized and that the election itself was illegally held. Felder, 207 La. at 555-56, 21 So.2d at 726.
In Kelly v. Village of Greenwood, La., 363 So.2d 887 (1978) the Louisiana Supreme Court again revisited the issue of election deficiencies greater than mere irregularity. In that case, plaintiff D.A. Kelly instituted an action to declare a local option election void. The Louisiana Supreme Court found that a new election code had repealed conflicting local option election laws and that the Greenwood governing authority erred in not fixing the *92 date of the election for Saturday, January 21, 1978, as required by La.R.S. 18:402(F). While the majority of the court found such deficiency not serious enough to declare the election void, Justice Dixon's dissent states sound law applicable to the case at hand. Justice Dixon proposes to classify election code violations into those which are only irregular and those which are illegal. Kelly, 363 So.2d at 891. In some cases, failure to comply with provisions of the law will result only in irregularity requiring the contestant to prove that the deviation from the law changed the election results. Id. In other cases, the deviation may render the election illegal, and the contestant should not be required to prove a different result because "no election has been held." Id.
The second circuit in Stephens v. Madison Parish Police Jury, 463 So.2d 609 (La.App. 2 Cir.1984) also addressed the election irregularity conundrum that had bedeviled the supreme court for the previous 77 years. In that case, a petition to call a local option referendum on the sale and consumption of alcoholic beverages was filed with the police jury. The election was called and held to be invalid because redistricting had eliminated the political subdivision in which the election occurred. On rehearing, Judge Price writing for the court found the following:
The police jury in this case derived its sole authority to call an election from LSA-R.S. 26:582; the statute only granted the police jury the power to call an election only for the specified geographic area; and that the police jury lacks the power or authority to call an election other than as provided by LSA-R.S. 26:582. Furthermore, when an election is called and held in an incorrect geographical area contrary to the provisions of the statute, there is a lack of authority to conduct the election and the election so held is an absolute nullity. Stephens, 463 So.2d 609, 609-13 at 613 (La.App. 2 Cir.1984).
Therefore, the Election Code has no applicability to an action brought to have the election declared a nullity under circumstances which are analogous to the present case.
In our case, the plaintiffs, Town of Church Point and Roger Boudreaux, the Mayor of the Town of Church Point, are appealing the trial court's denial of their request to enjoin a special tax election called for July 19, 2003. The facts are not in dispute. On May 20, 2003, the Acadia Parish Police Jury, relying on La.R.S. 33:2721.6 adopted Ordinance 854 creating Mosquito Control Sales Tax District #3. Also on May 20, the Police Jury, acting as the governing authority of the District, adopted a resolution calling for a July 19, 2003, election to place a proposition before the voters of the district to authorize the Mosquito Control Sales Tax District # 3 to levy and collect a tax.
Louisiana Revised Statute 33:2721.6(A)(1) allows the governing authority of any parish to levy and collect an additional tax. Louisiana Revised Statute 33:2721.6(C)(1) gives the governing authority of any parish the authorization to create special districts to utilize the additional authorized taxes. Louisiana Revised Statute 33:2721.6(C)(3) defines the governing authority of any such district created by a police jury shall be the police jury of said parish. Louisiana Revised Statute 33:2721.6(E) requires that the ordinance imposing the tax shall be adopted by a police jury only after the question of the imposition of the tax shall have been submitted to the qualified electors of the parish or special district at an election called, conducted, canvassed and promulgated in accordance with the general election laws of the state of Louisiana and the majority *93 of those voting in the election shall have voted in favor of the adoption of the ordinance. However, La.R.S. 33:2721.6 does not authorize the Acadia Parish Police Jury power to delegate its tax levying and collection powers to the newly created Mosquito Control Sales Tax District #3. Such power resides in the governing body of the parish exclusively, in this case the Acadia Parish Police Jury.
Determining when an election deficiency requires nullification of an election and the resulting inapplicability of election laws is easily met in this case by examining past cases and applying the resulting legal principles to the case at issue. Nullification of the election and inapplicability of the election laws was found to be warranted when an election contains deficiencies "more serious than a mere irregularity." Instances of conduct "more serious than a mere irregularity" have been found to occur when: the authorized governing body fails to act, the election petition does not contain the signatures of the requisite percentage of qualified voters and the election commissioners have been appointed beforehand by conspiracy; the election occurs in a nonexistent political subdivision; and when the authorized governing body has exceeded its statutory authority. The jurisprudence indicates that a deficiency will be considered "more than a mere irregularity" if the deficiency concerns gross inaction on the part of the authorized governing body or action on the part of the authorized governing body that exceeds statutory limits. Furthermore, deficiencies that impair the ability of the election to be conducted fairly and impartially will also be suspect.
In this case, the delegation of the power to levy and collect the tax to the Mosquito Control Sales Tax District # 3 is beyond the scope of the powers granted to the Acadia Parish Police Jury according to La.R.S. 33:2721.6. and is therefore, more than a mere irregularity. Louisiana case law holds that when an election is called and held by a body contrary to the provisions of the statute, in this case La. R.S. 33:2721.6, there is lack of authority to conduct the election and the election so held is an absolute nullity. Accordingly, the laws governing elections should be inapplicable, specifically La.R.S. 18:1405(G), and the election in the present case should be enjoined.
Tragically, the course we follow here largely ensures further litigation and the very real possibility that the taxpayers of Acadia Parish may be saddled with the cost of an election levying a tax that may eventually be held to be unconstitutional. A definitive decision issued at this time would almost certainly save substantial expense.
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78 F.3d 584
NOTICE: 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.Wyatt C. BROWNLEE, Plaintiff-Appellant,v.James B. KING, Director, United States Office of PersonnelManagement, Defendant-Appellee.
No. 94-4302.
United States Court of Appeals, Sixth Circuit.
March 6, 1996.
Before: ENGEL, KENNEDY and SUHRHEINRICH, Circuit Judges.
PER CURIAM.
1
Plaintiff Wyatt C. Brownlee appeals the district court's grant of summary judgment to defendant, the Director of the United States Office of Personnel Management ("OPM"), in this action stemming from OPM's refusal to offer plaintiff a position as an Administrative Law Judge. Plaintiff brought suit alleging race and age discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-e17 ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"); 42 U.S.C. §§ 1981 and 1983; and state law. Plaintiff appeals only the dismissal of his Title VII and ADEA claims.
2
The district court correctly granted defendant's motion for summary judgment because plaintiff's failure to contact an Equal Employment Opportunity ("EEO") Counselor within thirty days of the alleged unfair treatment was fatal to all his claims. 29 C.F.R. § 1613.214 (1995).
3
On appeal, plaintiff raises two issues not raised in the district court. As such, they are waived. In any event, both arguments are without merit. Plaintiff's equitable tolling argument is unpersuasive because he alleges no affirmative misconduct designed to delay the filing of his complaint. Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir.1987).
4
Plaintiff also argues that the government is estopped from asserting the failure to contact an EEO counselor because it did not automatically refer an earlier letter to such a counselor. The cases cited by plaintiff to support this claim, however, are distinguishable. Moreover, plaintiff's earlier letter was not sufficiently specific to inform OPM personnel of the nature of plaintiff's claim.
5
The judgment of the district court is therefore AFFIRMED for the reasons stated in District Judge Aldrich's Memorandum and Order of October 13, 1994.
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387 Mich. 577 (1972)
198 N.W.2d 309
ZAITZEFF
v.
RASCHKE
No. 1 April Term 1972, Docket No. 53,309.
Supreme Court of Michigan.
Decided June 20, 1972.
Samuel W. Barr (Carroll C. Grigsby, of counsel), for plaintiffs.
Lizza & Mulcahy, for defendants.
*579 BLACK, J. (for reversal).
I am the author of that intracourt memorandum which Justice T.E. BRENNAN has recalled, post at pp 581-582. It speaks sufficiently my view that the judgment of the circuit court should be reversed.
With what was written so plainly in 1961 for Wilson v Hartley, 365 Mich 188, concerning the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, encouraged occasionally by "no prejudice shown" conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room.
I would reverse.
T.M. KAVANAGH, C.J., and T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred with BLACK, J.
T.E. BRENNAN, J. (for affirmance).
Plaintiff Mary Zaitzeff, a real estate saleswoman, was attacked by defendants' German shepherd dog while showing defendants' house to some prospective buyers. Plaintiffs filed an action in the Wayne Circuit Court based upon the dog-bite statute and common-law liability.[*] Trial proceeded before a jury, the Honorable Charles Kaufman presiding.
At the conclusion of the circuit judge's charge to the jury, both counsel and the judge retired to his chambers accompanied by the court stenographer. A colloquy ensued regarding the charge to the jury, at the conclusion of which the record shows that the following was said:
*580 "The Court: * * * I am satisfied what I gave is substantially the law.
"Now, would you gentlemen waive the administration of the oath to the sheriff?
"Mr. Barr [plaintiffs' attorney]: I will waive administration of the oath and I will waive being present at the time the jury returns and would request that the jury be polled.
"The Court: Mr. Mulcahy?
"Mr. Mulcahy [defendants' attorney]: I will waive the sheriff's oath.
"The Court: What about will you waive your presence at the verdict?
"Mr. Mulcahy: Yes, your Honor. I will stick around for a while. If I am not here, go ahead and take it."
The jury retired to commence its deliberations about 10:10 a.m. Approximately fifty minutes later, the jury returned to the courtroom presumably in the absence of counsel and the following took place:
"The Court: Members of the jury, I saw your note in which you indicate you wish to hear the testimony of Mr. Smolinski. I would prefer not to read it back to you because of a number of reasons. First, I would rather not have the testimony of any one particular witness emphasized at this point. I mean you have to listen to the whole case and listen to all the testimony. Try to have your collective minds recall what Mr. Smolinski testified if you think that anything he testified is material. As I recall his testimony, he was not an eye-witness to the incident. He came in afterwards and I don't think that his testimony would put too much light on what actually happened when Mrs. Zaitzeff entered the house. However, if after your deliberations you still feel that you want his testimony read back, well, let me know and perhaps we can work it out.
*581 "Juror Derro: Could I say it off the record, the one point? The reason we want it is it has nothing to do with the incident of the dog but, rather, prior to that. That is, the it concerns the entering of the house.
"The Court: Yes.
"Juror Derro: In other words, it concerns the one issue: Was she invited or was she not? It has nothing to do with the dog attacking or
"The Court: I assume you all want to hear that portion of his testimony?
"(Whereupon, the jurors indicated `yes' en masse.)
"The Court: I will have the reporter look it up and when he finds it he will come back and read it to you.
"(About 11:10 a.m.)
"(Whereupon, the Court and the court reporter entered the jury room at about 11:20 a.m., and the court reporter read a portion of the testimony of William Smolinski to the jury.)"
About an hour later a verdict of no cause of action was returned. A poll of the jurors disclosed that the verdict was by a vote of ten to two.
Plaintiffs filed a motion for new trial, which was denied. Therefore, plaintiffs appealed and the Court of Appeals affirmed in a per curiam opinion. 31 Mich App 87 (1971). We granted leave to appeal. The most succinct explanation of our object in reviewing this cause can be found in an intracourt memorandum by one of the Justices:
"I would grant leave. The trial judge entered the juryroom for whatever confab took place there; we know not what. That alone should result in a summary order for new trial.
"How in h____ can the defeated party `prove prejudice' in such a case? He has had no invisible witness there, and the opportunity of and for concealed prejudice alone should be enough for a Court *582 which prates regularly its devotion to the sanctity of the right of trial by jury."
Plaintiffs concede that the reading to the jury of a portion of testimony given at the trial lies within the sound discretion of the trial court. But plaintiffs argue here that the record is silent as to the portion of witness Smolinski's testimony which was re-read to the jury. In further support of plaintiff Mary Zaitzeff's position, she points to the commentary to GCR 1963, 512 in Michigan Court Rules Annotated, volume 2, p 493, where it was said:
"All communications between the trial judge and the jury, after submission of the case, must take place in open court and in the presence of, or after notice to, the parties or their counsel, and the court has no right, without the consent of counsel, to send to the jury room an answer to a question propounded in writing to him by the jurors. M.L.P. Trial § 306: and see, Donville v. Russell, 1879, Howell, N.P. 8; Finkel v. Atto Misch Co., 1940, 291 Mich. 630, 289 N.W. 276; Hopkins v. Bishop, 1892, 91 Mich. 328, 51 N.W. 902."
Defendants on the other hand argue that the instant suit is controlled by the precedent to be found in the Loose v Deerfield Twp, 187 Mich 206 (1915). Defendants quote from that opinion as follows:
"After deliberating for a time, the jury came into court and indicated that there was some disagreement between them as to the testimony of certain witnesses who had testified upon the trial. Thereupon the court ordered the stenographer to read the testimony of two witnesses, after which the jury again retired to their room. This action of the trial *583 court is assigned as error, because it was done in the absence of defendant's counsel, and because certain other testimony should have been read in order to give them a correct understanding of the matter in doubt."
The Court continuing, held:
"It is sufficient to say of those objections that counsel was aware that the jury were deliberating, and they were also aware of the fact that such requests are not infrequently made by juries during their deliberations and granted. With this knowledge, if they chose to absent themselves from the courtroom, they are in no position to complain of the trial court because he complied with the request of the jury, nor because he omitted to have read certain other testimony in the record which would have thrown some light on the question about which inquiry was made." (Italics supplied by defendants.)
The defendants further argue that the witness whose testimony was re-read to the jury was a witness called by the plaintiffs. Defendants point out that the testimony of Mr. Smolinski was helpful to the plaintiffs and that the re-reading of any portion of such testimony could only have been to the advantage of the plaintiffs. From this defendants argue that no prejudice to the plaintiffs' cause was shown by the procedure followed and here objected to. A close reading of the testimony of Mr. Smolinski bears out the defendants' argument. Even the cross-examination of Mr. Smolinski could hardly be called adverse or prejudicial to plaintiffs' case.
"CROSS EXAMINATION BY MR. MULCAHY:
"Q. Just a couple things, Sergeant. May I examine from here, your Honor?
"The Court: Sure.
*584 "Q. (By Mr. Mulcahy) You were parked in your car across the street from Mr. and Mrs. Raschke's home, is that right?
"A. Yes, at a slight angle.
"Q. By a slight angle you mean you weren't directly in front of her home?
"A. Not directly, no.
"Q. And you were parked on the opposite side of the street, is that correct?
"A. Yes.
"Q. Would you have to look over your left shoulder to see the front of Mrs. Raschke's home?
"A. No. I just had to move my head.
"Q. Toward the left, is that it?
"A. Yes.
"Q. What time of day was this?
"A. This was in the afternoon. I don't know the exact time. Early afternoon.
"Q. And you indicated that Mrs. Zaitzeff stayed on the porch for about two minutes
"A. Yes.
"Q. before she went into the house, is that right?
"A. Yes.
"Mr. Mulcahy: I think that's all, Sergeant. Thank you very much."
Based upon the record made and certified here, we cannot conclude that any prejudice resulted in the reading to the jury of a portion of the testimony of witness Smolinski. And if the events described had occurred in the courtroom the language quoted from Loose v Deerfield Twp, supra, would be directly in point and controlling without further discussion.
However, the fact that the judge entered the juryroom in the company of the court stenographer and permitted the testimony to be re-read to the jury in the juryroom rather than in the courtroom *585 remains a troublesome point as the quoted intracourt memorandum discloses. My colleague seems to believe that the mere place of the reading makes error presumptive. The record does not support any assumption that the proceedings which took place in the juryroom were anything other than what ought to have taken place in the courtroom.
The jurors were not engaged in their deliberations, they were in fact attending upon the court and listening to the reading of testimony in the presence of the court. No dark suspicions should be entertained by reason of the situs of these happenings. A familiarity with the demands upon courtroom space in Wayne County suggests reasons of convenience, for attending to this bit of business in the jury's room, rather than the courtroom, where other litigants may well have been gathered.
In my judgment, the difficulty here could best have been avoided had counsel remained in attendance. I see no reason to require a busy trial judge to duplicate his efforts as a means of sending a message to the trial bench. Rather let the word go forth to the Bar that the prevention of irregularities in the conduct of jury deliberations is in part the responsibility of lawyers. And where they voluntarily absent themselves from the courtroom they should not be heard to complain of informalities and shortcuts indulged in by a busy circuit judge in good faith which result in no prejudice to either party. I would affirm the decision of the trial judge and the Court of Appeals, with costs to the appellees.
ADAMS, J., concurred with T.E. BRENNAN, J.
NOTES
[*] MCLA 287.351; MSA 12.544; see, e.g., Grummel v Decker, 294 Mich 71 (1940).
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843 A.2d 43 (2004)
2004 ME 20
Larry MOODY
v.
STATE LIQUOR & LOTTERY COMMISSION.
Supreme Judicial Court of Maine.
Submitted on briefs: January 22, 2004.
Decided: February 25, 2004.
*45 Thomas F. Hallett, Thomas F. Hallett Law Offices, P.A., Portland, for plaintiff.
G. Steven Rowe, Attorney General, Michelle M. Robert, Asst. Attorney General, Augusta, for defendant.
Stephen E.F. Langsdorf, Preti Flaherty Beliveau Pachios & Haley, LLC, Augusta, for Scientific Games, Inc.
Panel: CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.
CLIFFORD, J.
[¶ 1] Larry Moody appeals from a judgment of the Superior Court (Cumberland County, Crowley, J.) dismissing Moody's complaint against the State Liquor and Lottery Commission pursuant to M.R. Civ. P. 12(b)(6). Moody contends that the Superior Court, in making its decision, erroneously considered extraneous information that was not included in the complaint. Moody also challenges the Superior Court's conclusion that his complaint failed as a matter of law because the contract between the parties was unambiguous. We disagree with Moody's contentions and affirm the judgment of the Superior Court.
I. FACTUAL AND PROCEDURAL HISTORY
[¶ 2] Larry Moody submitted a Wild Card Cash lottery ticket to the Maine State Lottery and requested payment on what he claimed was a winning ticket. The directions on the ticket state: "Get a pair in any HAND, win PRIZE shown for that HAND. Use WILD CARD to make a pair in any HAND, win PRIZE shown for that HAND." There are six hands on the ticket, and when scratched, each hand reveals two boxes with numbers or letters in them that, if they match, create a winning pair. There is a separate scratch box labeled "wild card," that when scratched, reveals a number or a letter.
[¶ 3] None of the six hands on Moody's ticket made a pair.[1] The number revealed when Moody scratched the wild card box was a five, which did not match any of the numbers or letters in any of the hands. Moody contended that the common definition of a wild card permitted him to disregard the number five in the wild card box and allowed him to determine the value of the wild card. He chose the wild card to be a four or a six, which were the numbers in the hand positioned above the $20,000 prize.
[¶ 4] The State returned the ticket to Moody, explaining that the ticket was a nonwinning ticket, and if the game were played as Moody suggested, every ticket *46 would be a winning ticket. In response, Moody filed suit, claiming breach of contract (Count I) and fraud (Count II). The State filed a motion to dismiss, pursuant to M.R. Civ. P. 12(b)(1) and (6).[2] The State contended that "[b]asic principles of contract interpretation dictate that plaintiff's interpretation of how the game is played is unreasonable as a matter of law so as to preclude liability."[3] The State submitted affidavits, a copy of the front and back of an unscratched Wild Card Cash ticket, and a copy of the Wild Card Cash rules and regulations along with its motion to dismiss.
[¶ 5] The Superior Court concluded that even assuming that the facts, as alleged by Moody, were true, the contract was unambiguous and "[b]y the terms of the `contract' on the face of the ticket, Plaintiff's ticket was `non-winning,'" and thus, the State had fully performed its obligations under the contract. The court also concluded that Moody's interpretation of the terms of the contract would lead to "the absurd and unintended result of every ticket being a winning-ticket," and defies common sense. Accordingly, the court dismissed Count I. Moody appeals from this dismissal.[4]
II. DISCUSSION
A. Consideration of Extraneous Documents in a Motion to Dismiss
[¶ 6] Moody contends that the Superior Court erred when it considered extraneous materials submitted by the State, including affidavits, an unscratched version of a Wild Card Cash ticket, and the rules and regulations for the game.[5] He asserts that by considering material not provided in the complaint, the court converted the motion to dismiss into a motion for a summary judgment. The State contends that the Superior Court properly considered the information the State attached to its motion to dismiss because the documents completed the entire contract that Moody brought into consideration and additionally, the items were matters of public record, which may be judicially noticed in a motion to dismiss.
[¶ 7] When we review the dismissal of a complaint, "we examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." In *47 re Wage Payment Litig., 2000 ME 162, ¶ 3, 759 A.2d 217, 220. When a court decides a motion to dismiss made pursuant to M.R. Civ. P. 12(b)(6), "the material allegations of the complaint must be taken as admitted." Livonia v. Town of Rome, 1998 ME 39, ¶ 5, 707 A.2d 83, 85. "A dismissal should only occur when it appears `beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim.'" McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994) (quoting Hall v. Bd. of Envtl. Prot., 498 A.2d 260, 266 (Me.1985)).
[¶ 8] The general rule is that only the facts alleged in the complaint may be considered on a motion to dismiss and must be assumed as true. See Flaherty v. Allstate Ins. Co., 2003 ME 72, ¶ 12, 822 A.2d 1159, 1164-65; Napieralski v. Unity Church of Greater Portland, 2002 ME 108, ¶ 4, 802 A.2d 391, 392. If a party brings a motion to dismiss and "the court considers appropriate materials outside the pleadings, the motion is treated as one for a summary judgment." In re Magro, 655 A.2d 341, 342 (Me.1995); M.R. Civ. P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . ."); Beaucage v. City of Rockland, 2000 ME 184, ¶ 5, 760 A.2d 1054, 1056 ("The filing of the affidavits converted the City's motion to dismiss into a motion for a summary judgment.").
[¶ 9] Federal courts, however, including the United States District Court for the District of Maine, and the First Circuit, have held that in some circumstances certain extraneous documents can be considered on a motion to dismiss without converting the motion to one for a summary judgment. Nicholson v. Prudential Ins. Co. of Am., 235 F.Supp.2d 22, 26 n. 2 (D.Me.2003); Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33-34 (1st Cir.2001); Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir.1991); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196-97 (3d Cir.1993); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.1999); Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir.1997); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998).
[¶ 10] This narrow exception allows a court to consider official public documents, documents that are central to the plaintiff's claim, and documents referred to in the complaint, without converting a motion to dismiss into a motion for a summary judgment when the authenticity of such documents is not challenged. Alternative Energy, Inc., 267 F.3d at 33. These documents will merge into the pleadings. Id. The purpose for this exception is that if courts could not consider these documents, "a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied." Pension Benefit Guar. Corp., 998 F.2d at 1196.
[¶ 11] The Third Circuit explained that the reason for the rule regarding converting motions to dismiss to motions for a summary judgment is to afford a plaintiff an opportunity to respond to new facts raised by the defendant. Id. If a document is referenced in the complaint, is central to a plaintiff's claim, or is a public document, the plaintiff should have notice of the contents. See id. at 1196-97. We agree with the above rationale provided by the federal courts and we conclude that official public documents, documents that are central to the plaintiff's claim, and documents referred to in the complaint may be properly considered on a motion to *48 dismiss without converting the motion to one for a summary judgment when the authenticity of such documents is not challenged.
1. The Front and Back Portions of the Unscratched Ticket
[¶ 12] In this case, Moody alleges a breach of contract.[6] Documents that contain the terms of the contract are central to Moody's claim. See Alternative Energy, Inc., 267 F.3d at 34 (finding that the attached settlement agreement was referred to in the plaintiff's complaint and that the defendant's liability depended on the terms of the agreement); Pension Benefit Guar. Corp., 998 F.2d at 1196 (concluding that consideration of an attached purchase and sale agreement was proper; the complaint was based on the contract and described some of its terms). In his complaint, Moody refers to the terms of the ticket, but failed to attach the back of a Wild Card Cash ticket, which includes the terms of the game. As the State notes, Moody has not challenged the authenticity of the front or back portion of the unscratched ticket that the State submitted with its motion to dismiss. Accordingly, the Superior Court properly considered the front and back portions of the unscratched ticket that the State attached to its motion to dismiss.
2. The Wild Card Cash Rules and Regulations
[¶ 13] States that have considered the question have uniformly held that when an individual purchases a lottery ticket, that person agrees to abide by the rules and regulations of the lottery, and those rules and regulations become part of the contract between the parties. E.g., Brown, 602 N.W.2d at 89-90; Hair v. State, 2 Cal.App.4th 321, 2 Cal.Rptr.2d 871, 874 (1991); Thao v. Control Data Corp., 57 Wash.App. 802, 790 P.2d 1239, 1241 (1990). The purchaser of a Wild Card Cash ticket agrees that all tickets, transactions, and winners are subject to the rules and regulations promulgated by the "Maine State Lottery and State Law," and the terms of the rules and regulations became part of the contract between Moody and the State. See Down East Energy Corp. v. RMR, Inc., 1997 ME 148, ¶ 10, 697 A.2d 417, 421 (stating that where a lease agreement incorporated the terms of a gasoline agreement, the gasoline agreement became part of the lease).
[¶ 14] Additionally, the rules adopted by the Liquor and Lottery Commission are public documents, 5 M.R.S.A. § 8056(3) (2002), having been promulgated pursuant to 8 M.R.S.A. § 374(1) (1997 & Supp.2003) and in accordance with the Maine Administrative Procedures Act, 5 M.R.S.A. §§ 8001-11008 (2002 & Supp.2003). Official public documents are properly considered on a motion to dismiss without converting the motion to one for a summary judgment. Alternative Energy, Inc., 267 F.3d at 33. Accordingly, the Superior Court correctly considered the rules and regulations attached to the State's motion to dismiss.
B. Sufficiency of Moody's Complaint
[¶ 15] Moody contends that the various interpretations of the meaning of a wild card render the contract ambiguous, *49 and therefore, the court erred in deciding the case on a motion to dismiss. In the alternative, Moody urges us to interpret the term "wild card" in accordance with what he asserts to be the "generally prevailing meaning" of the term, that is, that the holder of a wild card is free to determine the value of the card that is designated as the wild card. We disagree.
[¶ 16] The question of whether a contract is ambiguous, and if unambiguous, the interpretation of that contract, are questions of law and are reviewed de novo. Acadia Ins. Co. v. Buck Constr. Co., 2000 ME 154, ¶ 8, 756 A.2d 515, 517; Briggs v. Briggs, 1998 ME 120, ¶ 6, 711 A.2d 1286, 1288. Language is ambiguous when "it is reasonably susceptible to different interpretations." Acadia Ins. Co., 2000 ME 154, ¶ 9, 756 A.2d at 517.
[¶ 17] Moody's interpretation would make every Wild Card Cash ticket a winning ticket. Contracts are only ambiguous when they are "reasonably susceptible to different interpretations." Id. Moody's interpretation is not only unreasonable, it is frivolous.[7] It is clear from the back of the lottery ticket, where it states that the odds of winning are 1:3.59, that the State intended to include an element of chance when it created the Wild Card Cash game. An interpretation that removes the element of chance does not "effect the parties' intentions" and does not consider "the subject matter, motive, and purpose of the agreement, as well as the object to be accomplished." Handy Boat Serv., Inc. v. Prof'l Servs., Inc., 1998 ME 134, ¶ 7, 711 A.2d 1306, 1308. See also State v. Bussiere, 155 Me. 331, 154 A.2d 702, 705 (1959) ("[I]t is generally agreed among the authorities that there are three essential elements necessary to constitute a lottery: (1) prize, (2) chance, and (3) consideration.").
[¶ 18] Accordingly, the Superior Court correctly determined that the contract between the State and Moody is unambiguous. Because there is no ambiguity regarding whether Moody's ticket was a winner, as a matter of law, the State did not breach a duty to pay. See Rivers v. Amato, 2003 ME 87, ¶¶ 5, 10, 827 A.2d 827, 829-30. Without a breach, even when examining the complaint in the light most favorable to Moody, Moody's complaint fails to state a claim upon which relief may be granted.
The entry is:
Judgment affirmed.
NOTES
[1] The hands included a ten and an eight, a six and a four, an A and a three, a ten and a two, an eight and an A, and a K and a seven.
[2] Although the State's motion was based, in part, on M.R. Civ. P. 12(b)(1), the court appears to have granted the State's motion on M.R. Civ. P. 12(b)(6) grounds only. Because the parties do not brief any issue related to M.R. Civ. P. 12(b)(1), we do not address M.R. Civ. P. 12(b)(1). M.R. Civ. P. 12(b) provides, in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted . . . .
[3] The State also contended that its liability was limited, pursuant to the governing statutes and rules, to replacement of the ticket or a refund of the sales price. The State does not pursue this argument on appeal.
[4] The court also dismissed Count II after finding that although there was a question regarding whether Moody's notice of claim fell within the substantial compliance exception found in 14 M.R.S.A. § 8107(4) (2003), even if the notice was effective, the activities of the State Liquor and Lottery Commission do not fall within any of the exceptions to sovereign immunity. Moody did not appeal this dismissal.
[5] Although Moody refers to the affidavits, it does not appear that the court relied on the affidavits, and the two affidavits that related to Count I do not raise facts material to the interpretation of the term "wild card."
[6] The parties do not address in any detail whether the purchase of a lottery ticket creates a contract between the State and the purchaser of the ticket. The majority of states have concluded that the relationship between a state and a lottery ticket holder is contractual, and that the proper purchase of a lottery ticket is an acceptance of an offer. E.g., Brown v. State, 230 Wis.2d 355, 602 N.W.2d 79, 88-89, 89 n. 12 (Ct.App.1999) (citing cases).
[7] Moody's interpretation, that the purchaser of a scratch ticket can unilaterally determine the value of the wild card, would mean that a purchaser would not have to scratch or rub off the wild card spot. This interpretation directly conflicts with the concept of a scratch ticket lottery game.
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123 Cal.App.2d 685 (1954)
FRANK ANDREWS, Appellant,
v.
STATE BOARD OF REGISTRATION FOR CIVIL AND PROFESSIONAL ENGINEERS, etc., et al., Respondents.
Civ. No. 8318.
California Court of Appeals. Third Dist.
Mar. 5, 1954.
F. M. Brack and A. M. Frad for Appellant.
Edmund G. Brown, Attorney General, and August F. Cetti, Deputy Attorney General, for Respondent.
SCHOTTKY, J.
On June 14, 1948, petitioner filed with respondent board a written application for registration as an electrical engineer without examination. On March 29, 1949, he was notified by a letter from respondent board that his application was denied. Thereafter he filed a petition for a writ of mandate to compel the issuance to him of said certificate of registration. This appeal is from a judgment discharging an alternative writ of mandate and denying the petition for a peremptory writ. *686
The Business and Professions Code sets forth a statutory scheme for the registration of professional engineers. The provisions involved in this appeal were added to the code in 1947, as sections 6800 through 6814. The entire chapter, which contained these provisions, was recodified in 1951 and is now set out in the code, starting with section 6700.
Section 6800 states that the registration law "pertains to registering of professional engineers in the branches of ... electrical ... engineering." Section 6801 defines a professional engineer as a "person engaged in professional practice of rendering service or creative work requiring education, training and experience in engineering sciences, and the application of special knowledge of the mathematical, physical and engineering sciences in such professional or creative work as consultation, evaluation, planning or design of public or private utilities, structures, machines, processes, circuits, buildings, equipment or projects, and supervision of construction for the purpose of securing compliance with specifications and design for any such works." Section 6802 provides that only persons who are registered by respondent board shall be entitled to take and use the title of "professional engineer" and, if registered in the field of electrical engineering, the title of "electrical engineer." In this connection, section 6813 makes it unlawful for any person not so registered to use these titles. The practical effect of these sections is to prevent a person from practicing electrical engineering unless he is registered, for without registration he cannot hold himself out to be a professional engineer or an electrical engineer.
Section 6803 provides that in order to entitle a person to registration without examination, the applicant must, on or before June 30, 1948, submit to respondent board, under oath, "evidence satisfactory to the board that the person is possessed of the qualifications specified in Section 6804." The qualifications, as set out in section 6804, are that the applicant must:
"(a) Furnish satisfactory evidence of good moral character;"
"(b) Pay the application fee;"
"(c) Furnish evidence of six years or more of experience in engineering work satisfactory to the board evidencing that the applicant is competent to practice the character of engineering in the branch for which he is applying for registration, ..." *687
Respondent board is authorized by section 6717 of the code to adopt rules, not inconsistent with law, needed to govern its action. Apparently pursuant to this authority respondent board adopted Administrative Rule No. 403, which provides:
" 'Electrical Engineering' is that branch of professional engineering which embraces studies or activities relating to the generation, transmission, and utilization of electrical energy, including the design of electrical and magnetic circuits and the technical control of their operation and of the design and manufacture of electrical gear. It is concerned with research, organizational, and the economic aspects of the above."
Appellant applied to respondent board for registration, without examination, as a professional engineer in the field of electrical engineering. In making this application appellant used a printed application form furnished by respondent board and swore to same. It is admitted that appellant filed the application with respondent board prior to June 30, 1948, and that he paid the required fee. By letter dated March 29, 1949, respondent board denied the application, stating as its reason:
"It is the opinion of the Board that your application does not indicate that you have had six years experience in electrical engineering as required by statute. Accordingly you have been declared ineligible for registration and your application has been denied. For your information electrical engineering as defined in Administrative Rule #403 reads: [quoting the rule]."
Section 6803 of the code authorizes respondent board to prescribe all application forms. The application form in question instructs the applicant that every question must be answered fully. In order to fully understand and evaluate the application and petitioner's answers thereto, we think it is necessary to see the application itself. A facsimile of it was introduced in evidence and the portions dealing with questions 10 and 11 and the answers thereto are as follows: [fn. *]
Typographical errors in the dates under Engagement numbers 7 and 8 [fn. *], were corrected by amendment at the trial to read: "1924-1927" and "1928-1945."
It will be noted that Question 10 requests the applicant to set out the nature and extent of his education, consisting of preparatory schooling, college work, postgraduate work, *688
Graphic Material Omitted
*689
Graphic Material Omitted
In answer to Question 10, appellant wrote "High School" for the name and location of his preparatory school, and wrote "Too long ago to remember" in the attendance date column. He did not, as requested, state whether he had graduated. It may be pointed out in this regard that appellant was 67 years of age when he made the application. Asked to show the colleges or universities attended, the attendance dates, engineering courses taken, and degrees received, he wrote "I-C-School"-"Home Study," and "College of hard knocks"-"1902 to date." If the "I-C-School" mentioned was intended to refer to a correspondence school, he did not so *690 show under the section requesting him to state what extension and correspondence work he had taken.
Question 11 dealt with the applicant's professional engineering experience and it will be noted that in one column the applicant is required to state "(a) nature, location and character of work; (b) magnitude of work; (c) name and title of supervisor; (d) your duties." In the "Time Engaged" column the applicant is required to show the "Total Time" and the "Responsible Charge."
It is apparent from an examination of the application form and appellant's answers thereto that he made no effort to show in the "Time Engaged" column what part of the work he mentions was spent in professional engineering practice, nor does he give any sufficient detail about the work he performed that would justify the respondent board in concluding that he had had six years or more of the type of engineering work to indicate that he was competent to practice professional engineering or electrical engineering as the same are hereinbefore defined in section 6801 of the Business and Professions Code and Rule No. 403 of the respondent board.
In Question 8 of the application form, appellant was asked to list the professional and honorary organizations of which he was a member in good standing. He did not list any such organization.
After receiving notice of the rejection of his application, appellant petitioned the superior court for a writ of mandate to compel respondent board to issue a registration certificate to him. Respondents (the board and the individual members) demurred to the original petition. The demurrer was sustained, leave to amend was given, and appellant filed an amended petition. Respondents answered the amended petition, putting in issue appellant's allegations that he was a person of good moral character, that he had furnished evidence of six years or more of experience in engineering work satisfactory to show that he was competent to practice electrical engineering, and that respondent board had acted arbitrarily in rejecting appellant's application for registration. Respondents' answer also affirmatively alleges that appellant does not possess six months (sic) or more of experience in electrical engineering, as differentiated from the work of an electrician, mechanic or electrical contractor; that appellant has had no education or training in mathematical, physical or engineering sciences and has no knowledge of *691 engineering science; and that appellant has never furnished evidence of six years or more of experience in any engineering work satisfactory to respondent board and evidencing that appellant is competent to practice electrical engineering.
At the trial appellant introduced in evidence a copy of the application and the original of the letter of rejection, obtained a stipulation that the required fee had been paid, and then rested. The due filing of the application had been admitted by the answer. Respondents offered no evidence, their counsel stating that they were willing to rest on the fact that respondent board had acted within its discretion in denying the registration on the basis of the application. The trial court made findings, and judgment was entered discharging the alternative writ and denying a peremptory writ. Appellant's motion for new trial was denied, whereupon appellant brought this appeal.
Appellant's position upon this appeal, and as it was in the trial court, is "If the application was sufficient the writ should have been granted; if the application is insufficient the writ was properly denied." Appellant points out that according to the record the only evidence before respondent board, pertaining to appellant's qualifications in the field of electrical engineering, was the application filed by appellant, and this application, appellant contends, shows that he had not only six, but 46, years of continuous experience in electrical engineering. He points out further that no objection was made to the form of his answers, that no more complete statement or exact information was requested of him, and that he never had a formal hearing before respondent board. The board's discretion in this matter, he says, is not arbitrary and may not be exercised capriciously, fraudulently or without factual basis sufficient to justify a reversal. His case really rests on the contention that his application shows sufficient professional work experience to qualify him for registration. His statements were made under oath and must be taken as true, he contends, for there is no evidence to the contrary in the record. He is willing to accept the board's definition of electrical engineering as set out in Rule No. 403.
Respondents in reply contend that appellant's application on its face supports the court's findings that respondent board regularly performed its official duty in denying the application, that appellant did not furnish evidence of six *692 years or more of engineering work experience satisfactory to respondent board and showing his competency to practice electrical engineering, and that respondent board did not abuse its discretion in denying the application. Respondents argue that the application itself fails to show that appellant had sufficient work experience in the field of electrical engineering to qualify him for registration, and that it is evident from a reading of the application that appellant failed to furnish the information requested of him with respect to his professional experience. They assert he did not show experience in electrical engineering within the meaning of the definition laid down by the board, and which he says he is willing to accept, and that his answers do not show that he ever worked as a professional engineer within the meaning of the definition set out in section 6801 of the code.
While there is much force in respondents' criticism of the sufficiency of appellant's application to show that he was entitled to registration as a professional engineer without examination, we are still confronted with the question as to whether or not respondent board acted arbitrarily in rejecting his application and declaring him ineligible for registration without requesting a more complete statement of his work and affording him a hearing.
