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641 F.Supp.2d 7 (2009)
UNITED STATES of America, Plaintiff,
v.
8 GILCREASE LANE, Quincy Florida 32351, et al., Defendants.
Civil Action No. 08-1345 (RMC).
United States District Court, District of Columbia.
August 31, 2009.
William Rakestraw Cowden, Vasu B. Muthyala, U.S. Attorney's Office, Washington, DC, for Plaintiff.
MEMORANDUM OPINION
ROSEMARY M. COLLYER, District Judge.
In this civil forfeiture action, various movants have filed motions styled, "Motion to Intervene and Petition to Return Wrongfully Confiscated Funds." These movants seek the return to them of funds seized from bank accounts that were, before their seizure, under the control of operators of Ad Surf Daily ("ASD") and Golden Panda Ad Builder ("GP"). The Government alleges that ASD and GP were internet Ponzi schemes that defrauded over 100,000 people. Movants here are not the first to attempt to intervene in this case and seek the return of funds. The Court addressed previous motions to intervene in a July 16, 2009, 641 F.Supp.2d 1 (D.D.C.2009), Memorandum Opinion, wherein it found that the motions to intervene must be denied because the movants did not have a cognizable interest in the defendant properties, and therefore did not have standing to contest this forfeiture action. See Dkt. # 72; 18 U.S.C. § 983(d)(6)(B)(i) ("the term `owner' does not include (i) a person with only a general unsecured interest in, or claim against, the property or estate of another. . . .").
The movants here are in the same position. Accordingly, for the reasons set forth in the Court's July 16, 2009, Memorandum Opinion [Dkt. # 72], the motions to intervene and petition to return wrongfully confiscated funds by Jacqueline Poggioreale, Joseph Poggioreale, Lisa Koehler, Carol L. Rose, Bruce Disner, Pablo G. Camus, Todd C. Disner, Georgette Stille, Alfredo Perez-Cappelli, and Gallagher and Sons, Inc. [Dkt. ## 84-88 and 90-94] will *8 be denied. A memorializing order accompanies this Memorandum Opinion.
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635 F.Supp.2d 783 (2009)
CITY OF ST. CLAIR SHORES GENERAL EMPLOYEES RETIREMENT SYSTEM, On behalf of Itself and All Others Similarly Situated, and Derivatively On behalf of Inland Western Retail Real Estate Trust, Inc., Plaintiffs,
v.
INLAND WESTERN RETAIL REAL ESTATE TRUST, INC. Inland Western Real Estate Corporation; the Inland Group, Inc., Inland Western Retail Real Estate Advisory Services, Inc., Inland Southwest Management Corp., Inland Northwest Management Corp., Inland Western Management Corp., Robert D. Parks, Brenda G. Gujral, Frank A, Catalano, Jr., Kenneth *784 H. Beard, Paul R. Gauvreau, Gerald M. Gorski, Barbara A. Murphy, Steven P. Grimes, Daniel A. Goodwin, Robert A. Baum, G. Joseph Consenza, KPMG LLP, and William Blair & Company, L.L.C., Defendants.
No. 07 C 6174.
United States District Court, N.D. Illinois, Eastern Division.
April 1, 2009.
*787 Adam J. Levitt, Lawrence P. Kolker, Wolf, Haldenstein, Adler, Freeman & Herz LLC, Chicago, IL, Alexander H. Schmidt, Alexandra R. Silverberg, Wolf Haldenstein Adler Freeman & Herz LLP, Aya Bouchedid, Joseph Sternberg, Lawrence A. Sucharow, Labaton Sucharow LLP, New York, NY, Kimberly M. Donaldson, Kimberly L. Kimmel, Nicholas E Chimicles, Chimicles & Tikellis LLP, Haverford, PA, for Plaintiffs.
James L. Thompson, Anthony Charles Porcelli, Charles B. Sklarsky, Jerold Sherwin Solovy, Jenner & Block LLP, Joseph Edward Collins, Samuel Bayard Isaacson, DLA Piper US LLP IL, Courtney Ann Rosen, Richard Bradshaw Kapnick, Scott R. Rauscher, Sidley Austin LLP, Harold C. Hirshman, Sonnenschein, Nath & Rosenthal, LLP, James C. Schroeder, John Joseph Tharp, Jr., Mayer Brown LLP, Jonathan C. Medow, Perkins Coie LLP, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER[1]
ROBERT W. GETTLEMAN, District Judge.
BACKGROUND
The Parties
Plaintiffs are the City of St. Clair Shores General Employees Retirement System and Madison Investment Trust, on behalf of a class of similarly situated Inland REIT Shareholders ("Shareholders"), who received and were entitled to vote on the proposals contained in Inland REIT's September 10, 2007, proxy statement (the "Proxy"). The Proxy solicited Shareholders' approval for Inland REIT to acquire affiliated entities that performed advisory and management services for Inland REIT (the "Internalization") in exchange for Inland REIT stock valued at $375 million.
Inland REIT is a Maryland corporation with its principal executive offices in Oak Brook, Illinois. The REIT is primarily engaged in the acquisition and ownership of commercial real estate properties, most of which are multi-tenant shopping centers located west of the Mississippi River. As a public unlisted real estate investment trust ("REIT"), Inland REIT is required to register with the Securities and Exchange Commission ("SEC"), entitled to sell to the investing public rather than only to "qualified investors," and is required to file reports with the SEC. Inland REIT shares are unlisted because its securities are not listed on a national stock exchange.
Prior to consummation of the Internalization, Inland REIT had no direct employees and relied on Inland Western Retail Real Estate Advisory Services, Inc. (the "Advisor") and three property management companies (the "Property Managers") to conduct substantially all of its business. The sole purpose of the Advisor, an Illinois corporation formed in 2003, was to serve as the business manager and advisor to Inland REIT. The Advisor was a wholly-owned subsidiary of Inland Real Estate Investment Corporation (the "Sponsor"), which had formed Inland REIT in 2003. The Sponsor is wholly owned by the Inland Group, Inc. (the "Inland Group"). The Inland Group, also based in Oak Brook, Illinois, is a group of companies dealing in real estate-related businesses and controlled by defendants Daniel Goodwin, Robert D. Parks, Robert H. Baum, G. Joseph Cosenza, and Brenda G. Gujral.
*788 The three Property Managers include Inland Southwest Management Corporation, Inland Northwest Management Corporation, and Inland Western Management Corporation, all of which were incorporated in Delaware in 2003, based in Oak Brook, Illinois, and, prior to consummation of the Internalization, owned by defendants Parks, Goodwin, Baum, Cosenza, Gujral, and Grimes. The Property Managers provided Inland REIT with property management services under the terms of separate agreements designated for each property.
The Advisor and Property Managers were acquired by Inland REIT in the Internalization in exchange for consideration valued at approximately $375 million, comprised of 37,500,000 shares of Inland REIT's common stock, representing 7.7% of its total shares outstanding (the "Internalization Consideration").
Defendant KPMG LLP ("KPMG") is a New York-based accounting firm and the independent auditor for Inland REIT, the Advisor, the Property Managers, the Sponsor, and the Inland Group. Defendant William Blair & Company, L.L.C. ("William Blair") is a Chicago-based investment firm that provided an oral and written fairness opinion (the "Fairness Opinion"), which was incorporated into the Proxy, stating that the Internalization Consideration to be paid by Inland REIT was financially fair to Inland REIT and its shareholders.
The Amended Complaint names eleven individuals as defendants (the "Individual Defendants"). Defendants Daniel Goodwin, Chairman and President of the Inland Group, Robert H. Baum, Vice Chairman and Executive Vice President-General Counsel of the Inland Group, G. Joseph Cosenza, a Director and Vice Chairman of the Inland Group, Brenda G. Gujral, Chief Executive Officer of Inland REIT and a longtime Board member of Inland REIT, and Steven P. Grimes, Treasurer and Principal Financial Officer of Inland REIT, collectively profited hundreds of millions of dollars from the Internalization. Defendants Gujral, Robert D. Parks, Frank A. Catalano, Jr., Kenneth H. Beard, Paul R. Gauvreau, Gerald M. Gorski, and Barbara A. Murphy were members of the Board of Directors of Inland REIT (the "Director Defendants"). The latter fourdefendants Beard, Gauvreau, Gorski, and Murphywere deemed by the Board to be "independent" directors and appointed to serve on a special committee formed to consider the Internalization and its alternatives (the "Special Committee").
The Amended Complaint
Plaintiffs' seven count amended class action complaint alleges that defendants breached their contractual and common law fiduciary duties owed to the Shareholders and Inland REIT, and secured Shareholder approval of a self-dealing internalization that greatly overvalued the Advisor and Property Managers by issuing the Proxy, which was materially false and misleading. Specifically, the Amended Complaint alleges: a class action claim against Inland REIT, the Advisor, the Property Managers, William Blair, KPMG, and the Individual Defendants asserting a violation of § 14(a) of the Securities Exchange Act, 15 U.S.C. § 78n(a), and Rule 14a-9 promulgated thereunder, 17 C.F.R. § 240.14a-9, (Count I); a class action claim against the Advisor, the Property Managers, the Sponsor, the Inland Group, and the Individual Defendants asserting violations of § 20(a) of the Securities Exchange Act, 15 U.S.C. § 78t(a), (Count II); a class action claim against the Advisor, the Property Managers, the Sponsor, the Inland Group, and the Individual Defendants asserting a breach of fiduciary duty (Count III); a class action claim against the Advisor, the Property Managers, the Sponsor, the Inland Group, the Individual *789 Defendants, KPMG, and William Blair asserting the aiding and abetting of the breach of fiduciary duty (Count IV); a shareholders' derivative claim against the Advisor, the Property Managers, the Sponsor, the Inland Group, and the Individual Defendants asserting a breach of fiduciary duty (Count V); a shareholders' derivative claim against the Advisor, the Property Managers, the Sponsor, the Inland Group, and defendants Goodwin, Parks, Baum, Cosenza, Grimes, and Gujral asserting unjust enrichment (Count VI); and a shareholders' derivative claim against the Advisor, the Property Managers, the Sponsor, the Inland Group, and defendants Goodwin, Parks, Baum, Cosenza, Grimes, and Gujral asserting breach of contract (Count VII).
Motion to Dismiss
Defendants have moved to dismiss the amended complaint. They argue that Counts I and II fail to meet the heightened pleading standards set forth in the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4(b), (the "PLSRA"). Defendants further argue that Counts III through VII should be dismissed because plaintiffs lack standing to assert their common law claims. Specifically, they argue that plaintiffs fail to meet the prerequisites of the demand futility exception under Maryland law to state a derivative claim, or to plead particularized facts to overcome the protections of the Business Judgment Rule. Alternatively, defendants argue that plaintiffs' common law contract claims (Counts III through VII) should be dismissed for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
DISCUSSION
I. Legal Standard
The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In analyzing the motion, the court must accept the well-pleaded allegations as true, and view those allegations in the light most favorable to plaintiff. McMillan v. Collection Professionals, Inc., 455 F.3d 754, 758 (7th Cir.2006). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do. . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965.
II. Securities Exchange Act Claims (Counts I & II)
Plaintiffs allege that defendants prepared and disseminated a materially false and misleading Proxy in violation of Sections 14(a) and 20(a) of the Exchange Act. Defendants argue that plaintiffs' § 14(a) claim fails as a matter of law because plaintiffs do not offer specific facts creating a strong inference of negligence.
A. Section 14(a)Count I
Section 14(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 14a-9 promulgated thereunder prohibit the solicitation of proxy statements:
containing any statement which is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy *790 for the same meeting or subject matter which has become false or misleading.
17 C.F.R. § 240.14a-9(a); 15 U.S.C. § 78n(a). To state a claim under 14(a), a plaintiff must allege that: (1) the proxy statement contained a material misstatement or omission; which (2) caused plaintiff's injury; and (3) that the proxy solicitation itself, rather than the particular defect in the solicitation materials, was an essential link in the accomplishment of the transaction. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384-85, 90 S.Ct. 616, 621-22, 24 L.Ed.2d 593, 602 (1970). "An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote." TSC Indus. v. Northway, 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757, 766 (1976). In other words, a fact is material if, "under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder." Id. (emphasis added).
1. Private Securities Litigation Reform Act Pleading Requirements
As a preliminary matter, the parties dispute whether the Private Securities Litigation Reform Act (the "PLSRA"), 15 U.S.C. § 78u-4, applies to plaintiff's Section 14(a) and Rule 14a-9 claims. Plaintiff argues that the heightened pleading standards of the PSLRA do not apply to § 14(a) proxy claims and that only a showing of negligence is required at the pleading stage. Defendants counter that there is no special § 14 "carve-out" from the PLSRA's requirements and that the PSLRA applies to all § 14(a) claims regardless of whether a claim alleges fraud or negligence.
The PSLRA establishes heightened pleading standards in securities cases where there are allegations of false or misleading statements or omissions of material fact. The PSLRA provides in relevant part:
In any private action arising under this title . . . in which plaintiff alleges that the defendant
(A) made an untrue statement of a material fact; or
(B) omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances in which they were made, not misleading;
the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief the complaint shall state with particularity all facts on which that belief is formed.
15 U.S.C. § 78u-4(b)(1).
In addition, the PSLRA requires that where "the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind," the complaint must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2). A strong inference is not "merely plausible or reasonable," but must be "cogent and compelling" as compared to other explanations which may be inferred from the facts alleged. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 308, 127 S.Ct. 2499, 2504, 168 L.Ed.2d 179, 188 (2007).
The Seventh Circuit recently addressed the applicability of the PSLRA to § 14(a) actions alleging negligence, holding that the PSLRA is applicable to § 14(a) claims, but that it does not require the complaint to state "with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." Beck v. Dobrowski, 559 F.3d 680, 2009 WL 723172, *1 (7th Cir.2009). "[A] proxy solicitation *791 that contains a misleading misrepresentation or omission violates the section even if the issuer believed in perfect good faith that there was nothing misleading in the proxy materials." Id. Because there is no required state of mind for a violation of § 14(a), plaintiffs need not plead particular facts giving rise to an inference that is "cogent and at least as compelling as any opposing inference" when alleging negligent misrepresentation or omission in a proxy statement.[2]Id.; Tellabs, 127 S.Ct. at 2505.
2. Adequacy of Plaintiffs' Pleading
Plaintiffs' general allegations in the amended complaint assert that defendants' negligent misrepresentations and omissions of material facts rendered the Proxy false and misleading, defendant's negligence caused plaintiffs injury, and the Proxy solicitation itself was an essential link in the transaction. Specifically, plaintiffs allege: (1) the Advisor's financial statements understated expenses; (2) the Property Managers' financial statements understated expenses; (3) the Proxy contained materially false and misleading statements about the fairness of the consideration paid for the Internalization; (4) the Property Managers' financial statements reported inflated fees; (5) the Proxy contained materially false and misleading statements about the purchase options; (6) the independent auditors' reports were materially false and misleading; (7) the Fairness Opinion was materially false and misleading; (8) the Proxy failed to disclose strategic alternatives to the Internalization; and (9) the Proxy failed to disclose material facts about the Advisor's and the Property Managers' past performances.
At issue is whether plaintiffs' pleadings are sufficient to plead a 14(a) claim under the PSLRA.
(1)-(3) The Advisor's and the Property Manager's Expenses; Fairness of Internalization Consideration
In the Amended Complaint, which contains 351 paragraphs and 117 pages, plaintiffs allege that the Advisor's financial statements included in the Proxy failed to report expenses, which inflated the financial performance and value of both entities in the Internalization. According to plaintiffs, the Advisor's financial statements are misleading because they failed to reflect any amount of salary and benefits expenses, outside of those directly reimbursed by Inland REIT, which would have been necessary for the Advisor to carry out its day-to-day operations. Plaintiffs also allege that the Advisor's financial statements omitted general and administrative reimbursements from Inland REIT totaling $9.4 million over a three year period. As a result of such omissions, the financial statements reflected earnings before interest, taxes, depreciation, and amortization ("EBITDA") for the Advisor that were nearly 100% of its total revenuesa level of operating efficiency that is highly improbable.
In addition, plaintiffs allege that the Advisor's financial statements were false because they violated aspects of generally accepted accounting practices ("GAAP") by failing to disclose details of all related *792 party transactions between or among Inland REIT, the Advisor, and the Property Managers, including disclosure of expense allocations, payments of salaries, and service agreements. Plaintiffs allege that the Property Managers' financial statements failed to report expenses at the level necessary to provide services to more than 300 properties and, as a result, the Property Managers reported an EBITDA of 60% of Total Revenues. Inland REIT paid the Property Managers approximately $30 million in Property Management Fees in 2006 and $20.7 million in fees in 2005. The Property Managers retained most of the responsibilities attached to these fees because less than $1.5 million total was paid to subcontractors in 2005-2006. Plaintiffs argue that all of the defendants understood and knew that the Property Managers failed to account for or record necessary expenses to fulfill these responsibilities, and that the financial statements included in the Proxy and used to calculate the Internalization Consideration were not reflective of the true operating and financial performance of the Property Managers. Plaintiffs contend that these omissions were material, should have been included in the Proxy, and caused financial injury to the plaintiffs.
Moreover, plaintiffs allege that statements in the Proxy concerning the value of the Advisor and Property Managers, the fairness of the Internalization Consideration, and the fairness of the Internalization were materially false and misleading because they were based on the inflated EBITDAs. Plaintiffs argue that Shareholders relied on these misleading statements when considering the Internalization and approved the transaction based on the misinformation, resulting in financial injury to themselves and the Shareholders.
Plaintiffs' theories regarding the Advisor's and Property Manager's financial statements and fairness of the Internalization Consideration are obviously limited by the information available at the pleading stage. However, based on this limited information, the court finds that plaintiffs' allegations sufficiently identify the misleading statements, articulate the reasons why the statements are misleading, and state the facts upon which plaintiffs' knowledge or belief is based. Accordingly, defendants' motion to dismiss as to these issues is denied.
(4) The Property Managers' Fees
Plaintiffs allege that the Property Managers' financial statements included in the Proxy failed to report the systematic overcharging of fees to Inland REIT, which misled Shareholders about the actual value of the Property Managers. Specifically, the Amended Complaint alleges that payment of a 4.5% Property Management Fee was in excess of what the Property Managers were contractually entitled to receive, and that this systematic overcharging of fees to Inland REIT inflated the amount of Internalization Consideration defendants received.
Although there is disagreement about the effect of the information on the Shareholders, the defendants and plaintiffs agree that the financial statements included in the Proxy materials accurately reflect the fees paid by Inland REIT to the Property Managers. Accordingly, plaintiffs have failed to state a § 14(a) claim as to this issue.
(5) Purchase Options
Plaintiffs allege that Inland REIT had purchase options, due to ripen in 2008, to acquire the businesses and assets of the Advisor and Property Managers in exchange for approximately 54.1 million shares of Inland REIT stock. According to plaintiffs, defendants included a statement in the Proxy explaining to Shareholders *793 that the Board had decided not to pursue these options because of the $541 million price tag. Plaintiffs further allege that defendants improperly calculated this amount because they relied on false and misleading financial statements and old data that inflated the revenue and income of the Advisor and Property Managers. Plaintiffs argue that, contrary to the Proxy statements, the purchase options in fact presented a better deal than both the $541 million projected by the Board, or the $375 million Internalization Consideration recommended in the Proxy. Defendants' only argument on this point is that plaintiffs fail to explicitly state in the pleadings that these statements were material.
Although plaintiffs do not allege materiality, the court is unwilling to grant the motion to dismiss as to this issue based on this technicality. Viewing the allegations in the light most favorable to plaintiffs, the omissions and misstatements, if true, would be material to Shareholders in their evaluation of the Proxy recommendation. Therefore, defendants' motion to dismiss as to this issue is denied.
(6)-(7) Independent Auditor's Reports and Fairness Opinion
Defendants KPMG and William Blair argue respectively that plaintiffs have failed to adequately plead their 14(a) claim as to the auditor's reports and the Fairness Opinion.
"Statements of opinion or belief are actionable only if they are both objectively and subjectively false." In re JPMorgan Chase, 2007 WL 4531794 at *31 (citing Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1095, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991)). Plaintiffs must plead with particularity to allege the falsity of a statement of opinion. Id. "A fairness opinion is objectively false if the subject matter of the opinion is not, in fact, fair, and is subjectively false if the speaker does not, in fact, believe the subject matter of the opinion to be fair." Id. (quoting Shurkin v. Golden State Vintners, Inc., 2005 WL 1926620 (N.D.Cal. Aug.10, 2005)).
Auditor's Reports
In the instant case, defendant KPMG was hired by Inland REIT and its affiliates to provide two independent auditor reports of the Advisor and Property Managers for inclusion in the Proxy. Plaintiff's allege that KPMG failed to heed numerous red flags in the financial statements of the Advisor and Property Managers, and that the resulting reports were devoid of credibility or reliability. KPMG's reports allegedly opined that the Advisor and Property Managers' financial statements were presented fairly, and that their financial positions and the results of their operations and cash flows for the relevant years were "in conformity with U.S. generally accepted accounting principles." According to the pleading, inclusion of these KPMG's reports in the Proxy misled Shareholders into believing that the Internalization Consideration was supported by independent auditors. Defendants argue that the pleadings fall short of meeting the "subjective" prong of the Virginia Bankshares test as to KPMG because plaintiffs' do not actually allege that KPMG subjectively believed that its opinions were false.
Although plaintiffs do not explicitly plead scienter on the part of KPMG, they plead numerous particularized factsso-called "red flags" in the pertinent financial statementsthat strongly suggest that KPMG acted knowingly, or at least recklessly, in issuing its auditor reports. The auditor reports were especially important to Shareholders in evaluating the Proxy because the REIT was not a publicly traded entity, the financial statements of the Advisor and Property Managers were not publicly available, and investors had little outside information with which to evaluate the proposed Internalization. Subjective *794 knowledge is difficult to plead and even more difficult to prove without the benefit of discovery. Given the importance of the auditors' reports to the Proxy and the numerous particularized facts that plaintiffs have included in their pleading, the court declines to dismiss Count I as to this issue at this stage of the proceedings. Therefore, the court denies KPMG's motion to dismiss for failure to state a 14(a) claim as to this issue.
Fairness Opinion
The Proxy also included a Fairness Opinion issued by defendant William Blair, which concluded that the Internalization Consideration was financially fair to Inland REIT. Plaintiffs argue that the inclusion of the Fairness Opinion in the Proxy mislead shareholders by suggesting that a purportedly independent entity had conducted an assessment and approval of the Internalization. Instead, according to plaintiffs, the Fairness Opinion relied on faulty information without independent verification, omitted material facts, was devoid of credibility and reliability, and was fundamentally misleading.[3] Despite defendants' arguments to the contrary, the pleadings provide sufficient particularized facts to support a § 14(a) claim as to the fairness opinion.
Among the numerous arguments in its motion to dismiss plaintiffs' § 14(a) claim, William Blair argues that the Fairness Opinion was properly based on data provided by Inland REIT, and that it did not have a contractual duty to research the accuracy of these numbers before issuing its opinion. William Blair argues further that its opinion was provided solely to the Special Committee and the Inland REIT Board of Directors, not the shareholders. Finally, it claims that the inclusion of the Fairness Opinion in the Proxy is not legally actionable under § 14 because William Blair did not solicit shareholder approval of the Internalization. The Proxy, however, states that the Fairness Opinion "related. . . to the fairness from a financial point of view, to us [the directors] and our stockholders of the consideration to be paid by us in the merger," and goes on to state that the Fairness Opinion does not constitute a "recommendation."
The bottom line is that plaintiffs have alleged that William Blair issued a misleading Fairness Opinion on the financial fairness of the Internalization, the Opinion was foreseeably included in the Proxy, and the Shareholders relied on the Opinion in deciding how to vote on the Internalization. They allege that the Fairness Opinion was based on the inflated financial statements and William Blair's examination of purportedly comparable transactions. Plaintiffs further allege that William Blair was intimately involved in the preparations leading up to the Internalization, had knowledge of the Advisor's and Property Managers' businesses, was familiar with "red flags" in the numbers, and was in part compensated on the contingency that the Internalization was consummated. This is enough, at the pleading stage, to support a § 14(a) claim against William Blair. See In re Reliance Securities Litigation, 135 F.Supp.2d 480, 513 (D.Del.2001). Defendant William Blair's motion to dismiss is denied.
(8) Strategic Alternatives to the Internalization
Plaintiffs allege that the Proxy failed to name or discuss strategic alternatives to the Internalization considered by the Special Committee convened to assess the Internalization proposal. Plaintiffs argue that without information about the possible *795 negative impact of the Internalization and potential alternative, Shareholders were left without material information important in deciding how to vote. Defendants contend that the Proxy adequately discussed strategic alternatives, including the option to maintain the status quo and obtain services providers to replace the Advisor and Property Managers.
Section 14(a) and Rule 14a-9 do not require corporate officers and directors to present every strategic alternative to the recommended transaction. Instead, the Exchange Act requires that "officials divulge all known material facts so that shareholders can make informed choices." Desaigoudar v. Meyercord, 223 F.3d 1020, 1024 (9th Cir.2000) (quoting See J.I. Case Co. v. Borak, 377 U.S. 426, 431, 84 S.Ct. 1555, 1559, 12 L.Ed.2d 42, 427 (1964)) ("`Section 14(a) was designed to "prevent management or others from obtaining authorization for corporate action" by means of deceptive or inadequate disclosure in proxy solicitation.'").
Despite defendants' arguments to the contrary, plaintiffs allegations are not a laundry list of speculative hypotheticals. The Amended Complaint specifically highlights the fact that the Proxy does not disclose whether or not the Board sought any third party offers to purchase the REIT's stock or assets. Plaintiffs also allege that the Proxy fails to include information about the potential negative impact of the Internalization. These allegations pinpoint omissions that were directly germane to the Board's recommendation, and failure to include them in the Proxy may have been misleading to Shareholders. Therefore, plaintiffs' have adequately stated a § 14(a) claim as to this issue.
(9) Past Performance of the Advisor and the Property Managers
Plaintiffs allege that the Proxy omitted the performance evaluation criteria specified within Inland REIT's Articles of Incorporation that the Inland REIT Board was to use in determining whether to renew the Advisor and Property Managers' contractual agreements. According to plaintiffs, this information would have been material to Shareholders in considering the Internalization proposal, and the omission of the criteria resulted in Shareholders having an incomplete basis for which to vote in favor of the transaction.
Although Shareholders may have benefitted from the inclusion of the evaluation criteria in the Proxy, there is nothing in Amended Complaint that suggests that omission of the criteria rendered the Proxy false or misleading. Therefore, plaintiffs fail to state a § 14(a) claim as to this issue and defendants' motion to dismiss is granted on this issue.
B. Section 20Count II
Section 20(a) of the Exchange Act imposes liability on persons having control over, or aiding and abetting, violators of the Exchange Act. 15 U.S.C. § 78t. It provides in relevant part:
[E]very person who, directly or indirectly, controls any person liable under any provision of this title . . . or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such control person is liable, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation of the cause of the action.
Section 20(a) claims are construed liberally and require "only some indirect means of discipline or influence short of actual direction to hold a `control person' liable." Harrison v. Dean Witter Reynolds, *796 Inc., 974 F.2d 873, 881 (7th Cir.1992) (quoting First Securities I, 463 F.2d 981, 986 (7th Cir.1972)). In evaluating a § 20(a) claim the court considers whether plaintiff has alleged: (1) a primary securities violation; (2) that the controlling defendants exercised general control over the operations of Inland REIT; and (3) that each of the controlling defendants "possessed the power or ability to control the specific transaction or activity upon which the primary violation was predicated, whether or not that power was exercised." In re JPMorgan Chase & Co. Securities Litigation, 2007 WL 4531794, *21-22 (N.D.Ill.2007) (quoting Harrison, 974 F.2d at 881).
As noted above, plaintiffs have adequately alleged a primary violation of § 14(a) of the Exchange Act. Plaintiffs also allege that with respect to the Proxy, the Advisor, the Property Managers, the Sponsor, the Inland Group, and the Individual Defendants acted as controlling persons of Inland REIT within the meaning of § 20(a). These defendants allegedly had positions of authority as officers and/or directors of Inland REIT, and had the ability to control the activities of the REIT, including the issuance of the Proxy. Plaintiffs further allege that these defendants possessed the power, influence, and authority to cause or prevent the wrongful conduct alleged in the Amended Complaint. Consequently, plaintiffs' § 20(a) claim is sufficiently pled and defendants' motion to dismiss Count II is denied.
III. Common Law Claims
A. Demand Requirement and the Demand Futility Doctrine[4]
Counts V through VII of the Amended Complaint allege shareholder derivative claims for breach of fiduciary duty (Count V), unjust enrichment (Count VI), and breach of contract (Count VII) against the Director Defendants pursuant to Maryland common law. Shareholder derivative actions are governed by the law of the state of incorporation. Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 96-97, 111 S.Ct. 1711, 1716-17, 114 L.Ed.2d 152, 164-65 (1991). The parties agree that Maryland law applies because Inland REIT was incorporated in that state. Under Maryland law, before proceeding with a derivative action, "a shareholder must first make a good faith effort to have the corporation act directly and explain to the court why such an effort was not made or did not succeed." Werbowsky v. Collomb, 362 Md. 581, 766 A.2d 123, 133 (Md.2001). Demand may be excused under the demand futility exception only where: "(1) a demand, or delay in awaiting a response to a demand, would cause irreparable harm to the corporation, or (2) a majority of the directors are so personally and directly conflicted or committed to the decision in dispute that they cannot reasonably be expected to respond to a demand in good faith and within the ambit of the business judgement rule." Id. at 144.
Defendants Parks, Gujral, Catalano, Beard, Gauvreau, Gorski, and Murphy (the "Director Defendants") comprised Inland REIT's Board of Directors at the time of the filing of the initial complaint. Three of the directorsParks, Gujral, and Catalanowere indisputably conflicted, and the Board formed the Special Committee to take the Internalization proposal under consideration. Plaintiffs claim that they did not make a demand upon the Board before filing the initial complaint *797 because the majority of the Director Defendants, including those on the Special Committee, were so personally and directly conflicted or committed to the decisions in dispute that they could not reasonably have been expected to respond to a demand to act in good faith. Therefore, plaintiffs argue, demand would have been futile or excused under the second prong of Maryland's demand futility exception. Defendants counter that plaintiffs fail to meet the high standards for prong two because they have not pled particularized facts to support these allegations.
The Amended Complaint falls short of meeting either prong of Maryland's demand futility exception. Nothing in plaintiffs' allegations support a showing that a majority of the Board could not reasonably be expected to consider a demand request in good faith because of personal conflict or commitment to the outcome of the Internalization. According to plaintiffs, the Special Committee members were potentially conflicted for numerous reasons, including that they: approved the Internalization; approved and disseminated the allegedly misleading Proxy; violated their fiduciary duties to prevent management self-dealing; received fees for serving as directors; were selected as Board members by non-independent members; and because two of the Special Committee members served on other civic boards with other defendants.
Despite plaintiffs' assertions, these allegations are insufficient to show a conflict. The Maryland Supreme Court has specifically dismissed all of these bases for demand futility in the seminal case of Werbowsky, 766 A.2d at 143 (holding, among other things, that "a majority of directors approved or participated in some way in the challenged transaction or decision" is irrelevant in evaluating demand futility); See also Scalisi v. Fund Asset Management, L.P., 380 F.3d 133 (2d Cir.2004); Washtenaw Cty. Emp. Ret. Sys. v. Wells Real Estate Inv. Trust, Inc., 2008 WL 2302679 (N.D.Ga. Mar.31, 2008); In re CNL Hotels & Resorts, Inc. Securities Litigation, 2005 WL 2219283 (M.D.Fla. Sept.13, 2005). Therefore, Counts V through VII are dismissed for failure to plead particularized facts showing that demand was futile.
B. Direct versus Derivative Action
In Counts III and IV of the Amended Complaint, plaintiffs allege direct claims for breach of fiduciary duties and for aiding and abetting the breach of fiduciary duties. Defendants dispute plaintiffs' characterization of Counts III and IV as direct, rather than derivative in nature. They argue that the action must be brought by the corporation on behalf of shareholders because Counts III and IV fail under Maryland law since the alleged injuries are not personal to plaintiffs, but common to Inland REIT and all its shareholders. Plaintiffs counter that the Advisor, Property Managers, the Inland Group, the Sponsor, and defendants Goodwin, Parks, Baum, Cosenza, Gujral, and Grimes (the "Fiduciary Duty Defendants") breached their fiduciary duties of loyalty, care, and candor to Inland REIT as well as to the REIT's shareholders when they paid excessive fees to the Property Managers. Therefore, according to plaintiffs, the Shareholders have a distinct injury that can be remedied though a direct suit.
The general rule in Maryland is that "an action at law to recover damages for an injury to a corporation can be brought only in the name of the corporation itself acting through its directors, and not by an individual stockholder, though the injury may incidentally result in diminishing or destroying the value of the stock." Waller v. Waller, 187 Md. 185, 189, 49 A.2d 449, 452 (Md.1946). Only *798 where shareholders suffer an injury that is distinct from that of the corporation, do shareholders have standing to bring a direct suit for redress of that injury. Strougo v. Bassini, 282 F.3d 162, 171 (2nd Cir.2002) (relying on Waller). The threshold inquiry then is "whether the shareholders' injury is `distinct' from that suffered by the corporation." Bassini, 282 F.3d at 170 (quoting Tafflin v. Levitt, 92 Md.App. 375, 381, 608 A.2d 817, 820 (1992)).
Officers and directors owe a fiduciary duty to the corporation and all shareholders. Waller, 187 Md. at 194, 49 A.2d 449. Here, the defendants' fiduciary duty to the corporation and shareholders are one and the same. Therefore, an injury to the shareholders caused by a breach in fiduciary duty flows from an injury to the corporation. Consequently, plaintiffs lack standing to bring a direct action for breach of fiduciary duty against the Fiduciary Duty Defendants.
CONCLUSION
For the reasons explained above, defendants' motion to dismiss Count I is granted as to Issues 4 and 9 and denied as to issues 1,2, 3, 5, 6, 7, and 8. Defendants' motion to dismiss Count II is denied. Defendants' motion to dismiss Counts III through VII is granted. Plaintiffs are directed to file a Second Amended Complaint conforming to this opinion on or before May 1, 2009. Defendants are directed to answer the Second Amended Complaint by June 1, 2009. This case is set for a report on status on June 10, 2009.
NOTES
[1] Following an alarming trend, the pleadings in this matterincluding the 117 page Amended Complaint and the briefs in support and opposition to the instant motions to dismissare needlessly verbose, repetitive, and prolongated. Henceforth, the court will be inclined to enforce the 15 page limit for briefs established by LR7.1.
[2] Prior to Beck, the majority of district courts in this circuit and circuit courts that have addressed the issue found that claims arising under the Exchange Act pled in negligence were subject to the heightened PSLRA standards, including the state of mind requirement. In re JPMorgan Chase & Co. Securities Litigation, 2007 WL 4531794, at *7-8 (N.D.Ill.Dec.18, 2007) (discussing the varying approaches to § 14(a) and citing cases adhering to the majority view).
[3] The Amended Complaint includes numerous particularized facts about defendant William Blair's involvement with the negotiation and valuation discussions among all the defendants, which are too lengthy to reproduce here.
[4] Under Fed.R.Civ.P. 23.1 a derivative action complaint must "allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain the action or for not making the effort."
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660 F.Supp.2d 1246 (2009)
Paul KUNCL, an individual, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, a foreign corporation, Defendant.
Case No. 08-CV-724-JHP.
United States District Court, N.D. Oklahoma.
September 23, 2009.
*1247 Courtney Michelle Wolin, James Ronald Polan, Michael Paul Womack, Rex Wade Thompson, Riggs Abney Neal Turpen Orbison & Lewis, Tulsa, OK, for Plaintiff.
Erin K. Dailey, Timothy Alan Carney, Gable & Gotwals, Tulsa, OK, Joanne Rian Bush, Matthew W. Ray, Jones Day, Dallas, TX, Matthew Willis Lampe, Wendy Corrine Butler, Jones Day, New York, NY, for Defendant.
ORDER
JAMES H. PAYNE, District Judge.
Before the Court are Plaintiff's Motion to Compel [Docket No. 30]; Defendant's Response in Opposition [Docket No. 32]; Plaintiff's Reply [Docket No. 38]; and both parties' Supplemental Briefs [Docket Nos. 44 & 45]. Additionally, the Court conducted a hearing on this Motion on July 29, 2009. For the reasons set forth below, Plaintiff's Motion is DENIED.
BACKGROUND
Plaintiff, Paul Kuncl, filed the current lawsuit against Defendant, International Business Machines Corporation ("IBM"), alleging underpayment of wages in violation of Oklahoma state law and the Fair Labor Standards Act ("FLSA") and breach of contract. From March of 2003 until July 27, 2008, Kuncl was employed by IBM as an on-site IT Lead for IBM's Visteon account at the Tulsa Gas Plant in Tulsa, Oklahoma. As part of his job, Kuncl was required to be "on-call" 24 hours a day, seven days a week. Kuncl alleges that from March of 2003 until February 1, 2008, IBM misclassified him as an overtime exempt employee under the FLSA. As a result of not receiving overtime or "standby" pay, Kuncl claims that he was underpaid for this period of time. In addition, Kuncl alleges that he was underpaid for a four week period in July of 2008 during which his classification had changed to "non-exempt," but he received no standby or overtime pay.
The instant Motion to Compel was filed as a result of IBM's objections to Kuncl's discovery requests for documents and information relating to events that arose before July 13, 2007. IBM asserts that *1248 Kuncl's claims arising before July 13, 2007, are precluded by the judgment entered in Rosenburg et al. v. IBM,[1] a class/collective action lawsuit in the Northern District of California. Based on the preclusive effect of the Rosenburg judgment, IBM argues that the discovery requests for the pre-July 13, 2007, claims are not within the scope of Fed.R.Civ.P. 26(b)(1) because they cannot lead to the discovery of admissible evidence. Kuncl argues that the Rosenburg judgment has no preclusive effect on the claims brought in this lawsuit, and therefore IBM's objections to his discovery requests are improper.
I. The Rosenburg Litigation
The facts relating to the Rosenburg litigation are not in dispute. The plaintiffs in Rosenburg brought both a Rule 23(b)(3) class action suit and a FLSA collective action suit pursuant to 29 U.S.C. § 216(b). The practice of combining a FLSA collective action and state-law class action claims in one proceeding is commonly referred to as a "hybrid" action. In Rosenburg, the Rule 23 class action alleged violations of ERISA and various state laws. The § 216(b) collective action alleged violations of the FLSA. All of the claims in Rosenburg were based on IBM's alleged misclassification of certain employees as exempt from overtime pay requirements.
The fact that Rosenburg involved a hybrid action is significant because of the difference in how classes are formed under Rule 23 and § 216(b). In Rule 23(b)(3) class actions, all putative class members are included in the action unless they affirmatively opt-out of the case. A subsequent judgment in a Rule 23 class action binds all class members that have not opted out. Conversely, potential plaintiffs in a the § 216(b) collective action must affirmatively opt-in to be bound by a judgment.
As a result of mediation, the representative plaintiffs in Rosenburg and IBM reached a settlement. The Rosenburg Court issued an order conditionally certifying the settlement class and collective action, granting preliminary approval to the proposed class action settlement and plan of allocation, directing dissemination of the notice and claim form to the class, and approving the class release. [Docket No. 33-10]. Pursuant to the Settlement Agreement, [Docket No. 33-8] IBM agreed to pay $65,000,000 in exchange for a release of claims by all class members who failed to opt-out of the Rule 23 class. The class was identified as all current and former IBM employees who held a "Covered Position Code" during the "Covered Period," as those terms are defined by the Settlement Agreement. Based on his position codes, Kuncl was identified as a Rule 23 class member and a potential FLSA class member.
The Settlement Agreement released all claims, asserted or unasserted, against IBM that arose out of the facts giving rise to the litigation. The relevant parts of the Settlement Agreement stated:
Plaintiffs and each individual Class Member who does not timely opt out ... forever and fully release Defendant ... from any and all ... claims ... that are based upon or arise out of the facts, acts, transactions, occurrences, events or omissions alleged in the Litigation and that arose during any time that such Class Member worked in a Covered Position up until the date of the Order granting final approval ("Released Claims"). The Released Claims include without limitation claims asserted in the Litigation and any other claims based on alleged misclassification under state or federal law governing overtime pay, exempt *1249 status ... failure to make payments due to Class Members had they been classified as nonexempt ... and penalties for any of the foregoing, including without limitation claims under... the Fair Labor Standards Act ("FLSA") ... and the statutes and regulations of all other states relating to the foregoing....
Each Class Member who does not timely opt out ... is deemed to have acknowledged that this Agreement is intended to include in its effect all claims arising from or based upon the litigation or the facts alleged therein ..., including both asserted and unasserted claims ...
[Docket No. 33-8, at § 4.1(A)-(B)].
Kuncl received the notice sent to all class members in Rosenburg. The notice advised him of the nature of the lawsuit, the scope of the release and the opportunity to opt-out, the right to object to the settlement, and the binding effect of the release and judgment on class members who do not opt-out. The terms of the release, itself, were quoted in the notice. After receiving the notice, Kuncl took no action. As a result of the differing opt-in/opt-out requirements, Kuncl was included in the Rule 23 ERISA class because he failed to opt-out, but was not included in the § 216(b) FLSA class because he did not affirmatively opt-in. According to the Settlement Agreement, Kuncl, as a member of the Rule 23 class, released IBM from any claims based on the same factual predicate as the Rosenburg claims. On July 12, 2007, the Rosenburg Court granted final certification of the class and collective action and final approval of the settlement. On the same day, the court entered a final judgment dismissing the case with prejudice in accordance with the terms of the Settlement Agreement. [Docket No. 33-20].
II. The Parties' Arguments
While the facts in this case are not in dispute, the legal effect of the Rosenburg judgment on Kuncl's current claims is vehemently disputed. Kuncl argues that the Rosenburg judgment has no preclusive effect on his current claims. Kuncl does not dispute that his claims arise from the exact same factual predicate as the claims in Rosenburg. Neither does Kuncl dispute that the Settlement Agreement purports to release his claims arising prior to July 13, 2007. However, Kuncl asserts that he is not bound by the judgment as it pertains to his FLSA claims because he did not opt-in to the FLSA collective action, as is required by § 216(b). Further, Kuncl argues that his FLSA claims cannot be released as part of the Rule 23 ERISA class settlement, even though he admits that he was properly included as a class member.
IBM takes the position that the Rosenburg judgment is binding on Kuncl and, accordingly, his pre-July 13, 2007 claims are precluded under the doctrine of res judicata. In support of this argument, IBM states that, as part of the Rule 23 ERISA class, Kuncl expressly released any future FLSA or state law claims based on his misclassification as overtime exempt through the Settlement Agreement. The final judgment dismissed with prejudice all claims released in the Settlement Agreement. Because Kuncl's claims in this action fall within the scope of the Rosenburg judgment and release, IBM argues that the judgment is entitled to preclusive effect and Kuncl should be barred from bringing the claims in this suit. Furthermore, IBM states that Kuncl has not alleged the facts necessary to collaterally attack the Rosenburg judgment.
ANALYSIS
At issue is the preclusive effect, if any, of the Rosenburg judgment on Kuncl's *1250 FLSA and state law claims in the current case. This issue appears to be one of first impression. Despite Kuncl's repeated claim that there is clear precedent in all circuits on the issue, the Court finds this assertion to be in error. Neither the parties' nor the Court's research has discovered any case involving a hybrid action where a Rule 23 class member who did not opt-in to the FLSA action attempts to bring FLSA claims in an individual suit subsequent to the entry of a judgment disposing of such claims in the hybrid action. Because the Court finds no clear precedent, the Court must determine whether Kuncl's current claims are barred by analyzing the nature of hybrid actions, the law pertaining to the res judicata effects of class action judgments, and the language and purpose of the FLSA.
I. Hybrid Actions
The filing of hybrid lawsuits involving both a Rule 23 class action and a FLSA collective action appears to be a recent trend. See Thomas A. Linthorst & Richard G. Rosenblatt, Wage and Hour Class Actions: Courts Grapple With Conflict Between Rule 23 and FLSA's Opt-in Requirement, 188 N.J. L.J. 118 (April 9, 2007). Hybrid actions have troubled district courts across the country because of the inherent conflict between the opt-in requirement of FLSA collective actions and the opt-out requirement of Rule 23(b)(3) class actions. Class actions based on state wage laws are governed by Rule 23 of the Federal Rules of Civil Procedure. Rule 23 allows one or more class members to sue, as a representative party, on behalf of all class members as long as certain prerequisites are met. Fed.R.Civ.P. 23(a). If the court certifies the class under Rule 23(b)(3), class members must be sent notice which, among other things, informs them of the nature of the action, their right to exclude themselves from the action, and the binding effect of the class judgment. Any member who does not wish to be bound by the judgment must timely exclude themselves by affirmatively opting out of the class. Fed.R.Civ.P. 23(c)(2)(B). On the other hand, group actions brought asserting FLSA rights are known as collective actions and are governed by § 216(b) of the FLSA. Section 216(b) states that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party ..." 29 U.S.C. § 216(B). Based on this language courts have found employees must opt-in to be bound by a judgment in FLSA collective actions. Employees who don't opt-in are not similarly bound. See Dolan v. Project Construction Corp., 725 F.2d 1263, 1266 (10th Cir.1984), abrogated on other grounds by Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).
The most significant effect of using either an opt-in or opt-out scheme is the resulting class size. "Historically, the FLSA's opt-in mechanism has limited the size of the FLSA action, with estimates indicating that typically only between fifteen and thirty percent of potential plaintiff-employees opt-in." Rachel K. Alexander, Federal Tails and State Puppy Dogs: Preempting Parallel State Wage Claims to Preserve the Integrity of Federal Group Wage Actions, 58 Am. U.L.Rev. 515 (February 2009). The most probable explanation for the low response rate is the idea that "the notice received in the mail is just another piece of junk that the recipient has neither the time nor the interest to read, let alone act on." Ellis v. Edward D. Jones & Co., 527 F.Supp.2d 439, 444 (W.D.Pa.2007) (citing Noah H. Finkel, Symposium, The Fair Labor Standards Act, State Wage-and-Hour Law Class Actions: The Real Wave of "FLSA" Litigation?, 7 Emp. Rts. & Emp. Pol'y J. 159, *1251 161, 174 (2003)). This theory behind low opt-in rates in collective actions is also the most likely explanation for the low opt-out rates in Rule 23 class actions. Id. at 445. Because of these low opt-in and opt-out rates, Rule 23 classes are generally "much larger than the corresponding § 216(b) collective action groups." Id. By filing a hybrid action, plaintiffs, or more aptly their attorneys, are attempting to bring large class/collective actions in federal court by using the Rule 23 opt-out procedure to avoid the opt-in requirement that would be applicable to a pure FLSA collective action.
Courts across the country have reached differing conclusions as to whether a Rule 23 state law wage claims may proceed in the same action as an FLSA collective wage claim. Some courts have allowed both claims to proceed in the same action. See, e.g., Damassia v. Duane Reade, Inc., 250 F.R.D. 152 (S.D.N.Y.2008) (certifying Rule 23/FLSA hybrid class over defendant-employer's objection); McLaughlin v. Liberty Mut. Ins. Co., 224 F.R.D. 304 (D.Mass.2004) (certifying hybrid class despite defendant-employer's objection). Other courts have refused to allow hybrid claims for various reasons. See Ellis, 527 F.Supp.2d at 452 (dismissing parallel state-law wages claims finding that adjudicating such claims through Rule 23 would negate the congressional intent behind FLSA's opt-in requirement); Leuthold v. Destination America, Inc., 224 F.R.D. 462 (N.D.Cal.2004) (allowing FLSA collective action but refusing to certify state-law class because the plaintiffs could not meet Rule 23(b)'s requirement that a class action be the superior method for fair and efficient adjudication of the controversy); Bartleson v. Winnebago Indust., Inc., 219 F.R.D. 629 (N.D.Iowa 2003) (allowing hybrid action, but limiting the state law class to only those plaintiffs who opted in the FLSA action). Additionally, two circuit courts have addressed the issue and reached somewhat opposite conclusions. Compare Lindsay v. Gov't Employees Ins. Co., 448 F.3d 416 (D.C.Cir.2006) (holding that the district court's reliance on 28 U.S.C. § 1367(a) to decline supplemental jurisdiction over the state law claims was in error, however, on remand the district court could consider declining jurisdiction under § 1367(c)), with De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3rd Cir. 2003) (finding the district court erred in exercising supplemental jurisdiction pursuant to § 1367(c) over the Rule 23 state law claims because of the different opt-in/opt-out requirements in Rule 23 and § 216(b), and because the state law claims predominated over the federal claim).
Although many courts have addressed hybrid actions at the class certification stage, the Court is not aware of any case where a court has been required to determine the preclusive effect of a hybrid judgment on a Rule 23 class member who failed to opt-in to the FLSA action. Several courts, however, have speculated as to the res judicata effect of such a judgment. See, e.g., Woodard v. Fedex Freight East, Inc., 250 F.R.D. 178, 187, n. 7 (M.D.Pa. 2008) (stating in a footnote that requiring "that an employee opt-out of a hybrid action to preserve his FLSA claim is contrary to the letter and spirit of § 216(b)"); Guzman v. VLM, Inc., 2008 WL 597186, at *10, n. 11 (E.D.N.Y. March 2, 2008) (stating that "principles of res judicata apply to any class action, whether it contains a simultaneous FLSA claim or not."). These cases are largely unhelpful for several reasons: (1) they are not binding authority; (2) the discussions regarding res judicata issues are brief, conclusory, and mere speculation; and (3) there is no consensus among the courts as to the proper resolution of the issue.
*1252 II. Class Action Judgments and Res Judicata
The class action is a procedural device "designed to achieve economies of time, effort, and expense, by the elimination of repetitious litigation. Paramount to the success of this goal is the ability of the courts to render a judgment binding absent class members." 4 William B. Rubenstein, Alba Conte, & Herbert B. Newberg, Newberg on Class Actions § 11:64 (4th ed. 2009) In accordance with this goal, courts have found that "[i]t is well settled that a class action judgment is binding on all class members." Pelt v. Utah, 539 F.3d 1271, 1284 (10th Cir.2008). Once a binding judgment is entered in an action, the doctrine of res judicata "precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). The doctrine of res judicata reflects the courts' interest in judicial finality and the conservation of judicial resources. Because Rule 23 class actions strive to achieve many of the same goals, some courts have found that the fact that a judgment was entered in a class action suit "weighs in favor of, not against, applying res judicata." See, e.g., Jamerson v. Lennox, 356 F.Supp. 1164, 1169 (E.D.Pa.1973).
Additionally, res judicata applies with equal force when the prior class action judgment was the result of a settlement, as it was in Rosenburg. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 648-49 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.1981). But see TBK Partners Ltd. v. Western Union Corp., 675 F.2d 456, 461 (2d Cir.1982) (stating that courts should "be cautious about permitting issue preclusion in the context of a settlement of a class action.") (emphasis added). The procedural safeguards in Rule 23 requiring sufficient notice, adequate representation, and judicial approval of the class settlement were intended to mitigate against the potentially harsh consequences of res judicata. Id. When these requirements are met, a class action defendant should receive the full benefit of the doctrine of res judicata, regardless of whether the case advanced to trial or settled prior to trial. Id. Furthermore, a judgement entered according to a class settlement can bar later claims based on the same facts as the class action claims, even if the precluded claim could not have been presented in the class action. In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 366 (3rd Cir.2001).[2]See also Thompson v. Edward D. Jones & Co., 992 F.2d 187, 191 n. 6 (8th Cir.1993); In re Corrugated Container Antitrust Litig., 643 F.2d 195, 221-22 (5th Cir.1981).
III. 28 U.S.C. § 216(b)
Congress enacted the Fair Labor Standards Act ("FLSA") in 1938. The FLSA provided employees and their representatives the right to bring an action to recover amounts due under the statute, including unpaid overtime compensation. 29 U.S.C. § 216(b). Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). In 1947, Congress perceived a national emergency "spawned by out-of-control litigation of employee minimum wage and overtime *1253 claims." Ellis, 527 F.Supp.2d at 449 (citing 93 Cong. Rec. 2, 2,089-98, 2,182 9 (statements of Sen. Donnell)). In response, Congress passed the Portal-to-Portal Act of 1947 ("PPA"). Id. The PPA had two purposes, "limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative actions." Hoffmann-La Roche Inc., 493 U.S. at 173, 110 S.Ct. 482. In an effort to achieve these goals, the PPA added the requirement that any plaintiff in a FLSA representative actions under § 216(b) must expressly opt-in to participate in the case. De Asencio, 342 F.3d at 306. As the Third Circuit stated, Congress's adoption of an opt-in procedure for FLSA actions was a "crucial policy decision." Id. at 311.
IV. Preclusive Effect of the Rosenburg Judgment
It is undeniable that present in every hybrid action is an inherent conflict between FLSA § 216(b)'s opt-in requirement and Rule 23's opt-out requirement. In fact some courts have gone so far as to state that allowing hybrid actions would nullify the congressional intent behind § 216(b) and eviscerate the purpose of the section's opt-in requirement. See Otto v. Pocono Health Sys., 457 F.Supp.2d 522, 524 (M.D.Pa.2006). Indeed, the best solution to the dilemma faced by the Court in this case might be to prohibit FLSA/Rule 23 hybrid actions all together.[3] Nevertheless, the question of whether to allow a Rule 23 class action to proceed simultaneously with a FLSA collective action is not before the Court. The Northern District of California already made the decision to allow the hybrid action in Rosenburg and granted final certification of the class and collective action and approved the settlement. The only question presented for this Court to decide is whether Kuncl is bound by the final judgment entered in Rosenburg. Because the Court finds that § 216(b) does not create an exception to the res judicata doctrine and because Kuncl offers no basis for collaterally attacking the Rosenburg judgment, the Court finds that the judgment is binding on him.
Kuncl does not disputes that he was a proper member of the Rule 23 ERISA class in Rosenburg. Nor does Kuncl dispute that the Rosenburg judgment dismissed with prejudice all claims released through the Settlement Agreement. Pursuant to the Settlement Agreement, class members who failed to opt-out of the litigation fully released IBM from any and all claims arising out of the same facts alleged in the Rosenburg litigation up until the date of the final judgment. The Settlement Agreement specifically stated that "[t]he Released Claims include without limitation claims asserted in the Litigation and any other claims based on alleged misclassification under state or federal law governing overtime pay, . . . including without limitation claims under . . . the Fair Labor Standards Act . . ." and laws and regulations of all other states. [Docket No. 33-8, at § 4.1]. Kuncl acknowledges that his current claims, in which he alleges he was misclassified as overtime exempt, arise out of the same factual predicate as the claims in Rosenburg. In fact, Kuncl *1254 admits that he is bound by the release of his ERISA claims in Rosenburg, but argues that he is not similarly bound by the release of his FLSA claims because he did not opt-in to the collective action. [Docket No. 43, at 22:11-18].
Kuncl does not argue, nor could he make a good faith argument, that a normal res judicata analysis precludes him from bringing his pre-July 13, 2007, claims. Instead, Kuncl argues that Congress created an exception to the normal res judicata rules by selecting an opt-in procedure for participation in FLSA collective actions under § 216(b). In support of this argument Kuncl cites the language of § 216(b) along with the Congressional intent behind the statute. Section 216(b) expressly requires that any potential plaintiff to a collective action must give written consent to become a party. While the opt-in requirement in is not inconsistent with Kuncl's position, there is no further support for his argument that a normal res judicata analysis is inappropriate in this case. No language in § 216(b) or anywhere else in the FLSA provides for such an exception. In regard to the Congressional intent, the Supreme Court found that the purposes behind the amendments to the FLSA were to "limit[ ] private FLSA plaintiffs to employees who asserted claims in their own right and free[ ] employers of the burden of representative actions." Hoffmann-La Roche Inc., 493 U.S. at 173, 110 S.Ct. 482. To the extent Kuncl's argument is supported by the goal of limiting FLSA plaintiffs to those who opt-in, it is offset by the goal of reducing employers' burdens in respect to representative actions. In fact, in enacting the PPA Congress appeared to be more concerned with protecting employers than with protecting employees. See 29 U.S.C. § 251(a) (stating in its declaration of policy that judicial interpretations of the FLSA had caused immense and unexpected liabilities for employers and would bring about "financial ruin" of many employers if allowed to continue). Allowing Kuncl to sue IBM in this case for claims that he expressly released in Rosenburg would be contrary to the goal of freeing employers from the burdens of representative actions.
Also working against Kuncl's argument for an exception to res judicata principles are the policy considerations behind class actions and the res judicata doctrine. As discussed above, both class actions and res judicata serve the interests of finality and conservation of judicial resources by avoiding repetitious litigation. Additionally, several circuits have held that class action settlements can release claims that could not have been presented in the class action itself, provided the claims arise out of the same facts as the class action. See In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d at 366. Considering all the factors discussed, the Court finds no basis either in § 216(b) or in the Congressional intent behind the statute to hold that res judicata principles do not apply to hybrid claims. The election of the opt-in requirement for FLSA collective actions, without more, simply cannot be stretched into a broad exception to fundamental principles of law. On the other hand, the Court finds the strong policy interests of finality and conservation of judicial resources support IBM's argument that Kuncl is precluded from bringing claims covered by the Rosenburg judgment. Allowing Kuncl to litigate his misclassification claims against IBM twice would undermine the goals behind class actions and promote, rather than avoid, repetitious litigation.
Because the Court finds that the FLSA provides no exception to normal res judicata principles, Kuncl's claims can only survive if he shows there are grounds for a collateral attack on the Rosenburg judgment. *1255 A collateral attack on a judgment "is any proceeding in which the integrity of a judgment is challenged, except for a challenge made in the action in which the judgment is rendered, or by appeal." Karl Oakes, 21A Federal Procedure, Lawyers Edition § 51:221 (2008). The Tenth Circuit has held that collateral attacks on class action judgments are only permissible when a class member was not accorded due process of law. Pelt, 539 F.3d at 1284. An absent class member received due process if it was adequately represented by the present parties. Id. In the Tenth Circuit, "[t]he question of adequate representation can best be resolved by determining whether the interests of those who would attack the judgment were vigorously pursued and protected in the class action by qualified counsel." Garcia v. Board of Ed., 573 F.2d 676, 680 (10th Cir.1978).
Kuncl contends that he is not attempting to collaterally attack the Rosenburg judgment. However, Kuncl is not challenging the Rosenburg judgment either through a Rule 60(b) motion in the Northern District of California or through a direct appeal. Rather, he filed a subsequent suit in this Court and is asserting that the judgment, which on its face purports to dispose of his claims, has no preclusive effect on him. By definition, Kuncl's actions constitute a collateral attack of the Rosenburg judgment. As previously stated, a collateral attack on a class action judgment "is impermissible when the class members were adequately represented." Id. at 679. Kuncl does not argue that he was inadequately represented in Rosenburg. To the contrary, during the hearing on this issue Kuncl's counsel stated "I'm not here today to criticize what happened in Rosenburg, nor am I here to attack or have this Court go back and second guess the judge in the Northern District of California." [Docket No. 44, at 29:12-15]. Additionally, Kuncl admits that he received "actual notice" of the Rosenburg class and the settlement. [Docket No. 44, at 5:15-17]. Without demonstrating inadequate representation Kuncl cannot collaterally attack the Rosenburg judgment. Because there are no grounds for a collateral attack, the principles of res judicata, more specifically the doctrine of claim preclusion, prevent Kuncl from relitigating claims that were released in Rosenburg.
The Court's decision should not be taken as an endorsement of Rule 23/FLSA hybrid actions. Kuncl raises legitimate concerns regarding the incompatibility of the various opt-in and opt-out schemes.[4]However, even if the Court disagreed with the Rosenburg Court's rulings, it is not a basis for disregarding the judgment entered in that case. Federated Dep't Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct.2424, 69 L.Ed.2d 103 (1981) (holding that erroneous decision reached by one court does not deprive defendants in a later action from relying on the doctrine of res judicata, nor does it constitute grounds for a collateral attack).
CONCLUSION
The Court finds that the doctrine of res judicata bars Kuncl's claims that arose before July 13, 2007, the date the final judgment in Rosenburg was entered.[5] As *1256 a result, Plaintiff's discovery requests relating to pre-July 13, 2007, claims cannot lead to admissible evidence and Kuncl's Motion to Compel is hereby DENIED.
IT IS SO ORDERED.
NOTES
[1] Case No. CV-06-00430-PJH (N.D.Cal.)
[2] In this case, the Eighth Circuit acknowledged that "it may seem anomalous at first glance that courts without jurisdiction to hear certain claims have the power to release those claims as part of a judgement," however, the court stated that it adopted the rule because it "serves the important policy interest of judicial economy by permitting parties to enter into comprehensive settlements that prevent relitigation of a settled question at the core of a class action." Id. at 366. (internal quotations and citations omitted).
[3] The Court notes, however, that the same res judicata issues would be present if a judgment was entered in a pure Rule 23 state-law class action if the facts giving rise to the class action were the same facts that formed the basis of a subsequent FLSA action. See Rachel K. Alexander, Federal Tails and State Puppy Dogs: Preempting Parallel State Wage Claims to Preserve the Integrity of Federal Group Wage Actions, 58 Am. U.L.Rev. 515 (February 2009) (advocating for the view that the FLSA preempts all state law wage and hour claims).
[4] Kuncl's argument regarding the inherent conflict caused by the different notice requirements present in hybrid claims would be more appropriate and more convincing at a different stage of the litigation, such as the class certification stage or in a direct attack on the Rosenburg judgment.
[5] Although this issue was addressed through Plaintiff's Motion to Compel, the Court intends the decision rendered in this Order to be the law of the case going forward and does not intend to allow the issue to be reargued at a later point in this litigation.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
CASSANDRA ANNE GULLION
MEMORANDUM OPINION * BY
v. Record No. 2385-00-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
The trial court convicted Cassandra Anne Gullion of eight
counts of forgery and five counts of uttering. She contends the
trial court abused its discretion in crediting the victim's
testimony because the victim's testimony "was delusional and
ought not to have been believed as a matter of law. It was an
abuse of discretion to credit such testimony." Finding no
error, we affirm.
The defendant stipulated that she signed and uttered the
checks in question, but claimed the owner of the account gave
her permission to do so. The owner, Michael B. Cockram,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
testified he did not give permission. Cockram suffered from
schizophrenia, post-traumatic stress disorder and depression,
and he smoked marijuana. He was hospitalized for his mental
illness and taking medication when the defendant wrote the
checks. At trial, he was still taking medication for his
illness.
The defendant maintains the mental illness and medication
made Cockram delusional at trial. She contends his testimony
shows he was obviously delusional thereby making his testimony
inherently incredible as a matter of law. She maintains the
trial court abused its discretion in believing the testimony.
Mental illness does not automatically render a witness
incompetent. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865,
875 (1874), overruled on other grounds, 246 Va. 174, 431 S.E.2d
648 (1993); Tate v. Chumbley, 190 Va. 480, 495, 57 S.E.2d 151,
158 (1950) (testamentary capacity). The trial court, in the
exercise of its discretion, determines the competency of a
witness on a case-by-case basis. "[T]he test is whether . . .
the witness can [accurately] observe, recollect, and communicate
the facts in question." Charles E. Friend, The Law of Evidence
in Virginia § 6.3, 214 (4th ed. 1993) (citing Helge v. Carr, 212
Va. 485, 487, 184 S.E.2d 794, 796 (1971)). A witness must
understand the questions posed, be able to formulate intelligent
responses, and understand the importance of speaking the truth.
Helge, 212 Va. at 488, 184 S.E.2d at 796. "If at the time of
- 2 -
the examination he has this share of understanding, he is
competent." Coleman, 66 Va. (25 Gratt.) at 875. Once the trial
court determines a witness is competent, the trier of fact must
assess the credibility of the witness' testimony. "The trier of
fact is the sole judge of the credibility of the witnesses,
unless, as a matter of law, the testimony is inherently
incredible." Walker v. Commonwealth, 258 Va. 54, 70-71, 515
S.E.2d 565, 575 (1999) (citations omitted), cert. denied, 528
U.S. 1125 (2000).
In this case, the trial court found Cockram's testimony
about not giving consent to be credible and of sufficient weight
to convict. The trial court denied the defendant's motion to
strike and stated that while Cockram's testimony "was rambling
at times . . . he was very specific on the issue of whether or
not he granted consent to the Defendant to write these checks
. . . ." (Emphasis added.)
The record supports a finding that Cockram was both
competent and credible. Cockram comprehended the questions
posed and responded with reasonable intelligence. Cockram
testified clearly and consistently that he did not give the
defendant permission to write checks on his account. He denied
authorizing anyone to use his checks. Nothing suggests he
failed to comprehend, remember, and communicate his knowledge of
the events about which he testified. Indeed, other evidence
supports his testimony about related matters. While still in
- 3 -
the hospital, Cockram put a hold on his checking account as soon
as he learned about the unauthorized checks. Upon discharge, he
closed the checking account and transferred the balance to a new
savings account.
The record does not reflect that the testimony was
inherently incredible or so contrary to human experience or to
human behavior as to be unworthy of belief as a matter of law.
Barker v. Commonwealth, 198 Va. 500, 503, 95 S.E.2d 135, 137
(1956). Reasonable men could believe the victim's testimony.
The trial court did not err in refusing to strike the evidence,
and accordingly, we affirm the convictions.
Affirmed.
- 4 -
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799 So.2d 698 (2001)
STATE of Louisiana, Appellee,
v.
Thomas Edward GEER, Jr., Appellant.
No. 35,226-KA.
Court of Appeal of Louisiana, Second Circuit.
October 31, 2001.
*699 Peggy J. Sullivan, Monroe, Michael O. Craig, Benton, Counsel for Appellant.
Richard P. Ieyoub, Attorney General, James M. Bullers, District Attorney, Robert R. Smith, Assistant District Attorney, Counsel for Appellee.
Before WILLIAMS, PEATROSS and DREW, JJ.
WILLIAMS, J.
The state charged the defendant, Thomas Geer, Jr., with burglary of an inhabited dwelling, but agreed not to file a habitual offender bill and to reduce the charge to simple burglary in exchange for defendant's guilty plea to the amended charge, a violation of LSA R.S. 14:62 punishable by no more than 12 years imprisonment at hard labor. The district court sentenced defendant to serve five years at hard labor and denied a timely motion for reconsideration of sentence. Defendant argues his sentence is excessive. We affirm.
FACTS
The matters of record show that on February 8, 2000, defendant and a juvenile companion broke into a residence in Haughton. They stole a computer and numerous other items, including a rifle, from the home. The stolen property, other than the victim's wallet, was found hidden in a nearby field. Defendant was interviewed after his fingerprints were found on the stolen property. He confessed to committing the burglary and said he did it because he needed some quick cash. He was carrying the victim's wallet when he was arrested.
On appeal, defendant urges that the district court failed to give sufficient consideration to his youth and to the fact that the stolen items were recovered. Defendant also complains that the court should have considered as mitigating circumstances the fact that he cooperated with the police and identified the other perpetrator of the burglary.
DISCUSSION
There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. The record indicates the court was aware of the matters referred to by appellate defense counsel.
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating *700 circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La.C.Cr.P. art. 894.1; State v. Lanclos, 419 So.2d 475 (La.1982). Our review of the record discloses that the court adequately articulated its reasons for sentence.
The second prong of the test, i.e., to determine whether the sentence imposed is too severe, depends on the circumstances of the case and the background of the defendant. A sentence violates LSA Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
Prior to imposing sentence the district court reviewed a Pre Sentence Investigation ("PSI") report and considered the facts of the case. The court noted that defendant pled guilty to a reduced charge. He had a prior conviction for simple burglary and was on parole when he committed the instant offense. The court stated that because defendant had carried a firearm during the commission of the offense the evidence would support a conviction for aggravated burglary. The defendant was 20 years old and was a second felony offender. He was unemployed prior to his arrest. He was not recommended for probation due to his second-offender status. The court found there was no justification for defendant's misconduct and he was in need of custodial treatment.
On this record, we do not find sentencing error. Defendant, 20 years old at the time of the instant offense and a high school graduate, is a second felony offender with a prior conviction for the same offense that brought him before the bench on this occasion. He was on parole when he committed this offense which indicates he has not properly taken advantage of prior rehabilitative efforts. Defendant obtained a significant reduction in sentencing exposure when the state reduced the charge to simple burglary and agreed not to charge him as a habitual offender. The sentence imposed is less than one-half of the 12-year term of imprisonment which could have been imposed under the statute.
The sentence imposed is lawful. It is neither grossly disproportionate to the severity of the offense committed nor is it shocking to the sense of justice. There is no showing that the trial court abused its discretion in imposing this sentence. The sentence is not constitutionally excessive. Therefore, the court did not err in denying the motion for reconsideration of sentence. The assigned errors lack merit.
We have examined the record for error patent and found none.
DECREE
The conviction and sentence are affirmed.
AFFIRMED.
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580 F.Supp. 877 (1984)
Deborah MANOOKIAN, Plaintiff,
v.
A.H. ROBINS COMPANY, INC., Defendant.
Civ. A. No. J82-0056(B).
United States District Court, S.D. Mississippi, Jackson Division.
March 7, 1984.
*878 James W. Nobles, Jr., Jackson, Miss., Paul D. Rheingold, New York City, for plaintiff.
Cary E. Bufkin, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, Miss., for defendant.
ORDER AND MEMORANDUM OPINION
BARBOUR, District Judge.
This case arises out of the alleged injuries suffered by the Plaintiff as a result of the use of an intra-uterine device known as the Dalkon Shield. The Plaintiff is an adult resident citizen of the State of New York. The Defendant, A.H. Robins Company, Inc. (Robins) is a foreign corporation organized and existing under the laws of the Commonwealth of Virginia.
The Defendant is not qualified to do business in Mississippi. However, Robins, a major manufacturer of both prescription and non-prescription drugs and medications, does admit that it employs six sales representatives who reside in the State of Mississippi and eleven sales representatives who reside outside of the State who solicit business and answer customers' questions concerning the company's products in the state. In 1982 Robins' sales of its consumer products in the State of Mississippi were approximately $188,834.00 and its sales of health care products were approximately $4,100,738.00. Robins maintains no managerial staff, performs no management functions, owns no property and maintains no bank accounts in the State of Mississippi.
The injury of which the Plaintiff complains occurred outside of the State of Mississippi. The Plaintiff did not purchase any products from the Defendant corporation in the State of Mississippi, nor has the Plaintiff been a resident of the State of Mississippi at any relevant time.
Jurisdiction of this Court is founded on complete diversity of the parties pursuant to 28 U.S.C. Section 1332. Robins comes now before this Court bringing its Motion to Dismiss for lack of in personam jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. It is clear that the Plaintiff in this case seeks to maintain this suit in Mississippi for the purpose of taking advantage of the six year statute of limitations applicable to this case.
The singular question to be answered by this Court is whether a plaintiff with no connection to this forum may sue a defendant who is not qualified to do business in Mississippi but is doing business by selling its products in Mississippi, although this action did not arise out of any sale in this state.
IN PERSONAM JURISDICTION
When faced with the defense of the lack of in personam jurisdiction the court must first ascertain whether the defendant in a diversity action may be reached by the long arm statute of the forum state. Cowan v. Ford Motor Co., 694 F.2d 104, 105 (5th Cir.1983) (Cowan I). If the defendant is amenable to the state's long arm statute then the court must decide whether its exercise of jurisdiction is permissible under the Due Process Clause. Id.
The clear precedent of the Fifth Circuit controls this case. In Breeland v. Hide-a-Way Lake, Inc., 585 F.2d 716 (5th Cir.1978) that court held that the "doing business" provision of Mississippi's long arm statute could not be invoked by a nonresident plaintiff against a defendant foreign corporation not qualified to do business in this state. Id. at 721. See also Golden v. Cox Furniture Manuf. Co., Inc., 683 F.2d 115 (5th Cir.1982); Thompson v. F.W. Woolworth Company, 508 F.Supp. 522, 523-25 (N.D.Miss.1981).
While this Court is bound by the clear precedent of these cases, it notes that this result is anomalous, especially in view of the recent decisions by the Fifth Circuit in Cowan v. Ford Motor Company, 713 F.2d 100, 104 (5th Cir.1983) (Cowan III) and Cowan v. Ford Motor Co., 694 F.2d 104 (5th Cir.1982) (Cowan I). The effect of the *879 distinction which has been drawn as regards a suit by an out-of-state plaintiff between a corporation doing business but not qualified to do business in Mississippi and a corporation which is qualified to do business in Mississippi is to reward the corporation which does business in Mississippi without qualifying with the Secretary of State and without appointing an agent for service of process.
If this defendant corporation finds need to use the state courts of Mississippi it will no doubt assert that even considering the large volume of its sales in Mississippi that it need not qualify to do business in order to utilize the courts of this state because it falls within the interstate commerce exception to the "door closing" statute. Miss. Code Ann. §§ 79-3-211(e) and 247 (1972); Diversacon Industries, v. Nat. Bank of Commerce, 629 F.2d 1030, 1033 (5th Cir. 1980). This Court finds many persuasive reasons to question this result but is confined to rule in conformity with the applicable precedents.
It is, therefore, ordered that the Defendant's Motion to Dismiss for Lack of In Personam Jurisdiction is granted.
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[Cite as State v. Kostyuchchenko, 2014-Ohio-324.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130257
TRIAL NO. B-1007107
Plaintiff-Appellant, :
vs. : O P I N I O N.
EVGENIY KOSTYUCHENKO, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 31, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Suhre & Associates, LLC, and Joseph B. Suhre IV, for Defendant-Appellee.
Please note: we have removed this case from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Plaintiff-appellant the state of Ohio presents on appeal a single
assignment of error, challenging the Hamilton County Common Pleas Court’s
judgment granting defendant-appellee Evgeniy Kostyuchenko’s Crim.R. 32.1 motion
to withdraw his guilty plea. The court granted the motion upon its determination
that Kostyuchenko’s trial counsel had been ineffective in failing to accurately advise
Kostyuchenko concerning the immigration consequences of his plea. Upon our
determination that the court did not abuse its discretion in permitting Kostyuchenko
to withdraw his plea on that basis, we affirm the court’s judgment.
{¶2} Kostyuchenko was indicted on two counts of operating a vehicle under
the influence of alcohol or drugs (“OVI”) and a single count of failure to comply with
the order or signal of a police officer. In exchange for the dismissal of one OVI count,
Kostyuchenko entered guilty pleas to the other OVI count and the failure-to-comply
count. The trial court accepted both pleas and found him guilty on both counts. But
the court sentenced him, and thus convicted him, on only the failure-to-comply
count. For that offense, the court imposed a term of confinement of one year.
{¶3} Kostyuchenko did not appeal his conviction. Instead, he moved to
withdraw his plea. Following a hearing, the common pleas court granted the motion,
and this appeal followed.
{¶4} Crim.R. 32.1 authorizes the postconviction withdrawal of a guilty plea
only “to correct manifest injustice.” State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d
1324 (1977), paragraph one of the syllabus. The defendant bears the burden of
proving “manifest injustice.” The determination of whether the defendant has
sustained that burden is committed to the sound discretion of the trial court and will
2
OHIO FIRST DISTRICT COURT OF APPEALS
not be disturbed on appeal unless the court abused its discretion. Id. at paragraph
two of the syllabus.
{¶5} Sixth Amendment right to accurate advice concerning
deportation. The due-process protections afforded by Article I, Section 16 of the
Ohio Constitution and the Fourteenth Amendment to the United States Constitution
require that a guilty or no-contest plea “represent[] a voluntary and intelligent choice
among the alternative courses of action open to the defendant.” North Carolina v.
Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); State v. Engle, 74 Ohio
St.3d 525, 527, 660 N.E.2d 450 (1996). A defendant who seeks to withdraw his plea
on the ground that the plea was the unintelligent product of his counsel’s
ineffectiveness must demonstrate that counsel’s representation was constitutionally
deficient, Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), and that “there is a reasonable probability that, but for [that
deficiency, the defendant] would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203
(1985); see State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); State v.
Blackwell, 1st Dist. Hamilton No. C-970150, 1998 Ohio App. LEXIS 1856 (May 1,
1998).
{¶6} For purposes of the Sixth Amendment right to the effective assistance
of counsel, a plea negotiation is a critical phase of a criminal prosecution. Hill at 57.
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the
United States Supreme Court held that the Sixth Amendment imposes upon counsel,
in negotiating a guilty or no-contest plea, the duty to “accurate[ly]” advise a
noncitizen client concerning the immigration consequences of the plea. Padilla at
364 and 374. If the consequence of deportation can be “easily determined from
3
OHIO FIRST DISTRICT COURT OF APPEALS
reading the removal statute,” counsel must inform his client of that fact. “When the
law is not succinct and straightforward,” counsel “need do no more than advise a
noncitizen client that pending criminal charges may carry a risk of adverse
immigration consequences.” Id. at 368-369.
{¶7} Kostyuchenko’s motion. In his motion to withdraw his plea,
Kostyuchenko cited Padilla in support of his contention that his guilty plea had been
the unintelligent product of his trial counsel’s ineffectiveness in advising him
concerning the immigration consequences of his conviction. The motion was
supported by Kostyuchenko’s affidavit. He averred that after he had completed his
one-year jail term, the United States Department of Homeland Security notified him
that his offense constituted an “aggravated felony” under federal immigration law
and thus mandated his deportation, and that his one-year sentence rendered him
ineligible for any form of relief from deportation. Kostyuchenko stated that neither
trial counsel, in urging him to plead guilty, nor the trial court, in accepting his plea,
had advised him that his failure-to-comply conviction mandated his deportation.
And he asserted that if he had known that his conviction would make him
deportable, he would have asked counsel to negotiate for a sentence that would
preserve his eligibility for relief from deportation, or he would have insisted on a
trial.
{¶8} At the hearing on the motion, Kostyuchenko’s trial counsel testified
that he had known that Kostyuchenko was not a United States citizen, and that it had
been his “understanding * * * [b]y and large” that Kostyuchenko’s conviction would
make him “deportable.” But counsel insisted that Kostyuchenko had, throughout the
plea negotiation, expressed indifference concerning the possibility of being deported
and had focused solely on avoiding a prison sentence. Thus, deportation was the
4
OHIO FIRST DISTRICT COURT OF APPEALS
subject of “a very brief conversation” between counsel and Kostyuchenko, during
which counsel advised Kostyuchenko that a felony conviction “could get [him]
deported” and did not discuss with him any available forms of relief from
deportation. Counsel also stated that he had reviewed with Kostyuchenko his plea
form, which memorialized his “understand[ing]” that his conviction “may have the
consequence of deportation.” When the common pleas court asked counsel to
confirm whether he had said “possibly, probably or [had] just read” the form,
counsel responded, “Well, I probably said both, but I know I told him these were the
kinds of offenses that you get deported for.”
{¶9} Kostyuchenko also presented at the hearing the testimony of an
immigration lawyer. The lawyer stated that, for purposes of federal immigration law,
the failure-to-comply offense to which Kostyuchenko had pled was a crime of
violence and an offense relating to obstruction of justice and thus constituted an
aggravated felony, and that it also constituted a crime involving moral turpitude. In
the lawyer’s opinion, under federal immigration law, for “a felony fleeing, it’s pretty
clear it’s not a possibility, not a could or may, it’s a mandatory removal or
deportation.”
{¶10} In granting withdrawal, the common pleas court stated that trial
counsel’s varying testimony had left the court uncertain about what, beyond the
advisement contained in the plea form, counsel had communicated to Kostyuchenko
concerning his plea’s immigration consequences. And because those consequences
were then visited upon Kostyuchenko, the court found “substantial prejudice.” Thus,
the court permitted Kostyuchenko to withdraw his guilty plea on the ground that
counsel’s violation of the duty imposed by Padilla, to accurately advise his noncitizen
client concerning the immigration consequences of his guilty plea, had denied
5
OHIO FIRST DISTRICT COURT OF APPEALS
Kostyuchenko his Sixth Amendment right to the effective assistance of counsel. We
hold that the court did not abuse its discretion in granting the motion.
{¶11} Inaccurate advice concerning deportation. Federal
immigration law expressly mandates the removal of “[a]ny alien * * * convicted of an
aggravated felony.” 8 U.S.C. 1227(a)(2)(A)(iii). An “aggravated felony” is defined to
include “an offense relating to obstruction of justice * * * for which the term of
imprisonment is at least one year.” 8 U.S.C. 1101(a)(43)(S). An “aggravated felony”
is also defined to include “a crime of violence (as defined in section 16 of title 18,
United States Code * * *) for which the term of imprisonment [is] at least one year.”
8 U.S.C. 1101(a)(43)(F). A “crime of violence” is, in turn, defined to include an
“offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of
committing the offense.” 18 U.S.C. 16(b).
{¶12} Kostyuchenko was convicted upon his guilty plea to the third-degree
felony of failure to comply with the order or signal of a police officer in violation of
R.C. 2921.331(B). Specifically, he was found guilty of, and was sentenced to a year in
jail for, “causing a substantial risk of serious physical harm to persons or property”
by “willfully elud[ing] or flee[ing]” the signal of a police officer. See R.C.
2921.331(C)(5)(a)(ii). R.C. Chapter 2921 proscribes “OFFENSES AGAINST
JUSTICE,” and the failure-to-comply statute is grouped with those statutes
proscribing “OBSTRUCTING AND ESCAPE.”
{¶13} From reading the immigration statutes, it is clear that Kostyuchenko’s
failure-to-comply offense was both “an offense relating to obstruction of justice” and
“a crime of violence” and thus constituted an “aggravated felony” mandating his
deportation. Therefore, trial counsel, in negotiating Kostyuchenko’s guilty plea, had
6
OHIO FIRST DISTRICT COURT OF APPEALS
a duty under Padilla to ascertain from the immigration statutes, and to accurately
advise him, that his conviction mandated his deportation. And the record supports
the common pleas court’s conclusion that counsel breached that duty.
{¶14} Prejudice. As for whether counsel’s breach of his duty under Padilla
prejudiced Kostyuchenko, we note that counsel had reviewed with Kostyuchenko,
and that Kostyuchenko had executed, a plea form acknowledging his noncitizen
status and affirming his “understand[ing] that * * * a conviction of the offense(s) to
which [he was] pleading Guilty may have the consequence of deportation, exclusion
from admission to the United States, or denial of naturalization pursuant to the laws
of the United States.” Then, at the plea hearing, the trial court, as required by R.C.
2943.031, advised Kostyuchenko that “there may be a consequence for [his
conviction] which would be possibly deportation, denial of your admission to the
United States, or exclusion from admission, or denial of your naturalization * * *
pursuant to * * * the laws of the United States.” (Emphasis added.)
{¶15} But the plea form and the R.C. 2943.031 advisement, because they
informed Kostyuchenko only that he “may” be deported, did not provide the degree
of “accura[cy]” concerning immigration consequences that Padilla demands when,
as here, federal immigration law plainly mandates deportation. See Padilla, 559 U.S.
at 364, 130 S.Ct. 1473, 176 L.Ed.2d 284. Therefore, neither counsel’s review of the
plea form with Kostyuchenko, nor the trial court’s compliance with R.C. 2943.031,
effectively precluded a finding that Kostyuchenko had been prejudiced by counsel’s
violation of his duty under Padilla to advise him that he would be deported. See
State v. Arrunategui, 9th Dist. Summit No. 26547, 2013-Ohio-1525, ¶ 15 (rejecting
the state’s argument that compliance with R.C. 2943.031(A) “in and of itself
prevent[ed]” a showing of prejudice when deportation was mandatory); State v.
7
OHIO FIRST DISTRICT COURT OF APPEALS
Yahya, 10th Dist. Franklin No. 10AP-1190, 2011-Ohio-6090, ¶ 17 (holding that the
R.C. 2943.031 advisement “would not necessarily cure [counsel’s] error” in advising
defendant that she would not be deported); see also State v. Hrnjak, 9th Dist.
Summit No. 26553, 2013-Ohio-5726, ¶ 13-14 (finding no Padilla violation when
counsel and the court went beyond the statutory advisement to warn “that
deportation was all but certain”); State v. Guerrero, 12th Dist. Butler No. CA2010-
09-231, 2011-Ohio-6530, ¶ 18-20 (finding no prejudice, when the court gave the R.C.
2943.031 advisement plus “strong warnings that deportation would be sought”);
State v. Andreias, 6th Dist. Erie No. E-10-070, 2011-Ohio-5030, ¶ 21 (holding that
“the court cured any prejudice with a thorough and clear explanation to appellant of
all potential ramifications”). Compare State v. Bains, 8th Dist. Cuyahoga No. 94330,
2010-Ohio-5143, ¶ 29 (finding no prejudice when the court gave the statutory
advisement and then “clearly advised defendant on several occasions that his
conviction would subject him to deportation”), with State v. Lababidi, 8th Dist.
Cuyahoga No. 96755, 2012-Ohio-267, ¶ 15 (citing Bains to hold that the “court’s
advisement of potential deportation cured” counsel’s failure to advise that
deportation was “automatic”), and ¶ 20-21 (Gallagher, J., concurring) (distinguishing
Bains as involving “a clear advisement that went beyond the mandate of R.C.
2943.031(A),” and stating that the “statutory warning that a person ‘may’ be
deported does not necessarily cure the prejudice created by an attorney’s advisement
that a defendant ‘may’ be deported when the defendant is, in effect, presumptively
deportable”).
{¶16} Moreover, Kostyuchenko provided evidence upon which the common
pleas court might reasonably have concluded that his counsel’s deficient
performance had prejudiced him. Counsel testified at the hearing that Kostyuchenko
8
OHIO FIRST DISTRICT COURT OF APPEALS
had been unconcerned during plea negotiations with being deported. But
Kostyuchenko averred in his affidavit, to the contrary, that if he had known that his
failure-to-comply conviction mandated his deportation, he would not have pled to
that offense and would have insisted either on a trial or on a sentence that preserved
his eligibility for relief from deportation.
{¶17} We affirm. Thus, Kostyuchenko supported his ineffective-
assistance-of-counsel claim with evidence that counsel had breached the duty under
Padilla to accurately advise him concerning the immigration consequences of his
guilty plea, and that there was a reasonable probability that, but for his counsel’s
deficient performance, he would not have pled guilty, but would have insisted on
going to trial. Because the record supports a determination that the withdrawal of
Kostyuchenko’s guilty plea was necessary to correct a manifest injustice, we hold that
the common pleas court did not abuse its discretion in granting his Crim.R. 32.1
motion. Accordingly, we overrule the assignment of error and affirm the judgment of
the common pleas court.
Judgment affirmed.
HENDON, P.J., CUNNINGHAM and FISCHER, JJ.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
9
| {
"pile_set_name": "FreeLaw"
} |
746 N.W.2d 814 (2008)
SAENZ
v.
FRANK.
No. 2007AP0710.
Supreme Court of Wisconsin.
February 5, 2008.
Petition for review dismissed.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1002
JAMES JOHNSON,
Plaintiff, Appellee,
v.
WATTS REGULATOR COMPANY, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Cyr, Circuit Judge.
Eleanor H. MacLellan, with whom Sean M. Dunne, Ross M.
Weisman, and Sulloway & Hollis were on brief, for appellants.
Christopher J. Seufert, with whom Seufert Professional
Association was on brief, for appellee.
August 23, 1995
SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.
address, for the first time, a "safe harbor" regulation
promulgated by the Secretary of Labor (the Secretary) as a means
of exempting certain group insurance programs from the strictures
of the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. 1001-1461. Determining, as we do, that the district
court appropriately applied the regulation, and discerning no
clear error in the court's factual findings on other issues in
the case, we affirm the judgment below.
I. BACKGROUND
I. BACKGROUND
Plaintiff-appellee James Johnson worked as a forklift
operator at the Webster Valve division of defendant-appellant
Watts Regulator Co. (Watts) in Franklin, New Hampshire. While so
employed, plaintiff elected to participate in a group insurance
program made available to Watts' employees by defendant-appellant
CIGNA Employee Benefit Company d/b/a Life Insurance Company of
North America (CIGNA). Under the program plaintiff received
insurance protection against accidental death, dismemberment, and
permanent disability. He paid the premium through a payroll
deduction plan. Watts, in turn, remitted the premium payments to
CIGNA.
On June 15, 1990, while a participant in the program,
plaintiff sustained a severe head injury in a motorcycle
accident. He remained disabled for the ensuing year, and, having
crossed the policy's temporal threshold, he applied for benefits
on July 17, 1991. CIGNA turned him down, claiming that he
2
retained the residual capacity to do some work. Plaintiff then
sued Watts and CIGNA in a New Hampshire state court. Postulating
the existence of an ERISA-related federal question, the
defendants removed the action to the district court.
Following an evidentiary hearing, the district court
ruled that ERISA did not pertain. See Johnson v. Watts Regulator
Co., No. 92-508-JD, 1994 WL 258788 (D.N.H. May 3, 1994).
Nevertheless, the court denied plaintiff's motion to remand,
noting diverse citizenship and the existence of a controversy in
the requisite amount. See 28 U.S.C. 1332(a). The parties
subsequently tried the case to the bench. The judge heard the
evidence, perused the group policy, applied New Hampshire law,
found plaintiff to be totally and permanently disabled, and
awarded the maximum benefit, together with attorneys' fees and
costs. See Johnson v. Watts Regulator Co., No. 92-508-JD, 1994
WL 587801 (D.N.H. Oct. 26, 1994). This appeal ensued.
II. THE ERISA ISSUE
II. THE ERISA ISSUE
The curtain-raiser question in this case involves
whether the program under which Johnson sought benefits is
subject to Title I of ERISA. Confronting this issue requires
that we interpret and apply the Secretary's safe harbor
regulation, 29 C.F.R. 2510.3-1(j) (1994). We divide this part
of our analysis into four segments. First, we explain why the
curtain-raiser question matters. Second, we limn the applicable
standard of review. Third, we discuss the regulation itself and
how it fits into the statutory and regulatory scheme. Fourth, we
3
scrutinize the record and test the district court's conclusion
that the program is within the safe harbor.
A. The ERISA Difference.
A. The ERISA Difference.
From the earliest stages of the litigation, a
controversy has raged over the relationship, if any, between
ERISA and the group insurance program underwritten by CIGNA.
This controversy stems from perceived self-interest: if ERISA
applies, preemption is triggered, see 29 U.S.C. 1144(a), and,
in many situations, the substitution of ERISA principles (whether
derived from the statute itself or from federal common law) for
state-law principles can make a pronounced difference. For
example, ERISA preemption may cause potential state-law remedies
to vanish, see, e.g., Carlo v. Reed Rolled Thread Die Co., 49
F.3d 790, 794 (1st Cir. 1995); McCoy v. Massachusetts Inst. of
Technology, 950 F.2d 13, 18 (1st Cir. 1991), cert. denied, 504
U.S. 910 (1992), or may change the standard of review, see, e.g.,
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1988),
or may affect the admissibility of evidence, see, e.g., Taft v.
Equitable Life Ins. Co., 9 F.3d 1469, 1471-72 (9th Cir. 1993), or
may determine whether a jury trial is available, see, e.g., Blake
v. Unionmutual Stock Life Ins. Co., 906 F.2d 1525, 1526 (11th
Cir. 1990).
We are uncertain which of these boggarts has captured
the minds of the protagonists in this case. But exploring that
question does not strike us as a prudent use of scarce judicial
resources. Given the marshalled realities the parties agree
4
that the ERISA difference is of potential significance here; they
successfully persuaded the district court to that view; and it is
entirely plausible under the circumstances of this case that the
applicability vel non of ERISA makes a meaningful difference we
refrain from speculation about the parties' tactical goals and
proceed directly to a determination of whether the court below
correctly concluded that state law provides the rule of decision.
B. Standard of Review.
B. Standard of Review.
The question of whether ERISA applies to a particular
plan or program requires an evaluation of the facts combined with
an elucidation of the law. See, e.g., Kulinski v. Medtronic Bio-
Medicus, Inc., 21 F.3d 254, 256 (8th Cir. 1994) (explaining that
the existence of an ERISA plan is a mixed question of fact and
law); Peckham v. Gem State Mut., 964 F.2d 1043, 1047 n.5 (10th
Cir. 1992) (similar). For purposes of appellate review, mixed
questions of fact and law ordinarily fall along a degree-of-
deference continuum, ranging from plenary review for law-
dominated questions to clear-error review for fact-dominated
questions. See In re Extradition of Howard, 996 F.2d 1320, 1327-
28 (1st Cir. 1993). Plenary review is, of course,
nondeferential, whereas clear-error review is quite deferential.
See id. Both standards are in play here.
The interpretation of a regulation presents a purely
legal question, sparking de novo review. See, e.g., Strickland
v. Commissioner, Me. Dep't of Human Serv., 48 F.3d 12, 16 (1st
Cir. 1994); Liberty Mut. Ins. Co. v. Commercial Union Ins. Co.,
5
978 F.2d 750, 757 (1st Cir. 1992). Once the meaning of the
regulation has been clarified, however, the "mixed" question that
remains the regulation's applicability in a given case may
require factfinding, and if it does, that factfinding is reviewed
only for clear error. To that extent, the existence of an ERISA
plan becomes primarily a question of fact. See Wickman v.
Northwestern Nat'l Ins. Co., 908 F.2d 1077, 1082 (1st Cir.),
cert. denied, 498 U.S. 1013 (1990); Kanne v. Connecticut Gen.
Life Ins. Co., 867 F.2d 489, 492 (9th Cir. 1988), cert. denied,
492 U.S. 906 (1989).
C. Statutory and Regulatory Context.
C. Statutory and Regulatory Context.
Congress enacted ERISA to protect the interests of
participants in employee benefit plans (including the interests
of participants' beneficiaries). See 29 U.S.C. 1001(a) & (b);
see also Curtiss-Wright Corp. v. Schoonejongen, 115 S. Ct. 1223,
1230 (1995); Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 15-16
(1987). ERISA safeguards these interests in a variety of ways,
e.g., by creating comprehensive reporting and disclosure
requirements, see 29 U.S.C. 1021-1031, by setting standards of
conduct for fiduciaries, see id. 1101-1114, and by
establishing an appropriate remedial framework, see id. 1131-
1145. An integral part of the statutory scheme is a broadly
worded preemption clause that, in respect to covered employee
benefit plans, sets to one side "all laws, decisions, rules,
regulations, or other State action having the effect of law, of
any State." Id. 1144(a). The purpose of the preemption clause
6
is to enhance the efficient operation of the federal statute by
encouraging uniformity of regulatory treatment through the
elimination of state and local supervision over ERISA plans. See
Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 142 (1990); McCoy,
950 F.2d at 18.
For an employee welfare benefit plan or program to come
within ERISA's sphere of influence, it must, among other things,
be "established or maintained" by an employer,1 an employee
organization, or both. See 29 U.S.C. 1002(1); see also
Wickman, 908 F.2d at 1082 (enumerating necessary components of an
ERISA plan); Donovan v. Dillingham, 688 F.2d 1367, 1370 (11th
Cir. 1982) (en banc)(same). The parties agree that the group
insurance program that CIGNA wrote for Watts' employees, covering
accidental death, dismemberment, and permanent disability,
qualifies as a "program" of employee welfare benefits as that
term is used in the statute. See generally 29 U.S.C. 1002(1).
Hence, the ERISA question reduces to whether the program is one
"established or maintained" by an employer.
To address this very requirement, the Secretary of
Labor, pursuant to 29 U.S.C. 1135 (authorizing the Secretary to
promulgate interpretive regulations in the ERISA milieu),
promulgated a safe harbor regulation describing when (and to what
extent) an employer or a trade union may be involved with an
1The statute also requires that the employer be "engaged in
commerce" or in an industry or activity affecting commerce. 29
U.S.C. 1003(2). It is undisputed that Watts meets this
criterion.
7
employee welfare benefit program without being deemed to have
"established or maintained" it. See 40 Fed. Reg. 34,527 (1975)
(explaining the rationale underlying the safe harbor regulation);
see also Silvera v. Mutual Life Ins. Co., 884 F.2d 423, 426 (9th
Cir. 1989); see generally Ronald J. Cooke, ERISA Practice and
Procedure 2.06 (1994). The regulation provides in relevant
part that the term
"employee welfare benefit plan" shall not
include a group or group-type insurance
program offered by an insurer to employees or
members of an employee organization, under
which:
(1) No contributions are made by an employer
or employee organization;
(2) Participation [in] the program is
completely voluntary for employees or
members;
(3) The sole functions of the employer or
employee organization with respect to the
program are, without endorsing the program,
to permit the insurer to publicize the
program to employees or members, to collect
premiums through payroll deductions or dues
checkoffs and to remit them to the insurer;
and
(4) The employer or employee organization
receives no consideration in the form of cash
or otherwise in connection with the program,
other than reasonable compensation, excluding
any profit, for administrative services
actually rendered in connection with payroll
deductions or dues checkoffs.
29 C.F.R. 2510.3-1(j). A program that satisfies the
regulation's standards will be deemed not to have been
"established or maintained" by the employer. The converse,
however, is not necessarily true; a program that fails to satisfy
8
the regulation's standards is not automatically deemed to have
been "established or maintained" by the employer, but, rather, is
subject to further evaluation under the conventional tests. See
Hansenv. Continental Ins. Co., 940 F.2d 971, 976 (5th Cir. 1991).
Here, we need not proceed beyond the regulation itself.
The safe harbor dredged by the regulation operates on the premise
that the absence of employer involvement vitiates the necessity
for ERISA safeguards. In theory, an employer can assist its work
force by arranging for the provision of desirable coverage at
attractive rates, but, by complying with the regulation, assure
itself that, if it acts only as an honest broker and remains
neutral vis-a-vis the plan's operation, it will not be put to the
trouble and expense that meeting ERISA's requirements entails.
Failure to fulfill any one of the four criteria listed in the
regulation, however, closes the safe harbor and exposes a group
insurance program, if it otherwise qualifies as an ERISA program,
to the strictures of the Act. See Qualls v. Blue Cross of Cal.,
Inc., 22 F.3d 839, 843 (9th Cir. 1994); Fugarino v. Hartford Life
& Accident Ins. Co., 969 F.2d 178, 184 (6th Cir. 1992), cert.
denied, 113 S. Ct. 1401 (1993); Memorial Hosp. Sys. v. Northbrook
Life Ins. Co., 904 F.2d 236, 241 n.6 (5th Cir. 1990); Kanne, 867
F.2d at 492.
In the instant case, the first, second, and fourth
criteria are not in dispute. Plaintiff paid the premium without
the employer's financial assistance; the decision to purchase the
coverage was his and his alone; and Watts received no forbidden
9
consideration. We concentrate, therefore, on the regulation's
third facet. This is a fitting focus, as the Department of Labor
has called the employer neutrality that the third facet evokes
"the key to the rationale for not treating such a program as an
employee benefit plan . . . ." 40 Fed. Reg. 34,526.
In dealing with the regulation, courts have echoed the
agency's view of the importance of employer neutrality. See,
e.g., Hensley v. Philadelphia Life Ins. Co., 878 F. Supp. 1465,
1471 (N.D. Ala. 1995); du Mortier v. Massachusetts Gen. Life Ins.
Co., 805 F. Supp. 816, 821 (C.D. Cal. 1992). But as the
regulation itself indicates, remaining neutral does not require
an employer to build a moat around a program or to separate
itself from all aspects of program administration. Thus, as long
as the employer merely advises employees of the availability of
group insurance, accepts payroll deductions, passes them on to
the insurer, and performs other ministerial tasks that assist the
insurer in publicizing the program, it will not be deemed to have
endorsed the program under section 2510.3-1(j)(3). See Kanne,
867 F.2d at 492; du Mortier, 805 F. Supp. at 821. It is only
when an employer purposes to do more, and takes substantial steps
in that direction, that it offends the ideal of employer
neutrality and brings ERISA into the picture. See, e.g., Kanne,
867 F.2d at 492-93 (holding that an employer group crossed the
line when it established a trust entity in its name for purposes
of plan administration); Brundage-Peterson v. Compcare Health
Servs. Ins. Corp., 877 F.2d 509, 510-11 (7th Cir. 1989) (finding
10
that an employer who determined eligibility, contributed
premiums, and collected and remitted premiums paid for dependents
did not qualify for the safe harbor exemption); Shiffler v.