The cases of Martin v. Board of Supervisors, 135 Cal.App. 96 [26 P.2d 843] (decided by this court), and Fascination, Inc. v. Hoover, 39 Cal.2d 260 [246 P.2d 656], hold that a hearing on the merits is necessary where an administrative agency is charged by law with the duty of issuing licenses upon specified terms and conditions, and that such an agency becomes a quasi-judicial body for determining the facts and exercising sound and legal discretion in the performance of its duty, i.e., determining the merits of the application. While its procedure may be somewhat informal, such informality does not justify the denial of a hearing.
In Martin v. Board of Supervisors, supra, the county ordinance regulating the sale of beverages containing above a certain percentage of alcohol, designated the board of supervisors as the licensing board for the issuance of licenses to sell beverages. A person desiring a license should apply in writing to the board, giving such information as the board prescribed. Upon receipt of the application the board shall "investigate" and deny such application if the applicant and the premises to be used for his business did not conform to specified conditions. Plaintiff filed an application for a *693 license which was denied by the board without notice or hearing. On mandamus the court directed the board to afford plaintiff a hearing, stating at pages 100-103:
"When a board of supervisors is charged by law with the duty of issuing licenses upon specified terms and conditions, that tribunal becomes a quasi-judicial body for determining the facts and exercising sound and reasonable discretion in the performance of its duty. Since a board of supervisors is only a quasi-judicial body in its investigation and determination of the merits of petitions for licenses in conformity with the provisions of an ordinance, its hearings may be somewhat informal and need not conform in all respects to the solemnity of a court proceeding. Nevertheless, the law does contemplate a fair and impartial hearing of an application for a license with an opportunity for the petitioner to present competent evidence for the consideration of the board. (Reed v. Collins, 5 Cal.App. 494 [90 P. 973]; 33 C.J. 548, secs. 138-141.) By the great weight of authority, as appears from the text in 33 C.J., at page 548: 'One who has made an application for license is entitled to a hearing by the licensing authority.' On page 549 of the same volume it is further said: 'Where the hearing on an application for a license is held before a court, or before a board which acts in a judicial capacity, the proceedings are in the nature of a civil action and are governed by the ordinary rules of judicial procedure applicable thereto.'"
"... It is true that an individual has no vested right to engage in the business of selling intoxicating liquor. (Ritz v. Lightston, 10 Cal.App. 685, 689 [103 P. 363].) The regulation of that business is governed by legal principles different from those which apply to what may be termed inherently lawful avocations. While it is contended the ordinance which is involved in this proceeding purports to license only nonintoxicating beverages, we are satisfied the interpretation of this act should be governed by the same rules which apply to the regulation of intoxicating drinks. A court may not take judicial notice of just what percentage of alcohol mingled with beer, ale or wine will necessarily intoxicate a particular individual, or just what quantity of the beverage will have that effect. (33 C.J. 498, 17) ... In spite of the fact that a vested right to engage in the dispensing of these beverages may not exist, still the law contemplates a fair and impartial hearing of any application for a license which has been filed in strict conformity with the law. ... *694"
"It would be preposterous to concede that any judicial tribunal could be clothed with the arbitrary power of issuing licenses and regulating business subject only to its own caprice; that with or without a hearing on the merits of the application, with or without reason, or upon ex parte statements or rumors, with no opportunity of refuting them, the board could grant or deny a petition for license. This is not the purpose or spirit with which regulatory statutes are enacted. Law contemplates justice whether it is granted as a privilege or recognized as a vested right. We therefore conclude that the right to engage in the sale of beverages under the ordinance of Lake County may not be arbitrarily denied by the Board of Supervisors without a hearing or an opportunity on the part of the petitioner to present the merits of her application to the licensing tribunal."
In Fascination v. Hoover, supra, which was a mandamus proceeding to compel a city tax collector, chief of police and city prosecutor to issue a license to operate an amusement game, the Martin case was cited with approval and the foregoing quotation from the Martin case was quoted. The Supreme Court held that a notice and hearing upon the application were required, and held further that where an application has been denied without a hearing it is proper procedure to remand the matter to the agency or board for further and proper proceedings.
[1] While the two decisions just cited dealt with local administrative agencies the rule announced therein is equally applicable to a statewide agency such as the respondent board. No reason is apparent why the same rule should not apply to statewide administrative agencies, such as respondent board. Both perform similar quasi-judicial functions. (Weiss v. State Board of Equalization, 40 Cal.2d 772 [256 P.2d 1].)
In Southern Calif. Jockey Club, Inc. v. California Horse Racing Board, 36 Cal.2d 167 [223 P.2d 1], it was sought by mandamus to compel the Horse Racing Board to issue a license to conduct a horse racing meeting. Section 19480 of the Business and Professions Code provided that the board may issue a license to any person "who makes application therefor in writing, who has complied with the provisions of this chapter," etc. In that case the board after a hearing denied the application. The Supreme Court affirmed the judgment of the trial court denying the writ of mandamus, and held that on petition to the superior court for a writ of mandate to compel the Horse Racing Board to issue a *695 horse racing license, the court should not reweigh the evidence before the board and that its sole function is to determine from the record whether there is sufficient evidence to sustain the ruling of the board. The court said at pages 174, 175:
"... This rule was announced in McDonough v. Goodcell, 13 Cal.2d 741 [91 P.2d 1035, 123 A.L.R. 1205], where this court said: 'The legislature has the power to vest in a public officer the discretion to deny an application for a permit to engage in a business subject to regulation when prerequisite facts do not exist. But such a discretion must be exercised within legal bounds. Those bounds are generally that the discretion of the administrative officer or board may not be exercised arbitrarily, capriciously, fraudulently, or without a factual basis sufficient to justify the refusal. ... A survey of the foregoing authorities discloses that it is the settled general rule of law in this state that where the legislature has by statute clothed an administrative officer with power to ascertain the facts with reference to the fitness of an applicant for a permit to engage in a business subject to regulation under the police power and has vested in such officer the discretion, based on the facts ascertained, to grant or deny a permit to engage in such business the courts will not interfere with the exercise of such discretion except in the case of an abuse thereof. ...'"
"... We therefore hold, that in a case such as this, the trial court should not reweigh the evidence, and its sole function is, to determine from a review of the record, whether there is sufficient evidence to sustain the ruling of the board. If the trial court should hold the evidence insufficient, and this holding is attacked on appeal, the court to which the appeal is taken must review the record and determine the sufficiency of the evidence. If the evidence is found to be sufficient, the ruling of the board must be sustained"
[2] We conclude that the respondent board abused its discretion in denying appellant's application without affording him a hearing thereon. While the application as filled out and filed by appellant may not have been sufficient to have entitled appellant to have it granted without further evidence or explanation, we believe it was sufficient to entitle him to a hearing and an opportunity to furnish evidence of six years or more of experience in engineering work satisfactory to the board evidencing that the applicant is competent to practice the character of engineering in the branch for which he is applying for registration. We believe that the *696 respondent board, in denying his application and declaring him ineligible for registration without affording him a hearing upon his application, acted arbitrarily and contrary to the spirit and intent of the statute.
In view of the foregoing we deem it unnecessary to discuss the other points raised in the briefs.
The judgment is reversed with directions to the trial court to remand the matter to the respondent board for further proceeding in accordance with the views herein expressed.
Van Dyke, P. J., and Peek, J., concurred.
NOTES
[fn. *] *. See following pages for application forms.
[fn. *] *. See following pages for application forms.
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ALD-134 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4585
___________
IN RE: JOSEPH ARUANNO,
Petitioner
____________________________________
On a Petition for Writ of Mandamus
from the United States District Court for the District of New Jersey
(related to D.C. Civil Nos. 01-cv-00789 and 04-cv-03066)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
March 12, 2015
Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges
(Opinion filed March 30, 2015)
_________
OPINION*
_________
PER CURIAM
Petitioner Joseph Aruanno, proceeding pro se and in forma pauperis, petitions for
a writ of mandamus in connection with the failure of the District Court to rule on his
pending motion to reopen Bagarozy, et al. v. Harris, et al., D.N.J. No. 04-cv-03066.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Aruanno, who is civilly committed under the New Jersey Sexually Violent
Predator Act to the Special Treatment Unit (“STU”) Annex in Avenel, New Jersey, is a
plaintiff in a consolidated class action alleging inadequate therapeutic treatment and
punitive conditions of confinement in New Jersey’s STU facilities. This litigation began
in 2001, with the filing of a pro se complaint by plaintiff Raymond Alves, in Alves, et al.
v. Ferguson, et al., D.N.J. No. 01-cv-00789. In 2004 and 2007, Aruanno, along with
other similarly situated plaintiffs, filed related actions based on substantially the same
allegations. See Bagarozy, et al. v. Harris, et al., D.N.J. No. 04-cv-03066; Hasher, et al.
v. Corzine, et al., D.N.J. No. 07-cv-01212. In 2008, after several years of discovery and
settlement negotiations, the related cases were consolidated for all purposes under Alves.
In 2012, a plaintiff class was certified, and the parties reached a settlement agreement
which was approved by the District Court. The settlement was affirmed by this Court in
March 2014. See C.A. Nos. 13-1071 and 13-1072.
On April 14, 2014, see Houston v. Lack, 487 U.S. 266, 270 (1988), Aruanno filed
motions to reopen the Hasher and Bagarozy actions. The motions were identical except
for their case captions. Aruanno’s motion captioned, “MICHAEL HASHER, et al. v.
MERRILL MAIN, et al., U.S. District Court No. 07-1212 consolidated with, ALVES V.
MAIN, et al.,” was docketed at Entry No. 236 in Alves. Despite the Clerk’s April 2009
docket entry advising that there were to be no further filings in Bagarozy, Aruanno’s
motion captioned, “JOSEPH ARUANNO, et al. U.S. District Court No. 04-3066
2
consolidated with, BAGAROZY v. HARRIS, et al. consolidated with, ALVES v. MAIN,
et al.,” was docketed at Entry No. 104 in Bagarozy. Responses to the motion to reopen
the Hasher matter were filed in Alves by plaintiffs’ class counsel and by the Department
of Corrections defendants. On May 19, 2014, the District Court construed that motion as
a request to sever certain claims originally filed in Hasher from the terminated
consolidated class action in Alves, and it granted the motion by severing all non-settled
Hasher claims from D.N.J. No. 01-cv-00789 and reinstating those claims to the active
docket in D.N.J. No. 07-cv-01212.
It appears that the motion to reopen Bagarozy was transferred to the Alves docket
on November 10, 2014, at Entry No. 253. The motion to reopen Bagarozy remains
pending on both the Bagarozy and Alves dockets.
A writ of mandamus is a drastic remedy available only in extraordinary
circumstances, when the petitioner has no other adequate means to obtain the relief
sought. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378–79 (3d Cir. 2005).
Id. (citing Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380–81 (2004)).
A petitioner seeking the writ “must show that the right to issuance is clear and
indisputable.” Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996), superseded on other
grounds by 3d Cir. L.A.R. 24.1(c) (1997). A district court’s control of its docket is
discretionary, see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), and
“[w]here a matter is committed to discretion, it cannot be said that a litigant’s right to a
3
particular result is ‘clear and indisputable.’” Allied Chem. Corp. v. Daiflon, Inc., 449
U.S. 33, 36 (1980) (per curiam). Nevertheless, a writ of mandamus may issue if a district
court’s “undue delay is tantamount to a failure to exercise jurisdiction.” Madden, 102
F.3d at 79.
In this case, although more than ten months have passed since Aruanno’s motion
to reopen Bagarozy was improperly filed on the inactive docket in D.N.J. No. 04-cv-
03066, only four months have passed since the motion was transferred to the active
docket in Alves.1 Although this delay is of some concern, we conclude that it does not
rise to the level of a failure to exercise jurisdiction. In light of the District Court’s prompt
resolution of Aruanno’s motion to reopen Hasher, and the understandable confusion
regarding the docketing of his motion to reopen Bagarozy, we are confident that the
District Court will rule on the pending motion in short order. Accordingly, we will deny
the mandamus petition. Aruanno’s motions to expedite the petition are denied.
1
No responses to the motion have been filed.
4
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63 U.S. 244 (1859)
22 How. 244
PHINEAS O. FOSTER, ROGER A. HEIRNE, AND GEORGE J. BLAKESLEE, OWNERS OF THE STEAMBOAT SWAN, PLAINTIFFS IN ERROR,
v.
GORHAM DAVENPORT AND OTHERS, COMMISSIONERS OF PILOTAGE OF THE BAY AND HARBOR OF MOBILE.
Supreme Court of United States.
*245 Mr. Justice NELSON delivered the opinion of the court.
This is a writ of error to the Supreme Court of the State of Alabama.
The case is, in all respects, like the one just decided, except it is insisted that the steamboat was employed as a lighter and towboat upon waters within the State of Alabama, and therefore engaged exclusively in the domestic trade and commerce of the State.
According to the admitted state of facts, this boat was engaged in lightering goods from and to vessels anchored in the lower bay of Mobile, and the wharves of the city, and in towing vessels anchored there to and from the city, and, in some instances, towing the same beyond the outer bar of the bay, and into the Gulf to the distance of several miles. This boat was duly enrolled and licensed to carry on the coasting trade at the time she was engaged in this business, and of the seizure under the State law.
It also appears from the answer, and which facts are admitted to be true, that the port of Mobile is resorted to and frequented by ships and vessels, of different size in tonnage, engaged in the trade and commerce of the United States with foreign nations and among the several States; that the vessels of small size and tonnage are accustomed to come up to the wharves of the city, and discharge their cargo, but that large vessels frequenting said port cannot come up, on account of the shallowness of the waters in some parts of the bay, and are compelled to anchor at the lower bay, and to discharge and receive their cargo by lighters; and that the steamboat of claimants was engaged in lightering goods to and from said vessels, and in towing vessels to and from the lower bay and the wharves of the city.
*246 It is quite apparent, from the facts admitted in the case, that this steamboat was employed in aid of vessels engaged in the foreign or coastwise trade and commerce of the United States, either in the delivery of their cargoes, or in towing the vessels themselves to the port of Mobile. The character of the navigation and business in which it was employed cannot be distinguished from that in which the vessels it towed or unloaded were engaged. The lightering or towing was but the prolongation of the voyage of the vessels assisted to their port of destination. The case, therefore, is not distinguishable in principle from the one above referred to.
Judgment of the court below reversed.
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458 B.R. 494 (2011)
In re Ronald G. ANDERSON and Sandra M. Anderson, Debtors.
No. 11-22650.
United States Bankruptcy Court, E.D. Wisconsin.
September 29, 2011.
*495 Christine Wolk, Christine Wolk Attorney at Law, Oshkosh, WI, for Debtors.
AMENDED MEMORANDUM DECISION ON OBJECTION TO CONFIRMATION OF PLAN
MARGARET DEE McGARITY, Bankruptcy Judge.
The debtors filed a chapter 13 petition and plan on March 1, 2011. American *496 Home Mortgage Servicing, Inc., as servicing agent for Federal National Mortgage Association, opposed confirmation on the grounds, inter alia, the plan violated its rights under 11 U.S.C. § 1325(a)(5)(B), and sought to modify the terms of the mortgage secured by the debtors' principal residence in violation of 11 U.S.C. § 1322(b)(2). The debtors responded to the objection by opposing the creditor's standing as holder of the mortgage only, which encompassed no right to enforce personal liability on the non-signers of a note that exceeded the value of the property. Both parties submitted briefs in support of their respective positions.
This is a core proceeding under 28 U.S.C. § 157(b)(2)(L), and the Court has jurisdiction under 28 U.S.C. § 1334. This decision constitutes the Court's findings of facts and conclusions of law pursuant to Fed. R. Bankr.P. 7052. For the reasons stated, the objection to confirmation is sustained.
BACKGROUND
The material facts are not in dispute. During all relevant times, the debtors' primary residence was a house on approximately 20 acres owned by Ms. Anderson in Wautoma, Wisconsin. The debtors filed a previous chapter 13 case in 2002. In an effort to pay off a maturing mortgage on their homestead with a different lender, and to successfully complete that plan, they sought financing through two gentlemen by the names of Christopher Proulx and Shawn Wahle. The debtors have designated the resulting transaction a "foreclosure rescue scam" with predictably convoluted transactions. At the closing, Ms. Anderson sold her home to Mr. Proulx for $119,250, the latter having financed the purchase through a $95,400.00 mortgage with New Century Mortgage Corporation (WB-11 Residential Offer to Purchase dated October 20, 2005; U.S. HUD Settlement Statement dated December 27, 2005). The original Residential Offer to Purchase included both the homestead and an adjacent parcel Although the offer was later amended to remove the extra acres from the purchase, they were included in the deed and mortgage. At the same closing, Mr. Proulx gave Ms. Anderson a "seller carryback"[1] promissory note and mortgage on the property in the amount of $17,887.50, which the county refused to record because the mortgage document was not legible. (Promissory Note dated December 7, 2005; Mortgage dated December 27, 2005; Letter from Nations Title Agency of Minnesota, Inc., dated August 24, 2006). Mr. Proulx also signed a note to the Andersons for $23,860.00. (Note dated December 7, 2005). The debtor's first mortgage of $39,915.83 and delinquent real estate taxes of $7,152.96 were paid in full, and after rather exorbitant closing costs and settlement charges were assessed, Ms. Anderson received proceeds of $43,091.45. (U.S. HUD Settlement Statement dated December 27, 2005). A portion of the proceeds was used to pay off the chapter 13 plan and the debtors received a discharge on February 10, 2006. Another portion of the proceeds was split with Messrs. Proulx and Wahle for their assistance.
On March 13, 2007, Mr. Proulx refinanced his New Century mortgage for a $116,000.00 loan with American Brokers Conduit. The note provided for payments of interest only at 7.25% for 120 months and a maturity date of April 1, 2037. In August 2007, he sold off the land that was *497 not supposed to be part of the transaction with Ms. Anderson to Jack Scimeca and retained the $57,000 proceeds for himself. American Home Mortgage Servicing, Inc., eventually released its interest in this parcel. (Partial Release of Mortgage dated June 1, 2009). In March 2007, before this transfer to Mr. Scimeca, the entire property was appraised at $145,000. (EMT Appraisals' estimate of value dated March 1, 2007). The current value of the property remains in dispute and will not be determined by the Court at this time, but it appears that both sides agree that the value is less than the amount owed on the note and set by the judgment of foreclosure.
On February 27, 2008, American Home Mortgage Servicing, Inc., the holder[2] of the note and assignee of the mortgage, commenced a foreclosure action[3] against Mr. Proulx, naming the debtors as "Unknown Tenants." The debtors answered the complaint alleging, inter alia, that their interest in the property was paramount to American Home's.
Ms. Anderson subsequently settled her dispute with Mr. Proulx. On October 19, 2009, Ms. Anderson released her alleged claims against Mr. Proulx in exchange for a quit claim deed to the property not owned by Mr. Scimeca. The Andersons, as unnamed tenants, and American Home stipulated to entry of a judgment of foreclosure on July 1, 2010, and on July 7, 2010, the state court entered a judgment. (Waushara County Circuit Court Case No. 08 CV 60, Findings of Fact, Conclusions of Law and Summary Judgment, dated July 7, 2010). As of the date of the state court proceedings, $149,725.19 was due on the mortgage.
The debtors filed a chapter 13 petition and plan on March 1, 2011, proposing to pay American Home Mortgage Servicing, Inc., $316.32 monthly for 36 months and then approximately $34,200.43 in a balloon payment at the end of the 36 month period, for a total payment of $40,000.00 amortized over 15 years at 5% interest per year. This provision is in essence a cramdown to the value of the property retained by the debtors. American Home, as servicing agent for Federal National Mortgage Association, opposed confirmation on the grounds, inter alia, the plan violated 11 U.S.C. § 1325(a)(5)(B) and sought to modify the terms of the mortgage secured by the debtors' principal residence in violation of 11 U.S.C. § 1322(b)(2). While arguing in support of their plan, the debtors also reserved an objection to American Home's standing to oppose confirmation. Both parties submitted briefs in support of their respective positions.
ARGUMENTS
According to the debtors, 11 U.S.C. § 1322(c)(2) does not prohibit them from modifying what they describe as a predatory interest-only mortgage. Although they took back the real estate subject to the security interest of American Home, they were never a party to the note, and they did not have standing to challenge the terms of the note in the state court foreclosure proceedings. While they agree they are subject to the mortgage, they are not *498 liable on the note. Because the terms of the note only bind the signors of the note, the debtors' obligation to pay only arises from the lien, which can have no more value than the collateral secured by it. See Mitchell Bank v. Schanke, 2004 WI 13, ¶ 42, 268 Wis.2d 571, 676 N.W.2d 849 ("`In Wisconsin, the cause of action on a note evidencing an indebtedness and the cause of action to foreclose the mortgage on real estate that secures the indebtedness are distinct.'" (quoting Bank of Sun Prairie v. Marshall Dev. Co., 2001 WI App 64, ¶ 12, 242 Wis.2d 355, 626 N.W.2d 391)). They should thus be allowed to "cram down" the mortgage judgment lien on the property and pay only the value of the secured portion through their plan.
Additionally, American Home may not enforce the security agreement until it verifies that it is servicing the mortgage on behalf of Fannie Mae.[4] The debtors further contend that they are entitled to the same relief afforded the debtor in In re Walker, 405 B.R. 300 (Bankr.E.D.Wis.2009), wherein the defrauded debtor was entitled to set aside the contract and the parties' interests were restored to the state preceding the fraud.
American Home argues the Rooker-Feldman and res judicata doctrines bar the debtors from challenging its standing to oppose confirmation of the plan because the state court has entered a judgment of foreclosure. See Long v. Shorebank Dev. Corp., 182 F.3d 548 (7th Cir.1999); In re Agard, 444 B.R. 231 (Bankr.E.D.N.Y. 2011); In re Ward, 423 B.R. 22 (Bankr. E.D.N.Y.2010). American Home is the assignee of record and holder of the note, which is endorsed in blank. See Wis. Stat. §§ 401.201(20), 403.205(2). Therefore, the argument continues, American Home may enforce the note by filing a proof of claim and objecting to confirmation of the debtors' proposed plan.
American Home points out that the mortgage was accelerated by default when the foreclosure judgment was entered, and the plan's proposal to modify its mortgage violates the anti-modification provision of 11 U.S.C. § 1322(b)(2). Under controlling law, see Matter of Clark, 738 F.2d 869 (7th Cir.1984); Bank of Commerce v. Waukesha County, 89 Wis.2d 715, 279 N.W.2d 237 (1979), its note and mortgage remain intact and enforceable in this case. Section 1322(b)(2) does not require that the debtors be in privity with American Home. Even though she held a note from Mr. Proulx, Ms. Anderson released all claims against him and took back the property with actual knowledge of American Home's mortgage.
DISCUSSION
In the case at bar, the debtors have set forth in Schedule C that the property is their homestead, and the debtors reside on the property; therefore, the property is the debtors' principal residence. There is no question that Fannie Mae holds a lien on the property and that it has no other collateral securing the first lien note. The issue herewhether a chapter 13 debtor with no personal liability on an accelerated loan on a principal residence may strip the mortgage down to the value of the real estatepresents two competing bankruptcy principles.
*499 Bankruptcy Principle No. 1: The Anti-Modification Exception of Nobelman v. Am. Sav. Bank.
One the one hand, section 1322(b)(2) prohibits the modification of a claim that is secured only by a security interest in real property that is the debtor's principal residence. In Nobelman v. Am. Sav. Bank, 508 U.S. 324, 329, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), the United States Supreme Court has stated that the "rights" referred to in section 1322(b)(2) are those reflected in the relevant mortgage instruments, which are enforceable under state law. The Nobelman decision is instructive in multiple ways. In that case, a unanimous Court held that the limiting language of section 1322(b)(2) applied to prevent chapter 13 debtors from stripping down the undersecured portion of the loan secured by the debtors' principal residence. The mortgage encumbering the Andersons' homestead is likewise undersecured.
The basic facts in Nobelman were uncontroverted. The debtors fell behind on their mortgage, so they filed a chapter 13 case. The value of the property was about one-third the amount of the debt, and the debtors proposed to pay only the current value, treating the difference as unsecured, with unsecured creditors receiving nothing. The debtors argued that the antimodification language of section 1322(b)(2) applied only to the extent the mortgagee held a secured claim in the residence and the court must look first to section 506(a) to determine the value of that claim. The Court explained the debtors' syllogism:
Section 506(a) provides that an allowed claim secured by a lien on the debtor's property "is a secured claim to the extent of the value of [the] property"; to the extent the claim exceeds the value of the property, it "is an unsecured claim." Petitioners contend that the valuation provided for in § 506(a) operates automatically to adjust downward the amount of a lender's undersecured home mortgage before any disposition proposed in the debtor's Chapter 13 plan.
508 U.S. at 328, 113 S.Ct. 2106. The Court then responded to the debtors' argument with an important discussion, stating:
This interpretation fails to take adequate account of § 1322(b)(2)'s focus on "rights." That provision does not state that a plan may modify "claims" or that the plan may not modify "a claim secured only by" a home mortgage. Rather, it focuses on the modification of the "rights of holders" of such claims. By virtue of its mortgage contract with petitioners, the bank is indisputably the holder of a claim secured by a lien on petitioners' home.
Id. The Court recognized that applying section 506(a) would acknowledge the bank had a secured claim for the value of the property; "however, that determination does not necessarily mean that the `rights' the bank enjoys as a mortgagee, which are protected by § 1322(b)(2), are limited by the valuation of its secured claim." Id. at 329, 113 S.Ct. 2106.
The Court continued:
The term "rights" is nowhere defined in the Bankruptcy Code. In the absence of a controlling federal rule, we generally assume that Congress has "left the determination of property rights in the assets of a bankrupt's estate to state law," since such "[p]roperty interests are created and defined by state law." Moreover, we have specifically recognized that "[t]he justifications for application of state law are not limited to ownership interests," but "apply with equal force to security interests, including the interest of a mortgagee". The bank's "rights," therefore, are reflected in the relevant mortgage instruments, *500 which are enforceable under Texas law. They include the right to repayment of the principal in monthly installments over a fixed term at specified adjustable rates of interest, the right to retain the lien until the debt is paid off, the right to accelerate the loan upon default and to proceed against petitioners' residence by foreclosure and public sale, and the right to bring an action to recover any deficiency remaining after foreclosure. . . . These are the rights that were "bargained for by the mortgagor and the mortgagee," . . . and are rights protected from modification by § 1322(b)(2).
Id. at 329-30, 113 S.Ct. 2106 (citations omitted).
Thus, if there were no material facts other than an undersecured mortgage, the plan provision cramming down the creditor's claim to the value of its security would be unconfirmable.
Bankruptcy Principle No. 2: Non-Recourse Obligations After Johnson v. Home State Bank.
Prior to the Nobelman decision, the Supreme Court considered the nature of a secured obligation that remains after the borrower receives a chapter 7 discharge in Johnson v. Home State Bank, 501 U.S. 78, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). In Johnson, the bank held a mortgage secured by a debtor's farm property. The bank commenced foreclosure proceedings under state law based on the debtor's default on his obligations under the mortgage. Before the bank's foreclosure sale, the debtor filed a petition for relief under chapter 7, through which he obtained a discharge of his personal liability to the bank.
The bankruptcy court then lifted the automatic stay, allowing the bank to obtain an in rem judgment against the debtor's property. Prior to the new foreclosure sale date, the debtor filed a petition for relief under chapter 13 and included the bank's interest arising from its mortgage on his property as a claim to be treated through his plan. Against the bank's objection, the bankruptcy court confirmed the 13 plan. On appeal, the district court and the Tenth Circuit both disagreed with the bankruptcy court and held that the bank did not hold a claim against the debtor because his personal liability was discharged in his chapter 7 bankruptcy case. Accordingly, the debtor could not use his chapter 13 plan to cure arrears under the mortgage held by the bank.
On subsequent appeal, the Supreme Court overruled the decisions of the district and circuit courts. It interpreted the term "claim" in the Bankruptcy Code broadly to include a "mortgage interest that survives the discharge of a debtor's personal liability." 501 U.S. at 84, 111 S.Ct. 2150. The Court explained that, even without the debtor's personal obligations "the mortgage holder still retain[ed] a `right to payment' in the form of the right to the proceeds from the sale of the debtor's property" or, in the alternative, the bank's right to foreclose "can be viewed as `an equitable remedy' for the debtor's default on the underlying obligation." Id. The Court continued:
In other words, the court must allow the claim if it is enforceable against either the debtor or his property. Thus, § 502(b)(1) contemplates circumstances in which a "claim," like the mortgage lien that passes through a Chapter 7 proceeding, may consist of nothing more than an obligation enforceable against the debtor's property. Similarly, § 102(2) establishes, as a "[r]ul[e] of construction," that the phrase "`claim against the debtor' includes claim against property of the debtor." A fair reading of § 102(2) is that a creditor who, like the Bank in this case, has a *501 claim enforceable only against the debtor's property nonetheless has a "claim against the debtor" for purposes of the Code.
Id. at 85, 111 S.Ct. 2150. The Johnson Court found support for its view in the legislative history of section 102, noting:
The legislative history surrounding § 102(2) directly corroborates this inference. The Committee Reports accompanying § 102(2) explain that this rule of construction contemplates, inter alia, "nonrecourse loan agreements where the creditor's only rights are against property of the debtor and not against the debtor personally." Insofar as the mortgage interest that passes through a Chapter 7 liquidation is enforceable only against the debtor's property, this interest has the same properties as a nonrecourse loan. . . . [I]nsofar as Congress did not expressly limit § 102(2) to nonrecourse loans but rather chose general language broad enough to encompass such obligations, we understand Congress' intent to be that § 102(2) extend to all interests having the relevant attributes of nonrecourse obligations regardless of how these interests come into existence.
Id. at 86-87, 111 S.Ct. 2150 (citation omitted).
Johnson is thus recognized for its holding that even though a debtor has discharged his or her personal liability on the obligation on a mortgage in a chapter 7 case, the debtor may still file a chapter 13 case to address the lender's claim against the debtor's real property. In this case, the debtors' lack of personal liability on the obligation is not the result of a chapter 7 discharge; it is the result of acquiring property subject to a mortgage, followed by a state court foreclosure without deficiency. American Home's claim is likewise only in rem as to the property, not in personam with recourse against Ms. Anderson.
A debtor may never have personal liability on the debt secured by the mortgage. Such is the nature of a nonrecourse mortgage. It may occur, as in Johnson, with a chapter 7 discharge, or as in the current case, taking title to encumbered property, followed by a foreclosure without deficiency. Several courts have addressed whether a debtor with encumbered property, which was transferred to the debtor without the lender's consent, may modify the lender's lien rights. Generally, the issue has arisen when the debtor is not the original mortgagor but nevertheless proposes a chapter 13 plan to prevent the lender from invoking its foreclosure rights under the due on sale clause. A majority of courts have permitted the debtor to cure the default under the mortgage, even if the debtor lacks privity with the mortgagee.
The apparent majority view allows a debtor to include such a mortgage in the plan based on a broad interpretation of the term `claim' even though the debtor is not in privity with the mortgagee. E.g., In re Newcomer, 438 B.R. 527, 542 n. 14 (Bankr. D.Md.2010) (stating majority view since Johnson that it is appropriate to permit chapter 13 debtor who is owner of real property to cure prepetition default under mortgage, even if debtor lacks privity with mortgagee); In re Brown, 428 B.R. 672 (Bankr.D.S.C.2010) (holding debtor who lived on real property subject to reverse mortgage which had been accelerated prepetition, following her mother's death, and on which, as result of this acceleration, last mortgage payment was due prior to final payment under debtor's 60-month plan, could pay the entire reverse mortgage debt over life of her plan, pursuant to statutory exception to antimodification provision, section 1322(c)(2)); In re Flores, *502 345 B.R. 615, 617 (Bankr.N.D.Ill.2006) (holding wife who was not original signor could include property in plan because it was community property).
Not all courts have been willing to confer the benefits of chapter 13 cure provisions on debtors who have acquired encumbered property in violation of due on sale clauses. See, e.g., In re Tewell, 355 B.R. 674, 681 n. 7 (Bankr.N.D.Ill.2006) (holding debtor who obtained residential property from original mortgagor without adhering to due on sale clause was not permitted to cure mortgage defaults through plan; finding Johnson distinguishable on facts); see also In re Mullin, 433 B.R. 1 (Bankr.E.D.Tex.2010) (concluding "a debtor who obtained residential property from the mortgagor without adhering to the due on sale clause is not permitted to cure the mortgage defaults through the Chapter 13 plan over the objection of the mortgage holder").
The debtors are not seeking to cure and reinstate the mortgage. The cases that allow curing of a default and reinstatement of a default might be persuasive, but they simply do not apply to what the debtors are trying to do. They want to reduce the creditor's secured claim and to pay total payments equaling only the present value of the collateral.
The right to cram down a secured creditor's interest in a debtor's principal residence does not arise from lack of personal liability on the note. The creditor still has the bundle of rights described in Nobelman, and these cannot be modified by the debtors' proposed plan provision. See In re Garcia, 276 B.R. 627, 635 (Bankr. D.Ariz.2002) (noting "a cure is not an exception to the antimodification provision, because modifications and cures deal with wholly distinct, mutually exclusive, legal concepts"). The creditor is not attempting to collect personally from the debtors; it is entitled to its in rem rights in the property, which are embodied in the original note and mortgage, but that does not equate to personal liability on the part of the debtors. Ms. Anderson took the property with these rights attached, and the debtors could walk away from the property with no further personal liability. The inclusion of the debtors' cramdown provision renders the plan unconfirmable.
Applicability of 11 U.S.C. § 1322(c)(2).
Section 1322(c)(2) provides an important exception to section 1322(b)(2), providing debtors with the opportunity to pay a mortgage indebtedness that has matured or matures during the term of a chapter 13 plan. Section 1322(c)(2) states:
(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law
. . .
(2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor's principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title.
11 U.S.C. § 1322(c). The debtors in this case argue that their proposed modification is allowed under this provision. Section 1322(c)(2) provides for de-acceleration and cure of the matured secured claim, but the modification is in the timing of payment, i.e., it may extend over the term of the plan, with the same protections provided the secured creditor by section 1325(a)(5). It does not change the rights of the holder of the claim. Furthermore, this section only applies when the last payment on the original payment schedule is due before the plan completes. The last payment on the original debt in this case would have been April 1, 2037. The mortgage *503 was accelerated by default and the foreclosure judgment creates a new due date, but it does not change the original date. See, e.g., In re Rowe, 239 B.R. 44 (Bankr.D.N.J.1999). Section 1322(c)(2) does not apply in this case.
Requirement of Equal Plan Payments.
Additionally, under the Bankruptcy Code, payments to secured creditors whose claims are to be paid in full under the plan must be in equal amounts. 11 U.S.C. § 1325(a)(5)(B)(iii)(I). In In re Wagner, 342 B.R. 766 (Bankr.E.D.Tenn. 2006), the debtor's proposed chapter 13 plan provided for payment of the mortgagee's surviving in rem claim, following the discharge of the debtor's personal liability for the debt in her prior chapter 7 case, by 23 payments of $728.00 per month and a balloon payment in the 24th month of the plan. The bankruptcy court sustained the creditor's objection to confirmation, finding the plan did not provide for periodic payments to the mortgagee in "equal monthly amounts," as required by section 1325(a)(5)(B)(iii)(I). In order to obtain confirmation, the Andersons' plan must provide for equal monthly payments to the secured creditor over the life of the plan until the lien claim is satisfied. Such treatment cannot then allow for a balloon payment in the final month, as proposed by the debtors.
Claim Preclusion and Standing.
American Home argues the debtors cannot at this time challenge their standing as creditors to object to their plan or to collect amounts due under their plan. The Andersons participated in the foreclosure action, in which American Home was the plaintiff, and stipulated to judgment, including the amount due. They could have raised the issue of whether American Home was a proper party and did not do so.
While the amount of the foreclosure judgment is subject to claim preclusion, see In re Back Bay Restorations, Inc., 118 B.R. 166, 169-70 (Bankr.D.Mass. 1990) (noting bankruptcy courts bound by prior judgments of amount of resulting damages), the status of the creditor as claimant may have changed since then. The creditor still must prove it is entitled to payment as mortgagee, servicer or other means. This issue will be the subject of further proceedings related to the debtors' objection to the claim.
Even if American Home is not able to prove its status as a creditor for the purpose of receiving distributions pursuant to a plan, the Court cannot ignore issues raised by it. The bankruptcy court cannot confirm a plan that contains provisions contrary to law, no matter how those defects come to its attention. See United Student Aid Funds, Inc. v. Espinosa, ___ U.S. ___, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) (finding bankruptcy courts presented with plan proposing discharge of student loan debt without determination of undue hardship in adversary proceeding should not confirm such plan, even if creditor fails to object or to appear at proceeding at all). For the reasons stated above, the debtors' proposed plan cannot be confirmed. A separate order consistent with this opinion will be entered.
NOTES
[1] A seller carryback is when the seller agrees to "carry back" some part of the purchase price themselves. The seller accepts a certain amount of the purchase price in the form of a promissory note from the buyer, usually secured by the property.
[2] Fannie Mae currently owns the indebtedness, but American Home continues to service it.
[3] After discovering that the wrong legal description was attached to the mortgage, American Home executed a partial release of Mr. Scimeca's parcel. Subsequent assignments of the mortgage have added back the released parcel. American Home has stated in its brief that its mortgage only intended to encumber the residential property, not the parcel transferred to Mr. Scimeca. Mr. Scimeca was not a party to the foreclosure action.
[4] In the event the Court holds that they are bound by the terms of the contract, the debtors reserved the right in their reply brief to challenge whether American Home has the right to collect the payments under the terms of the note. As of the date of that brief, American Home had not documented, to the satisfaction of the debtors, that it was the servicing agent of Fannie Mae.
| {
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396 P.2d 123 (1964)
James HAWKINS, Plaintiff-Respondent, Cross-Appellant,
v.
Melvin CHANDLER, dba Chandler's Wrecking Service, Defendant-Respondent, and
J. Lew Papes, Defendant-Appellant.
No. 9370.
Supreme Court of Idaho.
October 14, 1964.
Rehearing Denied November 10, 1964.
*125 E. L. Miller, Coeur d'Alene, for appellant.
James W. Ingalls and Charles H. Kimball, Coeur d'Alene, for respondent, cross-appellant Hawkins.
Brown, Peacock & Keane, Kellogg, for respondent, Chandler.
TAYLOR, Justice.
On the evening of November 24, 1961, plaintiff Hawkins (respondent and cross-appellant) was driving his automobile north on U.S. Highway 95, traveling from Potlatch toward Tensed. Snow had been plowed off the road so that both lanes were open. The surface was icy and slick. From the summit of what is known as Marsh Hill, the road descends toward the north. At the scene of the accident the grade averaged about 6%. After a slight turn to the left, for north-bound traffic, there were two rather sharp curves to the right; the roadbed sloped toward the inside of these curves; the road was constructed on a sloping hillside; on the right the hill rose up from the borrowpit and on the left it sloped downward from the shoulder of the road; on either side was a growth of pine trees. As he proceeded down the hill, plaintiff observed a car which had slid off the road to the right on rounding the first right-hand curve. In attempting to pass another vehicle farther to the north, plaintiff's car slid off the road just beyond the second right-hand curve. Plaintiff then walked back over the summit of the hill to a farmhouse and called the Chandler's Wrecking Service at Potlatch. This call was placed about 6:00 or 6:30 in the evening, and it was getting dark. On returning toward his car the plaintiff found that another car had slid off the road just ahead of the first car. This second car was driven by the witness Rouse, who, being equipped with chains, had undertaken to help the first car out of the ditch, and his car slid off the road in the process.
When the wrecker arrived it was positioned on the road opposite the Rouse car to pull that car back on the highway. While this operation was in progress, the lights of defendant's (appellant Papes) car were seen coming over the summit. On rounding the curve, Papes, being unable to stop his car, drove it into the back end of the wrecker, which was standing at an angle on the right-hand, or northbound lane of the highway. Plaintiff was caught between defendant's car and the wrecker as he attempted to move off the road between the back of the wrecker and the Rouse car. As a result plaintiff's right leg was severely injured.
Plaintiff charged defendant Papes with negligence in driving at an excessive speed in view of the conditions of the highway; in failing to keep a proper lookout; in failing to observe the wrecker and the lights thereon; in failing to maintain control of his car and to stop before reaching the wrecker; and in failing to pass the wrecker on the left.
Plaintiff charged defendant Chandler, operator of the wrecker, with negligence in failing to place warning flares or other signals, or to station a flagman, upon the highway to warn drivers of approaching vehicles of the position of the wrecker.
Defendant Papes by affirmative answer and cross claim charged defendant Chandler with negligence in the placing of the wrecker diagonally across his lane of travel and in failing to place flares or a flagman to warn approaching drivers, thus creating "a trap or a snare" by reason of which defendant was unable to avoid the collision, and charged plaintiff Hawkins as the employer of Chandler, to whom Chandler's negligence was imputable. Defendant Papes charged the plaintiff with contributory negligence *126 and alleged his assumption of risk in placing himself in a position of danger between the wrecker and the approaching Papes' vehicle.
The jury returned a verdict in favor of the plaintiff and against the defendant Papes, awarding damages; and also a verdict in favor of defendant Chandler and against the plaintiff, denying plaintiff damages against Chandler; and in favor of Chandler and against defendant Papes on the latter's cross claim.
From the judgments entered against him on these verdicts defendant Papes appealed, and plaintiff Hawkins appealed from the judgment entered against him in favor of defendant Chandler.
The evidence on the issues of negligence, contributory negligence and assumption of risk was conflicting. No issue is presented on this appeal as to sufficiency of evidence.
Appellant Papes assigns as error the ruling of the court permitting the witness Frost, a highway patrolman of ten years experience, to testify to the effect that the law did not require the use of flares by the driver of a wrecker, unless the wrecker was disabled. The testimony was admitted over objection that it called for the opinion of the witness on a question of law. A lay witness is never permitted to give his opinion on a question of law. 20 Am.Jur., Evidence, § 799; 32 C.J.S. Evidence § 453. The testimony was not admissible. However, under circumstances disclosed by the record, its admission was not reversible error. On direct examination by plaintiff's counsel, the witness was questioned concerning a conversation he had had with Chandler a few days after the collision, as follows:
"Q Did he make any statement with reference to the necessity for use of flares on that particular occasion?
"A Well, he indicated that he normally would use those, take those necessary precautions.
"Q Did he state why he had not on this evening in question?
"A At that time he indicated he didn't really know why he didn't take any necessary precautions. I don't recall of any other reason being indicated."
By this examination the witness was led to suggest to the jury that the use of flares was a necessary legal requirement. The cross-examination tended to offset that impression. Moreover, the court, having in mind the cross-examination, permitted the officer to testify that it was the custom of operators of wreckers in the area to use flares or flagmen, under such circumstances.
Appellant Papes assigns as error the admission in evidence of defendant Chandler's exhibit D. This was a map or scale drawing of a section of the highway, prepared by an engineer employed by defendant Chandler. The section of highway represented was based upon the location of the point of collision as pointed out to the engineer by Chandler. The exhibit purports to portray the point of impact and 600 to 700 feet of the roadway and curve upgrade to the south. It also purports to show the dip of the roadbed toward the inside of the curve at the point of collision; the degree of the curve; the average slope of the grade; the distance from the point of impact to the farthest point upgrade on the inside edge of the road at 4½ feet elevation from the roadbed, that the surveyor's stadia rod could be seen through the engineer's transit, set at the inside edge of the road; and a like maximum distance along the center line of the highway. Papes' objections to the exhibit were, first, that the starting point from which the survey was made was not located with sufficient definiteness to entitle the exhibit to be admitted, and, second, that the conditions existing at the scene at the time of the survey were not the same as at the time of the accident. Mr. Chandler was extensively examined and cross-examined with reference to the point of impact, which he pointed out to the engineer, and was positive that he had accurately indicated that point. The engineer was extensively cross-examined as *127 to the conditions existing at the time he made the survey from which the exhibit was prepared. He testified that the survey was made between 11:00 a. m. and 3:00 p. m. on the 4th day of May, 1963; that the road was bare; that it was a clear day, although cloudy; that the transit afforded magnification and better vision at a distance than would be available to the naked eye; that a moving driver would not have as clear or accurate a view as he had through the transit; and that the accuracy of the exhibit as to physical features and distances shown would depend on the accuracy of Chandler in locating the point of impact.
From the testimony of these witnesses, the jurors were made aware of the probability and nature of such inaccuracies as might be contained in the exhibit. They were thus enabled to appraise it, and limit its application to the value it did have in helping them understand in general the scene and surroundings of the collision. The sight distances represented only those distances on a straight line between the transit and the stadia rod at which the hillside or vegetation adjacent to the inside of the curve would cut off the vision of an observer from either point to the other. The engineer's explanation that a driver would not be able to make observations as accurate as afforded by the use of the transit, would prevent the jury being misled by these distances. The admission of the exhibit was not error.
Papes also objected to the remark made by the court at the time Chandler's exhibit D was admitted, to wit: "At least we have some distances here." The remark expressed to the jury an awareness of possible weaknesses in the exhibit. In view of this and the engineer's cross-examination we do not think defendant Papes was prejudiced. McShane v. Quillin, 47 Idaho 542, 552, 277 P. 554 (1929); McKissick v. Oregon Short Line Ry. Co., 13 Idaho 195, 89 P. 629 (1907).
On cross-examination of Papes the court overruled his objection to the question as to whether he was driving at such speed and in such manner, that, on seeing the obstruction, he could stop his car before colliding with it. Papes complains that the question assumes it was his absolute duty to so drive under all conditions. The applicable rule was stated in Stanger v. Hunter, 49 Idaho 723, 732, 291 P. 1060, 1063 (1930):
"one driving in the nighttime must proceed at such rate of speed that he may be able ordinarily to stop short of an object appearing in the radius of his lights, and that he must see any object in his path which an ordinarily prudent driver under like circumstances would have seen."
O'Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958); Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947); Baldwin v. Mittry, 61 Idaho 427, 102 P.2d 643 (1940). Any improper inference the jury may have gathered from the ruling was dispelled by instruction number 35 given by the court:
"You are instructed that the driver or operator of a motor vehicle is not required to be able to stop absolutely short of an object appearing in the radius of his headlights, regardless of existing conditions. The law only requires that he drive at night at such a speed as to be able ordinarily to stop."
After the jurors had deliberated some hours they returned to the courtroom and at their request a portion of the testimony of the witness Rouse as to the distance from which he first observed the car in the ditch, was read to them. Complaint is made that elsewhere in testimony, not read, he had testified that distances given by him were based on guess and estimate. In the portion read he was asked for his estimate and qualified his answer, "The distance is hard to tell." Thus, if the effect was to re-emphasize his testimony as to distance, it was likewise re-emphasized that his answer was an estimate.
Likewise, a portion of the testimony on redirect examination of the witness Frost, was read to the jurors. In the portion read, Frost had testified that it was the custom of wrecker operators in that area to place *128 flares or use flagmen to warn traffic of hazards on the highway, at night. Reading of this testimony did not prejudice Papes because it was favorable to him.
The court instructed the jury as to the duty of the operator of a motor truck to carry reflectors or other signaling devices of the type, and at the times, required by I.C. § 49-841(a). However, the court refused to give defendant Papes' and plaintiff Hawkins' requested instructions to the effect that it was the duty of defendant Chandler to place the flares or other signaling devices in the manner as required by I.C. § 49-842, at the time he stopped his wrecker on the highway. Subdivision (a) of that section imposes the duty of placing warning devices as follows:
"Whenever any motor truck, passenger bus, truck tractor, trailer, semi-trailer, or pole trailer is disabled upon the traveled portion of any highway or the shoulder thereof outside of any municipality at any time when lighted lamps are required on vehicles the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in paragraph (b): * * *."
The section then details the type and manner of placing such warning devices.
By its instructions, the court ruled that the wrecker was not "disabled" within the meaning of the statute and that Chandler was, therefore, not required to comply therewith. Defendant Papes and plaintiff Hawkins assign as error such instructions and the refusal of the court to instruct that the wrecker was disabled within the meaning of the statute, and that Chandler was, therefore, required to comply.
Prior to 1953, the statutory requirements for the placing of flares or other signals was contained in I.C. § 49-549, as follows:
"Whenever any motor truck shall stop upon a highway during the period of time when lighted lamps must be displayed on motor vehicles, where such truck is not or can not be stopped or parked off the paved, oiled or main travelled portion of the highway, whether disabled or not, the driver or other person in charge of such vehicle shall place or cause to be placed, such flares, lanterns or other lighted signals to be lighted and placed upon the highway, * * *." (Emphasis added.)
This section was repealed in 1953 when the present § 49-842, supra, was enacted. Thus, the legislature, by the change, limited the requirement of placing signaling devices upon the highway to the operator of trucks, which were disabled, and relieved operators of trucks, which were not disabled, from that requirement. The legislative purpose in requiring the operator of a wrecker truck to carry flares, but not requiring him to use them unless the wrecker is disabled, is not apparent. However, the courts cannot inquire into the motive or purpose of the legislature, when its language is unambiguous. When the language of a statute is changed, it is presumed a change in application or meaning was intended. Wellard v. Marcum, 82 Idaho 232, 351 P.2d 482 (1960); Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957); State ex rel. Anderson v. Rayner, 60 Idaho 706, 96 P.2d 244 (1939). We, therefore, hold that the court correctly submitted to the jury the issue as to whether Chandler was negligent in failing to place flares or other authorized signaling devices upon the highway prior to the accident.
Idaho Code § 49-820(d) provides as follows:
"Any vehicle may be equipped with lamps which may be used for the purpose of warning the operators of other vehicles of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing, and when so equipped may display such warning in addition to any other warning signals required by this act. The lamps used to display such warning to the front *129 shall be mounted at the same level and as widely spaced laterally as practicable, and shall display simultaneously flashing white or amber lights, or any shade or color between white and amber. The lamps used to display such warning to the rear shall be mounted at the same level and as widely spaced laterally as practicable, and shall show simultaneously flashing amber or red lights, or any shade of color between amber and red. These warning lights shall be visible from a distance of not less than 500 feet under normal atmospheric conditions at night."
The court instructed the jury that if Chandler's wrecker was equipped with, and displayed to the rear, lights authorized by the foregoing provision, then it was equipped as required by law. There was evidence that the wrecker was equipped with seven blinking red lights facing to the rear and that they were lighted and in operation from the time the wrecker stopped on the highway until the collision. The wrecker was positioned at an angle across the right-hand lane of travel. Some of the witnesses positioned the wrecker at a slight angle and others at a considerable angle to the highway. Chandler testified that some of the red blinkers could be turned almost to a right angle with the truck, but whether they were at the time so turned as to cast their light up the highway to the south was not shown. However, there was evidence that the blinkers were visible to the first right-hand curve, a distance variously fixed by the witnesses, at 200 to 600 feet.
Defendant Papes and plaintiff Hawkins assign as error the refusal of the court to give an instruction requested by them to the effect that Chandler violated the provisions of I.C. § 49-755 by stopping his wrecker upon the traveled part of the highway. That section makes it unlawful to so park any vehicle when it is "practical to stop, park, or so leave such vehicle off such part of said highway" and provides that a sufficient width shall be left for the free passage of other vehicles and a clear view of the vehicle from a distance of 200 feet in either direction shall be available, and further provides that the section shall not apply to a disabled vehicle. That statute does not apply to the operator of a wrecker while engaged in the necessary emergency operation of moving a disabled vehicle. Anno. 30 A.L.R.2d 1019, 1099, et seq. (1953). The court properly instructed the jury that Chandler was making proper use of the highway and that he was not liable unless the jury found he was negligent in the manner in which he was performing that operation.
Defendant Papes assigned as error the giving of instruction number 30, as follows:
"You are instructed that if the wrecker driver, Chandler, was exercising ordinary care, he had a right to assume that every other person using the highway would be driving at a reasonable and prudent speed and so controlled as necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.
"The wrecker driver, Chandler, had a right to rely and act on that assumption and cannot be found negligent for failing to anticipate an accident which could be occasioned only by a violation of law or duty by another."
The instruction is erroneous in two particulars:
The second paragraph would relieve the operator of the wrecker from the duty to anticipate an accident which could be occasioned without violation of law or duty by another. Where a wrecker, at night, is hidden from the view of an approaching driver by a nearby curve, on a downgrade, covered with ice and snow, in a slippery condition, a jury might find that the operator of the wrecker should anticipate that an ordinarily prudent driver, exercising ordinary care and driving at a reasonable speed, would be unable to avoid colliding with the wrecker, upon discovering *130 its position after rounding the curve. Cf. Dewey v. Keller, 86 Idaho 506, 517, 388 P.2d 988, 994, 995 (1964).
The first paragraph of instruction 30 would require a driver on the highway to drive at such speed and have such control of his vehicle as to be able to avoid colliding with any person or vehicle lawfully using the highway, under any and all circumstances. That portion of the instruction, though in part based upon statute I.C. § 49-701(a) , is in conflict with the rule adopted by this court which is correctly set out in instruction 35, supra. The instruction should have been modified accordingly. See: O'Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958); Pittman v. Sather, 68 Idaho 29, 188 P.2d 600 (1947); Maier v. Minidoka County Motor Co., 61 Idaho 642, 105 P.2d 1076 (1940); Stanger v. Hunter, 49 Idaho 723, 291 P. 1060 (1930); Dewey v. Keller, supra.
Instruction 34, also assigned as error, was as follows:
"You are instructed that it is the law of the State that when a person is operating a motor vehicle upon the public highway at night time he must proceed at such a rate of speed that he may be able to ordinarily to stop short of an object appearing in the radius of his lights. Generally it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate a motor vehicle on a highway at such a speed that the vehicle cannot be stopped within the distance within which objects can be seen ahead of the vehicle."
The second sentence in this instruction contains a comment on the evidence, and is incorrect and in conflict with instruction 35, since it is not negligence as a matter of law to drive a motor vehicle at night at such a speed that it may not be stopped short of objects appearing in the radius of its lights.
The errors in instruction 30 were prejudicial to plaintiff Hawkins in that the instruction tended to shield Chandler against Hawkins' charge of negligence on the part of Chandler. The errors in instructions 30 and 34 were prejudicial to defendant Papes in that the instructions tended to shield defendant Chandler against Papes' charge of negligence on the part of Chandler as the sole proximate cause of the collision. Instructions 30 and 34 were also prejudicial to defendant Papes in that they tended to shield plaintiff Hawkins against Papes' charge of contributory negligence on the part of Hawkins.
We have examined the other assignments of error and find them to be without merit.
The judgments are reversed and the cause is remanded for a new trial.
Costs to appellants.
McQUADE, McFADDEN and SMITH, JJ., concur.
TOWLES, District Judge (dissenting):
The majority opinion directs a reversal of the judgment of the trial court on the alleged errors contained in instructions numbered 30 and 34.
Instruction No. 30, which is quoted in the majority opinion, correctly states the law. In line 2 of the instruction the jury is advised that if the wrecker driver, Chandler, was exercising ordinary care, then and only then he might assume that every other person would also be exercising ordinary care. The argument contained in the majority opinion to the effect that a jury might find that the operator of the wrecker should anticipate that a person exercising ordinary care would be unable to avoid colliding with the wrecker, does not seem to conform to the law as contained in the instruction.
In the absence of any circumstances imposing such a duty, the operator of a motor vehicle is not bound to anticipate negligence or unlawful conduct on the part of other persons or motorists in their use of the highway. On the contrary, provided there are no circumstances which should reasonably put him on notice to the contrary, *131 a motorist has the right, to some extent at least, to assume and to act on the assumption that other users of the highway will obey the law, will comply with statutory requirements and will, in general, exercise due or at least reasonable and ordinary care. A motorist's right to assume due care and observance of the law by other users of the highway, is qualified by his duty to exercise due care himself, or such care as is commensurate with the dangers to be reasonably anticipated. The right of motor vehicle operators to rely on the care of others is restricted to operators who themselves are exercising reasonable care. West v. Laurence, 81 Cal. App.2d 89, 183 P.2d 31 (1947); Nicholson v. Nelson, 27 Wash.2d 472, 178 P.2d 739 (1947); Kindscher v. Dyer, 78 Cal.App.2d 323, 177 P.2d 782 (1947); Jones v. McCullough, 148 Kan. 561, 83 P.2d 669 (1938); Lovett v. Gill, 142 Or. 534, 20 P.2d 1070 (1933); Hickerson v. Jossey, 131 Or. 612, 282 P. 768, 283 P. 1119 (1929); 60 C.J.S. Motor Vehicles § 249.
A user of the highway is not guilty of contributory negligence in assuming, in the absence of knowledge or notice to the contrary, that others using it in common with him will comply with the law and use ordinary care to avoid injuring him; but he cannot, for that reason, omit any of the care which the law otherwise demands of him. Beck v. Sirota, 42 Cal.App.2d 551, 109 P.2d 419 (1941); McCulloch v. Horton, 105 Mont. 531, 74 P.2d 1, 114 A.L.R. 823 (1937); 61 C.J.S. Motor Vehicles § 459.
Certainly, taking the two paragraphs of the instruction together, the jury could not have understood that the wrecker driver, Chandler, was excused from exercising ordinary care as, of course, if he failed to exercise ordinary care, he would be guilty of negligence. It is not felt that this instruction was in any way prejudicial to any of the parties. The majority opinion contends that instruction No. 30 was prejudicial to the plaintiff, Hawkins, when in reality the Hawkins appeal was only to be considered by the court in the event of a reversal of the judgment by Hawkins against the defendant Papes. This writer cannot conceive how the instruction could be prejudicial to the defendant Papes when it correctly states the law as set forth heretofore.
If the instruction tended to favor the defendant Chandler, the wrecker driver, who was excused from liability by the jury, then the rule announced by the Supreme Court of California in the case of Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617, 618 (1931), would apply as follows:
"As is not unusual in such cases, the principal dispute seems to have been between the respective defendants, each of whom endeavored to place the blame upon the other. * * * `It is clear that the liability of appellant * * depended entirely upon the answer to the questions whether he himself was or was not negligent, and whether or not such negligence, if it existed, proximately caused or contributed to the injuries complained of. These questions are wholly independent of the question as to whether or not his codefendant * * * was also liable.'"
Error as between joint tortfeasors should not be considered by the court to the prejudice of the position of the respondent.
"if one joint tortfeasor was negligent, such negligence was, as a matter of law, at least a concurrent cause of the plaintiff's injury, and even if a codefendant is exonerated, the defendant is not prejudiced, there being ordinarily no right of contribution between joint tortfeasors. * * * a plaintiff's right of action against joint tortfeasors is joint and several and thus he may sue all or any one of them, so that where the complaining defendant's liability to the plaintiff is established, his rights between himself and the plaintiff are not affected by errors committed in favor of a codefendant, and if the codefendant is exonerated the complaining defendant's position is no worse than it would have been had a joint *132 judgment been rendered, for the plaintiff could have proceeded against such defendant alone for satisfaction of a joint judgment, and, there ordinarily being no right of contribution between joint tortfeasors, the defendant could not have looked to the codefendant for payment of any part of the judgment. * * * Except for Alabama * * * all jurisdictions in which the question has arisen subscribe to the view that a defendant cannot, on appeal or writ of error, complain of an instruction favoring a codefendant which merely had the effect of preventing a joint judgment." Annotation, 60 A.L.R.2d 526, 527, 528.
Gensler-Lee of Reno v. Geertson, 73 Nev. 328, 318 P.2d 1113 (1957); Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 265 P.2d 542 (1954); Peters v. City and County of San Francisco, 41 Cal.2d 419, 260 P.2d 55 (1953); Mountain States T. & T. Co. v. Consolidated Freightways, 121 Utah 379, 242 P.2d 563 (1952); Laubscher v. Blake, 7 Cal.App.2d 376, 46 P.2d 836 (1935); Brunetto v. Spediacci, 124 Cal.App. 252, 12 P.2d 151 (1932); Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617 (1931); Harju v. Market Street Ry. Co., 114 Cal.App. 138, 299 P. 788 (1931); Crabbe v. Rhoades, 101 Cal.App. 503, 282 P. 10 (1929).
In regard to the claimed error in instruction No. 34, it should be pointed out that the Idaho Supreme Court, in three previous cases, has affirmed the language used in this instruction word for word.
Quoting from the recent case of O'Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958) Justice Smith used the following language:
"This Court in Maier v. Minidoka County Motor Co., 61 Idaho 642, 650, 105 P.2d 1076, 1079, stated the rule to be:
"`Generally it is negligence as a matter of law, or at least strong evidence of negligence, for a motorist to operate his automobile on a highway at such a speed that the automobile cannot be stopped within the distance within which objects can be seen ahead of the automobile. Goodman v. Wisby, 152 Kan. 341, 103 P.2d 804. This court has placed its approval upon the doctrine that one driving at nighttime must proceed at such rate of speed that he may be able ordinarily to stop short of an object appearing in the radius of his lights.' (Emphasis supplied).
"And in Pittman v. Sather, 68 Idaho 29, 34, 188 P.2d 600, 603, this Court stated:
"`The rule laid down in the Maier case, supra, does not require that one be able absolutely to stop short of an object appearing in the radius of his lights, regardless of existing conditions, but only that he drive at night at such a speed as to be able ordinarily to so stop. Whether respondents were or were not negligent in driving at such a speed as not to be able to stop before the collision, was a question for the jury to determine under all the evidence.'
"See, also, Stanger v. Hunter, 49 Idaho 723, 291 P. 1060; Baldwin v. Mittry, 61 Idaho 427, 102 P.2d 643."
Instruction 34 is a correct statement of the law as previously announced by this court, although this writer is willing to concede that the phrase used in the instruction, as a matter of law, is questionable. It would seem to me to be the better practice, following the rule of stare decisis, for this court to affirm the decision of the trial court, inasmuch as this was the law at the time this case was tried, but to disapprove the further use of this phrase in the context used in instruction 34.
Both of these instructions considered together with instruction No. 35, clearly stated the applicable law to the jury and the judgment of the trial court should have been affirmed.
In all other respects I concur with the majority opinion.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3838
_____________
UNITED STATES OF AMERICA
v.
FREDDIE LOPEZ-ESMURRIA,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Cr. No. 1-11-cr-00230-001)
District Judge: Hon. Yvette Kane
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 8, 2017
______________
Before: CHAGARES, VANASKIE, and FUENTES, Circuit Judges
(Filed: October 23, 2017)
______________
OPINION*
______________
VANASKIE, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
I.
Following a jury trial, Appellant Freddie Lopez-Esmurria was convicted of
distribution of cocaine and heroin and related conspiracies. At his initial sentencing, the
District Court found the quantity of drugs attributable to Lopez-Esmurria to be higher
than that found by the jury on a special verdict form and sentenced him accordingly.
Lopez-Esmurria appealed that sentence and we held that, although the District Court
possessed the authority to find a drug quantity greater than that found by the jury, the
drug quantity that the Court had attributed to Lopez-Esmurria was not supported by the
record. See United States v. Lopez-Esmurria, 629 F. App’x 284, 286-87 (3d Cir. 2015).
We remanded the matter so that Lopez-Esmurria could be resentenced. Upon
resentencing, the District Court once again found Lopez-Esmurria responsible for a drug
quantity that was higher than the amount found by the jury. Lopez-Esmurria now appeals
his resentencing, arguing again that the District Court’s finding contravenes his Sixth
Amendment rights. Because the District Court possessed the authority to sentence
Lopez-Esmurria on the basis of a drug quantity greater than that found by the jury, and
Lopez-Esmurria does not challenge the accuracy of the District Court’s calculations of
drug quantity, we will affirm.
II.
In January of 2014 Lopez-Esmurria was convicted of cocaine and heroin
distribution, in violation of 21 U.S.C. § 841(a)(l), and related conspiracies, in violation of
21 U.S.C. § 846. In completing the special verdict form, the jury reported that the
Government had proven beyond a reasonable doubt that Lopez-Esmurria was guilty of
2
trafficking less than 500g of cocaine and less than 100g of heroin. At sentencing,
however, the District Court found that Lopez-Esmurria was responsible for 9 kilograms
of cocaine and 320 grams of heroin. According to Lopez-Esmurria, The effect of these
findings was to raise the imprisonment range under the United States Sentencing
Guidelines from 36-47 months to 210-262 months. The District Court imposed a prison
term of 210 months, and Lopez-Esmurria appealed.
On appeal, we held that drug quantity was not an element of the crimes with which
Lopez-Esmurria had been charged, and the District Court was thus not bound by the
jury’s special verdict form, but could instead determine the amount of drugs attributable
to Lopez-Esmurria. See Lopez-Esmurria I, 629 F. App’x at 286. We also concluded,
however, that the record did not support the District Court’s findings as to the quantity of
drugs attributable to Lopez-Esmurria, and remanded for a re-determination of drug
quantity and resentencing. Id. at 287.
On remand, the District Court made detailed written findings of specific amounts
in the form of cocaine, crack cocaine, and heroin attributable to Lopez-Esmurria.
Specifically, the District Court found that for sentencing purposes, Lopez-Esmurria was
responsible for 564.12 grams of cocaine, .37 grams of crack cocaine, and .36 grams of
heroin. The District Court directed the Probation Office “to calculate the applicable
offense level in accordance with [these] findings.” (App. 82.) As a result of the District
Court’s findings, the Guidelines imprisonment range for Lopez-Esmurria was reset at 87
to 108 months. The District Court resentenced Lopez-Esmurria to 96 months’
3
imprisonment. Lopez-Esmurria now appeals his resentencing as a violation of his Sixth
Amendment right.
III.
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §
3742(a). This Court reviews the District Court’s interpretation of the Sentencing
Guidelines de novo. United States v. Kluger, 722 F.3d 549, 555 (3d Cir. 2013). A
district court’s application of the sentencing guidelines to a set of facts is reviewed for an
abuse of discretion. Id.
IV.
On appeal, Lopez-Esmurria challenges the authority of the District Court to find
that he is responsible for 564.12 grams of cocaine because the jury found that he was
responsible for less than 500 grams of cocaine.1 We rejected this very same argument in
Lopez-Esmurria I. What we stated then remains applicable now:
We reiterate now that drug quantities are sentencing factors, not elements of
the crime. ‘Broad sentencing discretion, informed by judicial factfinding,
does not violate the Sixth Amendment.’ Lopez-Esmurria has no claim under
Apprendi or Alleyne.
Lopez-Esmurria I, 629 F. App'x at 286
Lopez-Esmurria argues that in our first opinion we “did not make a determination
as to whether the affirmative findings of drug quantity made by the jury on the Special
1
Lopez-Esmurria does not challenge the District Court’s drug quantity findings at
the resentencing proceeding, and we thus accept them as accurate.
4
Verdict Form precluded the District Court from making a contradictory finding during
sentencing.” (Appellant’s Brief at 12.) He urges that we follow United States v.
Pimentel-Lopez, 859 F.3d 1134, 1140 (9th Cir. 2016). Like our case, the jury in
Pimentel-Lopez made a finding beyond a reasonable doubt that the accused was
responsible for less than a specified quantity. The Ninth Circuit ruled that an
“affirmative finding by the jury that the quantity of drugs involved was less than a
specific amount precluded a contradictory finding by the district judge during
sentencing.” Id. at 1141.
Assuming that we can consider this argument notwithstanding our holding in
Lopez-Esmurria I, we find it unpersuasive for several reasons. First, the Ninth Circuit’s
ruling conflicts with our case law, which holds that “[a] district court may, consistent
with the Fifth and Sixth Amendments, engage in additional factfinding, using a
preponderance-of-the-evidence standard, to select an appropriate sentence up to the
statutory maximum based on application of the Guidelines.” United States v. Smith, 751
F.3d 107, 117 (3d Cir. 2014). Second, a jury’s finding of drug quantity under a standard
of proof of beyond a reasonable doubt standard is not inconsistent with a judge finding a
greater drug quantity applying the applicable preponderance of the evidence standard.
See United States v. Grier, 475 f.3d 556, 568 (3d Cir. 2007) (en banc). Third, the Ninth
Circuit’s decision is inconsistent with rulings from our sister circuits that have addressed
the question of whether a sentencing court can find a drug quantity greater than a jury
finding. See, e.g., United States v. Webb, 545 f.3d 673. 676-77 (8th Cir. 2008); United
States v. Magallanez, 408 F.3d 672, 683-84 (10th Cir. 2005); United States v. Goodine,
5
326 F.3d 26, 32 (1st Cir. 2003); United States v. Smith, 308 F.3d 726, 745 (7th Cir.
2002). And finally, even if the District Court was precluded from finding an amount of
cocaine greater than 500 grams, the Guidelines sentencing range applied here would
remain the same. As noted above, Lopez-Esmurria does not assail the correctness of the
District Court’s factual findings as to drug quantities. Those findings for cocaine,
cocaine base, and heroin, when converted pursuant to the “Drug Equivalency Tables”
found in U.S.S.G. § 2D1.1, appl. n.8(D), yielded a total of 114.5 kilograms of marijuana,
which in turn produced an offense level of 24 pursuant to U.S.S.G. § 2D1.1(8).2 If the
District Court had been limited to 499 grams of cocaine, i.e., less than 500 grams, the
marijuana equivalency would have been 99.8 kilograms of marijuana.3 When combined
with the marijuana equivalency for cocaine base and heroin, the amount of drugs
attributable to Lopez-Esmurria would have been 101.48 kilograms of marijuana, yielding
the same offense level of 24 used by the District Court. Thus, Lopez-Esmurria’s rights
under the Sixth Amendment were not violated by the District Court in determining drug
quantities and in imposing a prison term of 96 months.
V.
Based on the foregoing we will affirm the District Court’s September 27, 2016
judgment of sentence.
2
Specifically, the amount of cocaine found by the District Judge (564.12 grams)
was the equivalent of 112.82 kilograms of marijuana under the Drug Equivalency Tables,
and the .36 grams of heroin equaled .36 kilograms of marijuana, and the .37 grams of
cocaine base equaled 1.32 kilograms of marijuana.
3
Under the “Drug Equivalency Tables, 1 gram of cocaine equals 200 grams of
marijuana. U.S.S.G. § 2D1.1, appl. n.8(D).
6
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459 S.W.2d 293 (1970)
STATE of Missouri, Respondent,
v.
Lester Junior ELLIFRITS, Sr., Appellant.
No. 54367.
Supreme Court of Missouri, En Banc.
November 9, 1970.
*294 John C. Danforth, Atty. Gen., Peter H. Ruger, Dale L. Rollings, Asst. Attys. Gen., Jefferson City, for respondent.
Clevenger & Lay, by William D. Lay, Platte City, for appellant.
HOLMAN, Judge.
Defendant was charged with the offense of burglary in the second degree (dwelling house). See § 560.045.[1] The information also charged two prior felony convictions under the provisions of § 556.280. The jury found defendant guilty as charged and the court (after making the required findings) fixed his punishment at imprisonment for a term of six years. See § 560.095 (2). Defendant has appealed.
This appeal was originally heard in Division Two where an opinion was adopted but the case was transferred to the Court en Banc on the court's own motion. Additional briefs were filed and the cause was reargued and resubmitted.
The home of David Heap, located in rural Platte County, was burglarized on February 22, 1968. This was the third burglary occurring at this residence in two months. Mr. Heap testified that all of their more valuable possessions were taken in the first two burglaries. The one in question *295 was alleged to have been committed by defendant and J. C. McDonald, both of whom lived in Kansas City, Kansas. David, who was engaged in rehabilitation work, had sponsored J. C. as a parolee from the Kansas State Penitentiary and considered him a good friend.
On February 16, David and his wife left on a vacation trip planning to be gone until February 26. J. C. was caring for David's dog (at the McDonald home) while they were away and a key to the Heap house was left with the Merediths, close neighbors, to be used in case of emergency. At about 3:30 a. m. on the 22nd, Mrs. Meredith awakened and saw the lights of a car leaving the Heap driveway. She and her husband went to the home and found both the front and back doors ajar with the entire house in disarray. It looked to them like someone was living there as they found fresh garbage and dirty dishes in the sink and food on the table. As will hereinafter appear significant they found some insulin and a hypodermic needle on a table, there was no car in the basement garage and, although most everything in the house was in disorder, the clothing in the bedroom closet did not appear to have been disturbed. They locked the doors and reported the situation to the sheriff's office and were requested to leave the key in their mailbox so that a deputy could obtain the key and investigate the situation the next morning. Both of the Merediths were employed and were away from home during the day.
Deputy Sheriff Edward Stevens went to the Heap home at about 10 a. m. on the 22nd. Using the key, he entered by the front door and immediately saw defendant "passing through" the house. Defendant went out the back door with Stevens in pursuit. As defendant started down the driveway Stevens drew his gun and called for him to halt, which he did. The officer then saw J. C. McDonald crouched down by a wall near the garage door. He handcuffed the two together and radioed for additional help. In a subsequent search Stevens found a loaded Savage Automatic on the ground where J. C. had been crouched. A car was in the garage. It was learned that it was a leased car which had been reported stolen by the lessee, Bob Stewart. In a later report Stewart stated that it had not been stolen but that he had leased it for J. C. McDonald.
The officers further testified that pry marks were found on the back door; that they found a considerable number of suits, overcoats and other clothing piled near the front door; that on searching defendant they found eight credit cards that had been issued to David Heap and a pocket knife that was later identified as belonging to David; that a string of imitation pearls (belonging to Mrs. Heap), and a hypodermic needle were found in the possession of J. C., who suffers from diabetes.
J. C. McDonald testified for defendant to the effect that he had gotten drunk the night of the 21st and was with Bob Stewart; that he slept that night at the home of defendant; that Bob called early the next morning and said that the Heap home was being robbed and that he should go out; that defendant agreed to go with him; that they were unable to borrow a car so they started walking; that they hitchhiked a ride with an acquaintance part of the way; that when they arrived they found the front door open and three men ran out the back door and into the woods; that they found many articles from the Heap home scattered over the back yard and were engaged in picking those up when the officer arrived. J. C. denied any knowledge concerning the gun or the car in the garage and stated that the pearls found in his possession were picked up in the back yard.
Defendant's testimony was similar to that of J. C. McDonald. He also stated that the credit cards found in his pocket had been picked up in the back yard.
The first point briefed is that the allegations of the information are insufficient to invoke the provisions of the second offender statute. The statute, § 556.280, provides, in part, that "If any person convicted *296 of any offense punishable by imprisonment in the penitentiary * * * shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony * * *." In the respect here material the information in this case alleged that "on the 10th day of May, 1957, defendant was convicted in the Circuit Court of Allen County, Kansas, for the crime of burglary, 2nd degree, and was sentenced to the Kansas State Penitentiary, Lansing, Kansas, and was subsequently released * * *." A similar allegation was made concerning the other conviction. Defendant says that the allegation does not comply with the statutory requirement of an allegation that defendant "was placed on probation, paroled, fined or imprisoned"; that under the situation described it should have specifically alleged that he had been imprisoned. Defendant relies mainly on State v. Watson, Mo.Sup., 383 S.W.2d 753, in support of this contention. In that case the information made the allegation in the following language: "* * * convicted of Bank Robbery, and was sentenced therefor to serve a term of 7 years therefor, in the Federal Penitentiary at Leavenworth, Kansas, and thereafter was received at said penitentiary on January 30, 1953, and thereafter was discharged from said penitentiary." 383 S.W.2d 754. In Watson the court held that the allegations were not sufficient to invoke the provisions of § 556.280 because it did not specifically allege that defendant had been "imprisoned."
It is apparent that Watson is ample authority for holding the information before us insufficient in the respects under consideration. However, upon mature consideration we have decided that the decision in Watson concerning the quoted allegation is not sound and should no longer be followed. It is true, under the provisions of § 556.280, that the information should allege sufficient facts to inform the defendant that he is charged with having been previously (1) convicted of a felony, (2) sentenced, and (3) subsequently placed on probation, paroled, fined, or imprisoned. We do not think, however, that it was imperative that the word "imprisoned" be used. Any allegation from which it necessarily would be inferred that he had been imprisoned should be sufficient. Thus, in Watson, when it was alleged that defendant had been received at the penitentiary and was thereafter discharged, We think the conclusion is inescapable that he had been imprisoned. We have also concluded that the allegation here is sufficient. We believe that the allegation that defendant was subsequently released necessarily implies that he had been imprisoned. The word "release", in the manner used in the information, is defined in Webster's Third New International Dictionary as "to set free from restraint, confinement, or servitude: set at liberty: let go." An illustration given is "ordered all prisoners released." A visitor at a penitentiary may be said to leave or depart, but when the statement is made that a person is released from the penitentiary we think it necessarily means that he is being set free from imprisonment. We accordingly rule this point against defendant.
The defendant also contends that prejudicial error occurred when the prosecuting attorney made the following statement in his closing argument: "As a matter of fact, I even offered the State's whole file to Mr. Baber [defendant's attorney] at one time. He could look at itdo anything he wanted to donothing hid in this case." The statement is said to be "beyond the issues and evidence in the cause." This point cannot be sustained. In the first place, there was no objection made to the statement and hence the alleged error was not preserved for review. State v. Martin, Mo.Sup., 346 S.W.2d 71. Moreover, the statement was made in reply to an argument made by defendant's attorney and defendant is therefore in no position to complain of it. State v. Wells, Mo.Sup., 305 S.W.2d 457 [11].