Equitable Life Assur. Soc. of U.S., 663 F. Supp. 155, 161 (E.D.
Pa. 1986) (finding that an employer that touted a group policy to
employees as part of its customary benefits package, and that
specifically endorsed the policy, did not qualify for the safe
harbor exemption), aff'd, 838 F.2d 78 (3d Cir. 1988). This case
falls between these extremes, and requires us to clarify the
standard for endorsement under section 2510.3-1(j)(3).
The Department of Labor has linked endorsement of a
program on the part of an employee organization to its engagement
"in activities that would lead a member reasonably to conclude
that the program is part of a benefit arrangement established or
maintained by the employee organization." Dep't of Labor Op. No.
94-26A (1994).2 What is sauce for the goose is sauce for the
gander. Thus, we believe that the agency, in a proper case, will
link endorsement on an employer's part to its engagement in
activities that would lead a worker reasonably to conclude that a
particular group insurance program is part of a benefit
arrangement backed by the company.
This conclusion is bolstered by the Department's stated
rationale to the effect that a communication to employees
2Opinion letters issued by the Secretary of Labor are not
controlling even in the cases for which they are authored. See
Reich v. Newspapers of New Eng., Inc., 44 F.3d 1060, 1070 (1st
Cir. 1995). Nonetheless, courts may derive guidance from them.
See id.
11
indicating that an employer has arranged for a group or group-
type insurance program would constitute an endorsement within the
meaning of section 2510.3-1(j)(3) if, taken together with other
employer activities, it leads employees reasonably to conclude
that the program is one established or maintained by the
communicator. See id.; see also 40 Fed. Reg. 34,526 (explaining
that the current phrasing of the safe harbor provision replaced
an earlier version requiring that the employer make no
representation to its employees that the insurance program is a
benefit of employment because critics found the earlier version
"too vague and difficult to apply"). In short, the agency has
suggested that the employees' viewpoint should constitute the
principal frame of reference in determining whether endorsement
occurred.
The interpretation of the safe harbor regulation by the
agency charged with administering and enforcing ERISA is entitled
to substantial deference. See Berkshire Scenic Ry. Museum, Inc.
v. ICC, 52 F.3d 378, 381-82 (1st Cir. 1995); Keyes v. Secretary
of the Navy, 853 F.2d 1016, 1021 (1st Cir. 1988). Here,
moreover, the respect usually accorded an agency's interpretation
of a statute is magnified since the agency is interpreting its
own regulation. See Arkansas v. Oklahoma, 503 U.S. 91, 112
(1992); Puerto Rico Aqueduct & Sewer Auth. v. United States EPA,
35 F.3d 600, 604 (1st Cir. 1994), cert. denied, 115 S. Ct. 1096
(1995). So long as the agency's interpretation does not do
violence to the purpose and wording of the regulation, or
12
otherwise cross into forbidden terrain, courts should defer. See
Martin v. OSHRC, 499 U.S. 144, 150 (1991); see also Stinson v.
United States, 113 S. Ct. 1913, 1919 (1993) (holding that an
agency's interpretation of its own regulations must be given
controlling weight unless plainly erroneous, inconsistent with a
federal statute, or unconstitutional); Kelly v. United States,
924 F.2d 355, 361 (1st Cir. 1991) (similar).
In this instance, we believe that deference is due.
The Secretary's sense of the safe harbor regulation is consonant
with both the regulation's text and the overlying statute. And,
moreover, looking at the employer's conduct from the employees'
place of vantage best ensures that employer neutrality remains a
reality rather than a mere illusion. Phrased another way,
judging endorsement from the viewpoint of an objectively
reasonable employee most efficaciously serves ERISA's fundamental
objective: the protection of employee benefit plan participants
and their beneficiaries.
We rule, therefore, that an employer will be said to
have endorsed a program within the purview of the Secretary's
safe harbor regulation if, in light of all the surrounding facts
and circumstances, an objectively reasonable employee would
conclude on the basis of the employer's actions that the employer
had not merely facilitated the program's availability but had
exercised control over it or made it appear to be part and parcel
of the company's own benefit package.
D. Analysis.
D. Analysis.
13
Here, the district court interpreted the regulation
correctly and concluded that the company had not endorsed the
group insurance program. This conclusion is fact-driven, and,
thus, reviewable only for clear error.3 See Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); see also Fed.
R. Civ. P. 52(a). Thus, the trier's findings of fact cannot be
set aside unless, on reviewing all the evidence, the court of
appeals is left with an abiding conviction that a mistake has
been committed. See Dedham Water Co. v. Cumberland Farms Dairy,
Inc., 972 F.2d 453, 457 (1st Cir. 1992); Cumpiano, 902 F.2d at
152-153. Applying this deferential standard, we cannot say that
the trial court's "no endorsement" finding is clearly erroneous.
The anatomy of the court's determination is
instructive. Based primarily on the testimony of two corporate
officials Watts' benefits administrator and Webster Valve's
employee relations manager the court found that the company had
3The question of endorsement vel non is a mixed question of
fact and law. In some cases the evidence will point unerringly
in one direction so that a rational factfinder can reach but one
conclusion. In those cases, endorsement becomes a matter of law.
Cf. Griffin v. United States, 502 U.S. 46, 55 n.1 (1991)
(discussing "adequacy on the proof as made" as meaning not
whether the evidence sufficed to enable an alleged fact to be
found, but, rather, whether the facts adduced at trial sufficed
in law to support a verdict); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986) (describing the appropriate mode of
inquiry for directed verdicts and summary judgments). In other
cases, the legal significance of the facts is less certain, and
the outcome will depend on the inferences that the factfinder
chooses to draw. See, e.g., TSC Indus., Inc. v. Northway, Inc.,
426 U.S. 438, 450 (1976); In re Varasso, 37 F.3d 760, 763 (1st
Cir. 1994). In those cases, endorsement becomes a question of
fact. This case is of the latter type.
14
made its employees aware of the opportunity to obtain coverage,
but had stopped short of endorsing the program. CIGNA drafted
the policy and, presumably, set the premium rates. Although
Watts distributed the sales brochure, waiver-of-insurance cards,
and enrollment cards, those efforts were undertaken to help CIGNA
publicize the program; the documents themselves were prepared and
printed by CIGNA, and delivered by it to Watts for distribution.
Watts recommended enrollment via a cover letter (reproduced as an
appendix hereto) written on the letterhead of Watts Industries
and signed by its vice-president for financial matters. CIGNA
typeset the letter and incorporated it into the cover page of the
brochure. The letter explicitly informed Watts' employees that
the enrollment decision was theirs to make. Watts nowhere
suggested that it had any control over, or proprietary interest
in, the group insurance program. And, finally, neither the
letter nor any other passage in the brochure mentioned ERISA.
The district court also examined Watts' other
activities concerning the program. Watts collected premiums
through payroll deductions, remitted the premiums to CIGNA,
issued certificates to enrolled employees confirming the
commencement of coverage, maintained a list of insured persons
for its own records, and assisted CIGNA in securing appropriate
documentation when claims eventuated. Watts' activities in this
respect consisted principally of filling out the employer portion
of the claim form, inserting statistical information maintained
in Watts' personnel files (such as the insured's name, address,
15
age, classification, and date of hire), making various forms
available to employees (e.g., claim forms),4 and keeping track
of employee eligibility. Watts would follow up on a claim to
determine its status, if CIGNA requested that Watts do so, and
would occasionally answer a broker's questions about a claim. In
sum, Watts performed only administrative tasks, eschewing any
role in the substantive aspects of program design and operation.
It had no hand in drafting the plan, working out its structural
components, determining eligibility for coverage, interpreting
policy language, investigating, allowing and disallowing claims,
handling litigation, or negotiating settlements.
In the last analysis, the district court found that
Watts' cover letter fell short of constituting an endorsement.
The court pointed out that neither the letter nor the brochure
expressly stated that the employer endorsed the program. Apart
from the letter, the court concluded that Watts had performed
only ministerial activities, and that these activities (whether
viewed alone or in conjunction with the cover letter) did not
rise to the level of an endorsement.
We believe that this finding deserves our allegiance.
Drawing permissible inferences from the evidence, the trial court
could plausibly conclude on this scumbled record that an
objectively reasonable employee would not have thought that Watts
endorsed the group insurance program. Several considerations
4CIGNA prepared and printed all such forms, and sent a
supply of forms to Watts.
16
lead us in this direction. We offer a representative sampling.
First, we think that endorsement of a program requires
more than merely recommending it. An employer's publicly
expressed opinion as to the quality, utility and/or value of an
insurance plan, without more, while relevant to (and perhaps
probative of) endorsement, will most often not indicate employer
control of the plan. Second, the administrative functions that
Watts undertook fit comfortably within the Secretary's
regulation. Activities such as issuing certificates of coverage
and maintaining a list of enrollees are plainly ancillary to a
permitted function (implementing payroll deductions). Activities
such as answering brokers' questions similarly can be viewed as
assisting the insurer in publicizing the plan. Other activities
that arguably fall closer to the line, such as the tracking of
eligibility status, are completely compatible with the
regulation's aims. Under the circumstances, the court lawfully
could find that the employer's activities, in the aggregate, did
not take the case out of the safe harbor.5 See, e.g., Brundage-
5Appellants stress the fact that Watts unilaterally prepared
and filed a Form 5500 with the Internal Revenue Service. This is
an example of the mountain laboring, but bringing forth a mouse.
Such forms are informational in nature and are designed to comply
with various reporting requirements that ERISA imposes. See
Cooke, supra, 3.10, at 3-34. But, there is no evidence to
suggest that Watts' employees knew of this protective filing, and
it is surpassingly difficult for us to fathom how the filing
makes a dispositive difference. Although the inference that
compiling the tax form demonstrated Watts' intent to provide an
ERISA plan does not escape us, but cf. Kanne, 867 F.2d at 493
(explaining that a brochure describing a plan as an ERISA plan
evidences the intent of the employer to create an ERISA plan, but
the same may not be said of the filing of a tax return), it is
entirely possible, as the plaintiff suggests, that the form was
17
Peterson, 877 F.2d at 510 (assuming that steps such as
"distributing advertising brochures from insurance providers, or
answering questions of its employees concerning insurance, or
even deducting the insurance premiums from its employees'
paychecks and remitting them to the insurers," do not force
employers out of the safe harbor provision); du Mortier, 805 F.
Supp. at 821 (holding that activities such as maintaining a file
of informational materials, distributing forms to employees, and
submitting completed forms to the insurer, do not transcend the
boundaries of the safe harbor).
In arguing for reversal, appellants rely on Hansen v.
Continental Ins. Co., a case that involved a similar situation.
In Hansen, as here, participation in the plan was voluntary, and
premiums were paid by the employees via payroll deduction. See
Hansen, 940 F.2d at 973. The employer collected the premiums,
remitted them to the insurer, and employed an administrator who
accepted claim forms and transmitted them to the carrier. See
id. at 974. In addition, the employees received a booklet
embossed with the employer's corporate logo that described the
plan and encouraged employee participation. The court found that
the company had endorsed the plan. See id.
Despite the resemblances, there are two critical facts
that distinguish Hansen from the case at bar. First, in Hansen
the corporate logo was embossed on the booklet itself, see id.,
filed merely as a precaution. In any event, this case turns on
the employer's activities, not its intentions.
18
making it appear that the employer vouched for the entire
brochure (and for the plan). Here, however, only Watts' letter
bore its imprimatur. Second, and perhaps more cogent, the
booklet at issue in Hansen described the policy as the company's
plan, see id. ("our plan"), while here, the letter typeset onto
the booklet describes the policy as a plan offered by another
organization.6 Though the appellants decry the distinction as
merely a matter of semantics, words are often significant in
determining legal rights and obligations. See generally Felix
Frankfurter, Some Reflections on the Reading of Statutes 29
(1947) ("Exactness in the use of words is the basis of all
serious thinking.").
In the difference between "our plan" and "a plan" lies
the quintessential meaning of endorsement. If a plan or program
is the employer's plan or program, the safe harbor does not
beckon. See, e.g., Sorel v. CIGNA, 1994 WL 605726, at *2 (D.N.H.
Nov. 1, 1994) (holding that statement describing policy as
employer's plan on first page of plan description indicates
endorsement); Cockey v. Life Ins. Co. of N. Am., 804 F. Supp.
1571, 1575 (S.D. Ga. 1992) (finding that when employer presents a
program to its employees as an integral part of its own benefits
6There may also be a critical difference between our
approach to the question of endorsement and that adopted in
Hansen. Although the Hansen court did not articulate its ratio
decidendi, at least one district court has come to the conclusion
that Hansen analyzed the situation from the standpoint of the
employer rather than the employee. See Barrett v. Insurance Co.
of N. Am., 813 F. Supp. 798, 800 (N.D. Ala. 1993). This
possibility renders appellants' reliance on Hansen even more
problematic.
19
package, the safe harbor is unavailable); Shiffler, 663 F. Supp.
at 161 (finding endorsement because policy had been hawked to
employees as a part of the company's benefits package); see also
Dep't of Labor Op. No. 94-26A, supra (advising that safe harbor
is unavailable when a union, inter alia, describes a group
insurance program as its program). When, however, the employer
separates itself from the program, making it reasonably clear
that the program is a third party's offering, not subject to the
employer's control, then the safe harbor may be accessible. See
Hansen, 940 F.2d at 977; Kanne, 867 F.2d at 493; Hensley, 878 F.
Supp. at 1471.
This distinction is sensible. When an objectively
reasonable employee reads a brochure describing a program as
belonging to his employer, he is likely to conclude that, if he
participates, he will be dealing with the employer and that he
will therefore enjoy the prophylaxis that ERISA ensures in such
matters. When the possessive pronoun is eliminated in favor of a
neutral article, however, the employee's perception is much more
likely to be that, if he participates, he will be dealing
directly with a third party the insurer and that he will
therefore be beyond the scope of ERISA's protections.
To sum up, we are drawn to three conclusions. First,
the district court did not clearly err in finding that Watts had
not endorsed the group insurance program. Second, the court's
fact-sensitive determination that the program fits within the
parameters of the Secretary's safe harbor regulation is
20
sustainable. Third, since ERISA does not apply, the court below
did not blunder in scrutinizing the merits of plaintiff's
contract claim through the prism of state law.
III. THE DISABILITY ISSUE
III. THE DISABILITY ISSUE
Appellant asseverates that, even if New Hampshire law
controls, the judgment below is insupportable. We turn now to
this asseveration.
The starting point for virtually any claim under a
policy of insurance is the policy itself. Here, the applicable
rider promises benefits to an insured who has been injured in an
accident, whose ensuing disability is "continuous" and "total"
for a year, and who thereafter remains "permanently and totally
disabled." The rider defines "continuous total disability" as a
disability resulting from injuries sustained in an accident,
"commencing within 180 days after the date of the accident,"
lasting for at least a year, and producing during that interval
"the Insured's complete inability to perform every duty of his
occupation."
If an insured meets this benchmark, he must then prove
that he is "permanently and totally disabled." Under the policy
definitions, this phrase signifies "the Insured's complete
inability, after one year of continuous total disability, to
engage in an occupation or employment for which [he] is fitted by
reason of education, training, or experience for the remainder of
his life." It is against this linguistic backdrop that we
inspect appellants' assertion that the trial court erred in
21
finding plaintiff to be totally and permanently disabled.
A. Standard of Review.
A. Standard of Review.
In actions that are tried to the court, the judge's
findings of fact are to be honored unless clearly erroneous,
paying due respect to the judge's right to draw reasonable
inferences and to gauge the credibility of witnesses. See
Cumpiano, 902 F.2d at 152 (citing Fed. R. Civ. P. 52(a));
Reliance Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d
575, 576 (1st Cir. 1989). A corollary of this proposition is
that, when there are two permissible views of the evidence, the
factfinder's choice between them cannot be clearly erroneous.
See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985);
Cumpiano, 902 F.2d at 152. In fine, when a case has been decided
on the facts by a judge sitting jury-waived, an appellate court
must refrain from any temptation to retry the factual issues
anew.
There are, of course, exceptions to the rule. For
example, de novo review supplants clear-error review if, and to
the extent that, findings of fact are predicated on a mistaken
view of the law. See, e.g., United States v. Singer Mfg. Co.,
374 U.S. 174, 195 n.9 (1963); RCI N.E. Servs. Div. v. Boston
Edison Co., 822 F.2d 199, 203 (1st Cir. 1987). This does not
mean, however, that the clearly erroneous standard can be eluded
by the simple expedient of creative relabelling. See Cumpiano,
902 F.2d at 154; Reliance Steel, 880 F.2d at 577. For obvious
reasons, we will not allow a litigant to subvert the mandate of
22
Rule 52(a) by hosting a masquerade, "dressing factual disputes in
`legal' costumery." Reliance Steel, 880 F.2d at 577; accord Dopp
v. Pritzker, 38 F.3d 1239, 1245 (1st Cir. 1994), cert. denied,
115 S. Ct. 1959 (1995).
B. Analysis.
B. Analysis.
Appellants make two main arguments in regard to
plaintiff's disability claim. First, in an effort to skirt Rule
52(a), they assert that the district court committed an error of
law, mistaking the meaning of the phrase "permanently and totally
disabled" as that phrase is used in the policy. We reject the
assertion as comprising nothing more than a clumsy attempt to
recast a clear-error challenge as an issue of law in hope of
securing a more welcoming standard of review. The policy itself
defines the operative term, and the record makes pellucid that
the district judge applied the term within the parameters of that
definition.
Appellants' second contention posits that the district
court misperceived the facts, and that plaintiff was not
sufficiently disabled to merit an award of benefits. This
contention also lacks force. The district court had adequate
grounds for deciding that plaintiff was totally and permanently
disabled. The evidence showed that plaintiff sustained a
devastating brain injury, and that, throughout the year following
his accident, a number of physicians found his disability to be
continuous. By and large, plaintiff's condition did not improve
significantly during that year (or thereafter, for that matter).
23
Without exception, the doctors concluded that he could never
return to work as a forklift driver. To cap matters, the record
contains ample evidence that the plaintiff's disability was
permanent and blanketed the universe of occupations to which
plaintiff a laborer with a high-school education might have
aspired.
We need not cite book and verse. The court made
detailed findings, crediting the conclusions of four doctors who
judged plaintiff to be severely impaired, both mentally and
physically.7 The court also credited an evaluation performed by
Sherri Krasner, a speech and language pathologist, and the
testimony of a vocational rehabilitation counselor, Arthur
Kaufman, who offered an opinion that plaintiff was unable to work
without constant supervision. Kaufman stated that he did not
know of a job suitable for a person in plaintiff's condition.8
7These experts included the attending physician (Dr.
Martino), a neurologist (Dr. Whitlock), a clinical
neuropsychologist (Dr. Higgins), and a psychologist (Dr. Toye).
A fifth physician, Dr. Michele Gaier-Rush, also evaluated
plaintiff. CIGNA chose Dr. Gaier-Rush as its medical examiner
but neglected to provide her with any of plaintiff's plentiful
prior medical records, despite their availability. She concluded
that plaintiff could not perform his usual job but could perform
a job "requiring more mental capacity than physical capacity."
She noted, however, that plaintiff had no formal training beyond
high school, and conceded that "[t]his will probably be a
permanent disability as there does not seem to have been a
significant improvement in the past year." Consequently, she
found it doubtful that plaintiff could ever work again.
8While Kaufman did say that plaintiff might be able to do
some gainful employment with "excessive supervision," and that
plaintiff, like other patients with traumatic brain injuries,
would probably benefit from vocational rehabilitation, Kaufman
expressed doubt that plaintiff would ever overcome his
impairment. In short, he lacked the "capacity to retain . . .
24
On this record, the trial court's total disability finding is
unimpugnable.
Another wave of appellants' evidentiary attack targets
the district court's finding that plaintiff's disability is
permanent. In this respect, appellants rely mainly on the
physicians' recommendations for rehabilitative therapy as
indicative of the potential for recovery. The district court,
however, found appellants' inference unreasonable in light of the
dim prospects for significant recovery, the duration of
plaintiff's inability to work, and the policy's failure to
require vocational rehabilitation as a precondition to the
receipt of benefits. These are fact-dominated issues, and the
trial court is in the best position to calibrate the decisional
scales. See Cumpiano, 902 F.2d at 152. Having examined the
record with care, we have no reason to suspect that a mistake was
committed. See, e.g., Duhaime v. Insurance Co., 86 N.H. 307, 308
(1933) (explaining that, to be permanently disabled, an insured
need not be in a condition of "utter hopelessness").
IV. CONCLUSION
IV. CONCLUSION
We need go no further. ERISA does not apply to the
group insurance program at issue here. Moreover, the district
court's factual findings survive clear-error review.
Consequently, the court's resolution of the case stands.
employment."
25
Affirmed.
Affirmed.
26
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ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Clemons, 2011 IL App (1st) 102329
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DWAYNE CLEMONS, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-10-2329
Filed September 30, 2011
Held In a prosecution for aggravated discharge of a firearm and unlawful use
(Note: This syllabus of a weapon by a felon, the trial court’s denial of defendant’s petition
constitutes no part of under section 2-1401 of the Code of Civil Procedure seeking specific
the opinion of the court performance of his plea agreement was premature where the trial court
but has been prepared sua sponte denied the petition less than 30 days after its filing and service
by the Reporter of without a response by the State; therefore, the denial was vacated and the
Decisions for the cause was remanded for further proceedings.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-21603; the
Review Hon. Brian Flaherty, Judge, presiding.
Judgment Judgment vacated; cause remanded for further proceedings.
Counsel on Michael J. Pelletier and Kieran M. Wiberg, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
P. Needham, and Stacy D. Weber, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE ROCHFORD delivered the judgment of the court, with
opinion.
Presiding Justice Hoffman and Justice Hall concurred in the judgment
and opinion.
OPINION
¶1 Defendant, Dwayne Clemons, appeals the denial of his “MOTION FOR SPECIFIC
PERFORMANCE OF PLEA AGREEMENT” (petition), which he filed pursuant to section
2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)).
Defendant’s sole contention on appeal is that the trial court acted prematurely by denying his
petition within 30 days of its filing and service, pursuant to People v. Laugharn, 233 Ill. 2d
318 (2009). We agree, vacate the denial of defendant’s petition, and remand for further
proceedings.
¶2 I. Background
¶3 Defendant had been charged with 12 counts of aggravated unlawful use of a weapon, 2
counts of unlawful use of a weapon by a felon, 2 counts of aggravated discharge of a firearm,
and 1 count of aggravated assault, all relating to an October 26, 2009, incident. On March
4, 2010, defendant pled guilty to one count each of aggravated discharge of a firearm and
unlawful use of a weapon by a felon and was sentenced to seven years’ imprisonment on
both charges. On that date he also pled guilty to a single charge of aggravated fleeing and
eluding brought in a separate case and was sentenced to three years’ imprisonment. The
sentences were to be served concurrently.
¶4 On April 2, 2010, defendant filed a motion to withdraw his guilty plea through counsel.
The motion contended that, at the time of defendant’s plea, he did not fully understand that
he was required to serve 85% of his sentence for aggravated discharge of a firearm. On April
12, 2010, defendant filed a pro se petition for relief from judgment under section 2-1401 of
the Code, seeking to vacate his sentence because the trial court erroneously had informed
him that he “would serve the seven (7) year term of imprisonment at a good-time rate of
-2-
50%” (emphasis in original), rather than at a rate of 85%. On May 19, 2010, defendant
appeared in court with counsel. The trial court, addressing defendant’s motion to withdraw
the plea, informed defendant: “If you do not understand it, I will let you withdraw your plea
of guilty, and what’s going to happen is that the State’s Attorney is going to be reinstating
all of the charges that they dismissed ***.” Defendant told the trial court that he wished to
withdraw his motion to vacate his plea. There is no evidence in the record on appeal as to the
disposition of the section 2-1401 petition filed on April 12, 2010.
¶5 On June 11, 2010, defendant mailed a “MOTION FOR SPECIFIC PERFORMANCE OF
PLEA AGREEMENT” to the clerk of the circuit court and to the office of the Cook County
State’s Attorney, which requested relief under section 2-1401 of the Code. The petition was
file stamped on June 24, 2010. On appeal, the State has stated that it received notice of the
petition. In his petition, defendant argued that he was deprived of due process because he had
not been informed he would be required to serve 85% of his sentence and requested that his
sentence be modified.
¶6 On July 1, 2010, the State was present in court at a hearing in which the trial court
addressed the defendant’s petition. The trial court sua sponte considered and denied the
petition on that date, without hearing argument or evidence. The trial court stated:
“The defendant negotiated a plea for seven years Illinois Department of Corrections.
That’s what he got. He got eighty-five percent, which he is saying I should have told
him about, and that’s not true. That’s not required. So the motion is denied.”
Defendant filed this timely appeal from the denial of his section 2-1401 petition.
¶7 II. Analysis
¶8 On appeal, defendant cites to Laugharn, contends that the trial court prematurely ruled
upon his petition, and requests that the trial court’s order be vacated and the case remanded.
The State argues that the issues raised in the petition were ripe for adjudication because it
was present in court when the trial court denied defendant’s petition, and, therefore, it had
an opportunity to challenge the petition.
¶9 Section 2-1401 establishes a procedure for seeking relief from judgments, in both
criminal and civil cases, more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2010);
People v. Vincent, 226 Ill. 2d 1, 8 (2007). In general, a section 2-1401 petition must be filed
within two years of the entry of judgment. 735 ILCS 5/2-1401(c) (West 2010). The rules of
civil practice govern proceedings under this section, even in criminal proceedings. Vincent,
226 Ill. 2d at 8. Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) provides that a petitioner
must notify all parties of the petition in accordance with Illinois Supreme Court Rule 105
(eff. Jan. 1, 1989). The notice must inform the responding party that an answer to the petition
is required to be filed within 30 days or a judgment of default may be entered. Ill. S. Ct. R.
105(a) (eff. Jan. 1, 1989); Keener v. City of Herrin, 235 Ill. 2d 338, 348-49 (2009).
¶ 10 “Section 2-1401 petitions are essentially complaints inviting responsive pleadings.”
Vincent, 226 Ill. 2d at 8. Thus, the responding party may move to dismiss the petition for
failure to properly plead a claim for relief or because, on the face of the petition, it is clear
that the petitioner is not entitled to the requested relief. Id. If the opposing party files an
-3-
answer to the petition without filing a motion attacking its sufficiency, any challenge to the
sufficiency of the petition is waived and the petition will be treated by the trial and reviewing
courts as having stated a claim. Id. However, “if the facts alleged cannot state a legal basis
for the relief requested, i.e., the petition is insufficient as a matter of law, the pleading may
be challenged at any time, even on appeal.” Id. at 8-9. The failure to file a responsive
pleading “constitutes an admission of all well-pleaded facts [citation], and the trial court may
decide the case on the pleadings, affidavits, exhibits and supporting material before it,
including the record of the prior proceedings.” Id. at 9. A trial court may dispose of a section
2-1401 petition in five possible ways: (1) dismiss the petition; (2) grant or deny the petition
on the basis of the record as a matter of law; or (3) grant or deny relief after a hearing to
resolve any factual disputes. Id.
¶ 11 The holdings in both Vincent and Laugharn guide our decision here. In Vincent, the
defendant filed a section 2-1401 petition challenging his sentences as violating sections 5-8-
4(a) and 5-8-4(c)(2) of the Unified Code of Corrections. Id. at 5; 730 ILCS 5/5-8-4(a), (c)(2)
(West 1998)). The State did not file responsive pleadings within the 30 days allowed.
Vincent, 225 Ill. 2d at 5. The trial court disposed of the petition by stating orally: “Jake
Vincent. He’s saying that it’s a void judgment, and he wants me to vacate his sentence of a
hundred years, and that will be denied.” (Internal quotation marks omitted.) Id.
¶ 12 The supreme court framed the issue in Vincent as “whether a trial court may dispose of
a properly served section 2-1401 petition without benefit of responsive pleadings and without
giving the petitioner notice of the impending ruling and the opportunity to address the court
prior to the ruling.” Id. at 5. Before addressing this issue, the supreme court emphasized that
a sua sponte dismissal of a section 2-1401 petition was not the same and could not be
considered as a “summary dismissal” of a postconviction petition under the Post-Conviction
Hearing Act (Act) (735 ILCS 5/122-2 et seq. (West 2002)). Vincent, 226 Ill. 2d at 6. The Act
has no application to petitions filed pursuant to section 2-1401, which provide “an entirely
different form of statutory, collateral relief” from criminal convictions and are subject to civil
practice rules. Id. The court concluded that an understanding of this distinction would aid in
orderly trial and appellate review of section 2-1401 petitions. Id.
¶ 13 The supreme court held that the State was not required to answer or otherwise respond
to a section 2-1401 petition, but its failure to do so results in all well-pled facts being
admitted. Id. at 10; see also People v. Allen, 377 Ill. App. 3d 938, 943 (2007) (The failure
to respond “renders the petition ripe for adjudication as a matter of law.”). The court held
that “a trial court ‘may dismiss a claim sua sponte *** without notice where the claimant
cannot possibly win relief.’ ” Vincent, 226 Ill. 2d at 13 (quoting Omar v. Sea-Land Service,
Inc., 813 F.2d 986, 991 (9th Cir. 1987)). The supreme court found that the trial court’s sua
sponte decision to deny the petition did not deprive the defendant of an opportunity to be
heard, in that his petition was filed and considered by the trial court and adequate methods
of review existed to prevent an erroneous sua sponte termination of the section 2-1401
proceedings. Id. at 12-13.
¶ 14 The issues of ripeness and sua sponte determinations of section 2-1401 petitions were
examined by the supreme court again in Laugharn. The defendant in that case filed a section
2-1401 petition on August 24, 2001, challenging her 1996 murder conviction. On September
-4-
2, 2004, the trial court sua sponte dismissed the petition as untimely because it was filed
beyond the two-year filing period set forth in section 2-1401. Laugharn, 233 Ill. 2d at 321.
The supreme court held:
“The circuit court’s sua sponte dismissal of defendant’s petition before the
conclusion of the usual 30-day period to answer or otherwise plead was premature
and requires vacatur of the dismissal order. While Vincent allows for sua sponte
dismissals of section 2-1401 petitions, it did not authorize such action prior to the
expiration of the 30-day period. [Citation.] In Vincent, the State’s failure to answer
the petition within the time for doing so resulted in ‘an admission of all well-pleaded
facts,’ which rendered the petition ‘ripe for adjudication.’ [Citation.]
Laugharn’s petition, in contrast, was not ‘ripe for adjudication.’ Only seven days
had passed since its filing. The circuit court’s dismissal short-circuited the
proceedings and deprived the State of the time it was entitled to answer or otherwise
plead.” Id. at 323.
¶ 15 In this case, the trial court denied the defendant’s petition sua sponte before the 30-day
time to respond had expired. Under Laugharn, defendant’s petition was not ripe for
adjudication.
¶ 16 Nevertheless, on appeal, the State argues it appeared “in court on the petition and offered
no objection” and, therefore, the petition was ripe for adjudication. We disagree.
¶ 17 “To determine whether an issue is ripe for adjudication, we are required to evaluate both
the fitness of the issue for judicial decision and the hardship to the parties of withholding
court consideration.” Cianci v. Safeco Insurance Co. of Illinois, 356 Ill. App. 3d 767, 777
(2005). The State stood silent on the date the trial court sua sponte denied defendant’s
petition, less than 30 days after the petition’s filing and service. However, a failure to
respond to a section 2-1401 petition is of no import and does not frame the issues until after
the 30-day time period to answer has passed and the responding party is in default. Once the
State fails to file a response to the petition within the time allowed, the State may then be
found in default and all well-pled facts contained in the petition will be deemed admitted.
Vincent, 226 Ill. 2d at 14. As set forth in Vincent, the trial court may then review the petition
and determine, based on the record, whether a claim exists as a matter of law. Id. at 10, 14.
Mere silence on the part of the State, within the 30-day period allowed for it to respond to
a defendant’s section 2-1401 petition, does not render the petition ripe for adjudication.
Furthermore, we can perceive of no real hardship to the parties if consideration of the
petition takes place only after expiration of the 30-day time period to respond.
¶ 18 III. Conclusion
¶ 19 For the foregoing reasons, we must vacate the trial court’s premature denial of
defendant’s petition and remand for further proceedings. We express no opinion on the
merits of the substantive arguments raised by defendant in his petition.
¶ 20 Judgment vacated; cause remanded for further proceedings.
-5-
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AD SPECS OF FLORIDA, LLC and MICHELE C. ADAMS d/b/a
PROFORMA GLOBAL SOURCING,
Appellants,
v.
DENA VAN WINKLE, SCHUYLER VAN WINKLE and CORPORATE
MARKETING AND BRANDING, INC. and CORPORATE MARKETING
SOLUTIONS, INC.,
Appellees.
No. 4D16-3411
[December 21, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. CACE15-
002798 (03).
Jonathan B. Sbar and Jodi L. Corrigan of Rocke, McLean & Sbar, P.A.,
Tampa, for appellants.
Stephanie M. Taylor of Thompson Legal, P.A., Davie, for appellees.
PER CURIAM.
Affirmed.
TAYLOR, FORST and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 20 2016, 10:28 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Thomas M. Barr Stephen J. Harants
Tomas M. Barr & Associates Miller & Harants
Nashville, Indiana New Haven, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles E. Gatewood, II, and January 20, 2016
Rita L. Gatewood, Court of Appeals Case No.
Appellants-Defendants, 07A01-1503-EM-108
Appeal from the Brown Circuit
v. Court
The Honorable Judith A. Stewart,
John A. Gatewood, as Personal Judge
Representative of the Estate of Trial Court Cause No.
Margaret H. Gatewood 07C01-1112-EM-42
Appellee-Plaintiff.
Mathias, Judge.
[1] Charles E. Gatewood, II a/k/a Chip (“Chip”) and Rita L. Gatewood (“Rita”)
appeal the judgment of the Brown Circuit Court in favor of John A. Gatewood,
as personal representative of the Estate of Margaret H. Gatewood (“the Estate”)
Court of Appeals of Indiana | Memorandum Decision 07A01-1503-EM-108 | January 20, 2016 Page 1 of 19
in the Estate’s action against Chip and Rita. On appeal, Chip and Rita
(collectively “the Defendants”) present two issues for our review, which we
consolidate and restate as whether the trial court properly applied a
presumption of undue influence in Chip’s and Rita’s transactions with the
decedent.
[2] We affirm.
Statement of Facts
[3] The decedent in this case, Margaret Gatewood, had three children with her
husband, Charles Gatewood, Sr., namely: Suzanne Zupancic (“Suzanne”),
Chip, and John Gatewood (“John”). Margaret also had a granddaughter,
Laurie Linback (“Laurie”) who was Suzanne’s daughter. Charles, Sr. passed
away in 1999.
[4] Chip married Rita in 1984. From that date until 2009, Chip and Rita lived in a
mobile home on property adjacent to Margaret’s home. Both Chip and Rita
helped Margaret with mowing and other upkeep on her property, especially
after the death of Charles, Sr.
[5] Margaret was an independent and strong-willed woman most of her life. When
her husband was alive, he and Margaret would make an annual trip to Disney
World in Florida, staying at a campground at the park from January to March.
After her husband’s death, Margaret continued to spend the winter months in
Florida. By 2007, Margaret showed signs of slowing down. Although she was
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able to live by herself and even travel to Florida, Margaret began to suffer from
memory loss and had issues maintaining her balance.
[6] When Margaret was in Florida in the winter of 2007, Laurie reviewed
Margaret’s checkbook and found checks that had been made but not recorded,
which was very unusual. She also noticed that some of these unrecorded checks
had been made out to Chip and Rita when Margaret was in Florida. Shortly
thereafter, Margaret removed Rita as a signatory from her bank accounts and
her certificates of deposit and instead added Laurie as a signatory. In April of
2007, Laurie then obtained power of attorney from Margaret.
[7] Margaret again made her annual trip to Florida in 2008 with Laurie
accompanying her, but Margaret’s condition gradually worsened. In the winter
of 2009, Margaret again made her annual trip to Florida, this time without
Laurie. Laurie received a call from Margaret’s neighbor in Florida who was
concerned with Margaret’s welfare. Laurie attempted to contact her
grandmother in Florida but could not reach her. Concerned for Margaret’s
wellbeing, Laurie and her mother Suzanne traveled to Florida to check on
Margaret. There, they found Margaret living in squalid conditions: the home
was filthy, feces were on the carpet, and Margaret was apparently not taking
her medications, as the medicines were unopened. Margaret also appeared not
to have bathed since she had arrived a month ago, and she had lost a substantial
amount of weight. Laurie and Suzanne cleaned Margaret up and flew back to
Indiana with her a few days later.
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[8] Once in Indiana, Laurie took Margaret to her family physician, who referred
her to neurologist Doctor Abdulkarin Sharba (“Dr. Sharba”). When Dr. Sharba
examined Margaret on March 11, 2009, she was unable to read or write a
sentence, and she was disoriented as to both her location and the current year.
Dr. Sharba diagnosed Margaret with at least moderate dementia.
[9] With the agreement of all of the family, Margaret was admitted to the
Methodist Home in Franklin, Indiana, for rehabilitation and physical therapy.
Chip and Rita claim that they did not intend for Margaret to permanently
remain in the nursing home and considered the move only temporary.
Eventually, however, it became more clear that Margaret’s stay in the home
was going to be long-term, if not permanent. Laurie began to seek guardianship
over her grandmother in March 2009.
[10] Margaret, who was still strong-willed, did not wish to remain in the nursing
home. On April 27, 2009, Margaret was taken to an attorney by Chip and Rita
where she executed a new power of attorney instrument removing Laurie as her
attorney-in-fact and naming Chip as her attorney-in-fact. Chip paid the fees for
preparing this change in the power of attorney. When Laurie learned of the
change in the power of attorney, she abandoned her efforts to establish a
guardianship. Laurie turned over to Chip all of Margaret’s financial
information and papers. Among these was a will that was executed in Laurie’s
presence. This will was never submitted to probate.
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[11] At the end of April and the beginning of May 2009, Chip moved his mother
back to her home. Chip and Rita moved out of their mobile home and moved
in with Margaret. Rita eventually quit her job at a grocery store to help care for
Margaret, as did Chip after he suffered a heart attack. When Chip and Rita
were living with Margaret, Margaret’s money was used to pay all of the bills,
and Chip and Rita paid no rent. They did, however, rent out their mobile home
for $400 or $500 per month. Once Chip and Rita moved in with Margaret, they
limited her contact with the other members of the family. Laurie was told that
she was not allowed to go to the home, and John was only allowed to visit with
his mother if either Chip or Rita were with him. On occasion, John’s visits were
even monitored using a baby monitor.
[12] As his mother’s attorney-in-fact, Chip took care of Margaret’s finances. He
helped her close certain bank accounts and open other accounts. However, his
efforts to keep his money and his mother’s money separate were not successful.
Indeed, Chip admitted that his money and Margaret’s money were “all the
same.” See Appellant’s App. p. 19. Typically, Chip paid for his mother’s
expenses out of her accounts, but he sometimes used his and Rita’s accounts
and reimbursed himself from Margaret’s accounts. Other than some notations
in the memo lines of the checks such as “food,” Chip did not maintain records
of how he used his mother’s money.
[13] Additionally, Rita used two credit cards that were in Margaret’s name. She
used these cards to pay pharmacy and medical bills and other household
expenses in addition to almost $5,000 in balance transfers from other credit
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cards. Although Rita used these cards mostly for Margaret’s medicine and
expenses, she also used them to pay for items for herself, with Margaret’s
permission. Chip, however, was unaware of these cards, and Rita gave the
credit card bills directly to Margaret who asked her not to discuss the bills with
Chip.
[14] Between August 14, 2010, and October of the next year, Chip, acting as
Margaret’s attorney-in-fact, wrote checks on Margaret’s accounts to himself, his
auto-repair company, and Cintas, who provided uniforms for Chip’s auto-repair
company. These checks totaled $5,610. Of this amount, $1,150 noted in the
check memo line, or were testified to by Chip, as being for food and gas.
Another $1,000 was for labor Chip performed installing a water systems and
pump in Margaret’s house. Margaret was aware that Chip and Rita would
purchase groceries and medicine for her, sometimes with their own funds, and
Margaret would reimburse them for such expenses.
[15] Between May 2009 and January 2011, Chip, acting as attorney-in-fact, wrote an
additional $2,766 of checks and traveler’s checks from Margaret’s account to
Rita. Although some contained memo notes that they were for items purchased
for Margaret, others contained no notation. Furthermore, during 2011, checks
totaling $4,989 were written, purportedly by Margaret, to Rita without any
notation or other record of their purpose. The checks to Rita increased in
frequency and amount as Margaret’s condition worsened. Although all of the
checks bear the name of Margaret as signor, the signatures were not the same
on all of the checks. As noted by the trial court, however, no handwriting
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analysis was submitted into evidence. However, Rita did admit to writing her
own name on the payee line on all of Margaret’s checks written to her.
[16] On May 1, 2009, Margaret visited her family physician, Dr. Michael Chitwood
(“Dr. Chitwood”). During this visit, Margaret was confused and not oriented as
to time, i.e., Margaret thought the year was 1996. Dr. Chitwood concluded that
Margaret had dementia but could still live at home with the assistance of Chip
and Rita.
[17] On July 2, 2010, Margaret signed a quitclaim deed that conveyed her home and
real property to herself, Chip, and Rita. The attorney who prepared the deed
never met Margaret and did not have any opportunity to speak with her
privately about the deed. One week after executing the deed, Margaret again
visited Dr. Chitwood. Margaret did not want to eat or drink and was not
motivated. She was withdrawn, depressed and had “psychomotor slowing,”
i.e., slowing of thought processes. These were not usual symptoms for
Margaret. During testing, she could not read something and repeat it five
minutes later. She also did not know what day it was or who was president.
Dr. Chitwood diagnosed Margaret with mild to moderate dementia.
[18] On September 2, 2011, when Margaret was in hospice care near death, Chip,
acting as Margaret’s attorney-in-fact, added his name to Margaret’s bank
accounts as a joint owner with right of survivorship. Margaret was not present
when Chip did this.
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[19] Margaret died on October 18, 2011. Ten days later, Chip filed an application
for consent to transfer the balance of Margaret’s accounts to his own accounts.
The balance transferred from Margaret’s savings account was $42,902.74, and
the balance on the checking account was $663.04.
Procedural History
[20] On November 16, 2011, the Brown Circuit Court appointed John as the
personal representative of Margaret’s supervised Estate. On December 19, Rita
submitted a claim to the Estate for $205,520, for reimbursement for care and
services she provided to Margaret. Rita claimed that she had cared for Margaret
sixteen hours per day for four days per week through April 2009, then sixteen
hours per day for every day from May 2009 to October 17, 2011. Rita later
admitted that she had worked at the grocery store until March 2010. Thus, prior
to that date, she could not have provided sixteen hours of care per day for
Margaret. She also admitted that she did not deduct any of the time she spent
caring for Chip from the time she claimed she was caring for Margaret. Rita
later indicated that she abandoned this claim against the Estate.
[21] Also on December 19, 2011, the Estate filed a claim against Chip and Rita
alleging that they had exercised undue influence over Margaret. The complaint
sought an order declaring the quitclaim deed void and recovery of the funds
received by Chip and Rita in addition to treble damages, costs, and attorney
fees. A bench trial was held on May 27 – 28, 2014. At the conclusion of the
trial, the trial court took the matter under advisement, and on October 3, 2014,
the trial court issued sua sponte findings of fact and conclusions of law. The trial
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court found a presumption of undue influence existed with regard to the
financial transactions between Margaret and Chip and Rita. The court also
found that Chip and Rita had not rebutted this presumption and ordered them
to pay to the Estate: $43,565.78 as reimbursement for Margaret’s checking and
savings account balances; $700 as reimbursement for checks written by Chip to
Rita from Margaret’s account; and $4,989 in checks and $550 in traveler’s
checks to Rita purportedly bearing Margaret’s signature. The trial court also
ordered that the quitclaim deed be set aside and that Margaret’s real estate be
transferred back to the Estate.
[22] Chip and Rita filed a motion to correct error on November 3, 2014. The trial
court set a hearing on the motion to be heard on January 14, 2015. The Estate
then filed a motion to strike certain affidavits filed with the motion to correct
error. At the January 14 hearing, the trial court considered both motions. On
February 17, the trial court entered an order granting the Estate’s motion to
strike and denying the Defendant’s motion to correct error. On March 18, 2015,
Chip and Rita filed their notice of appeal, and this appeal ensued. Additional
facts will be provided as necessary.
Standard of Review
[23] Neither party requested that the trial court enter specific findings and
conclusions. Under such circumstances, our standard of review is well settled:
Where, as here, the trial court enters findings of fact and
conclusions there on without an Indiana Trial Rule 52 written
request from a party, the entry of findings and conclusions is
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considered to be sua sponte. Where the trial court enters
specified findings sua sponte, the findings control our review and
the judgment only as to the issues those specific findings cover.
Where there are no specific findings, a general judgment
standard applies, and we may affirm on any legal theory
supported by the evidence adduced at trial.
A two-tier standard of review is applied to the sua sponte findings
and conclusions made: whether the evidence supports the
findings, and whether the findings support the judgment.
Findings and conclusions will be set aside only if they are clearly
erroneous, that is, when the record contains no facts or inferences
supporting them. A judgment is clearly erroneous when a review
of the record leaves us with a firm conviction that a mistake has
been made. In conducting our review, we consider only the
evidence favorable to the judgment and all reasonable inferences
flowing therefrom. We will neither reweigh the evidence nor
assess witness credibility.
Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind. Ct. App. 2014) (citations and
internal quotations omitted).
Discussion and Decision
[24] Chip and Rita argue that the trial court erred by shifting the burden of proof to
them to prove that the transaction involving the deed was not the result of
undue influence. We disagree.
A. Presumption of Undue Influence
[25] In Indiana, certain legal and domestic relationships raise a presumption of trust
and confidence as to the subordinate party on the one side and a corresponding
influence as to the dominant party on the other. These relationships include,
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but are not limited to: attorney and client, guardian and ward, principal and
agent, pastor and parishioner, husband and wife, and parent and child. In re
Estate of Allender, 833 N.E.2d 529, 533 (Ind. Ct. App. 2005), trans. denied. In
such cases, the law will impose a presumption that the transaction was the
result of undue influence exerted by the dominant party, constructively
fraudulent, and thus void, if the plaintiff’s evidence establishes: (1) the existence
of such a relationship, and (2) that the questioned transaction between those
parties resulted in an advantage to the dominant person in whom trust and
confidence was reposed by the subordinate. Id. Once the plaintiff’s evidence
establishes these two elements, the burden of proof then shifts to the dominant
party who must demonstrate by clear and unequivocal proof that the questioned
transaction was made at arm’s length and thus valid. Id.
[26] In a parent-child relationship, the parent is generally considered to be the
dominant party. Id. However, in many cases involving elderly or otherwise
infirm parents being cared for by their children, it is the child who is considered
to be the dominant party. See id. at 533-34 (holding that son was in a dominant
position vis-à-vis his parents due to his ailing parents’ caretaker); see also Meyer
v. Wright, 854 N.E.2d 57, 60 (Ind. Ct. App. 2006) (holding that son was in the
dominant position over his ailing father by reason of being his father’s
caretaker), trans. denied; Outlaw v. Danks, 832 N.E.2d 1108, 1111 (Ind. Ct. App.
2005) (holding that nephew who was sole caretaker of his elderly, ailing aunt
had a fiduciary relationship to her which raised a presumption of undue
influence).
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[27] Here, the Estate presented evidence that Chip and Rita were the dominant
party in their relationship with Margaret. Ample evidence existed that
Margaret’s mental abilities were in decline. Her family doctor diagnosed her
with mild dementia, and a neurologist diagnosed her with at least moderate
dementia. She had trouble remembering the year and her location. The
neurologist testified that, in his opinion, Margaret did not have the mental
capacity to make legal and financial decisions for herself while she was in his
care. He also testified that Margaret’s condition did not improve while she was
in the nursing home. In the later years of her life, Margaret was almost
completely dependent upon Chip and Rita to take care of her. Moreover, after
Chip and Rita moved in with Margaret, her contact with other members of the
family was restricted. Laurie was not allowed to visit the home, and her son
John’s visits were limited and monitored. From this evidence, the trial court
was well within its discretion to conclude that Chip and Rita were in a
dominant position vis-à-vis Margaret.
[28] The next issue we must address is whether any transactions involving Chip
and/or Rita on the one hand and Margaret on the other resulted in an
advantage to Chip and Rita, as the parties in whom trust and confidence was
reposed by Margaret. See In re Estate of Allender, 833 N.E.2d at 533. In general,
the parties break the transactions into two main groups: the quitclaim deed
granting Margaret’s real property to Margaret, Chip, and Rita as joint owners,
and the checks written on Margaret’s accounts to Chip and Rita.
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B. Quitclaim Deed
[29] With regard to the deed, the Defendants argue no evidence exists that the
transaction was detrimental to Margaret’s interests because she remained a joint
owner and continued to live on her own property. This is in response to the trial
court’s citation to Folsom v. Buttolph, 82 Ind. App. 283, 143 N.E. 258, (1924), in
which the Appellate Court held that the presumption of undue influence arises
“if the transaction results beneficially to the person charged, and detrimentally to
the person in whose name the act was done[.]” (emphasis added).
[30] More recent opinions of this court, however, require only that the transaction at
issue benefit the dominant party. See In re Estate of Allender, 833 N.E.2d at 533.
Even if Folsom was controlling, we cannot say that the transaction involving the
quitclaim deed did not act to the detriment of Margaret. By means of the
quitclaim deed, Margaret went from being the sole owner of her home and real
property to a joint owner. Thus, the transaction was to Margaret’s detriment.
See In re Estate of Rickert, 934 N.E.2d 726, 730 (Ind. 2010) (holding that burden
was on attorney-in-fact to prove by clear and convincing evidence that her use
of her power of attorney to create accounts giving her joint ownership with
rights of survivorship over decedent’s financial accounts was voluntary and
fair). Here, the benefit to Chip and Rita is obvious—they obtained not only the
joint interest in the property but also the right of survivorship over Margaret’s
house and real property upon her death.
[31] Chip and Rita further argue, however, that the law does not apply a
presumption of undue influence when a transaction is made between a parent
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and a child. In Crider v. Crider, 635 N.E.2d 204, 212-13 (Ind. Ct. App. 1994), the
court noted that our supreme court court has held “‘that no presumption of
fraud or undue influence arises in a case of conveyance from a parent to a child
on account of the mere existence of such relation.’” (quoting Westphal v.
Heckman, 185 Ind. 88, 113 N.E. 299, 301 (1916)).
[32] Here, the trial court did not apply the presumption of undue influence based
merely on the fact that the transaction involved a parent and child. The trial
court did so because the evidence amply demonstrated that Chip and Rita were,
as noted above, in a dominant position over an ailing Margaret who was
suffering from dementia at the time.1
[33] We therefore find Chip and Rita’s reliance on Baker v. McCague, 118 Ind. App.
32, 75 N.E.2d 61 (1947) (en banc), to be misplaced. In Baker, the decedent, an
eighty-two-year-old widow, was cared for by her daughter. The decedent
deeded to this daughter (and another daughter) certain real property, reserving
for herself the rents, profits, and income during her lifetime. Upon the
1
The Estate also argues that Chip was in a fiduciary relationship with Margaret because he held the power of
attorney. It is generally true that holding of the power of attorney puts the attorney-in-fact in a fiduciary
relationship. See In re Estate of Allender, 833 N.E.2d at 534; Villanella v. Godbey, 632 N.E.2d 786 (Ind. Ct. App.
1994). This fiduciary relationship, combined with the transfer of substantial assets, also raises a presumption
of undue influence. In Re Estate of Allender, 833 N.E.2d at 534; Villanella, 632 N.E.2d at 786; In re Estate of
Wade, 768 N.E.2d 957, 962 (Ind. Ct. App. 2002). However, as we noted in In re Estate of Compton, 919 N.E.2d
1181, 1187 (Ind. Ct. App. 2010), Indiana Code section 30-5-9-2(b) abrogates the common law presumption of
undue influence with respect to certain transactions benefiting an attorney-in-fact. Specifically, a presumption
of undue influence is now conditioned upon the attorney-in-fact’s actual use of the power of attorney to effect
the questioned transaction for his benefit, and the benefiting attorney-in-fact is freed from the presumption of
undue influence so long as the power of attorney is unused in the questioned transaction. Id. Here, we affirm
the trial court’s judgment based on the dominant parent-child relationship and do not address the issues
surrounding the presumption of undue influence for those holding the power of attorney.
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decedent’s death, the widow’s remaining children brought an action to have the
deed set aside. The trial court entered judgment against the plaintiffs. On
appeal, the court affirmed, noting no presumption of undue influence existed
merely because the transaction was between a parent and child. Baker, 118 Ind.
App. at 37, 75 N.E.2d at 64. Moreover, the decedent in Baker had sought out an
attorney on her own and called the attorney to come to her house, where she
confided with him alone on two or three occasions. Only then did the attorney
prepare the deed at issue. Both the widow’s attorney and physician testified that
she was competent at all times. Id.
[34] The facts in the present case are markedly different, where Margaret’s
physician’s testified as to her mental frailty, and where Margaret never even
met the attorney who prepared the quitclaim deed. Nor can we ignore the
evidence that other family members were kept away from Margaret and that
Chip and Rita treated Margaret’s money as their own.
[35] The same is true for the Defendant’s citation to Teegarden v. Lewis, 145 Ind. 98,
44 N.E. 9, 12 (1895). In that case, the court declined to apply a presumption of
undue influence where the evidence established only that the daughter had
discharged her moral obligation to house and care for her “aged, weak and
childish” father. First, Teegarden is a rather old case. Even though it has not
been overruled, it is clear that the law regarding the presumption of undue
influence has evolved over the past century. Indeed, the court in Teegarden
seemed hostile to the notion of applying the presumption of undue influence to
a gift from a parent to a child. See Teegarden, 145 Ind. 98, 44 N.E. at 12 (“The
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relation of parent and child, as to presumption of fraud, and the onus of proof
to rebut the same, in business transactions between them, does not stand upon
the same footing as the relation of trustee and cestui que trust, guardian and
ward, attorney and client, principal and agent, and the like relations.”). Since
Teegarden, however, our courts have applied this presumption where the
evidence shows that the child was in the dominant position over the parent. See
In re Estate of Allender, 883 N.E.2d at 533-34; Meyer, 854 N.E.2d at 60. Again,
the record here contains evidence that Chip and Rita were in a dominant
position over Margaret, kept her away from other members of the family, and
used her money as their own.
[36] Under these facts and circumstances, the trial court did not clearly err in
applying the presumption of undue influence with regard to the transaction
involving the quitclaim deed. Therefore, the trial court properly placed on Chip
and Rita the burden of rebutting the presumption of undue influence by clear
and convincing evidence. See In re Estate of Allender, 833 N.E.2d at 533. This
they did not do. In fact, they do not even argue that they successfully rebutted
the presumption; they claim merely that the trial court erred in applying the
presumption.
[37] Still, we acknowledge some evidence might have supported a finding that
Margaret deeded her real property to Chip and Rita as a natural expression of
her bounty to the son and daughter-in-law who took care of her during her
waning years. However, this is evidence that does not favor the trial court’s
judgment. Considering only the evidence favorable to the trial court’s judgment,
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as we must do on appeal, the trial court could reasonably conclude that Chip
and Rita did not rebut the presumption of undue influence by clear and
convincing evidence.
B. Checks and Traveler’s Checks
[38] Chip and Rita make many of the same arguments regarding the trial court’s
order for Rita to repay the Estate for $4,989 in checks and $500 in traveler’s
checks written on Margaret’s accounts to Rita.
[39] First, the Defendants claim that the trial court should not have shifted the
burden to the them to rebut the presumption of undue influence. However, as
noted above, evidence before the court suggested that Chip and Rita were in a
dominant position vis-à-vis Margaret.2 Moreover, it is apparent that Rita
benefitted from the checks and traveler’s checks written to her. Accordingly, the
trial court correctly applied the presumption of undue influence, and the burden
then shifted to Rita to rebut this presumption. See In re Estate of Allender, 833
N.E.2d at 533.
2
The fact that Rita was Margaret’s daughter-in-law is of no help to Rita. As explained in In re Estate of
Allender, a fiduciary may not escape the presumption of undue influence simply by funneling the benefits of
transactions to his family members. 833 N.E.2d at 534 (citing In re Estate of Wade, 768 N.E.2d 957, 964 (Ind.
Ct. App. 2002), trans. denied). Chip was in the dominant position with Margaret; Rita was Chip’s wife; and
Rita benefitted from the transactions. This is sufficient to impose the presumption of undue influence. See id.
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[40] Other than her own testimony, which the trial court was under no obligation to
credit or give substantial weight, Rita provided little to nothing to rebut the
presumption.
[41] Instead, the evidence supported the trial court’s decision that the presumption
of undue influence was not rebutted by clear and convincing evidence. With
regard to the bank checks, they were written to Rita from Margaret’s accounts
with no notation as to their purpose. Moreover, as noted by the trial court, the
signatures on the checks are inconsistent. With regard to the traveler’s checks,
Rita’s testimony raised at least an inference that she was not being forthright.
We refer specifically to Rita’s initial denials of ever having received the
traveler’s checks. See Tr. p. 291. She also claimed not to know where Margaret
kept her traveler’s checks. Id. at 295. Later in her testimony, however, Rita
acknowledged that she had cashed the traveler’s checks but claimed to have
forgotten about them. Id. at 292-93. She also claimed that Margaret had kept
her traveler’s checks in her purse and gave them to her when she was in the
nursing home. Id. at 297.
[42] In short, the trial court did not err in determining that the evidence presented by
the Estate raised a presumption of undue influence due to Chip and Rita’s
dominant position vis-à-vis Margaret and their having received benefits from
the transactions involving Margaret. Also, the trial court did not clearly err in
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determining that Chip and Rita did not rebut this presumption by clear and
convincing evidence.3
Conclusion
[43] The trial court did not clearly err when it applied the presumption of undue
influence with regard to the transactions between Chip and Rita on the one
hand and Margaret on the other. Nor did the trial court clearly err when it
concluded that Chip and Rita did not rebut this presumption by clear and
convincing evidence. Accordingly, we affirm the judgment of the trial court.
[44] Affirmed.
Baker, J., and Bailey, J., concur.
3
The Defendants also claim that the trial court erred to the extent that it invalidated the transactions based
upon a finding that Margaret was mentally unsound. We consider the trial court’s findings regarding
Margaret’s diminished mental abilities as informing the trial court’s determination that Chip and Rita were in
a dominant position over Margaret, not as a separate basis for invalidating the transactions at issue. As
discussed, sufficient evidence supports the trial court’s judgment in this regard.
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| {
"pile_set_name": "FreeLaw"
} |
676 F.Supp.2d 690 (2009)
Jill L. NORTH, et al., individually and on behalf of other similarly situated individuals, Plaintiffs,
v.
BOARD OF TRUSTEES OF ILLINOIS STATE UNIVERSITY and C. Alvin Bowman, in his official capacity as President of Illinois State University, Defendants.
Case No. 07-cv-1220.
United States District Court, C.D. Illinois, Peoria Division.
November 9, 2009.
*692 Thomas M. Benson, Rock Island, IL, for Plaintiffs.
Amy D. Gerloff, Illinois Attorney General, Springfield, IL, for Defendants.
ORDER & OPINION
JOE BILLY McDADE, District Judge.
This matter is before the Court on Plaintiff's Motion for Conditional Class Certification and Judicial Notice, filed on June 10, 2009. (Doc. 21). For the following reasons, the Motion is granted in part and denied in part.
BACKGROUND
I. Procedural History
On August 21, 2007, Plaintiff, Jill L. North ("North") filed a Complaint on behalf of herself and similarly situated individuals under the Fair Labor Standards Act ("FLSA") against the Board of Trustees of Illinois State University and C. Alvin Bowman, the President of Illinois State University ("ISU") (Doc. 1). Defendants' Motion to Dismiss (Doc. 5), was denied by this Court on April 3, 2008, pursuant to a Report and Recommendation by Magistrate Judge Byron Cudmore. (Docs. 8 & 9).
On April 3, 2008, North submitted an Amended Complaint, adding the nine other named Plaintiffs in this action as parties, and adding a retaliation claim under the FLSA on behalf of Plaintiff Michelle' Prinsloo.[1] (Doc. 10). North submitted forms consenting to join the collective action from the other nine named Plaintiffs in this action on April 4, 2008. (Doc. 11).
The instant Motion for Conditional Class Certification and Judicial Notice was filed on June 26, 2009; Plaintiffs seek conditional certification of a FLSA collective action under Count I of the Amended Complaint, which alleges that ISU violated the FLSA's overtime pay provisions, and judicially-ordered notice to potential collective action plaintiffs.[2] (Doc. 21). Plaintiffs' proposed collective action is defined as: "All former Illinois State University employees employed in support of the operations of Illinois State University Housing Summer Conferencing Services at any time after May 1, 2006; and who worked more than forty (40) hours in at least one week during their employment."[3] (Doc. *693 21 at 2). Defendants filed a Response to this Motion on June 26, 2009. (Doc. 22).
II. Factual Background[4]
During the summer of 2007, North, an undergraduate student at ISU, was employed by ISU as a Conference Assistant ("CA"). The other nine named Plaintiffs were also CAs in 2007. CAs provide support when ISU hosts conferences and other events during the summer months, "assist[ing] with the day-to-day operations of the ISU residence halls, conduct[ing] administrative conference management duties, and ensur[ing] the safety and security of all guests." (Doc. 6, Ex. A: 2007 ISU Summer Conferencing Conference Assistant Contract and Work Agreement).
All CAs in the summer of 2007 entered into the 2007 ISU Summer Conferencing Conference Assistant Contract and Work Agreement with ISU ("Work Agreement"). (Doc. 6, Ex. A). This Work Agreement provides that CAs should expect to work an average of 27 hours per week on the "desk shift" and approximately 12 overnight on-call duty shifts from 11:00 P.M. to 7:00 A.M. (Doc. 6, Ex. A at 2). It also provides that CAs needed to be "[a]vailable to work June 15-17 and June 20-July 1, 2007 to support mega-conference operations." (Doc. 6, Ex. A at 2). CAs received a $1,974.00 stipend, as well as a room and board package for the summer. (Doc. 6, Ex. A at 2). The parties agree that the value of the stipend and the room and board package was $4,313.00. Given the combined compensation package, Plaintiffs calculate the weekly wage for the 13 week summer work period at $386.00. Plaintiffs reason that, because the Work Agreement provided for 447 total hours, the hourly wage under the Work Agreement was $9.65.[5]
Around May 28, 2007, a new policy was announced, effective June 3, 2007, under which CAs' hours were changed: overnight on-call duty shifts were increased from 8 to 15 hours in length.[6] In exchange for this change, ISU increased the total compensation package for CAs by $150.00. Plaintiffs calculate that the increased length of the overnight shifts added a total of 77 hours to the CAs' workload, and that the $150.00 salary increase was not sufficient to even meet the minimum wage for those additional hours. In addition, Plaintiffs allege that they and the other 2007 CAs each worked in excess of 40 hours per week, and were not compensated at the required time-and-a-half rate for this overtime work. Finally, Plaintiffs allege that the 2007 conference support employees other than CAs, and the conference support employees of ISU in other years, worked under similar terms of employment, and were not paid for overtime work.
*694 LEGAL STANDARD
Employees alleging that they have been denied required overtime compensation may bring a suit on their own behalf and on behalf of "other employees similarly situated," in a "collective action" under 29 U.S.C. § 216(b). Unlike Rule 23 class actions, plaintiffs to a FLSA collective action must "opt-in" to be parties to the suit, and they are not bound by the court's determination if they do not opt-in. Woods v. New York Life Ins. Co., 686 F.2d 578, 580 (7th Cir.1982).[7] In addition, unlike Rule 23, § 216(b) does not provide for court-ordered notice. However, the Supreme Court has held that a court may order notice to potential plaintiffs in "appropriate cases." Hoffmann-La Roche, Inc. v. Sperling, et al., 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). The Seventh Circuit has held that, once the suit is filed, plaintiffs should consult with defense counsel before contacting other potential plaintiffs, and that the district court has the power to manage the notice to other plaintiffs. Woods, 686 F.2d at 580.
The FLSA does not define "similarly situated," and how a district court should decide when a case is "appropriate" for court-ordered notice has not yet been determined by the Seventh Circuit. However, the majority of courts, including the district courts of this Circuit, have adopted a two-step approach to § 216(b) collective actions. Biddings v. Lake County, 09-cv-38, 2009 WL 2175584, *2 (N.D.Ind. July 15, 2009); Russell v. Illinois Bell Telephone Co., 575 F.Supp.2d 930, 933 (N.D.Ill. 2008); DeKeyser v. Thyssenkrupp Waupaca, Inc., 08-c-488, 2008 WL 5263750, *2 (E.D.Wis. Dec. 18, 2008); Craft v. Ray's, LLC, 1:08:cv-00627-RLY-JMS, 2008 WL 4810546, *1 (S.D.Ind. Oct. 29, 2008); Bunyan v. Spectrum Brands, Inc., 07-cv-0089-MJR, 2008 WL 2959932, *2 (S.D.Ill. July 31, 2008); Austin v. CUNA Mut. Ins. Soc'y, 232 F.R.D. 601, 605 (W.D.Wis.2006). The Central District of Illinois appears to have not yet decided which approach it will take. Both of the parties to this case argue for the two-step approach, and it will be used by the Court in deciding Plaintiffs' instant Motion.
Under the two-step approach, a court must first determine whether the plaintiff has made out a "modest factual showing" that she and the members of the proposed collective action are "similarly situated." This means that the plaintiff must put on some evidence that she and the members of the collective action were "victims of a common policy or plan that violated the law." Molina v. First Line Solutions, 566 F.Supp.2d 770, 785 (N.D.Ill. 2007) (quoting Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1044 (N.D.Ill. 2003)). If this "modest factual showing" that the members of the proposed collective action are similarly situated is met, the court conditionally certifies the collective action, and may order that notice be sent to the other members of the proposed collective action, so that they will have the opportunity to opt-in. Id. This is sometimes known as "conditional certification." Russell, 575 F.Supp.2d at 933; Jirak v. Abbott Laboratories, Inc., 566 F.Supp.2d 845, 847 (N.D.Ill.2008); Heckler v. DK Funding, LLC, 502 F.Supp.2d 777, 779 (N.D.Ill.2007).
*695 At the second step, the court may revisit the "similarly situated" determination made under step one, and determine, with the benefit of evidence gleaned from discovery, whether the members of the collective action are truly similarly situated. Russell, 575 F.Supp.2d at 933. The conditional certification may be revoked at that time if the court determines that the members of the collective action are not similarly situated. Id. at 933; Heckler, 502 F.Supp.2d at 779.
This matter is at the first step of the process. If a court determines that the plaintiffs have succeeded under the first step, the court may order that notice be given to potential members of the collective action. Woods, 686 F.2d at 580; Molina, 566 F.Supp.2d at 785; Flores, 289 F.Supp.2d at 1045. However, the court must be careful to avoid creating an "apparent judicial sponsorship of the notice," such that the recipients of the notice would mistakenly take the notice as "a representation that the suit probably has merit." Woods, 686 F.2d at 581. At the least, the notice may not be sent on court letterhead with the judge's or other court officer's signature. Id. at 581-82.
ANALYSIS
Plaintiffs, who were CAs in 2007, argue that they, and all the other post-2005 CAs, Conference Coordinators, Team Leaders, and/or employees with similar job titles, are similarly situated for purposes of conditional certification and that their proposed form of notice is appropriate.[8] (Doc. *696 21 at 11). Defendants counter that Plaintiffs are not similarly situated to the non-2007 employees because "Plaintiffs have presented no factual evidence of a common policy or plan that was in place during the summers of 2005, 2006, 2007, 2008, or 2009 that violated the FLSA," and have failed to link the 2007 CAs with the employees from other years. (Doc. 22 at 3-4).
I. Conditional Certification
Plaintiffs have met their burden of showing that the 2007 CAs are similarly situated to one another, but they have not met their burden to make a "modest factual showing" that the 2007 CAs are similarly situated to the 2007 Conference Coordinators, Team Leaders, and/or employees with similar job titles ("other 2007 employees"), or to the employees who worked during the summers of 2005, 2006, 2008, and 2009 ("non-2007 employees").[9]
In order to meet their minimal step-one burden of showing that the members of the proposed collective action are "similarly situated," Plaintiffs "cannot rely on their allegations alone to make the required *697 modest factual showing. Plaintiffs need not provide conclusive support, but they must provide an affidavit, declaration, or other support beyond allegations in order to make a minimal showing of other similarly situated employees subjected to a common policy." Molina, 566 F.Supp.2d at 786; see also Biddings, 2009 WL 2175584, *3 ("though lenient, the `modest factual showing' is not a mere formality"). There must be an "identifiable factual nexus" that binds the claims togethersomething more "simply claiming that the FLSA has been violated." Molina, 566 F.Supp.2d at 787.[10]
A. 2007 Conference Assistants
Here, Plaintiffs have made their showing that the 2007 CAs were subjected to a common policy that violated the FLSA. They rely for their allegations of FLSA overtime violations on the terms of the 2007 Work Agreement, which was submitted to the Court in connection with Defendants' Motion to Dismiss. (Doc. 6). Defendants have admitted that the 2007 CAs entered into this Work Agreement with ISU, and that it provided for certain expected hours, as explained above. (Doc. 16 at 3). In addition, Defendants have admitted that the combined value of the CA compensation package was $4,313.00. (Doc. 16 at 4). Defendants have also admitted that the CAs' overnight on-call duty shift hours were increased in 2007 from the expected hours outlined in the Work Agreement, and that they increased the overall stipend by $150.00. (Doc. 16 at 4). Finally, though they dispute Plaintiffs' calculation of their overtime hours (as well as whether Plaintiffs actually received or were entitled to overtime pay), Defendants admit that their work-hours recording software, "When to Work," showed that some 2007 CAs worked more than 40 hours per week. (Doc. 16 at 5-6).
Plaintiffs' FLSA claim is based on the allegation that the 2007 CAs were required to work more than 40 hours per week during the summer of 2007, and were not compensated with time-and-a-half wages as required under the FLSA, using the terms of the Work Agreement to establish their regular rate of pay at $9.65 per hour. As noted above, Defendant has admitted that the Work Agreement set the terms of work for the 2007 CAs (though there is a dispute about whether the expected hours listed in the Work Agreement were binding), and that some CAs worked more than 40 hours per week in the summer of 2007. The 2007 CAs' claims are also supported by the nine consent forms filed by all of the named Plaintiffs except North, in which the Plaintiffs "verify . . . that Defendants failed to properly pay me overtime, wages, and/or benefits." (Doc. 11). Thus, the Work Agreement serves to bind together the 2007 CAs' claims such that the Court finds they are "similarly situated" for purposes of conditional certification and court-ordered notice.
B. 2007 Employees Other Than Conference Assistants, and Employees from Years Other Than 2007
On the other hand, Plaintiffs, who were CAs in 2007, have failed to show a "factual nexus" between themselves, the other 2007 employees, and the non-2007 employees. They have presented no evidence whatsoever as to the terms of employment between these two groups and ISUno *698 copies of their Work Agreements, no affidavits or declarations from them, and not even any affidavits or declarations from 2007 CAs who knew something about the other groups. This lack of evidence alone could be fatal to including these two groups in the proposed collective action, as the Court has found no cases in which a plaintiff seeking conditional certification failed to provide any evidence of similarity beyond allegations. See, e.g., Jones v. Furniture Bargains, LLC, 09-c-1070, 2009 WL 3260004, *3-4 (N.D.Ill. Oct. 9, 2009); Biddings, 2009 WL 2175584, *3; Russell, 575 F.Supp.2d at 934; Jirak, 566 F.Supp.2d at 849; Molina, 566 F.Supp.2d at 788-89; Heckler, 502 F.Supp.2d at 780-81. Even where courts have denied the motion for court-ordered notice, the plaintiffs provided some evidence. See, e.g., Flores, 289 F.Supp.2d at 1046.
Plaintiffs' Amended Complaint establishes that the root of their claim is that, in 2007, ISU required the CAs to work overtime hours, in excess of those provided in the Work Agreement, and that these hours were not compensated at the rate provided for by the Work Agreement. (Doc. 10 at 10-12). As pointed out by Defendant, the Plaintiffs appear to state that the CAs' extra hours in 2007 were a result of a change announced on May 28, 2007, by David Ruszkowski, the Assistant Director of Special Projects at ISUnot of a policy or plan that extended to other employees or other years. (Doc. 10 at 6; Doc. 21 at 5).
There has been no effort by Plaintiff to link this alleged violation of the 2007 CAs' rights to the other 2007 employees or to the non-2007 employees. In addition, Plaintiffs have submitted no evidence as to any alleged violations of the FLSA against the other 2007 employees or the non-2007 employees. See Molina, 566 F.Supp.2d at 788 (where proposed collective action covered employees of five districts of company, but evidence presented pertained only to one district, court rejected addition of employees of other four districts to collective action). Merely alleging that potential plaintiffs are "similarly situated," without more, is insufficient to support conditional certification or court-ordered notice of a proposed collective action Plaintiffs have failed to show that there is an "identifiable factual nexus" binding the groups' claims together. Id. at 787. Therefore, conditional certification of a collective action including the other 2007 employees or the non-2007 employees is inappropriate.
II. Notice
As the Court has conditionally determined that the 2007 CAs are similarly situated to one another, it is appropriate for the Court to order that notice be given to other potential members of the 2007 CA collective action.[11] As noted above, the Court in ordering notice must carefully *699 avoid a form of notice that may lead a recipient to believe that the Court is "inviting" him to join the suit. Woods, 686 F.2d at 581-82. In Woods, the Court of Appeals rejected a proposed notice that was on court letterhead with the signature of the clerk of the court. Id. at 581.
Plaintiffs' proposed form of notice is approved, with the modifications noted below. Defendants object to the form of notice on the ground that it contains the caption of the case and the judges' names, citing the Flores case, in which the Northern District of Illinois refused to approve a notice that looked "like any other pleading, with the name of the court, the title of the action, the file number, and the assigned judge." 289 F.Supp.2d at 1047. Flores is one of the most-cited cases in this Circuit's caselaw on § 216(b) actions. However, courts in a number of more recent cases explicitly approved notices that contained the full caption of the case, as, with the caption, they "could not reasonably be construed as a letter from the Court." Russell, 575 F.Supp.2d at 938. See also Biddings, 2009 WL 2175584, *4; Jirak, 566 F.Supp.2d at 850-51 (inclusion of the entire caption makes clear that the notice is a court document and not a letter from the court). In these cases, the approved notices also included a disclaimer with language stating that "the Court has taken no position about the merits of plaintiff's claims or defendant's defenses." Russell, 575 F.Supp.2d at 938-39. See also Biddings, 2009 WL 2175584, *4; Jirak, 566 F.Supp.2d at 851.
Flores stands alone among the reported cases of this Circuit, it appears, in rejecting a notice because it included the caption of the case. The Court agrees with the Russell, Biddings, and Jirak courts, and finds that the inclusion of the caption of the case and the judges' names is not likely to mislead a recipient into believing that the notice constitutes an "invitation" from the Court. The proposed notice also states in several locations that the Court has taken no position on the merits of the action, and also notes that recipients have the right not to join the collective action and may hire their own attorney. Russell, 575 F.Supp.2d at 938-39.
However, certain modifications must be made to the proposed notice. The first two changes are made, though Defendants have not requested them, because the Court agrees with the Heckler court that, absent the alterations, the notice could be misleading to recipients.[12]Heckler, 502 F.Supp.2d at 781. First, on page one of the proposed notice, the second bullet-point sentence must read "The Court has conditionally allowed the lawsuit to proceed as a collective action under the Fair Labor Standards Act ("FLSA") on behalf of former ISU employees." Id. (notice revised to show conditional nature of certification). Second, on page two of the proposed notice, under "Description of the Lawsuit," the fourth sentence must be revised to read: "If employees are found to be eligible for unpaid overtime, they may also be eligible for liquidated damages in the amount of double their unpaid overtime wages." Id. (notice revised to eliminate language indicating liquidated damages available in "most" cases). Finally, given the Court's ruling that the membership of the proposed collective action is to *700 be limited to the 2007 CAs, in the paragraph headed "Composition of the Class" on page two, the first sentence shall be revised to read:
Ms. North and the other named Party Plaintiffs seek to recover under the Fair Labor Standards Act (FLSA) on behalf themselves, and all other similarly situated persons, employed by Illinois State University performing the duties of a Conference Assistant in support of summer conferencing operations between May 14, 2007 and August 13, 2007, and who worked more than forty (40) hours in at least one week during their employment, and who were not paid overtime compensation for hours worked in excess of forty hours in any given week.
III. Disclosure of Information about 2007 Conference Assistants
Plaintiffs also request that the Court order Defendants to disclose the names, last known addresses, and telephone numbers of the proposed collective action members, in order that Plaintiffs may send notice to these individuals.[13] (Doc. 21 at 1). Other than to oppose conditional certification and notice, Defendants do not specifically oppose this request. In order to facilitate the sending of notice, the Court may require that Defendants turn over this sort of information to Plaintiffs. Russell, 575 F.Supp.2d at 939; Molina, 566 F.Supp.2d at 789. As the Court has approved the sending of notice to the 2007 CAs, Defendants are instructed to supply this information to Plaintiffs, to the extent it has not already been supplied in discovery. The parties shall confer with one another as to the format in which Defendants will furnish this information to Plaintiffs. The information to be provided to Plaintiffs under this order may only be used for the purpose of notifying potential plaintiffs in this action, and may only be disseminated among Plaintiffs' counsel. Russell, 575 F.Supp.2d at 939.
CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Conditional Class Certification and Judicial Notice is granted in part and denied in part. (Doc. 21). Plaintiffs have met their burden of showing that the 2007 CAs are similarly situated to one another, but they have not met their burden to make a "modest factual showing" that the 2007 CAs are similarly situated to the other 2007 employees, or to the non-2007 employees. Therefore, conditional certification is granted as to the 2007 CAs, and denied as to the other 2007 employees and the employees from years other than 2007. Notice may be given in the form discussed in this Order & Opinion to the 2007 CAs who have yet to opt-in to the collective action. In order to facilitate this notice, Defendants will, pursuant to the terms of this Order & Opinion, disclose the names, addresses, and telephone numbers of the 2007 CAs to Plaintiffs.
IT IS THEREFORE ORDERED:
1. Plaintiffs' Motion for Conditional Class Certification and Judicial Notice, is GRANTED IN PART and DENIED IN PART. (Doc. 21).
2. A FLSA collective action made up of individuals employed by Illinois State University as Conference Assistants in the summer of 2007 is CONDITIONALLY CERTIFIED.
*701 3. Plaintiffs MAY send, to potential members of the above-defined conditionally certified collective action, notice of this lawsuit and consent forms for them to opt-in to the action.
4. Plaintiffs SHALL submit a revised version of their proposed form of notice to the Court within 3 weekdays of the date of this Order & Opinion for final approval by the Court.
5. Defendants SHALL submit to Plaintiffs, within 7 days of the date of this Order & Opinion, the names, addresses, and telephone numbers of the potential members of the conditionally certified collective action.
6. The information to be provided to Plaintiffs under this order SHALL be used only for the purpose of notifying potential members of the conditionally certified collective action, and SHALL be disseminated only among Plaintiffs' counsel.
7. Any opt-in consent forms received from potential members of the conditionally certified collective action SHALL be filed with the Court by Plaintiffs within 60 days of this Order & Opinion.
8. This matter is REFERRED to Magistrate Judge Cudmore for further discovery-related proceedings and scheduling.
NOTES
[1] Defendants' Answer to Plaintiff's Amended Complaint raises several affirmative defenses and other matters that are not raised in their Response to the Motion for Conditional Class Certification and Judicial Notice. Defendants assert that Plaintiffs were not entitled to overtime pay for various reasons, or, alternatively, that they did receive the required overtime pay; they also assert that Plaintiff Prinsloo was not discharged because of retaliation. (Doc. 16 at 11-12). This Order & Opinion only addresses the issues raised by the Motion for Conditional Class Certification and Judicial Notice, and does not pass upon the merits of these affirmative defenses. Some courts have indicated that if the members of the proposed collective action are subject to different affirmative defenses, conditional certification may be improper. See., e.g., Molina v. First Line Solutions, 566 F.Supp.2d 770, 787 (N.D.Ill.2007). However, Defendants do not argue that these affirmative defenses will be different for different members of the proposed collective action, and the Court does not find that the assertion of these defenses precludes a collective action. The merits of a FLSA claim are not at issue on a Motion for Conditional Class Certification and Judicial Notice.
[2] Count II, alleging retaliation against Michelle' Prinsloo, is not discussed in this Order & Opinion, as it is not part of the proposed collective action.
[3] This definition would leave out those individuals employed by ISU in the summer of 2005, but the Brief in Support of Plaintiff's Motion clearly states that the proposed collective action would include this group. (Doc. 21 at 4). In addition, the Amended Complaint only refers to the summers of 2005, 2006, and 2007, not 2008 and 2009, which would be included in the collective action defined by the above-quoted language. (Doc. 10 at 9-10, 12). Defendants have not noted these inconsistencies in their briefs, and have accepted that the Court should rule on the 2005-present proposed collective action. (Doc. 22 at 3). In the interest of a thorough disposition, the Court will consider whether the proposed collective action should include the 2005, 2008, and 2009 groups in addition to the 2006 and 2007 groups.
[4] The background information presented here, unless otherwise noted, is drawn from Plaintiffs' Amended Complaint (Doc. 10) and Defendants' Answer to the Amended Complaint (16).
[5] Defendants deny that $9.65 is the appropriate calculation of the wage rate for 2007 CAs, and deny that the Work Agreement's statement of expected hours was binding. Additionally, Defendants assert that the CAs were not entitled to overtime wages, or, alternatively, that they received overtime wages in compliance with the FLSA.
[6] Defendants allege that desk shift hours were reduced as part of this change.
[7] Woods, like many § 216(b) cases, was an Age Discrimination in Employment Act ("ADEA") case, rather than a FLSA case. This is because the ADEA incorporated the "collective action" provision of the FLSA. Hoffmann-La Roche, Inc. v. Sperling, et al., 493 U.S. 165, 167, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989); Woods, 686 F.2d at 579; Molina, 566 F.Supp.2d at 787; Flores v. Lifeway Foods, Inc., 289 F.Supp.2d 1042, 1044 fn. 1 (N.D.Ill.2003).
[8] Due to the Court's disposition of the Plaintiffs' request for conditional certification and judicial notice to the non-2007 CAs, Plaintiffs' request that the statute of limitations be tolled to allow the 2005 CAs (and, now that it is November 2009, presumably the 2006 CAs) to opt-in is moot. Under the FLSA's applicable statute of limitations, actions alleging overtime violations must be "commenced within two years after the cause of action accrued," unless the violation was "willful," in which case the claim must be brought within three years. 29 U.S.C. § 255(a). Plaintiffs do allege a "willful" violation, so the three year statute of limitations can be assumed to apply until the Court determines whether the violation was "willful." The wrinkle for this matter is that, in the case of a FLSA collective action, the suit for each member of the collective action is commenced when he files a written consent to become part of the action, not upon commencement of the original suit by the representative plaintiff. Id. at § 256. Here, nine 2007 CAs have filed their consents, but no other employees have. Thus, the 2005 and 2006 employees' claims would be time-barred absent equitable tolling.
Now that the suit has commenced, Plaintiffs may no longer send their own notice to the 2005 and 2006 CAs without consulting with Defendants and obtaining court approval. Woods, 686 F.2d at 580. As explained below, the Court has determined that Plaintiffs have failed to make the "modest factual showing" required for the Court to authorize that notice be given to the 2005 and 2006 employees. As a result, there is no need to toll the statute of limitations to allow the 2005 and 2006 employees to opt-in.
The Court also finds that there is no reason to toll the statute of limitations in this case. Contrary to Plaintiffs' assertion, the doctrine of equitable estoppel is not applicable hereunder even the case cited by Plaintiffs, "the party requesting the estoppel must show that the defendants have engaged in `affirmative conduct . . . that was designed to mislead or was unmistakably likely to mislead' a plaintiff" into failing to sue in time. Redman v. U.S. West Business Resources, Inc., 153 F.3d 691, 695 (8th Cir.1998) (citations omitted); see also Flight Attendants Against UAL Offset (FAAUO) v. C.I.R., 165 F.3d 572, 577 (7th Cir.1999). Plaintiffs have alleged no such affirmative conduct by Defendants. Defendants' Motion to Dismiss and requests for extensions of time to answer are not the type of conduct that is contemplated by equitable estoppel, and they did not prevent Plaintiffs from moving for notice to the 2005 and 2006 CAs earlier than June of 2009, especially since any delays arguably caused by Defendants ended by July 2008, after the Motion to Dismiss had been denied and the Answer had been filed.
[9] In addition to arguing that the proposed collective action members are not similarly situated, Defendants also argue that the collective action should not be conditionally certified because the deadline set by Magistrate Judge Cudmore for joining parties had passed before Plaintiffs filed the instant motion, and because Plaintiffs' attorney is not an appropriate representative for the collective action.
Though Hoffmann-La Roche and Woods used the term "joinder" to refer to the addition of parties to a § 216(b) collective action, the Court is of the opinion that this is not true joinder such as was contemplated by the scheduling order of August 14, 2008. In Woods, the Seventh Circuit held that a § 216(b) action is a "genuine" representative action, and that § 216(b) does not merely create a right of permissive joinder. 686 F.2d at 580-81. Hence, after discussion with Magistrate Judge Cudmore, the Court construes the deadline set in the August 14, 2008 scheduling order as not limiting the ability of Plaintiffs to add parties to the proposed collective action. This Order & Opinion below sets a deadline by which Plaintiffs must add parties to the proposed collective action.
As to whether Plaintiffs' attorney is appropriate to represent the collective action members, this issue is more appropriately decided at step two of the collective action analysis, which is not before the Court at this point. Defendants allege that Plaintiffs' attorney, Thomas Benson, is North's father or step-father, and that this raises serious fairness concerns for the other members of the collective action. (Doc. 22 at 9-10).
Defendants argue that the Court may consider Rule 23's concern for the adequacy of representation at this point and may thus reject Plaintiffs' proposed collective action. Though Rule 23's requirements are not controlling in a FLSA collective action, "inadequacy of representation is nevertheless an equitable consideration at issue in determining whether to certify a putative class." In re FedEx Ground Package System, Inc., Employment Practices Litigation, 662 F.Supp.2d 1069, 1082 (N.D.Ind.2009) (named plaintiffs not adequate representatives because they would not meet definition of proposed collective action members and because they abandoned claims that could have benefitted other members).
However, at step two, the Court, in deciding whether the matter should proceed to trial as a collective action, considers "(1) whether the plaintiffs share similar or disparate employment settings; (2) whether affirmative defenses raised by the defendant would have to be individually applied to each plaintiff; and (3) any fairness and procedural concerns." Jirak, 566 F.Supp.2d at 848 (citing Mielke v. Laidlaw Transit, 313 F.Supp.2d 759, 762); c.f. Molina, 566 F.Supp.2d at 787 fn. 18 (court can consider these factors at step one). The Court finds that this issue is more prudently considered at step two, when the Court will have the benefit of further briefing and information about the actual members of the collective action. It may be that the Court will find, by analogy to Rule 23's adequacy considerations, that Mr. Benson is not an adequate representative for the members of the collective action, if he is indeed so closely related to North. If it is determined at step two that Mr. Benson is inadequate as counsel for the collective action, the Court may revoke the conditional certification.
[10] In Jirak, the Northern District of Illinois cited Thiessen v. General Electric Capital Corporation for the proposition that only "substantial allegations" are required for a plaintiff to carry its burden at the first step. 566 F.Supp.2d at 848 (quoting 267 F.3d 1095, 1102 (10th Cir.2001)). However, as noted below, the Court has found no case in which only allegations sufficed to carry the plaintiff's burden at step onein all cases, including Jirak, the plaintiff has put on some evidence.
[11] Defendants assert that, even if a collective action can be conditionally certified because the Plaintiffs are similarly situated, this is not an appropriate case for judicially-ordered notice. (Doc. 22 at 5-6). However, Defendants have failed to cite any cases in which a court found that the plaintiff had made her showing that the proposed collective action members were similarly situated, but that the issuance of notice was inappropriate; the Court has found none, either. Given the fact that the proposed collective action has been limited to the 2007 CAs by this Order & Opinion, the Court finds that the claims that will arise from this group are likely to be similar enough to justify the sending of notice to this group. See Hoffmann-La Roche, 493 U.S. at 170-72, 110 S.Ct. 482 (discussing benefits of court-ordered notice in collective action). In addition, Defendants will have the opportunity to argue that the members of the proposed collective action are, in fact, dissimilar, and that the conditional certification should be revoked when step two of the collective action analysis is reached.
[12] The Heckler court also modified language in the plaintiffs' proposed notice that seemed to indicate that the defendants were likely to retaliate against potential plaintiffs for exercising their FLSA rights. Heckler, 502 F.Supp.2d at 781. Here, Plaintiffs' proposed notice also contains a "No Retaliation Permitted" section on page three. However, the Court does not find that this section implies that Defendants are likely to retaliate against potential plaintiffs, and so makes no changes to it.
[13] In an attached "Draft Order on Collective Action Notification," Plaintiffs imply that Social Security numbers are also requested. (Doc. 21-4 at 2). Following Russell, the Court finds that the Plaintiffs have no genuine need of the Social Security numbers of the potential collective action members, and will not order their disclosure. Russell, 575 F.Supp.2d at 939. The names, addresses, and telephone numbers will suffice.
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} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00558-CV
Jonnie Peck, Appellant
v.
Lawrence Chang, M.D., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. 96-11840-C, HONORABLE MARY PEARL WILLIAMS, JUDGE PRESIDING
Appellant Jonnie Peck appeals from a take-nothing summary judgment in her
wrongful death suit against appellee Lawrence Chang, M.D. For the reasons stated below, we
will reverse and remand the summary judgment.
Appellant filed suit against Dr. Chang and others to recover damages resulting from
alleged acts of negligence in the medical treatment of her son, John Robert Peck, while at
Brackenridge Hospital in Austin, Texas on October 1 and 2, 1994. Dr. Chang was a second-year
resident at Brackenridge on October 2, when he responded to a "code blue" (1) on Mr. Peck and
attempted resuscitation of the patient. Appellant alleged in the pleadings that Dr. Chang was
negligent in his treatment of Mr. Peck during the code blue by (1) failing to obtain a blood gas,
(2) negligently and inappropriately administering lidocaine and bretylium, and (3) failing to utilize
either an external or transvenous pacemaker.
Dr. Chang filed a motion for summary judgment on the ground that any alleged
negligence on his part did not proximately cause damages to appellant because his only
involvement in Mr. Peck's treatment was his attempted resuscitation of Mr. Peck after Mr. Peck
was discovered without respiration or a pulse. He also filed a motion for severance. After
reviewing the summary-judgment motion and response filed by appellant, the trial court granted
summary judgment in favor of Dr. Chang and granted his motion for severance.
Summary judgment in favor of the defendant is proper only if, as a matter of law,
the plaintiff could not succeed on any of the theories pled. Delgado v. Burns, 656 S.W.2d 428,
429 (Tex. 1983). The movant must establish that there is no genuine issue of material fact and
that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In deciding whether
a material fact issue precludes summary judgment, the court will take as true any evidence
favoring the nonmovant and resolve any doubts and every reasonable inference in the nonmovant's
favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985).
Dr. Chang's summary-judgment proof includes Mr. Peck's hospital records and Dr.
Chang's sworn affidavit and supplemental affidavit attesting to the fact that when he initially
attempted resuscitation, Mr. Peck "was already in asystole with an occasional escape beat." He
further explains that "[t]his type of heart rhythm indicates that the patient's life sustaining
functions have ceased." Dr. Chang describes his actions in connection with his resuscitation
attempt of Mr. Peck and states that none of the negligent acts or omissions alleged in appellant's
petition were a proximate cause of the injuries or damages allegedly sustained by appellant. He
further concludes that Mr. Peck's pneumonia contributed to his death, stating that in his opinion
"when a patient arrests in a hospital setting on the floor and they have pneumonia, in reasonable
medical probability, there is a less than 50% chance that they can be successfully resuscitated."
In response to Dr. Chang's motion for summary judgment, appellant controverted
with an affidavit by appellant's expert, Dr. Paul K. Bronston. While Dr. Bronston's affidavit
contains statements of legal conclusion, the affidavit does identify conflicts between Dr.Chang's
statements and the hospital records submitted as summary-judgment evidence in support of Dr.
Chang's motion. Specifically, Dr. Bronston points out that the progress notes and death summary
written by Dr. Juantia Bishop state that Mr. Peck was in asystole during the entire code blue. Dr.
Bronston asserts, however, that the cardiac arrest record indicates that Mr. Peck was in agonal
rhythm during at least part of the code blue. He further contends that Dr. Chang violated the
standard of medical care by improperly administering lidocaine and bretylium to Mr. Peck while
he was in agonal rhythm, failing to obtain a blood gas from Mr. Peck during the code blue, and
failing to attempt an external or transvenous pacemaker when Mr. Peck was in agonal rhythm.
Appellant raises three points of error challenging the trial court's summary
judgment in favor of Dr. Chang: (1) that Dr. Chang's summary-judgment evidence did not
conclusively negate every element of appellant's cause of action; (2) that Dr. Chang's summary-judgment evidence amounted to conclusory statements not supported by sufficient evidence to
support summary judgment; and (3) that appellant's summary-judgment evidence effectively
controverted Dr. Chang's summary-judgment evidence. An interested party's affidavit may form
the basis for summary judgment if it is uncontroverted and "clear, positive and direct, otherwise
credible and free from contradiction and inconsistencies, and could have been readily
controverted." Tex. R. Civ. P. 166a(c). The interested party's testimony, like all expert
affidavits, must "identify the relevant standard of care, establish that the expert is familiar with
that standard, and demonstrate that the medical care provided complied with the standard of care."
Silvas v. Ghiatas, 954 S.W.2d 50, 53 (Tex.App.--San Antonio 1997, pet. denied). If the movant's
summary judgment affidavit successfully disproves one or more of the essential elements of the
plaintiff's claim, the burden then shifts to the plaintiff to produce competent medical testimony that
raises a fact issue with regard to negligence. Silvas, 954 S.W.2d at 53.
Dr. Chang's affidavit fails to address several negligent acts and omissions alleged
against him in appellant's petition. Dr. Chang does not explain why he did not obtain a blood gas
from Mr. Peck during the code blue. Additionally, he does not allege that lidocaine and bretylium
were properly administered to Mr. Peck, nor does he allege that an external or intravenous
pacemaker was not appropriate.
Furthermore, we find that Dr. Chang's summary-judgment evidence is successfully
controverted by Dr. Bronston's affidavit, thereby raising a material issue of fact regarding Dr.
Chang's treatment of Mr. Peck during the code blue. Dr. Chang states in his affidavit that upon
initial examination Mr. Peck was in asystole. The cardiac arrest report indicates that Mr. Peck
was in asystole when the code blue began. The report further indicates, however, that
approximately ten minutes into the code blue, Mr. Peck was in an agonal rhythm. Other notations
in the cardiac arrest report show that Dr. Chang administered lidocaine and bretylium after the
agonal rhythm was noted. Yet, Dr. Bishop's notes and death summary state that Mr. Peck was
asystole during the entire code blue. These discrepancies between the hospital records and the
affidavits on file create a material fact dispute which cannot be resolved by summary judgment.
Points of error one and three are sustained. Because points of error one and three are dispositive,
we need not consider appellant's second point of error.
Having concluded that Dr. Bronston's affidavit raises a material issue of fact, we
hold that summary judgment was not proper. Accordingly, we reverse the summary judgment in
favor of Dr. Chang and remand for further proceedings. (2)
Mack Kidd, Justice
Before Justices Powers, Kidd and B. A. Smith
Reversed and Remanded
Filed: September 11, 1998
Do Not Publish
1. A code blue is called by medical personnel when a patient is in respiratory or cardiac arrest.
2. In reaching this conclusion, we express no opinion on the merits of appellant's claims against
Dr. Chang.
statements and the hospital records submitted as summary-judgment evidence in support of Dr.
Chang's motion. Specifically, Dr. Bronston points out that the progress notes and death summary
written by Dr. Juantia Bishop stat | {
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARTA STEKELMAN, HERMAN EDELMAN,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-2121
______________________
Appeal from the United States Court of Federal
Claims in No. 1:18-cv-00189-CFL, Judge Charles F.
Lettow.
______________________
Decided: November 13, 2018
______________________
MARTA STEKELMAN, HERMAN EDELMAN, Neptune, NJ,
pro se.
KRISTIN MCGRORY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR.,
JOSEPH H. HUNT.
______________________
2 STEKELMAN v. UNITED STATES
Before NEWMAN, WALLACH, and STOLL, Circuit Judges.
PER CURIAM.
Appellants Dr. Marta Stekelman and her husband,
Herman Edelman (together, “Appellants”), appeal an
opinion and order of the U.S. Court of Federal Claims
that dismissed their claim for miscalculated retirement
annuity for lack of jurisdiction. See Stekelman v. United
States, 138 Fed. Cl. 303, 306 (2018). We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3) (2012). We affirm.
BACKGROUND
The U.S. Department of Defense employed Dr.
Stekelman as a medical doctor for about thirty-two years.
Stekelman, 138 Fed. Cl. at 304. 1 Upon her retirement
from service in 2010, Dr. Stekelman applied for retire-
ment annuity benefits offered under the Federal Employ-
ees’ Retirement System (“FERS”) Act of 1986, as
administered by the Office of Personnel Management
(“OPM”). See id.; see also Pub. L. No. 99-335, 100 Stat.
514 (codified at 5 U.S.C. §§ 8401–8479 (2012)). OPM
determined that Dr. Stekelman was entitled to a monthly
gross annuity. Stekelman, 138 Fed. Cl. at 304; see 5
U.S.C. § 8339(a) (setting forth the computation of a feder-
al employee’s retirement annuity).
After receiving the annuity notice, Dr. Stekelman re-
quested reconsideration by OPM of the originally calcu-
lated gross annuity, and argued that OPM failed to
consider her entitlement to “[physician] comparability
allowance” as additional income when calculating her
monthly gross annuity. Appellee’s App. 19 (Request for
1 For convenience, we refer to the undisputed facts
of the case as put forth by the Court of Federal Claims.
Stekelman, 138 Fed. Cl. at 303–04. See generally Appel-
lants’ Br.; Appellee’s Br.
STEKELMAN v. UNITED STATES 3
Reconsideration); see 5 U.S.C. § 5948 (setting forth the
physicians comparability allowance). OPM denied the
Request for Reconsideration, affirming its initial decision
that the “annuity is correctly computed.” Appellee’s
App. 20.
Dr. Stekelman appealed this denial to the Merit Sys-
tems Protection Board (“MSPB”). See Stekelman v. Office
of Pers. Mgmt., 2017 WL 4367459 (M.S.P.B. Sept. 29,
2017) (Appellee’s App. 25–33). The MSPB reversed
OPM’s denial and ordered OPM to “recalculate [Dr.
Stekelman]’s annuity by including the [physician compa-
rability allowance] in her high-[3].” 2 Appellee’s App. 29;
see id. (“OPM should first recalculate [Dr. Stekelman]’s
annuity and determine the amount . . . owed for the
increase in her high-[3], retroactive to her retirement
date. OPM may then subtract from this amount the total
of the deductions [Dr. Stekelman]’s employing agency
failed to take, plus any interest that applies.” (footnote
omitted)). The MSPB also notified Dr. Stekelman of her
right to file “a petition for enforcement” with the MSPB
should she “disagree[] with OPM’s new calculations, made
in accordance with the [MSPB]’s final decision.” Id.
Accordingly, in January 2018, OPM calculated a new
monthly gross annuity rate, and to account for the differ-
ence in the annuity it had previously paid Dr. Stekelman,
issued to her a one-time annuity lump-sum payment.
Appellee’s App. 23 (January 2018 OPM Letter to Dr.
Stekelman). However, Dr. Stekelman immediately sent a
2 A former federal employee’s monthly gross annui-
ty is based upon the employee’s length of service and
high-3 average salary, see Stekelman, 138 Fed. Cl. at 304,
where a federal employee’s “[h]igh-3 average salary refers
to the employee’s highest average actual salary during
any three years of consecutive service,” Appellee’s App. 32
n.2.
4 STEKELMAN v. UNITED STATES
letter to OPM arguing, inter alia, that OPM’s calculations
regarding the lump-sum payment were in error and that
she was entitled to “interest” on the monthly annuity
amounts as well as “reasonable attorney fees” for her
husband, who represented her as counsel. Id. at 24.
There is no indication in the record that OPM responded
to Dr. Stekelman’s letter. See generally id.; Appellant’s
App.
In February 2018, Appellants filed a complaint with
the Court of Federal Claims, arguing that Dr. Stekelman
was entitled to a “larger [one-time annuity] back-payment
than that granted by OPM, . . . interest on the monthly
gross annuity amounts,” and attorney fees and costs.
Stekelman, 138 Fed. Cl. at 305. The Court of Federal
Claims dismissed the Complaint, determining that it
“lacks jurisdiction over [Appellants’] retirement annuity
claim,” as well as any related request to award attorney
fees, because “[their] dispute is centered on an issue
subject to MSPB review.” Id. at 306.
DISCUSSION
Appellants argue that OPM “would not or could not
correct” its improper retirement annuity determination,
and that the Court of Federal Claims “should have under-
stood that only the [j]udicial [s]ystem [f]or which this
[c]ourt was instituted could correct the mathematical
error.” Appellants’ Br. 1. We disagree.
I. Standard of Review and Legal Standard
We review a dismissal by the Court of Federal Claims
for lack of jurisdiction de novo. See Todd Constr., L.P. v.
United States, 656 F.3d 1306, 1310 (Fed. Cir. 2011).
When ruling on a motion to dismiss for lack of jurisdic-
tion, the Court of Federal Claims “must accept as true all
undisputed facts asserted in the plaintiff’s complaint and
draw all reasonable inferences in favor of the plaintiff.”
Trusted Integration, Inc., v. United States, 659 F.3d 1159,
STEKELMAN v. UNITED STATES 5
1163 (Fed. Cir. 2011) (citation omitted). “[W]hen a federal
court concludes that it lacks subject-matter jurisdiction,
the court must dismiss the complaint in its entirety.”
Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). The
“leniency” afforded pro se litigants “with respect to mere
formalities” does not extend to circumstances involving
“jurisdictional requirement[s],” Kelley v. Sec’y, U.S. Dep’t
of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987), and in any
case, where a party is seeking attorney’s fees, it would ill
behoove that party to claim unfamiliarity with governing
rules.
By statute, the authority to decide a FERS application
in the first instance and adjudicate all claims arising
under that retirement system rests with OPM. See 5
U.S.C. § 8461(c) (“[OPM] shall adjudicate all claims under
the provisions of this chapter administered by [OPM].”);
see also Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626
(Fed. Cir. 1995) (“Congress enacted the FERS scheme,
including OPM administration of that scheme under
§ 8461 . . . .”). OPM’s regulations set forth the process by
which a party can seek reconsideration or an appeal
following OPM’s initial decision. See 5 C.F.R. §§ 841.305–
306, 841.308. The MSPB has jurisdiction over “an admin-
istrative action or order affecting the rights or interests of
an individual . . . under [the FERS as] administered by
[OPM].” 5 U.S.C. § 8461(e)(1); see Miller v. Office of Pers.
Mgmt., 449 F.3d 1374, 1377 (Fed. Cir. 2006) (stating that
the MPSB has statutory jurisdiction over OPM’s admin-
istration of FERS); see also 5 C.F.R. § 841.308 (“[A]n
individual whose rights or interests under FERS are
affected by a final decision of OPM may request MSPB to
review the decision . . . .”).
II. The Court of Federal Claims Lacked Subject Matter
Jurisdiction over Appellants’ Complaint
Appellants’ claims lie within the jurisdiction of the
MSPB, rather than the Court of Federal Claims. Appel-
6 STEKELMAN v. UNITED STATES
lants appealed OPM’s alleged miscalculation of Dr.
Stekelman’s annuity back-payment to the Court of Feder-
al Claims, and not the MSPB. See Stekelman, 138 Fed.
Cl. at 304. We find no authority from Congress or other-
wise granting the Court of Federal Claims jurisdiction for
“adjudicating disputes over retirement annuities and
benefits” when the underlying dispute rests on personnel
action subject to MSPB review. See El v. United States,
730 F. App’x 928, 929 (Fed. Cir. 2018) (holding the Court
of Federal Claims lacks subject matter jurisdiction over
appellant’s claim that OPM incorrectly calculated his
annuity); Miller, 449 F.3d at 1377 (holding the MSPB
lacked jurisdiction over appellant’s challenge to retroac-
tive annuity payments because appellant was challenging
OPM’s administration of the Federal Employees’ Group
Life Insurance Act, and not of FERS, and therefore statu-
tory “jurisdiction to review the overpayment determina-
tion lay in the district court or the Court of Federal
Claims, but not in the [MSPB]”). Appellants’ requested
relief is for an issue subject to MSPB review because they
seek correction of the most recent calculation by OPM of
Dr. Stekelman’s gross retirement annuity. See Appel-
lants’ Br. 1 (requesting that we reverse the Court of
Federal Claims and instruct that it “correct [OPM’s]
mathematical error”); Appellee’s App. 23 (providing
OPM’s re-computation in 2018 of Dr. Stekelman’s “high-3”
average salary and outlining the impact of such recalcula-
tion upon her annuity rate). We conclude that Appellants’
dispute is properly characterized as one founded on
administration of annuity under FERS, and therefore the
Court of Federal Claims was correct in holding that
jurisdiction to review any potential miscalculation by
OPM lies with the MSPB, and not the Court of Federal
Claims. See 5 U.S.C. § 8461(e)(1); Miller, 449 F.3d at
1377.
Appellants are not without remedy. Our decision to-
day does not preclude Appellants from petitioning the
STEKELMAN v. UNITED STATES 7
MSPB for enforcement of the MSPB’s determination.
Pursuant to 5 U.S.C. § 1204(a)(2), the MSPB has the
authority to “order any Federal agency or employee to
comply with any order or decision issued by the [MSPB]
under [its jurisdiction] and enforce compliance with any
such order.” Here, the MSPB’s determination included a
notice of its enforcement authority. See, e.g., Appellee’s
App. 29 (“If, after the agency has informed you that it has
fully complied with this decision, you believe that there
has not been full compliance, you may ask the [MSPB] to
enforce its decision by filing a petition for enforcement
with this office, describing specifically the reasons why
you believe there is noncompliance.”). 3
CONCLUSION
We have considered Appellants’ remaining arguments
and conclude that they are without merit. For the rea-
sons stated above, the Court of Federal Claims’ Opinion
and Order is
AFFIRMED
COSTS
No costs.
3 Although the thirty-day deadline for the Appel-
lants to file a petition for enforcement with the MSPB has
elapsed, see Appellee’s App. 30; 5 C.F.R. § 1201.182(a)
(setting forth that a petition for enforcement, such as
seeking enforcement of the MSPB’s original decision
remanding to OPM to recalculate annuity, must be filed
within thirty days of the MSPB’s decision), the MSPB
issued a notice indicating that, if the Appellants’ “petition
is filed late, [they] should include a statement and evi-
dence showing good cause for the delay and a request for
an extension of time for filing [the petition for enforce-
ment],” Appellee’s App. 30.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7704
EDWARD GALES,
Plaintiff - Appellant,
versus
OFFICER LUGI, a/k/a David L. Luebke,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CA-99-965-AM)
Submitted: March 23, 2000 Decided: March 30, 2000
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edward Gales, Appellant Pro Se. John S. Morris, III, BEALE, BAL-
FOUR, DAVIDSON & ETHERINGTON, P.C., Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward Gales appeals the district court’s order denying relief
on his 42 U.S.C.A. § 1983 (West Supp. 1999) complaint. We have
reviewed the record and the district court’s opinion and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Gales v. Lugi, No. CA-99-965-AM (E.D. Va. Dec.
3, 1999). We further deny Gales’ motion for discovery and produc-
tion of documents. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
AFFIRMED
2
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
State of West Virginia, June 28, 2013
Plaintiff Below, Respondent RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs) No. 12-0701 (Ohio County 12-F-20)
Harold Wayne Nice
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Harold Wayne Nice, by counsel, Jason D. Parmer, appeals the Circuit Court of
Ohio County’s order entered May 7, 2012, sentencing him to consecutive sentences of one to ten
years of incarceration for breaking and entering and one to five years of incarceration for
conspiring to commit breaking and entering. The State, by counsel Andrew D. Mendelson, filed a
response in support of the circuit court’s order. Petitioner’s counsel filed this appeal pursuant to
Anders v. California, 386 U.S. 738 (1967).
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
On December 6, 2011, petitioner and a co-defendant were stopped by policeafter being
spotted walking quickly in the vicinity of a building alarm going off. The officers stopped and
frisked the co-defendant but found no weapons and proceeded to look in petitioner’s backpack for
weapons. No weapons were found in the backpack, but the officer found a pry bar, a pair of
gloves, and a hacksaw. Petitioner and his co-defendant were arrested on unrelated warrants and,
after further investigation, were charged with breaking and entering, and conspiracy to commit
breaking and entering. Petitioner’s co-defendant entered into a plea agreement and agreed to
testify against petitioner. Petitioner was indicted by a grand jury on January 9, 2012, on both
charges. At the suppression hearing on February 9, 2012, petitioner moved to suppress the
evidence taken from the backpack, but since there was no affirmative evidence that petitioner did
not give consent, the circuit court denied the motion.
At trial, on March 22, 2012, petitioner’s co-defendant testified against petitioner, stating
that they entered the building with the intent to steal items therefrom. At trial, the arresting officer
claimed that petitioner had given consent to search the backpack and, while there was no record
1
of petitioner granting consent, petitioner never testified at trial or at the suppression hearing; thus,
the officer’s testimony regarding consent was uncontroverted. The State also introduced evidence
at trial regarding tracks at the site of the burglary matching the defendants’ shoes, despite
assurances from the prosecutor that no expert testimony would be taken regarding whether the
shoes match. The defense did not object to the testimony. Finally, a home confinement officer
from Brooke County testified regarding the validity of data from a GPS ankle bracelet that the co
defendant was wearing on the night of the burglary. The testimony was admitted without the
officer being certified as an expert; however, the defense did not challenge the home confinement
officer’s qualifications or object to the testimony.
“‘The action of a trial court in admitting or excluding evidence in the exercise of
its discretion will not be disturbed by the appellate court unless it appears that
such action amounts to an abuse of discretion.’ Syl. Pt. 6, State v. Kopa, 173
W.Va. 43, 311 S.E.2d 412 (1983).” Syllabus Point 1, State v. Nichols, 208 W.Va.
432, 541 S.E.2d 310 (1999).
Syl. Pt. 1, State v. Morris, 227 W.Va. 76, 705 S.E.2d 583 (2010).
Petitioner first argues that there was no evidence in police reports from the night of the
arrest that the backpack search was voluntary, and that the only testimony was from the arresting
officer stating that he asked for permission to search the bag and was granted permission. We find
that the testimony that the search was consensual was uncontroverted and, therefore, the circuit
court did not abuse its discretion in admitting contents of the backpack into evidence.
Second, petitioner argues that this Court has not addressed whether shoe identification
from tracks requires expert testimony in order to be admissible, nor the level of expertise required
to testify as to the reliability of GPS tracking software. Because the defense objected to neither
the shoeprint nor the GPS testimony, this Court applies the plain error analysis. “To trigger
application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Moreover,
a plain error must affect “the outcome of the proceedings in the circuit court . . .,” in order for the
error to be reversible. Id., Syl. Pt. 9, in part. Because the co-defendant’s uncontroverted testimony
was that he and petitioner acted in concert to break into the building, we find that the testimony
regarding the footprints and GPS did not affect the outcome of the proceedings below and does
not fall under the plain error doctrine.
The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in his brief. The circuit court did not abuse its discretion in convicting petitioner for
breaking and entering and conspiracy to commit breaking and entering.
For the foregoing reasons, we affirm.
Affirmed.
2
ISSUED: June 28, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
3
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214 Ga. App. 609 (1994)
IBRAHIM
v.
TALLEY & ASSOCIATES, P. C. et al.
A94A1012.
Court of Appeals of Georgia.
Decided August 17, 1994.
Reconsideration Denied September 12, 1994.
Gerard J. Lupa, for appellant.
Millkey & Associates, John M. Millkey, Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, for appellees.
ANDREWS, Judge.
The trial court granted summary judgment to Talley & Associates, P. C., Jeffrey Talley and Michael Lord in plaintiff/appellant Ibrahim's suit for abusive litigation. Ibrahim appeals.
In its excellent six-page order, the trial court made the following findings of undisputed fact. In 1989, the Professional Consulting Services of Georgia, Inc. ("PCS") retained the law firm of Jeffrey Talley & Associates, P. C. ("the law firm") to represent it in a Gwinnett County action against former PCS employee, Ali Ibrahim. Talley is the principal and owner of the law firm.
In the action, PCS alleged that Ibrahim breached the nonsolicitation, noncompetition and nondisclosure clauses of his employment agreement with it and committed certain business torts against PCS. The original complaint alleged that the agreement which Ibrahim breached was an August 1986 employment agreement, a copy of which was attached to the complaint. Ibrahim counterclaimed alleging *610 intentional infliction of emotional distress and breach of the oral employment contract. The law firm amended the complaint and withdrew the allegations relating to the 1986 employment agreement and alleged the existence and breach of a second agreement, which was executed in May 1987. Although the original 1987 employment contract could not be found, an employment contract which was allegedly similar to the signed 1987 agreement was attached.
Ibrahim contends that the law firm withdrew the original complaint because discovery revealed that the 1986 employment agreement contained his forged signature. The law firm, Talley and Lord maintained that the original complaint was amended when it was discovered that the employment agreement was executed in 1987, after Ibrahim had taken a work hiatus and was re-hired. The law firm, Talley and Lord claimed that this fact made any 1986 agreement irrelevant.
Ibrahim filed a motion for summary judgment, arguing that: 1) he never executed the 1987 employment agreement; 2) such an agreement would be unenforceable; and 3) there was no basis to support PCS's tort claims. On October 24, 1990, the trial court granted the motion with respect to PCS's claims for breach of the noncompetition clause and the nonsolicitation clause on the grounds that the clauses were unenforceable since they did not contain sufficiently specific territorial restrictions. The court denied the remainder of Ibrahim's motion.[1]
The case proceeded to trial on PCS's claims for breach of the nondisclosure clause of the employment agreement and for the tort claims. Ibrahim's counterclaim also was tried. At trial, the court granted Ibrahim's motion for directed verdict on PCS's claims for breach of the nondisclosure clause of the employment agreement. The court also granted PCS's motion for directed verdict on Ibrahim's claim of forgery. PCS's claims for conversion and for intentional interference with contractual and business relations went to the jury. Ibrahim's counterclaim for breach of the oral contract and for intentional infliction of emotional distress also were submitted to the jury.
The jury returned a verdict against PCS on its tort claims and business relations claim. The jury returned a verdict against Ibrahim on his claim for intentional infliction of emotional distress, but in favor of him on his counterclaim for breach of the oral employment contract.
In April 1992, Ibrahim filed the instant action against the law firm and Talley and Lord, individually, alleging that they were liable *611 to him pursuant to OCGA § 51-7-80, the abusive litigation statute. (Ibrahim also sued PCS and its owner, though they are not involved in this appeal.) Ibrahim contended that based upon discovery, Talley, Lord and the law firm knew that the original complaint was based upon a forged document, that the amended complaint was based upon a document that did not exist, and that all of the tort claims which PCS asserted were frivolous. Further, Ibrahim argued that appellees knew that in another superior court case, a similar restrictive covenant was held to be unenforceable. Thus, Ibrahim claimed that the law firm, Talley and Lord acted with malice and bad faith and without substantial justification. Talley, Lord and the law firm asserted that they acted in good faith and that their claims on behalf of PCS were reasonable. They filed a motion for summary judgment, which the court granted.
1. In his first enumeration, Ibrahim contends that the court erred in considering evidence which would have been inadmissible at trial. See generally OCGA § 9-11-56 (e). Specifically, he argues that many of appellees' statements of undisputed fact were based on hearsay from Talley's and Lord's affidavits and that many of the statements set forth opinions and conclusions. He contends that without this inadmissible evidence, there was no competent evidence to support the motion.
This enumeration is without merit. Contrary to Ibrahim's contentions, the statements were not inadmissible hearsay, but testimony to explain conduct. See generally OCGA § 24-3-2; Lloyd v. Tyson, 195 Ga. App. 48, 49 (2) (392 SE2d 551) (1990); Joiner v. Joiner, 225 Ga. 699 (3) (171 SE2d 297) (1969). Similarly, we find Ibrahim's contentions regarding the allegedly conclusory nature of the affidavits misplaced.
2. In his second enumeration, Ibrahim argues that the lower court erred in finding that the defendants acted in good faith, without malice and with substantial justification in pursuing the lawsuit. In his third enumeration, Ibrahim argues that the court erred in finding that he had not created a factual issue regarding these issues. Citing OCGA § 51-7-80, Ibrahim argues that a jury issue existed since a jury could have inferred that Talley and Lord fabricated the existence of the 1987 employment contract to avoid the consequences of the allegedly forged 1986 contract. Moreover, Ibrahim contends that Talley, Lord and the law firm tried to destroy his business.
There was evidence that Talley, Lord and the law firm reasonably relied upon PCS's representations that Ibrahim's 1987 employment contract was unavailable. Because of this unavailability, PCS provided a form which was believed to be similar to the one which Ibrahim signed. In his affidavit, Talley stated that he had previously represented PCS in employee disputes in which there was a signed *612 employment contract and that he believed it reasonably probable that Ibrahim had executed such an employment agreement in 1987.
In response to the motion for summary judgment, Ibrahim filed several documents, including his own affidavit and copies of excerpts from the depositions in the Gwinnett County case. In his affidavit, he avowed that he had never signed an employment contract with PCS and that he had produced expert evidence to appellees that the signature on the 1986 contract was a forgery. He also stated that he was told by former employees of PCS that its legal action against him was an effort to put him out of business.
OCGA § 51-7-81 provides that any person who takes an active part in civil proceedings shall be liable for abusive litigation if such person acts with malice and without substantial justification. OCGA § 51-7-80 (5) provides that: "`[m]alice' means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based."
Here, there was no evidence that Talley, Lord or the law firm conducted the lawsuit with the requisite improper purpose. Assuming, without deciding, that the documents which Ibrahim filed in response to the motion were properly before the court, there was still no evidence that Talley, Lord and the law firm acted with malice and without substantial justification. Though we are mindful that Ibrahim's motion for summary judgment in the underlying suit was denied, we make our determination here without being bound by that prior determination. See generally Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991); Dills v. Bohannon, 208 Ga. App. 531 (431 SE2d 123) (1993) (in the context of denial of summary judgment in the suit involving OCGA § 9-15-14).
Judgment affirmed. Beasley, P. J., and Johnson, J., concur.
NOTES
[1] Defendant/appellee Lord was hired by the law firm in November 1990, after the trial court issued its decision on Ibrahim's summary judgment motion.
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914 A.2d 282 (2007)
189 N.J. 166
Danielle DAVIDSON, Plaintiff-Respondent,
v.
Raymond A. SLATER, Defendant-Appellant, and
Deanna L. Slater and John Doe(s), 1-5, ABC Corporation(s), 1-5, Defendants.
Supreme Court of New Jersey.
Argued September 12, 2006.
Decided January 30, 2007.
*283 William J. Markwardt, Philadelphia, PA, argued the cause for appellant (Kent & McBride, attorneys).
Michael A. Ferrara, Jr., Cherry Hill, argued the cause for respondent (Steven J. Jozwiak and The Ferrara Law Firm, attorney).
Susan Stryker, Trenton, argued the cause for amici curiae Insurance Council of New Jersey, American Insurance Association, Property Casualty Insurers Association of America and National Association of Mutual Insurance Companies (Sterns & Weinroth, attorneys; Ms. Stryker and Mitchell A. Livingston, on the brief).
Daniel E. Rosner, argued the cause for amicus curiae Association of Trial Lawyers of America-New Jersey.
R. Peter Connell, Manasquan, submitted a brief on behalf of amicus curiae Independent Insurance Agents & Brokers of New Jersey (Connell, Connell & Camassa, attorneys; *284 Mr. Connell and Jessica Ann Schlee, on the brief).
Cynthia M. Craig, Chatham, submitted a brief on behalf of amicus curiae Trial Attorneys of New Jersey (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys).
Wayne J. Positan, Roseland and Gerald H. Baker, Hoboken, submitted a brief on behalf of amicus curiae New Jersey State Bar Association (Mr. Positan, President, attorney; Mr. Baker and Amirali Y. Haidri, Union, of counsel).
Justice LaVECCHIA delivered the opinion of the Court.
This personal injury action involves the limitation-on-lawsuit or "verbal" threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. We have been asked whether, in order to vault the verbal threshold, a plaintiff must produce a comparative analysis segregating injuries suffered in the subject automobile accident from all previous injuries to the same body part, regardless of whether the plaintiff has pled a cause of action premised on the aggravation of pre-existing injuries. See Polk v. Daconceicao, 268 N.J.Super. 568, 575, 634 A.2d 135 (App.Div.1993) (requiring plaintiff to produce comparative medical analysis for pre-AICRA verbal threshold claim based on aggravation of pre-existing injury or condition).
In this matter, plaintiff does not allege aggravation of pre-existing injuries. However, because she had been injured in other accidents and did not provide a comparative-medical analysis distinguishing the alleged accident injuries from all other injuries to the same body parts, the trial court dismissed her complaint on a motion for summary judgment. The Appellate Division reversed, holding that such an analysis was not required for plaintiff's non-aggravation claim to vault the verbal threshold. Davidson v. Slater, 381 N.J.Super. 22, 29, 884 A.2d 235 (2005). We granted defendant's petition for certification. 186 N.J. 243, 892 A.2d 1289 (2006).
We agree with the Appellate Division's conclusion that plaintiff's non-aggravation cause of action should not have been dismissed based on the failure to provide a comparative-medical analysis. Although the parties present their dispute as one focused on the current verbal threshold standard, our determination in this matter turns ultimately on the application of basic tort principles of causation and burden allocation as between plaintiffs and defendants. When a plaintiff alleges aggravation of pre-existing injuries as the animating theory for the claim, then plaintiff must produce comparative evidence to move forward with the causation element of that tort action. When a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration. AICRA does not impose on plaintiff any special requirement for a comparative-medical analysis in respect of causation in order to vault the verbal threshold.
In this matter, plaintiff can carry her burden of moving forward in her non-aggravation case by demonstrating the existence of a "permanent" injury resulting from the automobile accident without having to exclude all prior injuries to the same body part. If defendant raises a genuine factual issue about the causation of plaintiff's claimed injuries by pointing to other injuries the plaintiff may have experienced, that disputed issue of causation is for the fact-finder to decide, except in those unusual instances when no reasonable fact-finder could conclude that the permanent injury was caused by the subject accident.
*285 I.
A.
The facts in the motion record reveal that plaintiff Danielle Davidson was involved in an automobile accident in the early morning hours of August 2, 2001, when the vehicle in which she was a passenger was rear-ended by a car driven by Raymond Slater and owned by his wife, Deanna. Davidson declined treatment at the scene.
The next day, however, after experiencing lower back and neck pain, she went to the hospital emergency room. She was x-rayed, treated, and released. In answers to interrogatories, she described her symptoms from the accident as rib pain, right knee pain, neck pain and headache, upper and lower back pain, and a tingling sensation in her hands and feet. In deposition testimony taken in February 2004, she similarly described the injuries to her back and neck, and complained of having muscle spasms and "pins and needles" sensations in her feet and hands. Notably, an interrogatory specifically asked Davidson about previous injuries exacerbated by the August 2001 accident. She did not identify any.
The medical information obtained from plaintiff during discovery came largely from her internist, Dr. Scott Dorfner, who had examined her two weeks after the accident and treated her with anti-inflammatory medication, physical therapy, and medication for depression, explained to be caused by her "ongoing disabilities." Dr. Dorfner summarized his findings in a report dated December 19, 2002. Davidson had reported experiencing neck and back spasms, lower back and leg pain, dizziness, and cephalgia (headache) since the accident. Dr. Dorfner found a decreased range of motion (seventy percent of normal) in her cervical and lumbar spine. An MRI of the middle and lower spine revealed a "mild" disc protrusion between the L5 and S1 vertebrae, but no herniated disc. An MRI of plaintiff's cervical spine revealed "mild degenerative changes" at C4-C5 and C5-C6, as well as "minimal" or "small" disc protrusions at those vertebrae. Dr. Dorfner's report further stated that Davidson "continued with symptoms consistent with a disc injury" and that she had "never regained the final ranges of motion in her cervical or lumbar spine," which he described as "experienc[ing] 15% deficits."
Dr. Dorfner diagnosed lumbar disc protrusion at L5-S1, post-traumatic myofascitis[1] and headache, lumbar radiculitis[2] bilaterally, and post-traumatic cervical, dorsal (thoracic), and lumbar strain and sprain. He concluded that, "[a]t this time, the injuries [plaintiff] has suffered are permanent. They are the direct result of the motor vehicle accident which occurred on 8/2/01." In a later certification prepared in support of Davidson's lawsuit, Dr. Dorfner summarized his December 2002 findings and reiterated the diagnoses contained therein, adding:
It is my opinion to within a reasonable degree of medical certainty that as a result of the motor vehicle accident which occurred on August 2, 2001 that Danielle Davidson has sustained a permanent *286 injury which has not healed sufficiently to allow her to function normally and that she will not return to normal function even with ongoing medical treatment.
Davidson also was seen by a number of other physicians, including an independent physician assigned by the no-fault carrier. From that examination, Dr. Nathan Zemel opined that "[b]ased on the claimant's history, review of the available records and my examination, [plaintiff] sustained a cervical strain/sprain, lumbar strain/sprain, cervical and lumbosacral radiculitis and right lumbosacral radiculopathy." He noted that there were "no pre-existing conditions affecting her," described her prognosis as "fair," and concluded that "[i]f the history of the accident is correct, there was a cause and effect relationship between the original complaints and the reported accident."
Conflict over the cause of plaintiff's injuries arose as a result of Davidson's examination by defendant's physician, Dr. Gregory Maslow, a specialist in orthopedic surgery and sports medicine. Dr. Maslow reported Davidson's subjective symptoms of neck and lower back pain, and numbness of the arms and legs, but noted that she moved about with ease and sat, stood, and walked "without apparent discomfort." Dr. Maslow found tenderness in the lower lumbar area, but no spasm, no abnormally limited ranges of motion in the back, neck, joints, or extremities, and no abnormal neurological functions. His diagnosis was sprain of the cervical, thoracic, and lumbar spine, with "absolutely no objective evidence of permanency or disability." Importantly, he observed that plaintiff "did not give an accurate history, indicating that she had not had prior neck problems but in fact she was involved in a motor vehicle accident in 1997 and did have such complaints."
Dr. Maslow was referring to an automobile accident in August 1997, in which Davidson was injured when the car in which she was riding struck a tree and then a pole. She was treated for several weeks by Dr. Dorfner. In a report dated November 20, 1997, Dr. Dorfner stated that Davidson complained of "severe neck, back, shoulder, and left rib pain" as a result of that earlier accident. X-rays taken the day of the accident "were not definitive," but Davidson showed signs of a rib fracture. She also presented tenderness, severe cervical, dorsal (thoracic) and lumbar muscle spasms, "evidence of Spina Bifida[3] involving S-1," headache, tenderness over the left knee, and decreased motion of the right shoulder and cervical and lumbar spine. He concluded that she suffered from acute cervical, dorsal (thoracic), and lumbar strain and sprain, non-displaced left rib fractures and strain and sprain, and post-traumatic myofascitis and headache, and treated her with medication for the pain and muscle spasms and with therapy. The November 1997 report also stated that she was improving but that she would "continue to suffer the effects of the very serious motor vehicle accident," namely, "headaches as well as discomfort to the cervical dorsal and lumbar spine consistent with overuse and her underlying stressful situation as a full-time college student."
Dr. Dorfner referred only briefly to the 1997 accident and injuries in his December 2002 report. He simply noted that Davidson "had been involved in a prior motor vehicle [accident] with a [rib fracture] without any further treatment and/or antecedent injuries to her neck or back." *287 In the present action Davidson maintains that the pain from the 1997 injuries persisted only for about two months after that accident and she asserts that she had recovered fully from what she characterizes as "soft-tissue injuries suffered in the 1997 accident."[4]
B.
On July 18, 2003, Davidson filed the instant complaint against defendants, Raymond and Deanna Slater. She sought damages for emotional, mental, and physical pain and suffering, and asserted compliance with the N.J.S.A. 39:6A-8(a) prerequisites for such non-economic damages. Defendants filed an answer denying the claims and asserting numerous affirmative defenses, including the "verbal threshold" defense.
Two summary judgment motions were filed by defendants, although we need be concerned here only with the second,[5] which sought judgment based on Davidson's failure to: (1) meet AICRA's verbal threshold standard; (2) produce a timely physician's certification of permanency within sixty days of the filing of the answer, as required by N.J.S.A. 39:6A-8(a); and (3) show proximate causation by offering, as required by Polk, a physician's comparative analysis of plaintiff's injuries to the same body parts involved in three separate accidents, notwithstanding that Davidson was not alleging an aggravation to a pre-existing injury. A late-filed certification of permanency was accepted by the motion court, although the record does not reflect whether the court found that the certification met the statute's requirements or that Davidson had substantially complied with the certification requirements.[6]
On the merits, the court granted summary judgment to defendant, citing a recent Appellate Division decision that had held that a "`[c]omparative analysis is required whenever previous injury to the same body part is involved'" "`whether aggravation of the prior injury is alleged or not.'" (quoting Bennett v. Lugo, 368 N.J.Super. 466, 473, 847 A.2d 14 (App. Div.), certif. denied, 180 N.J. 457, 852 A.2d 193 (2004)). The court observed that Davidson had been involved in three separate accidents, all of which involved similar injuries to the same body parts, and noted that plaintiff's diagnosing physician failed to relate the injuries from the three accidents to each other. Based on the proofs submitted, the court determined that the *288 only injury that might be attributed solely to the August 2001 accident was plaintiff's disc protrusion. As to that, the court observed that a physician's report addressing plaintiff's 2003 accident injuries did not mention any extant disc protrusion. The court concluded that there was insufficient "objective credible medical evidence of a permanent injury" to vault AICRA's verbal threshold, notwithstanding Dr. Dorfner's certification of permanent injury.
The Appellate Division reversed. Davidson, supra, 381 N.J.Super. at 30, 884 A.2d 235. Viewing the evidence in plaintiff's favor, the panel concluded that Dr. Dorfner's opinion that Davidson had suffered permanent injury as a result of the 2001 accident was supported by objective diagnostic tests (an MRI), and was "enough to vault the threshold set forth in N.J.S.A. 39:6A-8(a)." Id. at 27, 884 A.2d 235. Noting that plaintiff did not claim that the 2001 accident aggravated injuries suffered in the 1997 accident, the panel added that before the 2003 accident had taken place Dr. Dorfner had diagnosed Davidson's permanent disc injury from the 2001 accident as an injury that, as required by AICRA, would not "heal to function normally with further medical treatment." Ibid. (quoting N.J.S.A. 39:6A-8(a)) Additionally, the panel found nothing in the record indicating that the 2003 accident affected or aggravated plaintiff's disc condition or radiculopathy. Ibid.
In respect of plaintiff's obligation to present a comparative analysis in order to vault the AICRA verbal threshold, the panel reasoned that Serrano v. Serrano, 183 N.J. 508, 874 A.2d 1058 (2005), and DiProspero v. Penn, 183 N.J. 477, 874 A.2d 1039 (2005), brought into question the applicability of case law developed under the former verbal threshold standard. Id. at 28-29, 884 A.2d 235. Specifically, the court expressed doubt as to "whether Polk and its progeny continue to be viable in the context of a verbal threshold summary judgment motion." Id. at 29, 884 A.2d 235. Consistent with that perspective, the panel pointedly disagreed with other appellate decisions that had required a plaintiff to produce a Polk comparative analysis as part of an AICRA verbal threshold presentation and, further, that had required a comparative analysis in the context of a non-aggravation claim seeking damages for injury to a body part that previously had been injured. Ibid. (referencing Lucky v. Holland, 380 N.J.Super. 566, 570, 883 A.2d 419 (App.Div.2005), and Bennett, supra, 368 N.J.Super. at 473, 847 A.2d 14). The Davidson court concluded:
In any event, while Dr. Dorfner does not, in his reports, compare the three accidents and their injuries, we are satisfied that a reasonable factfinder does not need him to opine that the August 2, 2001, accident uniquely caused a disc involvement that is permanent and distinct from the August 24, 1997, soft-tissue injuries and the January 12, 2003, soft-tissue injuries. Whether a jury will agree is not for us to say. [Id. at 29-30, 884 A.2d 235.]
II.
Defendant's petition asks this Court to resolve the question of Polk's continued viability in the wake of this Court's DiProspero and Serrano decisions. The decision below reflects a stark disagreement among Appellate Division panels on the question. Defendant asserts that, contrary to the reasoning of the Davidson appellate panel, our recent case law interpreting AICRA's verbal threshold requirements does not preclude continued application of Polk's comparative analysis requirement.
Alternatively, defendant asks that we find such an obligation in AICRA's formulation *289 of the requirements for a verbal threshold cause of action to proceed. According to defendant, plaintiff must segregate prior injuries from the injuries caused by the present automobile accident because such proof is necessary to plaintiff's prima facie demonstration that the alleged permanent injury was caused by the subject accident. Moreover, defendant asserts that a comparative analysis is needed in both aggravation and non-aggravation pled cases.
Plaintiff and the amici bar organizations contend that the "Polk" comparative analysis requirement has been distorted over time to require comparative analyses when ordinary tort principles of causation would not impose such a requirement as part of plaintiff's case in chief. Further, they contend that Polk should be discarded and that fresh direction be provided as to causation and the allocation of burdens in respect of comparative medical evidence.
III.
A.
The parties' arguments have focused on the historical development of the verbal threshold as the catalyst for the Polk comparative-evidence analysis. We, therefore, summarize their perspective on the pertinent legal background to the issue before us.
Before AICRA and its current iteration of the verbal threshold was enacted, an automobile-accident victim seeking to sue for bodily injury non-economic damages had to vault an earlier version of the threshold. See N.J.S.A. 39:6A-8(a) (as amended by L. 1990, c. 8). Suit was permitted for nine enumerated categories of injuries. Ibid. When this Court was called on to settle the standard of proofs that would be necessary to satisfy the threshold under that predecessor provision, we held in Oswin v. Shaw, 129 N.J. 290, 294, 609 A.2d 415 (1992), that a plaintiff had to demonstrate one of the statute's nine categories of injury[7] and also prove that "the injury had a serious impact on the plaintiff and her life" Oswin's so-called "subjective prong." See id. at 318, 609 A.2d 415 (quoting Oswin v. Shaw, 250 N.J.Super. 461, 470, 595 A.2d 522 (App.Div.1991)). Oswin's serious life impact test required a plaintiff to "show a nexus between the injury and the disability." Ibid. Thus, to prevail against a verbal threshold summary judgment motion under Oswin, a plaintiff was required to show "objective, credible evidence" of an injury enumerated in the statute and that that injury was the cause of a serious impact on the plaintiff's life. Id. at 318-19, 609 A.2d 415.
In addition to discussing the verbal threshold's substantive standards, Oswin also addressed the procedural framework within which verbal threshold cases should be examined. See id. at 302-14, 609 A.2d 415. Oswin required that verbal threshold cases follow a summary judgment model:
[T]he court decides whether the injury alleged would, if proven, meet the requirements of one of the verbal-thresh-old categories, and the jury decides factual disputes about the nature and extent of the plaintiff's injuries . . . when the plaintiff shows by credible, objective medical evidence the existence of a material dispute of fact.
*290 [Id. at 294, 322, 609 A.2d 415.]
As the Court explained,
[t]he verbal-threshold determination consists of two questions: (1) whether under any view of the plaintiff's injuries they can be said to fall within at least one of the nine categories that New Jersey's statute specifies, and (2) if so, whether the evidence before the court on a motion for summary judgment demonstrates a material dispute of fact regarding the nature and extent of the plaintiff's injuries. If on a summary-judgment motion the court decides, from whatever medical reports and other evidence submitted in support of and in opposition to the motion, that the injuries do not, as a matter of law, carry the plaintiff's case across the verbal threshold, then the defendant will prevail on the motion. If however the plaintiff's medical proofs survive that initial test and the court discovers, from all the information presented on the motion, a legitimate factual dispute over the nature and extent of the injuries, then resolution of that dispute is of course for the jury.
[Id. at 307, 609 A.2d 415.]
The role of comparative-analysis evidence in a verbal threshold summary judgment motion was discussed in Polk, supra, 268 N.J.Super. at 575, 634 A.2d 135. In Polk the plaintiff claimed that his pre-existing hip injury and arthritic condition were aggravated in an automobile accident. Id. at 570-72, 634 A.2d 135. The trial court granted the defendant's motion for summary judgment on the basis that the plaintiff had not cleared the No-Fault Act's verbal threshold, and the Appellate Division affirmed. Id. at 570, 634 A.2d 135. It is sufficient for present purposes to note that the courts that heard Polk's claim concluded that the results of the subjective limitation-of-motion tests that were performed on him failed to satisfy Oswin's objective prong, id. at 573, 634 A.2d 135, and he was unable to undergo an MRI examination, id. at 574, 576, 634 A.2d 135. Polk's physician also had submitted a list of his patient's complaints to address the serious impact that his injuries had on his daily life. Id. at 574, 634 A.2d 135. The Polk panel found that the list failed to link the complaints through objective medical evidence to the injuries suffered in the accident, and added:
A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.
[Id. at 575, 634 A.2d 135.]
Thus, because Polk failed to relate through objective medical evidence his injury to his life-impact complaints, the Appellate Division affirmed the dismissal, stating that it did not need to reach the merits of the "serious life impact" issue itself. Id. at 576, 634 A.2d 135. The court found that Polk's physician "offered no objective medical basis whatsoever to substantiate plaintiff's complaints [or] to causally connect these complaints to the accident rather than to plaintiff's serious pre-existing prior medical condition." Ibid. The physician's assertion that Polk's condition was permanent provided no assistance in that regard because the doctor's opinion failed to delineate between the plaintiff's pre-existing conditions and the effect of *291 the accident on those medical conditions. Ibid.
Following Polk, courts have dismissed automobile accident actions alleging aggravation of pre-existing injuries when a plaintiff failed to produce a comparative analysis. See, e.g., Sherry v. Buonansonti, 287 N.J.Super. 518, 521, 671 A.2d 606 (App.Div.1996) (holding that physician's statement that CAT scan was "suggestive of degeneration" did not satisfy objective prong of Oswin, and further that plaintiff, who was injured in multiple accidents, failed to produce comparative analysis); Loftus-Smith v. Henry, 286 N.J.Super. 477, 491, 669 A.2d 852 (App. Div.1996) (affirming summary dismissal because plaintiff, who claimed aggravation of pre-existing condition, failed to produce comparative analysis).
B.
AICRA revised the proof requirements for the verbal threshold and incorporated Oswin's objective prong. See Serrano, supra, 183 N.J. at 515, 874 A.2d 1058. AICRA now requires a plaintiff to produce a physician's certified statement that the automobile accident victim suffered from a statutorily enumerated injury. N.J.S.A. 39:6A-8(a). The physician's certified opinion must be based on "objective clinical evidence" derived from accepted diagnostic tests and cannot be "dependent entirely upon subjective patient response." Ibid.
On the other hand, Oswin's subjective, "serious life impact" requirement was found by this Court to be incompatible with the plain language of AICRA's revised limitation-on-lawsuit standard, and inconsistent with the Legislature's expressed intention to create a substantially new verbal threshold. See DiProspero, supra, 183 N.J. at 506, 874 A.2d 1039. The DiProspero Court determined "that the Legislature did not intend to engraft the Oswin language onto the limitation on lawsuit threshold" and concluded that an accident victim who sues for non-economic damages "has to satisfy only one of AICRA's six threshold categories and does not have the additional requirement of proving a serious life impact." Id. at 481-82, 874 A.2d 1039.[8] To vault AICRA's verbal threshold an accident victim need only prove an injury as defined in the statute. Serrano, supra, 183 N.J. at 510, 874 A.2d 1058; see also Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334, 886 A.2d 178 (2005) (per curiam) ("We state once again that a plaintiff need only prove that her injuries satisfy one of the threshold categories in AICRA.").
C.
The question of the continuing relevance of a Polk comparative analysis in connection with a plaintiff's verbal threshold demonstration has been the subject of much debate. Prior to our decisions in DiProspero, Serrano, and Juarez, several appellate panels affirmed the continuing vitality of Oswin's serious life impact requirement and, therefore, included a comparative-analysis requirement as related thereto. See, e.g., Ostasz v. Howard, 357 N.J.Super. 65, 67, 813 A.2d 1258 (App.Div. 2003); James v. Torres, 354 N.J.Super. 586, 594-96, 808 A.2d 873 (App.Div.2002); Rios v. Szivos, 354 N.J.Super. 578, 580, 808 A.2d 868 (App.Div.2002). One Appellate Division panel expanded the Polk holding and imposed a comparative-analysis requirement on plaintiffs "whenever previous injury to the same body part is *292 involved," "whether aggravation of the prior injury is alleged or not." Bennett, supra, 368 N.J.Super. at 473, 847 A.2d 14.
Following our decisions in DiProspero and Serrano, several different panels addressed the continued viability of Polk. In Lucky v. Holland, 380 N.J.Super. 566, 570, 883 A.2d 419 (App.Div.2005), one panel held that Polk's comparative analysis remains necessary post-AICRA whenever a plaintiff alleges injuries to body parts that previously had been injured. Several days after the issuance of the decision in Lucky, the appellate panel in the instant matter reached the opposite conclusion. The Davidson panel found that Polk's comparative analysis requirement likely was no longer viable in the context of verbal threshold motions in light of DiProspero and Serrano, whether aggravation of a prior injury is alleged or not. Davidson, supra, 381 N.J.Super. at 29, 884 A.2d 235.
Shortly after issuance of the decisions in Lucky and Davidson came Hardison v. King, 381 N.J.Super. 129, 885 A.2d 24 (App.Div.2005). In Hardison, the plaintiff sustained injuries to his back and neck in three separate automobile accidents over a period of more than ten years. Id. at 131, 885 A.2d 24. Based on the plaintiff's medical history and diagnostic tests, including x-rays, MRI, and EMG tests, the plaintiff's physician determined that he had recovered completely from his prior accidents before being re-injured in the third accident, and that his injury that resulted from the third accident was permanent. Id. at 131-33, 885 A.2d 24. The defendants conceded that the plaintiff's proofs satisfied the objective medical evidence requirement, but argued that the plaintiff was required under Polk to provide a comparative analysis because of the repeat nature of his injuries. Id. at 133, 885 A.2d 24.
After emphasizing that the plaintiff was not alleging aggravation of a prior injury or condition, the Hardison panel agreed with Davidson that Polk does not apply "where [a] plaintiff contends that he has incurred a permanent injury resulting solely from the subject automobile accident." Id. at 134-35, 885 A.2d 24. Importantly, the Hardison panel explained that summary judgment was inappropriate because the evidence, viewed in the plaintiff's favor, was sufficient to raise a factual dispute in respect of causation of his injuries, notwithstanding his prior accidents. Id. at 136-37, 885 A.2d 24. The panel found that requiring a plaintiff, in a non-aggravation-pled case, invariably to produce a comparative analysis in response to a defendant's verbal threshold motion "represent[ed] an expansion of [a] plaintiff's obligations under normal summary judgment requirements." Id. at 136, 885 A.2d 24.
Hardison stated that "[t]he elimination of Oswin's [serious impact] prong undercut most, if not all, of Polk's justification, to connect causally a plaintiff's complaints of serious impact to the subject accident." Id. at 133, 885 A.2d 24. However, the panel could not agree that comparative evidence would never be required in a non-aggravation case. Id. at 137, 885 A.2d 24.
In our view, the need for [a] plaintiff to oppose summary judgment with comparative evidence when aggravation is not being claimed should not depend on any automatic application of Polk. Instead, the necessity for comparative evidence should depend upon whether the factual construct presented by the moving papers calls into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident. [Ibid.]
IV.
A.
We address first the issue as it has been framed by the parties: whether Polk's *293 comparative-evidence requirement is still relevant post-AICRA. Plainly, the Polk court pronounced its comparative-analysis requirement squarely within the framework of examining the plaintiff's serious-life-impact complaints and noting that the plaintiff in Polk had failed to causally link those complaints, by objective medical evidence, with the injuries suffered in the accident. Polk, supra, 268 N.J.Super. at 574-75, 634 A.2d 135 (complaining that plaintiff provided no evidence "to corroborate [his serious-life-impact complaints] or to correlate these complaints to the trauma of [the accident at issue]") (emphasis added); id. at 576, 634 A.2d 135 (asserting that plaintiff failed to objectively relate his life-impact complaints "to his purported objective medical proof of injury"). The linkage issue arose in the context of a claim of aggravation where the causal source of the plaintiff's subjective complaints was inherently unclear. See id. at 575, 634 A.2d 135 ("Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the [verbal] threshold of N.J.S.A. 39:6A-8a."). There presently is no longer any need for a plaintiff to make a life-impact showing. DiProspero, supra, 183 N.J. at 506, 874 A.2d 1039.
That said, to the extent the parties have focused their attention on a pre-versus post-AICRA substantive requirement for comparative medical evidence, their arguments are wide of the mark. The need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally. Those principles are what determine the need for comparative evidence. The question that we now answer is one that transcends the AICRA verbal threshold setting in which it has arisen.
B.
We reviewed proximate cause-of-injury principles in Reynolds v. Gonzalez, 172 N.J. 266, 798 A.2d 67 (2002), and explained the fundamental aspects of the burden of production that a plaintiff bears.
One of the underlying principles of tort law is that "an actor's conduct must not only be tortious in character but it must also be a legal cause of the invasion of another's interest." Restatement (Second) of Torts § 9 cmt. a (1965) (Restatement). It follows from that principle that the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. "There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury," and the resulting injury. Germann v. Matriss, 55 N.J. 193, 205, 260 A.2d 825 (1970).
Similarly, Prosser and Keeton on the Law of Torts states that
[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
[W. Page Keeton et. al., Prosser & Keeton on the Law of Torts, § 41, at 269 (5th ed. 1984) (Prosser & Keeton).]
[Id. at 284, 798 A.2d 67.]
When aggravation of a pre-existing injury is pled by a plaintiff, comparative *294 medical evidence is necessary as part of a plaintiff's prima facie and concomitant verbal threshold demonstration in order to isolate the physician's diagnosis of the injury or injuries that are allegedly "permanent" as a result of the subject accident. Causation is germane to the plaintiff's theory of aggravation of a pre-existing injury or new independent injury to an already injured body part. In such matters, a plaintiff generally bears the burden of production in respect of demonstrating that the accident was the proximate cause of the injury aggravation or new permanent injury to the previously injured body part. See O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J.Super. 264, 274-75, 825 A.2d 524 (App. Div.2003) (explaining that in routine personal injury aggravation claims plaintiff must bear burden of production that defendant's negligence was proximate cause of injuries and damages suffered). Such evidence provides essential support for the pled theory of a plaintiff's cause of action and a plaintiff's failure to produce such evidence can result in a directed verdict for defendant. See Reichert v. Vegholm, 366 N.J.Super. 209, 213-14, 840 A.2d 942 (App.Div.2004).
The parties in this action concede that a plaintiff will have to produce comparative-analysis evidence to establish a prima facie aggravation of pre-existing injuries cause of action, although plaintiff need only raise a genuine issue of material fact in respect of causation sufficient to permit a rational fact-finder to resolve the alleged dispute in her favor. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995) ("[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.").
The rub comes when a plaintiff does not plead aggravation of pre-existing injuries, but there have been other injuries to the body part. Defendant seeks to burden Davidson with an initial obligation to produce comparative-analysis evidence excluding all other injuries from being the cause of the permanent injury on which the verbal threshold action is based. We reject the invitation to place such a burden of production on plaintiff in her AICRA non-aggravation-pled case. There is no such requirement to be found in AICRA. Under AICRA, to vault the verbal threshold's limitation on the right to claim non-economic damages, a plaintiff must establish that "as a result of bodily injury, arising out of the . . . operation . . . or use of" an automobile, she has "sustained a bodily injury which results in" one of the enumerated categories of serious injury, including "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a). Aside from the circumstance of medically segregating a claimed aggravation of a pre-existing injury from the fresh injury to a body part, a plaintiff need not produce affirmative medical evidence segregating what plaintiff considers to be non-causes of the alleged injury in order to avoid a directed verdict under N.J.S.A. 39:6A-8(a)'s express standards.
In this case, the issue of aggravation was raised not by plaintiff but by defendant. That was his prerogative. Indeed, this Court has long recognized that every defendant, in response to an allegation that his negligence has caused injury, possesses *295 the right of demonstrating by competent evidence that that injury "could" have been caused, wholly or partly, by an earlier accident or by a pre-existing condition. Paxton v. Misiuk, 34 N.J. 453, 460-61, 170 A.2d 16 (1961); see also McCray v. Chrucky, 66 N.J.Super. 124, 128-29, 168 A.2d 660 (App.Div.1961) (noting that defendant must persuade jury that damages were due to pre-existing condition).
In Oswin, supra, the Court established that verbal threshold cases should follow the summary judgment model i.e., the court should decide "whether the injury alleged would, if proven, meet the requirements of one of the verbal-threshold categories," and the jury should decide "factual disputes."[9] 129 N.J. at 294, 609 A.2d 415. That summary judgment framework still applies to AICRA's refined standard for vaulting the verbal threshold. If plaintiff produces evidence on all basic elements of her pled tort action, then her case can proceed to trial except when the defendant can show that there is no genuine factual issue as to an element of the plaintiff's tort claim.
We presume that defendants routinely will inquire during discovery about a plaintiff's prior injuries. In respect of the element of causation specifically, a plaintiff will risk dismissal on summary judgment if the defendant can show that no reasonable fact-finder could conclude that the defendant's negligence caused plaintiff's alleged permanent injury. Thus, the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries. See Brill, supra, 142 N.J. at 540, 666 A.2d 146; Hardison, supra, 381 N.J.Super. at 137, 885 A.2d 24. At the very least, plaintiff will be forced to address causation before the fact-finder and properly may be held to the theory of the case as pled. Jardine Estates, Inc. v. Koppel, 24 N.J. 536, 542, 133 A.2d 1 (1957) (noting that parties are ordinarily limited in their proofs at trial to issues as set forth in pleadings and pre-trial order); see also Rothman Realty Corp. v. Bereck, 73 N.J. 590, 598, 376 A.2d 902 (1977) (stating same and expressing courts' general disfavor of plaintiff's late attempt to change cause of action's theory).
C.
Applying those principles to the instant matter, we hold that Davidson was under no obligation under AICRA to produce, as part of her prima facie presentation in this non-aggravation cause of action, a comparative analysis in order to satisfy the verbal threshold proof requirements. As between defendant's medical proofs and those presented by plaintiff, the trial court was obliged to determine whether a genuine issue of proximate cause had been presented. In that respect, we affirm the Appellate Division judgment.
Defendant raises, however, an additional argument in the petition for certification. Defendant asserts that the Appellate Division improperly relied on Dr. Dorfner's certification of permanency exclusively when reversing the trial court's grant of summary judgment. According to defendant the certificate was a mere net opinion. We begin by noting that both the trial and appellate courts considered the certification of permanency as part of the *296 medical evidence presented to the court. See Davidson, supra, 381 N.J.Super. at 24-27, 884 A.2d 235 (noting extensively plaintiff's history of accidents and numerous medical examination reports produced, and concluding that, "[i]n light of these facts, [the]" physician's certification of permanency "should have been enough to vault the [verbal] threshold") (emphasis added).
The Appellate Division relied on plaintiff's physician's certification in conjunction with her purported objective medical evidence. As defendant notes, a court is not bound to rely solely on a physician's certification to vault a plaintiff over the verbal threshold. See Rios v. Szivos, 354 N.J.Super. 578, 584, 808 A.2d 868 (App. Div.2002) (relying in part on statutory language and Governor's conditional veto message to conclude that AICRA's certification requirement is "`anti-fraud measure'" that "`is necessary to state a claim, not sufficient to establish one'") (quoting Governor's Recommendations for Reconsideration Statement to Senate Bill 3, at 5 (April 27, 1998)). However, that does not appear to be what happened here.
Davidson claims a permanent injury as defined in N.J.S.A. 39:6A-8(a) ("An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment."). Medical tests on which plaintiff's objective medical proofs can rest "may not be experimental in nature or dependent entirely upon subjective patient response," and any diagnostic tests must be "administered in accordance with" N.J.S.A. 39:6A-4.7. See N.J.A.C. 11:3-4.5. The provisions requiring valid diagnostic procedures "were intended to ensure that only honest and reliable medical evidence and testing procedures would be introduced to prove that an injury meets the threshold." DiProspero, supra, 183 N.J. at 489, 874 A.2d 1039.
According to plaintiff's medical reports, her radiculopathy/radiculitis was diagnosed by the straight leg raising test, which does not appear on the list of accepted diagnostic procedures. See N.J.A.C. 11:3-4.5. On the other hand, plaintiff's bulging disc was diagnosed with an MRI examination, a recognized objective diagnostic device. See N.J.A.C. 11:3-4.5(b)(5). All other diagnostic methods performed on plaintiff, including range of motion tests and her subjective symptomology (pain and tingling), are not on the list or are otherwise expressly declared to be invalid diagnostic methods. See N.J.S.A. 39:6A-8(a); N.J.A.C. 11:3-4.5. On the record before us, only plaintiff's disc protrusion seems to satisfy AICRA's requirements in respect of diagnostic procedures; however, even the evidence of disc protrusion is unclear on the question of permanency.
The claim of permanency appears supported only by Dr. Dorfner's assertion in his December 2002 report, reiterated in his certification, that plaintiff's condition was permanent, and another treating physician's opinion that plaintiff had "reached a plateau in her recovery."[10] Those physicians diagnosed plaintiff as suffering from several conditions in addition to a disc irregularity. Neither physician specified which injuries were designated "permanent" or identified the objective medical evidence to support the diagnosis of permanency. The Appellate Division's precise analysis in respect of plaintiff's various claims is not apparent and, therefore, *297 we cannot resolve those questions. We remand for further explication of this record by the Appellate Division in light of the proof requirements for objective medical evidence of permanency.
V.
For the foregoing reasons, the judgment of the Appellate Division is affirmed with modification and the matter is remanded to the Appellate Division for further proceedings consistent with this opinion.
For affirmance as modified/remandment Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO 6.
Opposed None.
NOTES
[1] Myofascitis, or myositis fibrosa, is defined as either an inflammation of fibrous tissue surrounding muscle or a hardening of muscle through interstitial growth of fibrous tissue. Compare Medical Dictionary, http://medical-dictionary.com/ (search "myofascitis"), with Stedman's Medical Dictionary 1275 (28th ed. 2006) (hereafter Stedman's).
[2] Radiculitis, or radiculopathy, is an inflammatory disorder of the spinal nerve roots. Stedman's, supra, at 1622; see also N.J.A.C. 11:3-4 App.
[3] Spina bifida is a congenital defect of the vertebrae involving incomplete fusion of the parts of the vertebrae. See Stedman's, supra, at 1805.
[4] For completeness we note that, subsequent to the 2001 accident, Davidson was involved in a third accident. On January 12, 2003, her vehicle was cut off and forced into a parked car, causing her car to flip over. Although she maintains that she was not injured, she did consult Dr. Dorfner the day after the accident. Dr. Dorfner's records indicate that Davidson suffered "multiple contusions, cervical/dorsal/lumbar strain and sprain, and post traumatic myofascitis." She also exhibited a possible rib fracture. He prescribed pain medication and further treatment "as needed." That third accident preceded Davidson's examination by some of the physicians whose records feature in this motion record.
[5] The first summary judgment motion, filed on behalf of the vehicle owner, Deanna Slater, and unopposed by plaintiff, was granted by the trial court. We refer hereinafter only to defendant Raymond Slater.
[6] The court noted the pendency of our decision in Casinelli v. Manglapus, 181 N.J. 354, 355, 858 A.2d 1113 (2004), which involved whether under AICRA the penalty for a late-filed physician's certification must be a dismissal. After the motion court issued its decision, we held that the late filing of a certification of permanency was akin to a discovery violation and thus subject to "discovery-type sanctions," which generally result in a penalty short of dismissal. Id. at 365, 858 A.2d 1113.
[7] The Court also held that a plaintiff must prove the injuries by "credible, objective medical evidence" the "objective prong" of Oswin, supra, 129 N.J. at 314, 609 A.2d 415. In Oswin, the Court discussed the need to prevent verbal threshold lawsuits from proceeding to trial based entirely on a plaintiff's subjective complaints of pain. Id. at 319-20, 609 A.2d 415.
[8] That same day the Court also refused to create a judicial requirement that a plaintiff must prove that his injury was "serious," in addition to proving one of AICRA's six enumerated injuries. Serrano, supra, 183 N.J. at 510, 874 A.2d 1058.
[9] That said, we note that AICRA's insistence on a physician certification on permanency, based on objective medical testing to support the diagnosis, should prevent verbal threshold cases from proceeding to trial when the action is based on a victim's subjective complaints. Compliance with that requirement remains a gatekeeper duty of the motion courts.
[10] Dr. Zemel expressed a similar conclusion, as did Dr. Richard Naftulin, plaintiff's treating orthopedist. Dr. Zemel however did not identify any accepted diagnostic tests used in the diagnosis, nor did he diagnose a disc bulge.
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214 P.3d 707 (2009)
BATES
v.
DODGE CITY HEALTHCARE GROUP, L.P.
No. 100215.
Court of Appeals of Kansas.
August 21, 2009.
Decision without published opinion Affirmed.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 00-1459SI
_____________
Rick Lee Snow, *
*
Appellant, *
* On Appeal from the United
v. * States District Court
* for the Southern District
* of Iowa.
John Ault, *
*
Appellee. *
___________
Submitted: November 16, 2000
Filed: January 9, 2001
___________
Before WOLLMAN, Chief Judge, McMILLIAN and RICHARD S. ARNOLD, Circuit
Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Rick Lee Snow, an Iowa prisoner, appeals from the District Court's1 order
dismissing his habeas petition as untimely under the one-year statute of limitations set
forth in 28 U.S.C. § 2244(d)(1). Snow argues that the District Court erred in failing to
toll the limitations period under § 2244(d)(2) for the 90 days following the denial of his
1
The Hon. Ronald E. Longstaff, Chief Judge, United States District Court for the
Southern District of Iowa.
second motion for post-conviction relief, the period within which he could have
petitioned the United States Supreme Court for a writ of certiorari. We affirm.
I.
On July 31, 1990, Snow's direct criminal appeal affirming his conviction became
final. On July 29, 1993, he filed a motion for state post-conviction relief. The motion
was denied, and Snow filed an appeal, but on February 23, 1996, he voluntarily
dismissed his appeal. On December 23, 1996, he filed a second state post-conviction
motion. This motion was summarily dismissed. On August 18, 1998, Snow's appeal
from the dismissal was denied as frivolous. On March 15, 1999, he filed the present
federal habeas petition. The District Court dismissed Snow's petition as untimely, and
granted a certificate of appealability on the timeliness question.
II.
We review the District Court's decision de novo. See Henderson-El v.
Maschner, 180 F.3d 984, 985 (8th Cir. 1999). Title 28 U.S.C. § 2244(d), as added by
the Antiterrorism and Effective Death Penalty Act of 1996, establishes a statute of
limitations for the filing of habeas petitions by state prisoners. This section, effective
April 24, 1996, includes its own tolling provision and provides, in relevant part, as
follows:
(1) A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run from . . .
-2-
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
review;[2]
* * *
(2) The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.
In Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S.
1187 (1999), this Court held that the running of the statute of limitations for purposes
of § 2244(d)(1)(A) is triggered by
either (i) the conclusion of all direct criminal appeals in the state system,
followed by either the completion or denial of certiorari proceedings
before the United States Supreme Court; or (ii) if certiorari was not
sought, then by the conclusion of all direct criminal appeals in the state
system followed by the expiration of the [90 days] allotted for filing a
petition for the writ.
The Court based this decision on the "well-established body of federal case law that
interprets the phrase 'final by the conclusion of direct review' to include an opportunity
to seek certiorari." Id.at 347.
For cases such as this one, in which the conviction "became final" before the
effective date of the Act, this Circuit has adopted a one-year grace period, beginning
2
Section 2244(d)(1) lists three other alternative events which may trigger the
limitations period. It is undisputed that the date of the final judgment is the only
applicable provision here.
-3-
April 24, 1996, and ending April 24, 1997, for the filing of habeas petitions. Nichols
v. Bowersox, 172 F.3d 1068, 1073 (8th Cir. 1999) (en banc) (grace period begins April
24, 1996); Ford v. Bowersox, 178 F.3d 522, 523 (8th Cir. 1999) (grace period ends
April 24, 1997). The time between April 24, 1996, and December 23, 1996 (243 days)
counts against Snow. No proceeding of any kind was pending during that period. If
the time started running again on August 18, 1998, when his second post-conviction
proceeding was concluded in the state court, the year would expire on December 18,
1998, and his habeas petition would be untimely. But if this one-year period is tolled
for the 90 days following August 18, 1998, within which Snow could have filed a
petition for a writ of certiorari from the denial of his second post-conviction motion, his
habeas petition would be timely. Otherwise, his petition is time-barred.
The State argues that (1) Snow's second post-conviction motion was not a
"properly filed" one because it was subject to dismissal as a successive motion under
Iowa law; and (2) even if it were "properly filed," it was "pending" only until his appeal
from the denial of the second motion was final in the state system.
III.
The State's first argument is foreclosed by the Supreme Court's recent decision
in Artuz v. Bennett, No. 99-1238 (U. S. Nov. 7, 2000), 2000 WL 1663653. The Court
there explained that the term "properly filed" merely means that the application for
post-conviction relief had been delivered and accepted for filing "in compliance with
the applicable laws and rules governing filings."
The second issue — whether the limitations period is tolled for the 90 days
during which certiorari could have been sought — is one of first impression in this
-4-
Circuit.3 We now join those circuits that have considered the matter and concluded that
§ 2244(d)(2) does not toll the statute of limitations for this 90-day period. See Isham
v. Randle, 226 F.3d 691, 695 (6th Cir. 2000); Coates v. Byrd, 211 F.3d 1225, 1227
(11th Cir. 2000); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999); Rhine v. Boone,
182 F.3d 1153, 1155 (10th Cir. 1999), cert denied, 120 S. Ct. 808 (2000); see also
Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).
We reach this conclusion for two reasons. First, unlike § 2244(d)(1)(A), which
uses the phrase "became final by . . . expiration of the time for seeking [direct] . . .
review," a phrase that, as explained in Smith v. Bowersox, 159 F.3d at 348, takes into
account certiorari proceedings, § 2244(d)(2) contains no such language. " '[W]here
Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and
purposefully in the disparate inclusion and exclusion.' " Bates v. United States, 522
U.S. 23, 29-30 (1997) (quoted case omitted).
Second, this result comports with the requirement that a state prisoner exhaust
state remedies before filing a federal habeas petition. Such exhaustion does not include
seeking certiorari from the state court's denial of post-conviction relief. Rhine v.
Boone, 182 F.3d at 1156. In sum, we conclude that the District Court correctly
dismissed Snow's habeas petition as time-barred.
Accordingly, we affirm.
3
This issue was specifically left open in Peterson v. Gammon, 200 F.3d 1202,
1205 (8th Cir. 2000).
-5-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-
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J-S59034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANDRE EDWARD
Appellant No. 1326 EDA 2016
Appeal from the Judgment of Sentence April 6, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008857-2014,
CP-51-CR-0008859-2014
BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2017
Appellant, Andre Edward, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following his
bench trial convictions of attempted murder,1 aggravated assault,2 firearms
not to be carried without a license,3 carrying firearms in public in
Philadelphia,4 recklessly endangering another person,5 and criminal
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 901, 2502.
2 18 Pa.C.S. § 2702(a).
3 18 Pa.C.S. § 6106.
4 18 Pa.C.S. § 6108.
5 18 Pa.C.S. § 2705.
J-S59034-17
mischief.6 Appellant challenges the sufficiency of the evidence. We affirm
Appellant’s conviction, but vacate and remand his judgment of sentence.
In its opinion, the trial court summarized the relevant facts as follows:
On May 4, 2014, Mr. Byram Rogers went to the Gulf
Gas Station to get food before work when he encountered
Appellant. At that time, Appellant was dating Mr. Rogers’
daughter. Mr. Rogers never had any issue in the past with
Appellant except on one particular occasion where Mr.
Rogers and his wife were scolding their daughter.
Appellant then intervened in their attempt to discipline
their daughter and was very disrespectful toward Mr.
Rogers. As Mr. Rogers was walking into the gas station,
he noticed Appellant talking to a guy in a Chevrolet
Suburban. Appellant then said to Mr. Rogers, “[d]idn’t I
tell you I didn’t want to see you around here no more.”
Appellant immediately came toward Mr. Rogers so he
pushed Appellant back and they got into a slight physical
altercation. Appellant then said, “I am going to get my
gun, going to my trunk . . . .” Appellant opened his trunk,
closed it, hopped into his car and pulled away. Mr. Rogers
then got into his car and began to drive home.
On the drive home, Mr. Rogers noticed the same
Suburban from the gas station following his vehicle. Mr.
Rogers got out of his car and asked the man in the
Suburban why he was following his vehicle. As Mr. Rogers
approached the Suburban, the man in the Suburban drove
off. Mr. Rogers got back into his car and backed up in the
direction where the Suburban drove off. The Suburban
began to drive very fast so Mr. Rogers turned off, drove up
Lowber Street, and parked in the back of his house on the
1700 block of Mohican Street. As Mr. Rogers tried to get
into his back door he heard an engine revving and saw
Appellant hanging out of the car window and “just letting
loose. Pow. Pow. Pow. Pow.” Mr. Rogers then ran off to
his neighbor’s house. He ran behind and then under his
neighbor’s deck. He continued running down the driveway
6 18 Pa.C.S. § 3304(a)(2).
-2-
J-S59034-17
and saw glass bust out in the car in front of him. When
Mr. Rogers got to the end of the driveway, he saw the car
in reverse coming back down the driveway. Mr. Rogers
dropped his hoagie and ran all the way around to the front
of his house. He then saw Appellant cutting the corner
shooting again. Mr. Rogers then dove between a van and
a car and saw Appellant shoot through the van. Appellant
then said “[y]ou bitch ass old head,” he jumped in the car
and spun off down the block.
During the shooting, Mr. Albert Rutty’s car was struck
by a few bullets. The bullets struck and shattered Mr.
Rutty’s back windshield and back door windows as he sat
in the driver’s seat. Fortunately, Mr. Rutty was not
injured. After the incident, 14 [fired cartridge casings
(FCCs)] were recovered from different locations on
Mohican and the adjacent streets. Ballistics concluded that
all 14 FCCs were fired from the same weapon. The
Commonwealth provided a certificate of non-licensure
corresponding to Appellant carrying a firearm on May 4,
2014.
Trial Ct. Op., 1/11/17, at 2-3 (record citations omitted).
Following a bench trial, Appellant was convicted on September 10,
2015, of the above-mentioned offenses. Thereafter, on April 6, 2016, the
court sentenced Appellant to an aggregate sentence of eight to nineteen
years’ imprisonment and five years’ probation.7 Appellant timely filed a
notice of appeal on April 26, 2016. The court ordered Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and
Appellant complied.
7 Although the parties and the trial court state Appellant was sentenced to a
consecutive five years’ probation, a review of the written sentencing order
indicates Appellant’s probation was ordered to run concurrent to his
confinement. See Sentencing Order, 4/6/16, at 1-2.
-3-
J-S59034-17
Appellant raises the following issue for our review: “Evidence
presented at trial was insufficient as a matter of law to find [Appellant] guilty
beyond a reasonable doubt.” Appellant’s Brief at 7.
Appellant argues there was insufficient evidence to convict him of all
the aforementioned offenses because there was no physical evidence
connecting him to the alleged shooting. Appellant specifically contends no
firearm was recovered in his home or vehicle that matched the shell casings
or bullet fragments found at the scene, the shooting was not captured on
video, and 911 calls were inconsistent regarding the description of the
vehicle Appellant was allegedly driving and his physical appearance.
Appellant alleges the only identification evidence presented by the
Commonwealth was the victim’s testimony, which Appellant claims was not
credible based on the victim’s multiple crimen falsi convictions and the fact
that he waited eleven hours to report the shooting because he was afraid it
was a potential violation of his probation.
Additionally, Appellant argues the Commonwealth failed to prove
beyond a reasonable doubt that he had a specific intent to kill or cause
serious bodily injury for the offenses of attempted murder and aggravated
assault, respectively. Appellant maintains that the evidence indicated the
shooter was merely attempting to scare the victim and not kill him, as
shown from the fact that none of the shots were fired at close range and
-4-
J-S59034-17
some were fired through a vehicle window. Appellant concludes this Court
should reverse his judgment of sentence. We disagree.
Preliminarily, we note that Appellant’s Rule 1925(b) statement alleges
that the “[e]vidence presented at trial was insufficient as a matter of law to
find [Appellant] guilty beyond a reasonable doubt.” Appellant’s Pa.R.A.P.
1925(b) Statement, 12/6/16, at 1. Such a general sufficiency of the
evidence challenge to all of his convictions may constitute waiver.
[W]hen challenging the sufficiency of the evidence
on appeal, the [a]ppellant’s 1925 statement must
specify the element or elements upon which the
evidence was insufficient in order to preserve the
issue for appeal. Such specificity is of particular
importance in cases where, as here, the [a]ppellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa. Super. 2010) (citations
omitted); see also Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.
Super. 2001) (“When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.” (citation and quotation
marks omitted)).
Instantly, Appellant’s Rule 1925(b) statement does not fairly suggest
his challenge to the evidence identifying him as the shooter and fails to
identify any elements for any of the offenses of which he was convicted.8
8 Although the trial court authored a responsive opinion, it did not expressly
discuss Appellant’s present contention that the identification evidence was
-5-
J-S59034-17
Therefore, Appellant’s sufficiency claim for all convicted offenses is waived.
See Pa.R.A.P. 1925(b)(4)(vii); Garang, 9 A.3d at 244.
In any event, even if properly preserved, Appellant’s claim that he was
not the perpetrator would merit no relief, as the victim’s eyewitness
testimony is sufficient to support Appellant’s convictions. See
Commonwealth v. Wilder, 393 A.2d 927, 928 (Pa. Super. 1978) (en banc)
(“it is settled that a positive identification by one witness is sufficient for
conviction”). Moreover, to the extent the trial court addresses and disposes
of the merits of Appellant’s sufficiency claim, including his arguments that
there was insufficient evidence of a specific intent to kill or cause serious
bodily injury, we affirm Appellant’s conviction on the basis of the trial court’s
opinion. See Trial Ct. Op. at 4-12.
Nevertheless, we must address a discrepancy in Appellant’s sentence.
See supra note 7; see also In re M.W., 725 A.2d 729, 731 (Pa. 1999)
(holding a challenge to the court’s statutory authority to impose a sentence
implicates the legality of the sentence). While the parties and the trial court
state Appellant was sentenced to a consecutive five years’ probation, the
insufficient. Moreover, we note that an appellate brief must provide a
substantive argument and citation to relevant authority in support of a
sufficiency claim. See Pa.R.A.P. 2119(b), (c); Commonwealth v. Janda,
14 A.3d 147, 164 (Pa. Super. 2011) (stating a failure to cite law or evidence
in support of an argument in a brief constitutes waiver). Here, Appellant’s
brief fails to provide any relevant statutes and authority to support his
sufficiency claim for the various convictions.
-6-
J-S59034-17
written sentencing order states Appellant was sentenced to a concurrent
five years’ probation. See Sentencing Order at 1-2. However, this Court
has held that there is “no support in the Pennsylvania statutes that the
General Assembly intended to permit defendants to serve a term of
probation and a term of state incarceration simultaneously. To do [so]
would run contrary to the various policy considerations underlying
sentencing.” Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super.
2011) (footnotes omitted). Although we have attempted to obtain a copy of
the sentencing transcript to resolve this discrepancy, we have been unable
to do so. Therefore, we vacate Appellant’s judgment of sentence and
remand for clarification and/or correction of his probationary sentence. See
Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007) (holding courts may
vacate sentencing orders that “involve clear errors in the imposition of
sentences that were incompatible with the record . . . or black latter law”).
Conviction affirmed. Judgment of sentence vacated and remanded for
clarification. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
-7-
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-3-2007
USA v. Hoffman
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4182
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Hoffman" (2007). 2007 Decisions. Paper 818.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/818
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-4182
____________
UNITED STATES OF AMERICA
v.
JOSEPH F. HOFFMAN,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cr-00334-1)
District Judge: Hon. Bruce W. Kauffman
Argued May 21, 2007
Before: BARRY, CHAGARES, and TASHIMA,1 Circuit Judges.
____________
(Filed: July 3, 2007)
Cheryl J. Sturm (Argued)
387 Ring Road
Chadds Ford, PA 19317
Counsel for Appellant
1
The Honorable A. Wallace Tashima, United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
Judy Goldstein Smith (Argued)
Amy L. Kurland
Assistant United States Attorney, Eastern District of Pennsylvania
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Defendant/appellant Joseph F. Hoffman was formerly employed as a hearing
examiner for the Bureau of Administrative Adjudication, which is the municipal agency
tasked with resolving appeals of parking citations issued by the Philadelphia Parking
Authority (PPA). Hoffman was charged and convicted of several crimes arising out of
his participation in a scam to fix parking tickets issued by the PPA. On appeal, he
challenges his conviction and sentence on various grounds. Because we find none of
these challenges to be persuasive, we will affirm both his conviction and sentence.
I.
As we write only for the parties, we do not set forth the facts in detail. The
evidence at trial showed that between the fall of 1999 and February 2003, Hoffman
dismissed or reduced parking ticket liability for numerous individuals in exchange for
cash and other inducements. As part of this scheme, Hoffman employed a co-conspirator,
Charles Mirarchi, as a bagman to ferry bribe money from certain individuals to Hoffman.
On February 13, 2003, the FBI approached both Hoffman and Mirarchi individually and
2
informed them that they were under investigation for illegal ticket fixing. Thereafter, on
March 5, 2003, Hoffman mailed Mirarchi a letter containing a $4000 check, the
ostensible purpose of which was to repay a loan Mirarchi had given to Hoffman. For its
part, the Government offered evidence to show that no such loan ever occurred, and
argued that Hoffman’s purpose in making this mailing was to fabricate a pretext that
could explain his financial transactions with Mirarchi. Based on this mailing, Hoffman
was charged with and convicted of, inter alia, mail fraud in violation of 18 U.S.C. § 1341
and § 1346.
On appeal, Hoffman’s central argument is a challenge to the sufficiency of the
evidence supporting his conviction for mail fraud. As such, we must view the evidence
“in the light most favorable to the Government, and credit all reasonable inferences that
support the verdict[].” United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002) (citing
Glasser v. United States, 315 U.S. 60, 80 (1942)). Despite the “particularly deferential”
standard of review we apply, United States v. Hedaithy, 392 F.3d 580, 604 (3d Cir. 2004),
Hoffman nonetheless argues that the mailing in issue could not have been in furtherance
of the ticket-fixing scheme because Hoffman had completed the scheme by the time he
made the mailing in issue. The short answer to Hoffman’s challenge is that mailings
made to conceal either the existence or the true nature of a criminal scheme fall within the
ambit of federal prohibitions against mail fraud. As we observed in United States v.
Cross, 128 F.3d 145 (3d Cir. 1997), “‘the close relation of the mailings to the scheme
does not turn on time or space, but on the dependence in some way of the completion of
3
the scheme or the prevention of its detection on the mailings in question.’” Id. at 150
(quoting United States v. Tarnopol, 561 F.2d 466, 471-72 (3d Cir. 1977)) (emphasis
added). Cross reflects the self-evident proposition that the aim of virtually all criminal
actors, including those who commit mail fraud, is not only to accomplish their criminal
goals, but also to escape detection and liability for these misdeeds. Because the jury
reasonably could have concluded that Hoffman made the mailing in question in an effort
to conceal certain inculpatory dealings with Mirarchi, the District Court therefore rightly
declined to set aside Hoffman’s conviction for mail fraud.
We have reviewed Hoffman’s other assignments of error and find them to be
meritless.
II.
For the foregoing reasons, we will affirm the decision of the District Court in all
respects.
4
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1747V
UNPUBLISHED
TIFFANY LEE DRAKE, Chief Special Master Corcoran
Petitioner, Filed: July 7, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Decision Awarding Damages; Pain
HUMAN SERVICES, and Suffering; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.
Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On November 9, 2018, Tiffany Lee Drake filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a right shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccination that was
administered on October 25, 2017. Amended Petition at 1.3 The case was assigned to
the Special Processing Unit (“SPU”) of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
3On March 19, 2019, Petitioner filed an amended petition to correct the date of vaccination from September
14, 2017 to October 25, 2017. ECF No. 13.
For the reasons set forth below, and as I represented during the June 26, 2020
motions hearing,4 I find that Petitioner is entitled to an award of damages in the amount
$126,859.13, consisting of $1,859.13 for past medical expenses, and $125,000.00
for actual pain and suffering.
I. Relevant Procedural History
As noted above, the case was initiated in November 2018. On December 6, 2019,
Respondent filed a status report indicating his willingness to entertain a settlement
demand. ECF No. 27. Thereafter, the parties attempted to informally resolve the issue of
damages but reached an impasse on an appropriate reward for actual pain and suffering.
ECF No. 33. I ultimately informed the parties that I would resolve their dispute as to
damages via a motions hearing, and held that hearing on June 26, 2020.5
The parties argued for damages based on briefing completed prior to the motions
hearing. Thus, on April 2, 2020, Petitioner filed a damages brief requesting that I award
$150,000.00 for pain and suffering. Petitioner’s Brief in Support of Damages at 2, 14. ECF
No. 39. On April 24, 2020, Respondent filed a damages brief proposing a pain and
suffering award of $85,000.00. Respondent’s Brief on Damages at 1. ECF No. 42. Finally,
on April 30, 2020, Petitioner filed a reply to Respondent’s brief reaffirming her request.
Petitioner’s Reply Brief at 1. ECF No. 45. The parties otherwise agree that an award of
$1,859.13 in compensation for Petitioner’s previously-incurred expenses is appropriate,
and there are no other damages components in contention beyond pain and suffering.
ECF No. 44.
II. Legal Standard
I have discussed at length the legal standard to be considered in determining an
appropriate award of pain and suffering for a SIRVA injury in several recent decisions. I
fully adopt and hereby incorporate my prior discussion in sections V and VI of the following
decisions: Vinocur v. Sec’y of Health & Human Servs., No. 17-0598V, 2020 WL 1161173
(Fed. Cl. Spec. Mstr. Jan. 31, 2020); Wilt v. Sec’y of Health & Human Servs., No. 18-
0446V, 2020 WL 1490757 (Fed. Cl. Spec. Mstr. Feb. 24, 2020); Smallwood v. Sec’y of
Health & Human Servs., No. 18-0291V, 2020 WL 2954958 (Fed. Cl. Spec. Mstr. Apr. 29,
2020).
4
See Minute Entry dated June 26, 2020. The transcript of this hearing, which was not yet filed as of the
date of this Decision, is hereby incorporated into this Damages Decision by reference.
5
Order, issued April 13, 2020 (ECF No. 40) at 1. On April 6, 2020, the parties indicated they could participate
in an expedited hearing on June 26, 2020. Joint Status Report, filed April 27, 2020 (ECF No. 44).
2
In sum, compensation awarded pursuant to the Vaccine Act shall include “actual
and projected pain and suffering and emotional distress from the vaccine-related injury,
[in] an award not to exceed $250,000.” Section 15(a)(4). The petitioner bears the burden
of proof with respect to each element of compensation requested. Brewer v. Sec’y of
Health & Human Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr.
Mar. 18, 1996).
III. Appropriate Compensation for Petitioner’s Pain and Suffering
Pain and suffering is the sole disputed damages component herein, so only the
legal standards bearing on its calculation are relevant. In this case, awareness of the
injury is not at issue - Petitioner was at all times a competent adult with no impairments
that would impact her awareness of her injury. Therefore, I analyze principally the severity
and duration of Petitioner’s injury.
When performing this analysis, I review the record as a whole to include the
medical records and affidavit filed and all assertions made by the parties in written
documents and at the expedited hearing held on June 26, 2020. I have also considered
prior awards for pain and suffering in both SPU and non-SPU SIRVA cases and rely upon
my experience adjudicating these cases. However, I base my ultimate determination on
the specific circumstances of this case as set forth herein:
• Ms. Drake received the flu vaccine alleged as causal on October 25, 2017.
Exhibit 2 at 1-2. Petitioner states that she experienced unusually severe pain
immediately after its administration. Ex. 3 at 1;
• Petitioner presented to an urgent care center on November 21, 2017 for an
evaluation of her right shoulder. Ex. 6 at 5-12. She was found to have limited
range of motion and was diagnosed with right shoulder pain, adhesive
capsulitis and “vaccination side effects.” Id. at 9. Bursitis and shoulder
impingement syndrome were also noted. Id. at 11-12;
• In addition to consulting with an orthopedic surgeon, in December 2017,
Petitioner received a steroid injection and underwent an MRI. Ex. 8 at 6, 37;
Ex. 3 at 2. The MRI revealed “abnormal edema involving the distal portions of
the infraspinous muscle as well as the infraspinous tendon.” Ex. 7 at 2;
• Between December 27, 2017, and January 19, 2018, Petitioner completed ten
sessions of physical therapy. Ex. 9 at 81-118. While the note documenting her
initial evaluation indicates that Petitioner rated her pain as a four on a ten-point
scale, her discharge note reports that her pain had increased to a six. Id. at 93;
3
• Between January 29, 2017 and May 7, 2017, Ms. Drake continued to suffer
from severe pain. Ex. 3 at 2-3. On May 18, 2017, after receiving a second MRI
that revealed a longitudinal split tear of the infraspinatus tendon with edema
and fluid in the infraspinatus tendon and glenohumeral joint, her orthopedist
recommended arthroscopic rotator cuff repair and subacromial decompression
surgery. Ex. 7 at 5, Ex. 8 at 11;
• Ms. Drake underwent right arthroscopic surgery with extensive debridement on
May 29, 2018. Ex. 8 at 13-14. Her postoperative diagnosis was right shoulder
impairment with extensive subdeltoid bursitis. Id. at 13;
• From May 31 to August 24, 2018, Ms. Drake completed 19 sessions of physical
therapy. Ex. 9 at 2-72. At the time of her initial evaluation, Petitioner reported
“significant stiffness and loss of mobility.” Id. at 71. At discharge, Petitioner
reported intermittent spiking pain with certain movements. Id. at 2. Moreover,
she continued to have limited range of motion and a 39% shoulder impairment.
Id; and
• In her affidavit, signed November 9, 2018, Petitioner states that she continues
to have pain, soreness, and limited range of motion in her right shoulder. Ex. 3
at 3. She further states that she still has difficulty with daily activities involving
the use of her shoulder, such as lifting, carrying and driving. Id.
The case record overall thus establishes that Petitioner experienced ten months
of moderate levels of pain and limited range of motion in her right shoulder. Despite ten
sessions of physical therapy and a corticosteroid injection, Petitioner underwent
arthroscopic surgery approximately seven months after her receipt of the flu vaccine.
Following this procedure, Petitioner underwent an additional 19 sessions of physical
therapy. Upon completion, Petitioner continued to experience lingering problems and
was determined to have a 39% shoulder disability.
The above-described course is similar to the petitioner in Dobbins v. Sec’y of
Health & Human Servs., No. 16-0854V, 2018 WL 4611267, at *13 (Fed. Cl. Spec. Mstr.
Aug. 15, 2018). The Dobbins petitioner was awarded $125,000.00 for pain and suffering
from a “mild to moderate painful injury,” and where the petitioner participated in
approximately 50 sessions of physical therapy, received one cortisone injection, and
underwent arthroscopic surgery, but whose symptoms were largely resolved within six
months of vaccination. See also Nute v. Sec’y of Health & Human Servs., No. 18-0140V,
2019 WL 6125008, at *12 (Fed. Cl. Spec. Mstr. Sept. 6, 2018)(awarding $125,000.00 for
pain and suffering to a petitioner who was found to suffer from moderate to severe SIVA
4
symptoms for approximately nine months post-vaccination, with less severe symptoms
for an additional one-to-two months. Petitioner received three cortisone injections,
participated in 19 sessions of physical therapy, and underwent left shoulder surgery). I
therefore find that a damages award comparable to these two cases is most warranted
given the comparable severity (reflected in overall treatment received) and duration of
Petitioner’s injury.
IV. Conclusion
Based on the record as a whole and arguments of the parties, I award Petitioner
a lump sum payment of $126,859.13, consisting of $1,859.13 for medical expenses,
and $125,000 for actual pain and suffering, in the form of a check payable to
Petitioner. This amount represents compensation for all damages that would be available
under Section 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
5
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10-4123
Zheng v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of July, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 ____________________________________
13
14 QIU FENG ZHENG, AKA QUI FENG ZHENG,
15 AKA MA NAN HSUEN v. BUREAU OF
16 CITIZENSHIP & IMMIGRATION SERVICES, 10-1849-ag
17 A077 309 471
18 ____________________________________
19
20 CHUN GUO CHEN v. HOLDER, 10-2010-ag
21 A072 564 910
22 ____________________________________
23
24 MAOLI DONG v. HOLDER, 10-2072-ag
25 A095 377 535
26 ____________________________________
27
28 LI BIN ZHAO v. HOLDER, 10-2364-ag
29 A077 023 117
30 ____________________________________
31
02272012-1-10
1 BI-FENG LIU v. HOLDER, 10-2867-ag
2 A073 132 497
3 ____________________________________
4
5 YUFANG QIU, BAI XIANG LIN
6 v. HOLDER, 10-2933-ag
7 A096 248 506
8 A079 141 366
9 ____________________________________
10
11 TAN FENG LING v. HOLDER, 10-3734-ag
12 A077 322 844
13 ____________________________________
14
15 YONG DA CHEN, AKA YONGDA CHEN,
16 AKA LANGDA CHEN v. HOLDER, 10-3821-ag
17 A073 161 895
18 ____________________________________
19
20 MAO ZHOU LIN, AKA
21 MAO ZAI LIN v. HOLDER, 10-3993-ag
22 A077 309 112
23 ____________________________________
24
25 XIU MEI ZHENG v. HOLDER, 10-4123-ag
26 A095 365 126
27 ____________________________________
28
29 UPON DUE CONSIDERATION of these petitions for review of
30 Board of Immigration Appeals (“BIA”) decisions, it is hereby
31 ORDERED, ADJUDGED, AND DECREED, that the petitions for
32 review are DENIED.
33 Each of these petitions challenges a decision of the
34 BIA denying a motion to reopen. The applicable standards of
35 review are well-established. See Jian Hui Shao v. Mukasey,
36 546 F.3d 138, 157-58, 168-69 (2d Cir. 2008).
02272012-1-10 2
1 Petitioners, all natives and citizens of China, filed
2 motions to reopen based on their claims that they fear
3 persecution because they have had one or more children in
4 violation of China’s population control program. For
5 largely the same reasons as this Court set forth in Jian Hui
6 Shao, 546 F.3d 138, we find no error in the BIA’s decisions.
7 See id. at 158-72. Moreover, the BIA did not err in
8 declining to credit the petitioners’ unauthenticated
9 evidence in light of the agency’s underlying adverse
10 credibility determinations. See Qin Wen Zheng v. Gonzales,
11 500 F.3d 143, 146-47 (2d Cir. 2007).
12 In Maoli Dong v. Holder, No. 10-2072-ag, (3) we are
13 without jurisdiction to consider the petitioner’s argument
14 that the BIA should have reopened his proceedings as a
15 matter of discretion. See Ali v. Gonzales, 448 F.3d 515,
16 518 (2d Cir. 2006). In Li Bin Zhao v. Holder, No. 10-2364-
17 ag, (4) there is no merit to the petitioner’s argument that
18 motions to reopen seeking relief under the Convention
19 Against Torture (“CAT”) are excused from the applicable time
20 and numerical limitations. See 8 U.S.C. § 1229a(c)(7)
21 (providing the time and numerical limitations applicable to
22 motions to reopen); cf. 8 C.F.R. § 1208.18(b)(2) (excusing
02272012-1-10 3
1 the time and numerical limitations for filing a motion to
2 reopen to seek CAT relief only for aliens whose removal
3 orders became final prior to March 22, 1999 and who moved to
4 reopen proceedings before June 21, 1999)).
5 For the foregoing reasons, these petitions for review
6 are DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in these petitions
8 is VACATED, and any pending motion for a stay of removal in
9 these petitions is DISMISSED as moot. Any pending request
10 for oral argument in these petitions is DENIED in accordance
11 with Federal Rule of Appellate Procedure 34(a)(2), and
12 Second Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
02272012-1-10 4
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
CASEY MARTIN, Petitioner.
No. 1 CA-CR 15-0574 PRPC
FILED 9-21-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2012-128626-001
The Honorable Cynthia Bailey, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Respondent
Casey Martin, Florence
Petitioner
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Jon W. Thompson joined.
STATE v. MARTIN
Decision of the Court
H O W E, Judge:
¶1 Casey Owen Miller Martin petitions this Court for review
from the dismissal of his petition for post-conviction relief. Martin pleaded
guilty to one count of kidnapping and three counts of attempted sexual
molestation of a child involving minors under the age of 15. After finding
that two aggravating factors—emotional harm to the victim and the
violation of a position of trust—outweighed the mitigating factors, the trial
court imposed a slightly aggravated 19-year flat-time sentence for the
kidnapping conviction and lifetime probation on the remaining three
convictions.
¶2 Martin argues that the trial court improperly applied
“emotional harm to the victim” as a factor to aggravate his sentence
because, he argues, emotional harm is inherent to the crime of kidnapping
if the victim is under 15 years old and therefore is duplicative in violation
of the Fifth Amendment to the United States Constitution.
¶3 Conduct that satisfies an element of a charged offense may
not be used as an aggravating factor unless it “rises to a level beyond that
which is merely necessary to establish an element of the underlying crime.”
State v. Germain, 150 Ariz. 287, 290 (App. 1986). As relevant here, a person
commits kidnapping by restraining another with the intent to inflict a
sexual offense on the victim. A.R.S. § 13–1304(A)(3). If a person commits
kidnapping against a victim under the age of 15, the conviction is
considered a dangerous crime against children subject to consecutive
sentencing. A.R.S. § 13–1304(B). Because emotional harm is not an element
of kidnapping—regardless the victim’s age—the trial court did not err by
applying emotional harm to the victim as a factor to support an aggravated
sentence.
¶4 To the extent that Martin argues that the evidence does not
support a finding of emotional harm to the victim, Martin has waived this
claim because he knowingly, voluntarily, and intelligently pled guilty to
kidnapping and agreed to the sentencing range in the plea agreement. The
trial court conducted a thorough plea colloquy with Martin and advised
him that “. . . you only have a right to post-conviction relief. You have to
file that within 90 [sic] days of your sentencing and you have the right to
have any aggravating factor determined by a jury. In this case, I’ll be
making a determination about what, if any, aggravating factors exist. Do
you understand that?” Martin replied, “[y]es.” Consequently, Martin
waived his right to a trial on the aggravating factors. Cf. State v. Brown, 212
Ariz. 225, 229 ¶¶ 16–18 (2006) (holding that a defendant is entitled to a jury
2
STATE v. MARTIN
Decision of the Court
trial on the aggravating factors because he expressly reserved that right). At
sentencing, the state alleged two aggravators: emotional harm suffered by
the victim and Martin’s position of power as the victim’s uncle in a position
of trust. The state did not provide witness or expert testimony to evidence
the allegations.
¶5 The supreme court has noted that a “factual basis may be
ascertained from the record including pre-sentence reports, preliminary
hearing reports, admissions of the defendant, and from other sources.” State
v. Varela, 120 Ariz. 596, 598 (1978). Here, the record shows that the court
considered all written materials and verbal recommendations submitted to
the court. When given the opportunity, Martin stated, “I take full
responsibility for all my actions. I was sexually abused as a young boy. I
know how I felt, and I am sorry to cause anyone, especially my own nieces,
to feel this way.” The court’s determination that two aggravating factors
existed was proper and the imposed sentence was permissible.
¶6 Accordingly, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3
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30 So.3d 1122 (2010)
Donald R. ALEXANDER
v.
Ira M. TATE, et al.
No. 09-844.
Court of Appeal of Louisiana, Third Circuit.
February 3, 2010.
*1124 Terry B. Loup, Roderick A. James, Morris Bart, LLC, New Orleans, LA, for Plaintiff/Appellee Donald R. Alexander.
Ian A. MacDonald, Jones Walker, Lafayette, LA, for Defendants/Appellants Zack's Auto Parts, Inc. Ira M. Tate Progressive Casualty Insurance Co.
Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.
DAVID E. CHATELAIN, Judge Pro Tempre.[*]
In this suit arising from a motor vehicle accident, the defendants appeal the trial court's denial of their request to exercise a peremptory challenge to exclude a potential juror and allowing the plaintiff to introduce information concerning his settlement of a separate, unrelated motor vehicle accident claim. The defendants also appeal the amount the jury awarded for general damages and damages for loss of enjoyment of life. For the following reasons, we affirm.
FACTS
On August 3, 2005, Donald Alexander's vehicle was hit broadside by a vehicle driven by Ira Tate when Mr. Tate failed to see Mr. Alexander's vehicle as he approached the intersection of Louisiana Highway 85 and Hubertville Road in Iberia Parish. Mr. Alexander testified that he saw Mr. Tate's vehicle stopping at the stop sign as he approached it and thought Mr. Tate was stopped. According to Mr. Alexander, Mr. Tate's vehicle kept creeping forward, so he moved to the other lane of travel to avoid a collision and hit his brakes, but the vehicles collided anyway. Mr. Alexander sued Mr. Tate; Mr. Tate's employer, the owner of the vehicle driven by him; and the insurer of Mr. Tate's employer to recover damages he suffered as a result of the collision.
Mr. Alexander was forty-six years of age at the time of the accident. The Social Security Administration had declared him disabled due to a heart condition. After the accident, an ambulance transported him to the New Iberia Medical Center emergency room. He complained of abrasions to his right forehead and right elbow *1125 and pain on the left side of his neck and in his low back. The emergency room doctor prescribed Flexeril for muscle spasm and Voltaren for pain. X rays taken that day revealed degenerative changes in Mr. Alexander's middle and low cervical spine. Thereafter, Mr. Alexander sought medical treatment for his injuries from Dr. Keith Mack, a general practitioner; Dr. Allen J. Johnston, an orthopedist; and Dr. Sandra Weitz, an anesthesiologist and pain management specialist.
Mr. Alexander first saw Dr. Mack six days after the accident. He complained of pain on the left side of his neck and his low back. He also had a small scratch on his forehead, which was healed, and skin abrasions on his right elbow. Dr. Mack instructed Mr. Alexander to continue taking the medication the emergency room doctor prescribed and also treated him with heat, massage, ultrasound, and electronic stimulation in his office. On September 2, 2005, Mr. Alexander's neck was x-rayed again. The X rays were interpreted as evidencing cervical spasm and degenerative cervical discs. The medications and treatment Dr. Mack prescribed were not providing Mr. Alexander lasting relief, and Dr. Mack referred him to a physical therapist in his office.
Mr. Alexander returned to Dr. Mack on November 15, 2005, complaining that his neck and low back were not improving, the medications were not alleviating his pain, the physical therapy provided only temporary relief of his pain, he was having trouble sleeping, and he was stiff when he rose in the mornings. Dr. Mack prescribed a new anti-inflammatory medication and another muscle relaxer. He also suggested that Mr. Alexander get MRIs of his neck and back and a second opinion from an orthopedist. Mr. Alexander returned a month later; his complaints were the same. Dr. Mack suggested that he keep his previously-scheduled appointments for MRIs and a second opinion.
On January 23, 2006, Mr. Alexander saw Dr. Mack again and reported that he felt much better and that he was essentially pain free. Dr. Mack discharged him and instructed him to return if needed. Approximately ten days later, Mr. Alexander returned, complaining of recurrent pain and stiffness in his neck and back. MRIs of his neck and low back were performed on March 3, 2006. The MRI of Mr. Alexander's back revealed a paracentral disc herniation with an annular tear at L4-5, with spinal canal stenosis, facet arthropathy, ligamentous hypertrophy, and a right paracentral disc herniation at L5-S1. The MRI of his neck revealed a central disc herniation, resulting in borderline spinal canal stenosis and narrowing of the spinal canal at C6-7; ventral annular bulging at C5-6; and right paracentral annular bulging at C4-5. There was spur formation at C4-5 and C5-6. Thereafter, Drs. Johnston and Weitz treated him.
Mr. Alexander's first visit with Dr. Johnston was March 17, 2006. He complained of neck and back pain and rated his pain as six out of ten in both areas. He denied numbness, tingling, and weakness in his arms but stated he had intermittent headaches and also complained of pain radiating down his right leg to his knee, which walking aggravated. Dr. Johnston prescribed new medications, a TENS unit to stimulate the muscles in his back, and home exercise. He also ordered a nerve conduction study which was conducted on April 28, 2006. The study revealed that Mr. Alexander had a pinched nerve or S1 radiculopathy going into his left leg. Dr. Johnston testified that this finding was consistent with Mr. Alexander's lumbar MRIs and that he thought the L5-S1 disc herniation could have caused the irritated nerve root.
*1126 On June 16, 2006, Mr. Alexander reported significant pain in his neck and back to Dr. Johnston. Dr. Johnston recommended that he see a spine specialist because his neck pain was worse than his back pain. On August 15, 2006, Dr. Johnston gave Mr. Alexander a steroid injection in his low back, which Mr. Alexander reported as providing him significant relief for his back pain and leg symptoms.
In July 2006, Mr. Alexander first saw Dr. Weitz. He complained of neck and low back pain; he stated that his neck pain radiated into his shoulder but the pain in his low back did not radiate. On November 16, 2006, Dr. Weitz injected an epidural steroid into Mr. Alexander's cervical spine at C6-7. Two weeks later, Mr. Alexander reported that the injection had given him tremendous relief and had reduced his neck pain from seven to two on a scale of one to ten. In June 2007, Mr. Alexander had Dr. Weitz repeat the steroid injection, which Dr. Weitz testified was not unusual. Thereafter, Mr. Alexander reported that his neck pain was better and that he had more low back pain than neck pain at that time.