The final point briefed is that the trial court erred in failing to instruct the *297 jury on defendant's theory of the case as a part of the law of the case. This apparently means that some sort of instruction should have been given to the effect that if defendant went upon the premises without any intent to commit a burglary but to aid McDonald in protecting the home and property of the Heaps he should be acquitted. It is conceded that this point was not raised in the motion for new trial and hence the alleged error is not preserved for review. State v. Jones, Mo.Sup., 386 S.W.2d 111 [2]. Defendant, however, requests that we review the contention under S.Ct.Rule 27.20(c), V.A.M.S., which provides that "Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom."
Precedents are of little value in determining when relief should be granted under the plain error rule. And that is particularly true where, as here, no constitutional question is involved. In that connection we have said that "Supreme Court Rule 27.20(c) also permits the trial court and appellate court to forego the ordinary requirements in the case of plain error affecting substantial rights, resulting in manifest injustice or miscarriage of justice. This exception is not intended to provide `a means of review of all alleged trial error which is not asserted and preserved pursuant to applicable rules.' State v. Jackson, Mo.Sup., 411 S.W.2d 129, 131. It is limited to the exceptional situation. * * * No attempt to delineate the precise bounds of the exception provided by Rule 27.20(c) is in order." State v. Mabery, Mo.Sup., 437 S.W.2d 91, 93. And, in State v. Auger, Mo. Sup., 434 S.W.2d 1, 4, this court stated that "we will not consider any matter of instructions as `plain error' unless the Court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice." The rule to be followed is summarized in State v. Patterson, Mo.Sup., 443 S.W.2d 104, to the effect that we will review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.
We have carefully reviewed the transcript in this case and have concluded from all the facts and circumstances that no manifest injustice or miscarriage of justice resulted from the failure of the trial court to give an instruction of the type heretofore suggested. We do not consider it prudent to discuss in any detail our reasons for reaching that conclusion. We do mention, however, that what defendant was actually saying to the jury was that he was not guilty because he had no intent to commit burglary but was on the premises for a lawful purpose. This theory was fully presented to the jury in the argument of defendant's attorney. The jury was instructed that it should acquit the defendant unless it found that he broke into the dwelling house with the intent to steal. We are convinced that the jurors fully understood defendant's theory and if they had believed the testimony offered by defendant they would have acquitted him.
As indicated, upon consideration of the entire record, we have the view that no miscarriage of justice occurred in this case and we therefore decline to grant any relief under Supreme Court Rule 27.20(c).
Judgment affirmed.
All concur.
NOTES
[1] Statutory references are to RSMo 1969, V.A.M.S.
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FILED
NOT FOR PUBLICATION AUG 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30121
Plaintiff - Appellee, D.C. No. 3:07-cr-00115-JWS-1
v.
MEMORANDUM *
GLENN E. LOCKWOOD,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted July 26, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Glenn Lockwood was convicted of four counts of tax evasion in violation of
26 U.S.C. § 7201. The district court judge sentenced Lockwood to sixty months of
imprisonment and three years of supervised release. Lockwood timely appeals his
conviction and his sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I
Lockwood argues that there was insufficient evidence to support his
convictions for tax evasion because, in his view, the government did not prove a
tax due and owing, which is an element of tax evasion under 26 U.S.C. § 7201, for
any of the years with respect to which he was convicted. To establish a tax due
and owing in this case, the government had to prove that Lockwood’s corporation
had earnings and profits. See Boulware v. United States, 552 U.S. 421, 424-25
(2008). Here, there was sufficient evidence from which a rational trier of fact
could conclude the existence of earnings and profits in each year with respect to
which Lockwood was convicted of tax evasion because the government’s expert
witness testified to her computations of the taxable income of Lockwood’s
corporation and to her related conclusion that the corporation had earnings and
profits for each of the relevant years. See Jackson v. Virginia, 443 U.S. 307, 319
(1979).
II
Lockwood also argues that the district court improperly calculated the tax
loss underlying his sentence. He first asserts that there was no tax loss. But the
district court did not clearly err in crediting the testimony of the government’s
expert, who testified that there was tax loss, as opposed to the defendant’s expert,
2
who testified to the contrary view. See United States v. Delgado, 357 F.3d 1061,
1068 (9th Cir. 2004).
III
Lockwood next asserts that the corporation’s unfulfilled tax obligations from
2003 to 2007 were not “relevant conduct” for sentencing, and thus should not have
been included in the tax loss, because a corporation is distinct from its owners and
because the charged conduct occurred before 2003 to 2007. Inclusion of the
corporation’s tax obligations was proper, however, because Lockwood “willfully
caused” the corporation’s deficiency as part of his attempt to avoid detection and
as part of his “common scheme” of diverting corporate income for personal use.
See U.S.S.G. § 1B1.3(a)(1)-(2). As the sole shareholder and CEO of the
corporation, Lockwood was responsible for its tax obligations. Lockwood also
argues that, even if the corporation’s tax obligations should have been included,
they should not have been calculated based on gross deposits. But a more accurate
determination could not have been made in light of Lockwood’s refusal to provide
financial information about the corporation to the court. See U.S.S.G. §
2T1.1(c)(2)(A).
3
IV
Finally, Lockwood asserts that he should have been allowed to reduce tax
loss by claiming deductions for the years in which he did not file tax returns. This
argument is foreclosed by United States v. Yip, 592 F.3d 1035, 1040-41 (9th Cir.
2010).
V
For these reasons, the judgment of the district court is AFFIRMED.
4
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171 P.3d 1057 (2007)
STATE
v.
TURNER.
No. 79611-4.
Supreme Court of Washington, Department II.
October 2, 2007.
Disposition of petition for review. Granted.
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399 S.E.2d 382 (1991)
101 N.C. App. 356
Janie L. McKOY, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, and David T. Flaherty, In His Official Capacity As Secretary Of The North Carolina Department of Human Resources, Respondents.
No. 9011SC410.
Court of Appeals of North Carolina.
January 15, 1991.
*383 East Central Community Legal Services by Iris V. Kirkman and Leonard G. Green, Smithfield, for plaintiff-appellee.
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Jane T. Friedensen, Raleigh, for respondents-appellants.
WELLS, Judge.
Respondents bring forward seven assignments of error from the order of the trial court. We have reviewed the record and these assignments and regard the dispositive question of this appeal to be whether the trial court correctly interpreted the effect of 42 U.S.C. § 1396a(r)(2) on this State's treatment of Medicaid applications. We hold that it did not and therefore reverse.
This Court's review of a trial court's consideration of a final agency decision is to determine whether the trial court failed to properly apply the review standard articulated in N.C.Gen.Stat. § 150B-51. In re Kozy, 91 N.C.App. 342, 371 S.E.2d 778 (1988), disc. review denied, 323 N.C. 704, 377 S.E.2d 225 (1989). An agency decision may be reversed or modified by the reviewing court if the agency's findings, inferences, conclusions, or decisions are, inter alia, affected by legal error, unsupported by substantial evidence in view of the entire record, or arbitrary or capricious. N.C.Gen.Stat. § 150B-51(b) (1985). The trial court found that the decision of the hearing officer and the North Carolina regulations on which he relied in denying full benefits to petitioner were in violation of 42 U.S.C. § 1396a(r)(2) and reversed the ruling denying full benefits.
The trial court relied on language in 42 U.S.C. § 1396a(r)(2) which purports to prohibit states from using "more restrictive methodology" in determining eligibility for Medicaid benefits than is used in determining eligibility for Supplemental Security Income (S.S.I.) benefits. Under the S.S.I. program, money set aside in a bank account designated as a burial fund is not counted as an asset in calculating an applicant's available reserve. The North Carolina Medicaid regulations include such funds as a countable asset. Individuals who would be eligible for S.S.I. benefits, then, may not be eligible for Medicaid benefits using North Carolina's "methodology" of making the determination. Therefore, North Carolina's methodology is more restrictive within the meaning of 42 U.S.C. § 1396a(r)(2)(B).
North Carolina, however, has long been what is referred to as a "209(b) state."
*384 This provision (42 U.S.C. § 1396a(f)) states, in pertinent part:
Notwithstanding any other provision of this title . . . no State . . . shall be required to provide medical assistance to any aged, blind or disabled individual . . . for any month unless such State would be (or would have been) required to provide medical assistance to such individual for such month had its plan for medical assistance approved under this title . . . and in effect on January 1, 1972 been in effect in such month. . . .
42 U.S.C. § 1396a(r)(2) refers explicitly to determinations of eligibility pursuant to subsection (f). Subsection (f) states that it applies "notwithstanding any other provision of this title." A conflict arises, then, when, as here, a state seeks to take advantage of its right pursuant to subsection (f) to limit the categories of people to which it is obligated to provide assistance by using a methodology purportedly prohibited by subsection (r)(2).
Both petitioner and respondents have attempted to reconcile the apparent conflict in the language of the subsections. While each has offered plausible arguments, we are not convinced by either interpretation. Petitioner also relies on the "plain language" of 42 U.S.C. § 1396a(r)(2) and the fact that it became law after 42 U.S.C. § 1396a(f) in urging that that particular subsection also applies to 209(b) states. Respondents rely on the "plain language" of 42 U.S.C. § 1396a(f) in urging that it does not. While we appreciate the difficulty of statutory construction this conflicting language created for the trial court, we must disagree with its result.
Medicaid is a cooperative federal-state funding program. Harris v. McRae, 448 U.S. 917, 100 S.Ct. 2671, 65 L.Ed.2d 784, reh'g denied, 448 U.S. 297, 101 S.Ct. 39, 65 L.Ed.2d 1180 (1980). When the federal government legislates pursuant to its spending power, the legislation operates much like a contract. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). In return for federal funds, the states agree to comply with certain conditions. Id. If Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Id.
The nature of the contract entered into by 209(b) states is set out in Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981):
In 1972, Congress replaced three of the four categorical assistance programs with a new program called Supplemental Security Income for the Aged, Blind, and Disabled . . . In some States the number of individuals eligible for SSI assistance was significantly larger than the number eligible under the earlier, state-run categorical need programs.
The expansion of general welfare accomplished by SSI portended increased Medicaid obligations for some States because Congress retained the requirement that all recipients of categorical welfare assistancenow SSIwere entitled to Medicaid. Congress feared that these States would withdraw from the co-operative Medicaid program rather than expand their Medicaid coverage in a manner commensurate with the expansion of categorical assistance. "[I]n order not to impose a substantial fiscal burden on these States" or discourage them from participating, see S Rep No. 93-553, 56 (1973), Congress offered what has become known as the "§ 209(b) option."
In asserting that 42 U.S.C. § 1396a(r)(2) has limited this option by restricting a 209(b) state's choice of methodology for determining eligibility, petitioner must also show that the terms of this "contract" have been altered. Under the Pennhurst analysis, this would require an unambiguous indication of Congressional intent. See Mowbry v. Kozlowski, 914 F.2d 593 (4th Cir. 1990). The language of these subsections, within the same statute, but with (r)(2) stating it applies to (f) and (f) stating that it does not, makes discerning any such indication of intent difficult. The legislative history of the Omnibus Budget Reconciliation Act of 1989 also belies any such intent. In the House Conference Report, it is pointed out that the House budget bill would have resolved the conflict in the *385 statutory language by removing the ambiguities over whether 209(b) states have the option of applying more restrictive methodologies in determining eligibility for Medicaid. This part of the House bill was not adopted. See H.R.Conf.Rep. 101-386, 101st Cong., 1st Sess., 41 (1989), reprinted in 1989 U.S.Code Cong. & Admin.News, 3018, 3094.
We hold that the trial court erred in reversing the hearing officer's determination. Given the ambiguity in the statute, and the lack of any convincing indicator of Congressional intent, we must hold that 42 U.S.C. § 1396a(r)(2) does not apply to limit the right of respondents to use a more restrictive methodology in determining eligibility for benefits pursuant to North Carolina's decision to take advantage of the 209(b) option.
Petitioner has appealed from the court's order refusing to award attorney's fees pursuant to 42 U.S.C. § 1988. In her brief as appellant, petitioner argues that respondents violated 42 U.S.C. § 1396a(r)(2) and the Equal Protection Clause of the United States, and asserts various state law claims for attorney's fees. Petitioner limited her assignment of error, however, to the denial of attorney's fees pursuant to 42 U.S.C. § 1988, claiming that the alleged violations of her statutory and constitutional rights amount to a violation of 42 U.S.C. § 1983. 42 U.S.C. § 1988 provides for attorney's fees for a "prevailing party" in an action brought pursuant to 42 U.S.C. § 1983. Given our disposition of respondents' appeal, we cannot say that petitioner is a "prevailing party." The trial court's order denying attorney's fees is therefore affirmed.
As to respondents' appeal, the trial court's order is
Reversed.
As to petitioner's appeal, the order is
Affirmed.
JOHNSON and COZORT, JJ., concur.
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343 S.W.3d 453 (2010)
Azar Shirvanifar SNIDER, Appellant,
v.
William SNIDER, Appellee.
No. 08-08-00196-CV.
Court of Appeals of Texas, El Paso.
September 22, 2010.
*454 Azar Shirvanifar Snider, pro se.
Philip E. Mullin, for William Snider.
Before CHEW, C.J., MCCLURE, J., and BRAMBLETT, J.
OPINION
ANN CRAWFORD McCLURE, Justice.
The Opinion issued August 4, 2010 is withdrawn; the following is the Opinion of this Court.
We decide today the limits of a trial court's authority to interpret a Rule 11 agreement between the parties in settlement of a division of property incident to divorce. Because the trial court exceeded established parameters, we reverse and remand.
FACTUAL SUMMARY
William Snider filed for divorce on July 28, 2006 and Azar Snider filed a counter petition on September 21, 2006. On April 6, 2007, the parties notified the court of a possible settlement and the case was set for final hearing on June 6. On June 6, the parties agreed to mediate, and the mediation was set for August 14 with a provisional trial date of August 23. The mediation was cancelled and never reset. The final hearing was pushed back to October 12. But during what was originally scheduled as a continuance hearing on October 2, the parties tried to negotiate a settlement. An agreement was signed by the parties and filed with the court on October 31.
An entry of judgment hearing was eventually held before the associate judge on February 15, 2008. Judge Anderson reviewed William's proposed decree line by line. Azar objected that the proposed decree limited the amount of military retirement benefits she was to receive. She complained that the written agreement awarded her "retirement from military retirement" without any percentage limitation. In short, she believed the agreement awarded her 100 percent of her husband's military benefits. Judge Anderson took the matter under advisement.
The final decree was signed on March 5. By its terms, it awarded Azar 50 percent of the community estate's interest in William's military retirement. Both parties appealed to the referring court and Azar filed a motion for new trial. The district court approved the decree and denied the motion for new trial. This appeal follows.
RULE 11 AGREEMENTS
Azar's issues for review focus on whether the trial court had authority to do anything other than enter judgment strictly in accordance with the actual agreement. The parties filed a Rule 11 agreement distributing marital property amongst themselves. But when it came time to finalize the decree, various disputes arose. At the forefront was the issue concerning William's military retirement benefits.
Azar raises several sub-issues regarding the court's interpretation of the agreement. For clarity, we will address Azar's contention that the court erred in ordering language in a final decree that departed from the express terms of the written settlement agreement.
*455 Applicable Statutes and Rules
Section 7.006 of the Texas Family Code provides:
(a) To promote amicable settlement of disputes in a suit for divorce or annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. The agreement may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law.
(b) If the court finds that the terms of the written agreement in a divorce or annulment are just and right, those terms are binding on the court. If the court approves the agreement, the court may set forth the agreement in full or incorporate the agreement by reference in the final decree.
(c) If the court finds that the terms of the written agreement in a divorce or annulment are not just and right, the court may request the spouses to submit a revised agreement or may set the case for a contested hearing.
TEX.FAM.CODE ANN. § 7.006 (Vernon 2006).
Rule 11 of the Texas Rules of Civil Procedure provides:
Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.
TEX.R.CIV.P. 11.
Pertinent Authority
Three intermediate appellate decisions guide our analysis, the first of which issued from this court. See Keim v. Anderson, 943 S.W.2d 938, 940 (Tex.App.-El Paso 1997, no pet.). During the course of the divorce proceedings, the trial court ordered Dr. Keim to pay attorney fees of $1,050 related to discovery disputes and interim attorney's fees of $5,000 to his wife's lawyer. Id. Dr. Keim only made one payment of $1,000. Id. Counsel subsequently withdrew and the Keims then entered into a Rule 11 agreement which did not reference either the prior temporary orders or the interim attorney's fees. Id. The judge accepted the stipulation and granted the divorce. Id. That same day, counsel filed a petition in intervention seeking to enforce the trial court's prior order for interim attorney's fees. Id. The trial court found that its prior award of fees had not been withdrawn by stipulation and ordered that it be included in the final decree of divorce. Id. Dr. Keim appealed.
We first addressed whether the trial court had the authority to modify the agreement of the parties to include the circumvented fee award. Id. We held that because the trial court failed to find that the agreement was not just and right-either at the time the judge approved the stipulation or at the time the written decree was entered-the terms of the agreement were binding on the court. Id. at 946. We then concluded that the court should have an opportunity to either accept the agreement as stipulated, set aside the agreement to consider the intervention, or reject the agreement on the ground that it did not constitute a just and right division of the parties' estates. Id. Because the agreement in Keim contained terms and provisions to which the parties did not agree, we reversed and remanded. Id.
In just the past few months, two of our sister courts have addressed the same issue and come to conflicting decisions. We begin with In re Marriage of Hallman, No. 06-09-00089-CV, 2010 WL 619290 at *456 *1 (Tex.App.-Texarkana 2010, pet.denied) (mem. op.). Initially, Kandy and David Hallman reached an agreement on the property division and temporary spousal support. Kandy's attorney drafted a Rule 11 agreement which was signed and filed. The agreement set temporary support for Kandy in the amount of $4,000 per month from August 1, 2008 until entry of the final decree. It also provided that David was entitled to the exclusive use of the marital residence pending a sale, with the proceeds to be divided equally. After signing the agreement, Kandy and David signed a proposed decree that David could buy Kandy's interest in the house for a $15,000 down payment on a home for Kandy with additional payments of $2,500 each month until the residence was paid in full. At the time he signed the proposed decree, David was working as an oil field consultant and was earning in excess of $100,000 per year. When David lost his job, he notified Kandy that he would not be able to fulfill these obligations. Consequently, the agreed final decree was never submitted to the court and a final contested hearing was scheduled. Kandy testified that she wanted the Rule 11 agreement enforced. David testified that he was currently working in Louisiana making one-seventh of what he was earning at the time the agreement was signed. During the course of the marriage, David did not file any federal income tax returns and as a result, the community owed delinquent taxes of $123,000. The Rule 11 agreement did not include provisions for payment to the IRS, nor did it address the issue of post-divorce spousal maintenance.
The trial court enforced the Rule 11 agreement as a contract and incorporated the agreement into the final decree of divorce. Kandy was awarded a money judgment for arrearages of temporary support in the amount of $36,900 and a judgment for spousal maintenance in the amount of $36,000, to be paid at a rate of $1,000 per month. The court ordered David to pay 80 percent of the IRS debt, with Kandy to pay the remainder.
David appealed. He first complained that the trial court erred by adding additional terms to the Rule 11 agreement. The court began with the support arrearage. Pursuant to the terms of the Rule 11 agreement, David was to pay Kandy $4,000 per month as temporary support until a final decree of divorce was entered. Kandy's uncontested testimony established that temporary support payments of $52,000 should have been paid through August 2009, but only $15,100 had been paid, leaving an arrearage of $36,900. This was sufficient evidence upon which to render a money judgment. As for the IRS debt, the Rule 11 agreement did not mention it. Because the agreement did not address payment of the debt, the court was free to address that issue in the decree. If a Rule 11 agreement fails to dispose of all issues, a trial court must nevertheless dispose of all issues properly before it. Finally, the court considered spousal maintenance. While the Rule 11 agreement contained specific provisions for the payment of temporary support, it did not address post-divorce spousal maintenance. The trial court was similarly obliged to address this issue in the final decree. The court affirmed the judgment, expressly disagreeing with David that the only choice the trial court had was to either enforce the Rule 11 agreement without addressing the other marital issues or to declare the Rule 11 agreement invalid. The court of appeals then concluded it was appropriate for the trial court to honor the Rule 11 agreement as to all matters it covered and to address the remaining issues in dispute.
On the heels of Hallman, the Beaumont Court of Appeals has issued Pohla v. Pohla, No. 09-09-00023-CV, 2010 WL 877555 at *1 (Tex.App.-Beaumont 2010, pet. filed) *457 (mem. op.). There, the parties agreed to a division of property that would in effect "give 58 percent of the community assets to [Barbara] and 42 percent of the community assets to [Charles]." The community assets were itemized and each asset was awarded to one of the spouses along with a corresponding value. The 58 percent-42 percent division of the community estate was then to be effectuated by offset of an AG Edwards IRA account in Charles' name. The parties agreed the IRA account would be "divided in such a way as to make an overall 58/42 division. . . ." At the time, they had not "crunched all the numbers," but they agreed that the IRA account would be offset as of its value on April 30, 2008, in order to accomplish their goal of a 58/42 division of the community estate. The asset at issue in the appeal was Barbara's teacher retirement benefits which had not been listed on the worksheet.
At the prove-up hearing, the court granted the divorce and approved the property settlement agreement as a "fair and equitable one, a right and just division of that marital estate." Barbara's counsel then advised the court about the oversight:
I know its not a problem but I feel like I need to say it for the record. She has a retirement account. Her teacher's retirement account that I think goes without saying it goes to her. Just wanted to get that on the record.
Charles' attorney agreed with that assessment. But the proposed final decree awarded 100 percent of the teacher retirement benefits without any corresponding offset to the IRA account or any reference to the agreement that the community estate would be divided 58 percent-42 percent. The trial court overruled Charles' objection and awarded Barbara 100 percent of her retirement benefits.
Charles appealed. The court recounted the requirements of Rule 11 agreements. A Rule 11 agreement must be interpreted by the trial court based on the intention of the parties as expressed in the entire agreement in light of the surrounding circumstances, including the state of the pleadings, the allegations therein and the attitude of the parties with respect to the issues. Because the parties had not agreed to the award of the teacher retirement at the time the judgment was rendered, the award of the retirement account was outside the scope of the agreed judgment. When a trial court renders judgment on the parties' settlement agreement, the judgment must be in strict compliance with the terms of the agreement. "The trial court has no power to supply terms, provisions, or conditions not previously agreed to by the parties." Id. at *3, citing Keim, 943 S.W.2d at 946. When a consent judgment is not in strict compliance with the terms of the parties' settlement agreement, the judgment must be set aside. The court affirmed the granting of the divorce and reversed and remanded the property division.
We adhere to our holding in Keim and agree with the decision in Pohla. Because the final divorce decree contained terms and provisions that the parties did not agree to, we are obligated to reverse and remand. See Keim, 943 S.W.2d at 946. The trial court will have an opportunity to either accept the agreement as stipulated, set aside the agreement to consider the military retirement dispute, or reject the agreement on the ground that it does not constitute a just and right division of the parties' estates. See Keim, 943 S.W.2d at 946.
BRAMBLETT, J., sitting by assignment.
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Order entered October , 2012
In The
Court of Sppeato
jfiftb 7113tEitrict of Mexati at 3Batlati
No. 05-12-00082-CV
YVONNE BROWN, Appellant
V.
BUCKINGHAM, CAMDEN, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-11-07753-B
ORDER
The Court DENIES appellant's October 1, 2012 motion to extend time to file a motion
for rehearing. On August 29, 2012, the Court denied appellant's July 25, 2012 motion for
rehearing without changing either the opinion or judgment. Under these circumstances,
appellant is not entitled to file a second motion for rehearing. See TEX. R. APP. P. 49.5.
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637 F.3d 1220 (2011)
Anna C. MOORE, a minor child, by and through her mother and natural guardian Pamela MOORE, Plaintiff-Appellee,
v.
Clyde L. REESE, III, in his official capacity as Commissioner of the Department of Community Health, Defendant-Appellant.
No. 10-10148.
United States Court of Appeals, Eleventh Circuit.
April 7, 2011.
*1223 Paula Rafferty Miller, Joshua H. Norris, GA Advocacy Office, Decatur, GA, Gerald R. Weber, Southern Ctr. for Human Rights, Atlanta, GA, for Moore.
Michelle Townes, Penny L. Hannah, Atlanta, GA, for Reese.
Robert S. Highsmith, Jr., Kimberly Renee Ward, Holland & Knight, LLP, Atlanta, GA, for Amicus Curiae, Wellcare of Georgia, Inc.
David A. Webster, Charles Richardson Bliss, Atlanta, GA, for Atlanta Legal Aid Society, Inc., Amicus Curiae.
Before HULL and MARCUS, Circuit Judges, and WHITTEMORE,[*] District Judge.
HULL, Circuit Judge:
Plaintiff Anna "Callie" Moore ("Moore") sued Defendant Clyde Reese, Commissioner of Georgia's Department of Community Health ("DCH"),[1] for allegedly violating the Medicaid Act ("the Act") by reducing Moore's Medicaid-funded private duty nursing care from 94 to 84 hours per week. The district court granted Moore's motion for partial summary judgment and denied DCH's cross-motion for summary judgment. This appeal concerns the extent to which a state Medicaid agency may review Moore's treating physician's determination of medical necessity under 42 U.S.C. § 1396d(r) of the Medicaid Act. After review and oral argument, we reverse and remand for further proceedings.
I. FACTUAL BACKGROUND
A. Moore's Medical Conditions
Plaintiff Callie Moore is a 16-year-old Medicaid recipient who is severely disabled. Due to a stroke suffered in utero, Moore developed numerous chronic conditions, including spastic quadriplegic cerebral palsy, refractory seizure disorder, mental retardation, gastroesophageal reflux disease, central apnea, cortical blindness, dysphagia, and restrictive lung disease.[2] This complex and extensive combination of maladies requires that Moore receive continuous treatment, monitoring, and interventions by her caregivers and skilled nurses.
Even with her medical conditions, Moore is enrolled part-time in school, where she receives special education services. At school, she practices using a communication device to interact with others, including school staff and "lunch buddies" from the student body. A nurse paid for by the school accompanies Moore on the school bus and at school. Outside of school, *1224 Moore is able to participate in a limited range of activities. For instance, with the accompaniment of her mother, Moore regularly attends church and sometimes visits the mall with a friend.
B. Moore's Nursing Requirements
Beginning in 1998 when she was three years old, Moore has received Medicaid-funded private duty nursing services at home.[3] To be eligible for these nursing services, Moore must "require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of [a] hospital or skilled nursing facility." 42 C.F.R. § 440.80. Since 2002, DCH has employed the Georgia Pediatric Program ("GAPP") as its service-delivery model for providing nursing care in the home to medically fragile children with multiple systems diagnoses, such as Moore.[4] As discussed later, Moore is a GAPP member, and DCH publishes a manual that sets forth the policies and procedures for GAPP, including the process for requesting and receiving private duty nursing hours. See PART II POLICIES AND PROCEDURES FOR THE GEORGIA PEDIATRIC PROGRAM ("GAPP Manual").
Dr. Charles L. Braucher, Jr.[5] has treated Moore since she was an infant. He examines Moore approximately six to eight times a year. In a 2007 deposition, Dr. Braucher detailed the myriad duties Moore's nurse or caregiver must perform, including, among other tasks: (1) monitoring her seizures to determine what medication is needed, (2) checking her oxygen levels, (3) assisting with gastric tube feedings, (4) administering a complex regimen of medications, and (5) repositioning her body approximately every two hours to prevent pressure sores.
Dr. Braucher estimated that there was not a four-hour period in which Moore did not require the services of a skilled nurse or someone with comparable training and experience, such as Moore's mother Pam.[6] Although Moore suffers occasional health setbacks, her care and treatment needs have largely stabilized during the previous eight years.[7]
*1225 C. Dr. Braucher's Weekly Nursing Hours Requests
Over the years, Dr. Braucher, as the treating physician, has provided assessments of Moore's weekly nursing requirements to DCH, along with its predecessors and contractors. Dr. Braucher files documentation, including a "Letter of Medical Necessity" detailing Moore's diagnosis and care needs, with the Georgia Medical Care Foundation ("GMCF").
DCH retains GMCF as a third-party vendor of medical experts, including doctors and nurses.[8] GMCF's medical experts ("GMCF Medical Review Team") examine whether GAPP members have met eligibility requirements, assess whether requested services are medically necessary, and determine the amount of services (here, the number of private duty nursing hours) that should be provided to qualifying GAPP members, also based on medical necessity. The GMCF Medical Review Team maintains and reviews the medical records of GAPP members. In Moore's case, the medical records span a period of years. GMCF has no financial incentive to reduce the nursing hours it authorizes, nor does DCH influence or provide recommendations to GMCF.
At various stages in Moore's treatment, Dr. Braucher modified his nursing hours recommendations due to changes in Moore's condition or other external circumstances. For instance, in 2002 Dr. Braucher requested additional nursing hours when Moore experienced severe diarrhea. In 2003, Dr. Braucher requested a reduction from 96 to 84 skilled nursing hours, with an additional 12 hours of care provided by a trainable certified nursing assistant in lieu of skilled nursing. Dr. Braucher's change was prompted by his understanding that Georgia policy allowed Moore to be institutionalized if the care provided in the institution was less expensive than the same amount of home care.[9] Between 2005 and 2006, however, the GMCF Medical Review Team regularly authorized 94 hours of private duty nursing care for Moore, based upon Dr. Braucher's recommendations.
Dr. Braucher explained the criteria used for his nursing hours recommendations. He estimates the total hours of care Moore requires and subtracts the hours of care her family can provide.[10] In estimating the family hours, Dr. Braucher described how he factors in a caregiver's work schedule, *1226 along with sleeping, shopping, and homemaking obligations.[11]
In October 2006, Dr. Braucher requested that Moore continue receiving 94 hours of nursing care per week. Dr. Braucher cited five problems requiring 94 nursing hours. Dr. Braucher noticed the first problem in 2001, when Moore began experiencing acute respiratory distress, erratic breathing patterns, and increased risk of airway obstructions and seizures. Since this respiratory problem has neurological roots, Moore's pulmonologist recommended behavioral management to treat the problem, as opposed to more drastic measures. This requires nursing interventions when episodes occur.
Second, Dr. Braucher cited Moore's inability to move herself during sleep, which requires Moore to be repositioned during the night to prevent damage to skin integrity or obstruction of airways. The third problem surfaced in 2002, when Moore developed rotovirus gastroenteritis, necessitating multiple hospitalizations and nurses to monitor her hydration and quickly intervene.
Fourth, Dr. Braucher noted that Moore's seizures were increasingly difficult to manage and required constant monitoring. Fifth, Dr. Braucher explained that Moore suffered recurrent acute urinary retention, which necessitated frequent monitoring of her bladder size and occasional catheterization.
D. GMCF Reduces Moore's Nursing Hours in 2006
In November 2006, GMCF notified the Moores that, effective December 2006, Callie's nursing care would be reduced from 94 to 84 hours per week. The GMCF Medical Review Team determined that now 84 hours, not 94 hours, were medically necessary to correct or ameliorate Moore's medical condition.
In its "Letter of Notification of Approved Skilled Nursing Hours," GMCF cited four policies in the GAPP Manual to support its revised 84 hours allotment:
Chapter 701: The cost analysis should be made to determine that the cost of caring for the member in the home & community is below cost of providing the same care in an institution.
Chapter 702.2 part b. The Primary caregiver must assist with the member's care in the home.
Chapter 702.2 C. The availability and ability of caregiver(s) or significant other to actively participate in the care of the member.
Chapter 702.2 E. The expectation that the primary caregiver(s) will become competent to assume some responsibility to care for the child.
GAPP Medical Director Dr. Joseph M. Rosenfeld[12] served on the GMCF Medical Review Team that assesses GAPP members' *1227 medical necessities. Dr. Rosenfeld made the final decision to reduce Moore's nursing care from 94 to 84 hours per week.
In a 2007 deposition, Dr. Rosenfeld testified about his definition of medical necessity, explaining that it is "based upon the general accepted medical practices in the community" and can vary by regional expectations. Dr. Rosenfeld derived this standard from the GAPP Manual and from the factors typically considered by the GMCF Medical Review Team. Dr. Rosenfeld's concept of medical necessity hinges on the medical well-being of the GAPP member, not the convenience of the GAPP member or health care provider. Lastly, Dr. Rosenfeld's understanding of medical necessity is informed by his belief that "it should be the most effective or conservative way and cost less than hospitalizing the child." This is consistent with the GAPP policies referenced in GMCF's letter above: (1) "[t]he Primary caregiver must assist with the member's care in the home" and (2) a "cost analysis should be made to determine that the cost of caring for the member in the home & community is below cost of providing the same care in an institution."
Dr. Rosenfeld discussed the factors he considers when determining what nursing hours are medically necessary. Dr. Rosenfeld does not apply a strict formula but considers various elements, including (1) the severity of a child's condition, (2) how unstable they are, (3) what needs can be provided by family members, and (4) hospitalizations.[13] Dr. Rosenfeld's understanding is that GAPP was designed as a "weaning program based on the parents' ability to care for the child." Under GAPP's model, primary and secondary caregivers are trained to care for the GAPP member and, over time, nursing hours are reduced "based upon the competency, [and] knowledge of the parents."
Dr. Rosenfeld justified his ten-hour reduction94 to 84 hoursin weekly nursing hours based on several considerations. First, Moore had not been hospitalized in the recent past, a factor he frequently *1228 takes into account when reducing nursing hours.[14]
Second, Dr. Rosenfeld concluded that many of the conditions that Dr. Braucher highlighted in his "Letter of Medical Necessity" would not be affected by a reduction in nursing hours. Specifically, Dr. Rosenfeld concluded that neither Moore's gastroenteritis complications nor her acute urinary retention would be adversely impacted by the nursing reduction. Moore's malabsorption difficulties posed a "potential problem," but "not an actual problem." Furthermore, Moore's need to be repositioned while she slept was a "home healthcare issue" and did not require skilled nursing.[15]
Lastly, Dr. Rosenfeld's decision to reduce Moore's nursing hours was due to "her being relatively stable and the fact that her parents ... could be able to assume one hour and a couple of minutes of extra care per day since she had been on this many hours for a very long time." Given the competency of Moore's parents in her care, Dr. Rosenfeld determined the hours reduction would not endanger Moore's welfare and "she would continue to basically receive the same type of care that she has received prior to that."
Dr. Rosenfeld characterized Moore's conditions as "chronically stable," a term he used to describe "children who are going to never get better who are ... very ill, but who are stable in the sense that ... the disease process is not getting worse, not getting better, and they're not requiring hospitalizations, and they're going to stay at this steady state for a long time."
When asked if he considered Moore's mother's needs when calculating medically necessary nursing hours, Dr. Rosenfeld commented that his GMCF Medical Review Team generally did not factor in a caregiver's convenience: "We're looking at strictly what is medically necessary for the care of the child. The only time we really take into consideration the caregivers is when it's in a foster situation and the foster parent is really helping the state out." When calculating medically necessary nursing hours, Dr. Rosenfeld takes into account a caregiver's work schedule and sleeping needs, but not such activities as going to the grocery store or attending social functions.
*1229 E. Moore Contests Nursing Hours Reduction
Through her mother, Moore appealed GMCF's reduction from 94 to 84 nursing hours. A hearing was scheduled before the Office of State Administrative Hearings.
In a January 2007 letter sent to Moore's mother prior to that hearing, DCH's Legal Services Officer Cynthia Price explained that GAPP's nursing services could be reduced "when the medical condition of the [GAPP] member stabilizes to give more of the responsibility of the care to the parent(s) and or caregiver(s)." Price cited the "Letter of Understanding" signed by Moore's mother, which stated, "The GAPP program is designed to teach me on the care of my child's medical condition. I understand that services may be reduced over time based on the medical needs of my child." Price attached the "Caregiver Teaching Checklist," which indicated that Moore's mother was competent in all areas of Moore's care. Price's letter concluded, "Based upon your child's stable condition and your competency in her care, it appears that the reduction in hours is appropriate."
The day before the administrative hearing, Moore's mother withdrew her hearing request and filed this lawsuit.
II. PROCEDURAL HISTORY
A. Moore's Complaint
In March 2007, Moore's mother, on behalf of her minor child, filed her original complaint under 42 U.S.C. § 1983, alleging violations of the Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") provision of the Medicaid Act. Plaintiff Moore moved for a temporary restraining order ("TRO"), which the district court granted. The TRO enjoined DCH from providing Moore with fewer than 94 hours of nursing care a week.
When the TRO was slated to expire, Moore filed a motion for a preliminary injunction or, alternatively, to extend the TRO. In September 2007, the district court denied Moore's motion because DCH represented that it would continue to provide 94 nursing hours during the pendency of Moore's suit unless an emergency event required an increase in hours.[16]
B. District Court's 2008 Summary Judgment Order
In February 2008, DCH filed its motion for summary judgment as to the 84 hours allotment. Moore filed her cross-motion for partial summary judgment requesting 94 hours.[17]
*1230 In a June 2008 order, the district court denied DCH's motion for summary judgment and granted Moore's cross-motion in part. The district court commented that a 1989 Amendment to the Medicaid Act reflected Congress's intent to expand health care coverage for Medicaid-eligible children by modifying the Act's EPSDT provision. The EPSDT is Medicaid's preventive child health program for individuals under the age of 21. See 44 Fed.Reg. 29420 (May 18, 1979). The district court determined that the 1989 Amendment "took away a state's discretion not to provide necessary treatment for individuals under the age of twenty-one." Moore v. Medows, 563 F.Supp.2d 1354, 1357 (N.D.Ga.2008).
The district court concluded that "[t]he state must provide for the amount of skilled nursing care which the Plaintiff's treating physician deems necessary to correct or ameliorate her condition. The Defendant may not deny or reduce the hours of skilled nursing care that is medically necessary based upon cost or the lack of a secondary caregiver." Id. The district court effectively deemed the treating physician's opinion of medical necessity dispositive and concluded that DCH had no discretion due to the 1989 Amendment. Accordingly, the district court ruled that Moore was entitled to declaratory and injunctive relief as to DCH's reduction to 84 nursing hours. DCH appealed.
C. DCH's First Appeal in 2009
In April 2009, this Court reversed and remanded. Moore v. Medows, 324 Fed. Appx. 773 (11th Cir.2009) (per curiam) (unpublished) ("Moore I"). A prior panel of this Court agreed that DCH was required to provide Moore with any medically necessary treatment or services but disagreed with the district court's ruling that the treating physician was the sole arbiter of medical necessity. The panel's two-paragraph opinion concluded that (1) the state is not "wholly excluded from the process of determining what treatment is necessary"; (2) "both the state and Moore's physician have roles in determining what medical measures are necessary to `correct or ameliorate' Moore's medical conditions"; and (3) "[a] private physician's word on medical necessity is not dispositive."[18]Id. at 774.
Beyond declaring that the state was not excluded, the treating physician's opinion was not dispositive, and both actors play *1231 roles in determining medical necessity, the Moore I decision did not address what happens when there are conflicting opinions about medical necessity by the treating physician and the state's medical expert. Moore I did not at all elucidate the respective roles of a treating physician and the state, or how to reconcile a treating physician's role vis-à-vis the state's oversight function. However, Moore I did cite our precedent in Rush v. Parham, 625 F.2d 1150 (5th Cir.1980),[19] which we discuss later.
D. District Court's 2009 Order on Remand
After supplemental briefing on remand,[20] the district court once again denied Defendant DCH's motion for summary judgment and granted Plaintiff Moore's cross-motion for partial summary judgment. Moore v. Medows, 674 F.Supp.2d 1366 (N.D.Ga.2009) ("Moore II"). On remand, DCH asserted that, in light of the Eleventh Circuit's ruling in Moore I, "one can conclude that the state is the final arbiter of medical necessity." DCH argued that the state "has the authority and discretion to determine medical necessity as well as to determine the amount, scope, and duration of services paid for and provided by Medicaid in accordance with EPSDT."
The district court rejected DCH's position and agreed with Moore that the state had only a limited role. The district court held that the state could review a treating physician's determination of medically necessary services only for (1) fraud or abuse of the Medicaid system, and (2) whether the services are within the reasonable standards of medical care. Id. at 1370. The district court quoted Rush v. Parham's approving citation of the 1965 Senate Finance Committee Report on the Medicaid Act, which stated that "[t]he physician is to be the key figure in determining utilization of health services." Id. at 1369 (quoting Rush, 625 F.2d at 1157). The district court also cited Pittman ex rel. Pope v. Secretary, Florida Department of Health & Rehabilitative Services, 998 F.2d 887 (11th Cir.1993) (per curiam), to support the proposition that DCH's discretionary role was strictly cabined by § 1396d(r)(5).
The district court then found that DCH raised no issue of fraud or abuse of the Medicaid system by the Moores or the treating physician, Dr. Braucher. Moore II, 674 F.Supp.2d at 1371. The district court noted that there was no genuine issue of material fact regarding whether Dr. Braucher's 94-hours nursing recommendation was based in fact, since his assessment was derived from 12 years of evaluating the patient and was supported by the medical records. Id. The district court again entered injunctive and declaratory relief for Moore. Id. DCH appealed again.
III. STANDARD OF REVIEW
We review de novo the district court's denial of DCH's summary judgment motion and grant of Moore's partial summary judgment motion, viewing the facts and drawing all reasonable inferences in favor of the nonmoving party. Rosario v. Am. Corrective Counseling Servs., Inc., 506 F.3d 1039, 1043 (11th Cir.2007). Summary judgment is appropriate when "there is no genuine dispute as to any material *1232 fact" and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
IV. DISCUSSION
As necessary background, we first review the Medicaid Act, the 1989 Amendment, and relevant regulations and manuals.
A. Medicaid Act and Regulations
In 1965, Congress enacted the Medicaid Act, 42 U.S.C. § 1396 et seq., as Title XIX of the Social Security Act. Medicaid is a jointly financed federal-state cooperative program, designed to help states furnish medical treatment to their needy citizens. States devise and fund their own medical assistance programs, subject to the requirements of the Medicaid Act, and the federal government provides partial reimbursement.[21]See 42 U.S.C. §§ 1396b(a), 1396d(b). A state's participation in the Medicaid program is voluntary, but once a state opts to participate it must comply with federal statutory and regulatory requirements. See Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 714 n. 1, 83 L.Ed.2d 661 (1985). All states, including Georgia, have chosen to participate in Medicaid.
The Medicaid Act, as supplemented by regulations promulgated by the Department of Health and Human Services ("HHS"), "prescribes substantive requirements governing the scope of each state's program." Curtis v. Taylor, 625 F.2d 645, 649 (5th Cir.1980).[22] Section 1396a provides that a "State plan for medical assistance" must meet various guidelines, including the provision of certain categories of care and services. See 42 U.S.C. § 1396a. Some of these categories are discretionary, while others are mandatory for participating states. Id. § 1396a(a)(10) (listing mandatory categories).
Section 1396a(a)(17) provides that "[a] State plan for medical assistance must ... include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which... are consistent with the objectives of this [Title]." Id. § 1396a(a)(17). The Medicaid Act also requires that state plans "provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of administration and the best interests of the recipients." Id. § 1396a(a)(19).
Although the standard of "medical necessity" is not explicitly denoted in the Medicaid Act, it has become a judicially accepted component of the federal legislative scheme. See, e.g., Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977) (indicating that "serious *1233 statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage"); Murray v. Auslander, 244 F.3d 807, 809 n. 2 (11th Cir.2001) ("Federal law allows Medicaid plans to apply a `medical necessity' test to all applicants."); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1268 (11th Cir. 2000) (indicating that the Medicaid Act allows states "to apply a `medical necessity' test to all applicants to ensure that applicants receive medical services in order of need"); Curtis, 625 F.2d at 652 (concluding that participating states may limit required Medicaid services "in a manner based upon a judgment of degree of medical necessity so long as it does not discriminate on the basis of the kind of medical condition that occasions the need"); Pinneke v. Preisser, 623 F.2d 546, 548 n. 2 (8th Cir.1980) (observing that the "standard of medical necessity is not explicit in the [Medicaid] statute, but has become judicially accepted as implicit to the legislative scheme and is apparently endorsed by the Supreme Court" (citing Beal, 432 U.S. at 444-45 & n. 9, 97 S.Ct. at 2370-71 & n. 9)); see also 42 C.F.R. § 440.230(d) (providing that state Medicaid agencies "may place appropriate limits on a service based on such criteria as medical necessity"). Accordingly, even if a category of medical services or treatments is mandatory under the Medicaid Act, participating states must provide those medical services or treatments for Medicaid recipients only if they are "medically necessary."
B. 1989 Amendment and EPSDT Program
In 1989, Congress amended the Medicaid Act to broaden the categories of services that participating states must provide to Medicaid-eligible children. The 1989 Amendment mandates that participating states provide EPSDT services to all Medicaid-eligible persons under the age of 21.[23] Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 6403, 103 Stat. 2106, 2262-64; 42 U.S.C. § 1396d(a)(4)(B), (r). The goal of the EPSDT program is to provide low-income children with comprehensive health care. The EPSDT program, codified at 42 U.S.C. § 1396d(r), mandates four specific categories of services: screening, vision, dental, and hearing services. 42 U.S.C. § 1396d(r)(1)-(4).
Additionally, the catch-all EPSDT provision in § 1396d(r)(5), which is the focus of this appeal, mandates that participating states provide to Medicaid-eligible children "[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." Id. § 1396d(r)(5) (emphasis added).
In other words, in addition to the four categories of services listed above, a state's mandatory EPSDT obligations to Medicaid-eligible children under § 1396d(r)(5) include "health care, diagnostic services, treatment, and other measures" that are (1) outlined in § 1396d(a) and (2) "necessary ... to correct or ameliorate... conditions discovered by the screening services," (3) regardless of whether a state plan provides such services to adults. Id. As to Medicaid-eligible children, § 1396d(r)(5) requires that participating states must "cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes *1234 that is allowable under § 1396d(a)." S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 590 (5th Cir.2004); see also Katie A. ex rel. Ludin v. Los Angeles Cnty., 481 F.3d 1150, 1154 (9th Cir.2007) (quoting same); Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003); Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472 (8th Cir.2002); Pereira ex rel. Pereira v. Kozlowski, 996 F.2d 723 (4th Cir.1993).
In turn, § 1396d(a)(1)-(29) enumerates 29 categories of care and services defined as "medical assistance," including "private duty nursing services" in § 1396d(a)(8). 42 U.S.C. § 1396d(a)(8). Section 1396a(a)(10) lists only eight of the categories listed in § 1396d(a) as mandatory for participating states to provide Medicaid-eligible adults. See 42 U.S.C. § 1396a(a)(10)(A) (providing that states must supply "at least the care and services listed in paragraphs (1) through (5), (17), (21), and (28) of section 1396d(a)"). The 1989 Amendment, however, made it incumbent upon states to provide all 29 categories of care, including "private duty nursing services," to Medicaid-eligible children who qualify under the EPSDT provision. Although eliminating a state's discretion over the categories of medical services and treatment that must be provided to children, the 1989 Amendment did not change the "medical necessity" limitation on such Medicaid-required services and treatment.
To clarify the contours of the "private duty nursing services" mentioned in § 1396d(a)(8), a federal regulation provides that "[p]rivate duty nursing services means nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility." 42 C.F.R. § 440.80. That federal regulation specifies that the state has the option to provide the required private duty nursing services in a home, hospital, or skilled nursing facility:
These services are provided
(a) By a registered nurse or a licensed practical nurse;
(b) Under the direction of the recipient's physician; and
(c) To a recipient in one or more of the following locations at the option of the State
(1) His or her own home;
(2) A hospital; or
(3) A skilled nursing facility.
Id. In addition, another federal regulation provides that each service in the state plan "must be sufficient in amount, duration, and scope to reasonably achieve its purpose" and that the state Medicaid agency "may place appropriate limits on a service based on ... medical necessity":
(a) The plan must specify the amount, duration, and scope of each service that it provides for
(1) The categorically needy; and
(2) Each covered group of medically needy.
(b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.
(c) The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.
(d) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.[24]
*1235 Id. § 440.230 (emphasis added).[25]
Given the above statutes, regulations, and precedents, read in conjunction with the record, we readily conclude that (1) under § 1396d(r)(5), DCH is required to provide all medical services and treatment "necessary ... to correct or ameliorate" Moore's conditions; (2) Moore meets the criteria for "private duty nursing services" under § 440.80, and such services are medically necessary for Moore; and (3) under § 440.230(b) and (d), DCH must provide private duty nursing care to Moore that is "sufficient in amount, duration, and scope to reasonably achieve its purpose," but "may place appropriate limits on a service based on such criteria as medical necessity." In addition, Moore I tells us that the treating physician and the state both have roles to play in determining medical necessity, and the treating physician's opinion is not dispositive. Moore I, 324 Fed.Appx. at 774. The parties largely do not dispute these starting points.
Rather, the hotly disputed issues here concern what amount of private duty nursing hours the state must provide to Moore under the Medicaid Act, the parameters of the roles played by the treating physician and the state Medicaid agency in making that determination, and what happens when Moore's treating physician and the state's medical expert disagree about what amount of nursing hours are medically necessary. Although mandating several categories of medical services for children, the Medicaid Act, and specifically the 1989 Amendment, do not address what happens when the medical experts agree that a type or category of medical service is medically necessary for an individual child but disagree as to the amount or duration of the service, such as the private duty nursing hours here. To resolve these issues, the parties primarily cite and discuss a federal Medicaid manual and a state health services manual, along with some of our court precedents. We review them below.
C. CMS Manual
The Centers for Medicare and Medicaid Services ("CMS"), a federal agency within HHS, is charged with administering the Medicaid Act. Among other things, CMS sets forth guidelines for participating states to follow in their Medicaid programs and monitors state agency compliance with Medicaid requirements. See Emerald Shores Health Care Assocs. v. U.S. Dep't Health & Human Servs., 545 F.3d 1292, 1293 (11th Cir.2008). CMS is required to determine that each state plan is in conformity with the specific requirements of the EPSDT mandate in the Medicaid Act. See Hood, 391 F.3d at 596 (citing 42 U.S.C. § 1396a(b) and 42 C.F.R. §§ 430.10, 430.15).
To facilitate this objective, the federal CMS publishes the State Medicaid Manual to direct participating states in their implementation of Medicaid requirements, including the EPSDT mandate in the Medicaid Act. See CMS, U.S. DEP'T OF HEALTH & HUMAN SERVS., PUB. NO. 45, STATE MEDICAID MANUAL ("CMS Manual").[26] In *1236 the chapter devoted to EPSDT services, the CMS Manual describes the EPSDT mandate of the Medicaid Act as "a comprehensive child health program of prevention and treatment" designed to "[a]ssure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly." Id. § 5110(B).
In the subsection entitled "Limitation of Services," the CMS Manual advises participating states, in language tracking § 1396d(r)(5),[27] that they make the determination as to whether a Medicaid-required service is medically necessary:
[EPSDT] services must be "necessary... to correct or ameliorate defects and physical or mental illnesses or conditions..." and the defects, illnesses and conditions must have been discovered or shown to have increased in severity by the screening services. You make the determination as to whether the service is necessary. You are not required to provide any items or services which you determine are not safe and effective or which are considered experimental.
Id. § 5122(F) (emphasis added).
The CMS Manual also instructs the states that 42 C.F.R. § 440.230 allows the state Medicaid agency "to establish the amount, duration and scope of services provided under the EPSDT benefit" so long as (1) any limitations imposed are reasonable; (2) the EPSDT service is sufficient to achieve its purpose; and (3) the state's definition of the service comports with the statutory requirement that the state provide all services "that are medically necessary to ameliorate or correct... conditions discovered by the screening services":
42 CFR 440.230 allows you to establish the amount, duration and scope of services provided under the EPSDT benefit. Any limitations imposed must be reasonable and services must be sufficient to achieve their purpose (within the context of serving the needs of individuals under age 21). You may define the service as long as the definition comports with the requirements of the statute in that all services included in § 1905(a) of the Act [42 U.S.C. § 1396d(a)] that are medically necessary to ameliorate or correct defects and physical or mental illnesses and conditions discovered by the screening services are provided.
Id. (emphasis and brackets added); see also Hood, 391 F.3d at 591 (indicating that "under the CMS interpretation, a state Medicaid agency may regulate the amount, *1237 duration and scope of medical assistance provided, but its regulation must comply with the statutory requirement that all health care and services described in § 1396d(a) that are necessary to the corrective and ameliorative purposes of the EPSDT program must be provided").
While emphasizing the need for state Medicaid agencies to fulfill their EPSDT obligations, the CMS Manual underscores the need for the state agency to avoid "unnecessary services":
Although "case management" does not appear in the statutory provisions pertaining to the EPSDT benefit, the concept has been recognized as a means of increasing program efficiency and effectiveness by assuring that needed services are provided timely and efficiently, and that duplicated and unnecessary services are avoided.
CMS Manual § 5010(B); see also 42 U.S.C. § 1396a(a)(30)(A) (requiring State Medicaid plans to "provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care").
In addition to the CMS Manual, the federal HHS or its sub-agencies periodically advise participating states of their EPSDT obligations. In this regard, a 1993 letter from the Acting Director of the federal Medicaid Bureau to State Medicaid Directors apprised states of their EPSDT obligations in the wake of the 1989 Amendment. See Letter from Rozann Abato, Acting Director, Medicaid Bureau, Health Care Financing Administration,[28] to State Medicaid Directors (May 26, 1993) (Exhibit A to Amicus Curiae Brief for Atlanta Legal Aid Society, Inc.).
In this 1993 letter, the Medicaid Bureau's Acting Director expressed concern that "some States may not be fully aware of the flexibility which States may exercise in administering the [EPSDT] benefit under Medicaid." Id. The letter reiterated that the 1989 Amendment "did not take away a State's authority to use medical necessity or utilization controls to manage the State's Medicaid program." Id. The letter clarified that "States may place tentative limits on EPSDT services," noting by way of illustration that "a State may limit physical therapy services to 10 sessions for each Medicaid recipient" so long as "additional sessions are available to EPSDT recipients, if they are determined by the State to be medically necessary." Id. (second emphasis added). The letter explained that "a State may exclude any item or service that it determines is not medically necessary, is unsafe or experimental, or is not generally recognized as an accepted method of medical practice or treatment." Id.
The 1993 Medicaid Bureau letter also stated that "[a] State may choose to provide medically necessary services in the most economic mode, as long as the treatment made available is similarly efficacious, the determination process does not delay the delivery of the needed service and the determination does not, in essence, limit the recipient's right to a free choice of providers." Id. (citing 42 U.S.C. § 1396a(a)(30)(A)) (emphasis omitted). The letter listed "a system of prior approval of selected types of costly health care" as one method by which a state could "assure that services are furnished in a cost-effective manner." Id. The letter identified the objective of this prior authorization system:
*1238 The goal of prior authorization is to assure that the care and services proposed to be provided are actually needed, that all equally effective, less expensive alternatives have been given consideration and that the proposed service and materials conform to commonly accepted standards. For example, a State would not be required to provide an air-fluidized bed if it determines that a less costly egg-crate mattress will serve the same medical needs.
Id. Lastly, the state Medicaid agency "is not required to furnish the service through every setting or provider type," so long as it can "demonstrate sufficient access" to an EPSDT-required service. Id.
Having reviewed CMS's interpretation of a state's EPSDT obligations, we next examine Georgia's efforts to satisfy the EPSDT mandate.
D. Georgia's EPSDT Mandate and Its GAPP Manual
In Georgia, Defendant DCH is the single state agency tasked with administering the Medicaid program. See 42 U.S.C. § 1396a(a)(5); O.C.G.A. § 49-4-142. Each participating state must create its own administrative rules and regulations for operating the Medicaid program in that state. Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 964 (11th Cir.1986). While states must meet the substantive requirements of the federal Medicaid Act, they nonetheless retain discretion to design and administer their Medicaid programs. See Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehabilitative Servs., 225 F.3d 1208, 1211 (11th Cir.2000) (commenting that participating states are "granted broad latitude in defining the scope of covered services as well as many other key characteristics of their [Medicaid] programs"). That same flexibility extends to the EPSDT mandate. See Katie A., 481 F.3d at 1159 ("While the states must live up to their obligations to provide all EPSDT services, the statute and regulations afford them discretion as to how to do so."); see also Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 439, 124 S.Ct. 899, 904-05, 157 L.Ed.2d 855 (2004) (noting that consent decree at issue represented one choice among "various ways that a State could implement the Medicaid Act" to comply with the "general EPSDT statute"). While the EPSDT mandate requires Georgia's DCH to provide children, who meet the eligibility requirements, with medically necessary "private duty nursing services" to "correct or ameliorate" their conditions, 42 U.S.C. § 1396d(a)(4)(B), (a)(8) & (r)(5), 42 C.F.R. § 440.80, the Medicaid Act does not set forth a uniform manner in which states must implement that EPSDT mandate.
We thus examine the particular service-delivery model, and standards therein, that DCH has adopted and implemented to satisfy its EPSDT mandate. As an alternative to institutionalizing Moore and providing private duty nursing services in a hospital or skilled nursing facility, pursuant to 42 C.F.R. § 440.80(c), DCH employs the Georgia Pediatric Program[29] (referred *1239 to earlier as "GAPP") as a service-delivery model to provide private duty nursing care in a member's own home setting.[30] Specifically, the GAPP model provides private duty nursing services "to medically fragile children in their homes and communities and in a `medical' daycare setting as an alternative to placing children in a nursing care facility." GAPP Manual § 601. Many children who enroll in GAPP are directly discharged from a hospital setting to begin receiving private duty nursing care in the home. Miriam Henderson, a registered nurse and program specialist for GAPP, testified in a deposition that a majority of new GAPP members are direct admissions from hospitals.[31]
In addition, DCH, through its "Division of Medical Assistance," publishes a manual entitled "Part II Policies and Procedures for the Georgia Pediatric Program"[32] (referred to earlier as the "GAPP Manual").[33] The GAPP Manual lists the following five goals for its member services, including the private duty nursing program:
1. To provide continuous skilled nursing care to medically fragile children under the age of twenty years 11 months. The children's medical condition must require skilled nursing care equivalent to the care received in an institutional setting, i.e., hospital or skilled nursing facility. The caregivers must be knowledgeable *1240 and competent in the care of the child. When deemed appropriate by the GMCF Medical Review Team, skilled nursing hours may be reduced.
2. To provide quality services, consistent with the needs of the individual child. All services requested must be accompanied by a physician's order.
3. To provide cost effective services to eligible members in the home environment.
4. To involve the physician and child's caregiver(s) or representative(s) in the provision of the child's care.
5. To demonstrate compassion for the members by treating the children and caregivers with dignity and respect while providing quality services in the home or daycare setting.
Id. § 601.1(1)-(5) (emphasis added).
Consistent with these goals, the GAPP Manual sets forth certain requirements that a GAPP member must meet to qualify for private duty nursing services in a home setting, including: (1) "[m]embers must be medically fragile with multiple systems diagnoses and require continuous skilled nursing care," id. § 601; (2) members must "meet the same level of care for admission to a hospital or nursing facility and must be Medicaid eligible," id.; (3) there must be a primary and secondary caregiver available, id. §§ 702.2(C), 801.2; (4) "[t]he caregivers must be knowledgeable and competent in the care of the child," id. § 601.1(1), and "[t]he primary caregiver must assist with the member's care in the home and must frequently communicate with the staff in the medical day care facility," id. § 702.2(B) (emphasis omitted); (5) a "cost analysis should be made to determine that the cost of caring for the member in the home and community is below the cost of providing the same care in an institution," id. § 701; and (6) the GAPP member must not require 16 or more hours of daily nursing care for a period greater than one week, id. § 905(d).[34] Thus, DCH conditions a GAPP member's receipt of private duty nursing services in the home (as an alternative to an institutional setting) on the presence of a caregiver in the home and the expectation that the primary caregiver will assist with the member's care in the home. Id. § 702.2(E).
The GAPP Manual contemplates roles for both the treating physician and the state in making private duty nursing hours authorizations, stating: "The primary care physician develops the child's initial plan of care. The GHP (GMCF Medical Review Team) determines the level of care, reviews prior approvals, determines the appropriateness of services, and makes approval or denial determinations." Id. § 601.2(C). The GMCF Medical Review Team determines the number of nursing hours by assessing the medical needs of GAPP recipients, the training needs of their caregivers, and the treating physicians' orders. Id. § 702.2(D).[35] When *1241 GMCF authorizes private duty nursing hours, "[a]pprovals are granted on a time-limited period not to exceed three (3) months." Id. § 801.1. In other words, GAPP members must reapply at least every three months in order to retain nursing care. Meanwhile, "[r]eauthorization requests are due thirty (30) days prior to the expiration of the existing approval period to ensure that there will be no interruption in services." Id. § 801.3.
A prospective GAPP member must file various documents when applying for nursing hours, many of which are periodically updated and resubmitted so that the GMCF Medical Review Team can assess a GAPP member's changing medical needs. These documents include a "DMA-6 A" form (the "Physician's Recommendation for Pediatric Care") and a "DMA-80" form (the "Prior Authorization Request Form"), which are filed early in the process. Id. § 801.2; see also id. apps. E, F.
Meanwhile, the treating physician submits a "Letter of Medical Necessity" with each nursing hours reauthorization request and must include:
[A] detailed Medical historyincluding related medical conditions, hospitalizations and medical course, explanation of medical necessity for nursing, oxygen/ventilator settings and hours of use per day, recommended nursing hours and weaning schedule, estimated duration of services, present and/or future readiness for medically fragile daycare and medical plan of treatmentincluding all medications, therapies and treatments, etc.
Id. § 801.2; see also id. app. J.
A GAPP member or the member's representative must sign a "Freedom of Choice" form, which indicates their informed consent to enroll in GAPP and choose among various service options. Id. § 801.2; see also id. app. H. The Freedom of Choice form states that "[o]nce a member is determined to be likely to require the level of care provided in a nursing facility or hospital, the member and his/her authorized representative will be... given the choice of either ... institutional or home and community-based services." Id. app. H.
DCH also requires that members submit the "GAPP Assessment Form," signed by each planning team member (including the primary and secondary caregivers, treating physician and physician specialist, and nursing provider). Id. § 801.2; see also id. app. K. This document includes information on medical history, diagnosis, medication regimen, respiratory care information, caregiver competency and work schedules, school requirements, and nursing needs. Id. app. K.
Additionally, DCH requires a prospective GAPP member's primary caregiver to sign a "Letter of Understanding" indicating acknowledgment and acceptance of GAPP policies. Id. § 801.2; see also id. app. L. By signing this form, the primary caregiver warrants, among other attestations, that (1) "[t]his GAPP program is designed to teach me on the care of my child's medical condition. I also understand that services may be reduced over time based on the medical needs of my child the (member)" and (2) "[t]he primary caregiver must be available and able to learn to participate in my child's (the member's) care." Id. app. L.
With respect to both the treating physician's initial recommendation of nursing hours and the GMCF Medical Review Team's final authorization of nursing *1242 hours, the GAPP Manual mandates that the nursing hours be medically necessary, stating: "The need for services is based on medical necessity, taking into consideration the overall medical condition of the member, the equipment and the level and frequency of care required for the member." Id. § 702.2(A); see also id. § 801.2 ("Services will only be approved based on medical necessity and treatment needs of the member."); id. § 905(g) (excluding "[s]ervices for back up support or respite purposes for the primary or secondary caregiver").
The GAPP Manual describes GAPP as a "teaching program" in the home that is intended to shift some responsibility to the child's caregiver incrementally, as the caregiver acquires the necessary training and skills. Id. § 803(c). If the medical condition of a GAPP member stabilizes, the GAPP Manual states that skilled nursing hours in the home may be reduced over time:
Skilled nursing care services may be reduced when the medical condition of the member stabilizes to give more of the responsibility of the care of the member to the parent(s) and or caregiver(s). One of the goals of the Georgia Pediatric Program is to teach the parents and caregivers how to care for the member in the absence of a nurse. The Georgia Pediatric Program (GAPP) is not intended to be a permanent solution to skilled care. It is a teaching program.
Id. (emphasis added).
The GAPP Manual apprises members of their right to appeal a reduction in services and outlines the administrative review process. Id. §§ 805(b), 805.1. First, the GMCF Medical Review Team notifies the GAPP member of any reduction in nursing hours in its "Initial Letter of Notification." Id. § 805.1. Parents of GAPP members may request an administrative review of the hours reduction within ten days of this "Initial Letter of Notification." Id. If no such request is made, or if the parent fails to supply additional documentation to be used in reviewing the appropriateness of the hours reduction, the denial will become final ten days after the date of the "Initial Letter of Notification." Id. Within 30 days of the "Final Letter of Notification," parents may request a hearing before an administrative law judge. Id. Any party dissatisfied with the administrative law judge's decision retains appeal rights.[36]Id.
Having discussed Medicaid's EPSDT requirements and GAPP's private duty nursing program, we turn to the relevant court precedents.
E. Court Precedents
Several cases shed some light on the respective roles played by the treating physician and the state under the Medicaid Act and related regulations. While these cases do not answer the precise issue here, they, read together, provide guiding principles.
1. Beal v. Doe
In 1977, the Supreme Court in Beal v. Doe confronted whether the Medicaid Act required participating states to fund nontherapeutic abortions. 432 U.S. at 440, 97 S.Ct. at 2368. Pennsylvania's Medicaid plan provided state funding only for abortions certified as medically necessary by *1243 physicians.[37]Id. at 441, 97 S.Ct. at 2369. The plaintiffs did not provide physician certifications, and Pennsylvania denied them Medicaid funding. Id. at 441-42, 97 S.Ct. at 2369. Plaintiffs' lawsuit alleged that Pennsylvania's requirement of a medical necessity certificate violated the Medicaid Act and the Equal Protection Clause. Id. at 441-42, 97 S.Ct. at 2369-70.
In Beal, the Supreme Court rejected the plaintiffs' contention that "participating States are required to fund every medical procedure that falls within the [Medicaid Act's] delineated categories of medical care." Id. at 444, 97 S.Ct. at 2370. The Beal majority noted that § 1396a(a)(17) of the Medicaid Act provides that "[a] State plan for medical assistance must ... include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which... are consistent with the objectives of this [Title]." Id. at 444, 97 S.Ct. at 2370-71 (quoting 42 U.S.C. § 1396a(a)(17)) (alterations in original). The majority explained that "[t]his language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be `reasonable' and `consistent with the objectives' of the [Medicaid] Act." Id. at 444, 97 S.Ct. at 2371.
The Beal majority concluded that Pennsylvania's Medicaid program was consonant with the Medicaid Act's objective of providing medically necessary services to low-income individuals. The majority instructed, "Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary though perhaps desirablemedical services."[38]Id. at 444-45, 97 S.Ct. at 2371. Thus, state Medicaid funding of nontherapeutic abortions was permissible, but not mandatory. The Beal Court noted that HEWHHS's precursorsupported this position and stated, "[W]e must be mindful that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong." Id. at 447, 97 S.Ct. at 2372 (quoting N.Y. Dep't of Soc. Servs. v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516-17, 37 L.Ed.2d 688 (1973)) (internal quotation marks omitted).
*1244 The Beal majority rejected the plaintiffs' argument that Pennsylvania's Medicaid plan trenches on a physician's medical judgment because the plan paid for abortions only if the physician certified the abortion was medically necessary. Id. at 445 n. 9, 97 S.Ct. at 2371 n. 9. Thus, the Supreme Court upheld Pennsylvania's requirement of a medical necessity certification before covering an abortion. The Beal Court opted not to pass upon the portion of Pennsylvania's plan that posed a potential interference with the treating physician's medical judgment, however.[39]
From Beal, we learn that (1) a participating state is not required to fund desirable but medically unnecessary services requested by a Medicaid recipient's physician and (2) the Medicaid Act endows participating states with broad discretion to fashion standards for determining the extent of medical assistance, so long as such standards are reasonable and congruous with the purposes of the Act.
2. Curtis v. Taylor
In 1980, three years after Beal, our predecessor Court decided Curtis v. Taylor.[40] In Curtis, plaintiffs filed a class action on behalf of all Florida Medicaid recipients against the Secretary of the Florida Department of Health and Rehabilitative Services for alleged constitutional and statutory violations arising from Florida's Medicaid plan. 625 F.2d at 647, 649. The Curtis plaintiffs challenged a modification of Florida's Medicaid program that limited Medicaid recipients to three doctor visits per month, excluding emergenciesa change precipitated by Florida's projected Medicaid deficit. Id. at 647. Like EPSDT services, physicians' services are a mandatory category of medical assistance that the Medicaid Act requires all state plans to fund. 42 U.S.C. §§ 1396a(a)(10)(A),[41] 1396d(a)(5). The district court enjoined Florida from implementing this Medicaid limitation. Curtis, 625 F.2d at 647.
On appeal, our predecessor Court in Curtis construed and applied 42 C.F.R. § 440.230(b), the federal Medicaid regulation requiring that "[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve its purpose." 42 C.F.R. § 440.230(b). In analyzing whether Florida had discharged its Medicaid Act duties under § 440.230(b), the Curtis Court explained that the question hinged "on whether the state may place limits on the amount of physicians' services available to a recipient, even though those limits may result in a denial of some medically necessary treatment, if most recipients do not need treatment beyond that provided." 625 F.2d at 651. The Curtis Court answered this question in the affirmative and reversed the district court, stating, "[w]e hold that the state's payment for physicians' services was sufficient to `reasonably *1245 achieve' the purpose of such care even though limited to three visits per month."[42]Id. at 647.
In reaching this conclusion, the Curtis Court pointed to factors buttressing Florida's argument. First, the trial court record reflected that the vast majority of Medicaid recipients did not require more than three physician visits in any month.[43]Id. at 651. In a footnote, the Curtis Court noted that "[t]he state may place appropriate limits on a service based on medical necessity. The state does not, however, contend that the three-visit limit is based on the lack of medical necessity of treatment for any individual. Indeed it could not. The plaintiffs include several persons with a documented need for more than three visits per month." Id. at 651 n. 11. In other words, the Curtis Court rejected the plaintiffs' contention that Florida's plan violated the Medicaid Act, despite acknowledging that it was medically necessary for the plaintiffs as individuals to receive more than three doctor visits per month.
The Curtis Court thus dismissed the plaintiffs' arguments that (1) "the sufficiency of the service provided must be determined with regard to each individual who receives medical services" and (2) "if only a handful out of thousands needs to see a doctor more than three times a month, the limitation defeats the regulatory requirement." Id. at 651. The Curtis Court explained that if the plaintiffs' contention were accepted, it "would preclude any limitation on any medically necessary service," and Florida's Medicaid agency would be obligated to pay for "thirty visits per month if any Medicaid recipient needed such services or hospital stays of indefinite duration." Id.
Second, the Curtis Court noted that at least 17 states presently limited the frequency of physician visits, with the apparent approval of the federal HEW. Id. The Curtis Court further relied upon HEW publications[44] suggesting that HEW interpreted § 440.230(b) as authorizing such Medicaid limitations and declared that "[w]hen the meaning of an agency's regulation is not clear, deference should be given to the interpretation adopted by the agency that promulgated the regulation and administers the statute." Id. at 652-53 (citing Dublino, 413 U.S. at 421, 93 S.Ct. at 2516).
Third, the Curtis Court distinguished its doctor visitation case from other cases in which state Medicaid plans had limited payments for certain types of diagnoses and medical conditions. Id. at 651-52 (citing White v. Beal, 555 F.2d 1146 (3d Cir. 1977) (invalidating Pennsylvania plan providing eyeglasses to Medicaid recipients suffering eye disease but not those suffering non-pathological eye conditions); Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir.1979) (ruling Massachusetts plan violated the purposes of the Medicaid Act when it limited state-funded abortions to those necessary to save mother's life or where mother was victim of rape or incest)). *1246 The Curtis Court concluded that the state Medicaid plans in those cases did not draw distinctions based upon medical necessity, but discriminated against Medicaid recipients "solely on the basis of the `diagnosis, type of illness, or condition,'" in contravention of § 440.230(c)(1).[45]Id. at 652 (quoting 42 C.F.R. § 440.230(c)(1)).
By contrast, Florida's Medicaid plan did not discriminate on the basis of "diagnosis, type of illness, or condition" between Medicaid recipients who needed more than three doctor visits a month and those requiring fewer, since the limitation applied to all Medicaid recipients regardless of medical infirmity suffered. Id. In this regard, the Curtis Court emphasized: "Here, no particular medical condition is singled out for unique treatment or given care only in restricted situations. All medical conditions are treated equally." Id. Additionally, Florida's exception for emergency visits did not discriminate against Medicaid recipients whose conditions were less severe. Id. Rather, Florida's emergency exception "simply reflects a judgment by the state that those persons who need emergency care have a higher degree of medical necessity than those who do not. That conclusion is compassionate as well as rational. The provision of emergency services beyond the three-visit-per-month limit is patently based on a medical necessity standard, the existence of an exigent need." Id.
In the Curtis Court's judgment, § 440.230 permits a state to place certain limitations on required Medicaid services based upon an assessment of medical necessity, so long as the services meet a standard of "reasonable adequacy" and the limitation does not discriminate on the basis of diagnosis or type of condition:
The rationale adopted by the courts that have considered the meaning of the applicable regulations [42 C.F.R. § 440.230] permits the state to place at least one type of limitation on its provision of required services: it may limit those services in a manner based upon a judgment of degree of medical necessity so long as it does not discriminate on the basis of the kind of medical condition that occasions the need. The proposed limitation in this case is not the type that courts of appeals have rejected in the past. It is based on a generally applicable standard of what is deemed reasonable adequacy.
Id. The Curtis Court concluded that "[t]he regulatory criterion is not whether the treatment suffices for a cure in all cases, but whether the plan is sufficient for reasonable accomplishment of its purpose. Florida's regulation is not inconsistent with [the Medicaid Act's] broad purpose of servicing the indigent. Nor is it inconsistent with the purpose of the provision of physicians' services to the Medicaid population as a whole." Id. at 653. Having dismissed the plaintiffs' contention that Florida's program violated the Medicaid Act, the Curtis Court remanded the case for consideration of the plaintiffs' equal protection claim. Id.
From Curtis, we learn that although a participating state may not refuse to fund a Medicaid-required type of medical service in toto, the state Medicaid agency has the ability to place quantity and durational limits on required services so long as the services meet a standard of "reasonable adequacy" that does not run afoul of § 440.230(b). Id. at 652-53. The Curtis Court stressed, however, that any imposed limitations could not discriminate on the type of medical condition suffered *1247 by the Medicaid recipient. Lastly, the Curtis Court appeared to take a particularly solicitous stance towards Florida's limitation in light of its exception for emergency situations. Id. at 652. It reasoned that such exceptions demonstrated an appropriate exercise of Florida's authority to make judgments of degrees of medical necessity. Id.
3. Rush v. Parham
Four days after Curtis was filed, our predecessor Court decided Rush v. Parham, which involved an anatomical male who was diagnosed as a transsexual and sought Medicaid funding for a sexual reassignment surgery. Rush, 625 F.2d at 1152-53. Because both parties here claim Rush militates in their favor, we analyze Rush in depth.
The Rush plaintiff claimed that the Medicaid Act required Georgia to pay for the proposed surgery. Id. at 1152. The plaintiff's two medical specialists certified that Rush "was a `true transsexual,' i.e., an anatomical male with a female gender identity, and that the only effective means of treatment was surgical change of Rush's anatomical sex." Id. at 1153. The state responded that the surgery was "experimental" and also "inappropriate treatment for Rush" individually. Id.
The district court ruled that Georgia must pay for the surgery, concluding: (1) "Medicaid coverage is not optional or discretionary for necessary medical treatment of eligible recipients" and (2) "the state, and, for that matter, the courts, must not interfere with the physician's course of treatment deemed medically necessary." Rush v. Parham, 440 F.Supp. 383, 389-90 (N.D.Ga.1977). The district court relied upon (1) the "preeminence of the attending physician" as revealed by the joint legislative history of the Medicaid Act and (2) the fact that a treating physician's decision was still "governed by the standards and ethics of his profession and by the dictates of federal and state law." Id.; see also id. at 390 n. 12 (citing statutory criminal penalties for knowing or wilful misrepresentations in a Medicaid benefits application).[46]
On appeal, our predecessor Court reversed and expressly rejected the district court's rulings. As to medical necessity, the Rush Court declared, "We ... hold that state defendants should have been permitted to show at trial":
(1) "the Georgia Department of Medical Assistance[47] has a ban against making payment for experimental treatment because such treatment is not medically necessary, and that transsexual surgery is experimental"; or
(2) "the Department of Medical Assistance provides for transsexual surgery in an appropriate case, but properly determined that it was medically inappropriate in plaintiff's case." 625 F.2d at 1152 (footnote omitted and emphases added).
The Rush Court expressly pointed out that the district court had held that Georgia "is required to pay for any services a *1248 physician determines to be medically necessary for the patient." Id. at 1154. The Rush Court stated, "We disagree with the district court, and hold instead that a state may adopt a definition of medical necessity that places reasonable limits on a physician's discretion."[48]Id. (emphasis added). The Rush Court further declared, "We also hold that a state Medicaid agency can review the medical necessity of treatment prescribed by a doctor on a case-by-case basis." Id. at 1155 (emphasis added).
In sum, Rush teaches that (1) a treating physician is not the sole arbiter of medical necessity; (2) the state may review the medical necessity of a treating physician's prescribed treatment; (3) the state may adopt a reasonable definition of medical necessity, even if it places some limits on a treating physician's discretion; and (4) the state at trial can present its own evidence of medical necessity in a dispute between the state and an individual Medicaid patient.