Dr. Weitz testified that more probably than not Mr. Alexander's degenerative changes of facet arthropathy and ligamentous hypertrophy at L4-5 existed and were asymptomatic before the accident but were made symptomatic by the August 2005 accident. She also testified that she would expect his pain to wax and wane as Mr. Alexander complained his had.
Mr. Alexander returned to Dr. Johnston in late January 2007. He reported mild discomfort in his neck and back but felt he could return to his regular activities. Dr. Johnston assigned him a 10-12% permanent impairment rating and believed he could do light to medium duty work at that time. In October 2007, Mr. Alexander saw Dr. Johnston and stated that he was improved but that he was beginning to experience more neck discomfort. Dr. Johnston refilled his medications and told him to return if he did not improve. On December 21, 2007, Dr. Johnston gave Mr. Alexander a second cervical steroid injection.
On March 3, 2008, Mr. Alexander was in another automobile accident, and he returned to Dr. Johnston on April 25, 2008. Upon his return to Dr. Johnston, he rated his pain as eight on a scale of one to ten; his pain had been four on scale of one to ten in December 2007.
Mr. Alexander pursued a claim for damages he suffered as a result of the March 2008 accident, which he settled for $8,000. Issues regarding causation arose herein with regard to injuries Mr. Alexander suffered in that accident, i.e., what, if any, injuries did the second accident cause; what pain and/or limitations were attributable to his pre-existing degenerative spine conditions; and what, if any, impact did the March 2008 accident have on the injuries caused by the August 2005 accident. At trial, Mr. Alexander sought to inform the jury that he settled his claim regarding the March 2008 accident for $8,000. The defendants objected, but the trial court ruled that the evidence was admissible.
The jury returned a verdict in favor of Mr. Alexander, assessing him with 10% fault and awarding him the following damages:
Past Medical Expenses $ 20,082
Bodily Injury, Past and Future Physical
and Mental Pain and Suffering, Mental
Anguish, and Disability $192,000
Loss of Enjoyment of Life $ 50,000
The defendants appeal and assign four errors: (1) the trial court erred in denying the defendant's request to exercise a peremptory challenge because there was no evidence or finding that the exercise of that challenge was unconstitutionally discriminatory; (2) the trial court erred in *1127 allowing Mr. Alexander to introduce evidence of the settlement amount of the claim he made regarding his March 3, 2008 automobile accident; (3) the jury's award of $192,000 for bodily injury, past and future physical and mental pain and suffering, mental anguish, and disability is an abuse of discretion and should be reduced; and (4) the jury erred in awarding $50,000 for loss of enjoyment of life.
DISCUSSION
Batson Challenge
The defendants contend that the trial court erred in denying their request to peremptorily challenge a prospective juror, Terri Mayes Thompson. Their contention is twofold: (1) Mr. Alexander failed to establish a prima facie case of discrimination; and (2) the trial court failed to determine whether Mr. Alexander carried his burden of proving purposeful discrimination.
During the jury selection process, defense counsel attempted to exercise a peremptory challenge to exclude Ms. Thompson from the jury. Mr. Alexander and Ms. Thompson were from Jeanerette. As soon as counsel for Mr. Alexander raised a Batson objection, defense counsel immediately stated that he believed his challenge was legitimate because of Ms. Thompson's knowledge of Mr. Alexander from the community, explaining: "She knows him from the community, Your Honor. I'm just a little concerned about people who knowJeanerette, as you know, is a small community and I'm concerned about that."
Counsel for Mr. Alexander countered that Ms. Thompson stated that she had seen Mr. Alexander around but did not know him and that she did not know any of his family members. Defense counsel then opined that his reason had a "race neutral basis" and was, therefore, legitimate. Mr. Alexander's counsel responded by asking the trial court to consider that the defendants had used their other peremptory challenges primarily against African-American jurors.
During voir dire, Ms. Thompson had stated that "I don't have any association, but I am from Jeanerette and the person that I know as the plaintiff, Mr. Donald Alexander, I've seen him around Jeanerette." Defense counsel asked, "Would you have known his name but for today or you just knew him as somebody you had seen around?" The juror responded, "Just from when I've seen him. I don't know himpersonally." She also denied knowing Mr. Alexander's family.
The trial court noted that defense counsel had not sought to exclude Wallace Davis, another potential juror from Jeanerette who had given almost the same responses Ms. Thompson gave.[1] In response, defense counsel explained that he wanted to back-strike Mr. Davis but was not allowed to do so.[2] The trial court continued, finding "Ms. Thompson was pretty neutral," and granted Mr. Alexander's Batson challenge.
In Alex v. Rayne Concrete Service, 05-1457, 05-2344, 05-2520 (La.1/26/07), 951 So.2d 138, our supreme court restated that *1128 discrimination on the basis of race in the exercise of peremptory challenges is prohibited by the Equal Protection Clause of the United States Constitution. In State v. Snyder, 98-1078, p. 7 (La.9/6/06), 942 So.2d 484, 489, rev'd on other grounds, 552 U.S. 472, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (quoting Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-74, 163 L.Ed.2d 824 (2006)), our supreme court set forth the process established by the Supreme Court to guide courts in the examination of peremptory challenges for constitutional infirmities:
A defendant's Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Internal quotations and citations omitted.]
From the outset, the defendants contend that Mr. Alexander's Batson challenge fails because he did not establish a prima facie case of discrimination. This contention is without merit. The issue of whether Mr. Alexander met his burden of proof was rendered moot once defense counsel offered a race-neutral explanation for striking the challenged juror. See State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000) (citing State v. Green, 94-887, p. 25 (La.5/22/95), 655 So.2d 272, 288, where our supreme court adopted the rule set forth in Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991), which states: "Once [an opposing party] has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [challenging party] had made a prima facie showing becomes moot.") See also, State v. Scott, 04-1312 (La.1/19/06), 921 So.2d 904, cert. denied, 549 U.S. 858, 1275 S.Ct. 137, 166 L.Ed.2d 100 (2006); State v. Jacobs, 99-991 (La.5/15/01), 803 So.2d 933, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002); State v. Hobley, 98-2460 (La.12/15/99), 752 So.2d 771, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).
The defendants also urge that the trial court failed to perform the third step of the Batson analysis. The third step of a Batson challenge requires the trial court to assess the plausibility of the challenger's proffered reason in light of all the evidence bearing on it. Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). The focal point of the third step of the Batson inquiry is the trial court's assessment of the "plausibility" of the proffered race-neutral explanation based upon the challenger's credibility and demeanor. Snyder, 942 So.2d at 490. In resolving the ultimate inquiry before it, whether the challenger's proffered race-neutral explanation should be believed, the trial court should examine all the evidence before it. State v. Juniors, 03-2425 *1129 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Like other credibility determinations a trial court is called to make, there will seldom be much evidence on this trial court determination. Holmes v. Great Atl. & Pac. Tea Co., 622 So.2d 748 (La.App. 4 Cir.1993), writ denied, 629 So.2d 1178 (La.1993). A trial court's determination that a party attempted to exclude a potential juror by discriminatory exercise of a peremptory challenge will not be reversed unless it is manifestly erroneous. Alex, 951 So.2d at 164 n. 10; State v. Robinson, 02-1869 (La.4/14/04), 874 So.2d 66, cert. denied, 543 U.S. 1023, 125 S.Ct. 658, 160 L.Ed.2d 499 (2004).
Contrary to the defendants' argument, the trial court's ruling that Ms. Thompson was neutral belies the defendants' contention that the trial court failed to consider the credibility of their proffered race-neutral explanation. Otherwise, the trial court would have simply granted the defendants' request to peremptorily exclude Ms. Thompson.
Moreover, we cannot say that the trial court's refusal to allow the defendants to exercise a peremptory challenge against this juror was manifestly erroneous. First, notwithstanding the defendants' assertion to the trial court that Ms. Thompson knew Mr. Alexander, a close examination of the record shows that she had only seen him in Jeanerette and that she had "no association or connection with any of the parties." The defendants' more forceful assertion about Ms. Thompson's knowledge of Mr. Alexander is simply not supported by the record. Second, the trial court specifically observed that defense counsel had not sought to exclude Mr. Wallace, another potential juror from Jeanerette who gave similar responses as those Ms. Thompson provided during voir dire examination. Likewise, our review of the record further shows that Katina Miller was another potential juror from Jeanerette who also gave similar responses as those Mr. Wallace and Ms. Thompson gave. Defense counsel did not object to Ms. Miller serving on the jury.
"Batson's admonition to consider all relevant circumstances in addressing the question of discriminatory intent requires close scrutiny of the challenged strike[] when compared with the treatment of panel members who expressed similar views or shared similar ... backgrounds." State v. Elie, 05-1569, p. 6 (La.7/10/06), 936 So.2d 791, 796. Defense counsel's failure to object to Ms. Miller and Mr. Wallace belie his argument and further illuminate the trial court's assessment of the plausibility of defense counsel's proffered race-neutral explanation with regard to Ms. Thompson. Therefore, there is no merit to the defendants' assignment of error.
Admission of Settlement Information
After his March 2008 accident, Mr. Alexander sought damages for injuries he sustained in the accident. He settled his claim for $8,000 and sought to introduce evidence of this settlement amount at trial to establish that he was not seriously injured in that accident. The defendants objected to introduction of the settlement amount, claiming it was irrelevant and prohibited by La.Code Evid. art. 413 which provides: "Any amount paid in settlement or by tender shall not be admitted into evidence unless the failure to make a settlement or tender is an issue in the case." After arguments in an unrecorded sidebar conference, the trial court denied the defendants' objection and allowed Mr. Alexander to state that he settled the claim for $8,000.
The defendants' argue that Article 413 prohibited the admission of the settlement amount. This evidentiary ruling is *1130 subject to the manifest error standard of review. Lam v. State Farm Mut. Auto. Ins. Co., 05-1139 (La.11/29/06), 946 So.2d 133.
In support of their argument, the defendants cite Calcagno v. Gonzales, 99-287 (La.App. 5 Cir. 10/13/99), 802 So.2d 643. At issue in Calcagno was a claim by two insureds against their uninsured motorist insurer. The trial court allowed the insurer to introduce the amounts of unconditional tenders it made to the insureds prior to trial. The appellate court found that the jury's awards of $500 for general damages to each insured and medical expenses of $1,000 or less to each insured indicated that the jury considered those tenders in arriving at its damage awards and held that the trial court erred in allowing the amount of the tenders to be made known to the jury.
Mr. Alexander argues that the amount of the settlement was relevant and admissible because the defendants made the March 2008 accident and the extent of the injuries he suffered therein an issue at trial. He claims that the settlement amount was relevant to establish that the March 2008 accident merely aggravated injuries he sustained in the August 2005 accident, that the aggravation resolved shortly after the accident, and that he thereafter returned to his pre-March 2008 accident condition.
Mr. Alexander urges that Article 413 should be read in conjunction with La. Code Evid. art. 408(A), which prohibits the admission of evidence concerning compromise or offers to compromise a disputed claim "to prove liability for or invalidity of the claim or its amount" but does not prohibit evidence that is otherwise admissible "merely because it is presented in the course of compromise negotiations" or when "the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution." La.Code Evid. art. 408(A). As support for his claim, Mr. Alexander relies on comments the authors of the "Handbook on Louisiana Evidence Law" made regarding Article 413. Those opinions state in part:
This Article was particularly designed to protect a plaintiff in a personal injury suit from the introduction of evidence that would inform the jury of the amount plaintiff received in settlement from other alleged tortfeasors, or the amount received by other claimants in settlement of their claims against the defendant, when the purpose of such evidence is to minimize the value of plaintiff's claim, or suggests that he has already received adequate compensation.
GEORGE W. PUGH, ROBERT FORCE, GERALD A. RAULT, JR., AND KERRY TRICHE, HANDBOOK ON LOUISIANA EVIDENCE LAW, 410 (2008 ed.). The authors then correlate Article 413 to Article 408, explaining that while Article 408 excludes evidence of settlements for the limited purpose of "proving or disproving liability or amount thereof," Article 413 is written in broader terms than Article 408 and that it "seemingly mak[es] evidence of settlements ... inadmissible for any purpose." Id. The authors continue, however, noting: "It is believed that [Article 413] should not be given such broad scope, and where the amount paid in settlement or tender has a relevance independent of its tacitly forbidden use, it should be held admissible, subject, of course, to the balancing test of Article 403." Id.
There is no federal rule of evidence that is comparable to Article 413, but Federal Rule of Evidence 408 is comparable to La.Code Evid. art. 408. Jurisprudence under that rule holds that settlement terms pertaining to another dispute or litigation may be admissible to assist the trier of *1131 fact in understanding the case. See Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284 (6th Cir.1997); Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir.1987).
We find the Handbook on Louisiana Evidence Law's observations regarding Article 413 and the federal jurisprudence persuasive and conclude that the trial court did not commit manifest error when it allowed Mr. Alexander to state the amount for which he settled his claim arising out of the March 2008 accident. Clearly, the settlement of this second accident did not involve the parties to this litigation, and it was relevant as to the severity of the injuries Mr. Alexander sustained in that accident.
Damages
Recently, in Guillory v. Lee, 09-75, p. 14 (La.6/26/09), 16 So.3d 1104, 1116, the supreme court reiterated the long-held tenet that a jury has "great discretion" in assessing damages and that a jury's assessment of damages is "a determination of fact" which is "entitled to great deference on review." Accordingly, when reviewing general damage awards, our role is to review the trier of fact's exercise of discretion, not to decide what we consider to be an appropriate award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). If there is no clear abuse of discretion in the jury's awards, the awards must stand. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).
Bodily Injury, Past and Future Physical and Mental Pain and Suffering, Mental Anguish, and Disability
The defendants argue that the jury's award of $192,000 in general damages was an abuse of its discretion. They contend that the accident was simply an aggravation of pre-existing conditions, that Mr. Alexander had substantially recovered from his injuries caused by the August 2005 accident prior to his March 2008 accident, and that any pain and/or symptoms Mr. Alexander had after the March 2008 accident were related to his pre-existing conditions or the March 2008 accident.
The evidence establishes that before the accident, Mr. Alexander had pre-existing degenerative changes in his neck and low back. The degenerative changes in his back were asymptomatic until about seven months prior to the accident at which time the degenerative changes in his low back were symptomatic for a period of four to five months. The evidence further establishes that more likely than not the accident caused a right paracentral disc herniation at L5-S1, and a central disc herniation at C6-7 or, at the least, caused the asymptomatic degenerative changes in his neck to become symptomatic. Additionally, the evidence establishes that the pain Mr. Alexander suffered after the accident led him to have steroid injections in his low back and his neck, which successfully alleviated his pain for a period of time.
Mr. Alexander testified that the back pain he had before the August 2005 accident was not as severe or as long in duration as the pain he suffered after that accident. He further stated that the March 2008 accident aggravated the pain he suffered after the August 2005 accident but subsided after a few months and that he thereafter returned to his pre-March 2008 status.
We find no abuse of discretion in the jury's general damage award. The jury was able to view Mr. Alexander testify and to consider his testimony in light of Drs. Mack's, Weitz's, and Johnston's testimonies and the evidence that he had sought treatment for low back pain prior to the August 2005 accident. The jury heard the *1132 doctors' opinions on causation and aggravation of pre-existing conditions, which included testimony that because Mr. Alexander did not have any complaints of neck pain before the accident, that, at a minimum, the accident caused his degenerative neck conditions to become symptomatic, and that because Mr. Alexander did not complain of pain radiating down his left leg until after the August 2005 accident, Dr. Johnston did not believe his low back herniation existed prior to that accident. Lastly, the jury apparently accepted Mr. Alexander's testimony that the March 2008 accident aggravated the problems he had before that accident, but his symptoms and pain levels returned to the levels that existed prior to that accident. In light of the issues concerning causation and/or aggravation of pre-existing conditions, we find no abuse in the jury's award for bodily injury, past and future physical and mental pain and suffering, mental anguish, and disability.
Loss of Enjoyment of Life
The defendants urge that the jury's award of $50,000 for loss of enjoyment of life is excessive because Mr. Alexander's other health problems already compromised his quality of life. "Loss of enjoyment of life ... refers to the detrimental alterations of a person's life or lifestyle or a person's inability to participate in the activities or pleasures of life that were formerly enjoyed." McGee v. A C & S, Inc., 05-1036, p. 3 (La.7/10/06), 933 So.2d 770, 773. Our review of the record shows a reasonable basis for the jury to determine that because the accident caused injuries, those injuries further diminished Mr. Alexander's already limited quality of life, making his loss greater than it may have been otherwise. Therefore, we cannot say that this conclusion is unreasonable or an abuse of the jury's great discretion in awarding damages.
DISPOSITION
The judgment of the trial court is affirmed. All costs are assessed to the defendants.
AFFIRMED.
NOTES
[*] Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1] Implicit in the discussion on the record is that the two other jurors from Jeanerette referenced by the trial court and counsel were not African-American.
[2] Although the defendants have not raised an assignment of error regarding the trial court's handling of back-strikes, we note that our supreme court has held that this practice is neither constitutionally nor statutorily mandated in civil cases. Riddle v. Bickford, 00-2408 (La.5/15/01), 785 So.2d 795. "[T]he right to back-strike in civil cases is left within the sound discretion of the trial judge, who ultimately has the responsibility for orderly conduct of the trial." Id. at 803.
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214 S.W.3d 266 (2005)
John E. SAUERWIN Jr., Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 05-278.
Supreme Court of Arkansas.
September 29, 2005.
*267 William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, Little Rock, for appellant.
Mike Beebe, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., and Maggie C.B. Smith, Law Student Admitted to Practice Pursuant to Rule XV(E)(1)(b) of the Rules Governing Admission to the Bar under supervision of Darnisa Evans Johnson, Deputy Att'y Gen., Little Rock, for appellee.
DONALD L. CORBIN, Justice.
Appellant John E. Sauerwin Jr. appeals the jury verdict and order of the Pulaski County Circuit Court convicting him of capital murder and sentencing him to life imprisonment without parole. On appeal, he argues that the trial court erred in denying his objection to the testimony of Dr. Daniel Konzelmann (1) based upon his constitutional right to confront the witnesses against him and (2) as hearsay. We have jurisdiction of this appeal pursuant to Ark. Sup.Ct. R. 1-2(a)(1). We find no error and affirm.
On November 22, 2004, Appellant was convicted of capital murder for the shooting death of Danny Strange. The shooting occurred on February 14, 2004, outside of Clara's Lounge in North Little Rock. Prior to the shooting, Appellant, his ex-wife, the victim, and several others were together *268 at the bar. Later, after all the others had left, Appellant approached Strange in the parking lot. Prior to approaching Strange's car, Appellant retrieved a loaded SKS semi-automatic rifle from the trunk of his car. When Appellant reached Strange's vehicle, he claims that Strange leaned over as if reaching for a gun. At that time Appellant repeatedly shot Strange.
The only aspect of trial that is relevant to the current appeal is the testimony of Dr. Daniel Konzelmann. Dr. Konzelmann is an associate medical examiner at the Arkansas State Crime Laboratory in Little Rock. At trial, he was qualified as an expert and gave testimony on Strange's death. Dr. Konzelmann testified that another medical examiner, Dr. William Sturner, had performed the autopsy; however, Dr. Sturner is now retired. Dr. Konzelmann explained that he had since assumed Dr. Sturner's cases for testimony in court. Dr. Konzelmann stated that he himself had reviewed Dr. Sturner's autopsy report, as well as any photos involved, in preparation for the trial. During his testimony, Dr. Konzelmann referred to the report while explaining the wounds and injuries, as well as to the multitude of photos taken of the victim's body.
At trial, Appellant repeatedly objected to Dr. Konzelmann's testimony, claiming a violation of his right to confront the witnesses against him and that the testimony was hearsay. The trial court overruled all of these objections. Appellant was found guilty of capital murder and sentenced to life imprisonment without parole. This appeal followed.
Appellant raises two points for reversal. First, Appellant argues that the trial court erred in denying his objections to Dr. Konzelmann's testimony under the Confrontation Clause of Sixth Amendment. Second, Appellant claims that the trial court erred in denying his hearsay objections to Dr. Konzelmann's testimony. Because both of these points are inherently intertwined and rest on similar arguments, they can be examined together. The Appellant's bottom line is that he was denied his right to confront the witnesses against him because Dr. Konzelmann's testimony consisted of hearsay in that he relied upon an autopsy report prepared by another medical examiner.
During the trial below, Appellant raised the following objections to Dr. Konzelmann's testimony: that it was inadmissible hearsay; that it violated his constitutional rights of confrontation and due process; and that it was inadmissible expert testimony under Ark. R. Evid. 703. Specifically, Appellant's Rule 703 objection was premised on his belief that the rule refers to treatises or learned works that the expert might read to help form an opinion, not actual works done by someone else. On appeal, Appellant maintains his arguments pertaining to the Confrontation Clause and to Rule 703. He also asserts that out-of-court statements must fall within a firmly rooted hearsay exception, such as the business-records exception or the public-records exception, in order for the expert to rely on the autopsy report. Furthermore, he asserts that the State never established that the autopsy report was duly attested to pursuant to Ark.Code Ann. § 12-12-313(a) (Repl.2003). However, the record reflects that Appellant's objection to Dr. Konzelmann's testimony did not include these latter two arguments.
This court has repeatedly held that appellants are precluded from raising arguments on appeal that were not first brought to the attention of the trial court. See, e.g., Flanery v. State, 362 Ark. 311, 208 S.W.3d 187 (2005); Phillips v. State, 361 Ark. 1, 203 S.W.3d 630 (2005); Marta v. State, 336 Ark. 67, 983 S.W.2d 924 *269 (1999). Thus, Appellant is bound by the scope and nature of the arguments made at trial. Woolbright v. State, 357 Ark. 63, 160 S.W.3d 315 (2004). Because his objections below did not raise arguments relating to the business-records and public-records exceptions to hearsay, nor to section 12-12-313(a), he is barred from raising those issues on appeal. Accordingly, we will confine our analysis to the issue raised below that is pursued on appeal, namely that Dr. Konzelmann's testimony was improper under Rule 703.
The admissibility of evidence rests in the broad discretion of the trial court. Dednam v. State, 360 Ark. 240, 200 S.W.3d 875 (2005); Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994). We will not reverse a trial court's ruling on the admissibility of expert testimony or on a hearsay question unless the appellant can show an abuse of that court's discretion. Id. To qualify as an abuse of discretion, the trial court must have acted improvidently, thoughtlessly, or without due consideration. Grant v. State, 357 Ark. 91, 161 S.W.3d 785 (2004). Additionally, this court will not reverse an evidentiary ruling absent a showing of prejudice. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003). With this standard in mind, we now review the issues before us.
Rule 703 governs the basis of opinion testimony by experts and provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
This court has observed that Rule 703 allows "an expert [to] render an opinion based on facts and data otherwise inadmissible, including hearsay, as long as they are of a type reasonably relied upon by experts in the field." Goff v. State, 329 Ark. 513, 521, 953 S.W.2d 38, 42 (1997). Furthermore, when a statement, such as expert testimony, "is admitted for a legitimate, non-hearsay purpose, that is, not to prove the truth of the assertions therein, the statement is not hearsay under the traditional rules of evidence and the non-hearsay aspect raises no confrontation-clause concerns." Dednam, 360 Ark. at 248, 200 S.W.3d at 880. Lastly, the appellant must demonstrate that he has been prejudiced, beyond the bare assertion of his right to confront the witness, by the denial of cross-examination or that such request would have availed him anything. Marta, 336 Ark. 67, 983 S.W.2d 924.
The present case is factually similar to Goff, 329 Ark. 513, 953 S.W.2d 38. There, the appellant argued that it was objectionable hearsay to allow a DNA expert's testimony when she did not actually perform the tests. This court pointed out that the expert testified that she independently reviewed the results and followed standard protocol in her DNA analysis. Consequently, this court held that the trial court did not abuse its discretion in ruling against the hearsay objection.
Here, Appellant objected to the expert testimony of Dr. Konzelmann because he did not examine the victim's body and, instead, used an autopsy report prepared by another. Dr. Konzelmann, like the DNA expert in Goff, was qualified as an expert and testified as to a report formulated by another. This use of reports, such as an autopsy report, during an expert medical examiner's testimony is common and standard protocol.
Dr. Konzelmann testified that in preparing for the trial he reviewed Dr. Sturner's findings in the autopsy report and also reviewed the relevant photos. While it is true that Dr. Konzelmann referred to the *270 report during his testimony, much of his testimony involved the explanation and analysis of the photos of the victim submitted into evidence. It should be noted that the autopsy report was never admitted into evidence, and was used solely by Dr. Konzelmann in the course of his testimony.
Appellant claims that Dr. Konzelmann's testimony merely acted as a conduit for otherwise inadmissible hearsay and denied Appellant the right to confront Dr. Sturner because Dr. Konzelmann directly referred to what Dr. Sturner had written. Specifically, when asked to give his expert opinion, based upon his reading of Dr. Sturner's report, Dr. Konzelmann replied: "The manner of death is listed homicide." Nevertheless, this statement was not a mere recitation of the autopsy report, but a reflection of what the report listed in combination with his expert opinion. Dr. Konzelmann's entire testimony was not a reading of the report, but was an expert analysis and opinion based upon his review of the report as well as the photos. This type of expert testimony and reliance upon autopsy reports is in line with the purposes of Rule 703. For the above reasons, it is clear that the trial court did not abuse its discretion in allowing the expert testimony.
Additionally, we find persuasive the ruling by the Arizona Supreme Court in State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997), which presented an almost identical fact pattern and argument as Appellant is making here. There, the appellant argued that the trial court erred when allowing a medical examiner to testify in place of another who was no longer on staff at the medical examiner's office at the time of trial. Relying on Ariz. R. Evid 703, which is identical to our rule, the court reasoned that the rule does not require "that the facts or data used as a basis for an opinion be generated by a qualified, testifying expert." Id. at 41, 932 P.2d at 797. More so, the court explained that the doctor's reliance on another doctor's report cannot be seriously disputed because the purpose of Rule 703 is to allow a testifying expert to reach and express an opinion in the courtroom in the same manner as would occur in a laboratory. Id.
The most telling comparison that can be made to Rogovich is that court's finding that "the defendant's confrontation right extends to the testifying expert witness, not to those who do not testify but whose findings or research merely form the basis for the witness's testimony." Id. at 42, 932 P.2d at 798. In the present case, Appellant not only was able to cross-examine Dr. Konzelmann, he did so and extensively inquired into the doctor's analysis. There is nothing to indicate that Appellant's right to confront the witnesses against him was violated, nor that the testimony of Dr. Konzelmann was hearsay.
Accordingly, the trial court did not abuse its discretion in denying Appellant's objections to Dr. Konzelmann's testimony. Furthermore, at no point has Appellant shown prejudice. It was not contested below that the victim's death was anything other than a homicide, but rather whether Appellant had shot the victim in self-defense. Thus, there has been no indication that the trial court's decision to allow Dr. Konzelmann's testimony resulted in prejudice.
Because Appellant received a sentence of life imprisonment without parole, the record in this case has been reviewed pursuant to Ark. Sup.Ct. R. 4-3(h) for adverse rulings objected to by him but not argued on appeal. No reversible errors were found.
The judgment is affirmed.
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497 F.2d 921
Dimattinav.Immigration and Naturalization Service
73-2016
UNITED STATES COURT OF APPEALS Third Circuit
6/17/74
1
I.N.S.
PETITION FOR REVIEW DENIED
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357 F.2d 694
Meyer HANDELMAN, William Handelman, Donald N. Hanson, Laird Lucas and Frederick T. Weyerhaeuser, Trustees*v.The UNITED STATES.
No. 169-63.
United States Court of Claims.
March 18, 1966.
On Motion for Reconsideration May 25, 1966.
John J. King, St. Paul, Minn., attorney of record, for plaintiffs. Briggs & Morgan, St. Paul, Minn., of counsel.
Sheldon P. Migdal, Washington, D. C., with whom was Acting Asst. Atty. Gen. Richard M. Roberts, for defendant. C. Moxley Featherston, Lyle M. Turner and Philip R. Miller, Washington, D. C., of counsel.
White & Case, A. Chauncey Newlin, William L. Hearne and Edmund W. Pavenstedt, New York City, filed a brief for United States Steel Corporation, amicus curiae.
Before COWEN, Chief Judge, WHITAKER, Senior Judge, and LARAMORE, DAVIS and COLLINS, Judges.
PER CURIAM:**
1
Plaintiff brings this action for a refund of income taxes for the years 1954-1958, alleging it is entitled to claim a 15-percent-depletion allowance on all ad valorem taxes on minerals in place paid by its lessees.
2
Plaintiff, Mississippi Land Company, is the owner of certain iron-ore-bearing lands in Minnesota. These lands were subject to various operating leases during the years in question, 1954 through 1958. Only five of the leased mines thereon are involved in this action.
3
Under the terms of each lease, the lessee was to pay plaintiff a royalty of so much per ton on all ore mined and shipped. The lessees also covenanted to pay all taxes on the land, on the iron ore, and on the improvements and personal property thereon. It is admitted that only the taxes levied on the minerals in place are in question here.
4
The Minnesota ad valorem taxes on the minerals in place for the years 1954 through 1958 totaled $685,681.56. Pursuant to the leases, these taxes were paid in full by the lessees of the five mines involved. While treating the tax payments as income in part, plaintiff-lessor did not include the full amount of the paid taxes as "gross income from the property" on which it could claim the benefit of the 15-percent-depletion allowance of sections 611 and 613 of the Internal Revenue Code of 1954.
5
Revenue Ruling 16, 1953-1 Cumulative Bulletin 173, in effect during the years 1954 through 1958, had permitted the lessor, and the lessee to agree as to the proportionate values of their respective interests in the property and to use such values, if reasonable, as a basis for allocating the ad valorem taxes between the parties. That portion of the lessor's taxes paid by the lessee was to be included by the lessor as depletable income.
6
Pursuant to the above Revenue ruling, plaintiff and the lessees had entered into agreements sharing the amounts of the taxes for depletion purposes. As a result of these sharing agreements, plaintiff included as "gross income from the property" for depletion purposes $305,322.45 of the paid ad valorem taxes. Plaintiff did not include the remaining $380,359.11 of the ad valorem taxes as income for depletion purposes.
7
In 1959, the Court of Claims held in Burt v. United States, 170 F.Supp. 953, 145 Ct.Cl. 282 (1959), that ad valorem taxes on iron ore minerals in place, paid by the lessee under the lease, were part of the royalty compensation to the lessor. It was held that the sharing agreements under Revenue Ruling 16, supra, were improper and that all of the amounts paid by the lessee as ad valorem taxes on the minerals in place were to be treated as depletable income of the lessor.
8
Plaintiff then timely filed for a refund of corporate income taxes paid during the years 1954 through 1958 on the ground that it should have claimed the 15-percent-depletion allowance on the $380,359.11 it had not included as "gross income from the property" for depletion purposes. Plaintiff's claims for refund for the years 1954 through 1958 were denied in full on July 19, 1963. Plaintiff then filed its claim for refund in the United States Court of Claims. It is agreed that if plaintiff is entitled to include all or most of the remainder of the ad valorem taxes paid by the lessees as "gross income from the property," it is entitled to a refund.
9
The issue in this case is narrow, since the defendant concedes that the ad valorem taxes on the minerals in place are a primary obligation of the owner-lessor and the payment of such taxes by the lessee is a discharge of such obligation and therefore income to the lessor. The specific issue in this case is how much, if any, of this particular income of the lessor is "gross income from the property" upon which the lessor should be allowed a 15-percent-depletion deduction under the Internal Revenue Code of 1954, section 613.
10
Plaintiff relies on Burt v. United States, supra, in which this court held that a lessor was entitled to include as gross income from the property for depletion purposes all of the ad valorem taxes on the minerals in place paid by the lessee pursuant to the lease. The principle of the Burt case was expressly agreed with, by the Tax Court, in Winifred E. Higgins, 33 T.C. 161 (1959).
11
Plaintiff contends that the present case is on "all fours" with the Burt case and it is therefore entitled to a depletion allowance on that part of the ad valorem taxes not treated as "gross income from the property" during the years 1954 through 1958. Defendant alleges, but shows no proof, that the same factual inferences cannot be drawn from this case as were drawn in the Burt case. The only apparent disparity in the facts is the respective lease-termination provisions in the two cases. However, that defense will be taken as abandoned since it was not pursued by the defendant. Defendant relies principally upon an argument that the Burt case was decided erroneously because the Government admittedly presented the wrong defense when that case was before the court. Defendant now argues that since the payment of the ad valorem taxes by the lessee was not dependent solely on production of the ore, the lessor should not be allowed depletion on any part of that income. In short, defendant contends this court should overrule the decision it rendered 5 years ago in Burt v. United States, supra.
12
It is necessary, first, to review the opinion rendered in Burt v. United States, supra. That case involved iron-ore-producing property in which the lessor owned a one-twelfth interest. The lessee had agreed to pay all the taxes on the property. The lessor claimed that all of the payment of the ad valorem taxes by the lessee should be included as a part of the gross revenue of the lessor on which depletion should be allowed. Only the tax on the iron ore in place was in question. It was held that the taxes paid were a part of the royalty compensation of the lessor since the lessor would have demanded a larger cash payment or increased percentage payment on each ton in the absence of the tax payment provision. At page 956 of 170 F.Supp., at page 285 of 145 Ct.Cl. the court said:
13
We are unable to escape the conclusion that under the terms of this particular lease the payment of the ad valorem taxes on the minerals in place was a part of the royalty compensation to plaintiffs. But for the provision in the lease that the mineral taxes were to be paid by the lessee, the levy would have been an in rem tax against the land itself, of which plaintiffs were the actual owners. Undoubtedly if the lessee had not agreed to pay these taxes the plaintiffs would have asked for and been entitled to a larger royalty payment in cash or in an increased percentage or payment of some kind. It seems to us, in essence, that it was a part of the total production income which the plaintiffs received and therefore they are entitled to the statutory depletion allowance on their part of the total production income which includes the ad valorem tax on the minerals as a part of the compensation, rent, or royalty.
14
It appears that the present case is almost identical to the Burt case, and defendant has made no serious attempt to distinguish it on the facts. Under the Burt decision, the plaintiff is clearly entitled to claim the ad valorem tax payments as depletable income and is therefore entitled to a refund. Defendant can prevail in this action only if Burt v. United States, supra, is reversed, so the issues decided in the Burt case will be reexamined here.
15
As was stated previously, defendant now admits that the ad valorem tax is a primary obligation of the owner-lessor in Minnesota. That question was litigated in the Burt case and the court said at page 957 of 170 F.Supp., at page 287 of 145 Ct.Cl.:
16
While the ad valorem tax on the minerals in place is a tax in rem it is a primary obligation of the owner of the land. * * *
17
While the plaintiff offers additional authority in support of this position, the defendant states that it does not question the correctness of the decision on that issue.
18
One more crucial step in setting the background of the present issue was decided in the Burt case and again is not challenged. The court held that the leasehold interest held by the lessee was not a purchase of the property and that the owner of the land remained the owner of the minerals upon which the tax was levied. The court cited as authority for that position State v. Evans, 99 Minn. 220, 108 N.W. 958 (1906), in which the Supreme Court of Minnesota stated, at page 227, at page 960 of 108 N.W.:
19
The propriety of a lease for the purpose of developing and working mines is recognized by all of the cases, and the rule established by the great weight of authority that such leases do not constitute a sale of any part of the land. * * *
20
There is ample support for the conclusion that the plaintiff-lessor in the present case remained the owner of the iron ore upon which the ad valorem taxes were levied and that payment of such taxes was its (lessor's) primary obligation.
21
It is also established that the discharge of a lessor's tax obligation by a lessee under the lease is additional rent and, thus, income to the lessor. Treasury Regulations § 1.162-11 (1958) provides:
22
* * * Taxes paid by a tenant to or for a landlord for business property are additional rent and constitute a deductible item to the tenant and taxable income to the landlord, * * *.
23
This exact provision, as embodied in previous Treasury regulations, was given express approval by the Supreme Court in United States v. Boston and Maine Railroad, 279 U.S. 732, 735, 49 S.Ct. 505, 73 L.Ed. 929 (1929).
24
The only serious challenge defendant now makes to the principle of the Burt case is that this income of the lessor is not "gross income from the property" so as to qualify for the percentage depletion allowance. Sections 611 and 613 of the Internal Revenue Code of 1954 read as follows:
25
SEC. 611. ALLOWANCE OF DEDUCTION FOR DEPLETION
26
(a) General Rule. — In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; * * *.
27
(b) Special Rules. —
28
(1) Leases. — In the case of a lease, the deduction under this section shall be equitaby apportioned between the lessor and lessee.
29
* * * * * *
30
SEC. 613. PERCENTAGE DEPLETION.
31
(a) General Rule. — In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer's taxable income from the property (computed without allowance for depletion). In no case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section.
32
(b) Percentage Depletion Rates. — The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
33
* * * * * *
34
(3) 15 percent — * * * metal mines * * *
35
* * * * * *
36
(c) Definition of Gross Income From Property. — For purposes of this section —
37
(1) Gross income from the property. — The term "gross income from the property" means, in the case of a property other than an oil or gas well, the gross income from mining.
38
Prior to the Burt case, the Internal Revenue Service allowed the lessor and the lessee to apportion amounts paid as ad valorem taxes between them according to their respective interests in the property. Revenue Ruling 16, 1953-1 Cumulative Bulletin 173, pages 175-176, provided:
39
* * * in order to determine the amount of such taxes [ad valorem taxes] paid by the lessee for the account of the lessor it is necessary to ascertain the proportionate values of their respective interests in the property and to use such values as a basis for determining a ratio which is to be used to allocate the taxes between the parties. * * * The ratio may be determined by the Bureau, in case no agreement can be reached between the parties, or, if an agreement thereon is reached between the parties which is considered reasonable by the Bureau, such ratio will be accepted. * * *
40
* * * where ad valorem property taxes are imposed on mineral-bearing lands and the lessee pays the lessor's share of such taxes pursuant to the mineral lease on the land, such payments shall be treated as additional royalties which are excludable from the lessee's gross income and includible in the lessor's depletable gross income * * *. If there is insufficient gross income from production to cover the tax, such payments shall be treated as delay rental, a deductible expense of the lessee and nondepletable income to the lessor.
41
The decision in the Burt case, in essence, rejected the first two provisions of Revenue Ruling 16 and upheld the third provision but held the lessor's share of the taxes to be 100 percent. The court held that the lessee had no interest upon which ad valorem taxes were levied so there could be no apportionment of such taxes for depletion purposes.
42
The Government now agrees that there should be no apportionment though it argued for that very point in defending the Burt case. Revenue Ruling 64-91, 1964-1 Cumulative Bulletin 219, states at page 220:
43
The Service now considers that the wrong issue was presented for decision in the Burt case in that it was conceded that the lessor in that case was entitled to treat a portion of the ad valorem taxes paid by the lessee as gross income from the property subject to the depletion allowance and the case was defended on the basis of the allocation rule provided for in Revenue Ruling 16. Upon further consideration, the Service now agrees with the rejection of the Revenue Ruling 16 position that there should be such an allocation. * * *
44
Defendant now contends that the lessor should not be allowed to claim any portion of the paid taxes as depletable income, stating its principle as follows:
45
In order for an amount to constitute "gross income from mining" its payment must be dependent solely on the production or extraction of the mineral.
46
The basis of this contention is that the lessee is required to pay the ad valorem taxes without regard to any actual production or extraction of the ore. The defendant cites a series of Supreme Court cases for the proposition that a payment must be solely dependent upon actual extraction of the ore before it can qualify for the depletion allowance. This court did not reach that particular issue in the Burt case because it was not raised as a defense. It must now be resolved whether or not the Burt decision can survive this new defense.
47
The Supreme Court has heard many cases dealing with the problem of depletion allowances. One of the earlier cases decided in this area was Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L. Ed. 489 (1933). In that case the taxpayer transferred his rights to some oil lands to a third party in return for a present cash payment and a future cash payment "out of oil produced." The Commissioner refused to allow the taxpayer to claim the depletion allowance on the future payments made out of the oil on the grounds that this conveyance was a sale in which the taxpayer retained no interest in the oil which could suffer depletion. The Supreme Court reversed the Commissioner and allowed the depletion on the grounds that regardless of the name given the conveyance, the taxpayer did have an interest in the oil and his payment was dependent upon an actual depletion of the oil. The Court set forth two principles which it used as guidelines to determine whether a party should be permitted to claim depletion.
48
1. The person must have an interest in the oil or mineral in place.
49
2. The return of that interest must be dependent upon the extraction of the oil.
50
These principles set the stage for later Court decisions on the depletion provisions of subsequent Internal Revenue acts.
51
In another important case, Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277 (1940), the Court reaffirmed its previous position along with some clarification. In that case, Anderson had purchased some oil lands, agreeing to pay $50,000 in cash and $110,000 from one-half of the proceeds derived from oil and gas production or from the sale of any of the land. The vendor also had a lien on the land. At page 408, 60 S.Ct. at page 954, the Court quoting from Helvering v. Elbe Oil Land Co., 303 U.S. 372, 375, 58 S.Ct. 621, 82 L.Ed. 904, said:
52
* * * "The words `gross income from the property,' as used in the statute governing the allowance for depletion, mean gross income received from the operation of the oil and gas wells by one who has a capital investment therein, — not income from the sale of the oil and gas properties themselves."
53
In Anderson v. Helvering, supra, 310 U. S. at page 412, 60 S.Ct. at page 956, the Supreme Court stated:
54
* * * Oklahoma Company [vendor] is not dependent entirely upon the production of oil for the deferred payments; they may be derived from sales of the fee title to the land conveyed. It is clear that payments derived from such sales would not be subject to an allowance for depletion of the oil reserves, for no oil would thereby have been severed from the ground;
55
* * *. We are of opinion that the reservation of this additional type of security for the deferred payments serves to distinguish this case from Thomas v. Perkins [301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324 (1937).] It is similar to the reservation in a lease of oil payment rights together with a personal guarantee by the lessee that such payments shall at all events equal the specified sum. In either case, it is true, some of the payments received may come directly out of the oil produced. But our decision in Thomas v. Perkins does not require that payments reserved to the transferor of oil properties shall for tax purposes be treated distributively, and not as a whole, depending upon the source from which each dollar is derived. An extension of that decision to cover the case at bar would create additional, and in our opinion unnecessary, difficulties to the allocation for income tax purposes of such payments and of the allowance for depletion between transferor and transferee. In the interests of a workable rule, Thomas v. Perkins must not be extended beyond the situation in which, as a matter of substance without regard to formalities of conveyancing, the reserved payments are to be derived solely from the production of oil and gas. * * *
56
In allowing Anderson, the vendee, to claim the entire amount of the depletion, the Court said at page 408, 60 S.Ct. at page 954:
57
* * * The deduction is therefore permitted as an act of grace and is intended as compensation for the capital assets consumed in the production of income through the severance of the minerals. Helvering v. Bankline Oil Co., 303 U.S. 362, 366-367 [58 S.Ct. 616, 82 L.Ed. 897]. The granting of an arbitrary deduction, in the interests of convenience, of a percentage of the gross income derived from the severance of oil and gas, merely emphasizes the underlying theory of the allowance as a tax-free return of the capital consumed in the production of gross income through severance. Helvering v. Twin Bell Oil Syndicate, 293 U.S. 312, 321 [55 S.Ct. 174, 79 L.Ed. 383]; United States v. Dakota-Montana Oil Co., 288 U.S. 459, 467 [53 S.Ct. 435, 77 L.Ed. 893].
58
Both of the above Supreme Court cases involve the sale and not the lease of oil-producing lands but they must be considered as setting the tenor of the Court's attitude toward application of the depletion allowance.
59
The next case, Kirby Petroleum Co. v. Commissioner of Internal Revenue, 326 U.S. 599, 66 S.Ct. 409, 90 L.Ed. 343 (1946), does involve leased property. Kirby Petroleum leased its land to another for 20 percent of the profits from production in addition to its royalties and bonuses. The Commissioner did not allow Kirby to claim depletion on the 20-percent-profit-sharing portion of the income. But, finding that Kirby had an "economic interest" in the property the Court allowed him to claim the deduction, as his only source of payment was from net profit of production.
60
Later in 1946 the high Court again had occasion to consider the rights of lessors and lessees with regard to depletion. In Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 328 U.S. 25, 66 S.Ct. 861, 90 L.Ed. 1062 (1946), the plaintiff had agreed to pay his grantor 50 percent of the proceeds from the oil produced. At page 32 the Supreme Court said, at page 866 of 66 S.Ct., "It seems generally accepted that it is the owner of a capital investment or economic interest in the oil in place who is entitled to the depletion." Continuing, the Court stated at page 34 at page 867 of 66 S.Ct.:
61
* * * Depletion depends only upon production. It is the lessor's, lessee's or transferee's "possibility of profit" from the use of his rights over production, "dependent solely upon the extraction and sale of the oil," which marks an economic interest in the oil. * * *
62
At page 35, at page 867 of 66 S.Ct., the Court remarks, "Obviously there could be no depletion without extraction."
63
In another case, Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), the Supreme Court dealt with another related aspect of this vast and complex area of oil depletion allowances. In that case, Southwest had leased the premises of uplands' owners in order to drill for offshore oil belonging to the state. It was required, by state law in California, that a driller must put his machinery on land removed from the shore and drill on a slant to the oil under the water just offshore. Neither the driller nor the landowner "owned" the oil but the driller had received an easement from the state to remove it. An agreement was reached whereby the landowner was to receive 24½ percent of the net profits from production in return for the use of his land. Southwest claimed depletion on the whole production, but the Court of Claims held that the landowner could claim depletion on his portion of the proceeds. Huntington Beach Co. v. United States, 132 F.Supp. 718, 132 Ct.Cl. 427 (1955) aff'd, 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956).
64
The Supreme Court affirmed the Court of Claims holding that the landowner did have an interest in the oil and he must look to the extraction of that oil for a return of his capital. Although there was no question as to the sole source of income of the landowner, the Court in Commissioner of Internal Revenue v. Southwest Exploration Co., supra, stated at page 314 of 350 U.S., at page 399 of 76 S.Ct.:
65
The second factor has been interpreted to mean that the taxpayer must look solely to the extraction of oil or gas for a return of his capital, and depletion has been denied where the payments were not dependent on production, * * *.
66
While these Supreme Court cases must be considered in determining the Court's general philosophy toward the application of depletion allowances, it must be noted that all of these involve oil production rather than mining, and, more importantly, none of them specifically involve the payment of ad valorem taxes. The case presently before this court involves meshing the concept of ad valorem tax payments into the pattern established by the Supreme Court.
67
While the Internal Revenue Service has floundered from one position to another in applying the depletion provision with regard to lessors and lessees, the Court of Claims attempted in the Burt case to settle the issue as to paid ad valorem taxes. The adoption of that decision, by the Tax Court, in the Higgins case, supra, cloaks the position with considerable authority, and it should be overturned only in the face of very demanding circumstances or obvious error.
68
The court, in the Burt case, relied upon a very fundamental economic argument; that is, that the lessor would have demanded additional percentage payments from the ore production but for the lessee's agreement to pay the taxes, and that the lessee would not have covenanted to pay the taxes without some reasonable expectation that a like amount would return to him through sale of the severed ore. In essence, this argument is that the payment of the taxes is so directly related to actual production of the ore that it is to be treated as such. We have not had to reach the situation where the foregoing economic factors are not present.
69
While it is true that the depletion allowance is considered a matter of grace and should be applied strictly, the Supreme Court said in Commissioner of Internal Revenue v. Southwest Exploration Co., supra, page 315, page 399 of 76 S.Ct. "the tax law deals in economic realities, not legal abstractions, * * *." What are the "economic realities" of the present case?
70
These long-term leases of iron ore deposits in Minnesota have been devised as a means of extracting the ore from the property of the lessor in such a manner that it would be profitable to both the lessor and the lessee. The value of a long-term lease may not be known with any exactness at the time the lease is created, so various methods have been devised to introduce variables into the amount of payment due under the lease in order to protect both the lessor and the lessee. One of these is the payment of a percentage of the royalties to the lessor so that both the lessor's and the lessee's incomes vary directly with production. Another device designed to insure the lessor of an adequate return on his ore is the covenant in these leases for the lessee to pay the ad valorem taxes that may be levied on the property. The amount of these taxes is undetermined when the lease is entered into, so the only way the lessor can be assured of sufficient return to cover his obligations (that is, the taxes) is for the amount of payment for the ore to vary as the taxes vary. It is thus obvious, in an economic sense, that the payment of the ad valorem taxes is an integral part of determining the lessor's return on his ore and is merely an additional method of ascertaining the amount of his income from the ore.
71
The single purpose of the lease, of course, is for production of the ore, and the lessee would hardly subject himself to contractual liability for the ad valorem taxes without a very definite prospect of producing the ore. It must be remembered that the taxes in issue are on the ore alone. It would be unreasonable to assume that the lessor would continue to get the benefits of these payments over a very long period of time in the absence of any prospect of production out of which the lessee could retrieve his payment. The court noted that all of the leases in the Burt case had a 30-day-termination clause. In this case, the leases have a 60-day-termination clause except for the Hawkins Mine which has a 2-year provision. Little business acumen is needed to know that when it appears that further production will not be adequate to cover direct operating expenses and the ad valorem taxes, the lessee will terminate the lease and the obligation for the taxes will revert to the lessor. The conclusion is that the payment of these taxes is sufficiently related to production as to be dependent upon it.
72
In reply, the Government argues that while payment of the taxes may in fact come from production, there is a possibility that they will be paid when there is no production, and, therefore, payment is not dependent solely on production. Undoubtedly that possibility exists, but, as has been shown, it is inconsistent with economic reality. Without production, payment in most instances would be quickly curtailed. The Service has previously made provision for periodic receipt of income from sources other than severance of the mineral without entirely precluding the depletion allowance for those times when the income does actually come from extraction of the ore.
73
In the delay-rent situations, Treasury Regulations § 1.612-3(c) (1) and (2) (1960) provided that where an amount is paid to defer development of the property, which could have been avoided by abandonment of the lease, commencement of development operations or by obtaining production, that amount is in the nature of rent and is ordinary income to the payee (lessor) and not subject to depletion. Once production begins, however, the income is treated as subject to the usual depletion provisions.
74
There is no apparent reason why the ad valorem tax payments cannot be fragmented into annual units to determine whether each is production income or in the nature of a delay-rent. There is no present necessity for determining whether amounts to be received a half century from now will come from production or not. It will be known, when each annual tax report is filed, whether there was sufficient production to cover the payment of the taxes. It is agreed that simplicity in the application of the depletion provisions is desirable but, whenever possible, the court should avoid arriving at unrealistic results in the name of simplicity. The Government itself has chosen the 12-month year as the tax-paying unit. It should, in turn, allow the taxpayer to use a similar unit to determine if he has, in fact, suffered any depletion of his resources.
75
In summary, the economic reality of the situation shows that plaintiff is dependent upon the production of the ore for the return of his capital and therefore payment of the ad valorem taxes should normally be treated as "income from the property" subject to depletion. The difficulty with this result is the dilemma of the Government which becomes apparent in its application.
76
In a controversy initially involving primarily the lessor and the lessee, the Government has become the total loser. The Government has already allowed depletion on the full amount of the ad valorem tax payments apportioned between the lessor and the lessee. If it must now permit the lessor to again claim that amount once claimed by the lessee, the Government is being subjected to a double depletion allowance on that part of the income. Furthermore, the statute of limitations probably precludes the Government from assessing a deficiency against the lessee for an improper deduction (see 26 U.S.C. §§ 1311-1315).
77
However, the Government's loss is of its own making. Failure to collect from the proper source does not give it the authority to collect from another source of its choosing. While it may prove an onerous burden on the Government to refund the taxes wrongfully paid, it must be done.
78
The conclusion we reach is in accord with what we understand to be the original view of the Internal Revenue Service (G.C.M. 26526, 1950-2 C.B. 40), holding that in oil and gas matters a lessee's payment of a lessor's ad valorem tax is "gross income from the property", as well as with the Burt decision and with the Tax Court's ruling in Winifred E. Higgins, supra, 33 T.C. 161 (1959). There are no sufficiently cogent reasons advanced for departing from these authorities and for changing the established law on the subject. Cf. Mississippi River Fuel Corp. v. United States, 314 F.2d 953, 161 Ct.Cl. 237 (1963).
79
Plaintiff conceded, at the oral argument, that there is one mine (involving a lease for the year 1956) in which the ad valorem taxes on the mine for that year exceeded production. Plaintiff has also admitted that it is not entitled to full depletion with respect to those taxes for that lease for that year. There may conceivably be other such instances. It will therefore be necessary to return the case to the trial commissioner for the computation, under Rule 47(c), of the proper amount of refund. Plaintiff is entitled to recover to the extent that the ad valorem taxes with respect to a particular lease for a particular year, when added to the production royalties plaintiff received and the royalty taxes paid on its behalf, do not exceed the proceeds of production under that lease for that year; to the extent of any excess, plaintiff is not entitled to treat such ad valorem taxes as "gross income from the property" within Section 613(a) of the Internal Revenue Code of 1954.1
Notes:
*
The trustees were substituted as successors in interest to the Mississippi Land Company on October 14, 1965, after the report of the trial commissioner had been filed. In the court's opinion and findings the terms "plaintiff" and "taxpayer" refer to the Mississippi Land Company. In the court's conclusion of law the term "plaintiffs" refers to the trustees
**
This opinion incorporates, with minor changes, the opinion prepared, at the direction of the court under Rule 57(a), by Chief Trial Commissioner Marion T. Bennett.
1
Plaintiff's motion to expunge certain portions of the brief of the United States is denied
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Case: 13-60218 Document: 00512534232 Page: 1 Date Filed: 02/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60218
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 17, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MICHAEL LADELL ALLEN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:10-CR-160-3
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Michael Ladell Allen pleaded guilty to one count of conspiring to
distribute and to possess with the intent to distribute cocaine. The presentence
report attributed 160 kilograms of cocaine and 2,400 pounds of marijuana to
Allen, using this drug quantity to determine Allen’s base offense level for
sentencing purposes. After considering testimony put forward at the
sentencing hearing, the district court concurred with this finding. The court
* 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: 13-60218 Document: 00512534232 Page: 2 Date Filed: 02/17/2014
No. 13-60218
imposed a 300-month prison sentence, which was within the advisory
guidelines range, to be followed by a five-year term of supervised release. Allen
challenges that sentence, arguing that the court found him responsible for too
high a quantity of drugs. Where a defendant, like Allen, is convicted of a drug
trafficking crime, his base offense level is determined by the quantity of drugs
involved. See United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009);
U.S.S.G. § 2D1.1(a)(5), (c). We review the district court’s drug quantity
determination for clear error. United States v. Betancourt, 422 F.3d 240, 246
(5th Cir. 2005).
The district court heard detailed testimony from two drug couriers
regarding the amount of drugs they delivered to Allen. They both testified that
Allen used other couriers as well and that Allen was in charge of the
conspiracy’s drug distribution throughout much of Mississippi. Allen faults
the testimony of the couriers on the grounds that they were able only to
estimate the amount of drugs they delivered to him; however, both explained
that they were told the quantity they were transporting, and, in any event, a
district court is permitted to rely on reasonable, reliable estimates of drug
quantities. See id.; § 2D1.1, comment. (n.5). Moreover, though Allen would
have preferred that the district court base its drug quantity determination only
on the amount of drugs that authorities actually recovered, we have explained
that the drug quantity attributable to a defendant is not limited to the amount
of drugs seized. Betancourt, 422 F.3d at 246-47. Allen did not establish that
the information relied on by the district court was materially untrue,
inaccurate, or unreliable. See United States v. Zuniga, 720 F.3d 587, 591 (5th
Cir. 2013). The court committed no clear error in determining the quantity of
drugs that Allen was accountable for.
AFFIRMED.
2
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563 F.3d 184 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Karl A. WHITE, Jr., Defendant-Appellant.
No. 07-2404.
United States Court of Appeals, Sixth Circuit.
Argued: March 6, 2009.
Decided and Filed: April 16, 2009.
*188 ARGUED: Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant. Matthew G. Borgula, United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant. Jennifer L. McManus, United States Attorney, Grand Rapids, Michigan, for Appellee.
Before: KENNEDY, MARTIN, and COLE, Circuit Judges.
OPINION
KENNEDY, Circuit Judge.
Defendant Karl Alan White, Jr. received a life sentence for conspiracy to distribute crack and powder cocaine following a jury trial. All told, the jury found White guilty on seven counts: Count One, conspiracy to distribute cocaine and cocaine base ("crack cocaine"); Counts Two and Five, possession of cocaine base with the intent to distribute; Count Three, carrying a firearm during and in relation to a drug trafficking crime; Counts Four and Six, felon in possession of a firearm; and Count Seven, possession of cocaine with the intent to distribute. On appeal, White argues that he was denied a fair trial as a result of erroneous discovery rulings, erroneous evidentiary rulings, and prosecutorial misconduct, and that the district court erred sentencing him to life in prison. For the following reasons, we affirm White's convictions but reverse his sentence and remand to the district court for re-sentencing in accordance with this opinion.
BACKGROUND
The jury convicted White of participating in a drug conspiracy from 2003 to 2007 in the area of Kalamazoo, Michigan. Much of the evidence of the conspiracy arose out of four specific incidents: (1) the *189 November 21, 2003 traffic stop; (2) the December 28, 2004 traffic stop; (3) the January 1, 2006 search; and (4) the January 22, 2007 drug bust. The government also presented more general evidence of White's drug dealing.
A. November 21, 2003 Traffic Stop
On November 21, 2003, a Kalamazoo police officer stopped a Cadillac Escalade driven by White with a person named Shaquann Branson in the front passenger seat. Branson had crack cocaine on his person which the police discovered. Branson was charged and convicted in state court. The police also searched the vehicle and discovered a loaded Heckler & Koch .40 S & W Caliber semiautomatic pistol and 19.94 grams of crack cocaine in a sock underneath the driver's seat. Count Two arises from the discovery of the crack, and Counts Three and Four arise from the discovery of the gun.
At trial, Branson testified that, in addition to their friendship, White dealt him drugs. Branson started off buying small amounts of crack from White, but by 2005, he was purchasing from White a kilogram of powder cocaine per week, at times, for around $20,000. He purchased from White in this amount during 2005. Branson's girlfriend, Danyelle Sanders, corroborated his testimony by testifying herself to the fact that she accompanied Branson to purchase drugs from White during 2005 and 2006. Branson also testified to White's lavish lifestyle that included a number of expensive vehicles.
B. December 28, 2004 Traffic Stop
On December 28, 2004, after observing a Buick LeSabre involved in a suspected drug deal, a Kalamazoo police officer stopped the LeSabre which was driven by Sharmeka Williams with White in the front passenger seat. On White's person, police found $8,350 in cash. After conducting a search of the vehicle, police found, inside of a duffel bag, rubber bands, a digital scale, and a container with a false bottom which housed 87 grams of crack cocaine. Count Five, possession of crack cocaine with the intent to distribute, arises out of this discovery of drugs.
White explained to officers at the scene that he had such a large sum of money on him in cash because he was a rapper that had several recordings and performed frequently with known artists. At trial, White testified that his only income came from being an unsigned rap artist who sold tracks to other artists, roofing and landscape jobs, and financial aid for college.
Williams testified at trial that she had a relationship with a man named "Tay" with whom she would sometimes swap cars. She would drive his white Mercedes and he would drive her Buick. This suggested that the duffel bag found in the Buick was Tay's, not White's. When asked who might have seen her driving the white Mercedes, Williams stated that Leniya Stafford may have seen her. The prosecution called Stafford in rebuttal, and she testified that she did not know Tay nor had she ever seen Williams driving a white Mercedes.
C. January 1, 2006 Search
On January 1, 2006, a Kalamazoo police officer observed White and Branson leaving the scene of a shooting at a Days Inn. That officer radioed his observation to other officers. Another officer drove to the apartment of Leniya Stafford, White's girlfriend and the mother of their child. White was at Stafford's apartment. Stafford consented to a search of her apartment, whereupon the officer found a loaded Hi-Point Model C9, 9mm semiautomatic pistol in the child's bedroom where White often slept. Count Six, felon *190 in possession of a firearm, comes from the discovery of that gun.
Stafford testified in front of a grand jury and at trial that White put the gun in the dresser drawer where the police discovered it and that White dealt drugs. At a bond revocation hearing prior to trial, Stafford recanted her grand jury testimony and testified that she did not know where the gun came from. When asked about her grand jury testimony at trial, she explained that she feared White because he had threatened, choked, and beat her on multiple occasions. Stafford testified that on one such instance, White took Stafford to Don Sappanos, a lawyer, who had arranged for a polygraph to be administered to determine if Stafford had spoken with the Drug Enforcement Agency ("DEA") about White. Bernard Wogoman also testified that White attempted to contract him to blow up Stafford's garage and car.
D. January 22, 2007 Drug Bust
On January 22, 2007, the DEA arrested Kristinea Vaughn in a drug bust. In the weeks preceding the drug bust, the DEA recorded a series of conversations between White and Larry Tillman, a government informant, which set up the exchange of two kilograms of cocaine for $38,000. At trial, the prosecution introduced taped conversations between Tillman and White that occurred prior to and during the drug transaction at trial. In these conversations, they agreed to meet at a Cracker Barrel in Kalamazoo, but before the deal happened, White told Tillman that he would send a girl instead. White sent Vaughn to meet with Tillman. When the police arrested Vaughn, she was on the phone with White.
Tillman had pleaded guilty to conspiracy to distribute cocaine after police discovered four kilograms of cocaine in his car. He agreed to participate in a sting of White with whom he had a longstanding relationship with as a friend and a person from whom he had bought drugs and to whom he had sold drugs. Tillman testified that from 2003 to 2005, he bought approximately a quarter of a kilogram per week of powder cocaine for between $5,000 and $6,000. In 2005, Tillman had found a cheaper supplier and began to sell to White, in 2005, in the amount of five kilograms for $96,000 on a regular basis. Over a six month period, Tillman sold White $600,000 worth of cocaine. He also testified to White's lavish lifestyle which included a number of cars and up to $400,000 in cash on his person.
ANALYSIS
I. Discovery
White argues that the district court erred in permitting expert testimony from Officers Bagley and Vanderklok regarding tools of the drug trade. Bagley stopped White on November 21, 2003, and Vanderklok stopped White on December 28, 2004. They both testified to tools of the drug trade with regards to the characteristics of the evidence found during their respective stops of White. Rule 16 of the Federal Rules of Criminal Procedure requires that "the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial." The government did not provide notice of either officer's expert testimony. We review the district court's discovery ruling for abuse of discretion. United States v. Quinn, 230 F.3d 862, 866 (6th Cir.2000).
This argument fails because White has not shown prejudice, as testimony regarding tools of the trade has become utterly *191 routine in drug distribution cases, particularly when we review the district court's ruling for abuse of discretion. See id. (arguing that "it is difficult to imagine that [the defendant's] counsel, an experienced attorney, would fail to realize that the government would offer testimony that the amount of crack cocaine found in [the defendant's] car was more consistent with distribution than with possession for personal use"); see also United States v. Thomas, 99 Fed.Appx. 665, 669 (6th Cir. 2004) (unpublished) (citing favorably other circuits for the proposition that "[m]ost courts have taken a very tolerant view of the admissibility of expert testimony linking the presence of firearms to drug trafficking activities"); United States v. Ortega, 150 F.3d 937, 943 (8th Cir.1998) (noting that expert evidence explaining "drug-related activities and paraphernalia" has become "routine in drug cases and has been approved in [the Eighth] [C]ircuit" such that the district court did not abuse its discretion in allowing such expert evidence without proper disclosure by the government).
Two circumstances buttress the conclusion of lack of prejudice here: (1) White's counsel did not ask for a continuance; and (2) White's counsel did not object to the qualifications of the police officers to testify on these issues. In Quinn, we emphasized that a request for a continuance would have suggested that White could have "discredited [the officers'] testimony." 230 F.3d at 866. White's failure to request a continuance suggests his inability to demonstrate that the lack of notice prejudiced his case. Id. Similarly, White never claimed that either officer was unqualified to testify about the tools of the drug trade. During Officer Vanderklok's testimony, White's counsel objected for lack of notice, but never suggested that either Officer Vanderklok or Officer Bagley was unqualified to testify on the topic. The district court noted this by stating in response to White's counsel's objection that "[t]he jury gives [the expert testimony] whatever weight they believe it deserves." In other words, the "surprise" expert testimony of the officers neither left White without recourse to ask for a continuance, nor did it allow un-expert or unreliable information to be placed before the jury. Thus, White has no argument that he was prejudiced.
II. Evidence
We review district court evidentiary rulings for abuse of discretion. United States v. Wagner, 382 F.3d 598, 616 (6th Cir.2004). "Broad discretion is given to district courts in determinations of admissibility based on considerations of relevance and prejudice, and those decisions will not be lightly overruled." Id. (quoting United States v. Jackson-Randolph, 282 F.3d 369, 376 (6th Cir.2002)). "Relevant evidence means having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (quoting Fed.R.Evid. 401) (internal quotations marks omitted).
A. Spoliation
White argues that the district court erred in allowing testimony that Sappanos, a lawyer, assisted White with the obstruction of justice. However, White, in his brief, never identifies why the district court erred in admitting this evidence. Evidence that White attempted to obstruct justice with the help of Sappanos by giving Stafford a polygraph test to see if she snitched on him to the government is admissible to show "consciousness of guilt." United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986).
*192 The evidence that White beat Stafford was admissible to explain Stafford's prior inconsistent testimony. United States v. Smith, 139 Fed.Appx. 681, 686 (6th Cir.2005) (unpublished) (citing United States v. Maddox, 944 F.2d 1223, 1229-30 (6th Cir.1991)). Stafford testified at trial that White choked her after she spoke with the DEA after the January 1, 2006 gun incident in which she told police that a gun found in her home belonged to White. He also told her to refrain from speaking to law enforcement about drugs, set her clothes on fire, threatened her, and beat her on multiple other occasions, once while she was pregnant, and on another occasion so severely that White inflicted permanent damage to Stafford's right eye. In front of the grand jury, Stafford testified that the gun found in her home was Stafford's, and she also testified to White's other drug trafficking activities. At the bond revocation hearing, Stafford recanted her testimony and said that she lied to the grand jury. Stafford testified at trial consistent with her grand jury testimony, explaining that she recanted her testimony because she feared White. The district court did not err in admitting Stafford's testimony of the beatings to allow her to explain why her testimony changed. Maddox, 944 F.2d at 1229-30 (allowing a witness to retake the stand and give new testimony that corrected prior testimony with the explanation that she felt threatened when she perceived that the defendant had mouthed "you're dead" to her while she was on the stand).
B. Direct Evidence of Criminal Activity
White argues that testimony that Sappanos gave White advice on avoiding law enforcement detection was admitted in error. But Sappanos's suggestion that White publicize himself as a rap artist and avoid the use of Nextel phones explains how White went about conducting his drug trafficking business. White was on trial for a drug trafficking conspiracy offense. Therefore, the evidence explaining the way White went about conducting his drug trafficking business to avoid detection was direct evidence of the intent to further a drug trafficking conspiracy that makes his behavior a crime. At the very least, the failure of White to object to the evidence pertaining to the avoidance of law enforcement detection relegates our review to that of plain error, which White cannot demonstrate.
The district court did not abuse its discretion in allowing testimony that White carried firearms on his person for the same reasons. White was charged with two counts of felon in possession of a firearm and one count of carrying a firearm during a drug trafficking crime. The testimony then was direct evidence that White committed crimes for which he was charged. In addition, "[e]vidence of weapons, including firearms, is relevant to proving intent or a conspiracy to distribute drugs." United States v. Wheaton, 517 F.3d 350, 364 (6th Cir.2008) (quoting United States v. Randolph, No. 97-5990, 173 F.3d 857, 1999 WL 98564, at *4 (6th Cir. Jan.27, 1999)).
Finally, the district court did not permit the use of extrinsic evidence to impeach a witness on an irrelevant collateral matter in error when it allowed the government, in rebuttal, to impeach Sharmeka Williams's testimony with testimony from Leniya Stafford. Cf. United States v. Markarian, 967 F.2d 1098, 1102 (6th Cir.1992). On December 28, 2004, the police stopped a Buick and found drugs and tools of the drug trade in a duffel bag. Williams suggested that the bag belonged to a man named Tay with whom she often swapped cars. He would drive her Buick *193 and she would drive his white Mercedes. When asked if anyone had seen her drive the white Mercedes, Williams stated that "it [was] possible" that Stafford had. The government called Stafford to the stand in rebuttal to refute this story. Whether Tay and Williams swapped cars went directly to the question of whether the duffel bag found in the car belonged to Tay or to White. The matter at issue was not an irrelevant collateral matter; rather, it bore directly on White's guilt.
III. Prosecutorial Misconduct
We review prosecutorial misconduct for abuse of discretion. United States v. Rose, 522 F.3d 710, 715 (6th Cir.2008). First, we must determine if the prosecutor's behavior was improper. Id. at 716. If so, "we must determine if the [prosecutor's] remarks were flagrant and warrant reversal." Id. (quoting United States v. Galloway, 316 F.3d 624, 632 (6th Cir.2003)) (internal quotation marks omitted). To determine the flagrancy of the prosecutor's remarks, we look at "(1) whether the statements tended to mislead the jury and prejudice the defendant; (2) whether the statements were isolated or pervasive; (3) whether the statements were deliberately placed before the jury; and (4) whether the evidence against the accused is otherwise strong." Id. (quoting Galloway, 316 F.3d at 632).
White argues that the prosecutor acted improperly in conducting a highly prejudicial cross examination of him at trial. True, the cross-examination was argumentative and contentious. The prosecutor did interrupt White on multiple occasions, but White for his part failed to answer questions posed to him and also answered questions with questions or arguments. White points us to Boyle v. Million, 201 F.3d 711 (6th Cir.2000), for the proposition that "badgering and interrupting a witness, name-calling, predicting that the defendant will lie on the stand, and stating before the jury that the defendant is in need of psychiatric help" amounts to prosecutorial misconduct, id. at 717, and we do not disagree. In contrast to misconduct by the prosecutor there, the prosecutor here did indeed interrupt White on multiple occasions, but he did so because White was not answering the question posed. Standing alone, that does not rise to the level of prosecutorial misconduct.
Otherwise, the prosecutor did not act improperly during his cross-examination of White. He attempted to impeach White by inquiring about basic music-related concepts, because White claimed to support a lavish lifestyle in part based on money earned as a rap artist. A question about the income taxes of White's aunt Debi Brown-Taylor may have been improper, but it was withdrawn after White's objection for lack of foundation. Finally, the questions regarding the Days Inn shooting were relevant to understanding White's role in the shooting and its aftermath.[1]
White argues that the prosecutor also committed reversible error in his closing remarks. Because White did not object to the statements at trial, plain error review applies. United States v. Collins, 78 F.3d 1021, 1039 (6th Cir.1996). Plain error review involves four steps: we determine (1) whether "an error has been made" that is (2) plain and (3) "affects the defendant's substantial rights," and if so, (4) we decide whether to exercise our discretion *194 to correct the error. Rose, 522 F.3d at 716. Reversible error exists "only in exceptional circumstances and only where the error is so plain that the trial judge and prosecutor were derelict in countenancing it." Id. (quoting United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir.1994)) (internal quotation marks omitted).
First, the prosecutor's closing arguments regarding unexplained wealth, in the realm of "millions of millions" of dollars were supported by the evidence.[2] Therefore, the prosecutor did not commit error in making those remarks. Tillman testified that he saw White deal in amounts up to $400,000. The evidence permitted the inference that White had purchased a number of expensive cars. Other witnesses testified that they purchased drugs from White on a regular basis that totaled a significant sum not outside of the realm of millions of dollars. Also, witnesses testified that White would spend thousands of dollars on just one night out partying. The one comment in which the prosecutor committed error was in stating that White had "never paid taxes in [his] life." The parties only stipulated to the fact that White had not paid taxes from 2003 to 2006. That error alone is not enough to constitute reversible error on plain error review where we reverse "only in exceptional circumstances." Id.
Similarly, White points to comments made by the prosecutor which may amount to errorsatisfying step one of plain error reviewbut do not amount to reversible error. White asserts that the prosecutor injected his personal opinion as to the credibility of witnesses during closing argument. On a few separate occasions, the prosecutor called the testimony of White's witnesses "ridiculous" and the prosecutor referred to White's testimony as "offensive." This argument fails because the prosecutor argued the facts primarily, and only punctuated his remarks by calling the stories conjured up by White and his witnesses "ridiculous." In Collins, we determined that far more flagrant personal opinions did not amount to reversible error where the prosecutor commented, inter alia, that "the witnesses must think we drive turnip wagons if they expect you to believe this tale," "when the DLJ witnesses swore to tell the truth they demonstrated from the tales they told that they have a lot of contempt for the people in Kentucky," and "I might deserve an Academy Award for not laughing when defense counsel said the payments were motivated by desire." 78 F.3d at 1039 n. 14. As in Collins, comments by the prosecution were wholly unnecessary, however the errors were harmless as the prosecutor here largely argued the facts presented to the jury, did not "misle[a]d the jury" nor did he "remove the issue of credibility of witnesses from the jury." Id. at 1040.
White argues that the prosecutor shifted the burden of proof during closing argument.[3] White argues that the *195 prosecutor did this by both: (1) arguing that White's defense was not supported by his evidence; and (2) pointing out the failure of White to produce evidence he testified that he had. These arguments fail because the prosecutor is permitted to "summarize the evidence and comment upon both its quantitative and qualitative significance." United States v. Drake, 885 F.2d 323, 324 (6th Cir. 1989). However, the following comment by the prosecution came very close to crossing the line into flagrancy: "What other kind of proof did [White] bring in to establish that he's not a drug dealer?" This "specifically [ ] call[ed] attention to [White's] failure to produce evidence." Id. Were it not for the district court's clear instructions to the jury that the government bears the burden of proof, the jury may have been confused by the prosecutor's closing arguments into believing that the law required White to disprove the government's criminal charges. But before the parties' opening statements, the district court emphasized that White "is presumed innocent and would remain presumed innocent unless you [the jury] found unanimously after deliberating that he was guilty of the count . . . [a]nd therefore, the government has that burden of proving his guilt beyond a reasonable doubt." The district court's final jury instructions, following closing argument and before the jury deliberated on the verdict, reiterated that the "presumption of innocence stays with [White] unless the government presents evidence before you [the jury] here in this courtroom that overcomes that presumption and convinces you beyond a reasonable doubt that he is guilty." Under plain error review, assuming error but not deciding the question, reversible error did not occur because the district court's preliminary and final jury instructions cured any prejudice that the prosecutor's comments may have invited onto White regarding the burden of proof. See, e.g., United States v. Venable, 269 F.3d 1086, 1091 (D.C.Cir.2001).
For the forgoing reasons, we find no reversible error and affirm White's convictions.
*196 IV. Sentencing
White argues that the district court erred in determining the amount of cocaine attributable to him so that his base offense level should be 36, not 38. The amount of cocaine attributable to White as part of the conspiracy is a factual finding that we normally review for clear error. United States v. Samuels, 308 F.3d 662, 670 (6th Cir.2002) (citing United States v. Jenkins, 4 F.3d 1338, 1345-46 (6th Cir. 1993)). However, at sentencing, White only objected to the credibility of the witnesses with regard to quantity. His attorney "agreed that if the testimony that was presented is believed, it greatly exceeds [the 150 kilogram] threshold amount." In other words, White argued at sentencing that the district court ought to disbelieve as exaggerations the amounts to which the witnesses testified. He did not argue that the district court's drug quantity determination lacked foundation in the record or that the drug quantity was otherwise miscalculated even assuming the credibility of the witnesses. The government argues then that we should only review for plain error because the latter argument urged by White is a new argument on appeal. We need not decide this question because the error here satisfies the more stringent plain error review so as to satisfy clear error review as well.
As above, to show a sentence's plain error, White "must satisfy the following criteria: (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant's substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings." United States v. Davis, 397 F.3d 340, 346 (6th Cir.2005) (quoting United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998)) (internal quotation marks omitted).
"A drug quantity need only be established by a preponderance of the evidence, and an estimate will suffice. . . ." United States v. Anderson, 526 F.3d 319, 326 (6th Cir.2008). "[T]estimonial evidence from a coconspirator may be sufficient to determine the amount of drugs for which another coconspirator should be held accountable." United States v. Swanberg, 370 F.3d 622, 625 (6th Cir.2004) (quoting United States v. Hernandez, 227 F.3d 686, 697 (6th Cir.2000)). The drug quantity estimate must "err[ ] on the side of caution and likely underestimate[ ] the quantity of drugs actually attributable to the defendant." Anderson, 526 F.3d at 326. At sentencing, the district court judge here determined that 300 kilograms of cocaine was a conservative estimate, much less the 150 kilograms of cocaine that triggers a base offense level of 38.
Both in its sentencing memorandum,[4] and at sentencing,[5] the government erroneously argued that Tillman had supplied White with five kilograms of cocaine per week for a year and a half. The government used the five kilograms per week for a year and a half to conclude that White's dealings with Tillman alone would amount to approximately 400 kilograms of cocaine (5 kilograms/week x 52 weeks/year *197 x 1.5 years). Again on appeal, the government cites to its sentencing memorandum to argue for the 400 kilograms figure. At trial, Tillman first testified that for a six month period, from June 2005 through November 2005, he sold White 5 kilograms of cocaine per week. On further questioning by the government, Tillman contradicted himself and testified to dealing with White in $100,000-worth of cocaine per month for the same six month periodwhich corresponds with 5 kilograms per month for that six month period. This lesser estimationfive kilograms per month for six months results in only 30 kilograms of cocaine that can be attributed to White through his dealings with Tillman over those six months. None of the parties corrected this misunderstanding. The district court must use conservative estimates in the amount of cocaine it attributes to the defendant as part of its base offense level, which means looking to the correct duration of White and Tillman's dealings and taking the lesser of the two amounts to which Tillman testified. See Anderson, 526 F.3d at 326.
At sentencing, in evaluating the amount of powder cocaine at issue, the district court emphasized its reliance on the dealings between White and Tillman, stating:
Well, this much appears to the Court, and that is that it was abundantly clear throughout this trial . . . that there were considerable amounts of drugs and monies that were coming through and that these monies and drugs were largely revolving around Mr. White and his operation. Mr. Wogoman, Mr. Tillman, extensively Mr. Tillman at great length concerning quantities and amounts, and Kristinea Vaughn's testimony.
First, the district court's language emphasized that it relied heavily on the amount of cocaine transacted between White and Tillman, as it noted the "considerable amounts of drugs and monies" involving "extensively Mr. Tillman at great length concerning quantities and amounts." Second, White dealt with Wogoman and Vaughnthe other two persons whose dealings with White the district court explicitly relied uponat most in amounts of cocaine of five or six kilograms, "three or four" in a deal observed by Wogoman and two attributed to Vaughn. This accounts for a tiny proportion of the 150 kilograms needed to trigger the base offense level of 38 and the 300 kilograms the district court indicated that the evidence supplied by Wogoman, Tillman, and Vaughn supported. To get to 150 kilograms, much less 300 kilograms, the district court then must have relied primarily upon the amount dealt between White and Tillman in far excess of 30 kilograms, the conservative estimate to which Tillman testified. Therefore, error existed in the district court that was plain, in satisfaction of prongs one and two of plain error review.
The error affected White's substantial rights. In other words, the error was prejudicial. Davis, 397 F.3d at 349 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Absent the erroneous Tillman amount, the other amounts of drug dealings explicitly detailed by the government's witnesses, taken togetherand taken conservativelydo not necessarily amount to the 150 kilogram threshold for a base offense level of 38. The government's sentencing memorandum and its brief on appeal cite to testimony from Branson and Ervin Fance,[6] in addition to *198 Tillman's testimony. Branson testified to one kilogram per week for "a couple of months out of 2005," which gives us an estimate of eight kilograms.[7] Fance testified to one kilogram per week from December 2004 until Fall 2006, which gives us an estimate of 91 kilograms. Wogoman testified to seeing a deal for three to four kilograms of cocaine giving a conservative estimate of three kilograms. Tillman's testimony can be construed as having only 30 kilograms sold by Tillman to White from June 2005 through November 2005. In addition, Tillman testified that from some time in 2003 until "the tables turned,"[8] he bought one eighth of a kilogram (equivalent to four and a half ounces) per week from White, which gives us a conservative estimate of 11 kilograms of powder cocaine (estimating the starting point conservatively as September 2003). Upon further questioning from the prosecutor, Tillman agreed with the prosecutor's statement that "from 2003 till June or so of 2005 you bought about a quarter kilo a week from [White]." Similar to the five kilograms per week later in 2005, the government argued that Tillman testified to a quarter of a kilogram per week from 2003 until June 2005, without acknowledging that Tillman had also testified to an eighth of a kilogram per week from 2003 until June 2005. Neither of the parties nor the district court addressed this issue, either, likely because they all mis-perceived that Tillman had clearly testified to drug amounts in the vicinity of 400 kilograms. Finally, the Tillman drug bust involved two kilograms of powder cocaine. Taking the conservative estimates testified to by these witnesses, the drug amount of powder cocaine appears to fall short of the 150 kilogram threshold, weighing in at only 145 kilograms (8 kilograms + 91 kilograms + 3 kilograms + 11 kilograms + 30 kilograms + 2 kilograms).
Finally, we decide to exercise our discretion to remand in this case. On plain error review, an appeals court can deny remand even if an error exists, it is plain, and it affects substantial rights. Id. Federal Rule of Criminal Procedure 52(b) governs plain error review, and it permits remand in the case of plain error, but does not require it. Olano, 507 U.S. at 735, 113 S.Ct. 1770. We decide to exercise our discretion here because White received a life sentence. With a total offense level of 43 and a criminal history category of IV, the Guidelines range is life imprisonment. U.S.S.G. § 5A. A base offense level of 36 rather than 38 would result in a total offense level of 42,[9] which gives a Guidelines range of 360 months' imprisonment to life. White is a young man29 years old. We do not impose a life sentence lightly, and particularly so when the district court has committed prejudicial plain error. Therefore, we choose to exercise our discretion and vacate White's sentence.
Other witnesses testified to drug activity which may permit a greater total or there may be additional testimony from the witnesses listed that indicates a greater amount of powder cocaine at issue which the district court can consider upon resentencing.[10]*199 However, we have identified clear error in the district court's calculation of the drug amounts upon which it appeared to have relied in sentencing. For these reasons, while we affirm White's convictions, we remand to the district court for re-sentencing of the defendant.
NOTES
[1] The prosecutor asked White: "Reinaldo Morales and Shaquann Branson were two of your closest friends, correct?" That question was part of a line of questioning placing White at the scene of the Days Inn shooting.
[2] The prosecutor invoked the statement of "millions of millions of dollars" in the following portion of his closing argument:
Members of the jury, for the last four years this defendant has been flooding west Michigan with cocaine and crack cocaine, putting it out there on the streets. And for the last four days you've heard all the proof of that. What's been going into his pockets? Millions and millions of dollars.
. . . .
And what's been going into his pockets? Like I said, millions and millions of dollars. Duffel bags full of cash. $20,000 at a pop, what honest people make in a year.
[3] White points to the following passage from the prosecutor's closing argument.
What other kind of proof did he bring in to establish that he's not a drug dealer? A guidance counselor who said he makes it to his appointments most of the time, except when he doesn't. A guy who says, I think I sold his cousin a car once. And another guy who says, I helped him put wheels on his car. Can you explain how that proves he's not a drug dealer, that he wasn't talking about what he's obviously talking about on the tape? This whole rap career is completely fabricated.
Think about what's not here, the evidence that's not here that you would expect. If he's making all this money from some legitimate source, where is the documentation? Where are the pay stubs? Where is the paycheck? Anything like that to prove it. Where is the record contract? Doesn't have one. Where is the newspaper man who is helping him set up the DEA for this investigative journalism story? Where are the CDs? If he's got this big rap career and he's been under indictment the whole time waiting for his big day where he's gonna prove his innocence, he didn't think to bring one CD in here to prove to you that he's a rap artist.
You know where the CDs are? They're at his mom's house with the magical part of the tape that proves that he's innocent. Do you recall that? There's a piece of the tape that I have at home, and I can go get it if you wanted me to, that proves that I was never gonna go through with a drug deal. All this time, he didn't bring it, his mom didn't bring it. Oh, my mom's too busy. She's been sitting back here for three days. Your son's on trial for his life and you got the evidence that's gonna prove he's innocent. Aw, shucks. You gonna forget to bring that? Unbelievable the things he'll tell you from the stand.
The fact is the money came from drugs. For four years he has been flooding the streets with drugs, cocaine and crack cocaine. For four years he has been having his way through threats, violence, and intimidation. That's what he's been doing for the last four years.
[4] The government cited to Tillman's testimony for the proposition that: "From June 2005 to November 28, 2006, Tillman was White's supplier, and sold him five kilograms of cocaine per week. Even using conservative estimates, this level of trafficking encompasses well over 400 kilograms of cocaine."
[5] Referring to Tillman's testimony during sentencing, the government stated that "Tillman testified about five kilograms a week for about a year and a half . . . ."
[6] Fance, who was not involved in any of the four specific incidents described in the facts section, testified to drug transactionsthe circumstances of the transactions and the amountshe had with White from 2004 to 2006. He also testified to White's lavish lifestyle and lack of other sources of income.
[7] Branson testified to dealing with White in amounts of powder cocaine less than one kilogram during 2005 but not with any clarity or specificity to allow a conservative estimation of the amount.
[8] Tillman testified that "the tables turned" in June 2005 when he "turned" from buyer to seller in his dealings with White.
[9] White's total offense level with a base offense level of 38 was 44, but any total offense level above 43 is reduced to 43 pursuant to U.S.S.G. § 5A, Application note 2.
[10] Should the district court on re-sentencing choose to sentence White under the crack cocaine amount, its attention is called to the Supreme Court's decisions in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). Both 150 kilograms of powder cocaine and 1.5 kilograms of crack cocaine suffice to trigger the base offense level of 38. At the original sentencing hearing, the district court calculated the drug amount only with respect to powder cocaine which alone sufficed to trigger the 38 base offense level.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 02-1347
v. (District of Colorado)
(D.C. No. 00-CR-260-N)
LAWRENCE ERNEST STROUD,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
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. 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.
I. INTRODUCTION
Defendant Lawrence Stroud (“Stroud”) was convicted by a jury of assault
within the maritime and territorial jurisdiction of the United States, in violation of
18 U.S.C. § 113(a)(6). The district court sentenced Stroud to 96 months’
imprisonment and three years of supervised release. Stroud argues on appeal that
the district court erred in denying his motion to suppress statements made to the
Federal Bureau of Investigation (“FBI”) during its inquiry into the assault.
Stroud also contends that the district court erred in allowing the government to
impeach a defense witness with the witness’ mental health history. Exercising
jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms. The statement
Stroud challenges as involuntary was made prior to any allegedly misleading
comment by FBI investigators concerning the sentencing guidelines. In addition,
even if the district court erred in admitting impeachment testimony concerning the
mental health history of a witness, the error was harmless.
II. BACKGROUND
Stroud was an inmate at the Federal Correctional Institution (“FCI”) in
Englewood, Colorado. On May 4, 2000, Stroud got into an argument with his
cellmate, Marlo Pittman (“Pittman”), over Pittman smoking a cigar in their cell.
Stroud testified that when he asked Pittman and two other inmates to “take the
-2-
cigar elsewhere,” Pittman and the two inmates lifted their shirts so that Stroud
could see the homemade knives or “shanks” placed in their waistbands.
Stroud testified that early the next morning, he heated water in the
microwave in order to make coffee. He stated that upon returning to his cell,
Pittman confronted him with a knife and made threatening statements. In
response, Stroud threw the cup of hot water at Pittman.
In contrast, Pittman testified that he was sleeping at the time of the incident
and did not confront Stroud. He stated that he woke up in pain with Stroud
swinging at him. Stroud then chased Pittman to the bathroom area. Pittman
stated that Stroud continued to swing at him and landed a blow just before
officers restrained Stroud. Pittman testified that he returned to his cell and,
shortly thereafter, an officer noticed that he had been burned. Pittman was treated
by a physician’s assistant at FCI and was then transferred to a hospital for
medical treatment. Pittman suffered partial thickness burns on the right side of
his face, his shoulders, the right side of his neck, and his left arm.
During an investigation of the incident, two FBI agents interviewed Stroud
in a large conference room located in a facility at the FCI separate from where
Stroud was housed. Agent James Berry (“Agent Berry”) had Stroud read aloud
from the Miranda rights advisement form. Stroud refused to sign the form but
agreed to talk with the agents and stated that he did not require an attorney.
-3-
During the interview, Stroud explained what had taken place on May 4, 2000.
Specifically, as Agent Berry’s report noted:
Stroud stated that he felt scared and threatened
after the confrontation with Pittman, [and the
other two inmates]. He began thinking of ways to
get out of the situation, and felt that some sort of
retaliation against Pittman would be necessary;
thereby preventing Pittman from injuring him.
Stroud advised that if he voluntarily went to the
Segregated Housing Unit (SHU) he would be
considered a “snitch.” Stroud stated that the
retaliation “Had to be bad enough so I or the other
person never hit the compound.” In addition,
Stroud stated “I had to have a way out without
killing somebody,” and “Could put dirt on myself
and get out unscathed.”
After describing the events that occurred on the evening before the early
morning incident, Stroud declined to further discuss the matter. At that point,
Agent Berry stated that acceptance of responsibility could potentially benefit
Stroud at sentencing. Agent Berry mentioned the possible reduction in order to
obtain specific details concerning Pittman’s injuries. Stroud refused to provide
further details about the incident, except to mention that he intended to hit
Pittman in front of officers so that he could be placed in the Segregated Housing
Unit (“SHU”).
On June 21, 2000, Stroud was indicted on one count of assault within the
maritime and territorial jurisdiction of the United States. Prior to trial, Stroud
filed a motion to suppress the statements made to FBI agents during the assault
-4-
investigation on the basis that his statements were not voluntary. In support, he
claims he did not sign the Miranda rights advisement form and the interrogation
atmosphere was coercive. The district court denied Stroud’s motion to suppress.
The court found Stroud’s statements to be mostly exculpatory and noted that
Stroud was not admitting to causing or having knowledge about Pittman’s
injuries. The court also found Agent Berry’s statements to Stroud concerning the
acceptance of responsibility sentencing adjustment were misleading. The court,
however, determined that Stroud did not “give in and tell the agent the whole
story.” The court concluded that Stroud was given the Miranda warning and that
his statements were voluntary.
On February 11, 2002, Stroud was tried before a jury. At trial, Stroud
called Samuel Robinson (“Robinson”), a fellow inmate in the SHU, as a defense
witness. During cross-examination, the government asked whether Robinson had
past mental problems. Stroud objected and noted that “[t]here ha[d] been no
suggestion [Robinson was] not competent to testify.” The district court overruled
Stroud’s objection. Robinson then testified about his prior hospitalizations for
depression and his current and past medications for manic depression and
depression. Robinson also stated that an evaluation revealed that he did not
suffer from diminished capacity.
-5-
The jury found Stroud guilty on the assault charge. The district court
sentenced him to 96 months’ imprisonment with three years of supervised release.
III. DISCUSSION
A. Voluntariness of Statements
Stroud alleges that the district court erred in denying his motion to suppress
the statements made to the FBI because such statements were involuntarily made.
This court reviews the voluntariness of incriminating statements de novo. United
States v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991). Underlying factual
findings by the district court, however, are subject to review under the clearly
erroneous standard. United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999).
In an appeal of the district court’s denial of the defendant’s motion to suppress,
this court reviews the evidence in the light most favorable to the government.
Short, 947 F.2d at 1449.
To determine whether the defendant’s statements were voluntarily made,
this court must “examine the entire record and make an independent determination
of the ultimate issue of voluntariness.” Lugo, 170 F.3d at 1004. Voluntariness is
determined from the totality of the circumstances. Clanton v. Cooper, 129 F.3d
1147, 1158 (10th Cir. 1997). This court examines several factors, including:
(1) the defendant’s age, intelligence, and education;
(2) the length of the detention and interrogation; (3)
the length and nature of the questioning; (4) whether
the defendant was advised of his constitutional
-6-
rights; and (5) whether the defendant was subjected
to or threatened with any physical punishment.
Lugo, 170 F.3d at 1004. “No single factor is determinative.” Id.
Upon reviewing the record and giving the appropriate deference to the
district court’s factual findings, this court concludes that Stroud’s statements were
voluntary. At the time of the interview, Stroud was not “unusually susceptible to
coercion” because of his age, intelligence, or education. Id. In fact, Stroud was
over thirty years old, had received his GED, and had prior experience with the
criminal justice system. In addition, the interview took place at the FCI where
Stroud was serving a separate term of imprisonment. Although he was
handcuffed and shackled during the interview, Stroud was placed in the handcuffs
and shackles in order to transport him to a more accommodating interview room
within the institution. The interview was short in duration, lasting no more than
45 minutes. Also, Stroud concedes on appeal that he was properly advised of his
Miranda rights during the interview. Moreover, Stroud’s refusal to sign the
waiver form while orally agreeing to speak with the agents in the absence of an
attorney does not weaken the Miranda advisement. See id. at 1004-05 (noting
that a defendant’s waiver of Miranda rights is not invalidated because the waiver
is oral rather than written). Finally, Stroud was not subjected to physical
punishment during the interview.
-7-
Stroud, however, argues that the statements obtained during the interview
were the result of coercion or deception because the interviewing FBI agent
misled him about the availability of the acceptance of responsibility sentence
reduction. “Incriminating statements obtained by government acts, threats, or
promises that permit the defendant’s will to be overborne are coerced confessions
running afoul of the Fifth Amendment and are inadmissible at trial as evidence of
guilt.” Short, 947 F.2d at 1449. Specifically, a promise of leniency made in
exchange for an inculpatory statement is a “product of inducement, and thus not
an act of free will.” Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993)
(quotation omitted).
The district court determined that the interviewing FBI agent’s comments
concerning the acceptance of responsibility and implication that the defendant
would receive the reduction in exchange for speaking was “a misleading thing for
the agent to do.” The district court also noted that, despite the agent’s error, the
defendant refrained from speaking about the assault.
Similarly, this court concludes that Stroud was not subject to coercion
because the statements that he challenges were made prior to any reference to the
acceptance of responsibility reduction. See United States v. Glover, 104 F.3d
1570, 1580 (10th Cir. 1997) (concluding in part that because the government’s
promise of leniency occurred after the interview, the defendant’s will was not
-8-
overborne and her confession was voluntary). Although the agent implied that
Stroud’s sentence could be impacted by explaining what happened to Pittman on
the morning of the assault, Stroud neither discussed the assault nor provided any
details about the events that unfolded that morning. Thus, there was no exchange
of a promise of leniency for Stroud’s incriminating statements; he was not
induced to speak. Moreover, the jury was instructed that they could disregard any
statement that was not knowingly made. Because the statements were voluntary
and were not coerced, 1 the district court did not err in denying Stroud’s motion to
suppress.
B. Impeachment Testimony
Stroud contends that the district court abused its discretion by permitting
the government to inquire into the mental health history of Robinson on cross-
examination. This court reviews the district court’s determination to permit the
impeachment of a witness based upon his mental health history for abuse of
discretion. See United States v. Butt, 955 F.2d 77, 84 (1st Cir. 1992). “An
evidentiary ruling will be overturned on appeal only if the abuse of discretion
suggests an arbitrary, capricious, whimsical, or manifestly unreasonable
judgment.” United States v. Hinkle, 37 F.3d 576, 579 (10th Cir. 1994)
1
Because we conclude that Stroud’s statements to the FBI were voluntarily
made and not coerced, it is not necessary for this court to address whether the
statements were exculpatory or inculpatory.
-9-
(quotations omitted). Unless Stroud’s substantial rights were affected, however,
the district court’s decision to admit the impeachment evidence was harmless.
United States v. Charley, 189 F.3d 1251, 1270 (10th Cir. 1999). An error
affecting the substantial rights of a defendant is one that has a "substantial
influence on the outcome or which leaves one in grave doubt as to whether it had
such effect." Id. (quotations omitted).
Stroud argues that there was no evidence suggesting Robinson’s mental
problems affected his ability to perceive or recall events or to testify accurately.
He also asserts that questions concerning Robinson’s mental condition were not
relevant to his credibility. After review of the record, this court concludes that
the district court’s admission of Robinson’s impeachment testimony did not
substantially influence the outcome or leave this court in grave doubt that the
jury’s verdict would have differed had the district court precluded the government
from questioning Robinson about his mental health history. Although Robinson
was asked about his current and past medications and prior hospitalizations, he
also explained on both cross-examination and redirect examination that his mental
condition did not affect his ability to perceive events and that a formal evaluation
acknowledged that he did not suffer from a diminished capacity. Furthermore,
there was other evidence which made the attempted impeachment less likely to
have had a substantial influence on the jury verdict, namely that Stroud admitted
-10-
to throwing the hot water at Pittman, that no weapon was discovered after the
incident took place, and that there was corroborating testimony from the treating
physician that Pittman was laying down when the water was thrown on him.
Moreover, the jury was instructed that they were “the sole judges of the
believability of the witnesses and the weight their testimony deserves” and thus
could have disregarded the impeachment testimony. See United States v. Moore,
923 F.2d 910, 913 (1st Cir. 1991) (noting that the question of whether mental
health interferes with a witness’ ability to perceive or recall events or to testify
accurately is within the province of the jury); see also Fed. R. Evid. 601 advisory
committee’s note (stating that mental incapacity goes to the weight and credibility
of the witness).
In sum, this court need not decide whether the district court abused its
discretion in allowing the government to inquire about Robinson’s mental health
history because any error was harmless.
IV. CONCLUSION
Based upon the foregoing reasons, this court AFFIRMS Stroud’s
conviction.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-11-
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729 F.Supp.2d 1358 (2010)
In re: H & R BLOCK, INC., WAGE AND HOUR EMPLOYMENT PRACTICES LITIGATION
Lance Hom, et al. v. H & R Block, Inc., et al., S.D. California, C.A. No. 3:10-476
Barbara Petroski, et al. v. H & R Block, Inc., et al., W.D. Missouri, C.A. No. 4:10-75.
MDL No. 2178.
United States Judicial Panel on Multidistrict Litigation.
August 6, 2010.
Before JOHN G. HEYBURN II, Chairman, ROBERT L. MILLER, JR., KATHRYN H. VRATIL, DAVID R. HANSEN, W. ROYAL FURGESON, JR., FRANK C. DAMRELL, JR. and BARBARA S. JONES, Judges of the Panel.
ORDER DENYING TRANSFER
JOHN G. HEYBURN II, Chairman.
Before the entire Panel: This litigation currently consists of one action in the Southern District of California and one action in the Western District of Missouri.[1] Defendant H & R Block, Inc., and its related entities[2] (collectively H & R Block) move, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of this litigation in the Western District of Missouri. Plaintiffs in the Western District of Missouri action support the motion. Plaintiffs in the Southern *1359 District of California action and the Western District of New York related action do not oppose the motion, but also propose the Southern District of California as an alternative choice for transferee district. These plaintiffs also acknowledge that centralization under Section 1407 may not be warranted in light of recent Panel precedent.
On the basis of the papers filed and hearing session held, we are not persuaded that Section 1407 centralization would serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation. Plaintiffs in the three pending actions claim that H & R Block violated the Fair Labor Standards Act, and in some instances, similar state laws by failing to compensate tax preparers for time spent taking required training. As the litigation stands now, only three actions are pending, and plaintiffs in two of the three actions share counsel. Given these circumstances, we are not convinced that centralization under Section 1407 is necessary to achieve efficiencies in pretrial proceedings at this time. Instead, counsel in these actions can avail themselves of alternatives to transfer that may minimize whatever possibilities there are of duplicative discovery and/or inconsistent pretrial rulings. See, e.g., In re Eli Lilly and Co. (Cephalexin Monohydrate) Patent Litigation, 446 F.Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex Litigation, Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion for transfer, pursuant to 28 U.S.C. § 1407, is denied.
NOTES
[1] The parties have notified the Panel of a related action pending in the Western District of New York. The plaintiff initially brought her claims in the Southern District of California action but has since voluntarily dismissed her claims from that action and filed them in W.D. New York.
[2] H & R Block Group, Inc., H & R Block Tax Services, Inc., H & R Block Enterprises LLC, H & R Block Enterprises, Inc., and H & R Block Eastern Enterprises, Inc.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 97-1953EA
_____________
Lawrence E. Tolerson, *
*
Appellant, * On Appeal from the
* United States District
v. * Court for the Eastern
* District of Arkansas.
Auburn Steel Company, Inc., *
* [To be published.]
Appellee. *
___________
Submitted: November 21, 1997
Filed: December 4, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and BEAM, Circuit Judges.
___________
PER CURIAM.
This is an action under Title VII in which the plaintiff, Lawrence
E. Tolerson, claims that the defendant, Auburn Steel Company, doing
business as Arkansas Steel Associates, discharged him on account of his
race.
The District Court1 granted the defendant’s motion for summary
judgment and dismissed the complaint. Tolerson appeals. Having read the
briefs and heard oral argument, we are satisfied that no error of law has
been committed. We have nothing of substance to add to the thorough and
soundly reasoned opinion of the District Court, and we do not believe that
a more extended opinion on our part would have substantial precedential
value. Accordingly, the judgment is
Affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Hon. Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
-2-
| {
"pile_set_name": "FreeLaw"
} |
William L. LUCAS, Plaintiff-Appellant,
v.
W.W. GRAINGER, INC., Defendant-Appellee.
No. 00-14323.
United States Court of Appeals,
Eleventh Circuit.
July 17, 2001.
Appeal from the United States District Court for the Northern District of Georgia. (No. 97-03837-CV-CAP-
1), Charles A. Pannell, Jr., Judge.
Before CARNES, COX and NOONAN*, Circuit Judges.
CARNES, Circuit Judge:
William Lucas appeals the district court's grant of summary judgment in favor of W.W. Grainger,
Inc. on his claims under the Americans with Disabilities Act. He contends the district court erred in
concluding that he was not disabled within the meaning of the statute. He also contends the district court
erred in concluding Grainger did not unlawfully retaliate against him for engaging in statutorily protected
expression. On our way to affirming the district court's judgment, we address a number of issues about what
constitutes reasonable accommodation and a few relating to retaliation.
BACKGROUND
Grainger is an industrial commercial supply company that distributes maintenance, repair, and
operating products from warehouses that it operates throughout the United States. On May 22, 1993,
Grainger hired the plaintiff, William Lucas, to work as a Material Handler at its Marietta Boulevard facility
in Atlanta.
Though Lucas was hired as a Material Handler, he began training for the position of Will-Call Service
Representative soon after he was hired. Like Material Handler, the Will-Call job consists primarily of
performing physical labor in Grainger's warehouse. However, unlike Material Handler, the Will-Call job also
involves a significant amount of interaction with Grainger's customers, and it is considered a promotion from
Material Handler. Grainger describes the job duties of a Will-Call Service Representative as follows:
When a customer places an order with a Customer Service Representative, a purchase order is
delivered to the Will-Call Service Representative, who picks [up] and delivers the product from the
*
Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
warehouse ... to the customer upon the customer's arrival at the branch. Will-Call Service
Representatives ... are also required to work in the warehouse on a daily basis, which includes
performing such functions as receiving freight, stocking products, pulling orders, loading outbound
trailers, and performing maintenance activities in the warehouse. The essential functions ... include,
among other things, bending, stooping, climbing, carrying, reaching, pushing, pulling, lifting up to
seventy pounds on a regular basis, and operating power equipment. Lifting more than ten pounds
is an essential function....
Lucas trained for the Will-Call job for several months after he was hired, although his actual job title
remained Material Handler. By April of 1994, though, Grainger needed someone to handle customer
telephone calls at the Marietta Boulevard facility, and it decided to train Lucas for the job of Customer
Service Representative instead. The Customer Service Representative position is essentially a desk job, and
Lucas trained for it by performing duties such as taking orders from customers over the phone, and filling out
paperwork. The job is considered a promotion from both Material Handler and Will-Call Service
Representative.
Lucas performed primarily Customer Service Representative duties for much of 1994. During that
time, several customers complained about his phone demeanor. For example, one customer complained to
Grainger that Lucas had spoken to him in a degrading fashion and that customer said he would not do
business with Grainger as long as Lucas was answering the phone. Due to the complaints, Grainger decided
Lucas was not cut out to be a Customer Service Representative, and moved him back to working in the
warehouse, where he had less customer contact than he had during his training for the Customer Service
Representative job.
On October 15, 1994, Grainger officially promoted Lucas to the position of Will-Call Service
Representative, and he held that title during the remainder of his employment with Grainger.
In May of 1996 Lucas injured his back while unloading a trailer. After seeing a doctor about the
injury, he told his boss, Paul Stewart, who worked as the Branch Manager at the Marietta Boulevard facility,
that his doctor had placed him on complete bed rest. Lucas also told Stewart that he would be unable to
return to work until June 3, 1996 and that, upon returning to work, he would have to abide by certain work
restrictions, including lifting no more than ten pounds and refraining from repetitive bending or stooping for
two weeks.
Stewart promptly placed Lucas on short-term medical leave, and informed him that when he returned
to work Grainger would try to temporarily assign him to duties that did not interfere with his work
restrictions. Stewart also told Lucas that he would eventually have to return to his Will-Call job, and
reminded him that, due to previous customer complaints, Grainger would not assign him to a Customer
Service Representative position on a regular basis.
On June 12, 1996, Lucas returned to work and presented a note from his doctor to Grainger. The note
permitted Lucas to perform office work, i.e., work that did not entail manual labor, so long as he adhered to
certain work restrictions. At the time, there were no openings at the Marietta Boulevard facility for office
jobs, so Stewart temporarily displaced two employees from their jobs in order to allow Lucas to take over
their office duties. The displaced employees performed the warehouse duties that Lucas would have
performed as a Will-Call Service Representative, while Lucas performed office duties exclusively.
On June 20, 1996, Lucas informed Grainger that he had developed degenerative disk disease and
lumbar disk syndrome in his back. The next day, while he was performing his temporary office duties, Lucas
told a manager at Grainger that he could barely keep his eyes open and felt "knotted up inside." Lucas left
work early that day, and he did not return for several days.
When he returned to work on June 26, 1996, Lucas made a request to Stewart for an accommodation
in the form of a permanent job that entailed "desk work." This was the first time Lucas requested an
accommodation for his back impairment from Grainger, although he subsequently made the same request on
at least one other occasion. At that time there were no desk jobs available at the Marietta Boulevard facility,
so Stewart inquired into job openings at Grainger's other Atlanta facilities. Eventually, Stewart was able to
arrange three job interviews for Lucas. The three positions, which all existed outside of the Marietta
Boulevard facility, were Quotations Specialist, Branch Support Specialist, and Support Specialist for
Grainger's Lockheed account. Lucas testified in his deposition that he applied for these three positions
because he was under the impression that they did not require physical labor.
Lucas interviewed for each of the three positions, but he was not selected to fill any of them.
According to Grainger, Lucas either was not qualified or was not the most qualified person who applied for
each one. The individuals who interviewed and evaluated Lucas for the positions did not consider his work
restrictions in deciding not to select him.
Around July 8, 1996, Lucas notified Stewart that his doctor had yet to release him from his work
restrictions, and that the doctor had recommended he permanently perform "light duty" work in order to avoid
further injuring his back. Lucas also informed Stewart that he would never work in the warehouse again,
even if he became physically able to do so, because he was afraid it might further injure his back. Stewart
responded by reminding Lucas that his office assignment was temporary and that no permanent office jobs
were available at the Marietta Boulevard facility.
Four days later Lucas informed Stewart that his back impairment had not improved and said that he
could not and would not perform warehouse work. Grainger then placed Lucas on workers' compensation
leave effective July 15, 1996, and Lucas began receiving workers' compensation benefits. On January 8,
1997, Lucas filed a discrimination charge with the Equal Employment Opportunity Commission.
Lucas remained on workers' compensation leave for nearly one year. Then, in June of 1997, Grainger
offered him a job as a Bins Sorter at its Zone Distribution Center ("Distribution Center") in Atlanta. Grainger
had created the Bins Sorter position by identifying certain duties from existing jobs at the Distribution Center,
and combining those duties into a job that Grainger felt Lucas could perform given his work restrictions. The
Bins Sorter job entailed sorting small bin items from a cart and placing them on racks, as well as using a scan
gun to identify the items by bar code.
Lucas visited the Distribution Center in order to learn more about the Bins Sorter job first-hand.
Thereafter, Grainger sent a typed form entitled "Job Description" to Lucas' physician, Dr. Christopher Clare.
The form briefly described what it called the "Essential Job Functions" of the Bins Sorter position, listed the
job's physical requirements, and indicated that modifications to those requirements were possible.
Dr. Clare made some changes to the Essential Job Functions part of the Job Description form. First,
where the form indicated that a Bins Sorter was "occasionally" required to squat or kneel, Dr. Clare entered
"Not at all." Second, where the form indicated that a Bins Sorter was "occasionally" required to lift or carry
"up to 40-50 lbs.," and was "frequently" required to lift or carry "up to 10-25 lbs.," he again entered "Not at
all." Dr. Clare then checked a blank space marked "Approved" at the bottom of the form, signed the form,
and returned it to Grainger in September of 1997.
The district court found that by making these changes to the Job Description form, Dr. Clare
approved Lucas for the Bins Sorter position with minor modifications that were consistent with the job's
essential functions. Lucas, on the other hand, claims Dr. Clare rejected the Bins Sorter job because its
minimum requirements exceeded his work restrictions. He also claims that sometime after he visited the
Distribution Center, Dr. Clare's office called and informed him that he had not been approved for the Bins
Sorter position.
Grainger did not offer Dr. Clare's modified version of the Bins Sorter position to Lucas. In fact, after
Lucas visited the Distribution Center, he and Grainger had no further contact regarding the Bins Sorter
position or any other position. Lucas maintains that he would have accepted the modified Bins Sorter
position if Grainger had offered it to him.
Lucas never returned to work with Grainger after he went on workers' compensation leave; instead,
in March of 1998 he began working for a different company as an admissions inspector.
On December 29, 1997, Lucas sued Grainger in the Northern District of Georgia, alleging that
Grainger had violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by
discriminating against him on the basis of his impairment, by harassing him1, and by unlawfully retaliating
against him. Lucas sought back pay, declaratory relief, reinstatement, front pay in lieu of reinstatement, and
compensatory and punitive damages.
Grainger responded by filing a motion for summary judgment, which the district court granted on
July 14, 2000. The court concluded that Lucas was not "disabled" within the meaning of the ADA and,
therefore, could not establish a prima facie case for discrimination or for harassment. As for Lucas' claim of
unlawful retaliation, the court determined that he had failed to establish a causal link between a statutorily
protected expression and any of Grainger's alleged adverse employment actions. Accordingly, the district
court dismissed all of Lucas' claims and entered summary judgment in favor of Grainger.
DISCUSSION
We review the district court's grant of summary judgment de novo, and apply the same standards as
that court. See Blake v. American Airlines, Inc., 245 F.3d 1213, 1215 (11th Cir.2001).
A. LUCAS' ADA DISCRIMINATION CLAIM
The ADA prohibits an employer from discriminating against "a qualified individual with a disability
because of the disability of such individual in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges
of employment." 42 U.S.C. § 12112(a). In order to establish a prima facie case of discrimination under the
ADA, the plaintiff must show that: (1) he is disabled; (2) he was a "qualified individual" at the relevant time,
meaning he could perform the essential functions of the job in question with or without reasonable
accommodations; and (3) he was discriminated against because of his disability. See Reed v. Heil Co., 206
F.3d 1055, 1061 (11th Cir.2000).
An employer unlawfully discriminates against a qualified individual with a disability when the
employer fails to provide "reasonable accommodations" for the disability—unless doing so would impose
1
Lucas has abandoned his unlawful harassment claim by not raising it in his initial brief on appeal.
See, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317 n. 17 (11th Cir.1999).
undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). An accommodation
can qualify as "reasonable," and thus be required by the ADA, only if it enables the employee to perform the
essential functions of the job. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998).
The plaintiff bears the burden of identifying an accommodation, and of demonstrating that the
accommodation allows him to perform the job's essential functions. See Stewart v. Happy Herman's Cheshire
Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997); Willis v. Conopco, Inc., 108 F.3d 282, 283 (11th
Cir.1997).
The ADA lists as examples of reasonable accommodations "job restructuring, part-time or modified
work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ...
and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B); see 29 C.F.R.
§ 1630.2(o)(2)(ii). As the list indicates, the ADA may require the employer to "reassign," i.e., transfer, the
disabled employee to a vacant position as a reasonable accommodation. The reassignment duty, however,
does not require the employer to bump another employee from a position in order to accommodate a disabled
employee. See Willis, 108 F.3d at 284. Nor does it require the employer to promote a disabled employee.
See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir.2000); Cravens v. Blue Cross & Blue
Shield, 214 F.3d 1011, 1019 (8th Cir.2000); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.1998);
Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.1996); see also Terrell v. USAir, 132 F.3d 621, 626 (11th
Cir.1998) (citing White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir.1995)); 29 C.F.R. pt. 1630, App. §
1630.2(o) ("It should also be noted that an employer is not required to promote an individual with a disability
as an accommodation.").
The district court determined that Lucas had not established a triable issue as to whether he was
disabled, and granted summary judgment in favor of Grainger on his discrimination claim. We need not
decide whether the district court properly resolved that issue if there is another basis for affirming its
judgment, because we may affirm its judgment "on any ground that finds support in the record." Jaffke v.
Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957); see Stewart, 117 F.3d at 1286.
Assuming, without deciding, that Lucas' back impairment rendered him disabled, the district court's grant of
summary judgment is still due to be affirmed, because Lucas has failed to put forth evidence sufficient for
a reasonable jury to find that Grainger discriminated against him because of his disability.
Lucas contends that Grainger discriminated against him by failing to reasonably accommodate his
disability. According to Lucas, the ADA required Grainger to accommodate his disability by doing one of
the following: (1) reassigning him to a Customer Service Representative position at the Marietta Boulevard
facility; (2) giving him one of the three positions for which he interviewed; (3) reassigning him to the
Distribution Representative position at the Distribution Center; or (4) restructuring the Bins Sorter position
in accordance with Dr. Clare's changes on the Job Description form and offering him that position.2
1. The Customer Service Representative Position
Lucas contends that Grainger discriminated by not reassigning him to the Customer Service
Representative position at the Marietta Boulevard facility. We find no merit to this argument, because even
if we assume (as we probably should not) that Lucas was otherwise qualified to perform the duties of that
position notwithstanding the prior customer complaints about his lack of interpersonal skills, there were no
vacancies in that position, or in any other position involving desk work, at the Marietta Boulevard facility.
Indeed, the lack of vacancies there is what prompted Stewart to set up interviews for Lucas at Grainger's other
Atlanta facilities. Because there was no vacancy at the Marietta Boulevard facility for Customer Service
Representative, reassigning Lucas to that position would have required Grainger to bump another employee
from it, and that is not required by the ADA.3 See Willis, 108 F.3d at 284.
Even if there had been an opening for Customer Service Representative at the Marietta Boulevard
facility, Grainger would not have been required under the ADA to reassign Lucas to that position. Customer
Service Representative is a step up from Material Handler and from Will-Call Service Representative; it
2
Lucas contends that Grainger failed to engage him in an "interactive process" with the aim of
identifying an accommodation that might allow him to continue working at Grainger after he became
disabled. See 29 C.F.R. § 1620.2(o)(3). However, "where a plaintiff cannot demonstrate 'reasonable
accommodation,' the employer's lack of investigation into reasonable accommodation is unimportant."
See Willis, 108 F.3d at 285 (citation omitted); accord Kennedy v. Dresser Rand Co., 193 F.3d 120, 122
(2d Cir.1999) (summary judgment is appropriate where the plaintiff fails to identify a reasonable
accommodation that the defendant refused to provide). In other words, regardless of whether the ADA
required Grainger to engage Lucas in an interactive process, Lucas' discrimination claims fail unless he
can show that an accommodation reasonably could have been made. The ADA is not intended "to punish
employers for behaving callously if, in fact, no accommodation for the employee's disability could
reasonably have been made." Willis, 108 F.3d at 285.
3
The record reveals that when Stewart provided Lucas with a temporary office position in June of
1996, which was just before Lucas first requested to be accommodated with a permanent desk job,
Stewart displaced two other employees from their office duties and had them perform Lucas' Will-Call
job duties. That was more than the ADA required. Good deeds ought not be punished, and an employer
who goes beyond the demands of the law to help a disabled employee incurs no legal obligation to
continue doing so. See Terrell, 132 F.3d at 626 n. 6 ("An employer that bends over backwards to
accommodate a disabled worker ... must not be punished for its generosity by being deemed to have
conceded the reasonableness of so far-reaching an accommodation.") (internal marks and citation
omitted).
would have been a promotion for Lucas. The ADA does not mandate that employers promote disabled
employees in order to accommodate them, see, e.g., Humiston-Keeling, 227 F.3d at 1029, so Grainger's failure
to reassign Lucas to that job was not discrimination under the ADA.
2. The Three Positions for Which Lucas Interviewed
Lucas next contends that Grainger discriminated against him by not reassigning him to one of the
three positions he interviewed for in June and July of 1996. He insists that there is a genuine issue of material
fact as to whether he was qualified to do those jobs. Be that as it may, as we have already explained, the
ADA does not require an employer to promote a disabled employee in order to accommodate him. The
individuals who interviewed Lucas for the three jobs, as well as Stewart, all testified that the jobs would have
been promotions from the Will-Call Service Representative position, and Lucas offered no evidence to the
contrary. Therefore, Grainger did not discriminate against Lucas by failing to reassign him to one of the three
positions for which he interviewed.4
3. The Distribution Representative Job
Lucas also contends that Grainger discriminated against him by not reassigning him to the
Distribution Representative position at the Distribution Center.5 That position became vacant sometime in
the summer of 1996, when the person who held it was promoted to Branch Support Specialist, which was one
of the jobs Lucas had interviewed for but had not gotten. Gary Powers, who managed the Distribution
4
Grainger's motion for summary judgment characterized the three positions as "alternative
employment opportunities that were reasonably available...." Lucas maintains that, "as a matter of
policy," Grainger's characterization of the three positions in its summary judgment motion ought to
preclude it from arguing on appeal that placing him in those positions was not required under the ADA.
But Grainger's characterization of the positions simply acknowledges that they were "reasonably
available" in the sense that there was a vacancy in each one, and it does not speak to the issue of whether
a promotion of Lucas to any of those three positions was an accommodation Grainger was required to
provide under the ADA.
5
Lucas also argues that Grainger was required under the ADA to reassign him to several other
positions that were available at the Distribution Center, but he does not identify any of them. Instead, he
cites in his brief to the deposition testimony of Gary Powers, who managed the Distribution Center.
Powers testified that he was "sure" there were "several positions" open at the Distribution Center in the
summer of 1996, including "warehousing, night crew, receiving, picking, [and] packing," and that the
majority of those jobs were part-time. This testimony, which consists solely of Powers' speculation
regarding the existence of vacant positions at the Distribution Center, falls far short of the evidence
needed to establish that a specific reasonable accommodation, in the form of a vacant position, actually
existed at the Distribution Center. See Willis, 108 F.3d at 286 ("[E]stablishing that a reasonable
accommodation exists is a part of an ADA plaintiff's case."). Further, Lucas offered no evidence that he
was "otherwise qualified" for those unidentified jobs; he put forward no evidence that he could have
performed the essential functions of whatever jobs there were with or without reasonable accommodation.
See 42 U.S.C. § 12111(8).
Center, testified in his deposition that the Distribution Representative job involved "some office duties ... as
well as ... performing some of the duties on the packing station line," including "[p]reparing orders for
shipment, [and] so forth." According to Powers, the job required physical labor.
In order to have survived Grainger's motion for summary judgment on his discrimination claim,
Lucas must have put forth evidence sufficient for a jury to find that he was "a qualified individual with a
disability"—i.e., that he was "otherwise qualified" for the Distribution Representative job. See Stewart, 117
F.3d at 1285; Duckett v. Dunlop Tire Corp., 120 F.3d at 1222, 1225 (11th Cir.1997). He was "otherwise
qualified" for that job if he could perform its essential functions with or without reasonable accommodation.
See 42 U.S.C. § 12111(8) ("The term 'qualified individual with a disability' means an individual with a
disability who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires."); Davis v. Fla. Power & Light Co., 205 F.3d
1301, 1305 (11th Cir.2000). Our first task is to identify the essential functions of the Distribution
Representative job.
Essential functions are "the fundamental job duties of the employment position the [disabled
employee] holds or desires." 29 C.F.R. § 1630.2(n)(1). Determining whether a particular job duty is an
essential function involves a factual inquiry to be conducted on a case-by-case basis. See Davis, 205 F.3d
at 1305. We have previously stated that, in conducting this inquiry, "consideration shall be given to the
employer's judgment ... and if an employer has prepared a written description ... for the job, this description
shall be considered evidence of the essential functions of the job." Earl v. Mervyns, Inc., 207 F.3d 1361,
1365 (11th Cir.2000) (quoting 42 U.S.C. § 12111(8)); see also 29 C.F.R. § 1630.2(n) (listing additional
factors to consider in determining whether a particular job function is essential).
The evidence establishes without dispute that performing some of the duties on the packing station
line, which includes preparing orders for shipment, is one of the essential functions of the Distribution
Representative job. Performing those duties requires physical labor.6 Lucas has failed to show he was
"otherwise qualified" for the Distribution Representative position, because he has not satisfied his burden of
6
In his brief, Lucas insists that physical labor is not essential to performing the duties of the
Distribution Representative position, but he has failed to provide any evidence in support of that
argument, and Granger has put in evidence to the contrary. See Martinson v. Kinney Shoe Corp., 104
F.3d 683, 687 (4th Cir.1997) (adopting employer's judgment of essential function where plaintiff did not
offer any evidence at the summary judgment stage to contradict that judgment); Milton v. Scrivner, Inc.,
53 F.3d 1118, 1124 (10th Cir.1995) (same).
putting forth evidence that he could, with or without reasonable accommodation, perform the essential
function of engaging in the physical labor necessary to prepare orders for shipment on the packing line. Not
only that, but there is a bushel basket of evidence to the contrary: (1) in June of 1996 Lucas requested to be
accommodated with a permanent desk job because he felt he was unable to perform physical labor in
Grainger's warehouse due to his back injury; (2) Lucas testified in his deposition that he applied for the three
jobs that Stewart had set up interviews for in June and July of 1996 because those jobs "didn't require physical
labor"; (3) in July of 1996 Lucas informed Stewart that he would never work in Grainger's warehouse
again—even if he became physically able to do so—because he did not want to risk further injury to his back;
and (4) in September of 1997, Dr. Clare, Lucas' physician, modified the Job Description form for the Bins
Sorter position to eliminate the duties of squatting, kneeling, lifting, and carrying because he felt that Lucas
could not perform those duties with his back impairment. Viewing all of this evidence in the light most
favorable to Lucas, we conclude that he has not created a triable issue about whether he was "otherwise
qualified" for the Distribution Representative position.7 See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m);
Duckett, 120 F.3d at 1225; Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir.1999) ("The law in this
area is crystal clear: an otherwise qualified person is one who is able to meet all of the [job's] requirements
in spite of his handicap.") (internal marks and citation omitted).
4. The Bins Sorter Position
Finally, Lucas contends that Grainger should have restructured the Bins Sorter position and offered
it to him. He correctly points out that "job restructuring" is an accommodation the ADA may require the
employer to make in some cases, see 42 U.S.C. § 12111(9)(B); but job restructuring is required only where
it is reasonable, see Terrell, 132 F.3d at 626. Lucas says that if Grainger had restructured the Bins Sorter
position in accordance with the changes Dr. Clare entered on the Job Description form, and had offered him
that job, he would have accepted it.
An accommodation is "reasonable" and necessary under the ADA only if it enables the employee
to perform the essential functions of the job. See LaChance, 146 F.3d at 835; Willis, 108 F.3d at 284. The
7
Powers did testify that he believed there was "a possibility" Lucas was "minimally qualified" for the
Distribution Representative job. Putting aside questions about the insubstantiality of a mere "possibility,"
the context in which this statement was made shows that Powers was talking about whether Lucas had
developed the requisite job skills and experience to perform the Distribution Representative job, not
whether he could physically withstand the demands of the job and thereby perform all of its essential
functions with or without reasonable accommodation.
essential functions of the Bins Sorter position are described on the Job Description form that Grainger sent
to Dr. Clare. The form states that the position's "Essential Job Functions" include sorting items from a cart
and placing them on racks. According to the form, those functions required "occasionally"—meaning from
1 to 3 hours per shift—lifting or carrying items that weigh up to 40 to 50 pounds, as well as squatting or
kneeling, and "frequently"—meaning from 4 to 6 hours per shift—lifting or carrying items that weigh up to
10 to 25 pounds. In Dr. Clare's opinion, Lucas' back impairment precluded him from doing any of those
things, which is why Dr. Clare struck squatting, kneeling, lifting, and carrying from the list of job functions
or activities on the form. But those were essential functions of the Bins Sorter position.
While it is true that the ADA may require an employer to restructure a particular job by altering or
eliminating some of its marginal functions, employers are not required to transform the position into another
one by eliminating functions that are essential to the nature of the job as it exists. See Earl, 207 F.3d at 1367;
Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir.1997); Wells v. Shalala, 228 F.3d 1137, 1145
(10th Cir.2000); Donahue v. Consolidated Rail Corp., 224 F.3d 226, 232 (3d Cir.2000); Lloyd v. Hardin
County, 207 F.3d 1080, 1084 (8th Cir.2000); Robertson v. Neuromedical Ctr., 161 F.3d 292, 295-96 (5th
Cir.1998); Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir.1991). The difference between the accommodation
that is required and the transformation that is not is the difference between saddling a camel and removing
its hump. Restructuring the Bins Sorter position by eliminating squatting, bending, lifting, or carrying bin
items would have changed the nature of the beast, and that is not something the ADA requires.8
B. LUCAS' ADA RETALIATION CLAIM
The district court also granted summary judgment in favor of Grainger on Lucas' ADA retaliation
claim. The ADA provides that "[n]o person shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge ....
8
Lucas also contends that the ADA required Grainger to restructure his Will-Call Service
Representative job as a reasonable accommodation. See 42 U.S.C. § 12111(9)(B) (listing "job
restructuring" as a possible reasonable accommodation). He maintains that Grainger could have
restructured that job by, for example, instituting "reasonable physical lifting restrictions." However,
performing physical labor in Grainger's warehouse was an essential—indeed the core—function of the
Will-Call job, and Lucas either could not or would not perform that function. Lucas told Stewart that he
would never work in the warehouse again, even if he became physically able to do so, because he did not
want to risk further injuring his back. When asked in his deposition whether there was anything Grainger
could have done after he injured his back to help him perform his warehouse duties, Lucas answered
"no." Lucas either could not or would not perform the essential functions of the Will-Call Service
Representative job and, therefore, he was not "otherwise qualified" to do it. See 42 U.S.C. § 12111(8);
29 C.F.R. § 1630.2(m).
under [the ADA]." 42 U.S.C. § 12203(a). In order to establish a prima facie case of retaliation, Lucas must
show that: (1) he engaged in a statutorily protected expression; (2) he suffered an adverse employment
action; and (3) there was a causal link between the adverse action and his protected expression. See Farley
v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999); Stewart, 117 F.3d at 1287.
Lucas claims that he engaged in a statutorily protected expression on June 26, 1996, when he asked
Stewart for an accommodation in the form of desk work and, again, on January 8, 1997, when he filed a
charge with the EEOC. Moving straight to the second element of a prima facie case of retaliation, we
conclude that Lucas has failed to produce sufficient evidence to permit a reasonable jury to find that Grainger
took an adverse employment action against him.
Lucas maintains that Grainger took an adverse action against him when Stewart "actively solicited
negative performance memoranda from several of ... Lucas' co-workers." In August of 1996, after Grainger
had placed Lucas on workers' compensation leave, Stewart and two other members of Grainger's management
at the Marietta Boulevard facility submitted evaluations to Lucas' employee file that were critical of his
customer service skills.
An employment action is considered "adverse" only if it results in some tangible, negative effect on
the plaintiff's employment. Here, the negative performance evaluations did not result in any effect on Lucas'
employment with Grainger. Grainger did not rely on the evaluations to make any employment decisions
regarding Lucas. Indeed, Lucas concedes in his brief to us that "Stewart did not use [the evaluations]; he
merely placed them in [my] file." And Stewart testified in his deposition that he "simply wanted something
in the file" to support his position that Lucas was not qualified to be a Customer Service Representative.
Negative performance evaluations, standing alone, do not constitute adverse employment action sufficient
to satisfy the second element of a prima facie case of retaliation under the ADA.9 See Silk v. City of Chicago,
194 F.3d 788, 802-03 (7th Cir.1999) (concluding that the plaintiff's ADA retaliation claim fails because "he
provided no evidence that any injury or adverse employment action resulted from the allegedly lower ratings
[in his performance evaluations]."); Cossette v. Minn. Power & Light., 188 F.3d 964, 972 (8th Cir.1999)
("[T]he negative evaluation does not by itself constitute an adverse employment action within the ADA's
contemplation."); see generally Davis v. Town of Lake Park, 245 F.3d 1232, 1241 (11th Cir.2001) ("[C]ourts
9
Lucas also contends that Stewart took an adverse employment action against him by harassing him
and by threatening his job. However, he does not point to any evidence in support of that contention.
are wisely reluctant to treat job performance memoranda as actionable under Title VII where they do not
trigger any more tangible form of adverse action such as a loss in benefits, ineligibility for promotional
opportunities, or more formal discipline.").
Lucas also contends that Grainger took adverse action against him by failing to reasonably
accommodate him, by refusing to maintain him on light duty work, and by failing to engage him in an
interactive process. But this contention merely reclothes Lucas' ADA discrimination claim, which we have
already rejected, and it fares no better in this garb. See Stewart, 117 F.3d at 1288 ("[T]he acts Stewart
describes relate directly to her 'reasonable accommodation' discrimination claim, not her retaliation claim,
and accordingly provide no basis for denying summary judgment on this issue.").
AFFIRMED.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 16 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
M.J. BEJCEK,
Plaintiff-Appellant,
v. No. 00-5232
(D.C. No. 99-CV-605-M)
LARRY G. MASSANARI, * Acting (N.D. Okla.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT **
Before EBEL , KELLY , and LUCERO , Circuit Judges.
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
*
On March 29, 2001, Larry G. Massanari became the Acting Commissioner
of Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff appeals a district court order affirming the Commissioner’s
decision denying her Social Security disability benefits. 1
She claims the
Administrative Law Judge (ALJ) erred in determining she was able to perform her
past work and denying her claim at Step 4 of the sequential decision making
process. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988)
(describing sequential process). At Step 4, the burden is on the claimant to
establish that her impairment has rendered her unable to perform her past relevant
work. See Henrie v. U.S. Dep’t of Health & Human Servs. , 13 F.3d 359, 360
(10th Cir. 1993). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g). “We review the Commissioner’s decision to determine whether it is
supported by substantial evidence and whether correct legal standards were
applied.” Qualls v. Apfel , 206 F.3d 1368, 1371 (10th Cir. 2000). Substantial
evidence is more than a scintilla; rather it is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Glass v.
Shalala , 43 F.3d 1392, 1395 (10th Cir. 1994) (further quotation omitted).
1
The parties consented to proceed with this action before a United States
magistrate judge under 28 U.S.C. § 636(c)(1), (3).
-2-
Plaintiff stopped working in June of 1996. She initially alleged disability
as of 1989, but the ALJ determined that more recent earnings established she
became reinsured as of July 1, 1996. Thus, her application was considered from
that date forward; the date is not contested.
Although the record contains considerable evidence covering numerous
medical conditions and complaints, all detailed at some length by the ALJ,
plaintiff challenges only the determination, based on claimed difficulties using
her hands, that she could return to her past accounting work. See Appellant’s Br.
at 6-7. We have carefully reviewed the record, the decision of the ALJ and the
order of the magistrate judge, and conclude there is substantial evidence to
support the Commissioner’s determination.
In addition, our scope of review is limited to those issues plaintiff has
properly preserved in the district court and adequately presented on appeal. Berna
v. Chater , 101 F.3d 631, 632 (10th Cir. 1996). “Absent compelling reasons, we
do not consider arguments that were not presented to the district court.” Crow v.
Shalala , 40 F.3d 323, 324 (10th Cir. 1994).
Here, plaintiff claims the ALJ failed to adequately satisfy the requirements
of Winfrey v. Chater , 92 F.3d 1017 (10th Cir. 1996), in determining that she
could return to her past relevant work. However, our local rules require that
“[f]or each issue raised on appeal, all briefs must cite the precise reference in the
-3-
record where the issue was raised and ruled on.” 10th Cir. R. 28.2(C)(2).
Plaintiff has not included in her appendix her district court brief, nor, indeed,
does she claim to have raised the issue below. More significantly, the magistrate
judge did not address this argument in what appears to be an otherwise
comprehensive review of the ALJ’s decision. Accordingly, we can only assume
that the issue was not raised below and is therefore not entitled to our
consideration. See Crow , 40 F.3d at 324.
Accordingly, for substantially the reasons stated by the magistrate judge,
the judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-
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627 So.2d 1148 (1993)
A.W.M.
v.
STATE.
CR 92-88.
Court of Criminal Appeals of Alabama.
May 28, 1993.
*1149 Joe W. Morgan, Jr., Birmingham, for appellant.
James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
This is an appeal from the order of the Juvenile Court of Jefferson County directing the transfer of a 16-year-old, A.W.M.,[1] to circuit court for prosecution as an adult for his participation in "aiding and abetting" in the capital murder/robbery of William R. Wesson at Bill's Farmhouse Restaurant in Hueytown, Alabama.
I.
A.W.M. argues that his three custodial statements to the police were involuntary because there was no compliance with Rule 11(A)(4), A.R.Juv.P., which provides:
"When [a] child is taken into custody, he must be informed of the following rights by the person taking him into custody:
"....
"(4) if his counsel, parent, or guardian is not present, that he has a right to communicate with them, and that, if necessary, reasonable means will be provided for him to do so."
There was conflicting evidence on whether the requirements of Rule 11(A) were satisfied. The appellant testified in his own behalf at the hearing on the motion to suppress. His testimony directly conflicted with the testimony of the police officers to the extent that either the officers perjured themselves or the appellant did.
"`[W]here, on the issue of the voluntariness of a confession, evidence offered by the defendant conflicts with that offered by the State, it creates a question of fact for the trial judge.'" O.M. v. State, 595 So.2d 514, 523 (Ala.Cr.App.1991), cert. quashed, 595 So.2d 528 (Ala.1992).
"In determining whether a confession is voluntary, the trial court's finding of voluntariness need only be supported by a preponderance of the evidence.... The trial court's decision will not be disturbed on appeal unless it is manifestly contrary to the great weight of the evidence....
"We note that the trial judge, as the finder of fact, determined the credibility of the witnesses. The trial court's determination regarding credibility of witnesses is entitled to great weight on appeal....
"....
"... `"Where the evidence of voluntariness is conflicting, and even where there is credible testimony to the contrary, the trial judge's finding of voluntariness must be *1150 upheld unless palpably contrary to the weight of the evidence."` Carr v. State, 545 So.2d 820, 824 (Ala.Crim.App.1989) (other citations omitted)."
Dixon v. State, 588 So.2d 903, 907-08 (Ala. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 904, 116 L.Ed.2d 805 (1992). "When there is conflicting evidence of the circumstances surrounding an incriminating statement or a confession, it is the duty of the trial judge to determine its admissibility, and if the trial judge decides it is admissible his decision will not be disturbed on appeal `unless found to be manifestly contrary to the great weight of the evidence.'" Ex parte Matthews, 601 So.2d 52, 53 (Ala.), cert. denied, ___ U.S. ___, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992).
The officers testified that A.W.M. voluntarily waived his right to talk to a lawyer or his parents before any questioning. There is evidence that he was advised of his "juvenile Miranda rights" before each of the three times he was questioned. Specifically, in connection with Rule 11(A)(4), A.W.M. was advised: "You have the right to talk to your lawyer, parent or guardian before questioning, if you wish." CR. 6, 9, 21. On the one "juvenile rights waiver" form signed by A.W.M., there appears the statement: "Having these rights in mind, I wish to make a voluntary statement and answer any questions without contacting a lawyer, my parent(s), my guardian(s), or having one present." CR. 21.
A.W.M. contends that he was never fully informed of his rights because he was never advised that "if necessary, reasonable means [would] be provided" for him to talk to his parents. There is no contention made that A.W.M. desired the presence of his parents but did not have a means to either contact them or have them brought to him.
We apply the same principles to Rule 11 as we do to the Miranda[2] rights. Ex parte Whisenant, 466 So.2d 1006, 1007 (Ala.1985).
"We have never insisted that Miranda warnings be given in the exact form described in that decision. In Miranda itself, the Court said that `[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.' 384 U.S., at 476 [86 S.Ct. at 1629] (emphasis added).... In California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981), we stated that `the "rigidity" of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant,' and that `no talismanic incantation [is] required to satisfy its strictures.' Id. [453], at 359, 101 S.Ct., at 2809."
Duckworth v. Eagan, 492 U.S. 195, 202-03, 109 S.Ct. 2875, 2879, 106 L.Ed.2d 166 (1989) (footnote omitted). "[T]here is no one singularly correct form of Miranda." United States v. Harrell, 894 F.2d 120, 125 (5th Cir.), cert. denied, 498 U.S. 834, 111 S.Ct. 101, 112 L.Ed.2d 72 (1990). While we do not endorse this abbreviated version of Rule 11(A)(4) used in this case, "we do not believe that it diluted the substance of the warning" under the circumstances of this case. United States v. Cruz, 910 F.2d 1072, 1079 (3d Cir. 1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991). Here, the rights of which A.W.M. was informed sufficiently conveyed the rights to which he was entitled under Rule 11(A)(4).
II.
The appellant claims that the juvenile court should have required the disclosure of the identity of the "confidential informant" from whom the police initially obtained information that the appellant was involved in the charged offense. The appellant claims that he is entitled to discover the identity of the informant in order to prepare his defense and because there was no probable cause for his arrest.
The evidence shows that after the police had obtained information from a citizen, two officers met with the citizen who showed them were some of the juveniles lived. The next day, the police went to the high school the appellant was attending, told someone in authority that they needed to talk to the appellant, and questioned the appellant in the *1151 principal's office at the school, after obtaining a waiver from the appellant of his constitutional rights. The testimony indicates that the citizen's tip provided the police with reasonable suspicion to question the appellant. R. 253, 254, 282. The police obtained the probable cause to arrest the appellant based on the appellant's own statement. R. 264.
Specifically, Fairfield Police Detective Reuben Wilkerson testified that on the night or afternoon of June 22, 1992, he "received a phone call from a person that told me they knew about the Bill's Farmhouse robbery." R. 355-56. Wilkerson met with that person later that same date and then telephoned the Hueytown Police Department. He then met with Hueytown Police Sergeant Jim Rice and the person who had telephoned him earlier. Sergeant Rice and Hueytown Police Officer Joe Johnson went to the school the next day and interviewed the appellant in a school office (either the principal's office or an advisor's office, R. 584). Officer Johnson testified that he advised the appellant "of his rights and asked him if he wanted to call his parents." R. 584. The appellant waived his rights and indicated that he did not want to telephone his parents. He "first denied it and very shortly he admitted his involvement." R. 589.
The prosecutor represented to the juvenile court that "[b]asically what we have here is a citizen's tip.... We're not talking about any information received from a CI." R. 252-53, and that the citizen-informer was not present at the scene of the crime. R. 246. The juvenile judge examined Sgt. Rice in camera concerning the informant. However, he permitted no record of that examination. R. 257-59.
It is reasonably clear to this Court that there was a sufficient restraint of the appellant by a "show of authority" so that a seizure of the appellant had occurred when he entered the office in the school where the questioning took place. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). An informant's tip may justify a Terry stop, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), when the informant is known and reliable, see Ex parte Carpenter, 592 So.2d 627 (Ala.1991), or even when the informant is anonymous, provided that the anonymous tip is corroborated by independent police work, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
"[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion." United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). Under Terry, "investigative seizures are permissible when based on a reasonable, articulable suspicion that a person has committed a crime. While under detention, a suspect may be asked (but need not answer) questions to determine his identity and to obtain information about the officer's suspicion." United States v. Arcobasso, 882 F.2d 1304, 1306 (8th Cir.1989).
Reasonable suspicion sufficient to justify a Terry stop is
"a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factorsquantity and qualityare considered in the `totality of the circumstancesthe whole picture,' United States v. Cortez, 449 U.S. 411, 417 [101 S.Ct. 690, 695, 66 L.Ed.2d 621] (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable."
Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416 (emphasis added).
Because the juvenile court judge examined Sgt. Rice in camera and permitted no record *1152 of that examination, this Court cannot determine whether the reasonable suspicion standard was met. We know neither the content nor the degree of reliability of the information possessed by the police prior to the appellant's detention and questioning.
We therefore remand the probable cause phase of the juvenile court's order with directions that the juvenile judge reconstruct his in camera examination of Sgt. Rice and provide this court with a record or summary of that examination on return to remand. The juvenile court shall take the necessary action to see that the clerk makes due return to this court at the earliest possible time and within 60 days of the release of this opinion.
III.
A.W.M. contends that the juvenile court abused its discretion in ordering his transfer by placing an inordinate amount of significance upon the nature of the alleged offense and by underemphasizing the other factors which should have been considered.
This Court reviews the dispositional phase of a juvenile court's transfer order under the "clear and convincing evidence" standard rather than the "abuse of discretion" standard. O.M. v. State, 595 So.2d 514, 526 (Ala.Cr.App.1991), cert. quashed, 595 So.2d 528 (Ala.1992). "`[A]n appellate court must find, within the record, clear and convincing evidence in order to affirm a juvenile court's determination at the disposition hearing that it is in the best interest of the child or the public to transfer the child for criminal prosecution.'" D.D.P. v. State, 595 So.2d 528, 536 (Ala.Cr.App.1991) (quoting Ex parte J.R., 582 So.2d 444, 449 (Ala.) (Kennedy, J., dissenting from the quashing of a writ of certiorari), cert. denied, ___ U.S. ___, 112 S.Ct. 122, 116 L.Ed.2d 90 (1991)).
The decision to transfer a juvenile for prosecution as an adult may not be based solely on the nature of the offense.
"[I]t is improper for a juvenile court to transfer a juvenile to the circuit court based solely on the nature of the offense itself. The juvenile court should look to the facts underlying the offense in order to determine whether a transfer is warranted. The seriousness of the offense alone does not establish that a juvenile is not susceptible to rehabilitation in the juvenile court system."
Ex parte J.D.G., 604 So.2d 378, 384 (Ala. 1992) (Kennedy, J., dissenting from the quashing of a writ of certiorari) (emphasis in original). See also Ex parte Farrell, 591 So.2d 444, 449 (Ala.1991) ("a criminal charge in and of itself cannot be used as the sole basis for properly denying a petition for youthful offender status") (emphasis deleted). Instead, the juvenile court should examine the facts underlying the alleged offense and the circumstances surrounding the juvenile's participation in that offense, along with the other five factors of Ala.Code 1975, § 12-15-34(d). N.D.T. v. State, 592 So.2d 647, 650 (Ala.Cr.App.1991); J.S.A. v. State, 615 So.2d 1288 (Ala.Cr.App.1993).
The order of transfer reflects that the juvenile court considered each of the six factors of (Ala.Code 1975, § 12-15-34(d).
"Evidence of the following and other relevant factors shall be considered in determining whether the motion [to transfer] shall be granted:
"(1) The nature of the present alleged offense;
"(2) The extent and nature of the child's prior delinquency record;
"(3) The nature of past treatment efforts and the nature of the child's response to such efforts;
"(4) Demeanor;
"(5) The extent and nature of the child's physical and mental maturity;
"(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline."
The State presented evidence that Mr. Wesson was killed on the evening of May 15, 1992, at the Farm House Restaurant by a single gunshot wound to the back during the commission of a robbery. The robbery was committed by A.W.M. and four other juveniles[3].
*1153 In his first statement of June 23, 1992, A.W.M. stated that four of his high school classmates arrived at his residence in an automobile and "asked [him] to ride with them" CR. 9; that he knew about the planned robbery "[f]rom the time that they picked me up from my house" CR. 17; and that N.W. and D.H. went inside the restaurant and that he, R.J., and J.W. remained in the automobile. There was other testimony that the appellant was "riding around" with the four other juveniles for approximately three and one-half hours before the robbery. There was evidence that Mr. Wesson was shot while lying face down on the floor. In addition, there was some testimony that J.L.W. had been employed at the Farmhouse Restaurant and had had a dispute with the owner earlier in the day. There was other evidence that three of the juveniles went inside the restaurant while two remained in the automobile.
In his second statement of that same date, A.W.M. admitted that he went inside the restaurant with N.W. and D.H., that he was armed with a .25 caliber firearm, that D.H. carried a shotgun, that they were wearing stocking masks, that he and D.H. "ran around to the cash register and asked for the money.... [W]e grabbed the money and left." CR. 6. In neither statement was A.W.M. asked who shot Mr. Wesson. In a statement to the police, N.W. admitted shooting Mr. Wesson, although he later claimed it was accidental. R. 375. There was testimony that the appellant and D.H. obtained the automobile used in the robbery by "renting" a car from a high school classmate for $50.
The "probation services report in compliance with section 5-129(e) Alabama Juvenile Code" addresses the six factors of § 12-15-34.
"THE NATURE OF THE ALLEGED OFFENSE [§ 12-15-34(d)(1)]:
"It is alleged that on or about May 15, 1992, said A.W.M. did aid and abet N.W., who in the course of committing a robbery, did cause the death of William Wesson by shooting him with a pistol."
"THE EXTENT AND NATURE OF THE CHILD'S PRIOR DELINQUENCY RECORD [§ 12-15-34(D)(2)]:
"Said youth has no prior record."
"THE NATURE OF PAST TREATMENT EFFORTS AND THE NATURE OF THE CHILD'S RESPONSE TO SUCH EFFORTS [§ 12-15-34(d)(3)]:
"There have been no past treatment efforts."
"DEMEANOR [§ 12-15-34(d)(4)]:
"A.W.M. was mannerable and cooperative during interview; which, although not uncommon behavior for a detained youth, seemed genuine. There have been no negative reports regarding him while detained. A.W.M. attended Ensley High School and was enrolled in summer school up to the time of being detained. A.W.M.'s grades are fair to goodwith low scores in Geometry and Science and high scores in Concert Band, ROTC and History. It appears that youth is capable of better grades. He had over 20 absences 9 excused. He was suspended twiceonce for fighting. A.W.M. was employed two summers with Burger King in California. He received very positive reports from his supervisor regarding his work ethic, reliability, and personality. A.W.M.'s parents and stepparents seems to be very active and supportive in his life. He tested negative for drugs. A.W.M. denied gang involvement but reported interest in pledging a high school frat."
"THE EXTENT AND NATURE OF THE CHILD'S PHYSICAL AND MENTAL MATURITY [§ 12-15-34(d)(5)]:
"A.W.M. is a 15-year-old black male. He is approximately 5'9" tall and weighs approximately 150 pounds. He appears to be both physically and mentally mature for his age (See attached psychological evaluation)."
"THE INTEREST OF THE COMMUNITY AND OF THE CHILD REQUIRING THAT THE CHILD BE PLACED UNDER LEGAL RESTRAINT OR DISCIPLINE [§ 12-15-34(d)(6)]:
*1154 "It is feasible that youth may respond positively toward treatment in the juvenile system. It is also indicated that he has the parental support to enhance a positive respond [sic]. However, due to the nature of said offense and in the interest of the community, it is the recommendation of probation services that said youth be transferred to stand trial as an adult." CR. 40-41.
Under the "recommendations" portion of the psychological evaluation report appears the following:
"Technically speaking, A.W.M. is able to stand trial as an adult. He fully understands the charge against him, can discuss it logically, and can aid in his defense. He is not psychotic nor is he mentally retarded.
"A.W.M. presents with many strengths that need to be considered in this MIT hearing. He is bright and articulate. His MMPI is normal. He has no legal history. He is upset and even anguished over his behavior. He is in school, not involved in drugs, and has no psychiatric history. He comes across as quiet, soft-spoken, and reasonable. A.W.M. does not appear to be defiant, hostile, or insensitive.
"I think A.W.M. is an excellent candidate for treatment and rehabilitation. I say this because of his apparent strengths and resources." CR. 26.
Larry Hooks, the probation officer with the Jefferson County Family Court, prepared the probation services report on the appellant. He testified that his recommendation in this case was "very hard" to make, that it was a strong possibility that the appellant would do well in the juvenile justice system, that he felt the appellant was "a good candidate" for treatment and rehabilitation. R. 1072, 1080, 1081. When asked if his recommendation that the appellant be transferred was "a strong or a weak recommendation," Officer Hooks testified, "That's a recommendation after a lot of thought. I can't say that it's strong." R. 1083. His transfer recommendation was based on the nature of the offense and the interest of the community.
Despite the fact that this is a close case and that the decision of the juvenile court is not necessarily one this Court would have reached, we cannot say that the juvenile court's transfer order was based solely on the nature of the offense or was unsupported by clear and convincing evidence. In our opinion, the decision of the juvenile court was based on the facts underlying the offense and the circumstances surrounding A.W.M.'s participation in the offense, in conjunction with the other relevant statutory factors.
The appellant was physically and mentally mature for his age. He took an active role in the commission of a robbery during which he was armed with a small caliber handgun. There is evidence that he was a major participant in the planning of the robbery, arranging to "rent" the automobile used in the offense from a classmate for $50, and discussing how the robbery would be committed during the three and one-half hours he and his co-defendants spent together immediately before the crime was committed. There is every indication present that the appellant knew exactly what he was doing. There is no evidence that he was under the influence of alcohol or drugs. There is also evidence that the victim was not only intentionally killed but was in fact executed.
These circumstances are a far cry from the facts of Ex parte J.D.G., supra, in which an intoxicated 14-year-old with "poor impulse control" shot and killed an "aggressive" 18-year-old during a "rumble." 604 So.2d at 380. Yet this Court affirmed the transfer order in J.D.G. v. State, and the Alabama Supreme Court declined to review the cause, notwithstanding the fact that J.D.G. had a "high-average level of intelligence," no prior juvenile record, and was a model student at school. 604 So.2d at 380.
The appellant's psychological evaluation indicated that he was "quiet, soft-spoken, and reasonable" rather than "defiant, hostile, or insensitive," and that he had no "delinquen[t] or anti-social tendencies." The juvenile judge was authorized to discount that reportand its conclusion that "[A.W.M.] is an excellent candidate for treatment and rehabilitation"in light of evidence that the appellant deliberately planned and willingly *1155 participated in the hostile and anti-social act of armed robbery. Compare Lackey v. State, 615 So.2d 145 (Ala.Cr.App.1992) (when the factfinder has an objective reason to doubt the validity of an expert's conclusion, it may give the expert's testimony little or no weight).
The juvenile court heard evidence that the appellant had been involved in church activities and that his parents were "active and supportive." While this evidence could indicate that the appellant should remain in the juvenile system, it could also tend to support the opposite conclusion. The court may have found that the appellant's background was already more stable and secure than that of most other juvenile offenders who appeared before him. He could have concluded that the appellant would not derive the benefit from juvenile rehabilitative services from which other youths, with less stable and supportive backgrounds, were expected to profit.
In addition, the court was authorized to find that, regardless of the services provided in the juvenile system, the appellant would have been in the custody of the Department of Youth Services only until he was twenty-one years old, a maximum of five years, and that the "interests of the community ... require[d] that the [appellant] be placed under legal restraint or discipline" for a longer period. Ala.Code 1975, § 12-15-34(d)(6). Compare N.D.T. v. State, 592 So.2d 647 (Ala. Cr.App.1991).
"`The decision to transfer a juvenile for prosecution as an adult is a judicial one,... involving a mandatory consideration of each of the factors enumerated in Section 12-15-34(d).... While "legislation compels consideration of each of the six factors," Reeves [v. State, 419 So.2d 217, 218 (Ala.1982)], the weight to be given each of those factors in balancing the interests of the juvenile and society must be left to the sound discretion of the juvenile court judge. Even though some of the factors may indicate that it would be in the best interest of the child and the public to treat the youth as a juvenile, the judge may still order treatment as an adult after weighing all the factors and circumstances involved.'
"....
"... The trial judge can assign appropriate weight to the six factors listed in § 12-15-34(d) as well as other relevant circumstances. The statute does not require that specific weights be assigned to different factors and circumstances. Consequently, the trial judge is free to consider each case individually and balance the particular circumstances involved."
Williams v. State, 494 So.2d 887, 890 (Ala.Cr. App.1986) (emphasis in original). See also J.S.A. v. State, 615 So.2d 1288 (Ala.Cr.App. 1993); T.J. v. State, 611 So.2d 1116, 1118 (Ala.Cr.App.), cert. denied, 611 So.2d 1118 (Ala.1992); A.M. v. State, 621 So.2d 369 (Ala. Cr.App.1992).
After a careful review of the testimony elicited in this case, we conclude that in making its decision to transfer the appellant, the juvenile court did not consider solely the nature of the offense; instead, the court evaluated the underlying circumstances of the offense and weighed the appellant's participation therein in conjunction with the required statutory factors. We hold that the dispositional phase of this cause was supported by clear and convincing evidence.
The probable cause phase is remanded with directions.
REMANDED WITH DIRECTIONS.
All Judges concur.
NOTES
[1] Rule 52, A.R.App.P., provides in pertinent part that "[i]n any case involving a juvenile who has been the subject of a proceeding in the juvenile court system, ... the appellate court shall make reasonable efforts to preserve the anonymity of such a person."
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] One juvenile's transfer was affirmed by this Court in D.R.H. v. State, 615 So.2d 1327 (Ala.Cr. App.1993). The appeals of the transfer orders of the three remaining juveniles are pending in this Court. See R.J. v. State, CR 92-140; N.W. v. State, CR 92-99; J.L.W. v. State, CR 92-89.
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Appeal Dismissed and Memorandum Opinion filed January 14, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00787-CV
APRIL MALLOY PERNA, Appellant
V.
AMH 2014-1 BORROWER, LLC, Appellee
On Appeal from County Court at Law No. 1
Fort Bend County, Texas
Trial Court Cause No. 19-CCV-065813
MEMORANDUM OPINION
This is an appeal from a judgment signed October 3, 2019. The notice of
appeal was filed October 8, 2019. To date, our records show that appellant has not
paid the appellate filing fee. See Tex. R. App. P. 5 (requiring payment of fees in
civil cases unless party is excused by statute or by appellate rules from paying
costs). Tex. Gov’t Code § 51.207.
On December 5, 2019, this court ordered appellant to pay the appellate filing
fee on or before December 20, 2019, or the appeal would be dismissed. Appellant
has not paid the appellate filing fee or otherwise responded to the court’s order.
Accordingly, the appeal is ordered dismissed. See Tex. R. App. P. 42.3(c)
(allowing involuntary dismissal of case because appellant has failed to comply
with notice from clerk requiring response or other action within specified time).
PER CURIAM
Panel consists of Justices Wise, Jewell and Poissant.
2
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Dismissed and Memorandum Opinion filed June 29, 2006
Dismissed
and Memorandum Opinion filed June 29, 2006.
In The
Fourteenth Court of
Appeals
____________
NO. 14-06-00433-CV
____________
RAMCO OIL & GAS, LTD. and RAMCO
ENERGY PLC, Appellants
V.
ANGLO DUTCH (TENGE) L.L.C. and
ANGLO‑DUTCH PETROLEUM INTERNATIONAL, INC., Appellees
On Appeal from the 61st District
Court
Harris County, Texas
Trial Court Cause No. 00‑22588
M E M O R A N D U M O P I N I O N
This is
an appeal from a turnover order signed April 18, 2006, and amended by nunc pro
tunc order signed April 20, 2006. In light of this court=s disposition of the underlying case,
the issues concerning the turnover order have been rendered moot. See Ramco
Oil & Gas, Ltd. v. Anglo-Dutch (Tenge) L.L.C., No. 14-04-00433-CV (Tex.
App.CHouston [14th Dist.] June 6, 2006, no
pet. h.). On June 22, 2006, appellants filed an unopposed motion to dismiss
the appeal. See Tex. R. App. P.
42.1. The motion is granted.
Accordingly,
the appeal is ordered dismissed.
PER
CURIAM
Judgment rendered and Memorandum Opinion filed June
29, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50680
USDC No. W-94-CV-176
__________________
LEON ANTHONY BENJAMIN,
Plaintiff-Appellant,
versus
RICHARD L. ADAMS ET AL.,
Defendants,
RICHARD L. ADAMS, CO III Officer;
JAMES AMENT, Officer,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
- - - - - - - - - -
December 14, 1995
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Leon Anthony Benjamin requests leave to proceed in forma
pauperis (IFP) on appeal from the district court's dismissal
under 28 U.S.C. § 1915(d) of this civil rights action alleging
retaliation by prison officials and the denial of due process
regarding prison classification and disciplinary hearings.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50680
-2-
This appeal presents no issue of arguable merit and is thus
frivolous. Therefore, IFP is DENIED. Because the appeal is
frivolous, it is DISMISSED. See 5th Cir. R. 42.2.
Benjamin previously has been warned by this court that he
may be sanctioned for filing further frivolous pleadings.
Accordingly, Benjamin is barred from filing any pro se, in forma
pauperis, civil appeals in this court or any pro se, in forma
pauperis, initial civil pleading in any court which is subject to
this court's jurisdiction, without the advance written permission
of a judge of the forum court or of this court; the clerk of this
court and the clerks of all federal district courts in this
circuit are directed to return to Benjamin, unfiled, any
attempted submission inconsistent with this bar.
IFP DENIED; APPEAL DISMISSED; SANCTIONS IMPOSED.
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808 So.2d 439 (2001)
Helen ROLLINS, Individually and on Behalf of Michael Whittington, and Scarlett Hooge
v.
CITY OF ZACHARY, Zachary City Police, Chief of Zachary Police, Sergeant D.L. Courtney, Mayor John A. Womack, Christopher K. Holden, and Allstate Ins. Co.
No. 2000 CA 0160.
Court of Appeal of Louisiana, First Circuit.
February 16, 2001.
*440 B. Todd Soileau, Baton Rouge, for Plaintiffs/Appellants, Helen Rollins, Michael Whittington and Scarlett Hooge.
Matthew W. Bailey, Baton Rouge, for Defendants/Appellees, City of Zachary, et al.
Matthew T. Lofaso, Baton Rouge, for Defendants/Appellees, Allstate Insurance Company and Christopher K. Holden.
Before: CARTER, C.J., FOIL, and WEIMER, JJ.
CARTER, Chief Judge.
This is an appeal from a trial court judgment dismissing the plaintiffs' claims for failure to request service within 90 days of the filing of the petition, as required by LSA-R.S. 13:5107D.
BACKGROUND
On May 10, 1998, Michael Whittington was struck by a vehicle driven by defendant, Christopher Holden, while Whittington was walking on a highway. Whittington was intoxicated at the time and had just been discharged from Lane Memorial Hospital. According to the plaintiffs' allegations, Whittington's mother, Helen Rollins, and sister, Scarlett Hooge, had asked the Zachary Police Department to assist them in restraining Whittington and getting him off of the highway, but these requests were denied and/or ignored. As a result of the accident, Whittington was seriously injured.
*441 FACTUAL AND PROCEDURAL HISTORY
On May 4, 1999, Michael Whittington, Helen Rollins and Scarlett Hooge[1] (hereinafter collectively referred to as "the plaintiffs") filed a petition for damages against Holden and his automobile liability insurer, Allstate Insurance Company. Also named as defendants in the petition were the City of Zachary, Zachary City Police, Chief of the Zachary City Police, a sergeant with the Zachary City Police and the Mayor of Zachary (hereinafter collectively referred to as "the City"). At the conclusion of the petition, the plaintiffs requested that service be withheld.
The plaintiffs' attorney contends that he subsequently wrote a letter to the Clerk of Court for the Nineteenth Judicial District Court dated July 29, 1999, requesting service upon all of the defendants.[2] Plaintiffs allege that this letter was deposited into the regular U.S. Mail, postage prepaid, on Thursday, July 29, 1999. Three business days later, on August 3, 1999, plaintiffs contend that their attorney's office was contacted by counsel for Allstate and Holden to request an extension of time in which to answer the petition. This request was granted by the plaintiffs' attorney. Additionally, this request led the plaintiffs' attorney to believe that the request for service had been received and that service had been perfected as requested.
However, on August 20, 1999, Allstate and Holden filed a motion for involuntary dismissal of the petition for the failure of the plaintiffs to request service within 90 days of the commencement of the action, as required by LSA-C.C.P. art. 1201C. Holden and Allstate contended that this failure warranted an involuntary dismissal of the plaintiffs' claim against them pursuant to LSA-C.C.P. art. 1672C. On August 23, the trial court assigned the motion for contradictory hearing on September 20.
On August 27, plaintiffs' counsel learned that the Clerk of Court's office never received the July 29 request for service. Thus, on August 27, plaintiffs hand-delivered a second request for service upon all the defendants and for pauper status, which request led to service on the defendants.[3]
Plaintiffs did not oppose Allstate and Holden's motion for dismissal. Thus, at the September 20 hearing on the motion for involuntary dismissal, the matter was submitted. A judgment dismissing the plaintiffs' suit without prejudice as to Allstate and Holden was signed on September 29, 1999.
On October 25, 1999, the City filed a motion to dismiss the plaintiffs' petition for the failure to serve the City within 90 days of the filing date of the petition, as required by LSA-R.S. 13:5107. Plaintiffs filed a memorandum in opposition to the City's motion, contending that they timely "requested" service through the July 29 letter. Plaintiffs supported their contention that the request was timely with an *442 affidavit executed by Grayson Gilmore, a law clerk for the plaintiffs' attorney. In the affidavit, Gilmore attested that on July 29, he deposited into the U.S. Mail, postage prepaid, a request for service on the named defendants in the plaintiffs' petition. He further attested that he received a phone call from Allstate's counsel on August 3, requesting an extension of time within which to answer the plaintiffs' petition.
At the hearing on the City's motion to dismiss, the plaintiffs introduced Gilmore's affidavit, along with a copy of the July 29 letter requesting service and the August 27 letter requesting service.[4] The trial court granted the motion to dismiss without prejudice. A judgment dismissing the plaintiffs' claims against the City was signed on November 15.
Plaintiffs have appealed the November 15 judgment asserting that the trial court erred in granting the motion for involuntary dismissal filed by the City. In support of their contention, the plaintiffs argue that they complied with the 90-day request for service requirement provided by LSA-R.S. 13:5107 when they mailed the July 29 letter to the Clerk of Court requesting service of citation of the May 4 petition on the City. They also argue that LSA-C.C.P. art. 1672C allows exceptions for good cause and that by making this exception, the legislature contemplated situations such as this wherein a plaintiff makes a good faith effort to serve citation on all defendants and has good reason to believe service has been perfected. In opposition, the City contends that the plaintiffs failed to request service from the Clerk of Court's office within 90 days of filing the petition, thus, the suit was properly dismissed.
REQUEST FOR SERVICE UNDER LSA-R.S. 13:5107D
Louisiana Revised Statute 13:5107D(1) and (2) provide as follows:
In all suits in which ... [a] political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the ... political subdivision or any officer or employee thereof as a party....
If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the ... political subdivision, or any officer or employee thereof, who has not been served.
(Emphasis added.)
Louisiana Code of Civil Procedure article 1672C provides as follows:
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.
(Emphasis added.)
Neither party refers this court to any jurisprudence that has interpreted the meaning of "request for service" as it appears in LSA-R.S. 13:5107. In its oral *443 reasons, the trial court concluded that "request" contemplated more than depositing in the mail a letter directed to the Clerk of Court. We agree.
Revised Statute 13:5107D does not provide any specific method for how service should be requested, nor does it provide when a "request" is deemed to be made. However, we find that merely attesting that a request was placed in the regular U.S. Mail is not sufficient to establish that a timely "request for service" was made. Instead, we find that a valid and effective "request," asking the Clerk of Court to perfect service, also requires the receipt of the request by the Clerk of Court's office. We note that LSA-C.C.P. art. 253 provides, in part, "All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose." (Emphasis added.)
In Brevelle v. Howard, 00-797 (La.App. 3rd Cir.11/15/2000), 772 So.2d 398, the Third Circuit Court of Appeal, sitting en banc, concluded that although a motion for suspensive appeal allegedly was placed in the U.S. Mail on February 16, 2000, the date stamp of the Pineville City Court indicated that it was not received and filed until February 28, 2000beyond the time required for perfecting a suspensive appeal. The Court concluded that the motion for appeal was untimely and stated, "Marking the document or pleading `filed' and designating the date is evidence of the act of filing, it is not the act of filing itself. The act of depositing the document or pleading [with the Clerk's office] is the filing. Lambert v. Kelley, 270 So.2d 532, 535 (La.1972)." Brevelle v. Howard, 772 So.2d at 399. See also Williamson v. CIGNA/Insurance Company of North America, 576 So.2d 1185, 1187 (La.App. 3rd Cir.1991) (to establish that rejection of Office of Workers' Compensation's recommendation was timely made required showing that notice of rejection was sent and that it was received).
In the present case, the plaintiffs could have sent the July 29 request by certified mailreturn receipt requested, hand-delivered the July 29 request, or simply placed a telephone call to the Clerk of Court's office before expiration of the 90-day time period to verify that the Clerk of Court's office received the service request. Plaintiffs took none of these actions. Moreover, we note that the plaintiffs do not dispute that the Clerk of Court's office did not receive the July 29 request, even after the 90-day time limit expired.
Furthermore, even if LSA-R.S. 13:5107D only requires proof of "mailing" of a service request, and not proof of receipt by the Clerk of Court, the trial court could have reasonably found that through an administrative error or omission, the July 29 letter and attachments were not timely completed or mailed. This finding would be supported by the fact that the plaintiffs did not introduce into evidence copies of the pauper request documents that were allegedly enclosed with the July 29 request. These documents, if dated on or before July 29, could have lent further support to the plaintiffs' contention that the July 29 request was timely mailed.
Finally, we reject the plaintiffs' argument that the request was allegedly mailed on July 29, but never received, and that Allstate's request for an extension of time led the plaintiffs to believe their request had been received, and constituted good cause why service could not be timely requested under LSA-C.C.P. art. 1672C. As previously noted, the plaintiffs could have sent the July 29 request by certified mailreturn receipt requested or hand-delivered the request. Plaintiffs chose to send the July 29 request by ordinary mail *444 and this request was never received by the Clerk of Court's office. We conclude that it is incumbent on a party sending a request by ordinary mail to ensure or verify that the Clerk of Court received the request. Moreover, we note that Allstate's call requesting an extension of time to answer came only three business days after the July 29 request was allegedly mailed. Even assuming the request by Allstate justified a belief that Allstate had been served, it did not warrant a belief that the City had also been served.
For these reasons, the judgment of the trial court dismissing the plaintiff's cause of action without prejudice is affirmed. Costs of this appeal are assessed to the plaintiffs.
AFFIRMED.
NOTES
[1] The petition lists the plaintiffs as Michael Whittington, and/or Helen Rollins, individually and as curator of Michael Whittington, Helen Rollins, and Scarlett Hooge. The petition alleges that as a result of the accident which forms the basis of this suit, Michael Whittington is mentally incapacitated and his mother has been appointed as his provisional curator.
[2] Through this letter, the plaintiffs also requested that they be granted pauper status. The documents supporting this pauper status request were allegedly enclosed with the July 29 letter.
[3] The pauper documents enclosed with this second request were dated August 27, the date the second request for service was hand-delivered to the Clerk of Court's office.
[4] Plaintiffs did not introduce into evidence a copy of the pauper documents that were allegedly enclosed with the July 29 letter.
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4 F.Supp. 745 (1933)
MISSISSIPPI VALLEY BARGE LINE CO.
v.
UNITED STATES et al. (ILLINOIS CENT. R. CO. et al., Interveners).
No. 10496.
District Court, E. D. Missouri, E. D.
October 13, 1933.
James R. Van Slyke, Samuel A. Mitchell, and H. L. Harvey, all of St. Louis, Mo. (Thompson, Mitchell, Thompson & Young, of St. Louis, Mo., on the brief), for petitioner.
Elmer B. Collins, Sp. Asst. to Atty. Gen. (Harold M. Stephens, Asst. Atty. Gen., and Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States.
H. L. Underwood, of Washington, D. C. (Daniel W. Knowlton, of Washington, D. C., on the brief), for Interstate Commerce Commission.
Horace L. Walker, of Washington, D. C., and Elmer A. Smith, of Chicago, Ill., for interveners.
SANBORN, Circuit Judge, and FARIS and DAVIS, District Judges.
While the application of the petitioner was for a preliminary injunction, it was agreed by all parties that the suit should be finally determined by the court upon the record made at the hearing.
The suit is brought by the petitioner against the United States and the Interstate Commerce Commission to enjoin orders of the Commission issued on July 3, 1933, and amended July 18, 1933, in a proceeding entitled "Investigation & Suspension Docket No. 3814, Sugar from Gulf and South Atlantic *746 Points, Sugar Cases of 1933." 194 I. C. C. ___.
The facts out of which this controversy arises are, in substance, these:
The petitioner operates as a common carrier by water between New Orleans, La., and northern points on the Mississippi and Ohio rivers, including St. Louis and Cincinnati. It has a certificate of convenience and necessity from the Interstate Commerce Commission, and it has joined with rail carriers in establishing through routes and joint rates. Its port to port rates are, of course, not subject to regulation by the Commission.
Due to the difference in rates charged by the petitioner and other barge lines and those formerly charged by the competing rail carriers, the business of transporting refined sugar from points adjacent to the lower Mississippi river was diverted from the rail carriers. In order to recover this business the competing rail carriers jointly proposed new schedules of reduced rates on sugar from New Orleans to northern points, and, in accordance with section 6 of the Interstate Commerce Act (49 USCA § 6), filed with the Commission schedules of such rates to become effective October 1, 1932. These schedules established two different sets of rates, one based upon a minimum weight of 60,000 pounds per car, and the other based upon a minimum weight of 80,000 pounds per car. To illustrate the effect of the proposed change, the old rate to Chicago from New Orleans was 56 cents a hundred pounds, and under the proposed new rates the charge was 39 cents a hundred pounds on the lesser minimum per car, and 30 cents a hundred pounds on the greater.
The Interstate Commerce Commission, under section 15 (7) of the Interstate Commerce Act (49 USCA § 15 (7)), suspended these rates pending investigation. Protests against the proposed rates were filed by the petitioner and others. After a full hearing and investigation the Commission issued its orders of July 3, 1933, and its amended orders of July 18, 1933. Thereby the Commission approved the proposed rates in so far as they were based upon the 60,000 pound minimum, but did not approve the rates based upon the 80,000 pound minimum, which it found were lower than the necessities of the situation required, and ordered a cancellation of the schedules to that extent. It observed, however, that the circumstances justified a rate on the 80,000 pound minimum four cents higher than that proposed by the railroads, and the railroads were invited to publish and to make effective such rates. Thereupon the railroads did publish and file changed schedules in accordance with the suggestion of the Commission, and such rates became effective.
The petitioner filed with the Commission a motion for a rehearing upon the grounds of changed economic conditions and the alleged failure of the Commission to give effect to the congressional mandate of section 500 of the Transportation Act of 1920 (U. S. C., title 49, § 142 [49 USCA § 142]), which is directed toward the encouragement of water transportation. This motion was denied. This suit to enjoin the enforcement of the orders in so far as they affect rates from New Orleans followed. It is brought under U. S. C., title 28, § 41 (28), 28 USCA § 41 (28), and is directed against the Commission and the United States in accordance with the provisions of U. S. C., title 28, § 46, 28 USCA § 46.
The petitioner complains of the Commission's orders for the following reasons:
(1) The Commission ignored the policy of Congress as stated in the Transportation Act.
(2) Its decision is unsupported by the evidence and by its findings.
(3) The Commission by its orders has permitted a combination in restraint of trade, which is contrary to the spirit of the antitrust laws.
(4) The proposed rates will result in irreparable injury and damage to the petitioner.
(5) The orders are arbitrary, discriminatory, and unduly preferential in violation of sections 2 and 3 of the Interstate Commerce Act (U. S. C., title 49, §§ 2, 3 [49 USCA §§ 2, 3]).
(6) The denial by the Commission of the petitioner's application for a rehearing amounted to a denial of a fair hearing.
The United States has moved to dismiss the petition on the ground that the petitioner has no standing in court because it lacks a sufficient interest in the subject-matter of the suit; that the Commission's orders are negative in form and substance and are not such orders as can be enjoined; that the petitioner's bill is without equity and discloses no grounds which entitle the petitioner to an injunction.
The Interstate Commerce Commission asserts that its findings were fully supported by the evidence submitted to it, that it acted contrary to no law or mandate of Congress, *747 and that the petitioner has no such interest in the rates established or permitted by the orders as to enable him to maintain this suit.
The questions presented, then, are substantially these:
1. Has the petitioner such an interest in the subject-matter of the suit as entitles him to maintain it?
2. Are the orders of the Commission such as may be enjoined?
3. Do the orders of the Commission sanction a violation of the anti-trust laws, and are they for that reason void?
4. In view of the findings of the Commission and of the Congressional policy announced by the Transportation Act, are the orders complained of arbitrary and unduly discriminatory?
5. Was the petitioner denied a fair hearing?
In view of the conclusions which we have reached as to the third, fourth, and fifth questions, we feel that it is unnecessary to decide whether the petitioner has a right to maintain this suit and whether the orders of the Commission are such as may properly be enjoined. The answer to the third question is obvious. Only the United States can sue to enjoin, for an alleged violation of the anti-trust laws, a combination of common carriers subject to the provisions of the Interstate Commerce Act with respect to a matter within the jurisdiction of the Interstate Commerce Commission. U. S. C., title 15, § 26 (15 USCA § 26); Central Transfer Co. v. Terminal R. Ass'n of St. Louis (C. C. A. 8) 61 F.(2d) 546, 550, affirmed, 288 U. S. 469, 473, 53 S. Ct. 444, 77 L. Ed. 899.
The record of the proceedings before the Commission has not been presented to this court, and the affidavits which have been received afford only an imperfect and incomplete picture of the situation. In view of the absence of the record of the evidence which the Commission had before it, we must accept its findings as conclusive.
"* * * Obviously we hardly could sustain a decision rejecting the reparation order upon the ground that there was not sufficient evidence before the commission to support it when the whole of the evidence that was before the commission was not produced." Spiller v. A., T. & S. F. Ry. Co., 253 U. S. 117, 125, 40 S. Ct. 466, 470, 64 L. Ed. 810. See, also, Louisiana & P. B. Ry. Co. v. United States, 257 U. S. 114, 116, 42 S. Ct. 25, 66 L. Ed. 156; Nashville, C. & S. L. Ry. Co. v. State of Tennessee, 262 U. S. 318, 324, 43 S. Ct. 583, 67 L. Ed. 999; Edward Hines Yellow Pine Trustees v. United States, 263 U. S. 143, 148, 44 S. Ct. 72, 68 L. Ed. 216; Chicago, I. & L. Ry. Co. v. United States, 270 U. S. 287, 295, 46 S. Ct. 226, 70 L. Ed. 590; Department of Public Works of Washington v. United States (D. C.) 55 F.(2d) 392, 395.
We do not understand that the petitioner denies the conclusiveness of the findings of the Commission in the absence of the record, but its contention is that this court should hold that the orders of the Commission are upon their face not supported by the Commission's findings and are contrary to such findings and to an established policy of Congress. This policy is enunciated in section 500 of the Transportation Act of 1920 (U. S. C., title 49, § 142 [49 USCA § 142]), which reads: "It is declared to be the policy of Congress to promote, encourage, and develop water transportation, service, and facilities in connection with the commerce of the United States, and to foster and preserve in full vigor both rail and water transportation. * * *"
The Commission found that the interveners were handling practically no long hauls of sugar from the South to the northern distributing points, their sugar traffic consisting only of occasional special or emergency shipments; that the diversion of the sugar traffic to the barge lines in 1932 cost the principal intervener, the Illinois Central Railroad Company, probably half a million dollars in revenue; that sugar constitutes about one-third of the total tonnage of the petitioner and yields over 40 per cent. of its total revenue; that the rates proposed by the rail carriers were more than high enough to pay the costs of the service rendered; and that many commodities were handled by these roads at lower rates than those proposed for sugar.
It appears that the Federal Barge Line, another carrier by water operating in the same territory and which is also largely dependent upon the sugar traffic for its revenues, does not protest the proposed rates, preferring to let the competing railroads set the rate level. There is no evidence before us which would justify a finding that the petitioner cannot, under favorable conditions, carry sugar at as low a rate as its rail competitors. It is probably not important whether it can or cannot.
The petitioner's claim of arbitrariness is mainly a general one. It does, however, contend that there is great diversity in rates from the Atlantic seaboard and those from *748 the Gulf to the same interior points; that the Commission did not state the particular method of computation by which it arrived at the rate levels it approved, and must have taken a mathematical mean of the costs testified to by witnesses for both sides and then applied a certain differential; and that, while the per ton per mile earnings of the roads from this sugar traffic under the new rates would compare favorably with the system earnings of the Illinois Central Railroad, this is an unfair basis of comparison, because the costs of the Illinois Central System are the lowest of any of the roads concerned.
It seems evident to us that the question of the propriety of putting into effect the proposed rates, their reasonableness, and their effect upon shippers and competitors was one peculiarly for the Commission and one into which the courts should not inject themselves unless it clearly appears that the orders of the Commission were arbitrary, and that it exceeded its powers in making them. The Commission considered all factors entering into the problem and at least attempted to reach a result which was fair to all parties concerned. The Commission's report indicates a careful analysis of the entire situation. Neither the rates proposed by the railroads nor those suggested by the petitioner were adopted in full. The conclusion of the Commission that the rate levels which it approved and suggested were reasonable and lawful appears to have been supported by the record before it. Assuming, as we must, that these rates are ample to cover the costs of service, we think it is impossible for this court to say that the orders which the Commission made were arbitrary.
The only question which then remains is whether such orders are in contravention of the policy of Congress enunciated in section 500 of the Transportation Act hereinbefore quoted. The language of that section is nothing more than a general statement of policy. There is no guaranty contained in it of immunity from competition, nothing to indicate an intention on the part of Congress that a common carrier by water was to be given a preference in the matter of rates over a common carrier by rail, and nothing to indicate that a shipper was to be required to pay for the transportation of a commodity, where rail and water lines were in competition, a rate high enough to enable each carrier to operate at a profit.
Reduced to its lowest terms, the petitioner's contention virtually is that an order of the Interstate Commerce Commission which permits a railroad to reduce its rates to a point which will prevent a barge line from profitably competing with it is arbitrary, discriminatory, and void. We cannot agree. If the rates fixed or permitted by the orders would be reasonable in the absence of barge competition, we think they are no less reasonable because of such competition.
The petitioner's contention with respect to the denial of its motion for a rehearing on the ground of changed economic conditions is sufficiently answered by the language of the Supreme Court in United States v. Northern Pacific Railway Company, 288 U. S. 490, 494, 53 S. Ct. 406, 407, 77 L. Ed. 914: "The decision in the Santa Fe Case [284 U. S. 248, 52 S. Ct. 146, 76 L. Ed. 273] is not to be extended to require a rehearing in every rate case for changed economic conditions, however insignificant the effect of the order on carrier revenue. The rule announced, while intended to safeguard substantial rights of the railroads, may not be invoked where its application would disenable the Commission to protect the interest of the public."
Finding the facts and the law to be as we have stated, we reach the conclusion that the defendants and interveners are entitled to a decree dismissing the bill of complaint. They may, upon reasonable notice to the petitioner, present to this court proposed findings of fact, declarations of law, and a decree, in accordance with the views expressed in this decision.
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412 F.Supp. 362 (1975)
Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
INGLEWOOD, INC., a corporation (Originally designated as Inglewood Manor, a corporation), Defendant.
Civ. A. No. 73J-284(N).
United States District Court, S. D. Mississippi, Jackson Division.
June 12, 1975.
Murray A. Battles, U. S. Dept. of Labor, Cullman, Ala., for plaintiff.
Joe Jack Hurst, Jackson, Miss., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
NIXON, District Judge.
The Secretary of Labor brought this action under Section 17 of the Fair Labor *363 Standards Act of 1938, as amended, 29 U.S. C.A. § 217 (1970), to enjoin the defendant nursing home's alleged violations of the Act's equal pay provisions. Equal Pay Act of 1963, 29 U.S.C.A. § 206(d)(1) (1970). These alleged violations affect female nurse's aides and unit assistants on the one hand, and male orderlies on the other, who were paid unequal wages for the performance of what the Labor Department contends was substantially equal work.
The plaintiff charges that the defendant employs nurse's aides and unit assistants at wages less than it pays orderlies in spite of the fact that they all perform jobs which require equal skill, effort and responsibility under similar working conditions. On the other hand, the defendant contends that the duties of nurse's aides and unit assistants are not equal to the duties of orderlies within the meaning of the Act, and each classification requires different skills, effort and responsibilities.
Based upon all the evidence elicited at the trial of this case, this Court makes the following Findings of Fact and reaches the following Conclusions of Law.
FINDINGS OF FACT
The defendant operates a 100-bed skilled nursing home called Inglewood Manor in Jackson, Mississippi, wherein it furnishes physical facilities and personal care for the aged and infirm. Inglewood Manor is divided into two separate operating units, each containing 50 beds and a shared dining hall, a reception and recreation room and an office area. The "home" has been filled to capacity since 1970 or 1971, with a long waiting list of patients, is licensed by the State Board of Health, and is the only privately owned nursing home in the State of Mississippi which is accredited by the Joint Commission on Hospitals and Nursing Homes. Approximately eighty percent of its patients are female and twenty percent are male.
Mrs. Margaret Clinton is the defendant's Administrator and Mrs. Madeline Nicholas is Director of Nursing. Inglewood customarily employs four registered nurses, nine full-time and two relief licensed practical nurses, twenty-seven nurse's aides, four unit assistants, and four full-time and two part-time orderlies. Additionally, there is one janitor who works only the morning shift from 7:00 a. m. to 3:00 p. m., and since 1968 or 1969 the home has not employed any maintenance man, but, as will be more fully discussed herein, all maintenance work since then has been performed by orderlies.
The job descriptions of nurse's aides, unit assistants and orderlies are set forth in Exhibit P-1 and this Court will not enumerate them but incorporates them herein by reference. The pay rates of all employees in the three categories in question hired by the defendant since 1967, including the period of time in question herein, i. e., December, 1970 to December, 1972, are reflected in Exhibit P-3. This Exhibit and the testimony establish that all nurse's aides are paid the applicable minimum wage, regardless of experience, length of service with the defendant or merit increases, and all four unit assistants are paid an additional ten cents per hour or $2.10. One of the orderlies is paid $2.30 an hour, another $2.20 an hour, two are paid $2.10 an hour, and the remaining two who were recently hired are paid the applicable minimum wage of $2.00.
The classification "unit assistant" is a job to which nurse's aides are promoted after six months experience as aides if they have demonstrated their ability to follow instructions and perform their work well. Unit assistants are given additional responsibilities, working closely with the nurses and, in addition to performing the normal duties of nurse's aides, they also tube-feed, administer medication, examine for fecal impactions and irrigate catheters.
Each time that aides' salaries have been increased because of increases in the minimum wage, orderlies' and unit assistants' wages have been correspondingly increased.
In addition to rendering the personal care to patients which is required of nurse's aides and unit assistants, the orderlies at Inglewood Manor during the period in question *364 had the following responsibilities and performed the following duties which were not required of and not performed by aides and unit assistants, all of which will be discussed in more detail: (1) catheterization of male patients, a skilled and important nursing function which aides and unit assistants are specifically prohibited from performing and which is performed on female patients only by nurses; (2) moving of heavy oxygen tanks from the storage area outside the home to the various rooms, setting them up, and removing the empty tanks; (3) lifting and transporting beds, including heavy electric beds, to and from the various rooms, and lifting all male patients and several of the heavier female patients; (4) setting up and operating special equipment, including trapeze bars, for paraplegic and quadraplegic patients; (5) performing security work, including the return of patients who had either purposely left or wandered away from the nursing home and restraining violent or unruly patients; (6) performance of all maintenance work at the nursing home; and (7) mopping and waxing of floors, sometimes assisted by the janitor who worked on the morning shift.
In addition to performing the foregoing functions the orderlies at Inglewood Manor are required to "float" or work on both units of the nursing home, male patients being approximately equally distributed between the two units, whereas aides and unit assistants are not required to "float" but only to work in either Unit A or Unit B. Although two orderlies work the morning shift from 7:00 a. m. to 3:00 p. m., with each primarily responsible for one of the two units, they nevertheless are required to work both units, and on the afternoon (3:00 p. m. to 11:00 p. m.) and night (11:00 p. m. to 7:00 a. m.) shifts, only one orderly is on duty in the home.
Orderlies at Inglewood Manor are regularly trained by doctors, nurses, or manufacturer's representatives in the use of the Foley catheter and must be qualified to the satisfaction of the Director of Nursing before they are permitted to catheterize male patients. Catheterization is a very important function at a nursing home and requires skill, knowledge and training because of the danger involved. As previously stated, orderlies perform all of the catheterization of male patients and nurses perform them on female patients. Although one unit assistant testified that she had catheterized a female patient, she admitted that she knew this was against written instructions and contrary to the rules of Inglewood and she was reprimanded for doing so and instructed not to perform another catheterization. Catheterization is very frequently performed at Inglewood, and although one orderly testified that he had not catheterized any patients, he nevertheless admitted that he was experienced and trained to do so and would have done so if required during the short term that he had worked for the defendant on the night shift.
Orderlies are regularly and frequently called on to set up oxygen tanks. This requires individual orderlies to move the tanks, each of which weighs 165 to 180 pounds when full, onto a cart or dolly and haul them from a storage area outside the building where they are kept for safety reasons, into the building, down the hall and to the individual rooms. Extreme care is required in this moving process because of the danger of explosion. The orderlies then "pop" the tanks to verify that they are full of oxygen and to clear the valves of debris, unscrew the tank caps with a wrench and attach gauges and connecting devices to the patient. After the oxygen supply is exhausted, the orderly disconnects the empty tanks and removes them from the building.
Additionally, orderlies are frequently called on to lift many elderly and infirm men and women in and out of bed and exclusively care for the male paraplegic and quadraplegic patients who must be lifted every day. In addition, they must lift any heavy female patients, including one presently at Inglewood who weighs in excess of 300 pounds. Orderlies must also regularly lift beds with patients therein in order to *365 place "shock blocks" under the bed to elevate a certain part of the patient's body.
Orderlies frequently move supplies and heavy equipment, including electric beds from the basement and attic, carry luggage and any personal belongings, including television sets of patients who are admitted to or discharged from the nursing home, which is not done by aides and unit assistants.
When patients become unruly or violent, orderlies are called upon to restrain them, in addition to returning patients who have wandered off from the building or tried to leave. They also perform around the clock security duty at Inglewood.
In addition to performing the foregoing work, orderlies at Inglewood Manor perform all of the maintenance work, which is one of the hardest jobs and biggest problems at Inglewood. In 1969, Inglewood hired a full-time maintenance man and paid him $3.00 an hour at a time when the minimum wage was $1.30, but he was discharged shortly thereafter because he only worked one shift and maintenance is required around the clock, including weekends. This maintenance work, which is substantial and of great economic benefit to the defendant, includes (1) most, if not all of the electric and plumbing work whenever the need arises, subjecting orderlies to call in an emergency while off duty. This includes regular checks of the emergency electric lights, fire alarm systems, smoke doors and fire-fighting equipment at Inglewood, as well as being in charge of fire drills; (2) waxing and polishing floors and cleaning and painting patients' rooms that become vacant; (3) cleaning grease traps and replacing or unstopping commodes; (4) cleaning and lubricating all wheel chairs; (5) performing carpentry work, including on one occasion patching of the roof, and the removing and adjusting of doors and installation of cabinets; (6) installing washing machines, including the necessary electrical and plumbing work; and (7) repairing and changing approximately 85 individual air conditioning cooling and heating units, as well as repair and maintenance of 4 central units. These window units, which weigh approximately 125 pounds each, are regularly removed and replaced when they malfunction.
CONCLUSIONS OF LAW
This Court has jurisdiction of the parties and of the subject matter. The Secretary of Labor had the burden of proving equality of work. Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256 (5th Cir. 1972); Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970). The legislative history of the Equal Pay Act underscores the necessity of a case by case analysis, that is, the issues must be decided on the facts of each case and not on an industry-wide basis, because all aides in all hospitals do not perform identical functions, nor do all orderlies in all hospitals perform identical functions. The differences or similarities of functions must determine the ultimate outcome under the Equal Pay Act.
As noted by the Court in Golden Isles, "[b]y substituting the term `equal work' for `comparable work,' which was originally suggested, Congress manifested its intent to narrow the applicability of the Act," making the polestar a substantial identity of job functions rather than comparable work or skill and responsibility. As the Court further noted, "Congress intended to permit employers wide discretion in evaluating work for pay purposes" by debating examples "to illustrate that a wage differential can be justified for employees who are available to perform an important differentiating task even though they do not spend large amounts of time at the task." Hodgson v. Golden Isles Convalescent Homes, Inc., supra, at 1258.
As the Fifth Circuit pointed out in Golden Isles, a number of these type cases have been decided in favor of the plaintiff, and a number in favor of the defendants, depending upon the facts of each case. This Court concludes that the facts of the case sub judice militate more strongly against the Secretary than did those in Golden Isles.
*366 The Secretary has failed to prove his case herein by a preponderance of the evidence, but on the contrary, the evidence preponderates in favor of the position of the defendant inasmuch as the work performed by the nurse's aides and unit assistants at Inglewood Manor is not equal with the work performed by the orderlies. The duties performed by the orderlies regularly require significantly more effort, different and additional responsibility, and their work is performed under different circumstances. The orderlies' duties require more effort, skill and responsibility and training than that of nurse's aides and unit assistants, and these additional duties and responsibilities are of substantial financial value to the defendant. The additional and unique duties of the orderlies at Inglewood Manor require extra effort, a significant amount of their time, and provide the nursing home an economic benefit commensurate with the pay differential. See Hodgson v. Brookhaven General Hospital, supra, at 725.
The Secretary has failed to meet his burden of establishing that the jobs in issue require equal skill, effort and responsibility under similar working conditions, and that the defendant paid nurse's aides and unit assistants different hourly rates than orderlies solely because of sex. Thus, he has failed to establish any violation by the defendant of the Fair Labor Standards Act. Therefore, the plaintiff is not entitled to any of the relief prayed for in his Complaint, and this suit shall be dismissed with prejudice, at the cost of the plaintiff.
A judgment conforming with the foregoing Findings of Fact and Conclusions of Law shall be presented to this Court by the attorney for the defendant within the time prescribed by the Rules.
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Error: Couldn't open file '/var/www/court-listener/alert/assets/media/pdf/2010/03/04/Univ_of_Pittsburgh_v._Varian_Medical.pdf': No such file or directory.
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99 Cal.App.2d 149 (1950)
221 P.2d 257
A.C. HELVEY, as Administrator, etc., Appellant,
v.
SECURITY-FIRST NATIONAL BANK OF LOS ANGELES (a National Banking Association), Respondent.
Docket No. 17334.
Court of Appeals of California, Second District, Division One.
August 22, 1950.
*150 William M. Taylor for Appellant.
Arthur H. Blanchard and Robert E. Friedrich for Respondent.
DRAPEAU, J.
In June of 1919, Ira B. Murphy made two deposits in Farmers and Merchants Bank of Santa Paula, in the sum of $710. Defendant in this case is successor to that bank. No further deposits were made, except credits of interest earned. No withdrawals were made. October 2, 1946, defendant bank paid the amount due on the account to the Treasury of the State of California. (Abandoned Property Act: Code. Civ. Proc., §§ 1274.1 to 1274.17.)
Plaintiff is administrator of the estate of Ira B. Murphy, and assignee of decedent's widow. As such, he first petitioned in the Superior Court in Sacramento County in a proceeding against the State of California. The procedure is outlined in Code of Civil Procedure, section 1274.10 Upon making the necessary proof the court is empowered to direct return of abandoned property to the owner thereof.
While the proceeding in Sacramento County was pending, plaintiff commenced the present action against the defendant in Ventura County. In his brief he says he did this because he could not recover interest from the state.
Defendant served plaintiff's counsel with notice of motion to dismiss. Plaintiff made no appearance on the hearing of the motion. Evidence was heard by the court, the motion was granted, and the case dismissed. From this order plaintiff appeals.
*151 [1] No record of the evidence before the trial court has been supplied to this court. Therefore, it must be presumed that the evidence supports the order. (Vieth v. Klett, 88 Cal. App.2d 23 [198 P.2d 314]; Lucich v. Lucich, 75 Cal. App.2d 890 [172 P.2d 73].) [2] Affidavits may be used in support of a motion to dismiss. (Best v. Fitzgerald, 81 Cal. App.2d 965 [185 P.2d 377].)
Plaintiff argues that the order is not based on facts specified in sections 581, et seq., of the Code of Civil Procedure, and is, therefore, void.
[3] The superior court has inherent power to dismiss actions which are made to appear fictitious and sham. (Cunha v. Anglo California National Bank, 34 Cal. App.2d 383 [93 P.2d 572].)
[4] Plaintiff also argues that the Abandoned Property Act is unconstitutional for the following reasons: (a) A bank depositor is deprived of interest; (b) the money was deposited before the enactment of the law; (c) no notice to depositors is provided for; (d) the act does not apply to a national bank. Each assignment is without merit. (Anderson National Bank v. Luckett, 321 U.S. 233 [64 S.Ct. 599, 88 L.Ed. 692, 151 A.L.R. 824].)
The order is affirmed.
White, P.J., and Doran, J., concurred.
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 6, 2001
No. 00-11776
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 97-01258-CV-T-25B
MARK JEFFERY SHEPHERD,
a.k.a. Mark Jeffrey Shepard,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 6, 2001)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Mark Jeffery Shepherd (“Shepherd”), a federal prisoner, appeals
the district court’s order denying his motion to vacate, set aside, or correct his
sentence, filed pursuant to 28 U.S.C. § 2255. We vacate the district court’s order
and remand this case with instructions to appoint counsel.
I.
Shepherd, who did not file a direct appeal of his 195-month sentence for
bank robbery offenses, filed his initial § 2255 motion in May 1997, alleging claims
of ineffective assistance of counsel. Shepherd subsequently filed an amended §
2255 motion in September 1997, and a second amended motion in 1998, in which
he added a claim that his plea was not knowing or voluntary. The government
opposed the second amended motion on its merits. Shepherd then filed a motion to
amend and another amended § 2255 motion. The government did not object to the
motion to amend and challenged the third amended motion on its merits.
The district court ordered an evidentiary hearing for Shepherd. At the
beginning of the hearing, Shepherd requested appointment of counsel. The court
denied his request at that time and questioned Shepherd regarding the grounds of
his § 2255 motion. Shepherd claimed that his court-appointed trial attorney failed
to investigate his case or advise him whether he should plead guilty. The
government responded that at the time Shepherd entered into his plea agreement,
he swore that he was satisfied with the performance of his attorney. The district
court then placed Shepherd under oath and questioned him further about his
2
claims. During the course of the proceedings, Shepherd again requested an
attorney, specifically invoking Rule 8 of the Rules Governing § 2255 Motions.
The district court then denied as frivolous Shepherd’s § 2255 motion because
Shepherd stated at his plea colloquy that he was satisfied with his counsel’s
performance. The court, however, did not address the remaining claims presented
in Shepherd’s § 2255 motion, or his request for counsel under Rule 8 of the Rules
Governing § 2255 Motions.
In addition to denying Shepherd’s § 2255 motion as frivolous, the district
court denied Shepherd’s application for a certificate of appealability (“COA”).
The district court, however, permitted Shepherd to proceed in forma pauperis on
appeal. This court granted a COA on the issues of whether the district court erred
by (1) not appointing counsel for Shepherd during his evidentiary hearing
regarding his § 2255 motion, and (2) denying summarily the substantive claims
presented in Shepherd’s § 2255 motion to vacate.
II.
In this appeal, Shepherd argues that the district court violated Rule 8 of the
Rules Governing § 2255 Motions by failing to appoint counsel for him upon its
determination that a hearing was required. Shepherd notes that he requested the
court to appoint counsel and to determine whether the proceeding was an
3
evidentiary hearing, but the district court refused; therefore, Shepherd contends
that the district court abused its discretion.
The government concedes in its brief that the district court likely erred in
refusing to appoint counsel for Shepherd, but argues that any error was harmless
because Shepherd was not entitled to an evidentiary hearing.
Rule 8(c) of the Rules Governing § 2255 Proceedings provides that “[i]f an
evidentiary hearing is required, the judge shall appoint counsel for a movant who
qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)[.]” Title 18,
§ 3006A of the United States Code allows for the appointment of counsel when the
interests of justice so require and the movant is financially unable to obtain
representation.
In our view, the district court erred in failing to appoint counsel to represent
Shepherd at the evidentiary hearing on his § 2255 motion. As an initial matter, we
observe that the proceedings clearly resembled an evidentiary hearing, despite the
district court’s unwillingness to categorize it as such, because the court placed
Shepherd under oath and questioned him extensively concerning the basis of his
claims. Additionally, the government concedes that, given the substance of the
proceeding, the hearing was an evidentiary hearing on Shepherd’s § 2255 motion.
Thus, because Shepherd qualified for representation under § 3006A, the district
4
court, having determined that an evidentiary hearing was necessary, was obligated
under Rule 8 of the Rules Governing § 2255 Motions to appoint counsel for
Shepherd. Johnson v. Avery, 393 U.S. 483, 487-88 (1969) (recognizing that
federal courts generally appoint counsel in post-conviction proceedings only after a
petition for post-conviction relief passes initial evaluation and the court has
determined that the issues presented call for an evidentiary hearing).
III.
Having determined that the district court erred in failing to appoint counsel
to represent Shepherd at the evidentiary hearing, we must now address the question
of whether that failure is subject to harmless error review. Two circuits have held
that such an error is not amenable to harmless error review. United States v.
Iasiello, 166 F.3d 212, 214 (3d Cir. 1999); United States v. Vasquez, 7 F.3d 81, 83-
85 (5th Cir. 1993). The Iasiello court noted that the Fourth and Sixth Circuits, in
unpublished opinions, have also declined to adopt a harmless error analysis in this
context. Iasiello, 166 F.3d at 214 n.4.
We agree with our sister circuits and hold that the failure to appoint counsel
under Rule 8 of the Rules Governing § 2255 Motions is not subject to harmless
error analysis. Our reasoning is also based on the language of Rule 8(c) itself. The
rule provides that, “[a] judge shall appoint counsel.” (Emphasis added.) This
5
language is mandatory and does not suggest any reliance on harmless error
analysis. Because we must vacate the district court’s order dismissing
Shepherd’s § 2255 motion and remand this case for the appointment of counsel and
a corresponding evidentiary hearing, we decline to address the second issue
presented in this appeal.
VACATED and REMANDED.
6
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94 Ga. App. 468 (1956)
95 S.E.2d 296
TUCKER
v.
THE STATE.
36386.
Court of Appeals of Georgia.
Decided October 17, 1956.
*469 Jacobs & Gautier, for plaintiff in error.