After announcing its holdings, the Rush Court proceeded to divide its analysis into three subparts, which we discuss sequentially.
a. Rush's Part A
In Part A, the Rush Court characterized the district court's decisionthat "a state must pay for all treatment found by a doctor to be medically necessary"as making the private physician "the sole arbiter of medical necessity" and as effectively holding that "a state has no role in determining whether a particular service is medically necessary." Id.
Contrary to the district court's view, the Rush Court instructed that "the Medicaid statutes and regulations permit a state to define medical necessity in a way tailored to the requirements of its own Medicaid program." Id. The Rush Court found support for this statement in both statutory text and Supreme Court precedent. First, it noted that the Medicaid Act provides that "[a] State plan for medical assistance must ... include reasonable standards... for determining eligibility for and the extent of medical assistance under the plan which ... are consistent with the objectives of this [Title]." Id. (quoting 42 U.S.C. § 1396a(a)(17)) (emphasis added) (alterations in original). Second, the Rush Court commented that "[t]he Supreme Court has interpreted this language as conferring broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be reasonable and consistent with the objectives of the Act." Id. (quoting Beal, 432 U.S. at 444, 97 S.Ct. at 2371) (internal quotation marks omitted).
The Rush Court explained the meaning of this languagethat states have "broad discretion" to adopt reasonable standardsfrom Beal:
The key to defining the states' role in determining the extent of coverage can be found in the Supreme Court's use of the word "standard" in the passage we quoted from Beal v. Doe. We think the Court was saying that a state may establish standards for individual physicians to use in determining what services are appropriate in a particular case. This state responsibility to establish standards extends at least to the *1249 shaping of a reasonable definition of medical necessity.
Id. at 1155-56. The Rush Court found further warrant for its conclusion that the state may shape a reasonable definition of medical necessity in the federal regulation providing that "[t]he [state] agency may place appropriate limits on services based on such criteria as medical necessity." Id. at 1156 (quoting 42 C.F.R. § 440.230(c)(2)) (second alteration in original).[49] The Rush Court clarified that its decision "does not remove from the private physician the primary responsibility of determining what treatment should be made available to his patients. We hold only that the physician is required to operate within such reasonable limitations as the state may impose." Id.
Given its conclusion that the state agency can "establish standards" and "shape[]... a reasonable definition of medical necessity," the Rush Court then determined that "Georgia's definition of medically necessary services can reasonably exclude experimental treatment."[50]Id. The Rush Court found "little merit to the contention that medically necessary services must be defined to include experimental treatment, with all its attendant risks to the recipient population," and concluded that an interpretation of "medical necessity" that excludes experimental treatment "would be a valid exercise of Georgia's discretion to set standards under the Medicaid statute." Id.
The Rush Court remanded the case to the district court "to determine (1) whether Georgia, in fact, had a policy prohibiting payment for experimental services when it first rejected plaintiff's application; and, if it did, (2) whether its determination that transsexual surgery is experimental is reasonable."[51]Id. at 1156-57 (footnote omitted).
b. Rush's Part B
In a separate Part B of the opinion, the Rush Court speculated about possible scenarios on remand. In Part B, the Rush Court stated: "If on remand, [1] the district court finds that the state defendants' decision to deny payment for Rush's surgery was not based on a prohibition against reimbursement for experimental treatment, or if [2] [the district court] finds that transsexual surgery was not experimental, it must consider defendants' second contention: that they reached a proper administrative determination that transsexual surgery was inappropriate treatment for Rush." Id. at 1157. Consequently, Rush's analysis in Part B applies *1250 only if the district court determines on remand that (1) Georgia's plan did not have a policy of excluding payment for all experimental services when it first rejected the plaintiff's request or (2) transsexual surgery is not experimental and thus may be medically necessary in some individual cases.
The Rush Court declared that, on review of the record before it, it was unclear whether Georgia's Medicaid agency made a determination that transsexual surgery was inappropriate treatment for Rush individually and, if so, what standard of review it employed in rejecting the opinion of the plaintiff's physician. Id. Importantly for this case, the Rush Court cautioned that these were "material questions of fact that should not have been resolved by the district court on a motion for summary judgment." Id. This part of the discussion in Part B is clear and consistent with the earlier holdings of Rush, which concluded that the state can review the treating physician's recommendation on a case-by-case basis and can present its own evidence of medical necessity at trial. This in turn creates issues of material fact for the factfinder to decide at trial.
After speculating about possible scenarios on remand, the Rush Court then volunteered what could happen upon certain other hypothetical findings by the district court. These last two paragraphs of Rush's Part B, however, are far from clear. While these last two paragraphs are now twice removed[52] from the earlier holdings in Rush, we examine them thoroughly because this is the only portion of Rush cited by the district court in Moore's case. See Moore II, 674 F.Supp.2d at 1369-70 (quoting Rush, 625 F.2d at 1157).
In the last two paragraphs of Rush's Part B, our predecessor Court introduced the different, and collateral, concept of Medicaid coverage for experimental surgery in exceptional cases. The Rush Court postulated what should happen if "Georgia had a policy of limiting payment for experimental surgery to exceptional cases (and if it did, [that] transsexual surgery was experimental)," and "defendants were simply deciding whether Rush's case presented exceptional circumstances." Rush, 625 F.2d at 1157. Under this new hypothetical scenario, the Rush Court stated that the district court should defer to the state unless the plaintiff was able to "show compelling reasons why an exception should be made for her."[53]Id.
Under yet another hypothetical scenario, the last paragraph in Part B, the Rush Court offered further remarks about experimental surgery. In the last paragraph, the Court suggested that if the district court finds that "Georgia did not have a policy limiting payment for experimental surgery to exceptional cases (or that transsexual surgery was not experimental)," then the Medicaid agency's review of the physician's opinion "would have been such `as may be necessary to safeguard against unnecessary utilization of... care and services.'" Id. (quoting 42 U.S.C. § 1396a(a)(30)) (emphasis added).[54]*1251 In this regard, the Rush Court cited legislative history from the 1965 Senate Finance Committee Report on the Medicaid Act, which stated that "[t]he physician is to be the key figure in determining utilization of health services." Id. (quoting S.REP. NO. 89-404, at 46 (1965)), as reprinted in 1965 U.S.C.C.A.N. 1943, 1986 ("Senate Report") (emphasis added).[55] The Rush Court then remarked, "Under these circumstances, we think defendants would have been limited to determining whether the physician's diagnosis, or his opinion that the prescribed treatment was appropriate to the diagnosis, was without any basis in fact." Id. (emphases added).[56]
This last paragraph seems inconsistent with Rush's earlier holdings that: (1) if the Georgia plan covers experimental surgery, the state is still entitled to present evidence at trial that it "properly determined that [transsexual surgery] was medically inappropriate in plaintiff's case," id. at 1152; (2) "a state may adopt a definition of medical necessity that places reasonable limits on a physician's discretion," id. at 1154; and (3) "a state Medicaid agency can review the medical necessity of treatment prescribed by a doctor on a case-by-case basis," id. at 1155. At a minimum, this complicated postulation of multiple levels of scenarios on remand is dicta and does not undermine Rush's earlier clear holdings. A decision can extend no further than the facts and circumstances of the case in which it arises. See, e.g., Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir.2003) ("Whatever their opinions say, judicial decisions cannot make law beyond the facts *1252 of the cases in which those decisions are announced."); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (per curiam); United States v. Eggersdorf, 126 F.3d 1318, 1322 n. 4 (11th Cir.1997).
Alternatively, however we classify this last paragraph, the Rush Court's suggestions about "utilization review" appear to apply only in limited circumstances. To fully understand and place in context this "utilization review" paragraph of Rush, it is helpful first to examine what the district court did in Rush by comparison. The district court in Rush had opined that the state must pay for any medical services prescribed by the treating physician and that the state's review of a treating physician's recommendation was, in all circumstances, limited to a utilization review, id. at 1154 n. 6a conclusion which, on appeal, the Rush Court explicitly rejected, id. at 1154-55. In the last paragraph of Part B, the Rush Court conjectured that the state is restricted to a utilization review only if (1) under Georgia's plan, experimental treatment was not limited to exceptional cases but provided more generally, or (2) if the district court made a threshold finding that Georgia was unreasonable in determining that sex reassignment surgery was experimental.
In other words, the district court in Rush erred in concluding that the state's reviewing authority is limited to a "utilization review" in all circumstances. Rather, the Rush Court's musings in the last paragraph of Part B suggest that the state is limited to a utilization review in circumstances where the state has placed no limitation at all on experimental treatment or where the state's attempt to place a medical necessity limitation on a service was deemed contrary to "current medical opinion," id. at 1157 n. 13, and thus unreasonable.
c. Rush's Part C
In Part C, the Rush Court squarely returned to the issue of medical necessity and again made clear that the state is not required to pay for any treatment the treating physician finds medically necessary. In Part C, the Rush Court noted that some other courts had ordered state Medicaid agencies to pay for sex reassignment surgery, but found that these cases did not conflict with its opinion. Id. at 1157-58. The Rush Court did not interpret those decisions as having (1) decided the question of whether a state may, in defining medical necessity, exclude experimental services or (2) prohibited a state Medicaid agency from reviewing "whether a doctor's diagnosis and recommendation of treatment for a particular patient are in error." Id. at 1158. Significantly, the Rush Court opined: "To the extent these cases do hold that a state must pay for any treatment a doctor finds to be medically necessary, thus eliminating the issues that we have found unripe for summary disposition, we disagree for the reasons given in the body of this opinion." Id. We read Parts A and C of Rush as consistently holding that a state is not required to pay automatically for any treatment a doctor finds medically necessary, and when the state's and a patient's experts disagree, material questions of fact arise as to whether a treatment is medically necessary.
Before leaving Rush, we note that our Moore I opinion cited Rush once, in support of the proposition that "both the state and Moore's physician have roles in determining what medical measures are necessary to `correct or ameliorate' Moore's medical conditions." Moore I, 324 Fed. Appx. at 774 (citing Rush, 625 F.2d at 1155). This citation does not reference Rush's Part B, much less the district *1253 court's citation to the last paragraph in Part B.
As in our Moore I opinion, we find Rush's holdings on pages 1152 to 1155 and Part A to be the most helpful in resolving issues pertinent to Moore's claim, especially the holdings that "a state may adopt a definition of medical necessity that places reasonable limits on a physician's discretion," 625 F.2d at 1154, and "a state Medicaid agency can review the medical necessity of treatment prescribed by a doctor on a case-by-case basis," id. at 1155. We also find instructive (1) Rush's express approval of a state Medicaid agency presenting its own evidence of medical necessity in Medicaid disputes with individual patients and (2) the notion that a treating physician maintains primary responsibility over a patient's treatment needs but must "operate within such reasonable limitations as the state may impose." Id. at 1156.
4. Pittman ex rel. Pope v. Secretary, Florida Department of Health & Rehabilitative Services
Next came Pittman ex rel. Pope v. Secretary, Florida Department of Health & Rehabilitative Services, which construed the 1989 Amendment and its effect on a state Medicaid agency's EPSDT obligations. The plaintiff in Pittman, a Medicaid-eligible child, sought a preliminary injunction requiring the state of Florida to pay for a liver-bowel transplant. 998 F.2d at 887. The plaintiff's doctors believed this transplant could save his life; otherwise, he was likely to die of liver failure within a year. Id. at 888.[57] The Florida Department of Health and Rehabilitative Services denied the plaintiff's request for a transplant at the administrative level, contending that the liver-bowel transplant was experimental and, accordingly, Florida was not obligated to provide Medicaid funding. Id.
Once in the district court, Florida did not defend its denial of Medicaid funding on the ground that the transplant was experimental. Id. Florida instead staked its position on a provision of the Medicaid Act, 42 U.S.C. § 1396b(i)(1),[58] which it claimed vested states with discretion to deny coverage for organ transplants in the state's Medicaid plan. Id. The plaintiff, meanwhile, argued that § 1396d(r)(5) of the Medicaid Act entitled him to coverage for all medically necessary care, regardless of whether a state plan allowed for it. Id. at 889.
This Court agreed with the plaintiff, concluding that Florida lacked discretion to withhold funding for medically necessary organ transplants with respect to *1254 Medicaid recipients under the age of 21. Id. at 891-92. In so doing, we acknowledged a circuit split regarding whether § 1396b(i)(1) provides an affirmative grant of discretion to states to deny coverage for organ transplants, or whether § 1396b(i)(1) merely delineates conditions for federal funding of organ transplants. Id. at 890-91.
The Pittman Court agreed with the reasoning of the Fourth Circuit, which previously addressed the issue in Pereira ex rel. Pereira v. Kozlowski, 996 F.2d 723 (4th Cir.1993). Pittman, 998 F.2d at 891. The Pittman Court found persuasive the Fourth Circuit's conclusions in Pereira that (1) § 1396b(i)(1) merely imposed conditions on federal funding of organ transplants, rather than endowing participating states with discretion to exclude organ transplants from their plans and (2) the legislative history did not suggest otherwise. Id.
The Pittman Court ultimately determined it was unnecessary to decide whether § 1396b(i)(1) grants any such discretion, given the clear language of § 1396d(r)(5). Id. The Pittman Court concluded that, even if § 1396b(i)(1) vested the states with authority to withhold organ transplant funding, § 1396d(r)(5) subsequently took this discretion away with respect to Medicaid-eligible individuals under the age of 21. Id. at 892. We therefore reversed the district court's denial of a preliminary injunction in plaintiff's favor against Florida. Id.
Ultimately, Pittman does not help answer the question presented here. DCH does not dispute that private duty nursing services are medically necessary for Moore and required under the Medicaid Act DCH only disputes the amount of services that are medically necessary. Unlike the hours of nursing care involved here, the organ transplant in Pittman was an all-or-nothing transaction. More importantly, Florida did not argue that the plaintiff's liver-bowel transplant was not medically necessary. Rather, Florida placed all its eggs in the § 1396b(i)(1) basket, arguing it had discretion to exclude transplants under its state plan. Once the Pittman Court rejected this argument, therefore, it did not need to address whether the liver-bowel transplant was medically necessarylet alone the respective roles of state Medicaid agencies and treating physicians in making such determinations thus demonstrating Pittman's limited applicability to this case. See id. at 888 n. 3.[59]
*1255 F. Summary of Guiding Principles
Our review of these Medicaid statutes, regulations, manuals, and precedents yields these guiding principles for Moore's appeal:
(1) Georgia is required to provide private duty nursing services to Moore, who meets the EPSDT eligibility requirements, when such services are medically necessary to correct or ameliorate her illness and condition. See 42 U.S.C. § 1396d(r)(5); Beal, 432 U.S. at 444, 97 S.Ct. at 2371; Murray, 244 F.3d at 809 n. 2; Pittman, 998 F.2d at 891-92; Curtis, 625 F.2d at 651 n. 11; 42 C.F.R. § 440.230(d).
(2) A state Medicaid plan must include "reasonable standards ... for determining eligibility for and the extent of medical assistance"here, the extent of private duty nursing services for Moore and such standards must be "consistent with the objectives of" the Medicaid Act, specifically its EPSDT program. See § 1396a(a)(17); see also Beal, 432 U.S. at 444, 97 S.Ct. at 2371; Rush, 625 F.2d at 1155.
(3) A state may adopt a definition of medical necessity that places limits on a physician's discretion. Rush, 625 F.2d at 1154. A state may also limit required Medicaid services based upon its judgment of degree of medical necessity so long as such limitations do not discriminate on the basis of the kind of medical condition. Curtis, 625 F.2d at 652; 42 C.F.R. § 440.230(c). Furthermore, "a state may establish standards for individual physicians to use in determining what services are appropriate in a particular case" and a treating physician is "required to operate within such reasonable limitations as the state may impose." Rush, 625 F.2d at 1156.
(4) The treating physician assumes "the primary responsibility of determining what treatment should be made available to his patients." Id. Both the treating physician and the state have roles to play, however, and "[a] private physician's word on medical necessity is not dispositive." Moore I, 324 Fed.Appx. at 774.
(5) A state may establish the amount, duration, and scope of private duty nursing services provided under the required EPSDT benefit. CMS Manual § 5122(F) (construing 42 C.F.R. § 440.230). The state is not required to provide medically unnecessary, albeit desirable, EPSDT services. See Beal, 432 U.S. at 444-45, 97 S.Ct. at 2371; CMS Manual § 5010(B). However, a state's provision of a required EPSDT benefit, such as private duty nursing services, "must be sufficient in amount, duration, and scope to reasonably achieve its purpose." 42 C.F.R. § 440.230(b); see also CMS Manual § 5122(F).
(6) A state "may place appropriate limits on a service based on such criteria as medical necessity." 42 C.F.R. § 440.230(d). In so doing, a state "can review the medical necessity of treatment prescribed by a doctor on a case-by-case basis," and may present its own evidence of medical necessity in disputes between the state and Medicaid patients. Rush, 625 F.2d at 1152, 1155.
We now apply these principles to Moore's case.
G. Analysis of Moore's Appeal
Initially, we do not read Moore's brief on appeal to challenge the GAPP plan as *1256 beyond a state's discretionary authority in administering and implementing its obligations under the Medicaid Act, or as an unreasonable policy per se or on its face.[60] For example, Moore does not argue that DCH's GAPP plan for in-home private duty nursing services discriminates on the basis of her type of medical diagnosis or condition in violation of 42 C.F.R. § 440.230(c).[61] Indeed, each GAPP policy applies to all GAPP members no matter their specific medical diagnosis or condition.
Moore also does not contend that GAPP's explicit durational limitationprecluding in-home private duty nursing services when a GAPP member requires more than 16 hours of daily nursing care for periods in excess of one week, GAPP Manual § 905(d)is unreasonable. Dr. Rosenfeld testified that this GAPP policy reflects a medical understanding that a medically fragile child requiring such levels of nursing care would be considered unstable and better suited in an institutional setting. Notably, the federal regulation defining the Medicaid Act's term "private duty nursing services" gives a participating state the option to provide nursing care in the recipient's home or in a "hospital" or "skilled nursing facility." 42 C.F.R. § 440.80(c). In fact, to be eligible for in-home nursing services through GAPP, a child must "meet the same level of care for admission to a hospital or nursing facility." GAPP Manual § 601. The GAPP policy that the "cost analysis should be made to determine that the cost of caring for the member in the home and community is below the cost of providing the same care in an institution," id. § 701, similarly reflects Georgia's discretionary authority to choose the setting in which the required nursing care will be provided.
Moore also does not contend that Georgia impermissibly requires the presence of caregivers to assist and be trained if a medically fragile child desires private duty nursing services in a home setting.
*1257 Rather, we read Moore's claim on appeal to be that DCH's application of the GAPP plan to her specific medical condition specifically, its reduction of her nursing hours from 94 to 84 hoursviolates the Medicaid Act because 94 nursing hours at home are in fact medically necessary, given Moore's condition and illnesses. The dispute is purely over what amount of private duty nursing hours are now medically necessary for Moore and who makes that determination.
As to the issue of 94 or 84 hours, we agree with DCH that the district court, as a matter of law, erred in restricting Georgia's role to reviewing Moore's treating physician's determination of nursing hours only for "fraud ... [or] abuse of the Medicaid system" and for "whether the service is within the reasonable standards of medical care."[62]Moore II, 674 F.Supp.2d at 1370-71 (internal quotation marks omitted). As illustrated above, both the treating physician and the state have roles to play in determining medical necessity. It is accurate that Moore's treating physician is a key figure and initially determines what amount of nursing services are medically necessary. Indeed, the GAPP plan pays heed to the salient principle that the treating physician should assume "the primary responsibility of determining what treatment should be made available to his patients." Rush, 625 F.2d at 1156. The GAPP Manual specifies that "[t]he primary care physician develops the child's initial plan of care." GAPP Manual § 601.2(C).
Nonetheless, a state may still review the medical necessity of the amount of nursing care prescribed by the treating physician and make its own determination of medical necessity. 42 C.F.R. § 440.230(d); CMS Manual § 5122(F); Rush, 625 F.2d at 1155. Georgia did precisely that here. The GMCF Medical Review Team (here, Dr. Rosenfeld and a team of nurses) evaluated Dr. Braucher's orders and the training needs of caregivers to arrive at its nursing hours decisions. GAPP Manual § 702.2(D). This is consistent with federal regulations, the federal CMS Manual, and our precedent. See 42 C.F.R. § 440.230(d) (providing that the state Medicaid agency "may place appropriate limits on a service based on such criteria as medical necessity"); CMS Manual § 5122(F) (instructing state Medicaid agencies that "[y]ou make the determination as to whether the service is necessary"); Rush, 625 F.2d at 1155 (holding that "a state Medicaid agency can review the medical necessity of treatment prescribed by a doctor on a case-by-case basis").
After that review, the state may limit required private duty nursing services based upon a medical expert's opinion of medical necessity so long as (1) the state's limitations do not discriminate on the basis of "diagnosis, type of illness, or condition" and (2) the services provided are sufficient in amount and duration to reasonably achieve the purpose of private duty nursing services. 42 C.F.R. § 440.230(b), (c). As noted earlier, there is no claim on appeal that Georgia is discriminating on the basis of "diagnosis, type of illness, or condition."
So, the pivotal issue is only whether 84 hours are sufficient in amount to reasonably *1258 achieve the purposes of private duty nursing services to correct or ameliorate Moore's condition. In this regard, the inquiry hinges on whether DCHin exercising its ability to "place appropriate limits on a service based on such criteria as medical necessity," id. § 440.230(d)fulfilled or breached its concomitant duty to ensure that Moore's private duty nursing care is "sufficient in amount, duration, and scope to reasonably achieve its purpose," id. § 440.230(b).
In such disputes between the state and Medicaid patients, our precedent teaches that the state may present its own evidence of medical necessity, which may create issues of material fact precluding summary judgment. That is also what happened here. Dr. Rosenfeld, DCH's medical expert, opined that, given the nature of Moore's current medical problems, her stable medical condition, and her lack of hospitalizations, only 84 hours of private duty nursing services at home are now medically necessary for Moore.[63] Consonant with Georgia's ability "to define medical necessity in a way tailored to the requirements of its own Medicaid program," Rush, 625 F.2d at 1155, DCH may permissibly conclude that persons whose conditions are worsening or who require frequent hospitalizations have a higher degree of medical necessity than those who are chronically stable. Cf. Curtis, 625 F.2d at 652 (concluding that Florida's "provision of emergency services beyond the three-visit-per-month limit is patently based on a medical necessity standard"). Dr. Rosenfeld also explained why his assessments of Moore's medical needs differed from those of Moore's treating physician, Dr. Braucher. See Section I.D, supra.
Accordingly, the district court erred in granting summary judgment for Moore and too narrowly limiting DCH's role. The record presents material issues of fact over what amount of private duty nursing hours are medically necessary for Moore, which must be resolved by a factfinder at trial. And at trial, as in civil cases generally, the plaintiff shall bear the burden of persuasion to establish by a preponderance of the evidence that 94 private duty nursing hours, not 84 hours, are medically necessary. In other words, the plaintiff will have to show that the limits the state imposed on her physician's discretion in reducing her nursing hours from 94 to 84 hours a week are not reasonable that these limits are not sufficient in amount, duration, and scope to reasonably achieve the treatment's purpose. Moore and the state may present their own experts, and the factfinder at trial will decide.
H. Final Observations
Lastly, we pause to address some overarching contentions raised by the parties, who argue for the primacy of their respective positions in adjudicating disputes over medical necessity.
During the course of these proceedings, DCH argued that the prior panel's statement in Moore I that "[a] private physician's word on medical necessity is not dispositive," 324 Fed.Appx. at 774, could be used to infer that the state is the final arbiter of medical necessity. In particular, DCH's amicus argues that this "final arbiter" *1259 role of the state is necessary, given escalating Medicaid costs and the need to prudently manage the public fisc. See Brief for WellCare of Georgia, Inc. as Amicus Curiae in Support of Appellant & Reversal of the District Court Order at 21-24, Moore v. Reese, No. 10-10148 (11th Cir. Apr.6, 2010).
While Congress could have conferred the "final arbiter" role to the state, it did not. However pressing budgetary burdens may be, we have previously commented that cost considerations alone do not grant participating states a license to shirk their statutory duties under the Medicaid Act. See Tallahassee Mem'l Reg'l Med. Ctr. v. Cook, 109 F.3d 693, 704 (11th Cir.1997) (per curiam). When a state Medicaid agency has exceeded the bounds of its authority by adopting an unreasonable definition of medical necessity or by failing to ensure that a required service is "sufficient in amount, duration, and scope to reasonably achieve its purpose," aggrieved Medicaid recipients have recourse in the courts. See 42 C.F.R. § 440.230(c), (d).
For her part, Moore contends that the state, and the courts as well, should defer to her treating physician's judgment of how many hours are medically necessary for Moore, so long as the treating physician's nursing hours recommendation is within the reasonable standards of medical care and is not tainted with fraud or abuse of the Medicaid system. Congress could have said that too, but it did not. Instead, the Supreme Court has instructed that the Medicaid Act "confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be `reasonable' and `consistent with the objectives' of the Act." Beal, 432 U.S. at 444, 97 S.Ct. at 2371 (construing 42 U.S.C. § 1396a(a)(17)). While the 1989 Amendment took away participating states' discretion to provide certain EPSDT services, it did not strip those states of their regulatory authority to "place appropriate limits" on such required services "based on such criteria as medical necessity." 42 C.F.R. § 440.230(d). A state is obligated to provide EPSDT-eligible children with private duty nursing services, but only to the extent that they are medically necessary. It is unclear how a state Medicaid agency could effectively discharge its § 440.230(d) authority if the treating physician were the only actor effectively placing a "medical necessity" limitation on a required service.
Although the Medicaid statutes do not address how to resolve conflicting opinions by the state's medical expert and the treating physician, the relevant regulations, manuals, and precedents provide that guidance, which we follow here. By limiting a state Medicaid agency's role to merely auditing the treating physician for fraud, abuse, or unreasonable medical care, the district court's standard of review negates a state's ability to adopt reasonable standards, impermissibly circumscribes the state's role in a manner not authorized by the Medicaid Act, and is inconsistent with the Curtis and Rush holdings and the federal regulations implementing the Act.[64]
In sum, the Medicaid Act does not give the treating physician unilateral discretion *1260 to define medical necessity so long as the physician does not violate the law or breach ethical duties any more than it gives such discretion to the state so long as the state does not refuse to provide a required service outright. It is a false dichotomy to say that one or the other, the state's medical expert or the treating physician, must have complete control, or must be deferred to, when assessing whether a service or treatment is medically necessary under the Medicaid Act.
Finally, both parties cite some cases from other circuits, but those decisions concerned all-or-nothing prohibitions of a type of Medicaid-required service, not a state agency placing a quantitative or durational limitation on a Medicaid-required service. See, e.g., Hood, 391 F.3d at 597 (Louisiana's denial of any funding for medically necessary incontinence supplies to EPSDT-eligible children violated Medicaid Act); Collins, 349 F.3d at 376 (Indiana's denial of any funding for placement in psychiatric residential treatment facilities to children when deemed medically necessary by EPSDT screening violated Medicaid Act); Pediatric Specialty Care, 293 F.3d at 480 (Arkansas's denial of any funding for early intervention day treatment to Medicaid-eligible individuals whose physician prescribes such services violated Medicaid Act); Pereira, 996 F.2d at 727 (Virginia's denial of any funding for medically necessary organ transplants to EPSDT-eligible children violated Medicaid Act); Weaver v. Reagen, 886 F.2d 194, 200 (8th Cir.1989) (Missouri's denial of any funding for off-label AZT treatment to Medicaid recipients infected with AIDS violated Medicaid Act); Pinneke, 623 F.2d at 549 (Iowa's denial of any funding for sex reassignment surgery deemed medically necessary by treating physician contravened Medicaid Act objectives and discriminated on the basis of "diagnosis, type of illness, or condition");[65]Preterm, 591 F.2d at 126 (Massachusetts's denial of any funding for abortions, unless necessary to save mother's life or where mother was victim of rape or incest, "crossed the line between permissible discrimination based on degree of need and entered into forbidden discrimination based on medical condition").
*1261 Here, by contrast, DCH has instituted no across-the-board prohibition on private duty nursing services, nor could it under the EPSDT requirement in § 1396d(r)(5). Rather, for years DCH has continuously provided private duty nursing services to Moore. Indeed, there is no dispute between Moore's treating physician and the state over whether private duty nursing services remain medically necessary for Moore; the only dispute is over what quantity of nursing hours is medically necessary. None of these cases addresses this type of question.[66]
Certainly, a participating state's refusal to provide any coverage for a Medicaid-required service is manifestly different from a state exercising its authority to "place appropriate limits on a service based on such criteria as medical necessity," 42 C.F.R. § 440.230(d), or to "include reasonable standards . . . for determining. . . the extent of medical assistance" so long as such standards are consistent with the objectives of the Medicaid Act, 42 U.S.C. § 1396a(a)(17). This does not mean that a state executes its Medicaid Act duties merely by providing a required service, of course. Among other obligations, a state still must ensure that each required service is "sufficient in amount, duration, and scope to reasonably achieve its purpose." 42 C.F.R. § 440.230(b).
In any event, we glean from our own precedents in Curtis and Rush, along with the federal regulations and federal CMS Manual, the answer here that we must adopt.
V. CONCLUSION
For the foregoing reasons, we reverse the district court's entry of summary judgment in favor of Moore and remand for further proceedings consistent with this opinion. Given our clarification of the dual roles of the state and treating physician, the passage of time with two appeals, and Moore's ongoing medical conditions, the district court should afford the parties a *1262 reasonable opportunity, if requested, to develop the record further and then present additional evidence at trial.
REVERSED AND REMANDED.
NOTES
[*] Honorable James D. Whittemore, United States District Judge for the Middle District of Florida, sitting by designation.
[1] Reese, sued in his official capacity, was substituted as the party Defendant-Appellant, succeeding former DCH Commissioner Rhonda Medows. For clarity, we refer to the Defendant throughout as "DCH."
[2] Moore's first amended complaint summarized her conditions:
Callie has severe physical disabilities including spinal deformities in two directions, she is blind and non-verbal, she has seizures that are difficult to control with multiple medications, she has difficulty swallowing even her own saliva, she has difficulties with breathing consistently, she is cognitively impaired, and she has a host of other physical manifestations and medical complications as a result of the damage in her brain.
Am. Compl. ¶ 8.
[3] This appeal involves only the nursing services at Moore's home and not any nursing services provided by the school.
[4] Initially, Moore received private duty nursing care through a state program called the Exceptional Children Service ("ECS"). In August 2002, Georgia implemented GAPP. In April 2003, ECS was merged into GAPP. Moore did not suffer any lapse of nursing services during this transition period and has been receiving private duty nursing care through GAPP ever since.
[5] Dr. Braucher is board-certified in pediatrics and in internal medicine.
[6] Dr. Braucher described Moore's medical need for trained caregivers:
Because of the multiple medicines she has to get and because of her seizures, which are unpredictable and frequent, often; and then all the other problems I've mentioned, you know, there's probably not four hours. There's not four hours where she goes where she doesn't need somebody who knows what they're doing; and that would be a licensed medical, you know; skilled nurse or a
Her mother does not have formal nursing training; but is going to be good at recognizing Callie, and so she's skilled as far as we call. You know, if it was just somebody off the street, they would not know how to do medicines or observe her, anything like that.
[7] Dr. Braucher described Moore's condition:
Well, her care needs are about the same as they've been, well, for the last eight years. She'll go through episodes, like when she was real sick with diarrhea and had to be intravenously fed. She'll go through episodes where she needs lots of needs a lot of care, and then it will back off a little bit.
But, you know, where she's been in the last six months has been how she's been probably 70 percent of the time over the last ten years; so I consider it stable; but she never gets below what she's getting now. There's always lots of medicine, respiratory stuff, feeds, positioning.
[8] GMCF is a subcontractor of Affiliated Computer Services, which serves as a fiscal intermediary.
[9] Dr. Braucher explained the reason behind his hours reduction in 2003:
Lawyer: Did [a DCH doctor] make a representation to you that if Callie required greater than 96 hours per week of skilled nursing, that she would no longer qualify for the program and would require institutionalization in order to stay in a state-funded program?
Braucher: Well, I remember the conversation fairly well, even though it was four and a half years ago; and what she related to me was that at some pointI don't remember the exact hours; in my letter I've written 96 hoursthe State would have the optionThe State was required to provide care for Callie; and at some point, if care in the home became more expensive than the same amount of care that could be provided in an institution, then the State could exercise an option to put her in an institution.
And I guess, but I don't remember this from my mind, but from what I've written, it may have been right around 96 hours. She didn't say they would, but she said they could put her into an institution.
[10] On occasion, Dr. Braucher requested an increase in nursing hours at the prompting of Moore's mother, following GMCF decisions to reduce Moore's authorized nursing hours.
[11] Dr. Braucher provided an example of how he calculates his recommended hours:
Lawyer: Now you recentlyYou said you've recently submitted the request for 104 hours. And can you tell me again the basis for the additional ten hours now?
Braucher: IWhat did I do with all that? Basically I just decided that she needed 16 hours on Monday through Friday
Lawyer: Yes.
Braucher:per day, and that's 16 times five is equal to 80, and that would allow the mother to work and to get seven hours of sleep and one hour to do shopping or something.
Lawyer: Okay.
Braucher: And then the mother would provide the other eight hours ofduring that time, and then I asked for 12 hours on Saturday and Sunday, and that would allow the mother time to sleep. And then she would have four hours to do whatever she needed to do to keep hertheir household going. So 12 times two days is 24, and 80 plus 24 is 104 hours a week, and that's how I determined that.
[12] Dr. Rosenfeld specializes in pediatrics, and, in addition to his work as GAPP Medical Director, he holds a clinical faculty appointment to the Emory School of Medicine's Department of Pediatrics.
[13] Dr. Rosenfeld discussed these relevant factors in determining the number of nursing hours a GAPP member requires:
Rosenfeld: It's based upon the child's diagnosis, what their needs are, and to determine the number ofwell, this is for a new patient. To determine the number of hours the child is going to start out with. So you're looking at medical condition, how unstable. Sometimes we look at the family situation a little bit, whether a child is in foster care versus in their own private family, and then, of course, the medical condition that's gotten the child into the program. So we look at all those things to try to make a formulation.
Attorney: Is there a formula?
Rosenfeld: There is no formula.
Attorney: Okay. So there's no one factor that's weighed more or less?
Rosenfeld: Well, the severity of the diagnosis or the condition determines, helps determine the formula.
...
It's much easier on a child that's already in the program who's been in the program many years or many months versus a child coming into the program.
...
[T]hey've had a certain number of hours for many, many months or many years. And then there are other factors then you can look at, such as stability, not getting worse, hospitalizations, new additional medical programs that would either make you swinghow well the mother is learning to be taughthow well she has learned the care of the child in the home. They have that in the packet where they show what the mother needs more help with, with instruction, or if she's competent or she needs more help. So we look at those things in deciding the stability.
[14] Conversely, Dr. Rosenfeld explained that hours reductions are never authorized when a child experiences frequent hospitalizations:
We are aware that she is ... not being hospitalized but being cared for in the home [which] is a consideration in reducing the hours.
We never reduce hours in children who are chronically beingor frequently being rehospitalized for either new conditions or old conditions .... Because that would indicate the child's disease process is getting worse. There was nothing that we saw in her review that made us think she was getting worse.
[15] Dr. Rosenfeld's analysis of Dr. Braucher's letter is provided below:
It was based upon ... [Dr. Braucher's] letter, who [sic] I feel knows her better than any of the subspecialists, that problem by problem did not justify the 94 hours. Specifically, a problem that began in 2002, four years ago, with respect to her gastroenteritis issue; number five, acute urinary retention where she has to be cathed four times a day. We didn't think either one of those would be affected by a reduction in hours. The issues ofalso, the issue of not being able to move herself was not a skilled nursing issue. It was a home healthcare issue and not a skilled nursing issue.
So the first problem, in my mind, was the most serious, followed by the seizures, the urinary retention, the issue of potential problems with prolonged diarrhea. Malabsorption is a potential problem, [but] is not an actual problem. And then the issue of her inability to move herself doesn't require highly skilled nursing care.
So based upon those problems, that's why we came up with the conclusion of less hours.
[16] In February 2008, the district court granted Moore's motion to file an amended complaint raising additional due process claims. Because leave to amend was granted immediately prior to the due date for summary judgment motions, Moore's present motion is considered a partial summary judgment motion.
[17] While these motions were pending, Moore's mother underwent surgery and Dr. Braucher requested a temporary increase to 168 nursing hours per week during the expected four weeks of the mother's recovery. In response, GAPP Medical Director Gary Miller advised that Moore's 94-hours allotment would remain unchanged, observing that her condition "has remained stable with no exacerbations in disease process or hospitalizations since last pre-certification period." Moore's mother then filed an emergency motion for a temporary restraining order, which the district court granted. The district court entered a preliminary injunction, finding that the 168 hours of weekly nursing care was medically necessary during the four-week period of the mother's recovery.
DCH filed a motion for reconsideration and submitted the affidavit of GAPP specialist Miriam Henderson. Henderson averred that (1) Moore attended school three days a week for approximately four hours a day, during which time the school paid for Moore's nursing care and (2) Moore's request of 168 nursing hours did not take into account the time Moore attends school. The district court denied DCH's motion for reconsideration.
[18] Because the parties interpret Moore I differently, we quote the entire opinion:
The District Court held that "[t]he state must provide for the amount of skilled nursing care which the Plaintiff's treating physician deems necessary to correct or ameliorate her condition." Moore v. Medows, 563 F.Supp.2d 1354, 1357 (N.D.Ga.2008). While it is true that, after the 1989 amendments to the Medicaid Act, the state must fund any medically necessary treatment that Anna C. Moore requires, Pittman v. Department of Health and Rehabilitative Services, 998 F.2d 887, 891-92 (11th Cir. 1993), it does not follow that the state is wholly excluded from the process of determining what treatment is necessary. Instead, both the state and Moore's physician have roles in determining what medical measures are necessary to "correct or ameliorate" Moore's medical conditions. Rush v. Parham, 625 F.2d 1150, 1155 (5th Cir. 1980); 42 C.F.R. § 440.230 ("(d) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures."); see 42 U.S.C. § 1396d(r)(5). A private physician's word on medical necessity is not dispositive.
Therefore, after oral argument and careful consideration, we REVERSE the District Court's grant of partial summary judgment for Moore and REMAND for proceedings not inconsistent with this opinion.
Moore I, 324 Fed.Appx. at 774 (footnote omitted).
[19] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
[20] In June 2009, a status conference was held, and the parties agreed to supplemental briefing in light of this Court's Moore I decision.
[21] As amicus curiae Atlanta Legal Aid Society explains, the federal government reimburses states for a significant proportion of their Medicaid costs, based upon the state's per capita income. Section 1396d(b) provides that "the Federal medical assistance percentage shall in no case be less than 50 per centum or more than 83 per centum." 42 U.S.C. § 1396d(b). The federal matching rate for Georgia in fiscal year 2010 (October 1, 2010 through September 30, 2011) is 65.33%. 74 Fed.Reg. 62315 (Nov. 27, 2009).
[22] While Curtis referred to regulations issued by the Department of Health, Education, and Welfare ("HEW"), that entity was renamed the Department of Health and Human Services in 1979. Curtis is binding authority under Bonner v. City of Prichard. See supra p. 1231, n. 19.
[23] Section 1396d(a)(4)(B) provides that EPSDT services are available to "individuals who are eligible under the plan and are under the age of 21." 42 U.S.C. § 1396d(a)(4)(B).
[24] At oral argument, DCH's counsel stated that "utilization control procedures" refers to the auditing of medical services to prevent fraud and abuse by Medicaid providers, a function administered by DCH's Office of Inspector General Program Integrity Unit.
[25] Section 440.230 is contained in a Code section entitled "Requirements and Limits Applicable to All [Medicaid] Services." 42 C.F.R. § 440, Subpart B.
[26] Internal agency guidelines, while not "subject to the rigors of the Administrative Procedure Act, including public notice and comment," are nevertheless "entitled to some deference." Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 2027, 132 L.Ed.2d 46 (1995) (reviewing Bureau of Prisons Program Statement interpreting 18 U.S.C. § 3585(b)) (internal quotation marks and alteration omitted). Interpretations in agency manuals warrant Skidmore deference, meaning that they are "entitled to respect" but "only to the extent that those interpretations have the `power to persuade.'" Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 1663, 146 L.Ed.2d 621 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944)); see also Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981) (stating that "Congress conferred on the [HHS] Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Medicaid] Act"); Sai Kwan Wong v. Doar, 571 F.3d 247, 250 (2d Cir.2009) (according Skidmore deference to CMS Manual); United States ex rel. Walker v. R & F Props. of Lake Cnty., Inc., 433 F.3d 1349, 1357 (11th Cir.2005) (applying Skidmore deference to Medicare Carriers Manual); Hood, 391 F.3d at 590 n. 6 (concluding that CMS Manual was "entitled to respectful consideration" due to CMS's "significant expertise, the technical complexity of the Medicaid program, and the exceptionally broad authority conferred upon the Secretary under the Act"); Katie A., 481 F.3d at 1155 n. 11 (same).
[27] As noted above, § 1396d(r)(5) provides that EPSDT services include, in part, "other necessary health care ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services." 42 U.S.C. § 1396d(r)(5).
[28] CMS was previously known as the Health Care Financing Administration.
[29] There appears to be some dispute regarding the extent of CMS's approval of GAPP. In its motion for summary judgment, Defendant DCH stated, "GAPP was approved by CMS which means GAPP is in conformance with federal standards." In its reply brief in the district court, however, DCH conceded that it "did not represent that CMS approved the actual policy and procedure manual but rather that CMS approved the way in which the Department administers the program." The district court interpreted this statement to mean that CMS approved the manner in which DCH administers the entire Medicaid program, not GAPP specifically. See Moore II, 674 F.Supp.2d at 1369. On appeal, Defendant DCH contends:
Contrary to what is noted in the district court's order, Defendant has maintained, and continues to maintain, that CMS has approved DCH's administration of the GAPP program .... Although CMS has approved DCH's administration of the entire Medicaid program, Defendant noted in [its summary judgment reply] brief that CMS also has specifically approved DCH's provision of private duty nursing services, which it provides through GAPP.
Appellant's Br. at 13 & n. 4. In this opinion, we do not rely on DCH's contention that CMS has already approved its administration of GAPP but make our own assessment of whether, as to Moore's medical condition, DCH is complying with the requirements of the EPSDT mandate in the Medicaid Act.
[30] The GAPP Manual states: "Skilled nursing care is provided in the home. Nurses caring for GAPP members must have a current background in pediatric critical care nursing within the past two years." GAPP Manual § 601.3(A). This case concerns only GAPP's provision of "private duty in-home nursing services," not "medical day care services," "transportation services," or "personal care attendants"the other services offered through GAPP. See id. § 601.3(A)-(D).
[31] The GAPP Manual specifies that nursing services provided by GAPP "cannot be rendered in a hospital, skilled nursing facility, intermediate care facility, school training center, public, charter, or private school, intermediate care facility for the mentally retarded, or any other similar facility." GAPP Manual § 602.4.
[32] The billing manual for Georgia's Medicaid program is entitled "Part I Policies and Procedures for Medicaid/Peachcare for Kids." This manual, designed primarily as a reference for medical providers, contains terms and conditions for Medicaid reimbursement. DCH also publishes various manualsmany of which are entitled "Part II Policies and Procedures"describing the policies of Georgia's Medicaid sub-programs.
[33] The GAPP Manual in the record was published on July 1, 2006. DCH contends this is the relevant manual because this lawsuit concerns the 2006 reduction in private skilled nursing hours. Moore, however, contends that the October 1, 2006 GAPP Manual is the applicable manual, because it represents GAPP's governing policies at the time of the hours reduction, which occurred on or around November 16, 2006.
We need not resolve this issue because the July 2006 GAPP Manual is the only manual in the record, and because Moore has not alleged any material differences between this version and the October 2006 edition. All references herein are to the July 2006 GAPP Manual.
[34] In a deposition, GAPP Medical Director Dr. Rosenfeld testified that, to his understanding, this requirement reflected a judgment that medically fragile children requiring more than 16 hours of daily nursing care are medically unstable and would be better served in an institutional setting.
[35] Section 702.2(D) of the GAPP Manual provides:
The number of hours for which approval will be granted is based on specific medical treatment needs of the member confirmed by available medical information and the documented training needs of the primary caregiver confirmed by an established teaching plan. Hours may be reduced based on an evaluation of the current medical plan of treatment (physician orders); updated physician summaries; provider agency documented current assessments and nursing care.
GAPP Manual § 702.2(D).
[36] Nothing in this opinion should be construed as addressing the standard of review, or the scope of review, when there has been an appeal through the administrative process, a fully developed record, and a decision by an administrative law judge.
[37] The Pennsylvania Medicaid program defined an abortion as medically necessary if:
(1) There is documented medical evidence that continuance of the pregnancy may threaten the health of the mother;
(2) There is documented medical evidence that an infant may be born with incapacitating physical deformity or mental deficiency; or
(3) There is documented medical evidence that continuance of a pregnancy resulting from legally established statutory or forcible rape or incest, may constitute a threat to the mental or physical health of a patient; and
(4) Two other physicians chosen because of their recognized professional competency have examined the patient and have concurred in writing; and
(5) The procedure is performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals.
Beal, 432 U.S. at 441 n. 3, 97 S.Ct. at 2369 n. 3 (internal quotation marks omitted).
[38] The Beal plaintiffs argued that Pennsylvania's refusal to make Medicaid reimbursements for nontherapeutic abortions was unreasonable, on both cost and health grounds, because (1) abortion is typically less costly than childbirth and (2) health risks posed by abortion are fewer than those posed by childbirth. 432 U.S. at 445, 97 S.Ct. at 2371. The Beal Court rejected these arguments, noting the "`important and legitimate interest [of the State] ... in protecting the potentiality of human life.'" Id. at 445-46, 97 S.Ct. at 2371 (quoting Roe v. Wade, 410 U.S. 113, 162, 93 S.Ct. 705, 731, 35 L.Ed.2d 147 (1973)) (alterations in original).
[39] The Beal majority commented that one facet of Pennsylvania's plan could potentially violate the Medicaid Act; namely, the requirement that two physicians (in addition to the attending physician) must examine the patient and concur that the abortion is medically necessary before Medicaid reimbursement is permitted. 432 U.S. at 448, 97 S.Ct. at 2373. The majority stated that, based upon the record before it, "we are unable to ascertain whether this requirement interferes with the attending physician's medical judgment in a manner not contemplated by the Congress." Id. Accordingly, the Beal Court reversed the Third Circuit and remanded the case for consideration of this issue. Id.
[40] Curtis is binding precedent, as discussed earlier. See p. 1232, n. 22.
[41] When Curtis was decided, the Medicaid Act's delineation of mandatory categories of medical assistance was codified at § 1396a(a)(13)(B). 42 U.S.C. § 1396a(a)(13)(B) (1980).
[42] The Curtis decision also discussed alleged jurisdictional and notice infirmities. 625 F.2d at 647-50. Because these issues are not relevant to this case, we do not address them here.
[43] In Curtis, data in the record indicated that (1) Medicaid-eligible persons required on average 5.6 doctor visits per year in 1976; (2) in Florida, 3.9% of Medicaid recipients required more than three doctor visits in any month during the second quarter of 1977; and (3) only 0.5% of Florida Medicaid recipients required more than three visits in multiple months. 625 F.2d at 651 n. 10.
[44] The Curtis Court cited, but did not quote, HEW's "Data on the Medicaid Program: Eligibility/Services/Expenditures Fiscal Years 1966-1978." 625 F.2d at 652-53.
[45] Section 440.230 has since been amended. Former § 440.230(c)(1) tracks the language now found in § 440.230(c), which we quoted at p. 1234.
[46] In a footnote, the district court stated, "This court is not presented in the Georgia State Plan or its attendant regulations with a requirement for physicians' confirmation of the attending physician's decision that certain procedures or services are medically necessary. The court, therefore, makes no judgment of the propriety of such a requirement in light of the Medicaid mandate, at this time." Rush, 440 F.Supp. at 390 n. 11. In contrast, in this case, the GMCF Medical Review Team plays the role of reviewing the treating physician's recommendation of private duty nursing hours and approving or not approving them, as the case may be.
[47] The Georgia Department of Medical Assistance was the state agency then responsible for administering Georgia's Medicaid program. Rush, 625 F.2d at 1152 n. 1.
[48] We gave an example of a service the state is not required to pay for because it is not medically necessary: "One such limitation is the one Georgia contends it used in denying the surgery: a ban against reimbursement for experimental forms of treatment, i.e., treatment not generally recognized as effective by the medical profession." Rush, 625 F.2d at 1154-55 (footnote omitted).
[49] Section 440.230 has since been amended. Former § 440.230(c)(2) tracks the language now found in § 440.230(d), which we quoted at pp. 1399-1400.
[50] In making this determination, the Rush Court found support by analogy to the Medicare administrators' interpretation of the Medicare Act. The Rush Court noted that a provision in the Medicare Act that excludes payment for medical services "which are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member," 42 U.S.C. § 1395y(a)(1) (1976), had been read by Medicare administrators to foreclose reimbursement for experimental treatment and used to prohibit payment for certain types of services found to be experimental. Rush, 625 F.2d at 1156. In reaching this conclusion, the Rush Court consulted "Medicare Intermediary Letters" and the "Medicare Hospital Manual," both published in CCH's "Medicare & Medicaid Guide." Id.
[51] In a footnote, the Rush Court specified that the district court's reasonableness review of Georgia's determination that transsexual surgery is experimental, and therefore not medically necessary, "should be based on current medical opinion, regardless of the prevailing knowledge at the time of plaintiff's application." Rush, 625 F.2d at 1157 n. 13.
[52] By twice removed, we mean that after announcing the holdings and ordering a remand, the Rush Court speculated about scenarios on remand and then hypothetical findings in even additional scenarios.
[53] To prove such exceptional circumstances, the plaintiff needed to show that (1) "no other form of treatment would improve her [medical] condition" and (2) the proposed "transsexual surgery was unlikely to worsen it." Rush, 625 F.2d at 1157.
[54] Section 1396a(a)(30) provides:
(a) Contents. A State plan for medical assistance must
(30)(A) provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan (including but not limited to utilization review plans as provided for in section 1396b(i)(4) of this title) as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area....
42 U.S.C. § 1396a(a)(30). Section 1396a(a)(30) is not addressing medical necessity itself, but rather the "methods and procedures" regarding utilization of and payment for medical care that is already deemed necessary care under the state plan.
[55] The relevant portion of this legislative history was quoted at greater length in Pinneke:
3(a) Conditions and limitations on payment for services.
(1) Physicians' role
The committee's bill provides that the physician is to be the key figure in determining utilization of health services and provides that it is a physician who is to decide upon admission to a hospital, order tests, drugs and treatments, and determine the length of stay. For this reason the bill would require that payment could be made only if a physician certifies to the medical necessity of the services furnished.
Pinneke, 623 F.2d at 549 n. 3 (quoting Senate Report).
[56] We can reconcile Rush with Curtis because both indicate that the state not only has a role to play as to medical necessity but also is not required to accept the treating physician's opinion of medical necessity. Any differences in Rush and Curtis stem from the markedly disparate factual contexts in which the cases arose. Georgia's limitation in Rush was a blanket denial of a particular type of medical service, sex reassignment surgery. In contrast, Florida's limitation in Curtisfunding only three doctor visits a month, excluding emergencieswas quantitative in nature. See pp. 1259-61, infra.
In any event, to the extent any portion of Rush arguably conflicts with the holding in Curtis, we are bound by Curtis, which preceded Rush. See United States v. Smith, 122 F.3d 1355, 1359 (11th Cir.1997) (per curiam) ("Under the prior panel precedent rule, we are bound by earlier panel holdings ... unless and until they are overruled en banc or by the Supreme Court.").
[57] One of the plaintiff's doctors also observed that because of the plaintiff's immediate susceptibility to a variety of infections, his condition could worsen such that transplant surgery might not be recommended or feasible. Pittman, 998 F.2d at 888.
[58] Section 1396b(i) addresses organ transplants and provides:
Payment under the preceding provisions of this section shall not be made
(1) for organ transplant procedures unless the State plan provides for written standards respecting the coverage of such procedures and unless such standards provide that
(A) similarly situated individuals are treated alike; and
(B) any restriction, on the facilities or practitioners which may provide such procedures, is consistent with the accessibility of high quality care to individuals eligible for the procedures under the State plan;...
....
Nothing in paragraph (1) shall be construed as permitting a State to provide services under its plan under this subchapter that are not reasonable in amount, duration, and scope to achieve their purpose.
42 U.S.C. § 1396b(i)(1).
[59] The Pittman Court's footnote is worth quoting in full:
In opposing Lexen's assertion that 42 U.S.C. § 1396d(r)(5) requires funding for this transplant, the Secretary argues that § 1396b(i)(1) gives the states discretion to elect not to cover organ transplants for children under age twenty-one. We address and reject that argument in the text. Thus, we need not, and we expressly do not, address other possible issues, including, but not limited to: (1) whether the decision to exclude liver-bowel transplants from coverage under the state plan was made pursuant to reasonable standards consistent with the Medicaid Act appropriately imposed by the state pursuant to 42 U.S.C. § 1396a(a)(17), see Beal v. Doe, 432 U.S. 438, 444-45, 97 S.Ct. 2366, 2370-71, 53 L.Ed.2d 464 (1977); (2) whether this transplant is medically necessary; (3) whether "necessary health care" in § 1396d(r)(5) means reasonable health care so that the total circumstances, including (but not limited to) probability of a successful outcome would be considered even in cases in which a particular treatment offers the only possibility for the patient's survival; (4) what are the circumstances that may be considered if "necessary" in § 1396d(r)(5) means the same thing as reasonable; and (5) whether "discovered by the screening services" as used in § 1396d(r)(5) is a phrase of limitation and, if so, what does it mean in application.
Pittman, 998 F.2d at 888 n. 3.
[60] In contrast to her brief on appeal, Moore's amended complaint arguably alleges that GAPP, on its face, violates the Medicaid Act. See, e.g., Am. Compl. ¶ 1 (citing DCH's "application of policies that conflict with federal Medicaid law"); id. ¶ 36 (alleging that DCH "impose[s] additional eligibility criteria for receipt of [private duty nursing], in excess of federal eligibility for EPSDT services"); id. ¶ 43 ("By expressly limiting the purpose and length of time for which private duty nursing services will be provided to the teaching of the beneficiary's parent or caregiver to provide care in the absence of a nurse, Georgia Medicaid fails to provide private duty nursing services to EPSDT beneficiaries in accordance with the Medicaid Act."); id. ¶ 45 ("Georgia Medicaid restricts eligibility for the EPSDT private duty nursing benefit on the basis of the cost of that care in violation of the Medicaid Act."); id. ¶ 52 ("GAPP's requirement of a secondary caregiver in order for an EPSDT beneficiary to be eligible to receive any EPSDT private duty nursing benefit limits the availability of this benefit in violation of Medicaid law.").
However, Moore's brief on appeal confines her arguments to challenging DCH's application of GAPP policies to Moore individually in its reduction of her private duty nursing hours. Given our clarification of the guiding principles and the need for remand, see infra p. 1257-59, we leave it to the district court to shape the proceedings going forward.
[61] For the purpose of clarity, we note that § 440.230(c) states in full, "The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition." 42 C.F.R. § 440.230(c) (emphasis added). Our reading of §§ 440.210 and 440.220 indicates that "private duty nursing services," as defined by 42 C.F.R. § 440.80, is not one of the required services listed in those sections. In any case, as Moore has made no showing of discrimination, this issue is immaterial.
[62] DCH points out that, on the front end, it must make a determination that services are medically necessary before providing payment, which is different from its ability to review previously paid services for fraud on the back end. The GMCF Medical Review Team performs the evaluation of medical necessity, while DCH's Office of Inspector General Program Integrity Unit reviews for fraud and abuse.
[63] Notably, Moore has not rebutted Dr. Rosenfeld's characterization of Moore as "chronically stable."
[64] Given the clarity of these federal regulations, the CMS Manual, and Curtis, Moore bases her argument mainly on the last paragraph of Rush's Part B. Whatever Part B of Rush might mean, and regardless of whether it purports to be a holding or merely dicta, it decidedly does notand cannotsupport the proposition that Moore cites it for. This is because the "fraud or abuse" and "without any basis in fact" articulation of a state's reviewing authority was essentially the standard adopted by the district court in Rush, which our predecessor Court considered but refused to adopt on appeal. See Rush, 625 F.2d at 1154 ("We disagree with the district court, and hold instead that a state may adopt a definition of medical necessity that places reasonable limits on a physician's discretion."). Thus, it is clear that the Rush Court unequivocally rejected the district court's and now Moore'scontention that a treating physician's determination of medical necessity was unreviewable by the state, absent fraud, abuse, or unreasonable medical care.
[65] Interestingly, the Eighth Circuit reversed course 21 years later in Smith v. Rasmussen, 249 F.3d 755 (8th Cir.2001), upholding a state ban on Medicaid funding for sex reassignment surgery. The Rasmussen court noted that, in Pinneke, Iowa's exclusionary policy of precluding funding for all sex reassignment surgery was arbitrary because it was adopted without consulting medical professionals and in disregard of the "current accumulated knowledge of the medical community." Id. at 760. However, upon revisiting the issue years later, Iowa had followed a rulemaking process that considered the knowledge of the medical community. Id. The Eighth Circuit concluded that "[i]n the light of the evidence before the Department questioning the efficacy of and the necessity for sex reassignment surgery, given other treatment options, we cannot conclude as a substantive matter that the Department's regulation is unreasonable, arbitrary, or inconsistent with the [Medicaid] Act." Id. at 761. Rasmussen underscores that whether a state has appropriately exercised its authority to "place appropriate limits on a service based on such criteria as medical necessity," 42 C.F.R. § 440.230(d), is a fact-intensive inquiry that may even change over time.
[66] Moore's amicus does cite one case involving a durational or quantitative limitation, C.F. v. Department of Children & Families, 934 So.2d 1 (Fla.Dist.Ct.App.2005), where a state court held that the evidence was insufficient to support Florida's reduction of "personal care services" from six to four hours per day to a Medicaid-eligible child. Id. at 7. "Personal care services" are an EPSDT-required service. See 42 U.S.C. § 1396d(a)(24), (r)(5). However, this case is inapposite here.
First, the state's "expert" who recommended the hours reduction was not a licensed health care provider. C.F., 934 So.2d at 3. Nor was the state's expert even aware that the plaintiff's doctor had determined that six hours per day were medically necessary. Id. at 4. In fact, the state agency presented no testimony or written evidence from a physician to justify its hours reduction, and thus "[t]here was insufficient competent evidence to support the hearing officer's decision." Id. at 6. By contrast, the state in Moore's case introduced significant medical testimony by Dr. Rosenfeld, who had reviewed Dr. Braucher's recommendation, along with Moore's medical history and records.
Second, under Florida state law, the state agency has the burden of proof in an administrative hearing when Medicaid services are reduced. See Fla. Admin. Code r. 65-2.060 ("The burden is upon the Department when the Department takes action which would reduce or terminate the benefits or payments being received by the recipient."). In this case, Moore chose to forgo her right to an administrative hearing and has cited no similar burden of proof requirement.
Lastly, the EPSDT-required service at issue in C.F. "personal care services" contained a statutory qualifier that does not similarly apply to "private duty nursing services." Compare 42 U.S.C. § 1396d(a)(24) (requiring states to furnish the "personal care services" that are "authorized for the individual by a physician in accordance with a plan of treatment"), with id. § 1396d(a)(8).
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Order Michigan Supreme Court
Lansing, Michigan
December 2, 2011 Robert P. Young, Jr.,
Chief Justice
144036 & (50)(51)(52)(53) Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellant, Justices
v SC: 144036
COA: 302181
Washtenaw CC: 10-001573-AR
TERRY NUNLEY,
Defendant-Appellee,
and
ATTORNEY GENERAL,
Intervenor.
_________________________________________/
On order of the Court, the motion for immediate consideration is GRANTED.
The motions of the Attorney General to intervene and to stay the precedential effect of
the published Court of Appeals opinion are GRANTED. The motion to enlarge the
record on appeal and the application for leave to appeal the October 13, 2011 judgment of
the Court of Appeals remain pending.
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.
December 2, 2011 _________________________________________
p1129 Clerk
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6841
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ASHLEY REGINA GOOCH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:16-cr-00025-WO-1)
Submitted: November 16, 2017 Decided: November 20, 2017
Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ashley Regina Gooch, Appellant Pro Se. Ripley Eagles Rand, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ashley Regina Gooch appeals the district court’s orders denying her motions for
reduction of sentence, 18 U.S.C. § 3582(c) (2012), and for reconsideration. We have
reviewed the record and find no reversible error. Accordingly, we affirm for the reasons
stated by the district court. United States v. Gooch, No. 1:16-cr-00025-WO-1 (M.D.N.C.
May 17, 2017; June 22, 2017). We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
2
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30 B.R. 484 (1982)
In re Daphne COOPER, Debtor.
Gordon C. HALL, Executor of the Estate of Katharine T. Cooper, and Katharine C. Barstow, Appellants,
v.
Daphne COOPER and Merrill Lynch, Pierce, Fenner & Smith, Inc., Appellees.
BAP Nos. CC-81-1103-VGH, CC-81-1157-VGH, Bankruptcy No. LA-80-06257-CA, Adv. Nos. LA-80-2521-CA, LA-80-1615-CA.
United States Bankruptcy Appellate Panels of the Ninth Circuit.
Argued April 15, 1982.
Decided October 1, 1982.
*485 Philip C. Patterson, Philadelphia, Pa., for appellants.
No appearance for appellees.
Before VOLINN, GEORGE and HUGHES, Bankruptcy Judges.
OPINION
VOLINN, Bankruptcy Judge:
The primary issues in this appeal deal with a Bankruptcy Court's interpretation of a state court order and exception to dischargeability of a debt for defalcation while acting in a fiduciary capacity under 11 U.S.C. § 523(a)(4). This appeal is burdened with a voluminous record involving interplay between the Bankruptcy Court and extensive state court probate proceedings, and the inordinately lengthy briefs of the appellant to which the appellee has responded, in this appeal, only by filing her trial brief.[1]
I.
BACKGROUND FACTS
In March, 1976, Katharine Cooper (hereinafter "Katharine") became ill and enlisted the aid of her daughter, Katharine Barstow (hereinafter "Barstow"), to carry out certain daily financial transactions, apparently at her direction. When Barstow became ill in the summer of 1976, Katharine's granddaughter (Barstow's niece), Daphne Cooper (hereinafter "Daphne"), began to carry out these daily financial transactions for her grandmother, a number of which were carried out through two joint survivorship bank accounts, checking account 4395 and savings account 3782, both of which were funded by monies belonging to Katharine.
Katharine passed away on September 28, 1978. Administration of the probate estate was under the auspices of the Court of Common Pleas of Chester County, Pennsylvania, Orphans' Court Division (hereinafter "Orphans' Court"). The date of death balances in the bank accounts were $1,069.08 in *486 checking account 4395 and $12,841.19 in savings account 3782. Katharine bequeathed her entire residuary estate (after bequests to Barstow of her tangible personal property) to be held in trust for the benefit of Barstow for life with the remainder to Barstow's issue, or in the event of their default, to Katharine's issue.
On September 29, 1978, the day after Katharine's death, Daphne transferred the entire balance of $12,841.19 from savings account 3782 and $400 from checking account 4395 into her personal savings account at the Germantown Savings Bank (hereinafter "GSB account"). Thereafter, Daphne made a number of deposits to and withdrawals from the GSB account.
Apparently, Katharine's will named Gordon C. Hall (hereinafter "Hall") and Katharine's son (Daphne's father), Leslie T. Cooper, as executors of her estate and as trustees of the residuary trust provided for in her will. Due to illness, Leslie T. Cooper announced the appointments and Daphne was appointed in his place.
A dispute arose concerning the ownership of funds in checking account 4395 and savings account 3782 at the time of Katharine's death. Daphne was of the view that the funds were her property pursuant to the joint survivorship nature of the accounts. Barstow objected to Daphne's possession of the funds and petitioned the Orphans' Court to compel Daphne to turn over the account balances to the estate. Barstow argued that under Pennsylvania case law, both of these accounts were "convenience accounts" which lacked the requisite donative intent to effectuate a transfer from Katharine to Daphne of a true joint ownership interest with a right of survivorship and that because Daphne was in a fiduciary relationship with Katharine which shifted the burden of proof to Daphne to prove that any joint ownership interest with a right of survivorship in the accounts was made voluntarily, intentionally and intelligently. On January 8, 1980 the Orphans' Court entered an adjudication finding that
"[w]ith respect to checking account 4395, there would seem but little doubt but that Daphne's name was added thereto on August 5, 1976, as a matter of convenience to decedent, and not with any donative intent on her part."
There was a dispute as to whether the savings account was a joint survivorship account. Ultimately the court found:
"The Auditing Judge accepts the testimony of Mrs. Dunn, the bank official, and hereby specifically finds as a fact that as between decedent and Daphne, at least, savings account 3782 in August, 1978, had been their joint account with right of survivorship by the execution of the signature cards by both, as she testified. This conclusion is fully justified by the unimpeached and uncontradicted testimony of this witness that she unequivocally identified decedent's signatures (plural) thereon."
The Orphans' Court also found that
"a position of trust and confidence was assumed by Daphne toward decedent beyond any question on May 1, 1978 when the subject savings account was opened in her name alone, a transaction which, . . . unquestionably cast Daphne in the position of a fiduciary. In legal contemplation, she thereby became the trustee of a resulting trust in decedent's favor for all of the deposits therein made." (Emphasis added).
Daphne's failure to produce evidence of donative intent by Katharine for savings account 3782 caused the Orphans' Court to sustain Barstow's position. The Orphans' Court accordingly "directed" Daphne
"to pay into the estate, in due course, the sum of $252.21 (the balance of the checking account 4395 not already advanced to or accounted for herein by accountants) and the sum of $12,841.19 (the date of death balance in savings account 3782), together with legal interest thereon from September 28, 1978, the date of decedent's death."
These determinations became a final judgment of the Orphans' Court on April 29, 1980.
*487 II.
LITIGATION DURING BANKRUPTCY
On July 1, 1981, Daphne filed a bankruptcy petition under 11 U.S.C. Chapter 7. Daphne's schedule of debts included the amount which the Orphans' Court directed her to pay to Katharine's probate estate. On July 22, 1980, Daphne filed an adversary proceeding to invalidate the fixing of a judgment lien and for an order requiring the trustee and Merrill Lynch, Pierce, Fenner and Smith, Inc., to turn over funds claimed as exempt to the debtor under 11 U.S.C. § 522(f). This action was consolidated with an adversary proceeding concerning the same funds commenced by Barstow and Hall for reclamation of traceable proceeds of savings account 3782 and checking account 4894, for a deficiency judgment on proceeds which were not traceable, and for a determination that Daphne's debt to Katharine's probate estate is excepted from discharge under 11 U.S.C. § 523(a)(4). Hall and Barstow filed a motion for summary judgment which was not set for hearing. The case was submitted primarily on the basis of the Orphans' Court Determinations, live testimony of Daphne, and some depositions.
On March 11, 1981, the Bankruptcy Court below, by memorandum decision found and concluded that:
"The trust relationship set forth in the decision of the Orphan's Court was not the type of express trust which would give rise to a nondischargeable debt under Bankruptcy Code § 523(a)(4). As referred to by the Orphans' Court, it was a resulting trust or a constructive trust. In the case of In re Thornton, 544 F.2d 1005 (9th Cir.1976) the court stated that constructive trusts or trusts which are merely implied in law do not impart a fiduciary relationship. The findings of the Orphans Court support this conclusion. Its order created a legal obligation to pay a sum of money into the decedent's estate and defined a debtor-creditor relationship between the decedent's estate and the bankruptcy debtor.
All but $2,864 of the funds in question were expended prior to the adjudication by the Orphans Court. The debtor learned of the adjudication some time after it was made. The debtor believed that the funds were her property and spent them in that good faith belief. (Emph. added).
I conclude that this debt is dischargeable under § 523(a)(4) of the Bankruptcy [Code]."
On April 3, 1981, Hall and Barstow moved for reconsideration and supplementation of the Bankruptcy Court's March 11, 1981 memorandum decision. On April 10, 1981, Hall and Barstow moved for a stay of a final decision of the Bankruptcy Court pending the outcome of a petition which they had filed with the Orphans' Court to discharge Daphne as executrix of Katharine's estate and as trustee of the testamentary trust and for an interpretation by the Orphan's Court with respect to ownership of the proceeds of the two bank accounts and its earlier decision. On April 27, 1981, the Bankruptcy Court entered a judgment consistent with the March 11, 1981 memorandum decision, ordering Merrill Lynch, Pierce, Fenner & Smith, Inc., to turn over to Daphne all funds or property held by it in her name. The Bankruptcy Court also denied the motions for reconsideration and supplementation, and by separate order, denied the motion to stay. In the latter order, the Bankruptcy Court stated that any request to the Orphans' Court to determine ownership of the two bank accounts and proceeds thereof was in violation of the automatic stay of 11 U.S.C. § 362. Hall and Barstow withdrew the portion of their petition to the Orphans' Court which the Bankruptcy Court held was in violation of the automatic stay, and filed another adversary proceeding in the Bankruptcy Court to lift the automatic stay so that they could obtain a determination from the Orphans Court concerning ownership of the proceeds of the two bank accounts.
On May 6, 1981, the Orphans' Court removed Daphne as executrix of Katharine's estate and on May 15, 1981, removed Daphne as trustee of the testamentary trust for dissipating assets belonging to the probate estate. Hall and Barstow filed another *488 motion with the Bankruptcy Court to vacate and modify the April 27, 1981, decisions under Bankruptcy Rule 924 and Rules 60(b)(1), (2), (5) and (6) of the Federal Rules of Civil Procedure. The motion was based on the May 6, 1981 and May 15, 1981 decisions by the Orphans' Court. The motion to vacate and modify was denied by the Bankruptcy Court on June 22, 1981, on which date, the Bankruptcy Court also denied Hall and Barstow relief from the stay to obtain a determination of ownership of the bank account proceeds from the Orphans' Court.
Hall and Barstow have appealed the orders and judgments of the Bankruptcy Court which were made on April 27, 1981 and June 22, 1981. Essentially, appellants argue that the Bankruptcy Court erred by not allowing them (1) to recover or be awarded an equitable lien on the traceable proceeds of the subject bank accounts for the benefit of Katharine's estate, and (2) by not determining that any amounts which Daphne owed to the estate and which were not recoverable through traceable proceeds constituted a nondischargeable debt to Katharine's estate.
III.
ORPHANS' COURT DECISION
A. TRACEABILITY
The appellants in the Bankruptcy Court pleaded and prayed for an order that the Orphans' Court decision of January 8, 1980 and April 29, 1980, are binding on the Bankruptcy Court under the doctrines of res judicata and collateral estoppel. The appellants also relied heavily on these decisions to support their Bankruptcy Court claim to trace proceeds of the subject bank accounts into Daphne's bankrupt estate. Daphne did not particularly address the issue of res judicata or collateral estoppel but disputed appellant's interpretation that these Orphans' Court decisions authorized appellants to trace the bank account proceeds into Daphne's bankrupt estate.
The threshold questions involve the nature and effect of the findings and conclusions of the January 8, 1980 and April 29, 1980, decisions of the Bankruptcy Court. The doctrine of res judicata is a
". . . salutory doctrine of repose that gives conclusive finality to a final, valid judgment; and, if the judgment is on the merits, precludes further litigation of the same cause of action between the same parties or those in such legal relationship to them that they are said to be in privity and bound by the judgment.'
1B Moore's Federal Practice ¶ 0.401.
Collateral estoppel, or issue preclusion, comes into play where
". . . there is a second action between parties, or their privies, who are bound by a judgment rendered in a prior suit, but the second action involves a different claim, cause, or demand, the judgment in the first suit operates as a collateral estoppel as to, but only as to, those matters or points which were in issue or controverted and upon the determination of which the initial judgment necessarily depended." 1B Moore's Federal Practice ¶ 0.441[2].
In the January 8, 1980 decision, the Orphans' Court made certain findings with respect to the ownership of the funds in checking account 4395 and savings account 3782. After making such findings, the Orphans' Court merely directed Daphne to pay a sum of money into Katharine's estate which apparently represented the amounts previously in the subject bank accounts at Katharine's death. The Orphans' Court made no findings or conclusions concerning the funds and assets to which the bank account proceeds were traceable or the right of an equitable lien thereon. Based on this record, the Bankruptcy Court found, primarily on the basis of res judicata and collateral estoppel, that the Orphans' Court decisions created a legal obligation for Daphne to pay a sum of money into the decedent's estate which defined a creditor-debtor relationship between Katharine's estate and Daphne. On the record before us, we cannot find that the Bankruptcy Court erred as a matter of law in so finding.
Appellants argue that references to ownership of the proceeds of the subject bank accounts and traceability in the Orphans' Court decisions of May 6, 1981 and May 15, 1981, should be conclusive and binding on *489 the Bankruptcy Court. We disagree. These later Orphans' Court decisions were made after the Bankruptcy Court applied the doctrines of res judicata and collateral estoppel to the prior Orphans' Court decisions, and further, there was a lack of identity of issues and causes of action in the Bankruptcy Court decision and the later Orphans' Court decisions. 1B Moore's Federal Practice ¶¶ 0.410 and 0.443[2]. The Bankruptcy Court was determining the ownership of the proceeds of the subject bank accounts and issues of dischargeability on the basis of the record and the evidence presented to it, while the later Orphans' Court decisions were determining Daphne's suitability as executrix and as residuary trustee of Katharine's testamentary trust. Appellants have not stated any basis which would compel the Bankruptcy Court to modify its decision so as to conform or comply with the later Orphans' Court decisions, nor have appellants demonstrated that the Bankruptcy Court abused its discretion in refusing to consider the findings of these subsequent decisions.
Appellants argue that the Bankruptcy Court erred by failing to lift the automatic stay to allow them to obtain a determination from the Orphans' Court with respect to ownership and traceability of the proceeds of the subject bank accounts. This argument also fails since, as stated below, the subsequent Orphans' Court decision does not overrule nor vitiate the Bankruptcy Court's prior decision. Even if the Bankruptcy Court had lifted the stay, a further decision by the Orphans' Court would not have been binding on the Bankruptcy Court.
B. DISCHARGEABILITY
11 U.S.C. § 523(a)(4) of the Bankruptcy Code excepts from discharge any debt "for fraud or defalcation while acting in a fiduciary capacity." The fiduciary capacity requirement of this section of the Code has consistently been limited to technical or express trust relationships and not to trusts which are imposed by operation of law. 3 Collier on Bankruptcy ¶ 523.14[c] (15th ed. 1982). In re Thornton, 544 F.2d 1005 (9th Cir.1976).
Prior to Katharine's death, Daphne performed certain financial transactions on Katharine's behalf. The relationship between them was clearly one of principal and agent. This was exemplified by the powers of attorney executed by Katharine.
The principal and agent relationship between Katharine and Daphne terminated by the express language of the powers of attorney and by operation of law upon Katharine's death. Daphne withdrew the funds from checking account 4935 and savings account 3782 the day after Katharine's death. At this time the record does not reveal the existence of an agency, let alone the existence of an express trust relationship between Daphne and the appellants except for a trust imposed by operation of law. This was the resulting trust identified in the January 8, 1980, Orphans' Court decision. The Orphans' Court described Daphne's relationship with her grandmother as one of trust and confidence but carefully avoided characterizing her as a trustee under an express trust. The Court stated that
"[i]n legal contemplation she thereby became the trustee of the resulting trust in decedent's favor for all of the deposits therein made." (Emph. added).
At another point the Orphans' Court referred to an "ensuing trust."
In general, the principles of collateral estoppel and res judicata in discharge proceedings are stated in Brown v. Felsen, 439 U.S. 925, 99 S.Ct. 307, 58 L.Ed.2d 317 (1979), and In re Houtman, 568 F.2d 651 (9th Cir. 1978). Basically, the Bankruptcy Court is bound to review the prior record in the context of the discharge proceeding and to apply the principles where the record in the case before him, in effect, verifies the record in the non-bankruptcy proceeding.
The Orphans' Court and the Bankruptcy Court found that when Daphne took the funds which were part of Katharine's estate, she took them at a time when she was not an express trustee with respect to them. Acts contended as a basis for defalcation or fraud took place at a time when no express trust existed. As a result, § 523(a)(4) cannot *490 support excepting Daphne's debt from discharge.
The appellants also argue that Daphne's debt to Katharine's estate should be excepted from discharge for embezzlement under 11 U.S.C. § 523(a)(4) and for willful and malicious injury by the debtor to the appellants under 11 U.S.C. § 523(a)(6). This contention also fails since the Bankruptcy Court found that Daphne believed that the funds were her property and that she spent them in that good faith belief. Such a finding is not clearly erroneous based on testimony from Daphne in the Bankruptcy Court trial and the record from the Orphan's Court.
On the basis of the foregoing we AFFIRM the decisions and orders of the Bankruptcy Court and decline to award attorneys fees to appellants.