Wm. M. West, Solicitor-General, Hal Bell, Assistant Solicitor-General, contra.
TOWNSEND, J.
1. The first special ground assigns error on testimony which was later ruled out by the trial court, and also *470 assigns error on the court's ruling, after the jury had been retired and had again returned to the box, as follows: "I will sustain the objection proposed by defense counsel and rule out the testimony objected to" on the ground that the court did not specifically state what testimony was being excluded and did not specifically repeat the testimony and instruct the jury not to consider it. The jury had heard the testimony and the objection and was thus apprised of that part of the testimony which was ruled out. The ruling forming the basis of this assignment of error was favorable to the defendant in that the objection of his counsel was sustained. This assignment of error is without merit. Wright v. State, 6 Ga. App. 770 (65 S. E. 806).
2. The evidence objected to in special grounds 2, 8 and 8A as to arrangements, in the absence of the defendant between the defendant's companion, Farmer, and the confessed thieves as to where they would meet on the night in question was admissible to explain the conduct of the witnesses in going to the location where the defendant was stationed. Code § 38-202.
3. Special ground 3 complains of the sustaining of an objection to a question asked one of the confessed thieves of the stolen property: "How long had you been advertising the fact around Macon that you were a thief?" The objection was that this called for a conclusion as to whether the witness was advertising the fact that he was a thief. The witness had testified that he told another person to whom he had sold sugar that it was stolen. The defendant clearly had a right to subject this witness to a thorough and sifting cross-examination as to this and any other transaction regarding the theft of sugar and as to his having informed the purchasers thereof in each instance of the fact that the sugar was stolen. Whether such cross-examination, however, would authorize a jury to conclude that it constituted an advertisement of the fact that he was a thief would depend upon the number of instances shown and other facts relating thereto which might have been developed by such cross-examination. The single instance shown would not of itself amount to an advertisement of the fact and the sustaining of the objection to the form of the question did not unduly restrict the exercise of the right of cross-examination. Code § 38-1705; Post v. State, 201 Ga. 81 (39 S. E. 2d 1); Walden v. State, 83 Ga. App. 231 (2) (63 S. E. 2d 232).
*471 4. It is not error in the absence of request to fail to charge the provisions of Code § 26-201 that there must in every crime be a joint operation of act and intention or criminal negligence, where the court fully charges on the essential elements of the crime with which the defendant is charged. Cammons v. State, 59 Ga. App. 759 (5) (2 S. E. 2d 205); Bennett v. State, 49 Ga. App. 804, 805 (4) (176 S. E. 148); McLendon v. State, 14 Ga. App. 737 (82 S. E. 317). Nor is it error to fail to charge without request the provisions of Code § 26-404 relating to accident and misadventure where this issue, if raised at all, comes only from the defendant's statement. Eich v. State, 169 Ga. 425 (5) (150 S. E. 579); Simmons v. State, 181 Ga. 761 (7) (184 S. E. 291). Special grounds 6 and 14.5 are without merit.
5. Special ground 10 assigns error on the following charge of the court: "You are the sole and exclusive judges of the facts of the case. You pass upon the force, weight and credit to be given to the evidence in the case and you alone determine the credibility of the witnesses sworn to in the case." Special grounds 11 and 12 assign error on the failure of the court to charge on the impeachment of witnesses by proof of crime involving moral turpitude. It is not incumbent upon the trial court, in the absence of timely and appropriate written request, to charge upon the subject of the impeachment of witnesses. Williams v. State, 25 Ga. App. 193 (102 S. E. 875); Moore v. State, 55 Ga. App. 157 (1) (189 S. E. 551). Here the court did not charge on the subject of impeachment, and therefore the rule that, where the subject is referred to, all of it which is material and applicable must be given in charge, was not involved. As to the further contention that the charge as given is erroneous because in connection therewith the court gave the jury no rule by which credibility of witnesses should be determined, this also is not error in the absence of request. Mullin v. State, 27 Ga. App. 766 (110 S. E. 334); Hammett v. State, 27 Ga. App. 624 (110 S. E. 624). These grounds are without merit.
6. The court charged the jury as follows: (a) "Now, with reference, gentlemen, to the question of knowledge on the part of this defendant that the goods were stolen, the court has charged you that knowledge being one of the essential elements, the knowledge to which I have just referred, now, in that connection, *472 gentlemen, with reference to the question of knowledge on the part of the defendant that the goods where stolen and whether or not there existed any such knowledge, I charge you that unless there be guilty knowledge on the part of the defendant that the goods were stolen at the time they were received by him, there can be no conviction. That knowledge in many instances must be determined and is deducible by the jury from the conduct and behavior of the parties, that is, of the receiver and of the principal thief, where that principal thief is guilty of that conduct in the presence of and with the receiver of the goods. You may consider the time when such goods were received, their nature, their quantity, value and price paid for them, if bought, and whether or not any inquiry was made by the defendant as to the ownership of the goods. The jury may consider all the facts and circumstances of the case and should you find that the defendant did buy or receive these goods, under such circumstances and conditions as would cause him reasonably to believe that the goods were stolen, then, under the law, you would be authorized to attribute to the defendant such guilty knowledge as is one of the prerequisites of a conviction. Should you find that the defendant had no such guilty knowledge and that in receiving these goods, if he did receive them or any part of them, he did not do so under such circumstances and conditions as would cause him reasonably to believe that the goods were stolen then no guilty knowledge would be attributable to him and one of the necessary elements of the offense would be lacking and you would consequently, of course, return a verdict of not guilty. (b) From the law given you in charge, gentlemen, you will observe that in order to find this defendant, Prentice Tucker, guilty upon this indictment for receiving stolen goods, that is, for the offense of receiving stolen goods, you must believe beyond a reasonable doubt these things, and each of these things, and all of them, first, that the offense of larceny from the house was committed by the principal thief and property feloniously taken or stolen by him; second, that the principal thief has been convicted or has pleaded guilty to the commission of that offense, and, third, that this defendant did receive the goods stolen in the commission of the larceny from the house, or some part of those goods, as charged in this indictment, on which the defendant *473 is now on trial, and at the time he received them he knew the goods to be stolen. Each of these three elements about which I have charged you gentlemen is an essential element in the alleged offense of receiving stolen goods and each and all of them must be proven by the State beyond a reasonable doubt before the State can ask at your hands a conviction of the defendant."
Error is assigned on the excerpts as inapplicable to the defendant because there was no evidence that Tucker participated in the purchase or receipt of the goods or that he knew the price paid for the sugar, and there was no duty upon him to make inquiry as to the character of the goods; because it would authorize a conviction if Tucker had knowledge that the goods were stolen although he may have received them from Farmer, not one of the principal thieves; that it would authorize a conviction if Farmer knew the circumstances outlined although the defendant did not himself receive the goods, or would authorize a conviction if he purchased them from another than the principal thief. The remaining assignments of error contend that the court erred in not charging, in the same connection, and without request, that the defendant should be acquitted if the jury found that Farmer was the purchaser of the sugar and if they found that the defendant did not purchase it, did not assist Farmer in the purchase, did not know Farmer was purchasing stolen sugar, or if Farmer, and not the principal thieves, actually sold the sugar to the defendant even though he knew it was stolen.
(a) "Where an indictment is drawn under the Code, § 26-2620, charging the defendant with knowingly buying and receiving stolen goods, it is not necessary to prove that he knowingly received the stolen goods from the principal thief, but if it is proved that he received them, knowing them to be stolen, from any person whatsoever, he would be guilty of violating Code § 26-2620." Gaspin v. State, 76 Ga. App. 375 (3) (45 S. E. 2d 785). Accordingly, it would be no defense to Tucker to prove that he purchased the sugar from his companion, Farmer, rather than from the persons who stole it. As a matter of fact, however, there is no evidence to this effect and he does not contend in his statement that such was the case.
(b) The defendant admitted in his statement that he was present when the sugar was unloaded, and there is uncontradicted *474 evidence that he directed it to be unloaded on the property of a relative. Accordingly, the charge as given was not erroneous in any particular. As to the contention that in connection with the charge the court should have outlined to the jury other specific circumstances which the jury might have been authorized to find, and charge, without request, that under such specific circumstances the defendant should be acquitted, the rule of law is well settled that where the court charges fully and fairly all the ingredients of the offense, and charges that unless each of these is proved to the jury beyond a reasonable doubt they cannot convict, such charge is sufficient. "If elaborations of general law principles are desired, they must be requested." McNabb v. State, 69 Ga. App. 885, 887 (27 S. E. 2d 246). As stated in Kimbrell v. State, 57 Ga. App. 296 (195 S. E. 459): "Where the indictment alleged burglary, and the charge of the court substantially embraced the rules of law on the issues which the evidence made between the State and the defendant, if the defendant thought the charge was not full enough or clear enough or omitted something that would put his side more fairly before the jury than would the charge given, then the notice of the court should have been called thereto; and in the absence of an appropriate written request, the defendant can not now complain." In Caldwell v. State, 82 Ga. App. 480, 485 (61 S. E. 2d 543) it was stated: "The charge of the court when considered in its entirety, embraced the general principles of law applicable to the facts of the case. Here there was no request to charge and the court was not required to single out one item of evidence and charge the jury the effect of it." See also Holmes v. State, 194 Ga. 849 (3) (22 S. E. 2d 808) and citations. All of the remaining special grounds are without merit.
7. The evidence demanded a finding that the goods in question were stolen and were received by the defendant. The element of knowledge on the part of the defendant and his companion, Farmer, that they were stolen when he received them "being peculiarly subjective, may be inferred from circumstances." Austin v. State, 89 Ga. App. 866, 868 (81 S. E. 2d 508). These circumstances may include consideration of whether or not the amount of sugar purchased was greater than the principal thief would ordinarily have had for sale, he not being in the sugar *475 business, and whether or not the circumstances of the sale were such as to put the defendant as an ordinary person on inquiry as to its nature. Arkwright v. State, 57 Ga. App. 221 (194 S. E. 876). Here the amount of sugar purchased was greatly in excess of the normal amount, being about 3,000 pounds; the defendant's companion, who had arranged for the meeting, knew the source of the sugar and that it was being stolen (which, even if not imputable to the defendant, gave him a ready means of ascertaining the source by inquiry); the defendant and his companion waited on a lonely road in a parked car with the lights out in the early hours of the morning for the sugar to be delivered; upon its arrival the defendant proceeded into the first of the delivery cars, directed the driver to proceed to some isolated outbuildings belonging to a relative of his, and directed it to be unloaded. Accordingly, this case differs from Bird v. State, 72 Ga. App. 843 (4) (35 S. E. 2d 483) in that the evidence does not rest alone upon recent possession without other incriminating circumstances. The contention that the defendant might as easily have been merely accompanying and helping Farmer to receive the property at his request, the defendant being merely an innocent bystander, does not demand a reversal on the general grounds, particularly since this contention was never urged by the defendant in his statement or otherwise at the trial of the case, although he did deny buying it or knowing it was stolen, and at the same time stated he was along when it was unloaded. It was received by him, stored at his direction, and he makes no specific contention that he did these acts as the innocent agent of another. The general grounds of the motion for new trial are without merit.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 2, 2008
No. 07-10996
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RICKY LYNN COLE
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-27-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ricky Lynn Cole appeals the total 365-month term of imprisonment
imposed on resentencing following his jury trial conviction on 107 counts of
interstate transportation of child pornography, distribution of child obscenity,
transportation of obscene matter, and aiding and abetting. Cole argues that his
sentence is unreasonable in the light of the 18 U.S.C. § 3553(a) factors. He
argues that the sentence is greater than necessary to achieve the sentencing
goals of § 3553(a). He argues that his criminal history, his excellent
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-10996
relationships with family members, and his employment history are factors
weighing against the imposition of the 365-month term of imprisonment. He
also argues that the district court improperly accorded more weight to the
Guidelines than to the other § 3553(a) factors.
When reviewing a sentence, this court typically applies an abuse of
discretion standard in considering whether the district court committed
procedural error at sentencing and whether the sentence imposed is
substantively reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
However, because Cole failed to raise these specific arguments in the district
court, review of his sentence is for plain error. See United States v. Peltier, 505
F.3d 389, 390-93 (5th Cir. 2007), petition for cert. filed (Jan. 22, 2008) (No. 07-
8978); see also United States v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th
Cir.) (revocation context), cert. denied, 128 S. Ct. 325 (2007).
Cole does not argue that the district court improperly calculated the
applicable guideline range. As Cole concedes, his sentence is entitled to a
presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006); see also Rita v. United States, 127 S. Ct. 2456, 2462 (2007). The
district court stated that it considered the factors in § 3553(a) in imposing
sentence, and that a lengthy explanation of the sentence was not required. See
Rita, 127 S. Ct. at 2468.
Cole’s appellate argument is, in essence, that this court should reweigh the
§ 3553(a) factors. That an appellate court “might reasonably have concluded
that a different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall, 128 S. Ct. at 597. Cole has not shown that the sentence
imposed by the district court constituted error, plain or otherwise. See Gall, 128
S. Ct. at 597; United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.), cert.
denied, 128 S. Ct. 163 (2007). The judgment of the district court is affirmed.
AFFIRMED.
2
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11 F.3d 168
Lockhartv.Department of HHS*
NO. 93-6101
United States Court of Appeals,Eleventh Circuit.
Nov 30, 1993
1
Appeal From: N.D.Ala.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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Employer’s Rental of an Employee’s Residence During His
Participation in the President’s Executive Exchange Program
An em ployer m ay rent an em ployee’s house during his participation in the P resident’s' Executive
E xchange Program on the same b asis as any ordinary renter. However, 18 U .S .C . § 209 would
prohibit an arrangem ent whereby th e em ployer would rent without using the property o r perm it the
em ployee to have continued access to the property, because this would have the effect of
subsidizing the em p lo y ee’s governm ent service.
March 25, 1982
MEMORANDUM OPINION FOR THE CHIEF COUNSEL,
OFFICE O F GOVERNMENT ETHICS
This responds to your request for our formal concurrence in the Office of
Personnel Management (OPM) June 20, 1980, opinion and the Office of Govern
ment Ethics (OGE) July 16, 1980, concurring opinion regarding 18 U.S.C.
§ 209(e). Those opinions addressed a proposal by Corporation A to arrange for
the rental of an employee’s residence while the employee participated in the
President’s Executive Exchange Program. The Executive Director of the Presi
dent’s Commission on Executive Exchange (PCEE) has sought our formal
concurrence in these opinions.
The OPM memorandum concludes that “ arrangements by a company to assist
the participating exchange employee in the rental of his or her permanent
residence” during the exchange year would, “ depending upon the circum
stances,” be permissible. If a company rents an employee’s residence “ on terms
similar to those that would obtain if the employee rented the residence directly to
an individual tenant,” OPM concludes that the rental will not offend § 209.
Your memorandum agrees with this conclusion, noting that:
the individual circumstances of any case would control. For
example, excessive rental payments by the employer or the pay
ment by the employer of management fees for the rental property
would be objectionable under 18 U.S.C. § 209. . . . But a rental
where “ the employee is left in no better position than he would be
in if he rented the residence directly to an individual tenant”
would not be objectionable.
We concur in this conclusion, with the following comments.
224
/
Both the OPM and the OGE memoranda rely on prior OLC opinions. The
OPM memorandum quotes a 1978 OLC memorandum opinion for the President’s
Commission on White House Fellowships as follows:
When the company arranges for the rent of the permanent resi
dence, or rents the residence itself, the employee should be left in
no better position than he would be in if he rented the residence
directly to an individual tenant. For example, the employee
should bear any rental or management fees entailed in the firm’s
renting the residence to an individual tenant; and if the arrange
ment provides fo r the firm to rent the residence and leave it
unoccupied, the fair market rental should be reduced by a reason
able estimate of maintenance and other costs that foreseeably will
not be incurred.
Memorandum Opinion for the Director, President’s Commission on White House
Fellowships, from Larry A. Hammond, Acting Assistant Attorney General,
Office of Legal Counsel, 2 Op. O.L.C. 267, 269 (1978) (emphasis added). A
footnote in that 1978 letter stated that “ implicit” in our conclusion that a
company could rent an employee’s personal residence during a White House
Fellowship was the understanding that “ the employee was prepared to rent the
house to a tenant who would reside there, so that the employer would not be
paying the employee for a residence the employee intended to leave vacant. In the
latter situation, the employer’s payment of rent could disguise a supplementation
of government salary.” Id. note 1, at 269.
These statements may cause some confusion in assessing the permissibility of
any particular rental. While the text suggests that it would be proper for a
company to rent an employee’s home and leave it empty, the footnote suggests
that such an arrangement might serve as a disguised supplementation of salary,
which would, of course, be impermissible.
To clarify this question, we believe it should be understood that an employer
may not rent an employee’s home during his or her exchange year merely to let
the house sit empty. As both the OGE and OPM memoranda emphasize, and as
prior OLC opinions have indicated, arrangements whereby an employer rents an
employee’s home during an exchange year are generally permissible insofar as
the employee is left in no better position than he or she would have been in if an
individual tenant were renting the residence. Thus, the terms of such rentals must
be comparable to the terms of any open-market agreement that might be reached.
When a company pays rent to allow a rental property to remain vacant and
unused, however, ordinary rental-market principles are not being applied. Since
we are aware of no reason to enter into such an agreement except to provide an
extra benefit to the employee, and none have been suggested, such an arrange
ment would have to be viewed as an impermissible supplementation of the
employee’s government salary.
Therefore, a company may not arrange to rent an employee’s permanent
residence during the exchange year if the home is to be left vacant, or, alter
225
natively, if the employee is to be granted continued access to the residence. If,
however, (1) a company rents, or arranges the rental of, an employee’s home for a
fair market rental, for the purpose of either using the residence itself or renting it
to others during that year; (2) the employee and his or her family will not have use
of the residence during the rental period; and (3) the employee bears any rental,
management, or other fees and costs ordinarily borne by a lessor, so that the
employee is “ left in no better position than he would be in if he rented the
residence directly to an individual tenant,” we concur in your conclusion that
§ 209 is not offended. In essence, a company may arrange for rental of an
employee’s home during an exchange year on the same basis as any other renter,
but may not enter into arrangements that would not ordinarily obtain on the open
market or that would have the effect of “ subsidizing” the employee by, for
example, paying rent without using the property or permitting the employee to
have continued access to the property.
L a r r y L . S im m s
D eputy Assistant Attorney General
Office of Legal Counsel
226
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415 F.2d 606
MERCANTILE BANK AND TRUST COMPANY, Administrator of theEstate of Robert James Leary, Deceased, Appellant,v.The WESTERN CASUALTY AND SURETY COMPANY, Appellee.
No. 19498.
United States Court of Appeals Eighth Circuit.
Sept. 2, 1969.
Charles C. Shafer, Jr., Kansas City, Mo., for appellant.
Thomas E. Deacy, Jr., of Deacy & Deacy, Kansas City, Mo., for appellee; Lester J. Vandever, Kansas City, Mo., with him on the brief.
Before BLACKMUN, MEHAFFY and LAY, Circuit Judges.
MEHAFFY, Circuit Judge.
1
This appeal is from a summary judgment and involves the construction of an automobile insurance policy issued to 'Robert Leary' (Robert James Leary) covering three automobiles, one of which was a Ford Thunderbird. The Policy covered only comprehensive insurance on the Thunderbird as Leary had eliminated this car from its original liability coverage and obtained a refund of the premium on that account. On January 1, 1965, Mr. Leary while driving the Thunderbird had a head-on collision with another automobile, resulting in the loss of his life and the lives of three of the occupants of the other car and severely injuring the fourth occupant. This suit was brought by the Administrator of Leary's estate, Mercantile Bank and Trust Company, against the insurance carrier, The Western Casualty and Surety Company, seeking to recover certain amounts allegedly due under the policy as a result of the accident.
2
The parties entered into a stipulation of facts and, based upon findings from the stipulation and from uncontroverted evidence consisting of exhibits and affidavits, the trial court entered its memorandum and order and ultimate judgment concluding favorably to Western, holding that the Thunderbird was not covered by liability insurance under the terms of the policy. We affirm.
3
This is a diversity action and the parties agree that the substantive law of Kansas controls.
4
Appellant, Administrator of the Estate of Robert James Leary, Deceased, will be referred to as plaintiff. It is plaintiff's contention on appeal that, even though Leary had specifically cancelled the liability coverage on the Thunderbird, it was covered under the 'Use of Other Automobiles' clause of the policy issued by Western by reason of the liability coverage on the other two automobiles designated in the policy. Western contends that the Thunderbird was excluded by the terms of the policy which excludes other automobiles owned by the insured or a member of the same household other than a private chauffeur or domestic servant of the named insured or spouse.1
5
Initially, Leary insured the 1956 Thunderbird and a 1963 Buick under the same policy, both being insured for bodily injury and property damage liability, automobile medical payments, comprehensive and collision coverage. However, prior to the accident Leary purchased a 1965 Mustang for Mrs. Leary's use and called his insurance agent telling him to cover the Mustang with the aforementioned coverages and eliminate the insurance on the Thunderbird altogether, as he intended to store it and not use it. The Learys had two children, twelve and nine years old. Leary considered the Thunderbird more or less a 'classic' car and he intended to keep it in storage until his children reached driving age. His insurance broker and agent was Mr. Clyde B. Morris, who had handled all of decedent's automobile insurance for about fifteen years. Mr. Morris suggested to Leary that, rather than eliminate all coverage on the Thunderbird, he should retain comprehensive coverage on it since he was going to keep it but not use it. They agreed to this, and accordingly, as his agent, Morris submitted the request to Western to add the Mustang to the policy with all of the aforementioned coverages, and to eliminate the Thunderbird as to bodily injury and property damage liability, medical payments and collision coverage, retaining only the comprehensive coverage. When this was done and the renewal policy reflecting these changes became effective, a refund was made to Leary as a result of the elimination of the liability coverage on the Thunderbird.
6
Leary was the named insured in the policy, although each car was titled in Kansas in the names of Robert J. Leary and/or Patricia Leary. Morris stated that at no time did Leary advise him that the Thunderbird was owned by anyone except himself, the named insured, and that Leary took no exception to the statement contained on the face of the policy that: 'Except with respect to bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance the named insured is the sole owner of the auto.' Morris also stated that at no time before Leary's death did Leary, or anyone on his behalf, request Morris or anyone connected with Western, insofar as he knew, to insure the Thunderbird for liability coverage.
7
Subsequent to the issuance of the insurance policy, Leary's work took him to Florida, tne at the time of the accident he and his family were living in Jacksonville, Florida. They took the Buick and Mustang with them but left the Thunderbird in storage in Kansas City. Originally, it was planned that Mrs. Leary and the two children would fly back to spend the Christmas Holidays in 1964 with her family in Kansas, but for business reasons Mr. Leary flew back with them. When he decided to return to Jacksonville before his family did, he was unable to secure flight reservations so he had the Thunderbird serviced and left Kansas City for Jacksonville about 9:00 a.m. on January 1, 1965, and the accident occurred approximately one hour later.
8
As a result of the accident, four suits were instituted against the estate of Leary, and the then Administratrix made demand upon Western to defend the actions. Western refused on the ground that Leary carried only comprehensive coverage on the Thunderbird and not public liability coverage, and that although he carried liability insurance on the two other cars in the same policy this coverage did not extend to his operation of the Thunderbird which was specifically excluded as another owned car. Ultimately the cases were settled by the estate and this suit was instituted seeking reimbursement from Western for the amounts of settlement plus attorneys' fees and an equal amount as punitive damages for Western's refusal to defend the actions.
9
We agree with the district court's conclusion of lack of liability coverage on the Thunderbird and, supportive of this conclusion, we call attention to the following:
10
1. Leary's deliberate decision to eliminate the Thunderbird from all insurance coverage.
11
2. His authorization to his own agent to do this.
12
3. The agent's suggestion that, as long as he was going to keep the car and put it in storage, he should consider retaining merely comprehensive insurance and obtain a refund of the premium for liability insurance.
13
4. Leary's agreement to his agent's suggestion and his acceptance of the refund.
14
5. His failure to obtain public liability insurance on the Thunderbird when he decided much later to use it, thereafter being involved in the accident.
15
6. The fact that each automobile in the policy was specifically insured only under the provisions of the contract designated and for which a premium had been paid, and the Thunderbird was designated and a premium paid for comprehensive insurance only.
16
7. The provision with respect to liability coverage when driving other cars specifically stated that such coverage did not apply to any 'other' automobile owned by either the named insured or a member of the same household, except a private chauffeur or domestic servant.
17
We agree with the district court's holding that under the facts here the exclusion of cars owned by the insured or his spouse from coverage under the 'Use of Other Automobiles' clause made the liability and other coverage on the Buick and Mustang inapplicable to the Thunderbird. This is a more or less standard provision of automobile liability insurance policies, its purpose being to prevent the owner of several cars from paying for liability coverage on only one car and obtaining coverage when driving his other vehicles under the 'Use of Other Automobiles' clause. See collection of cases from various jurisdictions in annotation entitled 'Exclusion from 'drive other cars' provision of automobile liability insurance policy of other automobile owned, hired, or regularly used by insured or member of his household' in 86 A.L.R.2d 937, and 7 Am.Jur.2d Automobile Insurance 105, 106 (1963).
18
Yet, despite the factual background, plaintiff has made an ingenious argument on the interpretation of the contract, commencing with the age-old rule of strict interpretation against the insurance company. It is true that Kansas follows the almost universal rule of strict construction against the insurer with regard to ambiguous provisions of an insurance policy; however, there is another rule equally well recognized in Kansas that, where an insurance contract is not ambiguous, courts will not make another contract for the parties but will enforce the contract as made.
19
The status of the Kansas law on the interpretation of ambiguous provisions was thoroughly discussed in Aetna Cas. & Sur. Co. v. Miller, 276 F.Supp. 341 (D.Kan.1967), and numerous cases of the Kansas Supreme Court cited therein. The court said at 276 F.Supp. 344:
20
'The law is well laid down in Kansas, as in most other states, that a policy of insurance should be strictly construed against the insurer, and liberally in favor of the insured. See (Queen) Insurance Company v. (Excelsior) Milling Company, 69 Kan. 114, 76 P. 423. Stating the same principle in a different way, ambiguous, inconsistent, or uncertain provisions are construed against the insurer, and most favorably to the insured. (Citing cases.)'
21
However, the Kansas Supreme Court has considered the provision under consideration here and found it to be unambiguous. See General Leasing Corp. v. Anderson, 197 Kan. 327, 416 P.2d 302 (1966).2
22
When there is no ambiguity, the applicable rule is the one stated in Ferguson v. Phoenix Assur. Co. of New York, 189 Kan. 459, 370 P.2d 379, 382, 99 A.L.R.2d 118 (1962), as follows: 'Where an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. (Citing cases.)' To the same effect, see Saul v. St. Paul-Mercury Indem. Co., 173 Kan. 679, 250 P.2d 819, 823 (1952), which involved the construction of a motor vehicle policy. There the court held that the rule concerning the construction of ambiguous terms of a policy does not justify the imposing of insurance risks not assumed by the company and for which no premium has been paid, citing Barish-Sanders Motor Co. v. Fireman's Fund Ins. Co., 134 Neb. 188, 278 N.W. 374, 375 (1938). See also Ferguson v. Phoenix Assur. Co. of New York, supra.
23
The United States Supreme Court long ago expressed a similar view, which has been often quoted by this court. In the recent case of Kern v. Liberty Mut. Ins. Co., 398 F.2d 958, 960 (8th Cir. 1968), we quoted from Massachusetts Bonding and Ins. Co. v. Julius Seidel Lumber Co., 279 F.2d 861, 865-866 (8th Cir. 1960), where the late Judge John Sanborn said:
24
"Perhaps the classical statement of the rule applicable to the construction of contracts of insurance is that of Mr. Justice Sutherland in Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 492, 52 S.Ct. 230, 231, 76 L.Ed. 416. He said: "'* * * It is true that where the terms of a policy are of doubtful meaning, that construction most favorable to the insured will be adopted. (Citations.) This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings. "'Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense. (Citation.) * * *"'
25
Judge Sanborn went on to quote from other authorities that the rule pertaining to ambiguity 'does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.' To the same effect, see Home Indem. Co. v. Miller, 399 F.2d 78, 81 (8th Cir. 1968), and McMichael v. American Ins. Co., 351 F.2d 665, 669 (8th Cir. 1965). In the Home Indem. Co. case, supra, we quoted from Giokaris v. Kincaid, 331 S.W.2d 633, 636, 86 A.L.R.2d 95 (Mo.1960), that where possible it is our duty to give every clause of the policy some meaning, and that this includes policy provisions excepting liability, citing Williams v. Union Central Life Ins. Co., 291 U.S. 170, 54 S.Ct. 348, 78 L.Ed. 711 (1934). In the Williams case, supra, Mr. Chief Justice Hughes, delivering the opinion of the Court, said at 291 U.S. 180, 54 S.Ct. 352:
26
'As there is no ambiguity in the provisions under consideration, there is no occasion for resort to the familiar principle that equivocal words should be construed against the insurer. While it is highly important that ambiguous clauses should not be permitted to serve as traps for policyholders, it is equally important, to the insured as well as to the insurer, that the provisions of insurance policies which are clearly and definitely set forth in appropriate language, and upon which the calculations of the company are based, should be maintained unimpaired by loose and ill-considered interpretations.'
27
Western calculated its premium on the coverage which it wrote on the Thunderbird. When the bodily injury and property damage liability, medical payments, and collision coverages were cancelled on the Thunderbird, the premium for insurance on that car was reduced to only $17.00, and it was insured only to the extent of the actual cash or market value if stolen, damaged or destroyed certain enumerated causes, not including collision. By contrast, the premiums paid on the other two cars, which included liability coverage, were $156.00 on the Mustang and $104.00 on the Buick. The premiums for bodily injury liability alone were $62.00 on the Mustang and $38.00 on the Buick. Certainly, it is unreasonable to construe the policy so as to hold the company to the same degree of liability on the Thunderbird either with or without the payment of premium for liability coverage. As a matter of fact, Item 3 of the policy specifically provides:
28
'The insurance afforded for each automobile is only with respect to such of the following coverages as are indicated by specific premium charge. The limit of Western's liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto.'
29
This provision was construed by the Kansas Supreme Court in Saul v. St. Paul-Mercury Indem. Co., supra, which involved a situation closely analogous to the situation before us. There the insured claimed that although he did not purchase and pay the premium rate for insurance coverage which would have protected him against damage resulting from flood or rising water, the word 'water' found in the general description of coverage for which premiums were paid should be construed to include damage by 'flood or rising water.' The Kansas Supreme Court rejected this view stating that it could not agree to such a narrow rule of construction for determining the intent of the parties. The court held that this was particularly true where it plainly appeared in the policy that various types of insurance were available and that the insured declined to purchase the kind of insurance which would have afforded the kind of coverage he then claimed. This is the situation here.
30
Plaintiff contends that since the title to the Thunderbird was in the names of Robert J. Leary and/or Patricia Leary, they were tenants in common under K.S.A. 58-501, which provides that personal property devised to a husband and wife shall create a tenancy in common in such property unless specific language in the devise makes it clear that a joint tenancy was intended to be created. Plaintiff thus contends that the car was not solely owned by either the named insured or by a member of the same household, and, therefore, it was not excluded under the policy. The district court held, however, that under the applicable statutory and case law of Kansas and the motor vehicle registration regulations promulgated pursuant thereto, either Robert Leary or Patricia Leary was capable of conveying good title, and, therefore, either could be considered as the 'owner.' The court noted that Regulation No. 95-1-20 which was in effect at the time the Thunderbird was registered provided that whenever a certificate of title is issued in the name of two or more persons using the phrase 'and/or' a new certificate of title will be issued upon the presentation of an assigned certificate of title which has been executed by any one of the persons shown as an owner on the certificate of title, and that, under Kansas law, regulations properly filed have the effect of law. The court further noted that under the holding of the Supreme Court of Kansas in Maryland Cas. Co. v. American Family Ins. Group, 199 Kan. 373, 429 P.2d 931 (1967), the word 'owner' when used in an automobile insurance policy must be construed in accordance with the construction placed on the word in the Kansas motor vehicle registration statute, K.S.A. 8-135(c), the statute being, in effect, read into the terms of the policy. The question there was whether the buyer of an automobile was the 'owner' after he had been delivered possession thereof but before the certificate of title had been transferred to him in accordance with the motor vehicle registration law. The court held that the seller was still the owner of the automobile under the registration statute and consequently also within in the meaning of the policy. See also Western Fire Ins. Co. v. Hawkeye-Security Ins. Co., 213 F.Supp. 744 (W.D.Mo.1962), similarly applying Kansas law.
31
Certainly, the Kansas motor vehicle registration statutes and regulations cannot be disregarded. But whether the car was owned jointly or severally, whether Leary was owner or co-owner with his wife who was a member of his household, would have no material effect under the facts here. It was owned by one or both of the Leary's who were members of the same household, and there is no contention nor showing that Robert Leary, the insured, did not have authority to exercise control over it.
32
As was said by the district court, if the court were to construe the policy as plaintiff suggests, i.e., that neither the named insured nor a member of the same household owned the Thunderbird, the same would be true of the other two cars since all three were titled in the names of Robert J. Leary and/or Patricia Leary. Under such a construction, plaintiff's claim of coverage under the liability provisions applicable to the other two cars would be defeated since Insuring Agreement V provides that only if during the policy period such named insured or spouse owns a private passenger automobile covered by the policy will there be coverage under that clause. See Daugaard v. Hawkeye Security Ins. Co., 239 F.2d 351, 354 (8th Cir. 1956). We conclude that there is no merit to plaintiff's argument on this point.
33
The provisions of the policy when applied to the facts here are clear and unambiguous and must be given their plain meaning. The policyholder intentionally cancelled the liability provision as to the car involved in the accident and obtained a refund of the premium. The policyholder had control over the car, which was owned by him and/or his wife. It was specifically excluded from the liability coverage pertaining to the parties' other two cars as a car owned by policyholder or a member of his household, and it is not for this court to alter the agreement between the parties.
34
The judgment of the district court is affirmed.
1
The pertinent part of the insurance policy is as follows:
'V. Use of Other Automobiles: If the named insured is an individual or individual and spouse and if during the policy period such named insured or spouse owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverages A (bodily injury liability), B (property damage liability) and division 1 of coverage C (automobile medical payments for occupants of car) with respect to said automobile applies with respect to any other automobile, subject to the following provisions:
'(a) Except with respect to division 1 of coverage C, the unqualified word 'insured' includes (1) such named insured and spouse, (2) any relative of such named insured or spouse and (3) any other person or organization legally responsible for the use by such named insured, spouse or relative of an automobile not owned or hired by such other person or organization. Insuring Agreement III (definition of 'insured') does not apply to this insurance.
'(b) With respect to coverages A and B, exclusion (a) of Section I shall not apply to such named insured, spouse or relative while such person is occupying an automobile used as a public or livery conveyance other than as the operator thereof.
'(c) Under division 1 of coverage C, this insurance applies only if the injury results from the operation of such other automobile by such named insured, spouse or relative or on behalf of any of them by a private chauffeur or domestic servant of any such individual, or from the occupancy of said automobile by such named insured, spouse or relative.
'(d) This insuring agreement does not apply to any automobile:
'(1) owned by either the named insured or a member of the same household other than a private chauffeur or domestic servant of the named insured or spouse. * * *'
2
In the Anderson case, the Kansas Supreme Court quoted with apparent approval from Giokaris v. Kincaid, 331 S.W.2d 633, 638 (Mo.1960), 86 A.L.R.2d 925, where the Missouri court said with regard to a similar provision: 'We conclude it is not ambiguous and excludes from coverage the insured's use of any other automobile (1) owned by the insured or a member of the same household * * *.'
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930 F.Supp. 720 (1996)
REEBOK INTERNATIONAL LIMITED, et al., Plaintiffs,
v.
Roberto SEBELEN, et al., Defendants.
Civil No. 94-2677 (SEC).
United States District Court, D. Puerto Rico.
July 2, 1996.
*721 Luis Sánchez-Betances, Sanchez Betances & Sifre, San Juan, PR, Harley I. Lewin and James H. Donoian, Lewin & Laytin, P.C., New York City, for Plaintiffs.
José A. Figueroa-Morales, San Juan, PR, for Defendants.
OPINION AND ORDER
CASELLAS, District Judge.
Plaintiffs bring this action pursuant to the Lanham Act, 15 U.S.C. § 1051, et. seq., as amended by the Trademark Counterfeiting Act of 1984, Public Law 98-473. Plaintiffs allege that defendants have engaged in the systematic manufacture, import, export, sale and distribution of counterfeit REEBOK footwear from Asia through the United States. They also allege that defendants conducted business activities within Puerto Rico and the United States, including the importation of goods into Puerto Rico[1], maintaining active bank accounts in Puerto Rico and New York,[2] and directing plaintiffs' investigators to deposit funds into defendants' Puerto Rico bank account, specifically relating to the purchase of defendants' counterfeit REEBOK footwear.[3]
In addition, plaintiffs allege that defendants shipped their counterfeit REEBOK footwear cargo from Hong Kong to Santo Domingo via shipping route which entailed the discharge of the falsified goods in Los Angeles, California, transporting them across the United States by rail to Miami, Florida, and reloading them aboard a ship to Santo Domingo.[4] Plaintiffs allege that defendants engaged in these activities deliberately and knowingly, in violation of the Lanham Act.[5]
Defendants Roberto Sebelen, George Perez Sebelen; Ranier Sebelen and Almacenes San Juan, CxA, have filed a Motion for Summary Judgment seeking the Court to dismiss this case due to lack of personal jurisdiction over defendants as well as lack of subject matter jurisdiction. (Docket # 26) After close analysis of the parties' arguments and applicable law, defendants' motion is DENIED.
Summary Judgment Standard
As noted by the First Circuit, summary judgment has a special niche in civil litigation. Its role is "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 *722 S.Ct. 1845, 123 L.Ed.2d 470 (1993). The device allows courts and litigants to avoid full-blown trials in unwinnable cases, thus conserving the parties' time and money and permitting courts to husband scarce judicial resources. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 314-315 (1st Cir.1995).
According to Fed.R.Civ.P. 56(c), a summary judgment motion should be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir. 1994). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
For a dispute to be "genuine," there must be sufficient evidence to permit a reasonable trier of fact to resolve the issue in favor of the nonmoving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992). See also, Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989). By like token, "material" means that the fact is one that might affect the outcome of the suit under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994).
Moreover, this Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment "admits of no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails." Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684.
Analysis
Application of Extraterritorial Jurisdiction Pursuant to the Lanham Act
This Court may properly exercise subject matter jurisdiction in this action because defendants shipped counterfeit Reebook shoes through parts of the United States, using the overland freight system of the United States,[6] offered for sale goods bearing trademarks of a United States company,[7] and used their Puerto Rico bank accounts to facilitate their counterfeiting activity.[8]
The Lanham Act provides a "broad jurisdictional grant" that extends to "all commerce which may lawfully be regulated by Congress." Steele v. Bulova Watch Co., Inc., 344 U.S. 280, 73 S.Ct. 252, 97 L.Ed. 319 (1952); 15 U.S.C. §§ 1127. This jurisdictional scope includes the foreign commerce of the United States. Ocean Garden, Inc. v. Marktrade Co., 953 F.2d 500, 503 (9th Cir.1991).
The Lanham Act thus applies to defendants' acts in distributing counterfeit Reebok shoes, since plaintiffs are engaged in the global sale of REEBOK products,[9] including the sale in the Dominican Republic.[10] Defendants' distribution and sales of counterfeit REEBOK products clearly affect United States foreign commerce. Ocean Garden, 953 F.2d at 503.
The broad application of the Lanham Act is now widely accepted. Wells Fargo and Co. v. Wells Fargo Express Co., 556 F.2d 406, 427 (9th Cir.1977) (citing Timberlane Lumber Co. v. Bank of Am. Nat'l Trust and Savings Assoc., 549 F.2d 597 (9th Cir.1977) (hereinafter Timberlane I)). See also Babbit *723 Electronics, Inc. v. Dynascan Corporation, 38 F.3d 1161 (11th Cir.1994) ("Lanham Act jurisdiction exists even though infringer's sales occurred outside the United States.")
Where the defendants deal in counterfeit footwear between Asian and other countries, even though no counterfeit shoes are distributed in the United States, United States courts have jurisdiction over the defendants under the Lanham Act by reason of their United States banking activities and use of United States commerce. Timberlane Lumber Co. v. Bank of Am. Nat'l Trust and Savings Ass'n., 749 F.2d 1378, 1383 (9th Cir. 1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).
Bulova and its progeny stand for the proposition that United States courts have the ability to enforce the Lanham Act against counterfeiters and infringers who use, and benefit from, United States financial institutions, transportation systems and domestic companies, even though the ultimate sale of their falsified goods occurs outside the United States. Defendants' conduct in the present case presents a compelling case to exercise Lanham Act jurisdiction, pursuant to the above mentioned principles.
Miami and Puerto Rico are two major ports through which a substantial quantity of goods are transported on their way to the Dominican Republic and other Latin American countries. Counterfeit goods, such as defendants' falsified REEBOK goods, must pass through United States territory on their route from Asia to the Dominican Republic. Defendants cannot escape liability by reason of the ultimate delivery of their goods to the Dominican Republican rather than to the United States. Plaintiffs argue, and this Court agrees, that to allow defendants to continue this practice would be to completely emasculate the ability of the United States and its courts to regulate commerce and enforce the Lanham Act, respectively.
This Court also concludes that it should apply the Lanham Act to the defendants' extraterritorial acts in the Dominican Republic and elsewhere. To determine whether the exercise of extraterritorial jurisdiction is warranted, courts have often followed the guidelines enunciated in Timberlane I, which delineated the three-factor balancing test.
First, there must be some effect on American foreign commerce; second, the effect must be sufficiently great to present a recognizable injury to plaintiffs under the federal statutes; third, the interests of and links to American foreign commerce must be sufficiently strong in relation to those of other nations to justify an assertion of extraterritorial authority.
Timberlane I, 549 F.2d at 613-615.
Upon careful review of these elements to the above captioned case, we conclude that exercise of federal jurisdiction in this case would be proper.
Plaintiffs clearly meet the first two requirements. The effect on American foreign commerce must be "some effect actual or intended on American foreign commerce before the federal court may legitimately exercise subject matter jurisdiction ..." Id. at 613; Reebok International Ltd. v. Marnatech, 737 F.Supp. 1515 (S.D.Cal.1989), aff'd by Reebok Int. Ltd. v. Marnatech, 970 F.2d 552 (9th Cir.1992) ("the sale of counterfeit merchandise in Mexico by defendants sufficiently affects United States commerce.") Defendants in the present case used their Puerto Rico banks[11] to facilitate the financing of the transactions and shipped at least two shipping containers (approximately 18,000 pairs) of counterfeit REEBOK shoes overland through the United States.[12]
They were discharged in Long Beach, California, loaded on-rail, and transported to Miami via Santa Fe Rail Road and CSX Intermodal Railroad, where they were loaded aboard a vessel and shipped to Santo Domingo.[13] Defendants' use of the banking system and overland freight system in the United *724 States undoubtedly affects American commerce.
Defendants also sold thousands of pairs of counterfeit REEBOK shoes in the Dominican Republic and other areas near Puerto Rico[14], which foreseeably could enter the United States. The Court in Marnatech noted there is a constant flow of consumers across the borders of Mexico and the United States. Similarly, there is extensive travel between Santo Domingo and San Juan, Miami and New York. Sales of counterfeit REEBOK products in the Dominican Republic will, as in Marnatech and Ocean Garden, result in travel of the product to the United States, directly and adversely impacting United States foreign commerce.
Plaintiffs own the trademark REEBOK for footwear in both the United States and the Dominican Republic.[15] Counterfeit REEBOK product sales in the Dominican Republic not only diminish the value of genuine REEBOK footwear but significantly and adversely affect the value of plaintiffs' consolidated holdings. This issue was acknowledged and held to satisfy the second prong of Timberlane I balancing test by both the lower court, Marnatech, 737 F.Supp. at 1519 and by the Ninth circuit in Marnatech, 970 F.2d at 552. The district court noted:
Not only does it appear that plaintiffs suffer the direct loss of income suffered from the sales of counterfeit goods in Mexico, such sales offend the provisions of the Lanham Act more than the minimal amount required under Timberlane I requirements. Such activities, for example, may divert plaintiffs' genuine Mexican sales, decrease the value of the American plaintiffs' consolidated holdings and damage the American plaintiff directly when these goods find their way into the United States." Id. 737 F.Supp. at 1519.
Accordingly, defendants engage in activity which affects American foreign commerce and harms plaintiffs.
The third element of Timberlane I whether the United States' interests compared to those of other nations are sufficiently strong to justify jurisdiction is a policy question involving the balancing of seven factors.[16]
1) Degree of Conflict.
There is no degree of conflict with Dominican law. While there is a criminal case pending in the Dominican Republic regarding defendants' counterfeit REEBOK shoes, the issues will be resolved in the Dominican Court with respect to plaintiffs' trademarks. In fact, upon defendants' motion in the Dominican case, the Dominican court ruled, on December 18, 1995, that there is no conflict between the two cases and that the Dominican case should continue concurrently with the present case.[17]
Defendants acknowledge there is "no conflict with plaintiffs' trademark right in the Dominican Republic or the United States."[18] Moreover, plaintiffs are not entitled to the same civil relief in the Dominican Republic. See also Marnatech, 970 F.2d at 557 (the Court found no conflict between plaintiffs' United States case and its simultaneous trademark counterfeiting case in Mexico.)
2) Nationality of Parties.
The nationality or allegiance of the parties also weighs in favor of extraterritorial jurisdiction over defendants. Reebok International *725 Ltd. is a Massachusetts corporation and Reebok International Ltd. is a United Kingdom corporation, both of whom have substantial contacts with the United States. Defendants also have substantial contacts and business in the United States.
3) Enforcement/Compliance.
Third, enforcement in the United States will probably achieve greater compliance. A judgment and injunction against defendants can be easily enforced in the United States through which they transport their counterfeit goods and where they maintain bank accounts and conduct business. As noted earlier by the Court, Puerto Rico and Miami are the major ports through which all goods must pass en route to the Dominican Republic. By cutting off the ability of defendants to use the United States in their illicit counterfeiting activities, this Court can significantly limit the flow of imitation products between Asia and Latin America. Plaintiffs argue, and this Court agrees, that a judgment from the Dominican Court would not prevent defendants from using their bank accounts or transporting the goods through the United States to other jurisdictions.
The remaining factors also weigh in plaintiffs' favor:
4) Effects of Defendants' Activities on the United States.
The effect on the United States of defendants' activities is significant. The use of United States banks and transportation services to carry out counterfeiting activities, as well as the harm to and financial effect on a major United States business, creates sufficient effect to warrant exercise of federal jurisdiction. Ocean Garden, 953 F.2d at 504; Marnatech, 970 F.2d at 557.
5) and 6) Purpose and Foreseeability.
Defendants knew the plaintiff's trademarks were registered in Puerto Rico and that their goods were counterfeit.[19] Their decision to sell counterfeit REEBOK footwear had the purpose of harming plaintiffs in the United States, a foreseeable harm under the circumstances of the present case. Ocean Garden, 953 F.2d at 504; Winterland Concessions v. Fenton, 835 F.Supp. 529, 531 (N.D.Cal.1993).
7) Importance of Violations.
While defendants sold their goods in the Dominican Republic, the impact of those violations in the United States are as harmful as those in the Dominican Republic. As noted above plaintiffs owns the trademark REEBOK for footwear in both the United States and the Dominican Republic.[20] Counterfeit REEBOK product sales in the Dominican Republic not only diminish the value of genuine REEBOK footwear but significantly and adversely affect the value of plaintiffs' consolidated holdings.
Upon close analysis of the above facts, the balance of the Timberlane I factors weighs in favor of extraterritorial jurisdiction. As noted by the Court in Marnatech, "This is not a case where the interests of the United States are too weak and the foreign harmony incentive for restraint too strong to justify an extraterritorial assertion of jurisdiction" 970 F.2d at 552 (quoting from Timberlane I, 549 F.2d at 609). Accordingly, and pursuant to the well-settled principles of broad jurisdiction under the Lanham Act, this Court can properly exercise jurisdiction in this matter as well as extraterritorial jurisdiction over defendants' foreign activities.
Personal Jurisdiction Over Defendants
The Court also concludes that the circumstances of the present case justify the exercise of personal jurisdiction over the defendants. Defendants invoke the defense of lack of personal jurisdiction, by merely asserting that they are neither residents of Puerto Rico, or that they conducted any business in Puerto Rico.[21]
The courts have repeatedly held that the exercise of personal jurisdiction is appropriate where a party has engaged in significant activities within a state or has created *726 "continuing obligations between himself and residents of the forum." This exercise of jurisdiction may not be avoided merely because the defendant did not "physically enter the forum state." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985).
A defendant's conduct with the forum must result from the defendants' purposeful act. Young v. Pannell Fitzpatrick & Co., 641 F.Supp. 581 (D.P.R.1986) ("The inherent foreseeability of consequences is one of the keystones of personal jurisdiction"); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902, 905 (1st Cir.1980). Plaintiffs may not haul a defendant into a jurisdiction as a result of "random," "fortuitous," or "attenuated" contacts. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), or pursuant to the "unilateral activity of another party or a third person." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404 (1984).
Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); see also Kulko v. Superior Court of California, 436 U.S. 84, 94, 98 S.Ct. 1690, 1698, 56 L.Ed.2d 132 (1978); Burger King, 471 U.S. at 475, 105 S.Ct. at 2183-84; Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994) (personal jurisdiction may be relied upon where the cause of action arises out of, or relates to, the defendant's forum-based contacts.)
Defendants' systematic and continuous acts in Puerto Rico, as well as their use of their Puerto Rico bank account relating to their trademark counterfeiting, give rise to both general[22] and specific jurisdiction, to wit:
1) Defendants' transfer of several hundred thousand dollars through their bank accounts in Puerto Rico;[23]
2) Defendants directed the plaintiffs' investigators to wire-transfer the fund to one of their bank accounts in Puerto Rico specifically relating to the offer for sale of the counterfeit Reebok Shoes;[24]
3) The letter from defendants specifically names the bank account in the name of defendant Roberto Sebelen, care of defendant Almacenes San Juan C por A;[25]
4) Defendants manufactured and imported thousands of pairs of counterfeit REEBOK shoes, as many as two (2) containers of the shoes per month. Such shipping suggests that the bank account was probably used for other transactions involving counterfeit REEBOK footwear;[26]
5) Defendants have a furniture store in Puerto Rico;[27]
6) Defendants have imported several shipping containers into the port of San Juan.[28]
Moreover, defendants' acts support jurisdiction under Puerto Rico's Long-Arm Statute, 32 P.R.Laws Ann.App. III, R. 4.7, which permits the exercise of jurisdiction to the full extent of constitutional authority. American Express International v. Mendez-Capellan, 889 F.2d 1175 (1st Cir.1989). To determine whether, consistent with due pro *727 cess, personal jurisdiction may be exercised under Rule 4.7, plaintiffs must show that the nonresident defendant consummated some act or transaction on the island related to the cause of action and substantial enough to meet the due process requirements of "fair play and substantial justice." Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980).
As noted above in detail, defendants have conducted various businesses in Puerto Rico on a continuous basis. More important, defendants' use of their Puerto Rico bank account to further their counterfeiting activities is directly related to plaintiffs' cause of action for trademark counterfeiting and infringement. They are subject to the jurisdiction of this Court under either Rule 4.7(1) or 4.7(2).
This Court's exercise of either general or specific jurisdiction over the defendants comports with the due process requirements of fair play and substantial justice. Due process requires that the defendants have certain "minimum contacts with the forum so that maintenance of the suit does not offend the traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1087 (1st Cir.1992). Defendants have purposefully availed themselves of the privilege of conducting activities within Puerto Rico, thus invoking the benefits and protection of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).
In view of the facts of the present case and applicable law, this Court concludes that it is entirely reasonable for the defendants to expect to defend themselves in Puerto Rico. Accordingly, personal jurisdiction over the defendants comports with Puerto Rico's longarm statute and the due process clause of the Constitution.
Taking the facts discussed above in the light most favorable to the non-moving plaintiffs, Casas Office Machines, 42 F.3d at 684, this Court finds that the Court has personal and subject matter jurisdiction over the present action. Accordingly, defendants' Motion for Summary Judgment is DENIED. (Docket # 26)
SO ORDERED.
NOTES
[1] Statement of Facts ¶¶ 15, 16, 17; Declarations of Sean A. Wallace, January 26, 1996 ¶ 5 ("Wallace Declaration"); Declaration of James F. Perrone, January 25, 1996 ("Perrone Declaration"), ¶ 7.
[2] Statement of Facts, ¶ 11; Declaration of Randy Rabenold, January 4, 1996 ("Rabenold Declaration"), ¶ 19.
[3] Statement of Facts, ¶ 13; Rabenold Declaration, ¶ 20.
[4] Statement of Facts, ¶ 18; Declaration of J. Massoud Messkoub, Jan. 22, 1996, ¶¶ 4-7 ("Messkoub Declaration").
[5] Statement of Facts, ¶ 10; Rabenold Declaration, ¶ 19, ¶ 17.
[6] Statement of Facts, ¶ 18.
[7] Statement of Facts, ¶ 8; Rabenold Declaration, ¶ 7.
[8] Statement of Facts ¶ 12; Rabenold Declaration, ¶ 20.
[9] Statement of Facts, ¶¶ 22, 23, 24; Declaration of Harley I. Lewin, January 10, 1995, ¶¶ 6, 7, 9. ("Lewin Declaration").
[10] Statement of Facts, ¶ 25, Exhibit 4.
[11] Statement of Facts, ¶ 12; Rabenold Declaration, ¶ 20, Exhibit 5.
[12] Statement of Facts, ¶ 18; Rabenold Declaration, ¶ 9.
[13] Statement of Facts, ¶ 18; Messkoub Declaration, ¶¶ 6, 7.
[14] Statement of Facts, ¶ 14; Rabenold Declaration, at ¶ 7, 12, 13, 14 and 19.
[15] Statement of Facts, ¶ 25. Defendants do not dispute plaintiff's trademark rights in either the United States or the Dominican Republic; (Defendants' Motion for Summary Judgment, p. 5, Docket # 26).
[16] These factors are: 1) the degree of conflict with foreign law or policy; 2) the nationality or allegiance of the parties and the locations or principal places of business of corporations; 3) the extent to which enforcement by either state can be expected to achieve compliance; 4) the relative significance of effects on the United States as compared with those elsewhere; 5) the extent to which there is explicit purpose to harm or affect American commerce; 6) the foreseeability of such effect, and; 7) the relative importance to the violations charged of conduct within the United States as compared with conduct abroad. Timberlane I, 549 F.2d at 614.
[17] Statement of Facts, ¶ 21.
[18] Defendants' Motion for Summary Judgment, p. 5.
[19] Statement of Facts, ¶ 10; Rabenold Declaration at ¶¶ 17 and 19.
[20] Defendants' Motion for Summary Judgment, p. 5.
[21] Defendants' Motion for Summary Judgment, pp. 2, 4.
[22] Even when the claim does not arise from the defendant's contacts with the forum, a state may exercise in personam jurisdiction (general jurisdiction) when there are sufficient contacts between the state and the foreign corporation. Helicopteros Nacionales, 466 U.S. at 414-415; Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437 (1952). A court may exercise general jurisdiction when the defendant has been carrying on a "continuous and systematic, but limited, part of its general business" within the forum state. Helicopteros Nacionales, 466 U.S. at 414-415.
[23] Statement of Facts, ¶ 11, Exhibit 1; Rabenold Declaration, at ¶¶ 19, 20, Exhibit 5.
[24] Statement of Facts, ¶ 13; Rabenold Declaration, at ¶ 20, Exhibit 5.
[25] Id.
[26] Statement of Facts, ¶ 14; Perrone Declaration, at ¶ 9; Rabenold Declaration, at ¶¶ 7, 12, 13, 14 and 19.
[27] Statement of Facts, ¶ 16; Wallace Declaration, ¶¶ 3, 4, Exhibit A.
[28] Statement of Facts, ¶ 17; Wallace Declaration, ¶ 5, Exhibit B.
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684 F.Supp. 498 (1988)
Gwendolyn LYNCH, and all others similarly situated,
v.
Nancy-Ann E. MIN, Commissioner of the Tennessee Department of Human Services, et al.
No. 3-86-1078.
United States District Court, M.D. Tennessee, Nashville Division.
April 11, 1988.
*499 Russell J. Overby, Legal Services of Middle Tn, Inc., Nashville, Tenn., for plaintiffs.
Jimmy G. Creecy, Dianne Stamey, Atty. Gen.'s Office, James C. Thomason, III, Asst. U.S. Atty., Nashville, Tenn., Sheila Lieber, Richard A. Hertling, Dept. of Justice, Civil Div., Federal Programs Branch, Washington, D.C., for defendants.
MEMORANDUM
WISEMAN, Chief Judge.
Plaintiff Gwendolyn Lynch (Lynch) filed this class action against defendants Nancy-Ann Min, Commissioner of the Tennessee Department of Human Services,[1] and Richard Lyng, Secretary of the United States Department of Agriculture (Secretary), alleging that defendants have refused to comply with what Lynch contends is the appropriate effective date of section 1504 of the Food Security Act of 1985, Pub.L. No. 99-198, 99 Stat. 1566-67 (1985). Two dispositive motions remain pending in this litigation: (1) Lynch's motion for summary judgment and (2) the Secretary's motion to dismiss the complaint in this action for failing to state a cognizable claim. Both of these motions present the same determinative question of law: Does the Food Security Act of 1985 require the Secretary to make regulations implementing section 1504 retroactively effective to December 23, 1985the date on which the Act was enacted and the "general effective date" provided for by section 1801 of the Act? For the reasons set forth below, the Court holds that it does not.
I. Factual and Statutory Background
The Food Security Act of 1985 was approved by President Reagan and enacted into law on December 23, 1985. The entire Act consisted of eighteen separate Titles and over 250 substantive provisions. Title XV of the Act, Pub.L. No. 99-198, §§ 1501-1589, included numerous nondiscretionary amendments to the federal food stamp program.
The federal food stamp program was established by Congress in 1964 to alleviate hunger and malnutrition among the Nation's low-income households. See 7 U.S.C. § 2011 (Supp.1987). Under current Department of Agriculture regulations, persons who are considered "disabled" are entitled to have certain expenses for medical and housing costs deducted from their income for the purpose of determining the amount of food stamp benefits they are entitled to receive each month. Id. at § 2014(e); 51 Fed.Reg. 18744, 18745 (May 21, 1986). Prior to the enactment of the Food Security Act of 1985, however, individuals like Lynch, who receive federal disability retirement benefits because of a disability considered permanent under section 221(i) of the Social Security Act, were not considered "disabled" for purposes of the food *500 stamp program. See 51 Fed.Reg. at 18745. Section 1504 of the Food Security Act broadened the definition of "disabled" under the food stamp program to include such individuals. See 7 U.S.C. § 2012(r)(3) (Supp.1987); 99 Stat. 1567.
Section 1801 of the Act established a "general effective date." It provided:
Except as otherwise provided in this Act, this Act and the amendments made by this Act shall become effective on the date of the enactment of this Act.
99 Stat. 1660 (emphasis added).[2] Several sections of the Act, including a number of provisions in Title XV, contained their own effective dates. See, e.g., Pub.L. No. 99-198, §§ 1511, 1531. Section 1504, however, did not contain such a section-specific effective date.
Although Title XV of the Act included a number of provisions with their own section-specific effective dates, it also included its own implementation provision. Section 1583 provided:
Not later than April 1, 1987 the Secretary shall issue rules to carry out the amendments made by [Title XV].
99 Stat. 1595 (emphasis added). In accordance with section 1583, the Secretary promulgated a final agency rule on May 21, 1986 which implemented a number of the food stamp amendments mandated by Title XV. See 51 Fed.Reg. 18744. The rule expressly provided that the changes required by section 1504 were to become effective on June 20, 1986. Id. at 18749. The rule further provided that the changes were to be implemented "no earlier than the effective date ... and no later than August 1, 1986." Id.
On September 18, 1986, the Tennessee Department of Human Services issued a bulletin notifying local human service offices of the changes made by the Act in the food stamp program. The bulletin instructed the local offices that "[b]eginning August 1, 1986, all policy changes contained in this bulletin must be implemented at applications, recertifications, or as cases are reviewed for any purpose." In December, 1986, after receiving an inquiry from Lynch's attorney, the Department of Human Services acknowledged that Lynch was "disabled" for purposes of the food stamp program, increased her monthly allotment of food stamp benefits to account for her newly-acquired "disabled" status, and agreed to make the increase retroactive to August, 1986. The Department of Human Services, however, refused to award Lynch additional food stamp benefits retroactive to December 23, 1985. This lawsuit followed.
II. Legal Discussion
As stated at the outset of this Memorandum, the determinative question presented by the parties' respective motions is whether the Secretary must make regulations implementing section 1504 of the Act retroactively effective to December 23, 1985. Lynch contends that, pursuant to section 1801 of the Act, the amendments made by section 1504 became effective immediately on December 23, 1985, and that the Secretary violated federal law by promulgating implementing regulations which disregarded that effective date. According to Lynch, section 1583 "simply establishe[d] a deadline for the issuance of rules." The Secretary, on the other hand, insists that section 1504 was never intended to be "self-executing." Rather, the Secretary contends that the amendments made by section 1504 did not become effective until June 20, 1986, the date on which the Secretary's implementing regulations became effective. Both Lynch and the Secretary maintain that their positions are supported by the express language and legislative history of the Act, as well as relevant case law.
A. Relevant Case law
To date, only two federal courts have had occasion to address the question presented *501 by this case.[3] In light of the relatively inconclusive nature of the Act's statutory language and legislative history, and the inherent difficulty in attempting to define congressional intent, it is not at all surprising that these courts have reached different conclusions. In Phillips v. Lyng, No. 86-1028C, slip op. (W.D.N.Y. July 16, 1987), aff'd, No. 87-6226, slip op. (2d Cir. March 22, 1988), the district court was persuaded by the Secretary's argument. Noting that section 1583 "explicitly gave the Secretary until April 1, 1987 to promulgate regulations to carry out" the food stamp amendments mandated by Title XV, the court rejected the plaintiff's claim that the amendments were "self-executing." Id. at 10 (emphasis added). Instead, because the court found that "the food stamp program relies on the Secretary to provide for the Act's orderly implementation," the court held that the food stamp amendments "did not have the force of law until ... the date the Secretary's rules ... became effective." id., XX-XXXXXX.
The district court in Metzer v. Lyng, ___ F.Supp. ___, No. 6-86-932, slip op. (D.Minn. July 26, 1987) found the Secretary's argument less compelling. In rejecting the Secretary's interpretation of the Act, the Metzer court stated:
The Secretary's interpretation of [section 1583] was incorrect. Congress' decision to allow the Secretary until April 1, 1987 to issue rules was not intended to give the Secretary the power to ignore the effective date of the statute. To so conclude would render the effective date established by Section 1801 irrelevant surplusage.... Instead, both [section 1583 and section 1801] should be given effect by making regulations, whenever ultimately issued, effective retroactively to the effective date provided by the statute.[4]
Id. at 13-14. In reaching this conclusion, the Metzer court was particularly impressed by two additional factors. First, the court concluded that the Secretary's interpretation of section 1583 would, in addition to rendering section 1801 superfluous, effectively emasculate the section-specific effective dates in Title XV. Id. at 13 n. 6.[5] Second, the Court speculated that had Congress intended to make a particular food stamp amendment effective only when the Secretary implemented regulations, it would have done so explicitly, as it did in the Food Stamp Act of 1977. Id. at 14.[6]
*502 B. Legislative History
As is commonplace with most federal legislation, the Food Security Act of 1985 was a product of congressional compromise. The House-Senate Conference Committee Report clearly indicates that sections 1583 and 1801 were no exception. See H.Conf.Rep. No. 447, 99th Cong., 1st Sess. at 561-62, reprinted in, 1985 U.S. Code Cong. & Admin. News 2251, 2487-88. The original Senate version of the Act included both a general effective date provision, which was identical to section 1801, and several section-specific effective dates. The House version, on the other hand, did not contain a general effective date but, like the Senate version, did contain several section-specific effective dates. More significantly, however, the Senate version, unlike the House version, contained a provision which required the Secretary:
to prescribe interim regulations ensuring that the provisions dealing with food stamps ... are implemented as soon as practicable after enactment, but in no event later than March 1, 1986....
Id. at 562. This same provision required that "[a]ny change in the interim regulations made in final regulations would be effective on the date(s) prescribed by the Secretary." Id.
The House-Senate Conference Committee adopted the Senate's version of the Act to the extent that it included a general effective date provision identical to section 1801. Id. The Conference Committee, however, chose not to adopt the interim regulation provision proposed by the Senate. Instead, the Conference Committee adopted an alternative provision which, like section 1583, required the Secretary to promulgate final regulations implementing the food stamp amendments made by the Act no later than April 1, 1987. Id. According to the Conference Committee, it intended "to allow the Secretary to implement the law consistent with orderly implementation." Id.
C. Analysis
After carefully considering the express language and legislative history of the Act, the relevant case law, and the general purpose and administrative scheme of the food stamp program, the Court is unconvinced that Congress intended to require the Secretary to make regulations implementing section 1504 retroactively effective to December 23, 1985. As noted in Levesque v. Block, 723 F.2d 175 (1st Cir.1983), the food stamp program "has never been self-executing." 723 F.2d at 183. Instead, the food stamp program has, from its inception, been "dependent, practically if not legally, on regulations for its administration." Id. at 183 n. 4.[7] If Congress had intended to deviate from this traditional administrative scheme and, in effect, make the food stamp amendments mandated by Title XV "self-executing," it clearly would have done so in a more explicit and unambiguous manner.
Furthermore, although statutory provisions generally become legally binding on their stated effective dates, "legal effectiveness can be made subject to implementing regulations." Id. at 186. In the present case, the legislative history relating to sections 1801 and 1583 clearly suggests that Congress understood that the amendments mandated by Title XV of the Act would not become "legally effective" until they were "implemented" by the Secretary. As noted earlier, the original Senate version of the Act provided for the promulgation of interim regulations to ensure that the amendments mandated by Title XV were "implemented as soon as practicable." If, as Lynch argues, the Senate had intended to require the Secretary to make regulations implementing the amendments retroactively effective to their respective statutory effective dates, the *503 Senate's perceived need for interim regulations would have been illusory and unwarranted.
Although the Conference Committee ultimately rejected the Senate's interim regulation proposal, it shared the Senate's concern for orderly and expeditious implementation of the amendments made by Title XV. In an effort to "allow the Secretary to implement [Title XV] consistent with orderly implementation," the Conference Committee adopted an alternative provision section 1583which directed the Secretary "to carry out" the amendments made by Title XV by April 1, 1987. The fact that Congress afforded the Secretary over thirteen months to give practical effect to Title XV's food stamp amendments itself suggests that Congress did not intend the amendments to be "self-executing." Id. at 186 n. 6 ("a long period of time for implementation is inconsistent with the notion that the law would be self-executing").
For the above reasons,[8] the Court concludes that the Food Security Act of 1985 does not require the Secretary to make regulations implementing section 1504 retroactively effective to the "general effective date" established by section 1801. The Secretary's motion to dismiss Lynch's complaint, therefore, is granted.
NOTES
[1] On July 20, 1987, the Court approved a consent decree which effectively resolved Lynch's claims against defendant Min. Pursuant to the consent decree, Min agreed to take no position with respect to the issue presented and addressed in this Memorandum.
[2] Lynch contends that the legislative history of the Act indicates that the "[e]xcept as otherwise provided" language in section 1801 refers to the various section-specific effective dates scattered throughout the Act, not section 1583. The Secretary's interpretation of section 1583, however, is not at odds with that proposition. Whether a section's effective date is determined by reference to section 1801 or to a section-specific effective date provision, section 1583 makes that effective date subject to implementation by the Secretary in the context of Title XV. See infra at 501 n. 4.
[3] Although neither of these cases specifically involved section 1504, both concerned provisions in Title XV of the Act which, like section 1504, did not contain a section-specific effective date. The reasoning of these cases, therefore, is applicable to the present case.
[4] The Court disagrees with the Metzer court's conclusion that the Secretary's interpretation "would render ... [s]ection 1801 irrelevant surplusage." Metzer, No. 6-86-932 at 13. Section 1801, unlike section 1583, applies with equal force to all seventeen Titles of the Act, including Title XV. The Secretary's interpretation simply recognizes that section 1583 made the effective date established by section 1801 subject to implementation in the Title XV context. Section 1801 remains fully applicable to sixteen Titles of the Act.
[5] In fact, although the Secretary maintains that the amendments made by Title XV are not "self-executing," he consistently has respected the section-specific effective dates included in Title XV. Although the Secretary's application of section 1583 may arguably be inconsistent, the Court cannot say that it is unreasonable in light of the purposes of Title XV's amendments. See Compton v. Tennessee Department of Public Welfare, 532 F.2d 561, 564 (6th Cir.1976).
[6] In the Food Stamp Act of 1977, Pub.L. No. 95-113, 91 Stat. 958 (1977), Congress directed the Secretary to implement the Act "as expeditiously as possible consistent with efficient and effective administration." 91 Stat. 979. Congress, however, also provided that the provisions of the Food Stamp Act of 1964 would remain in effect until new implementing regulations were issued. Id. Although Congress could have included a similar savings provision in the Food Security Act of 1985, its failure to do so does not necessarily mean that it intended to require the Secretary to make regulations implementing the food stamp amendments mandated by Title XV of the Act retroactively effective. The Court agrees with the Secretary that Congress' failure to include such a provision "is simply a recognition by Congress that [such a provision] is surplusage in the face of a separate implementation provision." Memorandum in Support of Federal Defendant's Motion to Dismiss the Complaint at 13 n. 9.
Lynch makes a similar argument with respect to the food stamp amendments made by the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub.L. No. 97-35, 95 Stat. 357 (1981). In the OBRA, Congress provided that the food stamp amendments made by the Act "shall be effective and implemented upon such dates as the Secretary ... may prescribe, taking into account the need for orderly implementation." Pub.L. No. 97-35 at § 117, 95 Stat. 366. Again, where a separate implementation provision requires the issuance of implementing regulations by a certain date, such language is unnecessary.
[7] As the Levesque court noted, "[f]rom the program's inception, the Secretary has issued rather detailed regulations regarding all aspects of the program." Levesque, 723 F.2d at 183.
[8] The Court also notes that the food stamp program is not designed to remedy the effects of past hunger, but "to meet a present need of low-income households." Klaips v. Bergland, 715 F.2d 477, 484-85 (10th Cir.1983). Although the Food Stamp Act of 1977, as amended, does require the restoration of wrongfully withheld food stamp benefits both by the courts and state agencies under certain circumstances, see 7 U.S.C. §§ 2020(e)(11), 2023(b), "[t]he administrative burdens and uncertain efficacy" of an award of retroactive benefits cannot be ignored. See Klaips, 715 F.2d at 485 (holding that the district court did not abuse its discretion by limiting retroactive relief). See also Stewart v. Butz, 356 F.Supp. 1345, 1352 (W.D.Ky.1973) (recognizing that issuance of retroactive food stamp benefits may "open up avenues of fraud, such as a potential black market in food stamps").
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEVIN COLEMAN, §
§ No. 154, 2015
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for Kent County
§
STATE OF DELAWARE, § Cr. ID No. 0801019986
§
Plaintiff Below, §
Appellee. §
Submitted: June 17, 2015
Decided: August 27, 2015
Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.
ORDER
This 27th day of August 2015, it appears to the Court that:
(1) This appeal is from the Superior Court’s summary dismissal of
the appellant’s motion for postconviction relief under Superior Court
Criminal Rule 61 (“Rule 61”). On appeal, the appellant’s counsel has filed a
brief and motion to withdraw under Supreme Court Rule 26(c) (“Rule
26(c)”).
(2) On September 5, 2008, Coleman pled guilty to three felony
charges and was sentenced to a total of eight years at Level V suspended
after fourteen months for probation. Coleman finished serving the sentence
in August 2010 when he was discharged from probation.
(3) In May 2013, Coleman was indicted on thirty-five new
charges. 1 In June 2014, Coleman pled guilty to five of those charges and
was sentenced.2
(4) In September 2013, Coleman filed a motion for postconviction
relief alleging that his 2008 guilty plea was involuntary and that his counsel
was ineffective. The Superior Court appointed counsel (“Counsel”) to
represent Coleman. By order dated March 20, 2015, the Superior Court
vacated the order appointing counsel and summarily dismissed Coleman’s
postconviction motion under Rule 61(i)(1). This appeal followed.
(5) On appeal, Counsel has filed a brief and a motion to withdraw
under Rule 26(c). 3 Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable issues. Also,
Counsel notes that Coleman is no longer in custody on the 2008 convictions.
In points submitted for this Court’s consideration, Coleman contends that he
is entitled to challenge the 2008 convictions, even though he completed the
sentence, and that the Superior Court erred when it summarily dismissed his
1
The Court has taken judicial notice of the Superior Court docket in State v. Coleman,
Cr. ID No. 1303004663.
2
Id. Docket at 26 (June 17, 2014).
3
Although the Superior Court vacated the order appointing counsel, Counsel entered his
appearance after receiving the Clerk’s letter dated March 30, 2015, advising him that he
had a continuing obligation to represent Coleman under Rule 26(a)(2). Effective June 1,
2015, this Court amended Rule 26(a)(2) and the Superior Court amended Rule 61(e)(6) to
clarify the continuing obligations of a court-appointed postconviction lawyer who is
permitted to withdraw by the Superior Court.
2
postconviction motion. The State has responded to Counsel’s position,
Coleman’s points, and has moved to affirm the Superior Court judgment.
(6) When reviewing a motion to withdraw and an accompanying
brief under Rule 26(c), the Court must be satisfied that the appellant’s
counsel has made a conscientious examination of the record and the law for
arguable claims. 4 The Court must also conduct its own review of the record
and determine whether “the appeal is indeed so frivolous that it may be
decided without an adversary presentation.” 5
(7) Coleman claims that the Superior Court improperly applied a
June 4, 2014 rule amendment to Rule 61 when dismissing his postconviction
motion under Rule 61(i)(1).6 The claim is without merit. Rule 61(i)(1) was
not affected by the June 4, 2014 amendment to Rule 61. The Superior Court
properly dismissed Coleman’s postconviction motion under the one-year
time bar of Rule 61(i)(1) applicable in 2013. 7 On appeal, Coleman has not
demonstrated that the time bar should be excused because of “a colorable
claim that there was a miscarriage of justice because of a constitutional
4
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486
U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
5
Penson v. Ohio, 488 U.S. at 81-82.
6
Effective June 4, 2014, the Superior Court amended several provisions of Rule 61.
7
Del. Super. Ct. Crim. R. 61(i)(1) (2013) (barring a postconviction motion filed more
than one year after the judgment of conviction is final).
3
violation that undermined the fundamental legality, reliability, integrity or
fairness of the proceedings leading to the judgment of conviction.” 8
(8) Coleman’s postconviction motion also was subject to summary
dismissal under Rule 61(a)(1).9 This Court has consistently held that a
defendant who has been discharged from probation and is not subject to any
future custody on a conviction has no standing to seek relief under Rule
61.10 Coleman disagrees, claiming that he has standing to challenge the
2008 convictions because of a collateral legal burden, namely that the 2008
convictions were used to qualify him for habitual offender sentencing in the
2013 case. We have previously found this argument meritless. 11 The Court
finds no basis to conclude differently here.
8
Del. Super. Ct. Crim. R. 61(i)(5) (2013). Effective June 4, 2014, Rule 61(i)(5) was
amended to provide relief when a motion that is otherwise barred under Rule 61(i)(1)
through (4) satisfies the pleading requirements of Rule 61(d)(2) as amended.
9
Del. Super. Ct. Crim. R. 61(a)(1) (2013) (providing that “[t]his rule governs the
procedure on an application by a person in custody or subject to future custody under a
sentence of this court seeking to set aside a judgment of conviction”). Effective June 4,
2014, Rule 61(a)(1) was amended to delete “or subject to future custody”.
10
Crisco v. State, 2015 WL 257867 (Del. Jan. 20, 2015); Baltazar v. State, 2015 WL
257334 (Del. Jan. 20, 2015); Anderson v. State, 2014 WL 7010017 (Del. Nov. 11, 2014);
Ruiz v. State, 2011 WL 2651093 (Del. July 6, 2011); Lewis v. State, 2012 WL 130700
(Del. Jan. 17, 2012); Cammile v. State, 2009 WL 3367065 (Del. Oct. 20, 2009).
11
See Short v. State, 2015 WL 4199849 (Del. July 9, 2015) (rejecting claim that 2002
conviction used to enhance sentence for 2004 conviction gave standing to invalidate the
2002 conviction even though defendant was no longer in custody on sentence imposed
for 2002 conviction). Moreover, when recently dismissing Coleman’s mandamus
petition that raised the same claim with respect to a 2006 conviction, we explained that
“‘a person loses standing to move for postconviction relief under Rule 61 where the
defendant is not in custody or subject to future custody for the underlying offense or
4
(9) Having conducted “a full examination of all the proceedings”
and found “no nonfrivolous issue for appeal,”12 the Court concludes that this
appeal is “wholly without merit.”13 The Court is satisfied that Counsel made
a conscientious effort to examine the record and the law and properly
determined that Coleman could not raise a meritorious claim on appeal.
NOW, THEREFORE, IT IS ORDERED that the State’s motion to
affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
The motion to withdraw is moot.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
challenged sentence.’” In re Coleman, 2015 WL 1021405 (Del. Mar. 9, 2015) (quoting
Ruiz v. State, 2008 WL 1961187, at *3 (Del. May 7, 2008)).
12
Penson v. Ohio, 488 U.S. 75, 80 (1988).
13
Del. Supr. Ct. R. 26(c).
5
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507 F.2d 143
Benjamin HERRERA, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 74-2132.
United States Court of Appeals, Fifth Circuit.
Jan. 24, 1975.
Lawrence R. Metsch, Miami, Fla. (Court-appointed), for petitioner-appellant.
Robert W. Rust, U.S. Atty., Joel C. Fanning, James Whitten, Asst. U.S. Attys., Miami, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
PER CURIAM:
1
Herrera seeks relief under 28 U.S.C.A. 2255 for the failure of the District Judge who accepted Herrera's plea of guilty for pre-May 1, 1971 violation of 21 U.S.C.A. 173 and 174, to disclose that he would be ineligible for parole because of the then effective but since repealed 26 U.S.C.A. 7237(d). F.R.Crim.P. 11. It is the law in this Circuit that Rule 11 does not require a District Judge to inform a defendant pleading guilty that ineligibility for parole is a 'consequence' of that plea, Trujillo v. United States, 5 Cir., 377 F.2d 266, cert. denied, 1967, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221. Herrera asks that Trujillo be reviewed by the en banc Court. We affirm, however, without finding it necessary to reach that step.
2
The Court, on its own motion, convened itself to reconsider Trujillo in United States v. Farias, 5 Cir., 1974, 488 F.2d 852 following the earlier panel decision, 1972, 459 F.2d 738. The Trujillo question was not reached because the Court held Farias was in fact entitled to parole, on the authority of Amaya v. United States Board of Parole, 5 Cir., 1973, 486 F.2d 940, thus making inconsequential the failure of the District Judge accepting the guilty plea to inform him he was not eligible for parole. Then the Supreme Court, in Warden, Lewisburg Penitentiary v. Marrero, 1974, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383, razed our result by destroying its rationale. United States Board of Parole v. Amaya, 1974, 418 U.S. 902, 94 S.Ct. 3191, 41 L.Ed.2d 1151. The Court held the repeal of 7237(d) had no effect on parole ineligibility for pre-May 1, 1971 violations.
3
But perhaps a record in short mortality of judicial wisdom, Marrero was legislatively reversed within five months on October 26, 1974 by amending 7021 of the Controlled Substances Act-- thus exhuming and resuscitating Amaya2 and thereby breathing life into Farias.
4
The answer is Farias. Herrera is entitled to have his application for parole considered. Nothing more is warranted.
5
Affirmed.
1
Sec. 2. Section 702 of the Controlled Substances Act is amended by adding at the end thereof the following new subsection:
'(d) Notwithstanding subsection (a) of this section or section 1103, section 4202 of title 18, United States Code, shall apply to any individual convicted under any of the laws repealed by this title or title III without regard to the terms of any sentence imposed on such individual under such law.'
Pub.L.No.93-481, 2 (Oct. 26, 1974).
2
This was the clear legislative purpose as the history reflects:
Section 3. Amends section 702 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 to provide that the provisions of 18 U.S.C. 4202 (the general parole statute which authorizes Federal prisoners serving terms of over 180 days to be eligible for parole after serving one-third of their terms or after serving fifteen years of a life sentence or of a sentence of over 45 years) apply to persons convicted under the drug abuse control laws repealed by the Act.
One of the statutes repealed by title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 was section 7237 of Title 26, United States Code, which provided that certain narcotics offenders sentenced to mandatory minimum prison terms would be ineligible for parole under the general parole statute. Section 1103 of the 1970 Act provided that 'prosecutions for any violation of law occurring prior to (May 1, 1971) shall not be affected by the repeals' of 26 U.S.C. 7237. Several cases arose concerning whether persons sentenced under the provisions of 26 U.S.C. 7237 became eligible for consideration for parole when one-third of their sentences had been served, since the section had been repealed.
United States Courts of Appeals have split on the issue, and, on June 19, 1974, in a 6 to 3 decision, the United States Supreme Court, in Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383, 42 U.S.Law Week 4955, held that section 1103(a) of the 1970 Act bars parole consideration of prisoners sentenced before May 1, 1971. The Court noted that Marrero's argument that the basic change of the 1970 Act away from the retributive approach to regulation of narcotics offenses under the Narcotics Control Act of 1956 in favor of emphasis on rehabilitation of the narcotics offender '. . . has force, but . . . is addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.' 417 U.S. at 664, 94 S.Ct. at 2538, 42 U.S.Law Week at 4958.
This amendment to section 702 would correct the anomalous situation that has arisen with respect to offenders convicted prior to the effective date of the 1970 Act-- who are not eligible for parole under the general parole statute-- and those convicted under the 1970 law-- who are eligible. The Committee feels that the interests of criminal justice will best be served if the rehabilitative aspects of the 1970 Act encompass all convicted narcotics offenders, regardless of the date on which they were sentenced. Thus, the amendment to section 1103 provided by this section makes the general parole statute available to persons sentenced under applicable provisions of law repealed by the 1970 Act.
H.R.Rep. No. 93-1248, 93d Cong., 2d Sess. 8 (1974) adopted by the Conference, H.R.Rep. No. 93-1442, 93d Cong., 2d Sess. 6 (1974).
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114 F.3d 1199
97 CJ C.A.R. 881
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Michael WILLIAMS, Plaintiff-Appellant,v.Janet RENO, Attorney General of the United States ofAmerica; Richard Loyd, as an agent of the Federal Bureau ofInvestigation; 12 Unnamed Agents of the Federal Bureau ofInvestigation, Defendants-Appellees.
No. 96-1367.
United States Court of Appeals, Tenth Circuit.
June 6, 1997.
Before BRORBY, EBEL, and KELLY, Circuit Judges.
1
ORDER AND JUDGMENT*
DAVID M. EBEL, Circuit Judge
2
On March 18, 1988, approximately thirteen FBI agents executed a search warrant at the Evergreen, Colorado home of Plaintiff-Appellant Michael Williams. At that time, Williams was both a Democratic Party activist involved in the 1988 presidential campaign of Colorado Senator Gary Hart, and the president of Pioneer America Corporation, a Delaware corporation. The search warrant has not been included in the record on appeal, and it is thus unclear to this court exactly what the warrant authorized the FBI agents to seize. In any event, the parties to the present litigation give dramatically conflicting descriptions regarding what was actually seized.
3
The government claims that it seized approximately $27,000 in currency and gold coins, two typewriters and a personal computer, a large quantity of paperwork related primarily to the Pioneer America Corporation, and some papers and personal effects of Williams and his family, including birth certificates and passports.1 (See Appellee's Br. at 3; R.O.A. Doc. 1 Sch. B at 3-15). Williams claims that the government seized cash, gold coins, silver coins, jewelry, a late model Saab automobile, computer equipment, German stamps, autographs of famous people, books, paintings, phonograph records, cassette and reel-to-reel tapes (including tapes of unreleased recordings by John Lennon), television sets, stereo equipment, and an architect's lamp, valued at a total of over $250,000. (Appellant's Br. at 6-7; R.O.A. Doc. 1 at 2-4). Further, in addition to the business papers and personal effects that the government admits to having seized, Williams claims that the government also seized certain documents in Williams's possession pertaining to reports concerning an alleged failed assassination attempt. (Aplt.'s Br. at 1; R.O.A. Doc. 1 at 3-4). In Williams's view, the FBI agents were "particularly interested" in these documents. (Aplt.'s Br. at 1).
4
During the search of his house, Williams was arrested. After appearing before a federal magistrate judge in Denver, Colorado, Williams was eventually transported to Chicago, Illinois, where he was indicted by a grand jury on eighteen counts of alleged mail fraud and wire fraud in violation of 18 U.S.C. §§ 1342, 1343, 2314 (1988) (amended in 1989, 1990 & 1994). (R.O.A. Doc. 4 Attachment A). The indictment alleged that Williams had defrauded certain suppliers out of over $200,000 worth of computer paper, by ordering paper to be shipped to various warehouses throughout the United States (ostensibly to be used by the Pioneer America Corporation), and then reselling the paper to third parties, without paying or intending to pay the suppliers. (Id.).
5
On August 11, 1988, Williams plead guilty in the United States District Court for the Northern District of Illinois to one count of mail fraud and one count of wire fraud.2 He was sentenced to a term of two years imprisonment and five years probation, and was also ordered to pay restitution to his victims during his term of probation. See 18 U.S.C. § 3663(a)(1) (1994 & Supp.1996) (permitting a sentencing court to order restitution to victims). At sentencing, the court "authorize[d] that all property being held by the FBI can be and should be used as partial restitution." United States v. Williams, No. 94-2483, 81 F.3d 164, 1996 WL 149348, slip op. at 2 (7th Cir. Mar. 27, 1996) (unpublished Order) (quoting Transcript of 1988 Sentencing Hearing).
6
By 1994, Williams had completed serving his prison term and was entering the final year of his probation. He had not, however, paid any restitution. Therefore, the United States District Court for the Northern District of Illinois granted the government's motion requesting permission to sell the gold coins seized in the 1988 raid on Williams's house, in order to distribute the proceeds (plus the cash seized in the 1988 raid) to Williams's fraud victims on a pro rata basis. Its Order was affirmed by the United States Court of Appeals for the Seventh Circuit. United States v. Williams, No. 94-2483, 81 F.3d 164, 1996 WL 149348 (7th Cir. Mar. 27, 1996) (unpublished Order). Pursuant to this Order, 59 gold coins were sold, and about $26,000 dollars were distributed to Williams's fraud victims.
7
While Williams's appeal was pending in the Seventh Circuit, Williams, through attorney Marc A. Pembroke,3 filed a Fed.R.Crim.P. 41(e) Motion for Return of Property in the United States District Court for the District of Colorado.4 (R.O.A. Doc. 2). In his motion, Williams conceded that the cash and gold coins at issue in the pending Seventh Circuit case could not be returned to Williams if the Seventh Circuit affirmed the Order of the United States District Court for the Northern District of Illinois. Williams argued, however, that those assets represented only about one-tenth of the value of his total assets seized. He correspondingly sought the return of the remaining assets that he claims were seized from his home on March 18, 1988.
8
The district court denied Williams's motion, for a variety of reasons. First, the district court found that Williams neither resided in Colorado,5 nor made any prima facie showing that any of the property subject to the motion might be found in the district of Colorado. Williams v. Reno, No. 96-Y-89, slip op. at 1, 2 (D.Colo. July 12, 1996) (unpublished Order). Second, the district court cited certain procedural defects with Williams's motion. Id. at 2. Third, the district court held that the doctrine of issue preclusion barred Williams from "relitigating" issues that Williams could have litigated in the Northern District of Illinois, in connection with his opposition to the government's 1994 motion requesting permission to sell certain of Williams's seized assets and distribute the proceeds pursuant to the restitution order. Id. at 2-3. Fourth, the court held that the doctrine of laches barred Williams's motion, because Williams's eight-year delay in filing a Rule 41(e) motion was unexplained, unjustified, and prejudicial to the government. Id. at 3. Fifth and finally, the court found that "Williams has failed to establish prima facie the existence of the property subject to his motion, that such property was seized by the United States, or is in possession of the United States." Id. at 3.
9
The district court also noted that Williams had personally filed, pro se, an "Emergency Statement to the Court," alleging that Williams had been abandoned by his attorney, Marc Pembroke. Id. at 3. However, the court found that the "Emergency Statement" did not address the defects fatal to Williams's Rule 41(e) motion. Id. at 3. Thus, the court denied Williams's Rule 41(e) motion. Id. at 4.
10
Williams filed a timely notice of appeal, pro se. Subsequently, Williams also filed in this court, pro se, a "Motion to Order Attorney of Record to Appear To Show Cause For Abandonment of Client and To Strike From the Record All Pleadings." This Motion was followed by a pro se "Notice To The Court of Counsel Abandonment and Plaintiff's Statement." Finally, Williams filed in this court a pro se "Petition for Third Party Minor Claim To Ownership of Unlawfully Seized Property," seeking to recover certain property belonging to his minor daughter, who was two years old on March 18, 1988.
11
We have jurisdiction over Williams's appeal pursuant to 28 U.S.C. § 1291 (1994). We review the district court's denial of Williams's Fed.R.Crim.P. 41(e) motion for the return of his property under the "abuse of discretion" standard. Frazee v. Internal Revenue Serv., 947 F.2d 448, 449 (10th Cir.1991).
12
As a threshold matter, we note that the district court erred in concluding that venue was improper in Colorado because Williams neither resides in Colorado at present, nor made "any prima facie showing that any of the property subject to the motion might be found in the district of Colorado." Williams, slip op. at 1. Fed.R.Crim.P. 41(e) plainly states that "[a] person aggrieved ... by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property." (emphasis added). It is undisputed that all of Williams's seized property was seized in Evergreen, Colorado. Rule 41(e) does not condition the propriety of venue on the claimant's current residence or the present location of the seized property. Thus, venue in Colorado was proper.
13
Nonetheless, we agree with the district court's conclusion that the equitable doctrine of laches necessitates the denial of Williams's Rule 41(e) motion. We have said that a "a trial court's decision to grant jurisdiction over a Rule 41(e) motion for return of property should be governed by equitable principles."6 Floyd v. United States, 860 F.2d 999, 1003 (10th Cir.1988). As the district court noted, "he who seeks equity must do equity." Herald Co. v. Seawell, 472 F.2d 1081, 1099 (10th Cir.1972). Thus, the district court need not entertain any Rule 41(e) motion that is brought in violation of any established principle of equity.
14
This court has recently described the equitable doctrine of laches as follows:
15
Whether a claim is barred by laches must be determined by the facts and circumstances in each case and according to right and justice. Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. In order to prove the affirmative defense of laches, the defendant must demonstrate that there has been an unreasonable delay in asserting the claim and that the defendant was materially prejudiced by that delay.
16
Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.1997) (internal citations and quote marks omitted).
17
In the present case, Williams waited nearly eight years from the night his home was raided, before filing the present Rule 41(e) motion. We recognize that Williams faced certain significant obstacles to filing. He was arrested during the March 18, 1988 raid on his home, and was thus unable, at that time, to determine precisely what property was seized. Further, the government, by its own admission, seized and never returned large quantities of Williams's paper records and documents, rendering it difficult for Williams to document the existence of other property that may have been seized. Following his arrest and subsequent conviction, Williams was imprisoned for two years. Finally, as Williams documents in his numerous filings here and in the district court, Williams has had an extremely bad run of luck in choosing and retaining attorneys to prosecute his case.
18
Nonetheless, we substantially agree with the district court's conclusion that Williams's delay in prosecuting this motion "is unexplained and unjustified." Williams, slip op. at 3. On March 18, 1988, Williams's wife Cary S. Murphy, who was not arrested, was present throughout the FBI raid. During the raid, the FBI agents who conducted the raid wrote out sixteen pages of handwritten lists of the items seized. (R.O.A. Doc. 1 Sch. B). Thirteen of the pages were signed by Ms. Murphy, and all sixteen were signed by FBI Special Agent in Charge Richard Loyd. (Id.). The government has always taken the position that this list was a complete and accurate inventory of the property seized. Further, operating under this assumption, the government returned some of the property to Ms. Murphy, and some of the property to Williams's former attorney for Williams's benefit. The government then waited until Williams had nearly completed his five-year probation term (following his two-year prison sentence), before seeking (and receiving) permission to liquidate what it contends were all of Williams's remaining seized assets.
19
Thus, by 1996, when Williams first alleged that the government had seized more of Williams's property than the 1988 FBI records reflected: (1) eight years had passed; (2) Williams's full sentence had been served; (3) the government had liquidated or returned all the assets that it had ever purported to have seized from Williams; (4) the government had destroyed Williams's paper records and documents the return of which had never been requested; (5) the government had closed all of its files pertaining to Williams's case; and (6) Williams was unable to locate his ex-wife Cary S. Murphy, the only non-FBI Agent eyewitness to the events at issue.7
20
Under these circumstances, we believe that Williams's delay was unreasonable, and that the government was sufficiently prejudiced by the delay to justify the denial of Williams's motion. On this ground, we affirm the judgment of the district court.
21
Williams has also filed a "Motion to Order Attorney of Record to Appear To Show Cause For Abandonment of Client and To Strike From the Record All Pleadings," and a corresponding "Notice To The Court of Counsel Abandonment and Plaintiff's Statement." Based on the scant record before us, it does appear that Williams has been abandoned by his attorney-of-record Marc A. Pembroke. In a letter dated April 6, 1996, Pembroke wrote to Williams:
22
I hope you understand that I cannot divulge details about my whereabouts on-line, nor can even my best friends always know where I am. Also, where I am isn't the same for too long, and sometimes there is a phone and sometimes there isn't. Nearby libraries are closed for the holidays, but if I can get some practice forms I'll send them along for your cert petition.
23
Sorry not to be more available.
24
(R.O.A. Doc. 11 Exhibit A).
25
While this letter appears to constitute rather astonishing evidence of client neglect, we nevertheless deny Williams's Motion for two reasons. First, as discussed supra, Williams's Rule 41(e) motion, at this late date, would be barred by the equitable doctrine of laches regardless of whether Pembroke were ordered to show cause for his abandonment of Williams's cause, and regardless of whether Williams were permitted to withdraw his pleadings. Thus, granting Williams's motion would not assist Williams in prosecuting his Rule 41(e) motion. Second, we note that attorney Pembroke is not a member of any bar within our jurisdiction, and that we therefore lack general supervisory power over his activities. Thus, nothing could be accomplished by requiring Pembroke to appear before us. We note that our present decision neither precludes Williams from seeking disciplinary action against Pembroke from an appropriate authority, nor precludes Williams from bringing a malpractice action against Pembroke in an appropriate forum.
26
Finally, Williams has filed in this court a pro se "Petition for Third Party Minor Claim To Ownership of Unlawfully Seized Property," seeking to recover certain property belonging to his minor daughter, who was two years old on March 18, 1988. No issue pertaining to any seized property owned by Williams's daughter was raised below. In general, we will not consider an issue that was not raised below. Walker v. Mathers (In re Walker), 959 F.2d 894, 896 (10th Cir.1992). We see no reason here to depart from that general rule.
CONCLUSION
27
The judgment of the district court denying Williams's motion for return of property under Fed.R.Crim.P. 41(e) is AFFIRMED. Williams's "Motion to Order Attorney of Record to Appear To Show Cause For Abandonment of Client and To Strike From the Record All Pleadings" is DENIED. Williams's "Notice To The Court of Counsel Abandonment and Plaintiff's Statement" is DULY NOTED. Williams's "Petition for Third Party Minor Claim To Ownership of Unlawfully Seized Property" is DISMISSED.
28
The mandate shall issue forthwith.
*
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) and 10th Cir. R. 34.1.9. 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
1
It is undisputed that the government returned two of the gold coins, the two typewriters, and certain personal effects and documents belonging to Williams's family members, to Williams's (now ex-) wife Cary S. Murphy. (R.O.A. Doc. 1). Further, in 1992, the government returned the personal computer and related peripherals and accessories to William Stevens, a court-appointed Chicago attorney who had represented Williams at his 1988 arraignment and sentencing. (Id.)
2
The proceedings against Williams were apparently brought in the Northern District of Illinois because Williams's largest single fraud victim, the Chicago Stock Tab Group, was located in that district. (See R.O.A. Doc. 4 Attachment A). In Williams's brief in the present case, he alleges that the case was improperly brought in the Northern District of Illinois in order to facilitate its assignment to Judge Leinenweber, the husband of then-Congresswoman Lynn Martin. Williams alleges that Congresswoman Martin was a national co-chairperson of the 1988 Bush/Quayle campaign, and that Martin's close ties to then-Vice President Bush rendered Judge Leinenweber incapable of giving Williams a fair trial
We note that Williams filed no motion asking Judge Leinenweber to recuse, nor did Williams choose to go to trial. Judge Leinenweber approved Williams's plea agreement with the government, and Williams ascribes no particular faults to Judge Leinenweber's performance in Williams's criminal proceedings. Further, prior to filing the Fed.R.Crim.P. 41(e) motion in the present case, eight years after his initial appearance before Judge Leinenweber, Williams never raised any issue regarding Judge Leinenweber's fitness. We therefore agree with, and follow, the district court's decision to decline to address the issue. See United States v. Wright, 43 F.3d 491, 494 (10th Cir.1994) ("A defendant who knowingly and voluntarily pleads guilty waives all non-jurisdictional challenges to his conviction. Having pleaded guilty, a defendant's only avenue for challenging his conviction is to claim that he did not voluntarily or intelligently enter his plea.") (internal citations and footnote omitted).
3
Marc A. Pembroke is apparently a graduate of the Harvard Law School and a member of the Massachusetts bar, who is currently a sole practitioner in Chattanooga, Tennessee. As the district court noted, he is not a member of the Colorado bar, nor did he ever receive permission to practice before any federal court in Colorado
4
A Fed.R.Crim.P. 41(e) motion may be brought even after the completion of all criminal proceedings against the movant. In that event, the district court should treat a
Rule 41(e) motion as a civil complaint. United States v. Rodgers, 108 F.3d 1247, 1250 .4 (10th Cir.1997).
5
Following the conclusion of his probation, Williams relocated to Switzerland, where he presently resides
6
We recognize that Rule 41(e) was substantially redrafted in 1989, one year after our decision in Floyd, and that certain aspects of the Floyd decision no longer control our interpretation of Rule 41(e). Compare Fed.R.Crim.P. 41(e) with Floyd, 860 F.2d at 1002 n. 1 (setting forth text of the former Rule 41(e)). Nonetheless, we have never reevaluated our holding in Floyd that a motion for the return of property is governed by equitable principles, and we see nothing in the current language of Rule 41(e) that would affect that principle
7
Williams's two year-old daughter was also an eyewitness to the events at issue, but, for obvious reasons, is not in a position to testify about those events
| {
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} |
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SUPREME COURT OF ARKANSAS
No. CR-12-157
MARCUS L. RACKLEY Opinion Delivered January 30, 2014
APPELLANT
APPEAL FROM THE FAULKNER
V. COUNTY CIRCUIT COURT
[NO. 23CR-05-26]
STATE OF ARKANSAS HONORABLE DAVID L.
APPELLEE REYNOLDS, JUDGE
REVERSED AND REMANDED.