AFFIRMED.
NOTES
[1] As an indication of the relationship of effort expended by appellee to the relief sought, E.R. App. 36, shows that counsel for appellee expended on the bankruptcy litigation 344.5 hours with a time value of $29,280.00 plus $3,319.50 costs for a total of $32,599.50. Recovery of funds totalling some $14,000 is sought in Bankruptcy Court. How much time has been expended in what the Orphan's Court referred to "as this tediously protracted audit record" (E.R.App. 4, p. 2) is unknown, but Katharine's entire testamentary estate excluding the two subject accounts, is about $54,000.00.
| {
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329 F.2d 585
2 UCC Rep.Serv. 110
BOEING AIRPLANE COMPANY, a Corporation, Appellant,v.John A. O'MALLEY and V. J. Pedrizetti, Trustees inDissolution of Atlas Helicopter Service, Inc., aCorporation, Appellees.John A. O'MALLEY and V. J. Pedrizetti, Trustees inDissolution of Atlas Helicopter Service, Inc., aCorporation, Appellants,v.BOEING AIRPLANE COMPANY, a Corporation, Appellee.
Nos. 17266, 17267.
United States Court of Appeals Eighth Circuit.
March 25, 1964.
William P. O'Brien of Nye, Sullivan, McMillan, Hanft & Hastings, Duluth, Minn., made argument for the Boeing Airplane Co. and filed briefs.
Solly Robins of Robins, Davis & Lyons, Minneapolis, Minn., made argument for John A. O'Malley and others and filed brief with Harding A. Orren and Lawrence Zelle, of counsel, Robins, Davis & Lyons, Minneapolis, Minn., H. B. Fryberger, Duluth, Minn.
Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.
VOGEL, Circuit Judge.
1
Case No. 17,266 is an appeal by The Boeing Company from a judgment entered against it based upon a jury verdict returned in a damage suit premised on allegations of fraudulent misrepresentation and breach of contract. Boeing acquired the assets and liabilities of the Vertol Aircraft Corporation in March 1960. The Vertol Corporation, now a division of Boeing, was and is engaged in the design, fabrication and sale of aircraft that have the characteristics of vertical take off and landing (thus the name 'Vertol'). Helicopters are the principal aircraft involved in the work of Vertol. Because all the transactions herein were in the name of the Vertol Aircraft Corporation, The Boeing Company, defendant-appellant, will hereinafter be referred to as 'Vertol'. Atlas Helicopter Service, Inc., will be referred to as 'Atlas'.
2
On August 10, 1961, Atlas brought suit against Boeing in the state district court of Minnesota, alleging damages by reason of fraud on the part of Vertol in the sale of a certain helicopter. The case was removed to federal court on the grounds of diversity of citizenship and amount involved. Thereafter Atlas filed, with consent of court, an amended complaint, again basing its cause of action on the grounds of fraudulent misrepresentations but also claiming breach of warranties, both express and implied. After 25 trial days, the case was submitted to the jury which, on August 17, 1962, returned a verdict in favor of Atlas in the amount of $180,295.23. Two special interrogatories were submitted to the jury as follows:
3
'1. Is your verdict for the plaintiff based on its claim of breach of implied warranty of fitness for the purpose?'
4
To which the jury answered, 'Yes.'
5
'2. Is your verdict for the plaintiff based on its claim of fraud or misrepresentation?'
6
To which the jury answered, 'No.'
7
Appeal No. 17,267 is by Atlas, claiming that error in the court's instructions resulted in the jury's negative answer to the second interrogatory. Such appeal is to be considered only in the event this court should order a new trial in No. 17,266.
8
Atlas was organized in October of 1959 by six individuals from Omaha, Nebraska, and Duluth, Minnesota. The Omaha group consisted of Byron T. Brown, Barton H. Ford, Robert E. Towle, Jr., and Bernhardt Stahmer. The Duluth group consisted of Myles F. Hall and Reinhold Melander. Neither Brown, who had been in the business of operating his own airplane for hire, and who became vice president and general manager of Atlas, nor any of the other organizers had any previous experience or knowledge with reference to the performance or operation of helicopters. This lack of knowledge and experience was known to Vertol.
9
For some time representatives of Vertol had been negotiating with the organizers of Atlas as to the sale to them of a Vertol helicopter which at that time was in Europe and which had been used for flying passengers between Brussels and Paris during the Brussels World Fair. Atlas was interested in acquiring a helicopter to be used in utility work such as the laying of heavy weights in construction. During the negotiations, a representative of Vertol took Hall and Brown on a trip to the oil centers of the South to demonstrate business potentials there for a utility helicopter. Vertol prepared a brochure for Atlas' use in advertising for business which stated and showed that Atlas would have a helicopter that would perform the tasks demonstrated in movies and in pictures such as lifting up to 4,000 pounds of equipment (5,000 pounds under certain conditions), laying of pipelines, transporting up to 19 crew members or two tons of cargo, setting of poles and having a 'useful load' of up to 5,360 pounds.
10
It was the contention of Atlas, supported by their witnesses, that the Vertol representative told them that the helicopter they proposed selling to them, and which was then in Europe, would be able to perform all of the various jobs portrayed, including the carrying of 19 people 75 miles off-shore and return. Having become aware of the fact that the ship in question was equipped with only 14 or 15 seats, one of the Atlas men inquired of Hemberger, 'How do we carry the 19 people?' And he was told, 'Well, you just take these seats out and put in troop seats,' and that such a job took about an hour or two and could be done with a screwdriver. This testimony was disputed by Vertol. Through Hemberger, Vertol claimed that the differences in weight and capabilities were fully discussed with the Atlas representatives; that the latter were told that in order to convert that particular ship to carry 19 people and to lift the weights referred to and perform the tasks illustrated in the movies and pictures and explained orally, certain modifications had to be made, and that such modifications would cost something in the neighborhood of $15,000 to $20,000.
11
On October 6, 1959, Vertol and Atlas entered into a formal written contract whereby Vertol agreed to sell and Atlas agreed to buy the European-based helicopter described as follows:
12
'1. One (1) used Vertol Model 44B airline helicopter (U.S. FAA Registration No. N-74058) as described in Exhibit 'A' annexed hereto. The said helicopter shall be in flyable condition with a currently valid U.S. FAA Airworthiness Certificate.'
13
Atlas agreed to pay Vertol $235,000 for the helicopter, $10,000 of which was payable upon execution of the agreement and the second installment of $225,000 upon delivery of the helicopter to Atlas at Omaha, Nebraska. As to warranties, the contract provided:
14
'ARTICLE 6-- WARRANTY
15
'(a) VERTOL warrants that it is the full legal and beneficial owner of the helicopter described in ARTICLE 1, and that it is not subject to any lien, charge or encumbrance.
16
'(b) The foregoing warranty is given and accepted in lieu of any and all other warranties, expressed or implied, arising out of the sale of the helicopter.'
17
It is the contention of Vertol that it sold the helicopter to Atlas 'as-is, where-is' and that accordingly there were neither express nor implied warranties with reference to its fitness for any purpose. Support for Vertol's contention of an 'as-is' sale, though not part of the contract and not in writing, is its Exhibit C, which is a transcript of certain negotiations between Hemberger, for Vertol, and representatives of Atlas prior to sale. Discussion was had with reference to the use of the helicopter then in Europe, after which the following statements were made:
18
'Hemberger
19
'That's right. After the six month operation was over, the aircraft was turned back to us. One of the two aircraft was sold; the other one was used as our demonstrator in Europe and toured around Europe putting on demonstrations. And, this is the aircraft that went to the Vatican and so forth and the aircraft now has about 1200 hours on the airframe. Of course the major components vary in time because some have been changed since new and so forth. And, what we propose is that we offer the aircraft as-is, where-is for $235,000 to the seller.'
20
'Melander 'That's $235,000.'
21
'Hemberger '$235,000, that is, where-is, as-is, that's how we have offered it. Now when Mr. Brown called me and said that he was interested in talking about this machine, I went to our Board of Directors and asked that certain things be done to the machine and certain compensations be made in order to deliver it; and the price; and for these items not to be included over and above the present price, where-is, as-is condition in Europe; and, I have gotten their approval for Vertol to pay for the crating of the aircraft which is $5,000, shipping of the aircraft back to our plant which is additional $5,000 and approximately $20,000 worth of work on the aircraft to put it into a more decent condition than it's presently in and that would include all of the modifications that would be necessary to certify it for operations in the U.S. and also to overhaul and repair any of the major components that had more than 200 hours, or had less rather than 200 hours remaining before they needed an inspection period. So that they would be * * *'
22
'Hall 'Are there more in that category?'
23
'Hemberger 'That's right. There would be no major components that would require a schedule inspection for overhaul prior to 200 hours and this work came up to about $20,000."
24
It is the contention of Atlas that the 'as-is, where-is' offer did not apply to it; but, rather, the statements that they had offered and 'we have offered it' and Hemberger's statement immediately after his reference to 'as-is, where-is' demonstrated that was not the type of offer which was being made to Atlas. Atlas finds support for its position in that Hemberger clearly stated that the aircraft was to be shipped to the United States and have 'approximately $20,000 worth of work * * * to put it into a more decent condition than it's presently in' and to be modified to the extent necessary to certify it for operation in the United States. The language used by Hemberger was not understood by Atlas to be an exclusion of all warranties. The Atlas people considered the expression 'as-is' meant that the helicopter would have all of the extra fine surplus equipment that Hemberger had described as being of such added value. Brown testified:
25
'Q. And in connection with the presentation made there, Mr. Hemberger indicated this aircraft was for sale in an 'as is' condition? A. Yes. He said as is, but he said the as is is that we're not going to remove any of this extra fine surplus equipment such as floats, the twenty or thirty thousand dollars worth of radio that it has in it. We're going to leave the beautiful airline seats and we're going to leave the flags painted on the side of it, and that is what he meant by as is.
26
'Q. Well anyway, he did say 'as is', didn't he? A. Well, to this extent, that it was also discussed at that time that he knew and we knew that we were not buying a ship in Paris or Brussels, Belgium, that they were bringing it back to the Vertol factory, and they were going to repaint it. So when he said as is-- where is,-- we're not buying a pig in a poke for $235,000.'
27
In any event, the conversations as shown in Exhibit C, supra, were preliminary to the making of a formal contract and were not included therein.
28
Without going into unnecessary detail, the evidence indicates here that Atlas' experience with the helicopter was most discouraging. The aircraft was unable to perform the tasks shown to have been performed by another Vertol helicopter in their movies and photographs and unable to perform tasks which Hemberger had said it could perform. The Vertol helicopter was unable to compete successfully with another model owned by Atlas' competitors. When an attempt was made to get troop seats to replace the 14 or 15 seats in the helicopter, it was learned that an additional cost of $15,000 to $20,000 was involved.
29
Atlas contended that as a result of false and fraudulent representations, known to be false and made with the intent to deceive and defraud, and as the result of breach of express and implied warranties, it suffered a total damage of $410,000. The trial court first determined that as a matter of law there was no express warranty involved. Subsequently the trial court ruled that as a matter of law there was an implied warranty that the helicopter was reasonably fit for the purpose for which it was intended and it left for the jury the determination of whether or not there had been a breach of such implied warranty. The main thrust of Vertol's appeal here is that the court committed error in holding that there was an implied warranty as a matter of law.
30
The contract between the parties provided, and they herein agree, that the applicable law is that of the Commonwealth of Pennsylvania. Of primary consideration is the determination of whether the provisions of the 1954 Uniform Commercial Code of the Laws of Pennsylvania are applicable or if the provisions of the 1959 amendment, which went into effect January 1, 1960, determine the rights of the parties. The Uniform Commercial Code for Pennsylvania, as it went into effect in 1954, 12A P.S.Pa. 1-101 et seq., provided:
31
'2-- 315. Implied Warranty: Fitness for Particular Purpose
32
'Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. (1953, April 6, P.L. 3, 2-- 315.)' '2-- 316. Exclusion or Modification of Warranties
33
'(1) If the agreement creates an express warranty, words disclaiming it are inoperative.
34
'(2) Exclusion or modification of the implied warranty of merchantability or of fitness for a particular purpose must be in specific language and if the inclusion of such language creates an ambiguity in the contract as a whole it shall be resolved against the seller; except that
35
'(a) all implied warranties are excluded by expressions like 'as is', 'as they stand', 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and
36
'(b) when the buyer has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and
37
'(c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.
38
'(3) Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (Sections 2-- 718 and 2-- 719). (1953, April 6, P.L. 3, 2-- 316.)'
39
On October 2, 1959, just three days before the execution of the contract here in question, the 1954 Act was amended by the Pennsylvania Legislature, the amendment to go into effect as of January 1, 1960. The amendment removed the requirement that a disclaimer of implied warranty of fitness had to be stated specifically. As amended, the Act provided as follows:
40
'Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that 'There are no warranties which extend beyond the description on the face hereof." (Laws of Pennsylvania, Uniform Commercial Code, 2-- 316, subpar. 2)
41
Repealer and transition provisions with reference to the 1959 amendment provided:
42
'Section 10. Repealer. (1) Except as provided in this section, all acts and parts of acts are repealed in so far as they are inconsistent herewith.'
43
'Section 11. Provisions for Transition. (1) Transactions validly entered into after 12:01 A.M. on July 1, 1954, and before January 1, 1960, and which were subject to the provisions of this Act as it was in effect during such period and which would be subject to this Act as reenacted, amended and revised if they had been entered into after such effective date and the rights, duties and interests flowing from such transactions remain valid after such date and may be terminated, completed, consummated or enforced as required or permitted by this Act as reenacted, amended and revised * * *.' Act 1959, Oct. 2, P.L. 1023.
44
Counsel for appellant find no cases construing Section 11, 'Provisions for Transition', but take the position that the 1959 Act or amendment was applicable to the contract with which we are here concerned even though that contract was executed prior to January 1, 1960, the effective date of the amendment. In lieu of any judicial interpretation by the courts of Pennsylvania, appellant proffers as 'the clearest statement of the meaning of this section' the opinion of William D. Hawkland in SALES AND BULK SALES UNDER U.C.C. printed in March of 1958 for the Committee on Continuing Legal Education of the American Law Institute:
45
'Subsection 2-316(2) permits the disclaimer of implied warranties. But, under this subsection, general disclaimers found in unexpected and unbargained for language are ineffective. To be effective, the disclaimer must be conscionable (2-302)-- that is, it must be in language which tested by reasonable commercial standards, conveys to the buyer an understanding of the risks he is required to assume. This philosophy is implemented by a provision of subsection 2-316(2) to the effect that the implied warranty of merchantability can be disclaimed only by conspicious and specific language or other circumstances which protect the buyer from surprise. The seller is not required to use specific language to disclaim the warranty of fitness for the purpose, but the interests of the buyer are safeguarded by a requirement that the warranty of fitness for the purpose can be disclaimed only by a conspicuous writing.'
46
The quotation relied on is hardly a persuasive answer to the question involved; that is, whether or not the 1959 amendment was applicable to this transaction. The District Court obviously held that the 1959 amendment was not applicable to the contract which was executed October 6, 1959. Substantial support for the District Court's conclusion is found in cases determined by the Pennsylvania courts. See Sterling Acceptance Co. v. Grimes, 1961, 194 Pa.Super. 503, 168 A.2d 600, 601, wherein amendments to the Code of Pennsylvania were, as here, to become effective subsequent to the execution of the contract there in question:
47
'* * * This agreement was filed in compliance with 9-302 of the Uniform Commercial Code of April 6, 1953, P.L. 3, 12A P.S. 9-302.'1 '1. 'Numerous amendments were made to the Code by the Act of October 2, 1959, P.L. 1023, but these are not relevant to the transaction involved in this case because they became effective subsequent to such transactions.'
48
Paramount Paper Products Co. v. Lynch, 1956, 182 Pa.Super. 504, 128 A.2d 157, 158:
49
'The transaction took place in the latter part of 1953. This was subsequent to the enactment of the Commercial Code, but prior to its effective date of July 1, 1954. This case is therefore governed by the Sales Act of May 19, 1915, P.L. 543.'
50
L. & N. Sales Co. v. Stuski, 1958, 188 Pa.Super. 117, 146 A.2d 154, 157:
51
'* * * This transaction having been consummated subsequent to the enactment of the Uniform Commercial Code is therefore governed thereby. Act of 1953, April 6, P.L. 3, 12A P.S. 1-101 et seq.'
52
We think the District Court's determination that the transaction between the parties was controlled by the 1954 Code and not the 1959 amendment is supported by the foregoing opinions of the Pennsylvania courts.
53
In applying the 1954 Code and disregarding the 1959 amendment, we come to the question of whether or not the District Court reached a proper conclusion when it determined that as a matter of law there was an implied warranty herein. It is pointed out that under 2-315 if (1) the seller has reason to know any particular purpose for which the goods are acquired and (2) that the buyer is relying on the seller's skill or judgment, there is then an implied warranty that the goods shall be fit for such purpose. The evidence is conclusive of the fact that Vertol knew the particular purposes for which the helicopter was to be acquired. Vertol, in fact, suggested usages with which Atlas was not familiar, took Atlas representatives to the Gulf, introducing them to persons who might be interested in engaging their services and told such prospective customers, 'Atlas Helicopter Company has been formed and will have a ship in the Gulf within six weeks to serve the oil industry and do these things that are shown', referring to the movies, pictures, etc. Vertol issued a press release from Morton, Pennsylvania, December 2, 1959, stating:
54
'Atlas Helicopter Service, Inc., Omaha, Nebraska, yesterday took delivery of their first 15 to 19 passenger Vertol 44 transport helicopter. Using the slogan 'Serving the World from the Center of the Nation', Atlas pilots flew the helicopter from here directly to Pittsburgh to take part in the formal opening of the pation's newest hotel, The Pittsburgh Hilton.
55
'B. T. Brown, Vice President and General Manager of Atlas accepted the Vertol 44 and announced that this delivery is the start of a broad commercial utility helicopter service using Vertol tandem transports. Additional helicopters will be purchased as requirements dictate. The company plans to use the helicopter in a wide range of industry services including construction, laying of pipelines, oil exploration, transportation of offshore drilling crews, surveying, firefighting, and charter passenger service.'
56
Vertol additionally prepared a brochure for Atlas' use setting forth the particular purposes of Atlas' operations, Exhibit 5. That Vertol knew the purposes for which the helicopter was purchased by Atlas and did itself stimulate and suggest some of the purposes cannot be doubted or controverted. In fact, Vertol admits here that it knew 'the general purposes of use'.
57
That Atlas was relying on Vertol's skill and judgment is also beyond question. The uncontradicted testimony is that neither Brown nor any of the others connected with Atlas had any previous experience or knowledge relating to the operation or performance of helicopters. This lack of knowledge and experience and unfamiliarity with helicopters on the part of the Atlas representatives and the fact that they were 'uninitiated' was fully known to Vertol and the record on appeal contains no indication to the contrary. Hemberger circulated an interoffice memorandum to his superiors regarding the possible sale of the helicopter to Atlas. Therein he stated: '* * * Mr. Brown does not have previous helicopter experience * * *.' The only conclusion that could be drawn from the testimony is that Vertol knew the purposes for which Atlas was acquiring the helicopter and also knew that Atlas was relying on Vertol's skill and judgment in the transaction.
58
The next step in the conclusion that an implied warranty existed as a matter of law, and in so instructing the jury, was for the District Court to hold that under the 1954 statute there was no modification or exclusion of the implied warranty. The statute provides that the exclusion or modification 'must be in specific language' and if an ambiguity is created, it is to be resolved against the seller. This means that the disclaimer may not be merely by use of the clause disclaiming 'all warranties express or implied', such as seems to have been attempted in the written agreement. An implied warranty under the statute must be disclaimed by the most precise terms; in other words, so clear, definite and specific as to leave no doubt as to the intent of the contracting parties. The disclaimer here fails as a matter of law to comply with the statute and accordingly we find that the District Court was correct in holding the attempted disclaimer inapplicable.
59
It should be pointed out here that even if it could be held that the 1959 amendment to the statute were applicable, it would make no difference in the result in this case because, while the implied warranty could under the 1959 statute be disclaimed by the form of language used in Article VI of the contract, the 'writing must be conspicuous'. Here it is not so. It is merely in the same color and size of other type used for the other provisions and under the statutory definition of 'conspicuous' fails of its purpose.1 We accordingly must conclude that the District Court was entirely correct in holding as a matter of law that there was an implied warranty that the helicopter was fit for the purpose intended and that there was no effective disclaimer of such implied warranty.
60
Appellant also contends that Atlas' claim for breach of implied warranty is barred as a matter of law by reason of Atlas' failure to comply with the provisions of the Uniform Commercial Code, Laws of Pennsylvania, 2-607, as follows:
61
'Where a tender has been accepted
62
'(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; * * *.'
63
Atlas' amended complaint alleges that as soon as the unfitness of the 'Vertol 44' was ascertained, it notified Vertol and offered to return the helicopter but Vertol refused to accept or to refund. Specifically, it also alleges that by letter of February 6, 1961, it tendered the helicopter to Vertol and demanded the return of its money, which was refused. Appellant's answer denied notification and claimed that Atlas was guilty of laches in asserting its 'pretended causes of actions of fraud and breaches of warranty, and by failure to notify Vertol of any alleged discrepancies with reference to their aircraft and its purchase they would not be entitled to damages'.
64
The evidence indicates that following the purchase and delivery of the helicopter, Atlas began advertising and bidding for business, claiming ability to perform the tasks set forth in the movies shown by Vertol and set out in pictures by Vertol in the brochure it prepared for Atlas' use. Hemberger encouraged Atlas to give demonstrations in the Gulf area, ostensibly for the purpose of stimulating Atlas' utility business. In an interoffice memorandum, however, Hemberger indicated very clearly that his primary purpose in being in the area was to sell Vertol 44 helicopters to the oil companies and not particularly because of the 'mother-child' relationship he suggested existed between Vertol and Atlas. After reporting as to the prospects and the possibility of the sale of several helicopters to oil companies, Hemberger stated:
65
'* * * In the meantime, Atlas Helicopter Service is helping our cause tremendously by offering our equipment on a charter basis.'
66
Atlas found that, contrary to expectations and representations made to it by Vertol, it was having problems in carrying 12 men a distance of only 30 to 35 miles out into the Gulf. They found it necessary to remove two of the 14 seats so as to avoid questioning by oil rig crew members as to why they could not carry a full load of 14 passengers. In the meantime, Atlas' competitor, Petroleum Helicopter, was carrying 12-man oil rig crews 68 to 72 miles out into the Gulf with a Sikorsky S58. Atlas continued to experience difficulty in performing the tasks which Vertol said the helicopter would be able to perform.
67
William Coffee, Vertol's supervisor of service operations, Hemberger and others for Vertol encouraged and tried to assist Atlas in obtaining and then in performing work it contracted to do. One job, to transport a radio hut out to one of the California Company's production platforms, was felt to be so important to Atlas that Atlas asked Vertol to send Mr. Coffee to Louisiana to help on the job and make sure that it was done correctly. The hut weighed 2,940 pounds. Inasmuch as the movies had indicated that a Vertol helicopter could lift 3900 pounds with a half ton to spare, the Atlas people felt there should be no difficulty in moving a hut weighing 2,940 pounds. Mr. Coffee appeared for the job. First, a pilot for Atlas attempted the move, unsuccessfully. Coffee then took over but was not able to perform. On August 12, 1960, after the failure to move the hut, Coffee wrote to Hall as follows:
68
'I am satisfied everything possible was done to prepare for this operation but when it came to the actual flying, there was just simply not enough performance in the helicopter, under the existing conditions of atmosphere and weight, to safely carry the cargo sling loads.
69
'Every practical item was stripped from the helicopter to reduce the basic weight.'
70
Coffee, assuming that Hall of Atlas might be wondering why a Vertol 44 was able to carry a 4100 pound fluid end of a slush pump without apparent difficulty, as shown in the movies, told Hall:
71
'* * * I must admit we had our moments with that piece of equipment to the extent that we relied completely on the wind that was blowing on those days when the combination of temperature and dew point would not have permitted us to fly. * * * Further, we had been working with this particular load for some time and knew all its handling characteristics and margins in performance with which we could fly.'
72
When Owens of Atlas inquired of Coffee why the task could not be performed, Coffee said, 'Well, I just don't know.' Owens inquired, 'What do you mean you don't know?' Coffee replied, 'Well, the ship just won't perform.' Owens inquired why the movie showed that it would perform. Coffee answer, 'Well, you have to take those movies with a grain of salt.' 'We had our problems in making those movies.' Coffee called Hall at LaFayette, reporting the failure to lift the hut. Hall said, 'My God, you don't mean to tell me you can't lift that hut?' Coffee replied, 'No, we couldn't do it.' Hall inquired, 'Good God, Bill, you carry a 4,100 pound slush pump around with weight to spare and you can't carry this hut. How could it possibly be you can't carry that hut?' Coffee answered, 'We depended on the wind when we lifted that slush pump, and there were some other things that you wouldn't understand.'
73
In September 1960 Hall communicated with Hemberger and told him that the helicopter was being taken to Tulsa because Atlas was shutting down operation and had facilities in Tulsa to take care of the helicopter. Hall told Hemberger that conditions were impossible because of all the failures and because the helicopter would not do what it was sold to Atlas to perform. Shortly thereafter Atlas went into liquidation and O'Malley and Pedrizetti were appointed trustees. By November 1, 1960, Atlas had sustained an operating loss of $147,768.89.
74
On February 6, 1961, Atlas, through its then counsel, gave Vertol formal written notice by letter of the helicopter's inability to perform as represented, demanded that Vertol accept the return of the helicopter, refund the purchase price and compensate Atlas for additional damages necessitated by the failure of the helicopter to perform as represented. It would seem perfectly obvious from all of the foregoing that Vertol was completely aware of the difficulties Atlas had in trying to get the helicopter to perform in accordance with Vertol's representations so that it could have been no surprise to Vertol when they received Atlas' letter with the demand dated February 6, 1961.
75
Comment which follows the notice statute, 2-607, supra, is enlightening:
76
'UNIFORM COMMERCIAL CODE COMMENT.'
77
'4. The time of notification is to be determined by applying commercial standards to a merchant buyer. 'A reasonable time' for notification from a retail consumer is to be judged by different standards so that in his case it will be extended, for the rule of requiring notification is designed to defeat commercial bad faith, not to deprive a good faith consumer of his remedy.
78
'The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched. There is no reason to require that the notification which saves the buyer's rights under this section must include a clear statement of all the objections that will be relied on by the buyer, as under the section covering statements of defects upon rejection (Section 2-- 605). Nor is there reason for requiring the notification to be a claim for damages or of any threatened litigation or other resort to a remedy. The notification which saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiation.' Pa.Stat.Ann., Title 12A, 2-- 607, Comment 4.
79
With reference to the attention of Hemberger and Coffee being called to the fact that the helicopter was not performing in accordance with representations, the Pennsylvania statutes provide:
80
'GENERAL DEFINITIONS'
81
'(27) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence.' Pa.Stat.Ann., Title 12A, 1-201.
82
There is sufficient substantial evidence in the record from which the jury could well conclude that notice to Vertol and Vertol's representatives had been given by Atlas within a reasonable time and it can only be concluded here that the jury so found. In addition thereto, it is pointed out and we recognize that appellant, having taken no exception to the failure of the trial court to charge on the notice issue, having offered no request on the point, and having failed to raise the issue in the court below, may not here for the first time attempt to take advantage of the alleged error. Ward v. Brown, 10 Cir., 1962, 301 F.2d 445, 447; Carter Carburetor Corp. v. Riley, 8 Cir., 1951, 186 F.2d 148, 150; Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 8 Cir., 1940, 112 F.2d 101, 106; and F. W. Woolworth Co. v. Carriker, 8 Cir., 1939, 107 F.2d 689, 692.
Appellant also contends:
83
' In the light of the determination by the jury that Vertol was not guilty of fraud, misrepresentation or failure to disclose, the existence of any implied warranty of fitness for a particular purpose would be dependent on the disclosures that were made and, under the circumstances of this case, no implied warranty of performance capability was made of the Vertol 44-B airliner if it was to be kept in its delivered configuration.'
84
Appellant argues that 'the basic issue was whether or not Vertol had disclosed this limitation and the remedy-- to-wit: modification and/or stripping'. It argues that if the disclosure was made, there could be no fraud and
85
'* * * It is the position of the Appellant Boeing (Vertol) that this basic issue was an 'ultimate fact' and that the determination of the jury that Vertol was not in any way guilty of fraud determined that the disclosures were made.'
86
The argument is without foundation. The interrogatory merely asked, 'Is your verdict for the plaintiff based on its claim of fraud or misrepresentation?', to which the jury answered, 'No.' It did not determine that Vertol did disclose to Atlas the helicopter's limitations and the remedy therefor. Appellant's argument is no more than its saying that because it introduced some evidence to the effect that there was a disclosure of the helicopter's limitations and what the remedy therefor was, that the jury found the disclosure had been made. Whether or not there was a disclosure was a question of fact for determination by the jury. By its verdict the jury apparently found that Vertol did not disclose. There is substantial evidence to support such finding and it is not inconsistent with the jury's answer to interrogatory No. 2, which merely reported that its verdict was not based upon the claim of fraud or misrepresentation. We find no error therein.
Appellant's further contention is:
87
'The Court erred in failing to instruct the jury on what constituted a breach of implied warranty and in advising the jury that the warranty was not dependent on the agreement of the parties.'
88
Judge Larson instructed the jury as follows:
89
'The main questions of fact to be determined as I see them are, as to the claim of breach of implied warranty:
90
'1. Was the helicopter fit for the purpose for which it was intended?
91
'2. Did the plaintiff in purchasing the helicopter rely on the defendant's skill or judgment?
92
'3. If the plaintiff relied on the defendant's skill or judgment in the purchase of the helicopter, was there a breach of the implied warranty of fitness for the purpose?'4. If there was reliance and if there was a breach, was this the proximate cause of the claimed damage of plaintiff?'
The court also instructed:
93
'In the sale of such an article as a helicopter there is implied in law a warranty that the helicopter is reasonably fit for the purpose for which it is intended. As stated in the statute which I have just read to you, it must also appear that the buyer relied on the seller's skill or judgment.
94
'While there was such an implied warranty as a matter of law by the defendant, this fact does not in and of itself lead to a right in plaintiffs to recover. It must be established that there was a breach of such implied warranty which proximately caused plaintiffs' damage. You may take into consideration the nature of the product itself, the intended use thereof, and by whom and under what circumstances the defendant might reasonably anticipate the product might be used and operated.
95
'If you should determine that there was not such a breach of implied warranty, that would end your consideration of this part of the case. If you determine that there was such a breach of warranty, you will then determine whether such breach was a proximate cause of plaintiffs' damage.
96
'The warranty that I have been talking about is implied in law and does not depend upon the agreement-- written or oral-- of the parties. I have charged you as a matter of law that there was such an implied warranty here.
97
'I charge you also that the reference to Warranty in Article 6 of the contract of sale of the helicopter is not sufficient as a matter of law to disclaim or exclude the implied warranty of fitness for the purpose, and you will therefore disregard any claim or reference to such disclaimer or exclusion.
98
'You should understand that the claim of fraudulent representation which I will later refer to is not involved in the warranty part of the case.'
99
Appellant's statement that the court erred in failing to instruct the jury on what constituted a breach of implied warranty is obviously incorrect. When this was pointed out in the appellees' brief, the appellant in a reply brief claimed inconsistency in the court's instruction, in that the court charged that the main questions of fact to be determined as to the claim of breach of implied warranty included the question of whether or not the plaintiffs (Atlas) purchased the helicopter in reliance on appellant's skill or judgment, whereas the court determined that as a matter of law there was an implied warranty, which conclusion would obviously include that factor. If this apparent contradiction was error, it could only be classified as harmless and utterly without prejudice to the appellant and therefore not reversible under Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A. If the jury disregarded the fact that, after giving the complained-of instruction, the court then told them that it had determined as a matter of law that there was an implied warranty and proceeded to determine as a matter of fact that Atlas in purchasing the helicopter did rely on Vertol's skill and judgment, then Vertol comes out the same door wherein it went. In other words, the jury, unnecessarily but actually, did find as a fact something which the court had already determined as a matter of law. Appellant cannot be heard to complain of such a situation, which might well have reacted to its advantage by the jury determining as a matter of fact that there was no such reliance and hence there could be no recovery.
100
It should be pointed out, additionally, that the record does not disclose that the appellant took effective exception to the instruction of which it now complains. Appellant excepted, '* * * on the ground that it is incomplete as to a statement of the law of implied warranty'. The broad, general terms of such an exception are insufficient to direct the trial court's attention to the alleged error and are insufficient to preserve such alleged error on appeal. Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., specifically provides that:
101
'* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.'
102
Mr. Justice Whittaker, when a member of this court, said in Apperwhite v. Illinois Central R. Co., 8 Cir., 1957, 239 F.2d 306, 310:
103
'* * * the objection made to the charge, that it was 'not the true law', did not comply with Rule 51 of Fed.Rules Civ.Proc., and, in reality, the point is not properly preserved for our review.'
104
We find no error on this point.
105
We think the above principles of Rule 51 and Apperwhite apply also to appellant's contention that the trial court erred in its instructions to the jury as to the measure of damages for the alleged breach of warranty. Specifically, appellant complains that the court 'instructed the jury without reference to the Uniform Commercial Code of Pennsylvania', and that it improperly stated the following in its instructions:
106
'The particular damages which may have resulted need not have been contemplated or foreseeable by defendant.'
107
In support of its position, appellant cites Keystone Diesel Engine Co. v. Irwin, 411 Pa. 222, 191 A.2d 376. The pertinent provisions on damages for breach of warranty under the Uniform Commercial Code as enacted by Pennsylvania are contained in 2-714 and 2-715, as set out in the margin.2 The parties disagree as to whether appellant properly objected to the court's charge on this point so as not to be precluded by Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., supra, from assigning this issue as error on appeal. Appellant's only objection to the court's instruction on the measure of damages was stated as follows:
108
'The defendant respectfully excepts to the Court's instruction with reference to damages insofar as it applies to implied warranty in view of the plaintiff's; (defendant's?) position that implied warranty is not a part of this case.'
109
Such a general exception is clearly insufficient to meet the requirements of Rule 51. Holliday v. Great Atlantic & Pacific Tea Co., 8 Cir., 1958, 256 F.2d 297, 301; Carver v. Tanner, 8 Cir., 1958, 252 F.2d 26, 31; Apperwhite v. Illinois Central R. Co., supra; Chicago Great Western Ry. Co. v. Casura, 8 Cir., 1956, 234 F.2d 441, 445; Hansen v. St. Joseph Fuel Oil & Mfg. Co., 8 Cir., 1950, 181 F.2d 880, 886. But even if this point were properly before the court, we see no substantial difference between the court's further charge that
110
'The damages recoverable are those which are a natural and proximate result of the claimed breach of warranty or fraud. The particular damages which may have resulted need not have been contemplated or foreseeable by defendant.
111
'The rule as to measure of damages followed is sometimes referred to as the 'out-of-pocket' rule of damages. This is the difference in value of what the plaintiff was induced to part with and the value of what the plaintiff got in the transaction'
112
and the statutory language that 'the measure of damages for breach of warranty is the difference * * * between the value of the goods accepted and the value they would have had if they had been as warranted * * *.' The jury's verdict of $180,295.23 is substantially less than the amount Atlas paid Vertol for the helicopter and there is testimony in the record that the helicopter had no value to Atlas for the purpose for which it was intended at the time of delivery.
113
Appellant also claims that the court erred with reference to the admission of Plaintiffs' Exhibit 116. Plaintiffs' Exhibit 116 was a summary statement prepared by V. J. Pedrizetti, a Certified Public Accountant who was one of the trustees appointed in the dissolution of Atlas Helicopter Service, Inc. The exhibit summarized the contents of voluminous books of account and records pertaining to the financial transactions of Atlas, which records were received in evidence and designated as Exhibits 115, 115A, 115B and 117. Attached to Exhibit 116 was an affidavit of one Scherer which dealt with the obligations under a lease between Transport Leasing Corporation and Atlas. Exhibit 116 was received over objection. At the end of the trial, Atlas moved to amend the complaint to conform to the proof with respect to the damage aspect as outlined in Plaintiffs' Exhibit 116. At that time objection was again made on the ground that Exhibit 116 was based on the hearsay affidavit of Scherer, who did not testify. It was pointed out to the court that all of the matters contained within the affidavit, except the specific amount of attorneys' fees, were covered by the lease between the parties, which lease was offered and received in evidence as Exhibit 117, and that the remainder of the exhibit was merely a reflection of books and records which were in evidence and available to the appellant. The court thereupon struck Scherer's affidavit from the exhibit. We find no error in the receipt of the exhibit.
114
Appellant here also complains of the trial court's refusal to admit into evidence what was designated as Defendant's Exhibit EEEEE. The exhibit was a balance calculation weight accountability list and loading example. It was prepared by D. R. Watson of Vertol's engineering department. The exhibit was for use by Sloan of Vertol in his discussions with Brown of Atlas and was later offered in evidence at the trial to corroborate the testimony of Sloan, who stated that he used the technical information contained in the exhibit during his discussions with Brown but could not 'swear that (he) showed that particular document to Mr. Brown'. Watson was not a witness at the trial. There was no error in refusing to admit the exhibit. Generally, evidence is not admissible to sustain the credibility of an unimpeached witness, and oral or written statements or acts of a witness out of court which support his testimony adduced in court are inadmissible as self-serving and hearsay. See 2 CONRAD, MODERN TRIAL EVIDENCE, 1155 and cases cited therein. Whether testimony which is only corroborative should be received is a matter largely resting within the discretion of the trial court. Harvey v. United States, 2 Cir., 1928, 23 F.2d 561, 566. Even if it could be determined that the refusal to admit the exhibit constitutes error, it would be harmless error within the purview of Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A., and would be further alleviated by the fact that the contents of the exhibit were substantially testified to by the witness Sloan.
115
We have carefully considered this voluminous record and find no substantial error. Accordingly, case No. 17,266 will be in all things affirmed and case No. 17,267 will be dismissed.
1
The Act provided:
'GENERAL DEFINITIONS.'
'(10) 'Conspicuous': A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NON-NEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is 'conspicuous' if it is in larger or other contrasting type or color. But in a telegram any stated term is 'conspicuous'. Whether a term or clause is 'conspicuous' or not is for decision by the court.' Pa.Stat.Ann. tit. 12A, 1-201.
2
'2-714. Buyer's Damages for Breach In Regard to Accepted Goods
'(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
'(3) In a proper case any incidental and consequential damages under the next section may also be recovered.'
'2-715. Buyer's Incidental and Consequential Damages
'(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
'(2) Consequential damages resulting from the seller's breach include
'(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
'(b) injury to person or property proximately resulting from any breach of warranty.'
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