CLIFF HOOFMAN, Associate Justice
Appellant Marcus Rackley appeals after a Faulkner County Circuit Court denied his
petition filed pursuant to Arkansas Rule of Criminal Procedure 37.1. On appeal, appellant
contends that trial counsel was ineffective (1) because he was simultaneously representing
appellant and appellant’s wife at the time of appellant’s trial, and the dual representation
created an actual conflict of interest that adversely affected counsel’s performance; (2) because
he failed to object to the introduction of the out-of-court statements made by appellant’s wife;
(3) because he was incapacitated due to the medication he was taking during the trial; (4)
because he failed to object to statements given by Prosecuting Attorney Foster during voir
dire; (5) because he failed to comply with witness sequestration rules under the Arkansas
Rules of Evidence; and (6) because he failed to properly handle the issue of whether certain
sexual messages sent to and from the victim could be admitted during trial. This court
Cite as 2014 Ark. 39
assumed jurisdiction of this appeal pursuant to Arkansas Rule of Criminal Procedure 37.1 and
Arkansas Supreme Court Rule 1-2(a)(8) as this involves postconviction relief. We reverse and
remand for a new trial with conflict-free counsel.
Since this is an appeal from the denial of a postconviction petition, only a brief
recitation of the facts regarding the underlying criminal conviction is necessary. Appellant was
charged with thirty-seven various sex offenses, including charges of rape, incest, second-
degree sexual assault, and first-degree sexual abuse, that stemmed from allegations that
appellant had repeatedly sexually molested his stepdaughter, T.W., between 2001 and 2004.
T.W.’s mother, Mrs. Cynthia Walters, formerly Mrs. Cynthia Rackley and appellant’s wife
at the time of trial, also was faced with charges stemming from appellant’s sexual abuse of
T.W. Appellant’s attorney, Mr. Max Horner, simultaneously represented both the appellant
and Mrs. Walters. Appellant’s proceedings preceded the resolution of Mrs. Walters’s charges.
A Faulkner County jury convicted appellant of all counts and sentenced him to a total of
thirty-seven years in the Arkansas Department of Correction.
Appellant timely appealed his convictions, and this court affirmed. Rackley v. State, 371
Ark. 438, 267 S.W.3d 578 (2007). After appellant filed a timely, verified petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1, the trial court
initially entered an order denying relief without an evidentiary hearing. Subsequently, this
court reversed and remanded for the trial court to comply with Arkansas Rule of Criminal
Procedure 37.3. Rackley v. State, 2010 Ark. 469 (per curiam). After a hearing, the trial court
filed a written order again denying appellant’s Rule 37 proceedings on October 14, 2011.
2
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This appeal followed.
Appellant’s first point on appeal is that trial counsel was ineffective because he was
simultaneously representing appellant and appellant’s wife at the time of appellant’s trial and
that the dual-representation created an actual conflict that adversely affected counsel’s
performance. He further alleges that the trial court erred in failing to grant him relief because
conflict-free counsel could have had appellant’s former wife explain or deny the damaging
statements said to have been made by her to Ms. Luebke and Ms. Thessing that were admitted
at trial. In appeals of postconviction proceedings, this court will not reverse a trial court’s
decision granting or denying postconviction relief unless it is clearly erroneous. Johnson v.
State, 356 Ark. 534, 157 S.W.3d 151 (2004); Howard v. State, 367 Ark. 18, 238 S.W.3d 24
(2006). A finding is clearly erroneous when, although there is evidence to support it, the
appellate court, after reviewing the entire evidence, is left with the definite and firm
conviction that a mistake has been committed. Howard, supra.
To prevail on a claim of ineffectiveness based on counsel’s conflict of interest, appellant
must demonstrate the existence of an actual conflict of interest that affected counsel’s
performance, as opposed to a mere theoretical division of loyalties. Echols v. State, 354 Ark.
530, 127 S.W.3d 486 (2003) (citing Mickens v. Taylor, 535 U.S. 162 (2002)). Appellant has
the burden of proving a conflict of interest and showing its adverse effects. Johnson v. State,
321 Ark. 117, 900 S.W.2d 940 (1995). However, “a defendant who shows that a conflict of
interest actually affected the adequacy of his representation need not demonstrate prejudice in order
to obtain relief.” Id. at 493, 127 S.W.3d at 493 (quoting Mickens, supra (quoting Cuyler v.
3
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Sullivan, 446 U.S. 335 (1980))).
It is undisputed that Mr. Horner simultaneously represented appellant and Mrs. Walters
at the time of appellant’s trial. In a hearing prior to trial, Mr. Horner represented to the court
that his client, Mrs. Walters, would be invoking her Fifth Amendment right to remain silent
upon advice of counsel and sought to prohibit any out-of-court statements made by Mrs.
Walters. After the State expressed to the court that it had a right to place her on the stand
first, to ask her nonincriminating questions, and to then see if she would invoke her Fifth
Amendment Right on the stand, Mr. Horner objected and stated the following:
Your Honor, I think that would be highly prejudicial to my client to put her up there
and for her to say, you know, I’m invoking my Fifth Amendment rights. If she
invokes her Fifth Amendment right, it goes to all testimony not just the testimony that
is incriminating to her. Her testimony in total would be inadmissible. I also represent
Mrs. Rackley and I can tell you that is what she is going to say.
After the hearing, the trial court ultimately allowed her to be called to the stand by the State
outside the presence of the jury to invoke her Fifth Amendment right and ruled that
testimony regarding statements that Mrs. Walters made to Ms. Luebke and Ms. Thessing were
admissible.
After reviewing the testimony by Ms. Luebke and Ms. Thessing at trial, there is no
doubt that their testimony was damaging to the appellant. At trial, Ms. Luebke testified that
T.W. and her daughter were friends. She testified that T.W. had stayed with her periodically
between December and February or March. Ms. Luebke reported the alleged sexual abuse
to the Faulkner County Sheriff’s Office after her daughter informed her that T.W. had told
her that she was being abused. After filing the report and while T.W. was in her home, Ms.
4
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Luebke testified on direct examination by the State that she had the following conversation
with Mrs. Walters:
[T.W.] advised me her mother was going to call back in ten minutes. She ask me
would I speak to her because she did not wish to speak to her at that point. I told
[T.W.], yes, I would. Approximately ten minutes later, Cindy Rackley did call back
and I answered [T.W.]’s cell phone. Cindy said, or actually I said, “Cindy, [T.W.] is
upset, she really doesn’t want to talk to you at this time. Obviously you are aware that
I have filed the report.” And Cindy said that ---- that they were having family
problems. I said, “I know that you are having family problems and it was my
understanding that you had tried to find a home, a place for you and [T.W.] and Matt
to live.” She said yes, that she was having financial problems, that everything was in
Mark Rackley’s name and she was not financially able to get away at that time. She
was waiting on her income tax return to come in. She said that Mark had come to her
saying that he had inappropriate sexual feelings toward [T.W.] but that [T.W. also] had
feelings toward Mark and I said, “Well, Cindy, what did you tell [T.W.]?” And she
said, “I said, it is okay Baby, it is not like you are related.” At that time I changed the
subject back to asking her to please just allow [T.W.] to spend the night because I had
told her that if she or Mark tried to come to get [T.W.] that I was told I would have
to call the police and she agreed to let [T.W.] spend the night. Then after that phone
conversation, we went down to Bobby Brown’s, to the investigator’s office and
[T.W.] made her statement to Investigator Brown.
Ms. Thessing testified at trial that she was a friend of Mrs. Walters. She also testified
as follows during direct examination by the State regarding statements that Mrs. Walters made
to her regarding the sexual abuse:
A. Cindy said that she needed to speak to me, but she didn’t want to talk to me over
the phone, and I asked what was going on, what was wrong. It was either probably
a Saturday or Sunday. My little girl had had a ballgame that day.
I said that they could come over. I needed to find someone to see if my little
girl could catch a ride with someone to the ballgame, and then I called her back and
said that that was fine for them to come ahead over. And she was really, really upset,
and she said [T.W.] was with her.
She did come over. I – and my first thoughts were that [T.W.] was pregnant,
and she said, “No, it’s not [T.W.]. It’s Mark.”
And I said, “Is he hurt?”
And she said, “No.” She said, “I don’t want to talk about it on the phone.
5
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We’ll be there in a little bit.”
So they – [T.W.] and Cindy came to my house. And Betsy, my oldest
daughter, left for her ballgame with a friend. And [T.W.] was obviously very upset.
Her eyes were just swollen horribly, and she – Cindy asked her did she want to tell me
what was going on or did she want her. And [T.W.] said that Mark had been messing
around with her.
Q. And what did Cindy say to you with regard to anything Mark had said her –
associated with all that?
A. Well, we had talked to [T.W.] – or had explained to me a lot of things that had
been going on. And Cindy said that Mark and [T.W.] that morning had told her what
had been going on not only that morning, but in the past about oral sex and that he
had told her she looked so much like – so much like Cindy when she was younger.
Q. When you were talking about – or when you just said that not only that day, but
before, what did you mean? You were talking about a conversation – or them telling
Cindy what was going on. What were you talking about had gone on before?
A. I’m not real sure how to word it, but the sexual conduct that had been going on
between them, Mark’s visits into [T.W.]’s room, what had been going on –
Q. Now –
A. – and –
Q. I’m sorry.
A. Go ahead.
Q. Well, was this stuff that Cindy was saying to you or –
A. That Cindy said Mark had told her that morning.
Q. Okay. No – and it was – it was kind of hard to follow. You started talking about
some comment that she looks so much like Cindy when she was younger. Can you
– just for clarification, instead of using a pronoun like she, try to use a name so
everybody can follow along.
A. That Mark had told Cindy that [T.W.] looked so much like Cindy when Cindy
was younger. “He was kind of having the best of both worlds” was the exact term she
used.
....
A. My understanding was before they left that they were going to go there to the
police station, that they were going to go to the police before they went home.
Q. And do you know whether they did that or not?
A. No, they did not.
At the postconviction Rule 37 hearing, Mrs. Walters testified that she and appellant
paid a joint fee for Mr. Horner’s representation. She also said that she invoked her Fifth
Amendment right after Mr. Horner told her to do so and that Mr. Horner did not prepare
6
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her to testify for appellant’s trial. She testified that it was a confusing time for her and that
since Mr. Horner told her that her testimony could hurt her later, she took the advice of her
attorney, whom she thought she could trust to help her. On cross-examination, Mrs. Walters
testified that her understanding was that Mr. Horner was afraid that if she testified at trial that
things could be misconstrued and used against her as she would be tried as well. She testified
that at times she felt that Mr. Horner was trying to assist appellant more than her and at other
times, he would assist her more than appellant. She testified that she did not remember
specifically making a statement to Investigator Bobby Brown that her intention was to
“handle this in-house.” However, she testified that the investigator must have taken her
comments out of context.
At the Rule 37 hearing before the trial court, with regard to Ms. Luebke’s testimony,
Mrs. Walters testified that had she testified at trial, she would have explained that she did tell
Ms. Luebke that there were problems at home. However, the problems were not with
appellant but with her daughter’s overage boyfriend. Additionally, she testified that she did
tell Ms. Luebke that she was having financial issues and that she had talked about separating
from appellant. She also testified that she would have testified that she never made any
statements regarding inappropriate sexual feelings that appellant had for T.W. She testified
that she would have clarified to the jury that her conversation with Ms. Luebke referred to
T.W.’s relationship with her overage boyfriend.
With regard to Ms. Thessing’s testimony at trial, Mrs. Walters testified that had she
testified at trial, she would have testified that some of the statements made by Ms. Thessing
7
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were “blatant lies.” While people have told her that T.W. looked like her when she was
younger and appellant had said that T.W. looked like her in high school, she testified that
appellant never said “he was kind of having the best of both worlds.” Furthermore, she
testified that she never made a statement like that to Ms. Thessing. As to the testimony that
Ms. Thessing gave that Mrs. Walters was “upset this had been going on and that this could
happen, that [appellant] would do this,” Mrs. Walters testified that she was referring to her
discussions with appellant regarding a divorce. She testified that appellant had discussed taking
everything in a divorce proceeding and leaving her with nothing, and she could not believe
that he would do that to her. She further explained that Ms. Thessing had taken her
statements out of context.
At the postconviction hearing, Mr. Horner testified that appellant and Mrs. Walters
came to him prior to charges being filed against them and that he agreed to represent them.
In preparation for trial, Mr. Horner testified that he was concerned with statements Mrs.
Walters made to the police and determined that it was not in appellant’s best interest for Mrs.
Walters to testify. He further testified that he never intended to have her testify and that this
decision was part of his trial strategy. He did not ask her whether she agreed with the
decision because it was not her trial. On cross-examination, Mr. Horner testified that he did
not remember whether Mrs. Walters ever took the stand. He further testified that he believed
that “[t]hey were unified throughout. In other words, they both maintained that ever[y]
statement that was ever made was misunderstood or mis-perceived by the person whoever
was reporting that particular thing.” Furthermore, Mr. Horner admitted that there was an
8
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actual conflict of interest but explained that his clients agreed to the conflict, and his decision
to not have her testify “would have been the decision regardless of who was her attorney.”
However, he did not produce any written documentation that appellant consented to the
conflict of interest, as required by Arkansas Rule of Professional Conduct 1.7. There is no
doubt that an actual conflict of interest was involved under the circumstances in this case, after
reviewing the rule and Mr. Horner’s testimony. Therefore, the remaining question is
whether the conflict of interest adversely affected counsel’s performance. See Sheridan v. State,
331 Ark. 1, 959 S.W.2d 29 (1998).
While the State argues in its brief that the conflict of interest did not adversely affect
Mr. Horner’s performance because appellant’s claim is not supported by proof and because
Mr. Horner’s advice to Mrs. Walters would have been the same regardless of whether he was
her attorney, we disagree. Because Mr. Horner was required under his ethical obligation to
adequately represent both clients’ interests, even if conflicting, he was not free to explore all
avenues in developing his trial strategy to present the best possible defense for appellant at
trial. In developing his impeded trial strategy, Mr. Horner ethically could not ignore the fact
that Mrs. Walters’ testimony, whether favorable to appellant or not, could further implicate
her as well. Therefore, even though he testified that he believed that her interests were
“united” with appellant’s, he was faced with the ethical dilemma of representing two clients
simultaneously who had conflicting interests.
Additionally, even assuming that he had decided not to call Mrs. Walters as a witness,
the State clearly sought to do so. If he had not advised her to exercise her own personal Fifth
9
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Amendment right, he would have been placed in the awkward position to cross-examine his
own client to aid his other client. Instead, Mr. Horner chose to not cross-examine Mrs.
Walters or have Mrs. Walters present any explanation or denial of the damaging testimony.
“Thus, the record in the instant case ‘luminates the cross-purposes under which defense
counsel was laboring.’” Sheridan, supra (quoting Glasser v. United States, 315 U.S. 60 (1942)).
Because Mr. Horner was prevented from developing an unimpeded trial strategy that was in
appellant’s best interest, the actual conflict of interest adversely affected counsel’s performance,
and we reverse and remand this case for a new trial. Because we reverse and remand for a
new trial, it is unnecessary to examine the remaining allegations of ineffective assistance of
counsel, as in all probability they will not recur during the course of a subsequent trial. See
Sheridan, supra.
Reversed and remanded.
Marcus L. Rackley, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
10
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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
July 30, 2008
No. 07-15920 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00015-CR-01-BBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TALBIN D. ANDREWS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 30, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Talbin Andrews appeals his sentence of imprisonment for 46 months for
bank robbery. 18 U.S.C. § 2113(a), (d). Andrews argues that his sentence is
unreasonable. We affirm in part but vacate and remand in part with instructions to
correct a clerical error.
When we review a sentence for reasonableness, we apply a deferential
standard of review for abuse of discretion. See Gall v. United States, 552 U.S. __,
128 S.Ct. 586, 597 (2007). We reverse only if we conclude “that the district court
has made a clear error of judgment.” United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008) (citations omitted). The party challenging the sentence “bears the
burden of establishing that the sentence is unreasonable in the light of [the] record
and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005); 28 U.S.C. § 3553(a). Although we do not apply a presumption of
reasonableness, we ordinarily expect a sentence that falls within the guidelines
range to be reasonable. See Talley, 431 F.3d at 787-88.
Andrews’s sentence is reasonable. His sentence is at the low-end of the
guidelines range. The district court considered the relevant sentencing factors,
including the purposes of sentencing and Andrews’s history and characteristics,
and it determined, without any clear error in judgment, that a sentence of
imprisonment for 46 months was sufficient but not greater than necessary. We
affirm that decision.
2
The government raises an issue regarding the inconsistencies between the
term of supervised release imposed by the district court at sentencing and the term
of supervised release specified in the judgment and commitment order. We have
explained that “purely clerical errors may be corrected by the district court
pursuant to Rule 36, and it is always the oral sentence that controls.” United States
v. Morrison, 204 F.3d 1091 (11th Cir. 2000). We may sua sponte notice a clerical
error in the judgment and remand with instructions to correct the error. See United
States v. Anderton, 136 F.3d 747, 751 (11th Cir. 1998). Because the judgment and
commitment order does not accurately reflect the term of supervised release
imposed by the district court, a remand is ordered for the limited purpose of
correcting the judgment and commitment order to reflect the correct period of
supervised release announced at sentencing.
We affirm Andrews’s sentence but remand for the limited purpose of
correcting the clerical error in the judgment.
AFFIRMED in PART; VACATED and REMANDED in PART.
3
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2 U.S. 335 (____)
2 Dall. 335
The UNITED STATES
versus
The INSURGENTS of Pennsylvania.
Supreme Court of United States.
*341 PETERS, Justice:
I have considered the objections made to the pannels, and do not conceive these objections relevant.
Although in ordinary cases it would be well to accommodate our practice with that of the State, yet the Judiciary of the United States should not be fettered and controuled in its operations by a strict adherence to State regulations and practice. But I see not that in a liberal view and construction of the laws of the United States, on this subject, a rigid adherence to all the local and conomical regulations of the State, is directed or necessary. It should seem, that the most pointed reference was had to the designation and qualification of jurors, 2nd not to the exact numbers of which the pannel should consist. The Legislature of a State have in their consideration a variety of local arrangements, which cannot be adapted to the more expanded policy of the nation. It never could have been in the contemplation of Congress, by any reference to State regulations, to defeat the operation of the national laws. Now, there are cases, which have been stated, in which some of the criminal laws of the United States may be rendered impracticable, by an adherence to the rule of numbers prescribed as to jurors, in criminal cases, by the State law; and especially if there must be but one pannel, as has been contended. Yet, the most substantial requisites, to wit, the qualifications of jurors and mode of selection, may be adhered to. As to the clause in the law of the United States, directing, that "the laws of the States (with great exceptions) shall be regarded as rules of decision, in trials at common law in the Courts of the United States," I do not think it applies to the case before us.
All the arguments founded on the inconveniences to the defendants, if in this case particularly any such exist (of which I much doubt) weigh lightly when set against the delays and obstructions which the objection would throw in the way of the execution of the laws of the nation.
PATTERSON, Justice:
The objections that have been suggested on this occasion, are principally founded on the 29th section of the judicial act of Congress, which refers the Federal Courts to the State laws, for certain regulations respecting juries. But the words of this reference are clearly restricted to the mode of designating the jury, by lot, or otherwise; and to the qualifications which are requisite for jurors; according to the laws and practice of the respective States. Since, therefore, the act of Congress does not itself fix the number of jurors; nor expressly adopt any State rule for the purpose, it is a necessary consequence that the subject must depend on the common law; and, by the common law, the Court may direct any number *342 of jurors to be summoned, on a consideration of all the circumstances under which the venire is issued. There are instances, indeed, where five juries have been summoned upon a trial for High Treason, in order that, after the allowance of the legal challenges, a competent number might still be ensured. In the present instance, the precept requires the Marshall to return at least 48 jurors; and he has not, in my opinion, been guilty of any excess, in the exercise of that discretion for returning a greater number, with which he is legally invested.
Neither is the mode of making his return justly exceptionable. As the act of Congress directs that 12 jurors shall be summoned from the County, in which the offence was committed, I cannot conceive any more proper, or more legal, way of proceeding, than by issuing a venire in each case; and then there must, of course, be a separate pannel returned, in conformity to every writ. Thus, likewise, the act of Congress and the State act have been reconciled, and both put into operation; 12 jurors being returned in pursuance of the former, and 60 jurors being returned in pursuance of the latter, law.
With respect to the objection, that a copy of the caption of the indictment has not been furnished to the prisoners, it may be observed, that, although the practice of Pennsylvania has been different, yet, the caption and the indictment seem naturally to form but one instrument; and copies of both should, therefore, be delivered under the provisions of the act of Congress. There can be little inconveniency in adopting this rule; and it is calculated to avoid much difficulty and controversy.
The objection, that the place of abode of the jurors and witnesses, has not been sufficiently designated, in the lists furnished to the prisoners, is, likewise, in our opinion, a valid one. The object of the law was to enable the party accused to prepare for his defence, and to identify the jurors who were to try, and the witnesses who were to prove, the indictment against him. It is contrary to the spirit and intent of such a provision, that the whole range of the State, or of a County, should be allowed, as descriptive of a place of abode; and it is the duty of the Judges so to mould the practice and construction of statutes, as to render them reasonable and just. With regard to the place, therefore, we think the townships in which the jurors and witnesses respectively reside, should be specified; but the act of Congress does not require a specification of their occupations, and the niceties of the State act, are not, in that respect, incorporated into the Federal system.
In consequence of this decision, the trials were suspended, in order to give the Attorney of the District the three days required by the act of Congress, for delivering to the prisoners, amended copies of the caption and indictment, and of the lists of jurors and witnesses.
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 2, 2010
Decided June 29, 2010
Before
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 09‐1457
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District
of Wisconsin.
v.
No. 08‐CR‐149‐C‐03
MICAH W. RICHARDSON,
Defendant‐Appellant. Barbara B. Crabb,
Judge.
O R D E R
Micah Richardson pleaded guilty to distributing crack and was sentenced to 156
months’ imprisonment – a term that fell near the bottom of his advisory guidelines range. On
appeal, he argues that his sentencing proceeding was procedurally flawed and that his ultimate
sentence was substantively unreasonable. Finding no reversible error, we affirm.
No. 09‐1457 Page 2
In December 2008, Richardson entered his guilty plea to charges of knowingly and
intentionally distributing crack, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At the
sentencing hearing in February 2009, the district court adopted the probation officer’s estimate
that Richardson had distributed approximately 161 to 163 grams of crack. This amount
attributed five ounces (about 142 grams) of crack to Richardson based on money that was
seized from him at the time of his arrest. The probation officer applied a base offense level of
32, and then added two levels for use of a dangerous weapon in connection with the drug
activities (for beating a customer with a baseball bat), and finally subtracted three levels for
acceptance of responsibility. This gave Richardson a final offense level of 31. His criminal
history category was IV, which meant that the guidelines advised a sentence between 151 and
188 months’ imprisonment. The district court misstated this range, both at sentencing and in
its written statement of reasons, as 155 to 188 months, but Richardson has made nothing on
appeal of that error.
Instead, Richardson focused his objections both in the district court and before this court
on the disparity between the sentences recommended for crack offenses and those for powder
cocaine offenses. He requested a sentence within the range that would have applied for
distributing an identical amount of powder cocaine – that is, something between 37 and 46
months. The court rejected his request, citing his accelerating pattern of violent criminal
conduct. As we noted above, it imposed a sentence of 156 months’ imprisonment.
Richardson’s first complaint on appeal is that the district court failed adequately to
explain why it stayed with the crack guidelines and refused to treat crack as leniently as
powder would have been treated. But the district court was not required to go as far as
Richardson would have liked. It is true that a sentencing court must give sufficient reasons for
its decisions to permit meaningful appellate review. See United States v. Are, 590 F.3d 499, 530
(7th Cir. 2009). This is exactly what the district court did. At sentencing, the court announced
that it was adopting the calculations in the presentence report; this was enough to reveal that
it was computing the advisory guidelines range using the crack guidelines that appeared in the
then‐current 2008 U.S. SENTENCING GUIDELINES MANUAL. Helpfully, the court even mentioned
what the range would have been, if Richardson had been charged with an identical amount of
powder cocaine, indicating that it was aware of the significant differential and was making a
conscious choice. It was also well aware of its discretion under Kimbrough v. United States, 552
U.S. 85 (2007), to deviate from the crack guidelines, but it was equally correct that it was under
no obligation to do so.
Richardson argues in the alternative that even if his sentence was procedurally
unobjectionable, it was substantively unreasonable for the district court to adhere to the crack
No. 09‐1457 Page 3
ranges in his case. This is so, he contends, because the policy judgment reflected by the
disparate crack‐to‐powder ratio, in his view, has been repudiated by the U.S. Sentencing
Commission. He adds that the court’s use of that ratio violated the “parsimony provision” of
18 U.S.C. § 3553(a), referring to the admonition that sentences should be “sufficient, but not
greater than necessary, to comply with” the purposes set forth in the statute.
Both arguments are unavailing. As we have noted, Kimbrough held only that district
courts retain discretion to differ with the advisory crack‐powder ratio in the guidelines. 552 U.S.
at 110‐11; see also United States v. House, 551 F.3d 694, 700‐01 (7th Cir. 2008). It does not compel
any particular sentence, or sentencing range. While the Sentencing Commission did revise the
crack guidelines to reduce the disparity somewhat, see U.S.S.G. Supp. to App. C, pp. 226‐31
(2007) (Amendment 706); U.S.S.G. Supp. to App. C, p. 253 (Amendment 713), it did not erase
the disparity. The revised guidelines still treat crack and powder cocaine offenses differently,
see U.S.S.G. § 2D1.1, and a district court that agrees with the policy underlying the crack
guidelines does not abuse its discretion by imposing a sentence within those guidelines. See
United States v. Scott, 555 F.3d 605, 610 (7th Cir. 2009).
The parsimony provision to which Richardson refers is best understood as an
admonition to the district court to impose a reasonable sentence. See United States v. Ministro‐
Tapia, 470 F.3d 137, 142‐43 (2d Cir. 2006). An appellate court may treat a sentence falling within
a properly calculated guidelines range as presumptively reasonable, see Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Noel, 581 F.3d 490, 500 (7th Cir. 2009), and it is unlikely
that such a sentence would violate the parsimony principle. See United States v. Turbides‐
Leonardo, 468 F.3d 34, 41 (1st Cir. 2006). We note in this connection that, contrary to
Richardson’s argument, we see nothing in the record indicating that the district court presumed
that the guidelines sentence was reasonable. That would have been an error, see United States
v. Nurek, 578 F.3d 618, 625‐26 (7th Cir. 2009), but it did not happen.
We conclude by underscoring the fact that the district court engaged in exactly the kind
of careful individual inquiry that is called for. It considered Richardson’s accelerating criminal
conduct, which included beating a man with a baseball bat over a $40 drug debt, and the need
to impose a punishment sufficient to deter him from committing further crimes. It
acknowledged that he had a troubled background, but it decided that this was not sufficient
to overcome the need to impose a significant sentence on him. The final sentence of 156 months
was thus neither procedurally nor substantively objectionable.
The judgment of the district court is therefore AFFIRMED.
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205 Cal.App.2d 1 (1962)
ANTONINA BIRCH et al., Plaintiffs and Respondents,
v.
PAUL M. CIRIA et al., Defendants and Appellants.
Civ. No. 20237.
California Court of Appeals. First Dist., Div. Two.
June 25, 1962.
Charles M. Stark and Paul W. McComish for Defendants and Appellants.
Molinari, Casalnuovo & Berger, John C. Alaimo and Joseph L. Casalnuovo for Plaintiffs and Respondents.
SHOEMAKER, J.
This is an appeal by defendants Paul M. Ciria, Paul T. Ciria, and Virginia Shank, from a judgment awarding damages for fraud in the sale of real property.
In July 1950, Paul M. Ciria and his wife, Rachel, were the owners of a bungalow containing two units, one a five-room first floor residence, the other a four-room basement apartment. On July 11, they sold this house and certain furnishings therein, to plaintiffs for $15,000, $12,250 of which was represented by a note secured by a deed of trust on the premises and payable in installments of $100 per month.
In March 1958, the San Francisco Department of Health notified plaintiffs that the basement apartment had been illegally constructed and could not be rented for living purposes, whereupon this action for damages upon the ground of fraud in the sale was commenced.
Rachel Ciria had died on August 21, 1957, and the children of the marriage, Paul T. Ciria and Virginia Shank, succeeded by inheritance to her one-half interest in the note and deed of trust. Plaintiffs sought damages against the father and children defendants and that the damages be set off against the amount of the note which, under plaintiffs' theory, defendants held as constructive trustees for the benefit of plaintiffs.
After a court trial, judgment was rendered in favor of plaintiffs in the amount of $3,900, and the defendants were declared constructive trustees for the purpose of reducing the amount due on the note by said amount.
Appellants first contend that there is no evidence whatever that any of them were guilty of actionable fraud. As to appellants Paul T. Ciria and Virginia Shank, this contention is sound, since these appellants had no part in the transactions leading up to the sale. Their liability was predicated solely upon the ground that they were subsequent holders, through inheritance, of the note and deed of trust allegedly procured through the fraud of their parents. No personal liability was *4 imposed upon them in excess of their interests under the note.
[1, 2] The evidence reveals that Paul M. Ciria's occupation was that of maintenance man. He and his wife purchased their house in 1937, which was a single-family residence. In 1944, Paul M. Ciria hired a carpenter to build a downstairs room. He assisted with installing the sheet rock therein. The room was completed and then Rachel Ciria hired a contractor to build an adjoining kitchen, bathroom and living room. Mr. Ciria assisted with this work by moving a washtub and connecting it. By 1945, the basement apartment was completed and shortly thereafter the Cirias began renting the apartment.
In response to questions as to whether he had ever applied for permits in connection with the construction work, Mr. Ciria testified that he had not, that he had hired contractors to take care of everything, and that he did not know whether the builders had gotten permits or not. When asked whether he knew that permits were required in order to do building, he stated that he did not know that this was necessary just to build a room downstairs, and that he did not think it was his business because the contractors had been hired to take care of all the necessary arrangements. He did state, however, that when he bought the house in 1937, he found a building permit and a notice of occupancy and completion in the basement. He also testified that he knew a permit had been obtained in connection with the installation of a heating system because he had seen the inspector come and examine the heater.
As to the representations which the Cirias made to respondents, there was evidence that the property had been listed for sale as a multiple dwelling. Mrs. Birch testified that the sellers' agent, Mr. Vagin, told her that the house contained a furnished four-room basement apartment, that there was a tenant paying $65 per month as rent, and that $65 was the authorized OPA price. She stated that Mrs. Ciria had shown her the OPA registration for the apartment and that Mr. Vagin had told her that it would not be hard to pay off the purchase price with the $65 income she would receive from the rent. Mrs. Birch also testified that she purchased the property under the belief that she could continue to rent the apartment, and that she did in fact continue to rent it until March 10, 1958.
We are faced primarily with the question as to whether or *5 not this evidence constitutes a sufficient showing of actionable fraud on the part of Paul and Rachel Ciria. Appellants contend that it cannot and cite Watt v. Patterson (1954) 125 Cal.App.2d 788 [271 P.2d 200], as authority for their position. In the Watt case, the defendant owned a house containing a front apartment of six rooms, a rear apartment of four rooms, and a garage which had been converted into a bedroom. She rented the rear apartment, the garage-bedroom, and two of the rooms in the front apartment to various tenants, and had obtained OPA rental ceilings for the rear apartment and the rooms in the front apartment which she rented. In October 1947, the defendant listed the property for sale as income property and sold it to plaintiffs, who subsequently learned that a municipal ordinance restricted the house to use as a single-family residence. Plaintiffs then brought suit against the defendant, seeking damages for her allegedly fraudulent misrepresentations. The trial court found for the defendant, and the judgment was affirmed on appeal. While it is true that in the Watt case the court held that there was no showing of actionable fraud in the sale of the property as rental property even though the zoning ordinance prohibited the same, the case turned upon the finding of the trial court that there was a lack of scienter on the part of the seller, the appellate court pointing out that the defendant was totally unaware of the zoning ordinance and had never represented the property to be legally rentable. Under such circumstances, the appellate court concluded that there was no proof of scienter, hence no resultant liability on the part of the seller.
The Cirias strongly urge that they never expressly represented to respondents that the basement apartment was legally rentable or that they were aware of the need for building permits, even as the defendant in the Watt case. Respondents, on the other hand, assert that the Cirias were at least guilty of impliedly representing that the apartment was built in accord with the applicable regulations and could legally be rented. Respondents also urge that there was sufficient evidence that the Cirias did know of the requirement that building permits be obtained before commencing such construction. We agree with respondents.
The principles that control in our case are set forth in Unger v. Campau (1956) 142 Cal.App.2d 722 [298 P.2d 891], wherein the defendants sold the plaintiff a dwelling which they had listed as having three separate rental units and *6 which they had told the plaintiff could easily be used for income purposes. In actuality, one of the rental units had been constructed in an illegal manner and without inspection permits, and could not be legally rented. The court upheld the trial court's finding that the manner in which the property had been listed and the defendants' statement that it could easily be rented constituted misrepresentations upon which the plaintiff was justified in relying. As to the question of whether the defendants knew that they were required to obtain permits, the court noted that there was evidence that one of the defendants had worked as a hod carrier, bricklayer and plasterer, and that he had previously obtained a permit in connection with other work performed by him. He had also testified that he knew a permit was necessary for work costing $200 or more. The court thus concluded that the question of knowledge was one of fact and that there was ample evidence to support the trial court's finding of actual knowledge.
In the case at bar, the representations made by the Cirias and their agent, Mr. Vagin, were almost identical to those made in the Unger case. Granting there was evidence on both sides of the matter, the conflict in the evidence was for the trier of facts. Hence, it cannot be said as a matter of law that the lower court erred in finding that the Cirias knew of the need for permits.
[3] Appellants next contend that the trial court was without power to hold Paul T. Ciria and Virginia Shank liable as constructive trustees of the note and deed of trust in the absence of any showing that these defendants participated in or had knowledge of the fraud of their parents. Appellants further contend that respondents' failure to file a claim in the estate of Rachel Ciria precluded them from offsetting their damages against the interests of Paul T. Ciria and Virginia Shank. Neither of these arguments is meritorious.
While the trial court correctly found that Paul T. Ciria and Virginia Shank "did not have any part in any transaction leading up to the sale of said real property to plaintiffs," it does not follow, however, that the court erred in holding these defendants liable as constructive trustees of their interests in the note and deed of trust executed by respondents. Civil Code, section 2224, provides that "One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have *7 had it." Civil Code, section 2243, provides that "Every one [sic] to whom property is transferred in violation of a trust, holds the same as an involuntary trustee under such trust, unless he purchased it in good faith, and for a valuable consideration."
Here, the court found that Paul and Rachel Ciria fraudulently induced respondents to purchase their property at a price which was $3,900 in excess of its true value. Under the rule set forth by Civil Code, section 2224, Paul and Rachel Ciria became involuntary trustees of the obligation evidenced by the promissory note, to the extent that it exceeded the fair value of the property. Respondents were successful in tracing interests in the note and deed of trust into the hands of Paul T. Ciria and Virginia Shank. The rule of Civil Code, section 2243, applies. These appellants did not pay a valuable consideration for their interests; they took by inheritance from their mother, Rachel Ciria; under such circumstances, they became involuntary trustees of the $3,900 by which the note exceeded the fair value of the real property conveyed to respondents. Although appellants assert that they received their interests in good faith, it must be noted that Civil Code, section 2243, requires both good faith and the payment of valuable consideration. [4] The courts have held that if property is impressed with a trust during a decedent's lifetime, his heirs hold it subject to the same conditions and equities. (Atwood v. Elwood (1955) 132 Cal.App.2d 761, 770 [283 P.2d 43].) [5] It has similarly been held that it can make no difference, in the absence of a valuable consideration, that the successor in interest of an involuntary trustee takes in good faith. (Pacific Nat. Bank v. Corona Nat. Bank (1931) 113 Cal.App. 366, 370 [298 P. 144].)
This same approach also defeats appellants' argument that respondents' failure to file a creditor's claim in the estate of Rachel Ciria barred them from seeking relief against Paul T. Ciria and Virginia Shank. Appellants contend that respondents discovered the fraud on March 10, 1958, and that the time for filing claims in Rachel Ciria's estate did not expire until May 1, 1958. [6] Appellants further assert that Probate Code, section 707, requires the timely filing of all claims arising upon contract and all claims for damages for injury to property. Although it is doubtless true that monetary damages resulting from fraud and deceit constitute an "injury to property" within the meaning of the statute (see Agnew v. Parks (1958) 164 Cal.App.2d 837, 840-841 [331 *8 P.2d 184]), appellants overlook the fact that section 707 is inapplicable to specific property which the decedent holds subject to a trust at the time of his death. [7] In Estate of Dutard (1905) 147 Cal. 253, 256 [81 P. 519], the court stated: "It is well settled that one who claims as his own, adversely to an estate, specific property held and claimed by the estate, cannot be called a creditor of the estate within the meaning of the probate law. [8] The decisions are clear and conclusive upon the proposition that where one seeks to recover from the representatives of an estate specific property alleged to have been held in trust by the decedent at the time of his death, he is not seeking payment of a claim from the assets of the estate, is not required to present a claim as a creditor, and is not a 'creditor of the estate.' His action is not founded upon a claim or demand against the estate." (Also see Brunson v. Babb (1956) 145 Cal.App.2d 214, 227-228 [302 P.2d 647].)
Appellants' final contention is that the court erred in refusing to apply the rentals received by respondents in mitigation of the damage caused by appellants' fraud. Appellants assert that respondents received rentals from the illegal apartment for eight years after their purchase. They rely upon Garrett v. Perry (1959) 53 Cal.2d 178 [346 P.2d 758], as authority for the proposition that events occurring subsequent to a fraudulent sale may be considered by the court in arriving at the amount of damages to which the buyer is entitled, and conclude therefrom that the amounts which respondents received as rent should have been allowed in mitigation. This contention may not be upheld. The Garrett case was based upon the express wording of Civil Code, section 3343, which provides that the measure of damages for the fraudulent sale of property shall be the difference between the actual value of the property and the actual value of the consideration with which the buyer parted, together with any additional damage arising from the particular transaction. In the instant case, appellants do not assert that respondents parted with less than the agreed purchase price or that the promissory note which they executed has been cancelled or is no longer a valid and subsisting obligation.
[9] In the case of Sixta v. Ochsner (1960) 187 Cal.App.2d 485 [9 Cal.Rptr. 617], at pages 491 494, we had before us a similar problem, and we there announced the rule applicable, namely, that in an action at law for fraud, which this action is, that "While the application of the out-of-pocket damage *9 rule, viz., section 3343 of the Civil Code, seems harsh in the instant case, it must be borne in mind that these rules are established to protect innocent victims of either direct or implied fraud. If this were an action to rescind, as previously noted, this court would be empowered in equity to make proper adjustments. However, since it is grounded to the affirmance of the contract, our hands are tied, even though the victim of this fraud might thereby appear to be unjustly enriched." (P. 494.)
The trial court was correct in concluding that the rentals actually received by respondents had no bearing on the measure of damages. In view of our determination, we need not consider appellants' contention that the court erred in refusing to order respondents to refresh their recollection of their rental income by consulting their income tax returns.
Judgment affirmed.
Kaufman, P. J., and Agee, J., concurred.
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PUBLISH
UNITED STATES COURT OF APPEALS
Filed 1/21/97
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-3165
JOSEPH D. RIDDICK,
Defendant-Appellant.
Appeal from United States District Court
for the District of Kansas
(D.C. No. 96-3045-JWL)
Joseph D. Riddick, pro se.
Jackie N. Williams, United States Attorney, and Robin D. Fowler, Assistant United States
Attorney, State of Kansas, for the appellee.
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.*
BRISCOE, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered
submitted without oral argument.
Joseph D. Riddick appeals the order of the district court denying his motion to
vacate and set aside his sentence under 28 U.S.C. § 2255. Riddick contends he received
ineffective assistance of counsel at trial.1 We dismiss the appeal for lack of a substantial
showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (April 24, 1996) (AEDPA).
Riddick was tried and convicted of distributing cocaine base and was sentenced to
135 months' imprisonment. The conviction was affirmed on direct appeal (United States
v. Riddick, 1994 WL 504174 (10th Cir. Oct. 11, 1994)), and Riddick filed a motion to
vacate and set aside his sentence under § 2255. The district court denied his motion on
April 19, 1996, and Riddick filed his notice of appeal on May 3, 1996.
The President signed the AEDPA into law on April 24, 1996. Prior to that date, a
§ 2255 movant was not required to obtain a certificate of appealability to appeal an
adverse decision by the district court. However, 28 U.S.C. § 2253(c)(2) now requires a
§2255 movant to obtain a certificate of appealability by making a "substantial showing of
the denial of a constitutional right." The certificate of appealability provision does not
apply to § 2255 cases when the notice of appeal was filed before the effective date of the
AEDPA. United States v. Lopez, 100 F.3d 113 (10th Cir. 1996). However, we conclude
1
Although the procedural bar rule of United States v. Frady, 456 U.S. 152, 167-68
(1982), applies to § 2255 proceedings, see United States v. Allen, 16 F.3d 377, 378 (10th
Cir. 1994) ("A defendant who fails to present an issue on direct appeal is barred from
raising the issue in a § 2255 motion, unless he can show cause for his procedural default
and actual prejudice resulting from the alleged errors, or can show that a fundamental
miscarriage of justice will occur if his claim is not addressed."), it does not apply to
ineffective assistance of counsel claims. United States v. Galloway, 56 F.3d 1239, 1241
(10th Cir. 1995).
-2-
this provision applies when a § 2255 movant files a notice of appeal after the effective
date of the AEDPA.
The rules for determining whether a newly-enacted statute applies to pending cases
are set forth in Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483 (1994).
Under Landgraf, if Congress has expressly prescribed the statute's reach, courts simply
follow the intent of Congress. If Congress has not made its intent known, the statute
applies to pending cases unless doing so would give the statute "retroactive effect." A
new statute has retroactive effect if application to a pending case would impair rights
possessed when a party acted, would increase a party's liability for past conduct, or would
impose new duties with respect to completed transactions. Id. at 1505. The essence of
the test for retroactivity is whether the new statute attaches new legal consequences to
events completed before its enactment. Lopez, 100 F. 3d at 116. See Landgraf, 114 S.
Ct. at 1499.
The AEDPA does not clearly prescribe the reach of amendments to §§ 2253 and
2255. See Hunter v. United States, 1996 WL 706706 (11th Cir. 1996) (en banc).
Applying the new certificate of appealability provisions to pending § 2255 cases in which
the notice of appeal was filed after the effective date of the AEDPA does not increase
Riddick's liability for past conduct or impose new duties with respect to completed
transactions. See id. at *6. Nor does it impair rights Riddick possessed when he acted or
attach new legal consequences to events completed before enactment of the AEDPA.
The amendment at issue here changed a procedural rule. The reliance interests of
a litigant in procedural matters are diminished because procedural rules regulate
secondary rather than primary conduct. Consequently, changes in procedural rules may
-3-
often be applied in pending cases without raising retroactivity concerns. Landgraf, 114 S.
Ct. at 1502. That is the case here. The right to appeal without obtaining a certificate of
appealability was a mere expectation interest under a rule of procedure. Riddick cannot
argue he relied upon the absence of a certificate of appealability provision when he
committed the underlying crime. Nor could he argue that he relied upon the absence of
that provision during his trial or direct appeal. See Hunter at **6-7. We agree with the
court in Hunter that the certificate of appealability provision applies to pending § 2255
cases in which the notice of appeal is filed after the effective date of the AEDPA.
We construe Riddick's appeal as a request for a certificate of appealability. See
Hogan v. Zavaras, 93 F.3d 711 (10th Cir. 1996); Lennox v. Evans, 87 F.3d 431, 434 (10th
Cir. 1996). 2 However, we conclude Riddick has failed to make a substantial showing of
the denial of a constitutional right required by § 2253(c)(2), as amended by the AEDPA.
Riddick argues his counsel failed to seek criminal background information that
could have been used to impeach the informant who was the principal witness against
him. He also argues counsel failed to call a witness who would have impeached the
informant. He contends these omissions by counsel constitute ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984). However, in affirming his
conviction on direct appeal, this court noted the informant's testimony was supported by
2
This court's Emergency General Order of October 1, 1996, requires district
courts to consider the propriety of issuing certificates of appealability in the first instance,
but provides that failure of the district court to issue a certificate of appealability within
thirty days of filing the notice of appeal shall be deemed denial of a certificate. Here,
assuming the order of October 1, 1996, applies to appeals pending on that date, the
district court is deemed to have denied the certificate because it did not issue a certificate
within thirty days of the notice of appeal. Accordingly, we may properly construe the
appeal as a request to this court for a certificate of appealability.
-4-
the testimony of two FBI agents and by tapes and transcripts of the drug purchase and the
informant's telephone conversations with Riddick. Given the strength of the evidence
against Riddick, his arguments do not make a substantial showing that counsel's alleged
errors were objectively unreasonable or that they were prejudicial.
The appeal is DISMISSED.
-5-
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65 So.3d 493 (2009)
ALABAMA HORSEMEN'S BENEVOLENT & PROTECTIVE ASSN, INC., AND ELBERT LUTHER DRINKARD
v.
MARSHA BROWN, ET AL.
No. 1061033.
Supreme Court of Alabama.
August 14, 2009.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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868 F.2d 1073
130 L.R.R.M. (BNA) 2900, 111 Lab.Cas. P 10,964,4 Indiv.Empl.Rts.Cas. 330
Carman DeLAPP, Plaintiff-Appellant,v.CONTINENTAL CAN COMPANY, INC., Defendant-Appellee.
No. 87-3707.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted July 14, 1988.Decided Feb. 28, 1989.
William B. Christie, Seattle, Wash., for plaintiff-appellant.
Judd H. Lees and Josephine B. Vestal, Williams, Lanza, Kastner & Gibbs, Bellevue, Wash., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before POOLE, CANBY, and LEAVY, Circuit Judges.
CANBY, Circuit Judge:
1
Carman DeLapp appeals the district court's judgment in favor of Continental Can Company. DeLapp originally brought this breach of contract action in state court, but Continental Can subsequently removed it to federal court, asserting diversity jurisdiction under 28 U.S.C. Sec. 1332 and federal question jurisdiction under 28 U.S.C. Sec. 1331 and 29 U.S.C. Sec. 185. A jury determined that an oral agreement had been reached between Continental Can and DeLapp and that Continental Can had breached the agreement. The district court granted Continental Can's petition for judgment notwithstanding the verdict, finding that the individual oral agreement between the parties was unenforceable in the face of a collective bargaining agreement that governed the same benefits. We affirm.
FACTS
2
DeLapp worked for Continental Can as a maintenance machinist in Continental's Seattle machine shop facility. DeLapp and the other employees at this facility were represented by the International Association of Machinists and Aerospace Workers and were covered by a master agreement negotiated between the union and Continental Can. Among other things, the master agreement provided that an employee would be eligible for early pension if he or she had twenty-five years of continuous service and had been subject to an uninterrupted two year layoff period. An employee automatically obtained an additional two year credit, called "creep," if he was not recalled to the home plant or any plant within 100 miles of the home plant during a two year layoff period. Thus, an employee would be eligible to receive early pension benefits if he worked twenty-three years prior to the layoff and then was not recalled to work during a two year period following the layoff.
3
In September of 1982, Continental Can determined that it would have to close its Seattle facility and lay off the entire work force. DeLapp would have worked for Continental Can for 23 years in March of 1983; thus, a layoff date in March would make him eligible to receive early pension benefits under the master agreement if he obtained the two year creep. Although DeLapp was originally slated to be laid off in December of 1982, Continental Can promised him a March layoff date if he would assist the company with the dismantling of its Seattle plant. DeLapp agreed and was eventually laid off in March. Shortly after his layoff, Continental Can recalled him to work in its plant in Lacey, Washington, located within 100 miles of the Seattle facility. DeLapp refused the position and in June of 1983, Continental Can advised him that his refusal to accept the recall would result in a break in service within the two year "creep." In February of 1986, DeLapp sued to compel payment under the early pension program.
4
At trial, DeLapp argued that Continental Can promised him a guaranteed layoff date of March, 1983 if he stayed on to help with the dismantling of the Seattle plant. In addition, DeLapp contended that Continental Can promised that it would not enforce the recall disqualification provision set forth in the master agreement during the two year layoff period. The jury found in DeLapp's favor and determined that Continental Can had breached its agreement with DeLapp by recalling him to its Lacey, Washington plant. DeLapp now appeals the district court's grant of Continental's motion for judgment notwithstanding the verdict.
DISCUSSION
5
We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Like the district court, we determine the propriety of a judgment notwithstanding the verdict by evaluating whether the evidence, "viewed in the light most favorable to the non-moving party, permits only one reasonable conclusion with respect to the verdict." Locricchio v. Legal Services Corp., 833 F.2d 1352, 1356 (9th Cir.1987). We conclude that federal law preempts DeLapp's state law breach of contract claim. The district court was therefore correct in granting Continental's motion for judgment notwithstanding the verdict.
6
The Preemptive Effect of Federal Law.
7
DeLapp argues that his complaint does not assert a breach of the collective bargaining agreement, and that accordingly section 301 of the Labor Management Relations Act (LMRA) should not preempt his state contract claim. Section 301(a) provides federal jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. Sec. 185(a) (1982). A suit for breach of a collective bargaining agreement under section 301 is governed exclusively by federal law. Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 997 (9th Cir.1987). The preemptive force of section 301 is sufficiently powerful that it displaces entirely any state cause of action for violation of a collective bargaining agreement. Stallcop v. Kaiser Found. Hospitals, 820 F.2d 1044, 1048 (9th Cir.), cert. denied, --- U.S. ---, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987).
8
The Lingle Test for Preemption.
9
The Supreme Court has recently established that the application of state law is preempted by section 301 "only if such application requires the interpretation of a collective bargaining agreement." Lingle v. Norge Div. of Magic Chef, Inc., --- U.S. ----, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988). Under the Lingle test, DeLapp's state contract claim is preempted by Sec. 301 if any term of the collective bargaining agreement must be interpreted to resolve DeLapp's state law claim. We conclude that DeLapp's state claim is preempted by federal labor law because the provision in the collective bargaining agreement governing the early pension benefit program must be interpreted to resolve the claim.
10
DeLapp contended at trial that he agreed to stay on and help with the dismantling of Continental Can's Seattle plant in exchange for Continental's promise that he would receive early pension benefits. Continental Can's early pension program is defined in the master agreement that was negotiated between the union and Continental Can. The master agreement provides that an employee is eligible to receive early pension if he or she had 25 years of continuous service and had been subject to a layoff. In addition, the agreement provides that an employee can obtain a two year credit, called "creep," if the employee is not recalled to the home plant or any plant within 100 miles of the home plant during a two year period following the layoff. DeLapp claims that he entered into an oral contract with Continental Can under which Continental promised not to enforce the master agreement's recall disqualification provision.
11
DeLapp's oral agreement dealt specifically with his entitlement to a right or benefit "created by [the] collective bargaining agreement." See Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987) ("Section 301 governs claims founded directly on rights created by collective bargaining agreements, and also claims 'substantially dependent on analysis of a collective bargaining agreement.' "). To resolve DeLapp's contract claim, an interpretation of the collective bargaining agreement is necessary to understand the components of the early pension program and the program's "creep" provision. DeLapp was covered by the collective agreement and represented by the union at the time he entered into the oral agreement with Continental Can. Thus, while employees are entitled to enter into individual contracts with their employers to assert rights that are independent of the collective bargaining agreement, DeLapp asserts no such right. His individual oral agreement with Continental Can cannot be enforced without interpreting the collective bargaining agreement. Under the Lingle test, DeLapp's state law breach of contract claim is preempted by Sec. 301, and the union's collective bargaining agreement controls the resolution of this dispute.
12
DeLapp would avoid the preemptive effect of Sec. 301 by viewing his contract as entirely separate from the collective bargaining agreement. As we have stated, we do not believe the contract can be so characterized. Even if it could, DeLapp would not be entitled to prevail. The Supreme Court has analyzed the relationship of individual employment contracts to collective bargaining agreements and concluded that an employee may make a separate contract with his employer only so long as it is "not inconsistent" with the collective bargaining agreement. J.I. Case Co. v. NLRB, 321 U.S. 332, 339, 64 S.Ct. 576, 581, 88 L.Ed. 762 (1944); see also Bale v. General Telephone Co., 795 F.2d 775, 779 (9th Cir.1986).
13
DeLapp argues that his individual contract is not inconsistent with the collective bargaining agreement. He asserts that Continental Can orally agreed to waive its rights under the recall disqualification provision of the master agreement. Because this provision is discretionary, DeLapp reasons that its waiver is entirely consistent with the agreement. But Continental is given the power under the agreement to interrupt an employee's service for purposes of the "creep" allowance by recalling him to work; thus, the company's defense when sued is to assert the collective bargaining agreement. DeLapp's separate agreement is inconsistent with this application of the collective bargaining agreement. The collective bargaining agreement must prevail. See Hendricks v. Airline Pilots Ass'n Intern., 696 F.2d 673, 675-77 (9th Cir.1983).1
14
Finally, we accept the district court's conclusion that Continental Can did not engage in fraudulent or overreaching conduct to induce DeLapp into performing extra work. DeLapp was not singled out for special treatment when Continental recalled him to work; others similarly situated were also recalled and found ineligible for early pension benefits. In addition, the record supports the district court's conclusion that Continental's refusal to pay benefits to DeLapp was based on a reasonable interpretation of the master agreement and the oral contract. Thus, special circumstances which may require the enforcement of an oral contract to avoid injustice do not exist in this case.2CONCLUSION
15
DeLapp's state law contract claim is preempted by Sec. 301 under the test set forth in Lingle. Accordingly, the district court's grant of judgment notwithstanding the verdict is AFFIRMED.
1
The fact that DeLapp's individual agreement with Continental Can is more advantageous to DeLapp as an employee does not serve to buttress DeLapp's argument from a policy standpoint. In J.I. Case, the Court noted that "[t]he practice and philosophy of collective bargaining looks with suspicion on such individual advantages" and advantages to individuals are "often earned at the cost of breaking down some other standard thought to be for the welfare of the group." Id. 321 U.S. at 338, 64 S.Ct. at 581. Thus, injecting private contracts into the bargaining process, whether the contracts be to the advantage of a particular employee or not, will not further Congress' goal of encouraging collective agreements and promoting industrial peace. See Hendricks, 696 F.2d at 676
2
Because we decide that the terms of the collective bargaining agreement control the resolution of this dispute, we need not address the appellees alternative grounds for affirmance based on the statute of limitations and the exhaustion doctrine
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122 N.H. 134 (1982)
NEW CANAAN ACADEMY, INC.
v.
TOWN OF CANAAN.
No. 81-050.
Supreme Court of New Hampshire.
February 19, 1982.
*135 Donald A. Ingram, of Hanover, by brief and orally, for the plaintiff.
Baker, Laney & Hayes, of Lebanon (Robert B. Laney on the brief and orally), for the defendant.
*136 BATCHELDER, J.
New Canaan Academy, Inc., seeks an abatement of taxes assessed for the year beginning April 1, 1977, on the corporation's real estate located in Canaan, New Hampshire, consisting of a forty-two-room house on approximately six acres of land. The plaintiff bases its claim for tax exemption upon the provisions of RSA 72:23 IV, which exempts from property taxation:
"The buildings and structures of schools, seminaries of learning, colleges, academies and universities organized or incorporated or carrying on their principal activities in this state and owned, used and occupied by them for the purposes for which they are established, including but not limited to the dormitories, dining rooms, kitchens, auditoriums, classrooms, infirmaries, administrative and utility rooms and buildings connected therewith, athletic fields and facilities and gymnasiums, boat houses and wharves belonging to them and used in connection therewith, and the land thereto appertaining...."
The New Canaan Academy claims to be a school for instruction in the meditative arts, which consist principally of sitting meditation, instruction in Tai Chi, and a course entitled Zen Basketball, which, its director testified, may be anything, including dishwashing or Ping-Pong. The question presented is whether the New Canaan Academy is an educational institutioni.e., a school, seminary of learning, college, academy or universitywithin the meaning of the statute. We hold that, upon the record before him, the Master (Thomas M. Pancoast, Esq.) correctly ruled that New Canaan Academy does not come within the four corners of the statute. The master's findings and rulings, approved by the Superior Court (Johnson, J.), are accordingly affirmed.
The cases in this jurisdiction which have been decided since the adoption of RSA 72:23 IV have, in the words of the master, "involved institutions such as Phillips Exeter Academy, St. Paul's School, Mount Saint Mary's School for Girls and Colby Academy, whose qualifications as seminaries of learning or institutions devoted to educational purposes appear to have been conceded." The term "educational institution" has not been clearly defined in New Hampshire. In Sisters of Mercy v. Hooksett, 93 N.H. 301, 42 A.2d 222 (1945), this court, commenting on Mount Saint Mary's College as an institution which conferred degrees, traced the usage of the term in New Hampshire from approximately 1770 and equated a seminary of learning with colleges generally and Dartmouth College in particular, as well as with various preparatory *137 schools which were springing up in the early 1800's. See id. at 303-07, 42 A.2d at 224-26. Without further detailed discussion of what elements are necessary to constitute a seminary of learning, the court merely stated: "We think it clear that `seminaries of learning' as used in our statute includes Mount Saint Mary College...." Id. at 307, 42 A.2d at 226.
In 1876, the court ruled that tax-exempt status under the General Statutes, 49:2, applied to property standing in the name of the Mother Superior of a parochial school in Manchester and held that "[t]his property is devoted exclusively to the purposes of a seminary of learning, the educational course of which comprises all the branches of instruction, both useful and ornamental, usually included in the academic course of the high seminaries for the finished instruction of young ladies." Warde v. Manchester, 56 N.H. 508, 509 (1876).
[2, 3] These cases provide sparse background concerning what considerations are necessarily involved in determining what constitutes an educational institution under the statute. After careful consideration and a review of the standards used by other jurisdictions, however, we are convinced that the construction of a bright-line test is impossible; each case will necessarily depend on its own peculiar facts. We propose, however, some general guidelines that may be useful. The first is whether the purposes for which the institution is organized and operated are educationali.e., intended to develop the faculties and powers and the expansion of knowledge through a systematic course of instruction or schooling as distinguished from the mere communication of facts or ideas, see Swedenborg v. Lewisohn, 40 N.Y.2d 87, 94, 351 N.E.2d 702, 706, 386 N.Y.S.2d 54, 58 (1976). Second, the land and buildings in question must be "used and occupied directly for the purposes for which they are organized or incorporated...." RSA 72:23 IV; see St. Paul's School v. City of Concord, 117 N.H. 243, 372 A.2d 269 (1977); Wentworth Home v. Portsmouth, 108 N.H. 514, 238 A.2d 730 (1968). Third, "none of the income or profits [may be] divided among the members or stockholders or used or appropriated for any other purpose than the purpose for which they are organized...." RSA 72:23 IV. Fourth, although it is not necessary that the training be of the type that would otherwise be furnished by the government, contra, Oasis, Midwest Center for Human Potential v. Rosewell, 55 Ill. App. 3d 851, 856-57, 370 N.E.2d 1124, 1128 (1977), the task of the taxpayer to prove that he falls within the exemption will be more difficult as the divergence from traditional educational methods and objectives increases.
*138 [4, 5] The plaintiff urges that great weight should be given to a ruling by the Internal Revenue Service that the New Canaan Academy is exempt from federal income taxation because it is an educational institution. See I.R.C. § 501(c)(3). We disagree. The certificate of tax exemption is certainly some evidence that an institution is an educational one, but it is not binding on the courts of this State. See Lawton v. Lawton, 113 N.H. 429, 431, 309 A.2d 150, 151 (1973); accord, In re Aloha Foundation, Inc., 134 Vt. 239, 241, 360 A.2d 74, 76 (1976). The certificate is only an administrative agency's interpretation of a federal statute and need be given no greater weight than an organization's qualification under the statute of another jurisdiction.
[6, 7] At the outset, the burden of proving an institution's entitlement to a tax exemption rests on the applicant. See Nature Conservancy v. Nelson, 107 N.H. 316, 319, 221 A.2d 776, 778-79 (1966); Williams v. Park, 72 N.H. 305, 311, 56 A. 463, 464 (1903). It is only after the applicant has demonstrated that it is an exempt institution will there generally be "a strong presumption in favor of the judgment of an educational institution's officers as to what uses of land or buildings are necessary to promote the institution's purposes." St. Paul's School v. City of Concord, 117 N.H. at 250, 372 A.2d at 274.
[8, 9] The record presented is patently inadequate for a considered judgment as to the taxability of New Canaan Academy's real estate in Canaan. The plaintiff has failed in two major respects. In making determinations in areas of the law such as this, we must be adequately apprised as to what the institution is, in fact, accomplishing, as well as what is proposed, according to its charter, to be accomplished. However laudable the goals of "meeting the separate needs of each individual student and of providing an environment in which the fulfillment of the individual is possible," the decision-making body must be apprised as to how the plaintiff's activities contribute to the education of its members.
[10] Furthermore, the plaintiff has failed to offer evidence concerning the use of the building as a residence for certain families that are members of the New Canaan Academy. See St. Paul's School v. City of Concord, 117 N.H. at 251-53, 254-55, 372 A.2d at 274-75, 276-77; Wentworth Home v. Portsmouth, 108 N.H. at 517, 238 A.2d at 732. Buildings and structures cannot be "used or appropriated for any other purpose than the purpose for which [the institutions] are organized...." RSA 72:23 IV. The master found that "[t]he plaintiff is more akin to an organization for the *139 communal living of its members." On the record before us, we cannot say that his finding was erroneous as a matter of law. See Summit Electric, Inc. v. Pepin Brothers Const., Inc., 121 N.H. 203, 206, 427 A.2d 505, 507 (1981).
[11] Accordingly, we affirm the trial court and hold that, on this record, the plaintiff has failed to prove its qualifications for tax exemption under RSA 72:23 IV, and that it is, therefore, liable for the taxes assessed that year.
Affirmed.
All concurred.
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FILED
NOT FOR PUBLICATION APR 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUCAS BUDIONO, a.k.a. Lu Han Hong, No. 08-72223
a.k.a. Budiono Lucas,
Agency No. A075-660-448
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Lucas Budiono, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. We review de novo questions of law and review for
substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056
(9th Cir. 2009). We deny in part and grant in part the petition for review, and we
remand.
Substantial evidence supports the agency’s denial of CAT relief because
Budiono failed to establish it is more likely than not that he will be tortured in
Indonesia by or with the acquiescence of a public official or other individual acting
in an official capacity. See Wakkary, 558 F.3d at 1068.
Further, the record does not compel the conclusion that Budiono experienced
harms in Indonesia that rise to the level of past persecution. See Hoxha v. Ashcroft,
319 F.3d 1179, 1182 (9th Cir. 2003); Wakkary, 558 F.3d at 1059-60. However, in
analyzing Budiono’s fear of future persecution, the agency did not apply the
disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th
Cir. 2004). In light of this and our intervening decisions in Tampubolon v. Holder,
610 F.3d 1056 (9th Cir. 2010), and Wakkary v. Holder, 558 F.3d 1049 (9th
Cir. 2009), we remand for the agency to assess Budiono’s asylum and withholding
of removal claims under the disfavored group analysis in the first instance. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
2 08-72223
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
3 08-72223
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NOTE: This order is nonprecedential
United States Court of Appeals
for the Federal Circuit
DAVID A. TROPP,
Plaintiff-Appellant,
V.
CONAIR CORPORATION, HP MARKETING CORP.
LTD., L.C. INDUSTRIES, LLC, MASTER LOCK
COMPANY LLC, SAMSONITE CORPORATION,
TITAN LUGGAGE USA, TRAVEL`PRO
INTERNATIONAL INC., AND TRG ACCES_SORIES,
LLC,
Defendants-Appellees,
AND
BRIGGS & RILEY TRAVELWARE LLC,
Defendant-Appellee,
AND
VF OUTDOOR, INC., BROOKSTONE COMPANY,
INC., AND BROOKSTONE STORES, INC.,
Defendants-Appellees,
AND
DELSEY LUGGAGE INC.,
Defendant-Appellee,
AND
EBAGS, INC.,
Defendant-Appellee,
TROPP V. CONAIR CORPORATION 2
AND
MAGELLAN’S INTERNATIONAL TRAVEL
CORPORATION,
Defendant-Appellee,
AND
TUMI, INC.,
Defendant-Appellee,
AND
WORDLOCK, INC.,
Defendant-Appellee,
AND
EAGLE CREEK, A DIVISION OF VF OUTDOOR,
INC. AND OUTPAC DESIGNS INC.,
Defendants.
n
2011-1583
Appeal from the United States District Court for the
Eastern District of New York in case no. 08-CV-4446,
Judge Eric N. Vita]iano.
ON MOTION
ORDER
David A. Tropp moves without opposition to reinstate
this appeal and for an extension of time to Ele a corrected
‘orief.
On April 9, 2012, this court dismissed this appeal for
failure Tropp’s failure to file a corrected brief. The court
3 TROPP V. CONA_IR CORPORATION
notes that Tropp has since filed a corrected brief, and that
appellees have filed their brief`.
Upon consideration thereof,
IT ls ORDERED THAT:
(1) The motions are granted The court’s April 9,
2012 order dismissing this appeal is vacated, the mandate
is recalled, and the appeal is reinstated
(2) The appellant’s reply brief, if any, is due within 14
days of this order.
FoR THE CoURT
0 7 /s/ Jan Horbaly l
Date J an Horbaly
Clerk
cc: Neil P. Sirota, Esq.
Ronald D. Coleman, Esq. F"_ED
Jeff`rey A. SchWab, Esq. U~SMYBHMYTFUH
Brian Andrew Carpenter, Esq.
william L. Pri¢k@tc, Esq. JUN 0 7 2012
Christopher Francis Lonegro, Esq. JANHUBBAL¥
Janet L. Cullum, Esq.
Robert J. Kenney, Esq.
Thomas F. Fitzpatrick, Esq.
323
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Dismissed and Opinion Filed April 19, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01465-CV
HHRCD, LLC AND MARK CROSSLIN, Appellants
V.
D ANDI N ENTERPRISES, INC., Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-14474
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Whitehill
Opinion by Justice Francis
Before the Court is the parties’ joint agreed motion to dismiss the appeal based on
settlement. We grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(2).
/Molly Francis/
MOLLY FRANCIS
JUSTICE
171465F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HHRCD, LLC AND MARK CROSSLIN, On Appeal from the 193rd Judicial District
Appellants Court, Dallas County, Texas
Trial Court Cause No. DC-17-14474.
No. 05-17-01465-CV V. Opinion delivered by Justice Francis,
Justices Fillmore and Whitehill
D ANDI N ENTERPRISES, INC., participating.
Appellee
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
As per the parties’ agreement, we ORDER each party bear its own costs of this appeal.
Judgment entered April 19, 2018.
–2–
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479 F.2d 921
156 U.S.App.D.C. 200
U. S.v.Bettis
72-2117
UNITED STATES COURT OF APPEALS District of Columbia Circuit
6/8/73
1
D.C.D.C.
AFFIRMED
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-48,152-08
Ex parte GARCIA GLEN WHITE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 723847 IN THE 180TH JUDICIAL DISTRICT COURT
HARRIS COUNTY
R ICHARDSON, J., filed a concurring opinion in which H ERVEY and N EWELL, JJ.,
joined.
CONCURRING OPINION
I agree with the Court’s interpretation of the statutory language in question. It would
seem that the plain language of Article 11.073 restricts the meaning of the phrase, “would
not have been convicted,” to apply only to the verdict of guilt and not to the assessment of
punishment. This is consistent with the Court’s interpretation of this exact phrase in Ex parte
Gutierrez, 337 S.W.3d 883, 901 (Tex. Crim. App. 2011). And, as noted by the majority,
Gutierrez was decided two years before Article 11.073 was enacted. The Legislature was
aware of how the phrase, “would not have been convicted,” would be interpreted by this
Court. Had the Legislature intended Article 11.073 to apply to punishment, it could have
explicitly said so. Therefore, I join the majority.
White Concurring Opinion — 2
However, this is a harsh result, particularly in a death penalty case where the jury is
often asked to evaluate expert scientific testimony and scientific evidence in assessing
whether the death penalty is the proper punishment. The points made by the dissenting
opinion are valid. In my opinion, Article 11.073 should have been written to apply to both
the guilt and punishment phases of a trial—at least a death penalty trial.
FILED: November 2, 2016
PUBLISH
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949 S.W.2d 63 (1997)
329 Ark. 443
Donna M. MASTERSON and DG'S Shiloh Two, Inc., Appellants,
v.
STATE of Arkansas ex rel. Winston BRYANT, Attorney General, Appellee.
No. 96-1064.
Supreme Court of Arkansas.
July 14, 1997.
William B. Putman, Timothy L. Brooks, Fayetteville, for Appellants.
James Depriest, Senior Assistant Attorney General, Little Rock, for Appellee.
THORNTON, Justice.
Donna M. Masterson owns and controls DG's Shiloh Two, Inc. Both are appellants in this action. Between January 1993 and August 1996, DG's Shiloh Two owned, and Donna Masterson managed, two bingo halls located in Springdale, Arkansas. In January, 1993, the State of Arkansas ex rel. Winston Bryant, Attorney General, appellee, filed a complaint in the chancery court of Washington County against appellants alleging that the bingo operations constituted public *64 nuisances and seeking an order to abate and enjoin such activities. Other operators of bingo halls were named but were dismissed when they discontinued their bingo operations. Appellants continued to operate their bingo halls and agreed with appellee to submit the matter to the chancery court upon stipulated facts.
Appellants argued that appellee failed to allege irreparable harm as a basis for injunctive relief, and urged that the adoption by the state of Ark.Code Ann. §§ 26-52-1501 1507 (Supp.1995), which taxes gross receipts from bingo operations, under which appellants remitted $316,266.00 in taxes to the state, supports appellants' contention that the bingo halls are not public nuisances. Appellants also argued that the chancery court lacked subject-matter jurisdiction.
On August 12, 1996, the chancery court entered a decree abating the bingo activities as a public nuisance and enjoining the appellants from continuing such activities. On appeal, appellants assert that the chancery court erred in finding that their bingo operations constituted a public nuisance, and further contend that the court lacked subject-matter jurisdiction to conclude that bingo is a lottery or to abate and enjoin such activity. Finally, appellants argue that the court erred in not granting their motion for summary judgment. We have considered each assignment of error and have determined that the trial court should be affirmed. This resolves any issue concerning summary judgment.
Subject-Matter Jurisdiction of Chancery Court
Appellants correctly state the general rule that a chancellor has no criminal jurisdiction. State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906). Further, it is correct that "except in narrow circumstances ... equity will not enjoin the commission of a crime because the remedy at law is adequate." Bates v. Bates, 303 Ark. 89, 93, 793 S.W.2d 788, 791 (1990). However, there are circumstances to which we refer in Bates and other cases where both criminal and equitable relief are appropriate. In a case involving an erroneously granted exception to the provisions of a city ordinance prohibiting the erection of a nonfireproof building, the chancery court refused to issue an injunction against the prohibited structure because the ordinance prescribed criminal punishments of a fine for each day of violation. Meyer v. Seifert, 216 Ark. 293, 225 S.W.2d 4 (1949). The appellees in that case argued that the criminal penalty was exclusive. We disagreed and reversed, stating in the words of Justice Robert A. Leflar:
That equity will not act to restrain ordinary violations of the criminal law, but will leave the task of enforcing the criminal laws to courts having criminal jurisdiction, is basic learning in our legal system. But it is equally basic that if grounds for equity jurisdiction exist in a given case, the fact that the act to be enjoined is incidentally violative of a criminal enactment will not preclude equity's action to enjoin it.
Id. at 296-97, 225 S.W.2d at 6.
In State ex rel. Att'y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), we decided that the chancery court erred in refusing to entertain jurisdiction of an injunction proceeding brought by the Attorney General seeking to enjoin the operation of a gambling house and stated:
The chancery court held that it had no jurisdiction in this case. We have repeatedly recognized that equity has authority to abate a public nuisance. In Ross et al. v. State, 184 Ark. 385, 42 S.W.2d 376, we quoted from Marvel v. State, 127 Ark. 595, 193 S.W. 259, 5 A.L.R. 1458, as follows: "The Legislature has not conferred the jurisdiction upon the chancery court to abate public nuisances. This jurisdiction they have always had."
Id. at 710, 187 S.W.2d at 330 (emphasis added).
We also quoted with approval the statement from 39 Am. Jur. 410, as follows:
Where the act is both a public nuisance and a crime, the state may suppress it by a suit in equity, or resort to a criminal prosecution, or may do both.... To warrant an injunction where the nuisance is also a crime, there must be proof of what that *65 law denominates a nuisance as distinguished from a mere crime.
Id. at 711, 187 S.W.2d at 330.
In an earlier case involving the same gambling house, Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421 (1943), we reversed the local chancellor's decree protecting the gambling house from interference by the state police. We pointed out that "a gambling house was a public nuisance at common law, and the operation of a gambling house has by statute been made a felony in Arkansas." Id. at 311-312, 176 S.W.2d at 423.
In State ex rel. Att'y Gen. v. Karston, supra, we cited many decisions declaring a gambling house to be a public nuisance at common law, determined that the Attorney General has the power and duty under common law to institute equitable proceedings to enjoin the nuisance, and summed up as follows:
[B]y the weight of authority, equity may act to suppress a public nuisance, even though the maintenance of the nuisance is a crime, where there is alleged in addition to the public nuisance, some facts which show the remedy at law, by prosecution of the criminal, is inadequate and incomplete to effect relief.
Id. at 712, 187 S.W.2d at 331.
In the case under consideration we note that the stipulation of facts, considered together with the principles we have reviewed, support the chancery court's following conclusions of law:
That each of the bingo halls at issue in this case have operated (openly, publicly, repeatedly, continuously, persistently, and intentionally) on a regular basis for an extended period of time, notwithstanding any potential application or enforcement of any criminal statutes. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate. (Emphasis added.)
We will not reverse the findings and conclusions of a chancery court unless they are clearly erroneous. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). We conclude that the findings are not clearly erroneous, and agree with the chancery court's conclusion of law "that this Court, as a court of equity, has jurisdiction to abate a public nuisance." We hold that the chancery court has subject-matter jurisdiction.
Bingo Halls as a Public Nuisance
In reviewing the question whether the chancery court had subject-matter jurisdiction to enjoin a public nuisance, we cited Albright v. Karston, supra and State ex. rel. Att'y Gen. v. Karston, supra, for guidance as to the availability of equitable relief when criminal penalties are also available. In these cases, we pointed to many other cases that declared gambling houses to be public nuisances at common law. The availability of equitable relief to enjoin a gambling activity was discussed in Meyer v. Seifert, where we stated:
In one of the most publicized cases that ever arose in Arkansas, Chancellor Martin enjoined the holding at Hot Springs of a world championship heavyweight prize-fight between James J. Corbett and Robert Fitzsimmons. State ex rel. Atty. Gen. v. Corbett, Fitzsimmons, et al., Martin's Chanc. Decisions 366. Judge Martin conceded that ordinarily equity does not enjoin the commission of crimes, but pointed out that it does issue such injunctions where property interests are involved, and emphasized the prospective property injuries threatened by the prizefight, notably the payment of money by purchases of tickets of admission to the illegal enterprise, losses by bettors....
Id. at 297, 225 S.W.2d at 6-7.
This articulation of possible property losses incurred through gambling activities may reflect the rationale for decisions that a gambling house constitutes a public nuisance at common law. The protection of property rights of the public affected by illegal gambling activities meets the test for equitable relief suggested by Chief Justice Hill in State v. Vaughan, where after denying the injunction in the particular case, we added:
On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is *66 affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be a crime.
Id. at 126, 98 S.W. at 690.
Appellants argue that because the state is taxing its bingo operations, those operations cannot be considered a nuisance. We have considered a similar argument that Act 939, (codified at Ark.Code Ann. §§ 26-52-1501 1507 (Supp.1995)), legalizes bingo in our recent decision in Billy/Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995), where we stated:
Billy/Dot admits that it operates a bingo establishment where money is at risk, but it is wrong in contending that Act 939 legalizes bingo. The Act specifically does not make bingo legal, as is evidenced by its Emergency Clause: "[T]hat this tax and the requirement for annual registration are not intended to address any question of legality or illegality of the conduct of playing bingo;" Act 939 only provides for taxation of bingo revenues. Because there is no lawful business operation at issue here, there is no valid property right to be protected in this matter.
Id. at 277, 908 S.W.2d at 337. In Billy/Dot, we also made the following determination:
Here, there is no question but that playing bingo for money constitutes gambling which is a criminal offense under our statutes, and the chancery court so found. In doing so, the court correctly cited State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992), in its order.
Id.
The operation of a commercial bingo hall meets the definitions of a gambling house, and is therefore a common-law public nuisance. In the case before us it was stipulated that the operation of the bingo halls has been profitable enough to make necessary the payments of taxes of $316,266.00 on gross receipts from July 1993 until June of 1996, and that appellants intend to continue the activities, thereby showing that the operation of the gambling houses have resulted in losses to the public patrons of money from their purchase of cards and pull-tabs from which the proceeds are at least sufficient to pay appellant's taxes. It was also stipulated that no prosecution has been initiated against those operations by anyone, thereby showing that the prosecuting attorney has not brought criminal charges. Whether this is because of the difficulty in gaining convictions, or a belief that other criminal violations have higher priority, or because the prosecuting attorney simply chooses not to prosecute is not relevant. The stipulation that no prosecution has occurred notwithstanding the open continuous, and lucrative operation of the public nuisance supports the chancery court's conclusion that there is no adequate remedy at law. Equity may act to suppress a public nuisance where the remedy at law is inadequate and incomplete. State ex rel. Att'y Gen. v. Karston, supra.
Appellees urge that appellants' operation of commercial bingo halls should be declared to be a public nuisance because it flouts the public policy of Arkansas, as expressed in the prohibition against lotteries contained in Ark. Const. art. 19, § 14.[1] We need not address that argument because of our determination that appellants are operating gambling houses, and that such activities are public nuisances under the common law.
Conclusion
On the basis of the stipulations agreed to in this case, the chancery court found that appellants' bingo halls are public nuisances that have operated openly, continuously, and *67 intentionally, for an extended period of time, without any application or enforcement of criminal penalties. The chancery court made specific findings and conclusions of law, including the following:
That each of the bingo halls ... have operated on a regular basis for an extended period ... notwithstanding any potential application or enforcement of any criminal statute. It appears to this court that, whatever remedy may exist at law, it has proved to be inadequate.
That the bingo activities conducted by defendants should be abated as a public nuisance and each defendant should be enjoined and restrained from conducting any further bingo activities.
These findings and conclusions are not clearly erroneous, and are consistent with the principles of law we have articulated. The judgment of the chancery court is affirmed.
CORBIN, J., dissents.
CORBIN, Justice, dissenting.
I dissent for the reason that the chancery court lacked jurisdiction to enjoin Appellants' operation of two bingo halls as public nuisances. At first glance, the majority opinion appears to rely upon this court's decision in State ex rel. Att'y Gen. v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945), quoting parts of that decision that are favorable to the majority's conclusion. Upon closer examination, however, it becomes clear that the majority completely ignores the ultimate holding of that decision:
[T]he state may properly seek to protect the community by asking the aid of a court of equity where the criminal law enforcement agencies have broken down, and thereby rendered the remedy at law to be inadequate or incomplete.
Id. at 716, 187 S.W.2d at 333 (emphasis added). Contrary to the majority's implication, that decision did not rest on prior holdings that gambling houses were common-law nuisances. Nor did it provide that whenever a criminal law is being violated, the State may put an end to it by seeking an injunction on the ground that the criminal activity is, in and of itself, a public nuisance. Instead, the decision in Karston turned upon the particular facts of that case, which are drastically different from those in the present case.
Karston, who was a notorious bookmaker in Hot Springs, had been arrested for gambling no less than ten times, but to no avail because he continued his bookmaking operations after his arrests. Moreover, there were allegations in that case that the local law enforcement agencies were condoning Karston's activities and had refused to prosecute him on the charges. This court thus held that because the criminal law had broken down, rendering the remedy at law inadequate, equity had the power to enjoin the activity as a public nuisance. Here, there was no evidence or even allegation that the activities of the bingo halls constituted a public nuisance beyond the mere contention that they were being operated in violation of the law. No citizen complaints were heard and no allegations were made that anyone had suffered injury as a result of the bingo operations. In short, there was no demonstration that the criminal law had broken down such that equity became empowered to enjoin the activity as a public nuisance.
The first case to address the issue of whether equity could issue an injunction to stop a gambling operation was State v. Vaughan, 81 Ark. 117, 98 S.W. 685 (1906). In that case, this court held:
It is demonstrably true that it is a sound principle of equity jurisprudence that an injunction will not lie at the instance of the State to restrain a public nuisance where the nuisance is one arising from the illegal, immoral or pernicious acts of men which for the time being make the property devoted to such use a nuisance, where such nuisance is indictable and punishable under the criminal law. On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin notwithstanding the act enjoined may also be a crime.
Id. at 126, 98 S.W. at 690 (emphasis added).
In Karston, this court relied on the above language from Vaughan, as well as the decision *68 in DeQueen v. Fenton, 98 Ark. 521, 136 S.W. 945 (1911), which held that the chancery court has no criminal jurisdiction, and thus, has no jurisdiction to restrain acts solely because they are criminal. Additionally, the Karston court cited 39 Am.Jur. Nuisances § 147 (1942) for the proposition that "[t]o warrant an injunction where the nuisance is also a crime, there must be proof of what that law denominates a nuisance as distinguished from a mere crime." Karston, 208 Ark. at 711, 187 S.W.2d at 330. In other words, in order for equity to enjoin criminal activity, there must be evidence that the activity is a nuisance, in the traditional meaning of that term, in addition to the fact that the activity is a crime.
Subsequent to the decision in Karston, in Hickinbotham v. Corder, 227 Ark. 713, 301 S.W.2d 30, cert. denied, 355 U.S. 841, 78 S.Ct. 61, 2 L.Ed.2d 48 (1957), this court held that there were only two instances where chancery will assume jurisdiction to enjoin the commission of a criminal offense: (1) Where the enforcement of the criminal law will not deter violation, or (2) where the complaining party has shown an injury. Here, enforcement of Ark.Code Ann. § 5-66-103 (Repl.1993) would deter violations of the law in that the persons convicted of gambling shall be sentenced to one to three years in prison. Moreover, in this case, the complaining party, the State, has shown no injury. There was absolutely no indication at all that any property owners or other citizens had complained about any adverse affects resulting from the bingo halls' operations.
More recently, in Bates v. Bates, 303 Ark. 89, 793 S.W.2d 788 (1990), the appellant sought to have the chancery court enjoin her housemate from committing acts of domestic abuse against her under a theory that chancery has jurisdiction to protect personal and property rights. This court held that equity may only protect those rights when certain conditions are present, one of which is where the remedy at law is inadequate. Appellant argued that the criminal statutes were ineffective because battered housemates are afraid to file criminal charges and prosecutors do not act diligently. This court held that "[e]ven if the arguments were valid, we would not ignore the jurisdictional language of the Constitution and, in doing so, deprive an accused of his Constitutional right to a trial by jury." Id. at 92, 793 S.W.2d at 790. This court held further that "equity will not enjoin the commission of a crime because the remedy at law is adequate.... If the rule were otherwise, the constitutional right of trial by jury would be infringed." Id. at 93, 793 S.W.2d at 791. This court did acknowledge a limited exception to that rule, which arises when the criminal act is "incidental" and there is a danger of "irreparable pecuniary injury to property or pecuniary rights of the complaining party." Id. at 93, 793 S.W.2d at 791 (quoting Smith v. Hamm, 207 Ark. 507, 181 S.W.2d 475 (1944)). Such exception is not applicable to this case because the criminal act of operating a gambling house was the sole reason for enjoining the activity.
In the present case, there was no evidence whatsoever that the criminal law had broken down or that the remedies at law were inadequate. In fact, there was no evidence that the legal remedy had even been attempted before the State filed for an injunction. Instead, the facts presented below indicate that the bingo halls had been in operation since January 1, 1993, and that the State filed its suit for injunction a mere twenty-one days later. It was stipulated by both parties that Appellants had never been arrested for any violation of the law pertaining to their bingo operations, and that further, there were no allegations concerning rowdiness, drunkenness, excessive traffic, loud noises, or any of the more traditional nuisances.
The trial court's ruling that the remedies available at law were inadequate just because the bingo halls had been in continual operation for some time is clearly erroneous. It is not enough to render the legal remedy inadequate to merely point to the fact that a criminal offense has been committed. According to our case law, there must be morei.e., an allegation that local law enforcement authorities have refused to enforce the criminal law or that the bingo operators have been arrested in the past and such *69 arrests have not deterred their illegal gambling activities. The majority's decision in this case circumvents the constitutional right to trial by jury, by allowing courts of equity to stop allegedly criminal activity and deprive the actors of their livelihood without requiring the State to prove beyond a reasonable doubt that such actions are criminal.
For the reasons given, I would reverse the ruling of the chancery court and dismiss the case.
NOTES
[1] Article 19, § 14 provides, "no lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed." The term "lottery" has been defined in Burks v. Harris, 91 Ark. 205, 120 S.W. 979 (1909), as containing three essential elements; consideration, chance, and prize. We also note that Ark.Code Ann. § 5-66-119 (Repl.1993), provides that engaging in activities ordinarily described as chain letters or pyramid schemes for cash or other compensation is participation "in a lottery, which is declared to be unlawful," and further provides for the chancery court to enjoin such activities upon complaint by the Attorney General or prosecuting attorney.
This legislative declaration that equitable relief is appropriate to abate the public nuisance of an unlawful lottery is consistent with our own holding.
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219 Cal.App.3d 476 (1990)
268 Cal. Rptr. 262
THE PEOPLE, Plaintiff and Respondent,
v.
GLORIA JIMENEZ LIZARRAGA, Defendant and Appellant.
Docket No. B040594.
Court of Appeals of California, Second District, Division Six.
April 4, 1990.
*478 COUNSEL
Maureen DeMaio, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, Richard L. Walker and Noreen F. Berra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GILBERT, J.
Here we hold that jury instructions that may lead a jury to reasonably conclude that a defendant is an aider and abettor of a crime simply because the defendant had knowledge of the criminal purpose of the perpetrator are improper and require reversal.
Gloria Jimenez Lizarraga appeals her conviction following a jury trial on one count of possession of heroin for sale and one count of possession of cocaine for sale, violations of Health and Safety Code section 11351.
*479 She contends that the court erred in failing to instruct the jury on the necessary intent required to be found guilty as an aider and abettor, and that the court erred in denying her motion to discover the identity of three informants mentioned in an affidavit in support of a search warrant.
We find no error in the denial of the discovery motion, but we reverse for instructional error.
FACTS
Three informants told the Oxnard police that they had recently purchased heroin from a man named Javier at a house in Oxnard. Javier was described as Latin, at least six feet tall and weighing two hundred thirty pounds. One of the informants participated with the police in a controlled buy of heroin from Javier at the house.
With this information the police obtained a search warrant for the house. The affidavit in support of the warrant requested that the identities of the informants remain confidential for their safety and to ensure their usefulness as informants in the future.
When the police executed the warrant, Lizarraga and her two small children were in the southeast bedroom. They were the only people in the house.
A search of one of the dressers revealed Lizarraga's driver's license, a letter addressed to her, Social Security cards and a birth certificate in the top drawer. In the second drawer the police found women's lingerie, a plastic baggie with 56 balloons containing a total of 9.42 grams of heroin, a coin purse containing $193, and a woman's black stocking containing two plastic bags in which there were 2.21 grams of heroin. In the fourth drawer the police found a plastic baggie containing 87 bindles totalling 9.71 grams of cocaine and a large number of empty bindles. A search of the second dresser revealed male clothing and toiletry items.
In the rafters of the garage the police found a cardboard box containing 5.16 grams of heroin in 25 balloons. Next to the box they found an Ohaus triple beam scale with residue on it, plates, spoons, a coffee grinder and identification with the names Jesus Hernandez Ramirez and Migel Iper on it. On the other side of the box they found a bag containing papers with Lizarraga's name on them.
In a blue box on the floor of the garage the police found 31.13 grams of cocaine in 9 bags, 27.23 grams of heroin in 147 balloons, and 26.81 grams of cocaine in 260 bindles.
*480 At Lizarraga's trial, police officers testified they believed the drugs were possessed with the intent to sell them. The officers formed this opinion because of the method of packaging the drugs and the presence of a scale, grinder, and other processing materials.
In her defense, Lizarraga introduced testimony that none of the police officers had seen her prior to the search or knew she lived at the house. She lived in the bedroom of the house with her boyfriend, Martin Gonzales.
Lizarraga's mother, who had lived in the garage for a time, testified she never saw any evidence of drug use or sales in the house or garage, although she had heard that Gonzales sold drugs. The other bedroom in the house was occupied by another couple and three children.
The property manager for the house, John Murphy, testified that he visited the home frequently to collect rent and evict people living in the garage. On several visits he met a heavyset Mexican man in his mid-20's. He never saw any evidence that Lizarraga was involved in drug trafficking. Lizarraga frequently had trouble paying the rent, and Murphy never saw indications of a change in her financial status such as new cars, new appliances or fancy furniture.
A social worker who visited the home to help Lizarraga with the care of her disabled daughter saw no evidence of any change in her financial condition or any other evidence that appellant was involved with the sale or use of drugs.
DISCUSSION
I
Instructional error
(1) The court properly instructed the jury that a person who aids and abets in the commission of a crime is regarded as a principal and is as guilty as the perpetrator. (CALJIC No. 3.00.) It also properly instructed the jury that in order to aid and abet in the commission of a crime a person must act with both knowledge of the unlawful purpose of the perpetrator, and the intent to commit, encourage or facilitate the commission of the offense. (CALJIC No. 3.01; People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318].)
(2a) Lizarraga's complaint is with two other instructions, requested by the People, that she argues could lead the jury to believe they need not find both knowledge and specific intent to find her guilty as an aider and abettor.
*481 The first such instruction was: "Providing a location where another can commit an offense, if done with knowledge of the illegal purpose can constitute aiding and abetting in the commission of said offense."
Unlike CALJIC No. 3.01, and contrary to the holding in People v. Beeman, supra, 35 Cal.3d at page 560, this instruction does not expressly require that the defendant have both knowledge and specific intent.
The People argue that the instruction tells the jury only that providing a location with knowledge of an illegal purpose "can" constitute aiding and abetting, not that it does constitute aiding and abetting. In order to find out when it does constitute aiding and abetting, the People believe the jury in all likelihood referred to CALJIC No. 3.01.
The People invite us to reach this conclusion: Any jury that finds that a defendant has provided a location to a drug trafficker and finds that defendant knew that the trafficker would use the location in carrying out drug sales, must also find the defendant had the specific intent to facilitate the illegal activity.
Standing alone, this argument is persuasive, but we must also consider the cumulative effect of the second erroneous instruction. This was a modified version of CALJIC No. 2.02 concerning the sufficiency of circumstantial evidence to prove knowledge and specific intent. The offending portion of the instruction states, "... you may not find the defendant guilty of the offense charged in Counts I & II, unless the proved circumstances not only are consistent with the theory that he had the required specific intent or knowledge but cannot be reconciled with any other rational conclusion."[1]
The disjunctive, "or," relieves the jury from the requirement of finding both specific intent and knowledge. It invites the jury to conclude that knowledge of the perpetrator's unlawful purpose is alone sufficient.
*482 Nor are we persuaded that the instructional error was harmless. (3) Incorrect or inconsistent instructions on the element of specific intent require a reversal unless the error is deemed harmless beyond a reasonable doubt. (People v. Lee (1987) 43 Cal.3d 666, 676 [238 Cal. Rptr. 406, 738 P.2d 752].)
(2b) The People compounded these errors by urging the jury to base its conviction on knowledge alone. In discussing what it takes to be an aider and abettor, the prosecutor told the jury, "I don't mean to mislead you." In fact, she did, because she argued that to be an aider and abettor requires "that the person knows of the illegal purpose of the person whom she's helping." The prosecutor went on to argue for a conviction because the drugs found in the defendant's dresser drawer "clearly show that she had knowledge of what was going on here." She did not argue that the jury must also find intent.
We do not question the intent of the prosecution, but caution that great care should be used in selecting instructions. Improper instructions can help ensure a trial court conviction, but an evanescent victory does not advance the cause of justice for either the People or the defendant.
No one saw Lizarraga sell illegal drugs; there was no evidence she even used them. Although drugs were found in the house and garage, she did not have exclusive occupancy of those areas. Other people lived in the house and had access to the garage. Lizarraga's boyfriend lived with her in the southeast bedroom and presumably had access to her dresser. Given the erroneous and inconsistent instructions, there is a reasonable possibility the jury found her guilty simply because they believed she had knowledge that others were keeping drugs on the premises and in her dresser. We must reverse.
II
Discovery of the confidential informants
(4) We discuss Lizarraga's second contention, that the trial court erred when it denied her motion to discover the identities of the three confidential informants, as an aid to the trial court in the event of a retrial.
Where the defendant demonstrates a reasonable possibility that an anonymous informant could give evidence which might result in the defendant's exoneration, disclosure should be compelled or the case dismissed. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 88 [104 Cal. Rptr. 226, 501 P.2d 234]; *483 People v. Garcia (1967) 67 Cal.2d 830, 839-840 [64 Cal. Rptr. 110, 434 P.2d 366].)
Here, at best Lizarraga has demonstrated that the informants could testify it was a Latin male and not Lizarraga who sold them drugs. No one, however, contends differently. Disclosure of the informants, therefore, would add nothing, for they never claimed to have purchased drugs from Lizarraga or even to have known her. Therefore, we fail to see how their testimony could possibly result in her exoneration.
Contrary to appellant's suggestion, even if the informants identified appellant's boyfriend, Martin Gonzales, as the person who sold them the drugs, that would not show the drugs found in the dresser and garage belonged exclusively to Gonzales or that appellant did not aid and abet Gonzales in possessing drugs for sale. Although we must reverse on the ground of instructional error, we find no error in the trial court's denial of appellant's discovery motion.
The judgment is reversed.
Stone (S.J.), P.J., and Abbe, J., concurred.
NOTES
[1] The full text of the instruction was as follows: "The specific intent or knowledge with which an act is done may be shown by the circumstances surrounding the commission of the act. But you may not find the defendant guilty of the offense charged in Counts I & II, unless the proved circumstances not only are consistent with the theory that he had the required specific intent or knowledge but cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to any such specific intent or knowledge is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent or knowledge and the other to the absence of the specific intent or knowledge, it is your duty to adopt that interpretation which points to the absence of the specific intent or knowledge. If, on the other hand, one interpretation of the evidence as to such specific intent or knowledge appears to you to be reasonable and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and to reject the unreasonable."
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527 F.3d 489 (2008)
Joe D'AMBROSIO, Petitioner-Appellee/Cross-Appellant,
v.
Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.
Nos. 06-3542, 06-3712.
United States Court of Appeals, Sixth Circuit.
Argued: July 19, 2007.
Decided and Filed: June 5, 2008.
*490 ARGUED: Stephen E. Maher, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellant. John Q. Lewis, Jones Day, Cleveland, Ohio, for Appellee. ON BRIEF: Stephen E. Maher, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellant. John Q. Lewis, Edward J. Sebold, Jones Day, Cleveland, Ohio, for Appellee.
Before BOGGS, Chief Judge; GIBBONS and ROGERS, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. BOGGS, C.J. (p. ___), delivered a separate opinion dissenting in part.
OPINION
ROGERS, Circuit Judge.
Joe D'Ambrosio was convicted of murdering Anthony Klann in 1988. After D'Ambrosio discovered evidence that the prosecution had withheld during his trial, he amended his then-pending habeas petition to add a Brady claim. The district *491 court granted the writ. On appeal, the warden argues, for the first time, that D'Ambrosio failed to exhaust his Brady claim and should be required to return to state court to relitigate the claim there. Although D'Ambrosio's Brady claim was not presented to a state court, we do not dismiss his petition because the warden expressly waived the exhaustion requirement. See 28 U.S.C. § 2254(b)(3). The warden also challenges the district court's decision on the merits and D'Ambrosio cross-appeals with respect to other issues. For the reasons given by the district court on issues presented to this court, we affirm.
I.
The Supreme Court of Ohio described the underlying facts of this case:
On Friday evening, September 23, 1988, at approximately 7:30 p.m., Anthony Klann ("victim") and Paul "Stoney" Lewis visited a Cleveland area bar called The Saloon. At that time, Lewis encountered Thomas "Mike" Keenan, a former employer of his, whereupon the two engaged in a conversation, left the bar in Keenan's truck, and went to another bar nearby called Coconut Joe's. Shortly thereafter, Klann, Edward Espinoza and defendant-appellant, Joe D'Ambrosio, arrived at Coconut Joe's. Lewis testified that Espinoza took the victim into the men's restroom two or three times, and that he could hear Espinoza yelling at the victim while he (Lewis) was seated at the bar. However, during his own testimony, Espinoza denied that he argued with the victim at that time. Lewis stayed at Coconut Joe's until approximately 10:45 p.m. or 11:45 p.m.
Espinoza testified that at approximately 1:30 a.m., Saturday, September 24, he, Keenan and defendant also left the bar. Espinoza and defendant went to defendant's apartment; however, before they entered, Keenan pulled up in his truck and asked the two to help him find Lewis so he could get back drugs that he claimed Lewis had stolen from him. Defendant and Espinoza went into the defendant's apartment, whereupon Espinoza armed himself with a baseball bat and defendant picked up a knife. Espinoza assumed this knife was in addition to one that defendant usually carried. Defendant and Espinoza joined Keenan in his truck, and the three rode around the Coventry and Murray Hill area looking for Lewis.
Carolyn Rosel testified that at approximately 3:00 a.m., she and a friend, James Russell (a.k.a. "Foot" or "Lightfoot"), were awakened by banging on their door. They went to the door and let Keenan, Espinoza and defendant inside, whereupon Keenan asked where Lewis was. At that time, Keenan and Espinoza told Rosel and Russell that they wanted to kill Lewis because he had "ripped Michael [Keenan] off." After about fifteen to twenty minutes, the three left.
According to Espinoza's testimony they then resumed their search for Lewis in Keenan's truck. Soon the three saw the victim walking next to the road they were traveling on and hailed him. When the victim approached the truck, Keenan forced him into the backseat next to defendant. The victim was asked where Lewis was, but he said he didn't know. While the three interrogated the victim, Espinoza hit him on the head with a baseball bat. The victim told them where Lewis lived, and Keenan drove to Lewis's apartment building and knocked on what he thought was Lewis's door.
*492 Mimsel Dandec and her boyfriend, Adam Flanik, lived in the same apartment building as Lewis. At approximately 3:30 a.m. on the date in question, Dandec and Flanik were awakened by what they described as screaming, shouting and banging outside. Dandec testified that she heard someone yell, "I want my dope" or "my coke." Flanik went to investigate and found Keenan pounding on another apartment door in search of Lewis. After Flanik directed Keenan to Lewis's door, Keenan and Espinoza kicked it in while they repeatedly declared that they were going to kill Lewis. Lewis was not in his apartment at that time, so Keenan and Espinoza got back in the truck and drove off.
Meanwhile, defendant had stayed in the truck with the victim during the incident at Lewis's apartment building. Flanik testified that defendant had a large knife poised within inches of the victim's face. Flanik also testified that the victim "looked like he had been crying," and "like he had been roughed up a little bit."
Russell testified that Espinoza returned to his home and asked whether Lewis had been there. Espinoza then told Russell to "tell Stoney we got a contract out on him," and that he had the victim in the truck and that he was "dead meat." Rosel testified that Espinoza said that they had the victim, and were "going to do him in, and drop him off." Thereafter, according to Espinoza's testimony, Keenan drove the group to Doan's Creek and pulled his truck off the road near the bank of the creek. Keenan got out of the truck, pulled the victim out and made him walk behind the truck. Keenan asked the victim repeatedly where Lewis was, but the victim stated he didn't know. Keenan told the victim to put his head back, whereupon Keenan took D'Ambrosio's large knife, cut the victim's throat and pushed him into the creek.
When the victim got up and began to run, Keenan said, "finish him off." The defendant grabbed the knife from Keenan and pursued the victim. Within a minute or two, Espinoza testified, the victim screamed, "please don't kill me," but defendant caught him and killed him.
Still, according to Espinoza's testimony, the trio then went to defendant's apartment, where defendant changed clothes, and proceeded to Keenan's room at the Turfside Motel. Espinoza testified that at that time Keenan "made us some story that we were supposed to keep to. * * * [O]ne was that we'd dropped off [the victim] earlier that night after we were done partying, and he went on his way. * * * Then the other story was that we never ran into [the victim]."
At approximately 1:00 or 1:30 p.m. later that day, a jogger found the victim's corpse in Doan's Creek.
On the morning of Sunday, September 25, an autopsy was performed by the Cuyahoga County Coroner, Dr. Elizabeth K. Balraj. The coroner testified that she found three stab wounds on the victim's chest, and that his windpipe had been perforated in two places by a throat cut. In addition, she found some defense wounds on the victim, which are usually sustained on the hands or arms while trying to block a stabbing. The coroner stated that all the knife wounds could have been caused by State's Exhibit 8A, but that it was possible that another knife could have been involved in the murder.
The coroner further testified that the evidence was "consistent" with the conclusion that the victim died the day before *493 the autopsy, but that it was "possible" that the victim died forty-eight hours before the autopsy.
On October 6, 1988, defendant, Keenan and Espinoza were jointly indicted on four separate counts of (1) aggravated murder with prior calculation and design, R.C. 2903.01(A); (2) aggravated felony murder, R.C. 2903.01(B); (3) kidnapping, R.C. 2905.01; and (4) aggravated burglary of Lewis's apartment, R.C. 2911.11.
Defendant's trial commenced on February 6, 1989 before a three-judge panel. On February 9, the trial court sealed a verdict finding defendant guilty on all counts charged in the indictment. (The verdict was announced February 21, after the conclusion of Keenan's trial.) On February 23, 1989, the panel found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt. Consequently, the court sentenced defendant to death on both aggravated murder counts.
State v. D'Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909, 911-12 (Ohio 1993). The Supreme Court of Ohio affirmed D'Ambrosio's conviction, id. at 921, and, following a remand to the court of appeals permitting D'Ambrosio to supplement the record, affirmed D'Ambrosio's sentence, State v. D'Ambrosio, 73 Ohio St.3d 141, 652 N.E.2d 710, 715-16 (Ohio 1995).
On March 30, 2001, D'Ambrosio filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. In his original petition, D'Ambrosio included four claims that are relevant to this appeal: (1) that he is actually innocent, (2) that he did not knowingly waive his right to a jury trial, (3) that his counsel was constitutionally ineffective for failing to ask for the recusal of one of the judges who served on the three-judge panel that convicted and sentenced him, and (4) that the State failed to preserve certain evidence which D'Ambrosio argued may have exonerated him.
On September 19, 2002, D'Ambrosio moved to amend his petition to add a Brady claim based on newly-discovered evidence. As recounted by the district court, D'Ambrosio claimed that the State failed to disclose numerous pieces of evidence:
(1) evidence that Lewis allegedly raped Klann's roommate, Christopher Longenecker, that Klann had some knowledge of it, and that Lewis was never prosecuted for it;
(2) evidence that police identified Lewis as an anonymous caller who called to [identify] Klann as the victim and knew information regarding the crime that had not yet been published in the newspaper;
(3) the fact that Lewis, in exchange for his testimony, asked police to aid him in resolving a Driving While Under the Influence (hereinafter "DUI") charge;
(4) evidence that Detective Leo Allen, the leading investigating detective on the Klann murder case, reported a burglary of Lewis's apartment several days after Lewis claims he had reported it to police;
(5) evidence that police learned there was bloody clothing in Keenan's garage;
(6) evidence that the initial investigating detectives on the scene, Ernest Hayes and Melvin Goldstein, believed that Klann was murdered elsewhere and that his body was dumped in Doan's Creek;
(7) evidence that a cassette tape containing information "implicating others in this crime" was made by Angelo Crimi;
(8) evidence that James Russell and Carolyn Rosel requested help from police in relocating after trial because some individuals, who they believed to *494 be D'Ambrosio's brothers, had threatened them;
(9) evidence from the Trace Evidence Department that Klann was not wearing shoes or undershorts when his body was discovered;
(10) evidence that the Cleveland Heights Police Department's dispatch log showed that there was a disturbance in the area of Coconut Joe's on Thursday evening/Friday morning;
(11) evidence that Therese Farinacci, one of Lewis's neighbors, was awakened at around 4:10 a.m. on Saturday morning and that another couple heard someone say "Let's dump the body" on that same night;
(12) evidence that Linda DeBlasis Hudak stated she saw Klann alive late on Friday evening; and,
(13) evidence that, while police claimed to have searched Keenan's truck, the company that repossessed his truck subsequently found cocaine in it.
D'Ambrosio v. Bagley, No. 1:00-cv-02521, 2006 WL 1169926, at *16 (N.D.Ohio Mar.24, 2006) (paragraph breaks added). In July of 2004, the district court held a three-day evidentiary hearing, which focused on D'Ambrosio's Brady claim.
On March 24, 2006, the district court granted D'Ambrosio's petition for a writ of habeas corpus.[1] The court held that most of the evidence that D'Ambrosio introduced to support his Brady claim was suppressed by the prosecution and favorable to the defense.[2] The court further held that most of this suppressed evidence was material,[3] and that D'Ambrosio was able to demonstrate cause and prejudice to overcome his failure to raise the Brady claim in state court. The district court, however, rejected D'Ambrosio's other grounds for relief.
The district court granted D'Ambrosio a certificate of appealability on the following issues upon which the court ruled against D'Ambrosio: (1) whether D'Ambrosio is actually innocent, (2) whether D'Ambrosio knowingly waived his right to a jury trial, (3) whether counsel for D'Ambrosio was constitutionally ineffective for failing to ask for the recusal of one of the trial judges, and (4) whether D'Ambrosio was denied due process because the prosecution failed to preserve certain evidence that D'Ambrosio argues may have exculpated him.
II.
The warden appeals the district court's decision on the ground that D'Ambrosio failed to exhaust his Brady claim in state court. The warden did not raise exhaustion before the district court, and the district court, although noting that "the state's failure to raise exhaustion does not invariably waive the defense," refused to engage in a sua sponte analysis. D'Ambrosio, 2006 WL 1169926, at *13 n. 8. Specifically, with respect to the Brady claim, the district court noted that because a motion for post-conviction relief would be untimely, that because "throughout this rather *495 lengthy habeas proceeding, the [warden] has never asserted an exhaustion defense," and that because the State was responsible for suppressing Brady evidence, "the State cannot now assert D'Ambrosio's failure to exhaust this claim as a bar to this Court's review of it." Id. at * 19 n. 14.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") states that a federal court cannot grant a writ of habeas corpus to a prisoner held in state custody unless "(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). Under AEDPA, the "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." § 2254(b)(3). In this case, it is undisputed that the warden was aware of, but never argued to the district court, D'Ambrosio's failure to exhaust his state remedies.
D'Ambrosio never presented his Brady claim to a state court. D'Ambrosio offers three arguments for why this court should nonetheless address the merits of the claim: (1) the warden expressly waived the exhaustion requirement; (2) there is no state process through which D'Ambrosio could obtain relief; and (3) "[t]he interests of comity, federalism, and justice" are not served by requiring D'Ambrosio to return to state court.
We conclude that the warden expressly waived the exhaustion requirement, and we need not address D'Ambrosio's alternative arguments. AEDPA does not explain how a state "expressly waives" the exhaustion requirement, but says only that the state cannot be deemed to have waived the requirement unless it expressly waived the requirement. "Waiver" is traditionally defined as an "intentional relinquishment or abandonment of a known right." See, e.g., United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Courts also generally agree that "express" is synonymous with "clear" or "unambiguous." For example, in the context of statutory waivers of sovereign immunity, courts alternatively define an "express waiver" as "a `clearcut' waiver, a `specific' waiver, an[] `explicit' waiver, an `unequivocal' waiver, a `plain' waiver, a `manifest' waiver, an `affirmative' waiver, an `unambiguous' waiver, or a waiver described by a combination of these adjectives." Shaw v. Library of Congress, 747 F.2d 1469, 1478 (D.C.Cir.1984).[4] Similarly, in determining whether Congress has permitted state regulation that otherwise would violate the negative implications of the Commerce Clause, this court noted that,
While the [Supreme] Court has generally required an express statement of Congressional policy to allow otherwise impermissible regulation of interstate commerce, "[t]here is no talismanic significance to the phrase `expressly stated', however; it merely states one way of meeting the requirement that for a *496 state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear."
L.P. Acquisition Co. v. Tyson, 772 F.2d 201 (6th Cir.1985) (quoting South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91, 104 S.Ct. 2237, 81 L.Ed.2d 71 (1984)) (emphasis added). See also Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir.1990) (en banc) (holding that the requirement in Federal Rule of Civil Procedure 54(b) that the district court make "an express determination that there is no just reason for delay and ... an express direction for the entry of judgment" in order to direct the entry of a final judgment to fewer than all of the parties in a multi-party case is met where the record "reflects the district court's unmistakable intent to enter a partial final judgment" (emphasis added)).
The warden expressly waived the exhaustion requirement because her counsel's conduct during the district court proceedings manifested a clear and unambiguous intent to waive the requirement. In response to D'Ambrosio's motion to amend his habeas petition in order to add the Brady claim, the warden stated that she took no position on the motion, but requested the opportunity to file a response if the district court granted the motion to amend. On October 25, 2002, the warden filed a motion to expand the record to include evidence that the warden argued undermined D'Ambrosio's Brady claim. On November 25, 2002, the district court granted both motions. Importantly, with respect to D'Ambrosio's motion to amend his habeas petition, the district court stated that its understanding was that the warden would not argue that the Brady claim was unexhausted:
Based on the motion briefs and conversations with counsel, the Court finds this claim is exhausted, as Petitioner is without an available state-court remedy. Thus, the Court grants the instant motion without concern that Respondent will subsequently move to dismiss the Petition for failure to exhaust the amended claim. In so granting, however, the Court reserves Respondent's right to assert that the claim is procedurally defaulted, if appropriate, in the supplemental return of writ.
Furthermore, in her Amended Return of Writ, the warden argued that D'Ambrosio's petition contained procedurally defaulted claims because the claims were "never presented in state court" and "if now [were] presented, would be found untimely by the state courts."
This is an extraordinary case in which the district court stated that it understood exhaustion to be a non-issue and that the warden would not later assert it, the warden failed to correct what the district court clearly viewed as the warden's position during the almost four years of litigation before that court, and the warden went on to state to the district court that D'Ambrosio's claims would be untimely in the state courts (thereby confirming the district court's understanding). We are aware of no binding authority that says that such conduct by the State is not an express waiver of the exhaustion requirement. Furthermore, the Eighth Circuit held, in a case somewhat analogous to this one, that a state expressly waived the exhaustion requirement by stating in a district court brief that it had conceded exhaustion in a prior motion to dismiss, even though the circuit court's review of the motion to dismiss revealed no concession. Kerns v. Ault, 408 F.3d 447, 449 n. 3 (8th Cir.2005). But see Dreher v. Pinchak, 61 Fed.Appx. 800, 802-03 (3d Cir.2003) (holding that the state's concession of exhaustion in its answer to the petition for writ of habeas *497 corpus did not expressly waive the exhaustion requirement because the "policy justifications" of that requirement counseled in favor of a "stringent standard for proving waiver of exhaustion").
It is no answer to say that the warden did not expressly waive exhaustion because the warden did not verbally state that she was waiving the requirement. AEDPA does not require "magic words" in order for a state to expressly waive exhaustion. The touchstone for determining whether a waiver is express is the clarity of the intent to waive. Obviously, had the warden's counsel said, "we waive the exhaustion requirement," the intent would have been clear. But there is nothing more than a metaphysical distinction between that hypothetical situation and the instant case-in both cases it is clear that the warden intentionally gave up her right to raise exhaustion. Cf. Shaw, 747 F.2d at 1478 ("There is nothing talismanic in the word `express,'...."). AEDPA requires that the waiver be express, not expressed in a certain manner.
Finally, this is not a case in which the State simply failed to raise the exhaustion requirement in the district court. This court has held that such simple failure does not, by itself, expressly waive the issue. See Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004); Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir.2005); Rockwell v. Yukins, 217 F.3d 421, 424 (6th Cir.2000). Nor does the fact that the warden participated in discovery and moved to expand the record indicate, by itself, that the warden expressly waived the exhaustion requirement, as D'Ambrosio argues. These actions were merely ancillary to the warden's opposition to the merits of D'Ambrosio's Brady claim, and do not indicate express waiver any more than participation in briefing and oral argument. Instead, it is the statements made and actions taken by the warden, in addition to these facts, that constitute an express waiver.[5]
*498 III.
For the reasons given in those parts of the district court's thorough, thoughtful, and well-reasoned opinion applicable to the issues certified for appeal, D'Ambrosio has demonstrated that the prosecution suppressed material exculpatory evidence and that neither § 2254(e)(2) nor procedural default precluded the district court's consideration of those claims. D'Ambrosio, 2006 WL 1169926, at * 16-33. We therefore affirm the district court's order.[6] Accordingly, a full-blown discussion of the merits would serve no jurisprudential purpose.
The evidence that the district court concluded was Brady material falls mostly within two broad categories. First, there is evidence that would have contradicted or weakened the testimony of the prosecution's only eyewitness to the murder, Edward Espinoza. This included (a) the unrecorded conclusions of Detectives Hayes and Goldstein, who investigated the crime scene and concluded that Klann was not murdered there; (b) a police report describing a tape in which a third party (Crimi) implicated unnamed other individuals in the murder; (c) a police report that noted that Klann was not wearing shoes or undershorts when his body was discovered; and (d) a police report stating that Hudak saw Klann alive the night after events that the prosecution claimed happened the night that Klann was murdered. Second, there is evidence that demonstrates a motive on the part of another individual, Paul Lewis. The prosecution failed to disclose that Lewis was being investigated, and had earlier been indicted, for a rape to which Klann was a witness. Consistent with Lewis's motive to kill Klann was undisclosed evidence that (a) *499 Lewis anonymously called the police and revealed non-public facts about the murder; (b) Lewis first led the police to suspect D'Ambrosio; (c) Lewis requested police assistance with respect to an unrelated DUI in exchange for testimony against D'Ambrosio; and (d) Lewis fabricated a burglary to implicate D'Ambrosio in the murder.
The district court was correct that the first category of evidence would have further challenged the prosecution's version of events, whereas the second category of evidence would have revealed Lewis as a legitimate suspect. Together, this evidence would have substantially increased a reasonable juror's doubt of D'Ambrosio's guilt. Because the evidence that the prosecution suppressed would have had the effect of both weakening the prosecution's case and strengthening the defense's position that someone else committed the murder, there is a reasonable probability that the outcome of D'Ambrosio's trial would have been different.
The warden's arguments on the merits are mostly cursory challenges to the district court's conclusions that certain pieces of evidence were not exculpatory or material. The district court's opinion sufficiently addresses these arguments. Two arguments, however, require additional discussion.
First, the warden argues that the opinions of Detectives Hayes and Goldstein are not Brady evidence. D'Ambrosio argues that the detectives' opinions are Brady evidence because Hayes and Goldstein could have testified about their opinions at trial, their opinions were exculpatory, and the prosecutor has a duty under Kyles v. Whitley, supra, to learn of evidence favorable to a defendant that is known to the police. D'Ambrosio's argument that opinions of police detectives are always Brady evidence proves too much. It cannot be the law that every stray thought of a police detective about a case must be imputed to the State, such that the prosecutor has a duty to disclose that information, simply because a defendant could elicit the detective's opinion during trial. On the other hand, the warden's argument that the opinion of a police detective can never be Brady evidence if the detective never put that opinion in writing may also prove too much. For example, a police detective's opinion might be so concrete and well-known to other government agents working on a case that the prosecutor's failure to learn the opinion and disclose it to the defense could rise to the level of a Brady violation. We need not decide which position prevails in the instant case because even ignoring the detectives' opinions, the other suppressed evidence is material.
Second, the warden argues that the district court "abused its discretion" when it granted relief on a "false claim" by D'Ambrosio that the indictment against Lewis was dismissed after Klann's murder. The district court did not err. In 1988, a few months before Klann's murder, a grand jury returned an indictment charging Lewis with the rape of Christopher Longenecker. In August of 1988, that indictment was dismissed without prejudice. However, a second indictment was presented to the grand jury, and the grand jury no-billed the indictment in October of 1988, after Klann was murdered. There is nothing in the district court's opinion that indicates that the court misunderstood this series of events. Even though the first indictment was dismissed before Klann was murdered, Lewis's motive to kill Klann remained because the indictment was dismissed without prejudice and could have been refiled later.
IV.
For the foregoing reasons, the district court's order granting D'Ambrosio's petition *500 for a writ of habeas corpus is AFFIRMED.
BOGGS, Chief Judge, dissenting in part.
I am in general agreement with most of what is written in the well-reasoned opinion for the court in this case. Unfortunately, I cannot agree that the actions of the state here met the requirement of AEDPA that a state does not waive the requirement of exhaustion "unless the State, through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3).
From the point of view of judicial economy and efficiency, to say of nothing of good practice, returning to state court at this point is probably not the best course. On the other hand, the balance of state and federal interests in the processing of habeas petitions from state court convictions is one for Congress to set, and Congress has done so through AEDPA. Thus, we must determine, based strictly on the language of AEDPA, whether the state's actions here constitute an "express" waiver. I simply cannot find that the state's silence, even in the face of the district court's stating that it was "without concern that Respondent will subsequently move to dismiss the Petition for failure to exhaust the amended claim" can be an express action. It may be "tacit," it may be "implicit," it may even be somewhat deceitful, but the warden's silence, in my opinion, cannot be "express." The court's opinion is quite correct that no "magic words" are needed, but it seems to me that some words, sign, signal, or indication other than silence is necessary for a waiver to be "express."
I would also note that the potential for gamesmanship exists on both sides here. It is true that the warden can be seen, knowingly or unwittingly, to have "hidden in the weeds" by neither raising nor waiving exhaustion, and then raising it on appeal. On the other hand, counsel for the petitioner, undoubtedly aware of the AEDPA requirement, also refrained from bringing the matter to a head. Petitioner could have demanded that the waiver be made "express" and thus nail the matter down in the district court. Of course, this would have run the risk that the warden might then have declined to waive and the court would then have been required to rule explicitly on the point, with the possible result that the federal proceedings would have been derailed awaiting such actual exhaustion. Thus, the weeds involved in this case may well have contained counsel for both Petitioner and Respondent.
In any event, I do not feel at liberty to deviate from what I consider the correct interpretation of the term "expressly waives," and I therefore respectfully dissent on this point.
NOTES
[1] On April 14, 2006, the district court amended its judgment to clarify that it was ordering respondent to set aside D'Ambrosio's convictions and sentences "as to all counts of the indictment" if the State chose not to retry D'Ambrosio.
[2] The district court held that D'Ambrosio failed to demonstrate that the bloody clothing in Keenan's garage was exculpatory. D'Ambrosio, 2006 WL 1169926, at *22-23. The court also held that the Cleveland Heights Police Department log, which indicated a disturbance at Coconut Joe's on Friday morning, was not suppressed. Id. at *28.
[3] The district court concluded that No. 8 listed above (evidence that Russell and Rosel asked for help relocating) was not material. D'Ambrosio, 2006 WL 1169926, at *33.
[4] The specific holding of the D.C. Circuit, that the immunity of the United States from awards for interest was waived by general statutory language waiving immunity for attorneys' fees, was reversed by the Supreme Court. Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). Congress later specifically provided for interest in the particular context at issue in Shaw. See Landgraf v. USI Film Prods., 511 U.S. 244, 251, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)
[5] Because we conclude that the warden expressly waived the exhaustion requirement, we do not address D'Ambrosio's alternative arguments that there is no available state remedy that he could pursue and that this court does not have to dismiss a petition containing an unexhausted claim because the prudential reasons for exhaustion are inapplicable in this case.
We are skeptical of the warden's argument that a petition for post-conviction relief pursuant to Ohio Revised Code ("ORC") § 2953.21 is an available remedy. A petition for post-conviction relief filed this late after the direct appeal would only be considered timely if D'Ambrosio could "show[] by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was convicted." ORC § 2953.23(A)(1)(b); see also ORC § 2953.21(A). But to succeed on a Brady claim, D'Ambrosio needs to demonstrate merely that with the suppressed evidence there is "a `reasonable probability' of a different result." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); see also Broom v. Mitchell, 441 F.3d 392, 400 n. 8 (6th Cir.2006) (concluding that because petitioner could not satisfy ORC § 2953.23(A)(1), it was "no longer an available state court remedy"), rehearing and rehearing en banc denied (Aug. 9, 2006).
The warden's argument that D'Ambrosio can assert a Brady claim via a motion for a new trial pursuant to Ohio Rule of Criminal Procedure 33(B) is a closer question. There is Ohio Supreme Court authority that holds that in cases involving newly-discovered evidence, a motion for a new trial cannot be granted unless the movant shows, among other things, that the new evidence "discloses a strong probability that it will change the result if a new trial is granted." State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370, 371 (Syllabus) (Ohio 1947). Brady requires only that there is a "reasonable probability" that the result would have been different. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555. In addition, the warden's conduct during the course of the federal habeas proceedings indicates that she did not view Rule 33 as an available state remedy. Until this appeal, the warden never argued that Rule 33 was a potential remedy that D'Ambrosio could have pursued. This is in contrast to the post-conviction petition remedy, which the warden discussed as a potential remedy in her Amended Return of Writ, with respect to procedural default. See also Broom, 441 F.3d at 399-401 (concluding that a prisoner sentenced to death in Ohio could raise an unexhausted Brady claim in a federal habeas petition because the petitioner could not bring a post-conviction petition in state court). On the other hand, this reading of the Rule 33 standard is questionable in light of State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898, 908-12 (Ohio 1988), which held that the Ohio courts of appeal should review a Brady claim in a Rule 33 motion under the federal Brady standard, not the more stringent Petro standard.
Finally, with respect to D'Ambrosio's third argument (asserting the "interest of comity, federalism, and justice"), he relies on the reasoning of Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) and other pre-AEDPA cases, which we question in light of AEDPA. See 28 U.S.C. § 2254(b)(3).
[6] Likewise, for the reasons given by the district court, we reject D'Ambrosio's arguments in his cross-appeal. First, this court has refused to recognize a theoretical "free-standing" actual innocence claim, and even if such a claim existed, D'Ambrosio has not met his burden. See, e.g., Davis v. Burt, 100 Fed. Appx. 340, 349-50 (6th Cir.2004); see also D'Ambrosio, 2006 WL 1169926, at *34-39. Second, the Ohio Supreme Court's conclusion that D'Ambrosio knowingly waived his right to a jury trial is not an unreasonable application of federal law because D'Ambrosio signed a written waiver and engaged in a colloquy (albeit short) with the trial court. See D'Ambrosio, 2006 WL 1169926, at *40-41. Third, the Ohio Supreme Court's conclusion that counsel for D'Ambrosio was not constitutionally ineffective for failing to ask for the recusal of one of the trial judges was not an unreasonable application of federal law because the Ohio Supreme Court reasonably concluded that D'Ambrosio suffered no prejudice by the fact that the judge in question presided over Keenan's trial and approved Espinoza's plea agreement. See id. at *45-46. Finally, D'Ambrosio's spoliation of evidence claim fails because he cannot demonstrate that the exculpatory value of the lost evidence was apparent at the time that the evidence was lost. See id. at 48-49.
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776 F.2d 1062
Esprit Corp., Inc.v.U.S.
85-996
United States Court of Appeals,Federal Circuit.
7/30/85
Cl.Ct., 6 Cl.Ct. 546
Affirmed
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989 So.2d 1190 (2008)
GIARDINA
v.
HINDAHL.
No. 2D08-4004.
District Court of Appeal of Florida, Second District.
September 4, 2008.
Decision without published opinion. Cert.denied.
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510 U.S. 840
Amanfov.United States.
No. 92-8914.
Supreme Court of United States.
October 4, 1993.
1
Appeal from the C. A. 2d Cir.
2
Certiorari denied. Reported below: 992 F. 2d 319.
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 31, 2011
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STANIMIR GEORGIEV PAVLOV, a/k/a
Atanas Velichkov Yordanvo,
Petitioner - Appellant,
v. No. 11-1040
(D. Colo.)
WARDEN SMELZER, [sic]; JOHN W. (D.C. No. 10-CV-01282-ZLW)
SUTHERS, Attorney General of the State
of Colorado,
Respondents - Appellees.
ORDER DENYING MOTION FOR LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS,
DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY,
AND DISMISSING APPEAL
Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Stanimer Pavlov filed a pro se1 28 U.S.C. §2254 habeas petition. The District
Court dismissed it as “barred by the one year limitation period in 28 U.S.C. §2244(d),”
explaining why. It also prospectively decided that no Certificate of Appealability (COA)
would issue because Pavlov “has not made a substantial showing of the denial of a
constitutional right.” (R. Doc. 23 at 8.); See 28 U.S.C. § 2253(c)(2). Pavlov then filed a
1
We liberally construe his pro se filings. See Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
Notice of Appeal with the district court.
Later, in this Court, he filed several documents: a “Statement” on February 28,
2011, which we construed as a motion for issuance a COA; on March 9, 2011, a two-
page “Combined Opening Brief and Application for Certificate of Appealability,” which
we construed as a supplement to his “Statement,” and on March 10, 2011, a Brief and
Application for COA.
The parties are familiar with the facts so they will not be repeated here. We have
reviewed Pavlov’s proposed opening brief and application for a COA in light of the
district court’s decision. A COA may be issued only upon “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We are confident jurists of
reason would not find the district court’s analysis debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484, (2000).
The district court also denied Pavlov’s request to appeal in forma pauperis (ifp),
concluding it was “not taken in good faith.” (R. Doc. 30.); see 28 U.S.C. § 1915(a). He
renews his ifp request here. To proceed ifp on appeal, he “must show a financial inability
to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan,
937 F.2d 502, 505 (10th Cir. 1991) (emphasis added). We have solicitously reviewed his
filings. He has utterly failed to pass the threshold. An appeal on a matter of law is
frivolous where “[none] of the legal points [are] arguable on their merits.” Anders v.
California, 386 U.S. 738, 744 (1967). Pavlov’s arguments are either irrelevant or
contrary to settled law; and he makes no reasoned argument for modification of that law.
-2-
Pavlov’s application for a COA and his motion to proceed ifp on appeal are
DENIED. He must pay the filing and docket fees in full to the clerk of the district court.
See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001).
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
-3-
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00230-CV
SDN, Ltd. f/k/a SDN, Inc. and Paul DeNucci, Appellants
v.
JV Road, L.P.; Mike Young; MY/ZP IP Group, Ltd. f/k/a Chuy’s Comida Deluxe, Inc.;
and MY/ZP IP GP, LLC, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-07-000284, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
MEMORANDUM OPINION
Following failed negotiations for the sale of a tract of land on Jollyville Road,
appellants SDN, Ltd. f/k/a SDN, Inc. and Paul DeNucci sued appellees JV Road, L.P., Mike Young,
MY/ZP IP Group, Ltd. f/k/a Chuy’s Comida Deluxe, Inc., and MY/ZP IP GP, LLC1 for
breach of contract, breach of the duty of good faith and fair dealing, negligent misrepresentation,
breach of fiduciary duty, fraud, fraudulent inducement, fraud in a real estate transaction, and
commercial bribery. The district court granted summary judgment in favor of Young on DeNucci’s
claims for breach of contract, fraudulent inducement, and fraud in a real estate transaction, and, in
part, on DeNucci’s claims for breach of fiduciary duty and breach of the duty of good faith and
1
For clarity, we refer to appellants collectively as DeNucci, and to appellees
collectively as Young, except where necessary to distinguish among appellants or appellees in
reciting historical facts.
fair dealing. A jury found in favor of Young on each of DeNucci’s remaining claims, except
commercial bribery, which DeNucci abandoned. DeNucci appeals the district court’s
summary judgment as to breach of contract, arguing that the statute of frauds had been satisfied and
that evidence of spoliation precluded summary judgment. DeNucci also appeals the district court’s
refusal to submit a jury instruction on the existence of a fiduciary duty. We affirm the judgment of
the district court.
In late 2005, Paul DeNucci became interested in building a mid-rise retirement
condominium building in north Austin. He had considered several properties for his “Arboretum
Project,” including the property at issue here—the Montez tract—located on Jollyville Road across
the street from the north Chuy’s Restaurant in Austin. JV Road, L.P., through Mike Young, had
purchased the Montez tract in early 2006 with the intention of building additional parking for its
adjacent Chuy’s restaurant. Soon after the purchase, DeNucci, who had also been interested in
purchasing the Montez tract, approached Young and proposed that, if they were able to secure the
appropriate zoning, he would buy it from Young, build the condominiums, and incorporate an
overflow parking lot for Chuy’s to use at no cost. According to DeNucci, when he met with Young
a second time, Young agreed to sell DeNucci the Montez tract subject to their successful efforts to
obtain the zoning needed for the project. They purportedly agreed that DeNucci would pay the
same price that Young had paid for the property, plus holding costs and other expenses associated
with the purchase.
In addition to developing the Montez tract, DeNucci and Young discussed
purchasing and developing the adjacent Henges tract to create an even larger area for development.
2
Young contacted Henges and made offers on behalf of DeNucci to purchase the property. Henges
rejected these offers.
While negotiations between DeNucci and Young continued, the two worked to secure
the rezoning necessary for the condominium project, but they agreed that they would do nothing in
their rezoning efforts that would jeopardize Young’s chances of getting the tract rezoned for parking
in the event that zoning efforts for the condominiums failed. DeNucci had hired Amelia Lopez-
Phelps to pursue the rezoning with the City, and Young hired Paul Linehan, a land planner, to protect
his interests and to monitor DeNucci and Lopez-Phelps.
On July 7, 2006, DeNucci sent an email to Young, in which he described the status
of his efforts to buy the Henges tract and to secure rezoning for the project. In addition, DeNucci
listed “some issues that we would need to make sure we all agree on,” including the number of
parking spaces available for Chuy’s, the price, the timing, the possibility of a temporary parking lot,
and other miscellaneous issues, including an issue with an easement and sewer service. Young
replied the same day and copied several of his colleagues. He clarified the easement issue for
DeNucci and directed his colleagues to find answers to some of the questions posed by DeNucci.
Young’s email was silent as to price.
On August 28, 2006, Young, on behalf of JV Road, L.P., signed the “Owner’s
Certificate” on an application to the City’s board of adjustment, listing JV Road, L.P. as “sellers to”
SDN. By his signature, Young authorized Lopez-Phelps to act as his agent in submitting the
application, which requested a height variance for the condominium project and included a
description of the Montez tract.
3
When neighbors learned of this application, they expressed intense opposition to
the rezoning request. In the face of this opposition, negotiations between Young and DeNucci
deteriorated, and Young eventually informed DeNucci that he would pursue his own zoning efforts
through Linehan. By January 2007, Young had obtained approval for the zoning change that would
permit him to use the property as overflow parking for Chuy’s.
On February 1, 2007, DeNucci sued Young. DeNucci asserted causes of action for
breach of contract, breach of the duty of good faith and fair dealing, negligent misrepresentation,
breach of fiduciary duty, fraud, fraudulent inducement, fraud in a real estate transaction, and
commercial bribery. The district court granted summary judgment in favor of Young on DeNucci’s
claims for breach of contract, fraudulent inducement, and fraud in a real estate transaction. The
district court also granted summary judgment as to DeNucci’s claims for breach of fiduciary duty
and breach of the duty of good faith and fair dealing as those claims related to the alleged sale of
real estate. A jury found in favor of Young on each of DeNucci’s remaining claims, except
commercial bribery, which DeNucci abandoned. In three issues DeNucci appeals the district court’s
summary judgment as to breach of contract, including an implied finding on spoliation, as well as
the district court’s refusal to submit a jury instruction on the existence of a fiduciary duty.
In his first issue, DeNucci argues that the trial court erred in granting
summary judgment on his breach of contract claim because the parties had an agreement sufficiently
memorialized to satisfy the statute of frauds. Summary judgment is proper when there are no
disputed issues of material fact, and the movant is entitled to judgment as a matter of law. Tex. R.
Civ. P. 166a(c). A defendant who conclusively negates at least one essential element of the
4
plaintiff’s cause of action is entitled to summary judgment. Little v. Texas Dep’t of Criminal Justice,
148 S.W.3d 374, 381 (Tex. 2004). We review the trial court’s summary judgment de novo, taking
as true all evidence favorable to the nonmovant and indulging every reasonable inference and
resolving any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005). Where, as here, a trial court’s order granting summary judgment does not specify
the grounds relied upon, the reviewing court must affirm summary judgment if any of the
summary judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).
To establish the existence of an enforceable contract, a party must prove (1) an offer,
(2) acceptance of the offer, (3) mutual assent or “meeting of the minds” regarding the subject matter
and essential terms of the contract, and (4) consideration, or mutuality of obligations. See
Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). In determining whether the parties
have formed a contract through offer, acceptance, and mutual assent to the contract terms, we rely
on the objective standard of what the parties said and how they acted, not on their subjective state
of mind. Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 589
(Tex. App.—Austin 2007, pet. denied); see Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746
(Tex. 2006) (“the parties’ intent is governed by what they said, not by what they intended to say
but did not”).
A contract for the sale of real estate must not only meet general requirements
for enforceability but must also comply with the statute of frauds. Tex. Bus. & Com. Code Ann.
5
§ 26.01(b)(4) (West 2009); Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978). Section 26.01
of the business and commerce code provides:
(a) A promise or agreement described in Subsection (b) of this section is not
enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or
by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to:
...
(4) a contract for the sale of real estate . . . .
Tex. Bus. & Com. Code Ann. § 26.01. Whether an agreement satisfies the requirements of
the statute of frauds is a question of law. Bratcher v. Dozier, 346 S.W.2d 795, 796 (Tex. 1961);
West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 264 (Tex. App.—Austin 2002, no pet.).
To satisfy the statute of frauds, “there must be a written memorandum which is
complete within itself in every material detail, and which contains all of the essential elements of
the agreement, so that the contract can be ascertained from the writings without resorting to
oral testimony.” Cohen, 565 S.W.2d at 232. The written memorandum, however, need not be
contained in one document. Padilla v. La France, 907 S.W.2d 454, 460 (Tex. 1995).
According to DeNucci, Young agreed to sell him the Montez tract for the price he
had paid for it, plus holding costs and other expenses associated with the purchase, conditioned
on DeNucci’s securing the necessary zoning change from the City. To satisfy the statute of frauds,
6
DeNucci relies on Young’s signing of the “Owner’s Certificate” on the application to the City’s
board of adjustment as “sellers to” SDN. DeNucci argues that the signed application proves that
the parties had agreed on all material terms and that those material terms can be found in a series
of email communications between him and Young.
Although the Board of Adjustment application contained a description of the property,
stated that JV Road, L.P. was “seller[] to” SDN, Ltd., and was signed by Mike Young, the agreement
was not an agreement between the parties and was not made for the purpose of memorializing
an agreement to sell the real property at issue. It was an application in which Young represented
himself as the seller—or potential seller—and in which he authorized Lopez-Phelps to act as his
agent, but did not show that a sale had been made or that a contract had been signed. Moreover, the
application contained none of the material terms, including the price for which the property would
be sold. The application represented Young’s attempt to secure rezoning with the City, which was
a prerequisite to a sale between Young and DeNucci. The application was not an agreement to make
a sale of real property.
DeNucci also relies on a series of email correspondence between the parties that,
he alleges, demonstrates in writing that he and Young had agreed to all material terms. Specifically,
he refers to a July 7, 2006 email in which he sets out the status of his negotiations with Henges
and his thoughts about incorporating the Henges tract. He continues by proposing to proceed with
the project without the Henges tract. DeNucci then writes: “There are some issues we would need
to make sure we all agree on.” He then sets out a list of five items yet to be agreed upon, including
the number of parking spaces available for Chuy’s, the price, the timing, the possibility of a
7
temporary parking lot, and other miscellaneous issues, including an issue with an easement and
sewer service. On the same day, in response to this email, Young wrote:
We jointly developed the property with Joe’s and have a reciprocal parking
agreement that, I believe, will allow us to use it as we see fit. We will need to have
Ann look at the joint use agreement (Hatcher will you get this from Sharon and to
Ann v?). As for the other stuff...it makes more sense to get henges on the plate... I
believe it is good for you to talk to his atty and see if you can’t figure it out.
As for the 60 spaces...
Hatcher and zapp: do you guys feel like this is enough additional parking????
Erin: what about the zoning and if Paul wants to apply for zoning change, don’t we
need to make the application and is the zoning change he needs the same we need to
park if Paul goes away. And if Paul is turned down, can we still reapply for a less
aggressive zoning that will allow us to build a parking lot??
Please get back...
Mike
Nothing in Young’s response reflects that he agreed to any of the “issues we would need to
make sure we all agree on.” Rather, the email exchange shows that the parties were in ongoing
negotiations about the details of the project, including the area on which the project would be
built—with or without the Henges tract—as well as the price for which the land would be sold.
DeNucci points us to no other writings included in the summary judgment record that, read
either alone or in conjunction with other documentary evidence, indicate that the parties had
agreed on the material terms of the alleged contract. See Cohen, 565 S.W.2d at 232; see also Baylor,
221 S.W.3d at 635.
DeNucci argues that, to satisfy the statute of frauds, an agreement to sell real property
need contain only three elements: a signature, a property description, and a reflection of an intent
to convey. In support of this contention, DeNucci cites Street v. Johnson, 96 S.W.2d 427 (Tex. Civ.
8
App.—Amarillo 1936, no writ), Key v. Pierce, 8 S.W.3d 704 (Tex. App.—Fort Worth 1999,
pet. denied), and Garner v. Redeaux, 678 S.W.2d 124 (Tex. App.—Houston [14th Dist.] 1984,
writ ref’d n.r.e.). However, these cases do not support DeNucci’s contention. Each of these
cases required that the writing in question contain all material terms, including price. See Street,
96 S.W.2d at 429 (“A memorandum which states a sale of land, identifying it by an adequate
description, and which specifies the price and is dated and signed by the seller, is sufficient to
support a suit for specific performance against him.”); Key, 8 S.W.3d at 708 (written agreement
must “furnish[] written evidence of a contract and its essential terms”); Garner, 678 S.W.2d at 126
(“the writing, whether a formal contract or a mere memorandum, must contain the essential terms
of a contract”). In Street, the price was included in the writing. 96 S.W.2d at 429. In Key, the seller
had agreed in writing to sell the land to the highest bidder. 8 S.W.3d at 706. The buyer’s tendered
cashier’s check, along with the deed of trust and the notice of sale—which was signed by Key,
included a written description of the property, and stated that the property would be sold to the
highest bidder—provided all the essential terms of the contract. Id. at 708. In Garner, the price
was written on the back of the check: “pd this account two thousand dollars & Bal Four Thousand
in payment.” 678 S.W.2d at 126.
DeNucci also relies on McKy v. Walker, 293 S.W. 921 (Tex. Civ. App.—San Antonio
1927, writ ref’d). In McKy, the price had been negotiated at $3.75 per acre. 293 S.W. at 921. The
court of civil appeals based its opinion in part on a letter that referenced the cost of an abstract “to
be paid out of the money in the deal.” However, it is unclear from the opinion whether the price
was included in any of the writings. Id. at 923. Thus, the McKy court did not hold that price was
9
not material or not required to be a part of the writing. In the event that McKy might be read not to
require all material terms to be in writing, we are of the view that more recent supreme court
holdings clarify that all material terms be in writing. See, e.g., Cohen, 565 S.W.2d at 232.
Reviewing all the summary judgment evidence in the light most favorable to
DeNucci, as we are required, Young has conclusively negated the existence of a genuine issue of
material fact with respect to the writings by showing that the writings on which DeNucci relies are
insufficient to satisfy the statute of frauds. All of the writings, including the one on which DeNucci
relies to show the existence of an agreement, show that negotiations were ongoing and that there was
never any agreement as to various material terms, including price.
DeNucci argues that, even if the writings were insufficient to satisfy the statute of
frauds, there was evidence that Young promised to sign a writing that would satisfy the statute of
frauds and, therefore, promissory estoppel bars the statute’s application and requires enforcement
of the otherwise unenforceable agreement. DeNucci, however, cites to no evidence in the record to
support his contention that Young ever promised to sign such an agreement. Indeed, the evidence
in the record demonstrates the contrary—that the parties had continued to negotiate and to pursue
their rezoning efforts—but that no agreement had been reached. The evidence shows that the
contract that DeNucci claims Young agreed to sign was drafted by DeNucci and signed by DeNucci
only. It expired by its own terms on September 15, 2006, was eventually delivered to Young on
October 12, 2006, and was immediately rejected in writing by Young. The evidence shows that the
parties had not reached agreement, and DeNucci points to no evidence raising a fact issue otherwise.
Promissory estoppel does not bar application of the statute of frauds.
10
DeNucci also argues that he and Young were fiduciaries, and the existence of a
fiduciary duty barred application of the statute of frauds. To impose even an informal fiduciary duty
in a business transaction, a special relationship of trust and confidence must exist prior to, and apart
from, the agreement made the basis of the suit. Associated Indem. Corp. v. CAT Contracting, Inc.,
964 S.W.2d 276, 288 (Tex. 1998). It is undisputed that DeNucci and Young met when DeNucci
approached Young to discuss the proposed condominium project. The parties had no relationship
at all before the negotiations made the basis of the suit. The type of arms-length transaction entered
into here for the parties’ mutual benefit does not establish the basis for a fiduciary relationship. See
id. The evidence shows only that DeNucci and Young chose to pursue rezoning efforts for their
mutual benefit and that they were negotiating a deal in the event that their rezoning efforts were
successful. There was no fiduciary relationship between them, and there is no evidence that, as
DeNucci contends, Young’s agent Linehan became DeNucci’s agent as a result, or that Linehan ever
independently agreed to act as DeNucci’s agent.
A review of the summary judgment record shows that the parties never agreed
in writing as to the material terms of the contract—that negotiations were ongoing and
eventually deteriorated before any agreement was reached. Having found no agreement sufficient
to satisfy the statute of frauds and no circumstance barring application of the statute, we overrule
DeNucci’s first issue.
In his second issue, DeNucci argues that the district court erred in granting
summary judgment because there was evidence of spoliation, which would act to preclude summary
judgment. Citing Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351 (Tex. App.—Fort Worth
11
2007, pet. denied), DeNucci argues that summary judgment on his spoliation claim was improper
because a spoliation instruction was later submitted to the jury. However, as to those claims
submitted to the jury, even if we were to find that summary judgment was improper, there was no
harm, as the spoliation instruction was submitted to the jury. We are limited to resolving
those issues necessary to the disposition of the appeal, and can reverse only for harmful errors. See
Tex. R. App. P. 44.1(a), 47.1. Given that, despite the summary judgment, the spoliation instruction
was nevertheless submitted to the jury as to DeNucci’s remaining claims, we are not persuaded
that summary judgment on this issue probably led to an improper decision as to the claims submitted
to the jury. See Tex. R. App. P. 44.1(a).
To the extent that DeNucci challenges summary judgment on the spoliation issue
only as it pertains to his breach of contract claim disposed of on summary judgment, we find that
summary judgment was proper, as Young conclusively negated DeNucci’s spoliation claim. As part
of his spoliation claim, DeNucci had to establish that Young, the non-producing party, had a duty
to preserve some evidence that had existed but is no longer available. See Wal-Mart Stores, Inc.
v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003). However, DeNucci refers us to no missing evidence
that would have been relevant to his claims. Indeed, he refers us to no missing evidence at all.
Instead, DeNucci argues that, because no documents were sufficient to satisfy the statute of frauds,
Young must have destroyed them.
There is no evidence of the existence of a document relevant to the statute of frauds
inquiry—a document that memorializes an agreement between the parties—that was unknown to
DeNucci or in existence but not delivered to DeNucci. Emails sent by Young to DeNucci would
be accessible to DeNucci. Documents signed by Young and delivered to DeNucci would also be
12
accessible to DeNucci. To the extent that DeNucci argues that Young destroyed unsent email drafts
or drafts of letters, DeNucci has failed to show how such drafts would be relevant to his breach of
contract claim. See id. Accordingly, we overrule DeNucci’s second issue.
In his third issue, DeNucci argues that the district court improperly denied DeNucci’s
request for a jury instruction on fiduciary duty. At trial, DeNucci objected to the court’s submission
of a question about the existence of an informal, rather than formal, fiduciary duty. As explained
in our summary judgment discussion above, there is no evidence of any fiduciary duty between
Young and DeNucci, formal or informal. See Associated Indem. Corp., 964 S.W.2d at 288. The
district court acted within its discretion in refusing to submit a jury instruction on this issue. See
Tex. R. Civ. P. 278; In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (trial court’s decision to submit
or refuse a jury instruction is reviewed for an abuse of discretion); 4901 Main, Inc. v. TAS Auto.,
Inc., 187 S.W.3d 627, 631 (Tex. App—Houston [14th Dist.] 2006, no pet.) (“A trial court may refuse
to submit a question to the jury if: (1) there is no evidence; (2) there are no pleadings; or (3) the
issue is uncontroverted.”). Accordingly, we overrule DeNucci’s third issue.
Having overruled each of DeNucci’s issues, we affirm the judgment of the
district court.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Waldrop and Henson
Affirmed
Filed: March 24, 2010
13
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ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Linc Government Services, LLC ) ASBCA No. 58565
)
Under Contract No. W91GER-06-D-0006 )
APPEARANCES FOR THE APPELLANT: Lea Carol Owen, Esq.
Ben H. Bodzy, Esq.
Joshua A. Mullen, Esq.
Baker, Donelson, Bearman,
Caldwell & Berkowitz, P.C.
Nashville, TN
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Nancy J. Lewis, JA
Trial Attorney
ORDER OF DISMISSAL
The appeal has been withdrawn. The appeal is dismissed with prejudice.
Dated: 16 June 2015
Administrativ
Armed Servic oard
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 58565, Appeal of Linc Government
Services, LLC, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, R.Q. WARD, D.C. KING
Appellate Military Judges
UNITED STATES OF AMERICA
v.
CORY A. BETTS
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201300441
GENERAL COURT-MARTIAL
Sentence Adjudged: 21 July 2013.
Military Judge: LtCol Karen Morrisroe, USMCR.
Convening Authority: Commanding General, 2d Marine
Division, Camp Lejuene, NC.
Staff Judge Advocate's Recommendation: Maj J.N. Nelson,
USMC.
For Appellant: Maj John Stephens, USMC.
For Appellee: Maj Paul Ervasti, USMC; LCDR Keith Lofland,
JAGC, USN.
14 October 2014
---------------------------------------------------
OPINION OF THE COURT
---------------------------------------------------
THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of forcible sodomy, in violation of Article 125 of
the Uniform Code of Military Justice, 10 U.S.C. § 925. The
military judge sentenced the appellant to confinement for eight
years, reduction to pay grade E-1, and a dishonorable discharge.
Pursuant to a pretrial agreement (PTA), the convening authority
(CA) disapproved the dishonorable discharge, approved a bad-
conduct discharge, and suspended execution of all confinement in
excess of five years. The remainder of the sentence was
approved as adjudged.
The appellant now raises four assignments of error: (1)
that the sentence was inappropriately severe; (2) that the
military judge erred in not voiding the provision of the
pretrial agreement wherein the appellant agrees to not raise a
motion for relief under Article 13, UCMJ; (3) that the
appellant’s counsel were ineffective for advising him to plead
guilty; and, (4) Article 125, UCMJ, is unconstitutionally vague.
Having carefully considered the pleadings and the record of
trial, we conclude that the findings and sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant was committed. Art. 66,
UCMJ.
Background
The appellant made three combat deployments between the
years of 2005 and 2011. The appellant was diagnosed with post-
traumatic stress disorder and other conditions, and in 2010
began receiving mental health treatment which included inpatient
treatment at a mental health facility. On 9 March 2012, the
appellant was again admitted to the mental health ward of the
local Navy hospital.
On 22 March 2012, the appellant’s wife was in the seventh
month of a “high-risk” pregnancy. While home, the appellant
initiated sexual intercourse with his wife, who refused,
reminding the appellant that her doctor had advised against it.
The appellant thereafter threw his wife onto the bed, pinned her
down with his body weight and forcibly sodomized her. When his
wife screamed for him to stop, the appellant covered her nose
and mouth with his hand and also with a pillow, preventing his
wife from breathing. Terrified, the victim asked the appellant
if he was going to kill her, to which the appellant responded in
the affirmative. The appellant later got off of the victim,
wiped her down with a washcloth, ordered her to take a shower
and, while she was doing so, changed the sheets on the bed. A
few hours after the attack, the appellant fell asleep and the
2
victim made her way to the hospital where the incident was
reported to law enforcement.
The appellant’s command immediately ordered the appellant
into pretrial confinement. In the course of processing the
appellant for confinement, he jumped a counter at a medical
facility and secured a bottle of pills, which he swallowed
before his chasers could reach him. As a result, the appellant
was again admitted to the mental health ward. Three days later,
he was returned to pretrial confinement.
The appellant later entered into a PTA wherein he agreed
not to raise a motion for administrative credit under RULE FOR
COURT MARTIAL 305(k), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012) or
pursuant to Article 13, UCMJ. In exchange, the CA agreed to
approve a bad-conduct discharge if a dishonorable discharge was
awarded and suspend confinement in excess of five years.
PTA Provision Regarding Article 13
The appellant now argues that the PTA provision wherein the
appellant agreed to waive any motion for relief due to illegal
pretrial confinement violates public policy. Therefore, the
appellant argues, the military judge abused her discretion by
accepting the PTA. We disagree.
This court applies a de novo review in determining whether
a PTA provision violates law or “public policy.” United States
v. Sunzeri, 59 M.J. 758, 760 (N.M.Ct.Crim.App. 2004). A knowing
and voluntary waiver of an Article 13 violation is a permissible
term in a pretrial agreement, although a military judge should
“inquire into the circumstances of the pretrial confinement and
the voluntariness of the waiver, and ensure that the [appellant]
understands the remedy to which he would be entitled if he made
a successful motion.” United States v. McFadyen, 51 M.J. 289,
291 (C.A.A.F. 1999).
Here, trial defense counsel unsuccessfully petitioned the
CA to release the appellant from pretrial confinement because he
believed that his client did not have access to adequate mental
health treatment while confined. Later, the appellant entered
into a PTA that stated, inter alia, that he agreed not to raise
a motion pursuant to Article 13, UCMJ, or R.C.M. 305 to request
credit against the sentence adjudged on grounds of pretrial
punishment or unduly-harsh circumstances of pretrial
confinement. In the PTA, the appellant acknowledges that he had
discussed this choice with his counsel and that he fully
3
understood the provision’s effect and meaning, and the military
judge conducted an extensive inquiry on the record to ensure
that the provision was the result of a knowing and voluntary
choice on the appellant’s part.
Here, the military judge asked the trial defense counsel
“[w]hat is it about the pretrial restraint that you believe may
have been illegal?” Record at 269. Trial defense counsel
responded that the issue was one of the appellant’s “ability to
seek proper mental health treatment while in pretrial
confinement.” Id. In the course of further inquiry on the
matter, trial defense counsel informed the military judge that
he, in fact, did not believe that the pretrial confinement was
illegal and that “we didn’t intend to bring the issue in the
first place.” Id. The military judge then engaged in a lengthy
inquiry of the appellant to ensure that he understood the
requirements of Article 13 and that his waiver of the issue was
knowing and voluntary. This inquiry was consistent with
McFayden and revealed the appellant thoroughly understood the
ramifications of declining to petition the court for relief
under Article 13, UCMJ. Accordingly, we decline to hold that
this waiver violated public policy.
Sentence Appropriateness
Arguing that a sentence to eight years of confinement is
inappropriate, the appellant petitions this court to reduce
confinement to two years.
A military appellate court “may affirm only such findings
of guilty and the sentence or such part or amount of the
sentence as it finds correct in law and fact and determines, on
the basis of the entire record, should be approved.” Art.
66(c), UCMJ. Sentence appropriateness involves the judicial
function of assuring that justice is done and that the accused
gets the punishment he deserves. United States v. Healy, 26
M.J. 394, 395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and the character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959))
After review of the entire record, we find that the
sentence is appropriate for this appellant and his offenses.
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268. The
appellant forcibly sodomized his seven-month pregnant wife while
4
he covered her mouth to silence her screams. During the course
of this assault, the appellant placed his wife in fear for her
life and took steps seemingly intended to eradicate evidence of
his crime. While we acknowledge the appellant’s service and the
impact that service may have had on his mental and emotional
well-being, we also note that the appellant himself negotiated
for and accepted a PTA limit of five years confinement.
Considering the entire record, we conclude that justice was done
and the appellant received the punishment he deserved.
Conclusion
We have considered the remaining assignments of error and
find they lack merit. United States v. Clifton, 35 M.J. 79, 81-
82 (C.M.A. 1992). Accordingly, the findings and sentence as
approved by the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
5
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288 F.Supp.2d 962 (2003)
Barbara J. BROWN, Plaintiff,
v.
CITY OF MILWAUKEE and Michael Garcia, Defendants.
No. 02-C-0178.
United States District Court, E.D. Wisconsin.
October 21, 2003.
*963 *964 *965 *966 *967 Curry First, First, Blondis, Albrecht, Bangert & Novotnak, Milwaukee, WI, for Plaintiff.
Susan Lappen, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.
DECISION AND ORDER
ADELMAN, District Judge.
Plaintiff Barbara J. Brown brings this action under 42 U.S.C. § 1983 against defendants City of Milwaukee ("the City") and Milwaukee police officer Michael Garcia ("Garcia"),[1] alleging that defendants violated her Fourth Amendment rights by subjecting her to an unreasonable seizure. Plaintiff also brings due process and equal protection claims, as well as claims alleging violations of state tort and open records laws. Defendants now move for summary judgment on all of plaintiff's claims, and plaintiff moves for partial summary judgment on her open records law claim.
I. FACTS
On January 29, 1998 at approximately 7:00 p.m., a Milwaukee police officer broadcast a general dispatch report stating that a woman driving a two-tone maroon van north on North 35th Street in the City of Milwaukee possessed a gun. North 35th Street is a major arterial roadway. The parties dispute whether the woman in the van committed any offense. One officer testified that "shots [may have been] fired," (Def.'s Ex. C at 10), and another testified that the woman may have stolen the van. However, it is unclear from the record what, if anything, aside from possessing a gun, the woman identified in the dispatch report actually did.
The parties also dispute exactly what the dispatch report said. Plaintiff asserts that it indicated only that the woman was driving a van and had a gun. Defendants claim that the report indicated that a gun was used. Once again, however, the record contains no evidence enabling me to resolve this factual dispute.
A few minutes after the dispatch, defendant Garcia and his partner observed plaintiff in a maroon and beige van heading north on North 35th Street. Plaintiff, a fifty-five year old African-American woman, was, at the time, a teacher and guidance counselor in the Milwaukee Public Schools. Believing that plaintiff might be the woman identified in the dispatch report, the officers immediately activated their emergency lights and pulled her *968 over. The officers also broadcast the stop on the police radio, and at least five squad cars and ten officers came to the scene. The officers blocked off the street and surrounded the van. They then shined lights at plaintiff, apparently to prevent her from seeing. They also pointed handguns, rifles and shotguns at her, and cocked their guns so that plaintiff could hear the clicking sounds of guns being prepared for firing. Several officers simultaneously shouted profanity-laced commands at hersome over a public address systemsuch as "get your goddamn hands out and get out of the goddamn car," "get the fuck out of the vehicle," and "shut your fucking mouth or I'll shoot." (Pl.'s Proposed Findings of Fact ("PFOF") ¶¶ 90-91.) These tactics subjected plaintiff to "sensory overload." It appears that their purpose was to frighten and disorient her.
Plaintiff states that she was terrified and confused. She complied with the officers' commands by exiting the vehicle and putting her hands on her head. The police then ordered her to walk backwards toward Garcia while keeping her hands on her head, which she did. When she reached Garcia, he prepared to handcuff her by grabbing her wrists and pulling her arms down while pushing at least one of her hands upward against her back. At this point, the officers received a radio transmission indicating that they had seized the wrong woman. Garcia released plaintiff, and the officers explained what had happened. They observed that plaintiff was trembling and crying and appeared to be traumatized. She appeared too upset to drive; thus, one of the officers prepared to drive her home. However, shortly thereafter, a friend arrived and drove plaintiff home.
Later that evening, plaintiff went to the emergency room of a local hospital where she was treated for injuries to her arm, neck and shoulder. Plaintiff asserts that when Garcia pulled her arms, he tore a ligament causing her to suffer permanent shoulder and neck pain. Plaintiff also asserts that as a result of the entire incident she suffered from post-traumatic stress disorder for which she received medical treatment.
Plaintiff requested information about the incident under the state open records law and alleges that neither the officers involved nor the City timely or fully complied with her requests. Apparently, no official police report of the incident was prepared.
Additional facts will be stated in the course of the decision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be "genuine," the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be "material," it must relate to a disputed matter that "might affect the outcome of the suit." Id.
Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. *969 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The movant may meet its burden by demonstrating that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. Once the moving party's initial burden is met, the nonmoving party must go beyond the pleadings and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989).
In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is "not required to draw every conceivable inference from the recordonly those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).
III. SECTION 1983 CLAIMS
In order to succeed on a claim under § 1983, a plaintiff must show that (1) the defendants deprived her of a federal constitutional right, and (2) the defendants acted under color of state law. E.g., Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996); Estate of Thurman v. City of Milwaukee, 197 F.Supp.2d 1141, 1147 (E.D.Wis.2002). In the present case, it is undisputed that defendants were acting under color of state law. The only issue is whether plaintiff was deprived of a right secured by the Constitution. Plaintiff alleges that defendants violated her rights under the Fourth Amendment and her rights to due process and equal protection.
A. Fourth Amendment Claim
1. Reasonableness of Seizure
a. Applicable Legal Standards
The Fourth Amendment protects persons against "unreasonable searches and seizures." U.S. Const. amend. IV. Plaintiff's Fourth Amendment claim has two components: (1) whether the officers seized plaintiff without reasonable suspicion that she had committed a crime, and (2) whether, even if they had reasonable suspicion, the officers used tactics that were unreasonably intrusive under the circumstances or, put differently, excessive in relation to the danger she posed.
An investigatory stop not amounting to an arrest is authorized if the officer is able to point to "specific and articulable facts" that give rise to a reasonable suspicion that a crime is about to be or has been committed. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Wimbush, 337 F.3d 947, 949 (7th Cir.2003). "Reasonable suspicion" must be based on some "objective manifestation" that the suspect is involved in criminal activity. Wimbush, 337 F.3d at 949 (citing United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000)). Although the police may not detain a suspect based merely on a hunch, the likelihood of criminal activity need not rise to the level required for probable cause to arrest and falls well short of meeting the preponderance of the evidence standard. Id. (citing United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 *970 L.Ed.2d 740 (2002)). In evaluating the reasonableness of a stop, courts must examine the totality of the circumstances known to the officer at the time of the stop. Id. at 950 (citing United States v. Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002)).
To qualify as a lawful Terry stop, a detention must be limited in scope and executed through the least restrictive means. United States v. Ienco, 182 F.3d 517, 523 (7th Cir.1999); see also Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."). Probable cause, not merely reasonable suspicion, may be required when the police restraint is so intrusive that, while not technically an "arrest," it may be "tantamount" to an arrest.[2]United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994) (citing Dunaway v. New York, 442 U.S. 200, 212-16, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). Thus, the reasonableness of the stop may depend, in part, on the extent of the intrusion. Ienco, 182 F.3d at 523. If the degree of intrusion was not reasonably related in scope to the circumstances that justified the interference in the first place, the seizure may be unreasonable under the Fourth Amendment. See Tilmon, 19 F.3d at 1224.
"Subtle, and perhaps tenuous, distinctions exist between a Terry stop, a Terry stop rapidly evolving into an arrest and a de facto arrest." Tilmon, 19 F.3d at 1224. Because of the endless variations in the facts and circumstances, there is no litmus-paper test for determining when a seizure exceeds the permissible bounds of an investigative stop. Id. at 1224. Rather, the court must analyze all of the facts and circumstances of the case. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
When officers use force to effect a seizure, the court must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396, 109 S.Ct. 1865 (internal quotation marks omitted). In Graham, the Court listed three relevant factors: (1) the severity of the suspected crime; (2) whether the suspect posed an immediate threat to the safety of the officer or others; and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Id. Ultimately, the court must decide whether the means used to seize the person were excessive in relation to the danger she posed. Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir.2000); see also Graham, 490 U.S. at 388, 109 S.Ct. 1865 (stating that officer's conduct must be objectively reasonable under the Fourth Amendment).
Thus, in the present case I must determine:
(1) whether the police were aware of specific and articulable facts giving rise to reasonable suspicion; and (2) whether the degree of intrusion was reasonably related to the known facts. In other *971 words, the issue is whether the police conductgiven their suspicions and the surrounding circumstanceswas reasonable.
Tilmon, 19 F.3d at 1224.
b. Application of Standards to Seizure of Plaintiff
Whether Garcia had reasonable suspicion to stop plaintiff depends on the resolution of disputed issues of fact. Viewing the evidence in the light most favorable to plaintiff, a reasonable fact-finder could conclude that Garcia lacked reasonable suspicion to believe that plaintiff was involved in criminal activity. The dispatch report stated only that the individual possessed a gun, which is not necessarily a crime. See Florida v. J.L., 529 U.S. 266, 268, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (holding that an anonymous tip that a person is carrying a gun is, without more, insufficient to justify an officer's stop and frisk of that person, and declining to adopt a "firearm exception" to the standard Terry analysis);[3]United States v. Ubiles, 224 F.3d 213, 217-18 (3d Cir.2000) (holding that because it is not necessarily a crime to possess a gun, a mere allegation that a suspect possesses a gun, without more, does not justify a stop); United States v. Dudley, 854 F.Supp. 570, 580 (S.D.Ind.1994) (holding that radio call alerting police to presence of two people in vehicle with guns did not provide reasonable suspicion because possession of firearms is not, generally speaking, a crime). Thus, even if Garcia had reason to believe that plaintiff was the individual described in the dispatch report, the report may not have conveyed information sufficient to establish reasonable suspicion that such individual committed or was about to commit a crime. Therefore, on the state of this record, I cannot conclude as a matter of law that the stop was reasonable.[4]
Neither can I conclude as a matter of law that the seizure was reasonably effected.[5] In Tilmon, the Seventh Circuit *972 addressed whether a "show of force" employed in the seizure of an alleged bank robber was so intrusive as to be unreasonable. The officers in Tilmon surrounded the suspect's vehicle, drew their weapons, ordered the suspect to get out of the car and lie on the ground, and placed him in handcuffs. 19 F.3d at 1226-28. The court found that the officers' actions were reasonably related to the circumstances justifying the stop because the suspect was considered armed and dangerous and had threatened to blow up the bank with a bomb. Id. at 1227-28. The court reasoned that drawing weapons and ordering the suspect to lie on the ground were actions reasonably necessary for officer safety based on the perceived threat. Id. However, the court indicated that "`clearly'" it was "`near the outer edge'" of what constituted a reasonable investigative stop. Id. at 1227 (quoting United States v. Serna-Barreto, 842 F.2d 965, 968 (7th Cir. 1988)).
If Tilmon was "near the outer edge," a reasonable jury could conclude that the officers' conduct in the present case crossed the line. First, taking the facts in the light most favorable to plaintiff, the officers had no reason to suspect that plaintiff had committed an offense comparable in seriousness to that suspected in Tilmon. In Tilmon, the police reasonably suspected that the defendant had just robbed a bank by threatening to blow it up with a bomb; in the present case, the officers had no reason to suspect that plaintiff had done anything more serious than possess a gun. The difference is significant because the seriousness of the conduct of which a subject is reasonably suspected is highly relevant when considering the permissible degree of intrusion in an investigatory stop. See id. at 1225-28.
Second, the officers' actions in the present case were considerably more intrusive than in Tilmon. Although in both cases the officers surrounded the suspect's car with guns drawn, in the present case, by using the sensory overload tactic, the officers went much further. They not only attempted to subdue plaintiff and to protect their own safety, but, drawing all inferences in the light most favorable to plaintiff, they attempted to terrify and disorient her. They did this by training spotlights on her so that she was unable to see, by shouting profanities such as "shut your fucking mouth or I'll shoot," and by making her believe that they were about to fire their weapons.
Third, in addition to subjecting plaintiff to sensory overload, in the present case Garcia caused plaintiff to suffer physical injury. According to plaintiff, Garcia twisted her arms causing injuries to her shoulder and neck, including a torn ligament, resulting in permanent pain and suffering. Under the circumstances of this case, none of the Graham factors would justify the use of force sufficient to cause plaintiff to sustain a torn ligament and permanent pain and suffering. Garcia had no reason to suspect that plaintiff had done anything more serious than possess a weapon. Plaintiff posed little or no threat to the safety of the officers. At the time Garcia allegedly twisted her arm she had complied with all of the officers' instructions and was walking backward with her hands on her head. She was not resisting in any way. Further, plaintiff was a woman in her fifties, and her physical capacity to resist was limited.
Thus, taking the facts in the light most favorable to plaintiff, a reasonable jury could conclude that Garcia acted unreasonably in the manner in which he and the other officers seized plaintiff.[6] I cannot *973 conclude, as a matter of law, that the officers' use of the sensory overload tactic and physical handling of this fifty-five year old woman, suspected only of possessing a gun, was reasonable.
2. Qualified Immunity
Defendants argue that even if Garcia violated plaintiff's Fourth Amendment rights, he is entitled to qualified immunity. Under the doctrine of qualified immunity, "government officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
The court applies a two step sequential test for determining whether qualified immunity applies. The initial inquiry is whether, taking the facts in the light most favorable to the party asserting the injury, the facts alleged show that the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If there was no violation, there is no need for further inquiry. Id. at 201, 121 S.Ct. 2151. In the present case I have already determined that, taking the evidence in the light most favorable to plaintiff, Garcia violated plaintiff's Fourth Amendment rights.
The second sequential step is to ask whether the right was "clearly established" at the time of the alleged violation. Id. "The relevant, dispositive inquiry in determining whether the right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151.
It is the plaintiff's burden to demonstrate that a right is clearly established. Jacobs, 215 F.3d at 766. A right is clearly established when its contours are "`sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. at 767 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). To determine whether a right is clearly established, the court looks first to Supreme Court caselaw, then circuit precedent. In the absence of controlling precedent, the court may broaden its "survey to include all relevant caselaw in order to determine `whether there was such a clear trend in the caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.'" Id. (quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir.1989)).
However, it is not necessary that the very action being challenged has been previously held unconstitutional, so long as the unlawfulness was apparent in light of existing law. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. As the Supreme Court recently stated:
[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, ... we [have] expressly rejected a requirement that previous cases be "fundamentally similar." Although earlier cases involving "fundamentally similar" facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. The same is true of cases with "materially similar" facts. Accordingly, ... the salient question ... is whether the state of the law [at the *974 time of the alleged conduct] gave [the defendants] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.
Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (stating that "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question," even though the very action in question has not previously been held unlawful).
Thus, I must determine whether, in January of 1998, it would have been apparent to a reasonable police officer: (1) that he could not conduct a Terry stop based on a report that a woman driving a van on particular street had a gun, and (2) that he could not employ the highly intrusive tactics used to effectuate the seizure here. Taking the facts in a light most favorable to plaintiff, I conclude that while Garcia is entitled to qualified immunity from liability for the initial stop, he is not entitled to immunity from liability for the manner in which it was carried out.[7]
It has been well established since 1968 that in order to justify a Terry stop the activity of which the detainee is suspected must actually be criminal. See Johnson v. Campbell, 332 F.3d 199, 208 (3d Cir.2003) (citing Ubiles, 224 F.3d at 218); Feathers v. Aey, 319 F.3d 843, 850 (6th Cir.2003). As discussed, the mere possession of a gun, without more, is not a crime. However, I cannot conclude that the state of the law in 1998 was so clear that only a "plainly incompetent"[8] officer would have conducted a Terry stop.
In 2000, the Supreme Court held that "an anonymous tip that a person is carrying a gun is, without more, [in]sufficient to justify a police officer's stop and frisk." Florida v. J.L., 529 U.S. 266, 269, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The Court rejected any "firearm exception" to the standard Terry analysis. Id. at 272, 120 S.Ct. 1375. However, prior to J.L. several courtsincluding the Seventh Circuit Court of Appealshad reached contrary conclusions, "declaring similar searches compatible with the Fourth Amendment." Id. at 269, 120 S.Ct. 1375 (citing United States v. DeBerry, 76 F.3d 884, 886-887 (7th Cir.1996); United States v. Clipper, 973 F.2d 944, 951 (D.C.Cir. 1992)).
In DeBerry, the court noted that a number of cases hold, United States v. McClinnhan, 660 F.2d 500, 502-03 (D.C.Cir.1981); United States v. Clipper, 973 F.2d 944, 949-51 (D.C.Cir.1992); United States v. Bold, 19 F.3d 99, 103-04 (2d Cir.1994), or intimate, United States v. Gibson, supra, 64 F.3d at 624; United States v. Walker, [7 F.3d 26 (2nd Cir.1993),] supra, that if the tip, though only weakly corroborated in the sense just explained, is that a person is armed, the police are entitled to stop the person and search him for the gun. Armed *975 persons are so dangerous to the peace of the community that the police should not be forbidden to follow up a tip that a person is armed, and as a realistic matter this will require a stop in all cases. For suppose DeBerry had made no threatening gesture but had simply denied in answer to the officer's question that he had a gun. Could the officer have left it at that? Or should he have asked for consent to frisk DeBerry and if DeBerry refused, insisted? The answers implicitly given by the cases we have cited are "no" and "yes," respectively. We think these answers strike the proper balance between the right of the people to be let alone and their right to be protected from armed predators.
76 F.3d at 886.[9] Thus, at the time Garcia conducted the Terry stop of plaintiff, his decision had some support in circuit precedent. Therefore, I find that he has qualified immunity from liability regarding the initial stop.
However, Garcia is not immune from liability based on the manner in which plaintiff was seized. Garcia and the other officers surrounded plaintiff, shined lights at her to prevent her from seeing, pointed weapons at her, cocked them and bombarded her with profanity-laced threats to shoot, based only on an anonymous tip that she had a gun. This conduct, if proven, would constitute a violation of plaintiff's clearly established rights.
First, at the time of the seizure, it "was clear that `[a]n officer's use of deadly force to apprehend a suspect is unreasonable, absent probable cause that the suspect is dangerous or has committed a violent crime.'" Jacobs, 215 F.3d at 774 (quoting McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir.1992)). "It was also established that holding [a] gun to a person's head and threatening to pull the trigger is a use of deadly force." Id. (citing McDonald, 966 F.2d at 295). That is essentially what happened here: Garcia and the other officers pointed their weapons including rifles and shotgunsat plaintiff, cocked them and threatened to fire unless plaintiff "shut [her] fucking mouth." This, when they suspected her of nothing more than possessing a weapon, and she had done nothing to lead them to believe she was dangerous. As the court noted in Jacobs, a case in which the seizure at issue occurred in 1997:
Under existing Seventh Circuit and Supreme Court precedent at the time the use of force occurred in this case, it appears to be clearly unreasonable for the Defendant Officers to have pointed a loaded weapon at Jacobs for an extended period of time when they allegedly had no reason to suspect that he was a dangerous criminal, ... and when Jacobs had done nothing either to attempt to evade the officers or to interfere with the execution of their duties. We therefore conclude that, taking the allegations *976 in the complaint as true, the Defendant Officers are not shielded by qualified immunity from Jacobs' claim of excessive use of force.
Id. at 774.
Second, the officers here employed other highly intrusive tactics that went well beyond those used in Jacobs: at least ten officers surrounded plaintiff, lights were employed to blind her, and the officers screamed profanity-laced threats. While each of these factors, standing alone, might not be constitutionally offensive, the "whole course of conduct of an officer in making an arrest or other seizure including verbal exchanges with a subjectmust be evaluated for Fourth Amendment reasonableness in light of the totality of the circumstances." Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1194 (10th Cir.2001), cert. denied, 535 U.S. 1056, 122 S.Ct. 1914, 152 L.Ed.2d 824 (2002).
In Holland, the court denied qualified immunity to a ten-member SWAT team which, while executing an arrest warrant for a misdemeanor assault charge on April 16, 1996, swarmed a property with guns drawn and, using profane language, ordered those presentincluding children to lie face down. Id. at 1183-84. Relying on the Seventh Circuit's McDonald decision, the court stated:
The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time. "These are the very ingredients relevant to an excessive force inquiry." McDonald, 966 F.2d at 294. Where a person has submitted to the officers' show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person, in contrast to simply holding the weapon in a fashion ready for immediate use.
Id. at 1192-93.
The Holland court also criticized the officers' use of harsh language:
Of course, in conducting a search or making a seizure, "The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Michigan v. Summers, 452 U.S. 692, 702, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Simple instructions spoken in a firm, commanding tone of voice communicate clearly what an officer wants a subject to do, and likely would be most effective, particularly in dealing with bystanders and children.
In contrast, expletives communicate very little of substance beyond the officer's own personal animosity, hostility or belligerence. Such animus would be entirely misplaced ... where they have offered no resistance to the officers' initial show of force.
One can be firm and direct without being foul and abusive.
In evaluating the Fourth Amendment reasonableness of a seizure, the officers' verbal interaction as well as their physical conduct become part of the totality of the circumstances to be considered. While it seems unlikely that harsh language alone would render a search or seizure "unreasonable," verbal abuse may be sufficient to tip the scales in a close case.
Id. at 1194.
The court further noted:
Outfitting sheriff's deputies in hooded combat fatigues, arming them with laser-sighted *977 weapons and ordering them to conduct the "dynamic entry" of a private home does not exempt their conduct from Fourth Amendment standards of reasonableness. The "SWAT" designation does not grant license to law enforcement officers to abuse suspects or bystanders, or to vent in an unprofessional manner their own pent-up aggression, personal frustration or animosity toward others.
Id. at 1195. Based on this combination of factors, the court had little difficulty in concluding: "This was an invasion of a clearly established constitutional right, and the officers' mistake as to what the law requires was unreasonable under all of the circumstances." Id. at 1197. Similarly, defendants' labeling of the seizure in the present case a "high-risk-felony stop", (Def. Brf. at 6, ¶ 8), did not grant the officers license to abuse plaintiff. The combination of tactics employed here spotlights, drawn weapons and profane threats to shoottogether constituted an invasion of plaintiff's clearly established constitutional rights.[10]
Third, in the present case, plaintiff suffered physical injury, which was absent in Holland. Id. at 1195. Garcia grabbed plaintiff's arms and twisted them while attempting to handcuff her, tearing a ligament and causing permanent injury. While not every unnecessary use of force during a seizure violates the Fourth Amendment, Graham, 490 U.S. at 396, 109 S.Ct. 1865, it is clearly established that the excessive use of force during an investigatory stop constitutes a Fourth Amendment violation, Lanigan, 110 F.3d at 474 (citing Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir.1996)); see also Titran v. Ackman, 893 F.2d 145, 146 (7th Cir. 1990) (stating that an individual's right under the Fourth Amendment "to be free of excessive force during an arrest has long been established"). The use of force is excessive if it is not "objectively reasonable" in light of the facts and circumstances confronting the officers, without regard to their underlying intent or motivation, Graham, 490 U.S. at 397, 109 S.Ct. 1865; and a plaintiff can overcome a claim of qualified immunity either by (1) pointing to a closely analogous case that established a right to be free from the type of force the police officers used on her, or (2) showing that the force was so plainly excessive that, as an objective matter, the police officers would have been on notice that they were violating the Fourth Amendment. Clash, 77 F.3d at 1048. Construing the evidence in plaintiff's favor, Garcia is not entitled to qualified immunity for his use of force.
The Seventh Circuit has denied qualified immunity on similar facts. In Payne v. Pauley, 337 F.3d 767, 779 (7th Cir.2003), the plaintiff alleged that during a police encounter on May 31, 1998, the officer unsnapped his holster and held his arms over his head as if to strike her, and that he ran at her knocking into her body with his stomach and chest. She alleged that, although she was cooperative, the officer forced her arms behind her back, twisting her arm, and over-tightening the handcuffs. As a result, she alleged that she received significant injuries. Because the court's analysis is so instructive for purposes of the present case, I quote from its opinion at length:
The Supreme Court has noted that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgmentsin circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary *978 in a particular situation." Graham, 490 U.S. at 396-97[, 109 S.Ct. 1865]. Nevertheless, even given this flexibility, Officer Pauley's force in arresting a woman who was not threatening to harm the police officer or anyone else at the scene, was not resisting or evading arrest, was not attempting to flee, and was charged with such minor offenses, was not objectively reasonable. See Herzog [v. Vill. of Winnetka, Ill., 309 F.3d 1041, 1042-43 (7th Cir.2002)] (refusing to loosen plaintiff's chafing handcuffs constitutes excessive force in case where complainant had violated no law, was arrested without probable cause and did not resist); Brown v. Vill. of Evergreen Park, No. 02 C 0236, 2002 WL 31844991, at *4 (N.D.Ill.Dec.18, 2002) (defendant alleged sufficient facts to support a claim of excessive force where he was stopped for no reason, did not resist arrest, was completely submissive and yet handcuffs applied so tightly he suffered nerve damage); see also, Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir.2002) (whether police used excessive force was issue for jury where handcuffs were so tight that plaintiff sprained wrist, shoulder, and elbow, where plaintiff had committed no offense, he posed no safety threat, and made no show of resistance); Mickle v. Morin, 297 F.3d 114, 121-22 (2d Cir. 2002) (holding that rational juror could find use of force excessive where handcuffing caused bruising and dislocated rotator cuff and plaintiff's only offense was making nonemergency calls to 911); Kostrzewa v. City of Troy, 247 F.3d 633, 640-41 (6th Cir.2001) (refusing to dismiss excessive force complaint where plaintiff was arrested for making an illegal left-hand turn and application of handcuffs made wrists swollen, red, and painful); LaLonde v. County of Riverside, 204 F.3d 947, 959-60 (9th Cir.2000) (allowing issue of excessive force to go jury where officers responding to noise complaint applied tight handcuffs and used pepper spray); Heitschmidt v. City of Houston, 161 F.3d 834, 838-40 (5th Cir.1998) (holding that, on the basis of the pleadings, the court could not conclude that the force exerted was reasonable where the police officer placed the plaintiff in tight handcuffs for four and a half hours, where plaintiff was not a target of the investigation, he did not attempt to flee, and police had no reason to suspect him of wrongdoing).
Having established the threshold question regarding the constitutional right under the Fourth Amendment, we must now complete the qualified immunity inquiry by determining whether it would have been sufficiently clear to a reasonable officer that he used excessive force in the situation he confronted. At the time of the arrest, it was clearly established that "police officers do not have the right to shove, push, or otherwise assault innocent citizens without any provocation whatsoever." Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.1996). It was also well established that it was unlawful to use excessively tight handcuffs and violently yank the arms of arrestees who were not resisting arrest, did not disobey the orders of a police officer, did not pose a threat to the safety of the officer or others, and were suspected of committing only minor crimes. See Hill v. Miller, 878 F.Supp. 114, 116-17 (N.D.Ill.1995) (denying summary judgment on excessive force claim where police officer pushed complainant against police car and handcuffed him so tightly that he suffered nerve damage where suspect violated no law, complied fully with officer's instructions, and did not resist arrest); Ingram v. Jones, No. 95 C 2631, 1995 WL 745849, at *11 (N.D.Ill. Nov. 29, 1995) (denying defendants' motion to dismiss excessive force claim where woman alleged *979 that police officer forcefully grabbed and handcuffed her where she had committed no crime, did not resist, and fully complied with all of the officer's requests), modified on other grounds by No. 95 C 2631, 1997 WL 323538 (N.D.Ill. June 9, 1997); Tennen v. Shier, No. 94 C 2127, 1995 WL 398991, at *7 (N.D.Ill. June 30, 1995) (reasonable factfinder could find officer used excessive force in grabbing complainant's arm, and yanking him around by the arm, where he had violated no law and posed no physical threat to the officer); see also Martin v. Heideman, 106 F.3d 1308, 1312-13 (6th Cir.1997) (though amount of force used was allegedly greater than in instant case, stating that overly tight handcuffing constitutes excessive force); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.1993) (refusing to grant summary judgment for police officers where tight handcuffs caused pain and bruising and plaintiff passed field sobriety tests and had violated no law).
...
In this case, according to Payne's account, Officer Pauley confronted a woman who posed no danger to Officer Pauley or to the public, who did not resist arrest, and who was alleged to have committed a very minor, non-violent crime. If the facts as alleged by Payne are found to be true, then and only then, should it have been clear to Officer Pauley, or to any reasonable officer under these circumstances, that it would be unlawful to use the amount of force he did to arrest Payne.
Id. at 779-80 (footnote omitted; emphasis added).
In Meyers v. Nagel, No. 90-35718, 962 F.2d 14, 1992 WL 92798, at *2, 1992 U.S.App. LEXIS 10252, at *7 (9th Cir. Apr.30, 1992), the court reached a similar conclusion, denying qualified immunity when the plaintiff claimed that the officer "used excessive force when he `put one hand up high behind [plaintiff's] back' while handcuffing him." While the record did not permit the court to determine whether excessive force was in fact used, the court held: "If the facts are as Meyers claims, the force used by Nagel may be excessive and he could not reasonably believe his actions were lawful." Id. at *3, 1992 U.S.App. LEXIS 10252, at *10. Thus, I find that these closely analogous cases establish a right to be free from the type of force Garcia used on plaintiff.
Further, as an objective matter, the force allegedly used here was so plainly excessive that Garcia would have been on notice that he was violating the Fourth Amendment. Courts have consistently held that a reasonable inference that excessive force was used may be drawn from the fact of serious injuries. See, e.g., Santos v. Gates, 287 F.3d 846, 855 (9th Cir. 2002) (holding that jury could infer use of excessive force, even where plaintiff did not specifically recall the incident, because plaintiff suffered broken vertebra); Frazell v. Flanigan, 102 F.3d 877, 883, 887 (7th Cir.1996), abrogation on other grounds recognized by McNair v. Coffey, 279 F.3d 463 (7th Cir.2002) (denying qualified immunity where officers caused serious injuries to plaintiff during arrest). Construing the facts in plaintiff's favor, there is nothing to suggest that Garcia was justified in using force sufficient to cause the injury alleged: a reasonable officer would know that he should not twist the arm of a non-combative, fifty-five year old woman with force sufficient to tear a ligament and cause permanent injury.[11]
*980 Therefore, for the reasons stated, Garcia's motion for summary judgment on the basis of qualified immunity will be granted as it pertains to the decision to stop plaintiff, but denied as it pertains to the manner in which the stop was effectuated.
3. Municipal Liability
Plaintiff argues that the City is liable for the unreasonable seizure because the officers were acting pursuant to City policy. Although municipalities are not vicariously liable under § 1983 for the constitutional torts of their employees, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a § 1983 plaintiff may prevail on a claim against a municipality if she can establish that "the deprivation of constitutional rights [was] caused by a municipal policy or custom." Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th Cir.2003) (internal quotation marks and citation omitted). Unconstitutional policies or customs can take three forms: (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a "custom or usage" with the force of law; or (3) a constitutional injury that is caused by a person with final policy-making authority. Id. (citing Palmer v. Marion County, 327 F.3d 588, 594-95 (7th Cir. 2003)). In the present case, plaintiff argues that the City is liable for the unreasonable stop of her vehicle and subsequent use of the sensory overload tactic on three different theories. I will consider each in turn.
First, she argues that the City has an express policy approving the use of the sensory overload tactic in certain situations and that the City was deliberately indifferent as to whether its officers were implementing the tactic unconstitutionally. The City does not dispute that it had an express policy that, under certain circumstances, officers stopping vehicles for investigative purposes were to surround the vehicle and order the driver out at gunpoint while shouting commands laced with profanities. The City admits that it trained police officers to use this tactic. Plaintiff does not contend that the City's policy was facially unconstitutional but, rather, that it was unconstitutional as applied to the stop of her vehicle. In order to establish municipal liability on the theory that a facially valid policy was implemented in a way that violated a plaintiff's constitutional rights, the plaintiff must demonstrate that the municipality was deliberately indifferent to the known or obvious consequences of the policy. Rasche, 336 F.3d at 599. In other words, plaintiff must show that it should have been obvious to a reasonable policymaker that the policy would lead to the deprivation of a federally protected right. Bd. of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 411, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see also Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir.2002). "A showing of simple or even heightened negligence will not suffice." Brown, 520 U.S. at 407, 117 S.Ct. 1382.
Plaintiff argues that the City failed to provide any supervision, monitoring or oversight of police officers who implemented the policy, and that such failure amounted to deliberate indifference to the *981 policy's obvious consequences. The City does not dispute that, at the time of the incident, the policy contained no mechanism to review its use. The policy did not require officers who used the sensory overload tactic to advise their superiors of such use or document their actions and the results in reports. Plaintiff argues that it should have been obvious to the City that without supervision and monitoring the consequences of a policy endorsing such highly intrusive conduct would be that individuals' constitutional rights would be violated.
However, under Seventh Circuit law, a City cannot be held liable for deliberate indifference unless the plaintiff establishes that the City was or should have been aware of a pattern of constitutional violations caused by its policy. Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531 (7th Cir.2000) (holding that "a single instance of allegedly unconstitutional conduct does not demonstrate a municipality's deliberate indifference to the constitutional rights of its inhabitants"). Here, plaintiff does not present evidence of a pattern of constitutional violations caused by the use of the sensory overload tactic; she refers only to her own experience. Thus, plaintiff may not prevail on her theory that the City was deliberately indifferent to the known or obvious consequences of its policy approving of the use of this tactic.
Plaintiff's second argument in support of her municipal liability claim is that Garcia had final policymaking authority with respect to the procedures used at the scene of plaintiff's stop because his actions were not subject to supervision or review after the fact. "In order to have final policy-making authority, an official must possess `responsibility for making law or setting policy,' that is, `authority to adopt rules for the conduct of government.'" Rasche, 336 F.3d at 599 (quoting Auriemma v. Rice, 957 F.2d 397, 401 (7th Cir.1992)). A person's status as a final policy-maker under § 1983 is a question of state or local law. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Final policy-making authority may be granted directly by statute or delegated or ratified by an official having such authority. Id. The Seventh Circuit has further elaborated on the term "final":
Every public employee, including the policeman on the beat and the teacher in the public school, exercises authority ultimately delegated to him or her by their public employer's supreme governing organs. A police officer has authority to arrest, and that authority is "final" in the practical sense that he doesn't have to consult anyone before making an arrest; likewise a teacher does not have to consult anyone before flunking a student. That is a perfectly good use of the word "final" in ordinary conversation but it does not fit the cases; for if a police department or a school district were liable for employees' actions that it authorized but did not direct, we would be back in the world of respondeat superior. To avoid this the cases limit municipal liability under section 1983 to situations in which the official who commits the alleged violation of the plaintiff's rights has authority that is final in the special sense that there is no higher authority.
Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 469 (7th Cir.2001), cert. denied, 535 U.S. 1017, 122 S.Ct. 1606, 152 L.Ed.2d 620 (2002).
Garcia's role in the present case is similar to the "policeman on the beat" described in Gernetzke. His decision to use the sensory overload tactic in the course of his investigatory stop of plaintiff was an exercise of authority delegated to him by *982 the City. However, his exercise of such authority was not "final" in the sense that § 1983 requires. Although plaintiff argues that the City delegated such authority to its officers by failing to require them to file formal reports after employing the procedure, this argument ignores the fact that the City trained officers to use the procedure and identified the circumstances under which it was to be used.[12] Therefore, Garcia did not have final policymaking authority concerning the procedures employed when plaintiff was stopped.
Plaintiff's final argument relating to municipal liability is that even if Garcia lacked final policymaking authority, the City "ratified" his conduct by failing to adequately investigate and punish him for his use of the sensory overload tactic. A municipality will be held liable under § 1983 on a ratification theory if a municipal official having final policymaking authority approves a subordinate's decision and the basis for it. Baskin v. City of Des Plaines, 138 F.3d 701, 705 (7th Cir.1998). However, "a plaintiff cannot establish a § 1983 claim against a municipality by simply alleging that the municipality failed to investigate an incident or to take punitive action against the alleged wrongdoer." Id.; see also Gernetzke, 274 F.3d at 469-70. Thus, the City's failure to investigate or punish Garcia does not give rise to municipal liability. Plaintiff also argues that by not requiring officers to file reports after employing the sensory overload tactic, the City implicitly ratified every use of sensory overload by its officers. However, the City's failure to require formal reports to be filed after every use is not the same as affirmative approval of every use. Consequently, plaintiff's argument that the City is liable under § 1983 because it ratified Garcia's actions fails. Thus, defendants' motion for summary judgment will be granted on plaintiff's Fourth Amendment claim against the City.
B. Equal Protection and Due Process Claims
Plaintiff also raises several equal protection and due process claims. She argues that by subjecting her to excessive force Garcia acted arbitrarily or with a racial motivation, violating her right to equal protection. A state official may violate an individual's right to equal protection by treating her differently than other similarly situated individuals without a rational basis or because of the individual's race. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (holding that Equal Protection Clause is violated when government treats individual differently from others similarly situated without any rational basis); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (holding that government's intentional race discrimination violates Equal Protection Clause). However, other than showing that Garcia may have used excessive force and that she is an African-American, plaintiff adduces no evidence in support of her equal protection claim. She does not present evidence that Garcia intentionally discriminated against her or that he treated her differently than others similarly situated. Nor does she present authority supporting her argument that the facts she alleges add up to an equal protection claim. Thus, defendants' summary judgment motion with respect to this claim will be granted.
Plaintiff also alleges that the City failed to timely and fully respond to her requests under the state open records law. She claims that this was part of a "coverup" *983 of the illegal seizure, which violated her rights to due process and equal protection.
The Due Process Clause has a substantive and a procedural component, and the deprivation of either may give rise to a claim under § 1983. Bigby v. City of Chicago, 766 F.2d 1053, 1058 (7th Cir. 1985). In order to establish a procedural due process claim, the plaintiff must show that she was deprived of liberty or property without having been given notice and an opportunity to be heard prior to the deprivation. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). A procedural due process claim pertains not to the deprivation itself but only to the adequacy of the procedures employed. Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 955-56 (7th Cir.1988). In the present case, plaintiff claims a property interest in obtaining public records but does not allege any defect in the procedure by which she was deprived of such interest.[13] Thus, her procedural due process claim against the City fails.
A substantive due process claim challenges governmental action regardless of the fairness of the procedure used to implement such action. Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir.1997). Most of the Supreme Court's substantive due process decisions involve the deprivation of some fundamental right that the Court characterizes as a liberty interest. See, e.g., Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (involving right to an abortion). In the present case, plaintiff claims that she has a liberty interest in protecting her reputation, which the City infringed by denying her open records requests. However, she provides no authority supporting the proposition that substantive due process includes the right to obtain public records in order to protect one's reputation.[14] Further, even if there were such a right, plaintiff presents no evidence indicating how her reputation was harmed or how the City's alleged failure to respond to her requests for records contributed to such harm. Thus, plaintiff's substantive due process claim against the City must also be dismissed.
Plaintiff also argues that the City had no rational basis for failing to adequately respond to her open records requests and that it therefore violated her right to equal protection. To establish an equal protection violation, plaintiff must allege that, based on some classification, the City treated her differently from similarly situated individuals. Olech, 528 U.S. at 564, 120 S.Ct. 1073 (holding that a "class of one" may bring a successful equal protection claim where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment). In the present case, plaintiff presents no evidence suggesting that the City acted with a discriminatory intent or that it treated similarly situated individuals differently than she. Thus, her equal protection claim against the City must also be dismissed.
*984 IV. STATE LAW CLAIMS
Plaintiff also brings several state law claims. Although it is not entirely clear, she appears to allege claims of battery and negligence against Garcia, as well as a claim under the state open records law against the City.
A. Claims Against Garcia
I have supplemental jurisdiction over state law claims "that are so related" to pending federal claims "that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). For claims to be part of the same case or controversy, they must arise out of a common nucleus of operative fact. Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995). "A loose factual connection between the claims is generally sufficient." Id. I have supplemental jurisdiction over plaintiff's state law claims against Garcia because they arise out of the same incident as her Fourth Amendment claim.
Garcia argues that he is immune from liability in connection with plaintiff's state law claims. Wis. Stat. § 893.80(4) affords municipal employees immunity from suit for "acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." The terms "quasi-legislative" or "quasi-judicial" are synonymous with "discretionary." Scarpaci v. Milwaukee County, 96 Wis.2d 663, 683, 292 N.W.2d 816 (1980). Plaintiff concedes that when Garcia pulled her arms he was performing a discretionary act, but she contends that his conduct fell within an exception to immunity under § 893.80(4) because it was "malicious, willful, and intentional." See Willow Creek Ranch, L.L.C. v. Town of Shelby, 235 Wis.2d 409, 425, 611 N.W.2d 693 (2000). "Malice" means "[t]he intent, without justification or excuse, to commit a wrongful act." Black's Law Dictionary 968 (7th ed.1999). "Reckless disregard of the law or a person's legal rights" can also constitute malice. Id.; see also Thurman, 197 F.Supp.2d at 1151. Garcia does not respond to plaintiff's contention that he is not immune because his conduct was malicious, willful and intentional.
Under state law, a police officer may be liable for the intentional tort of battery if he uses excessive force in making an arrest. See Kofler v. Florence, 216 Wis.2d 41, 45, 573 N.W.2d 568 (Ct.App. 1997). There is evidence in the record that Garcia unreasonably used enough force to cause plaintiff to suffer a torn ligament and chronic pain. Thus, taking the facts in the light most favorable to plaintiff, I cannot conclude as a matter of law that his conduct was not malicious, willful and intentional, or that a reasonable jury could not find that he committed a battery. Thus, with respect to plaintiff's battery claim against Garcia, defendants' motion for summary judgment will be denied.
In her complaint, plaintiff may also allege that Garcia was negligent. If so, however, plaintiff has abandoned this claim by failing to discuss or support it in her summary judgment briefs. Further, under § 893.80(4), Garcia would be immune from liability for mere negligence. Thus, any negligence claim will be dismissed.
B. Open Records Law Claim Against City
Plaintiff moves for summary judgment on the issue of liability on her claim under the state open records law. That claim, however, raises a host of issues that have not been adequately addressed in the briefs. Therefore, I will deny the motion without prejudice.
V. CONCLUSION
Therefore, for the reasons stated,
*985 IT IS ORDERED that defendants' motion for summary judgment on plaintiff's § 1983 claim against Garcia based on the Fourth Amendment is GRANTED in part and DENIED in part, as stated herein; defendants' motion for summary judgment on plaintiff's § 1983 claim against the City based on the Fourth Amendment is GRANTED; defendants' motion for summary judgment on plaintiff's § 1983 claims based on the Due Process and Equal Protection Clauses is GRANTED; and defendants' motion for summary judgment on plaintiff's state law negligence claim is GRANTED, and on plaintiff's state law battery claim is DENIED.
IT IS FURTHER ORDERED that plaintiff's motion for summary judgment on her claim that the City violated the state open records law is DENIED without prejudice.
NOTES
[1] Plaintiff also names as parties several John Doe defendants, although she appears to have abandoned any claims against them. Parties may be identified by fictitious names only under exceptional circumstances. Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir.1997) ("The use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts."). In the present case, plaintiff does not identify any exceptional circumstances; thus, any claims against unknown defendants will be dismissed, and the caption will be amended accordingly.
[2] "A seizure becomes an arrest when `a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.'" Ienco, 182 F.3d at 523 (quoting United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.1988)). Probable cause to arrest exists when the officers have facts and circumstances within their knowledge and of which they have reasonably trustworthy information that would sufficiently warrant a prudent person in believing that the suspect had committed or was committing the offense. United States v. Scheets, 188 F.3d 829, 839 (7th Cir.1999). There must be a "probability or substantial chance" of criminal activity by the suspect. United States v. Sawyer, 224 F.3d 675, 679 (7th Cir.2000).
[3] Defendants indicate that the dispatch report was prompted by a citizen who flagged down an officer and indicated that a female in a van possessed a gun. However, because the record does not disclose whether the citizen was identified, this can be analyzed as an "anonymous tip" case under Florida v. J.L. In United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Court held that a Terry stop based on a police bulletin or flyer from other officers is valid if the bulletin itself was based on articulable facts supporting reasonable suspicion. The present record does not disclose what additional information, if any (or from what source), the officers responsible for the dispatch possessed. Thus, construing the facts in plaintiff's favor, I can assume that the dispatch was based only on an anonymous tip.
[4] Plaintiff assumes, arguendo, that Garcia possessed reasonable suspicion to stop her but argues that at some point the stop evolved into a seizure. However, given the scant record and the Supreme Court's clear statement in Florida v. J.L., I cannot conclude as a matter of law that the stop was valid. In any event, plaintiff was subjected to a "seizure" under the Fourth Amendment at the moment she was pulled over by Garcia. See, e.g., Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ("[S]topping an automobile and detaining its occupants constitute a `seizure' within the meaning of [the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.").
[5] I need not determine whether the seizure evolved into an arrest without probable cause. Although the officers lacked probable cause to arrest (and defendants do not argue to the contrary), it is unclear whether this encounter reached the point of an actual arrest. See United States v. Rodriguez, 831 F.2d 162, 166 (7th Cir.1987) (discussing factors relevant in deciding whether Terry stop has become an arrest). In any event, this case is appropriately analyzed as a Terry stop in which unreasonably intrusive methods were allegedly employed. The standard of objective reasonableness applies to the methods employed in Terry stops and actual arrests.
[6] Although plaintiff argues that the actions of multiple officers caused the stop to be unlawfully intrusive, she names only Garcia as a defendant. However, defendants do not dispute that, if the stop was unlawfully intrusive, Garcia may be held liable for it. See, e.g., Watts v. Laurent, 774 F.2d 168, 179 (7th Cir. 1985) (stating that government actors may be held jointly and severally liable under § 1983).
[7] The Seventh Circuit has held that if further factual development is necessary to determine whether the officer is entitled to qualified immunity the court may deny the officer's pre-trial motion. See Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467, 476 (7th Cir. 1997). In the present case, further factual development is obviously needed to determine what exactly the officers knew and did at the time of the stop. In this decision, I hold only that construing the facts in the light most favorable to plaintiff, Garcia is not entitled to qualified immunity based on the manner in which the seizure was effected. See, e.g., Garvin v. Wheeler, 304 F.3d 628, 633 (7th Cir. 2002) (discussing denial of motion for summary judgment on qualified immunity grounds were there were genuine issues of material fact for trial).
[8] Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
[9] In DeBerry, the officer received a dispatch conveying an anonymous tip that at the corner of Main and Calhoun Streets was a black man wearing a tan shirt and tan shorts who had a gun in his waistband. The officer drove to that location and saw a man fitting the description. The officer approached the man and told him he wanted to talk to him. The man took several steps backward, turned slightly to the side, and moved his hands as if he might be about to draw a gun. The officer then drew his own gun and ordered the man to place his hands on the hood of the police car. When he complied, the officer holstered his gun. A backup officer arrived and the first officer then patted down the man and found a gun. Id. at 885. Thus, in DeBerry, the officers had more to go on than in the present case, where plaintiff made no furtive or threatening gestures. The holding of DeBerry therefore does not necessarily support Garcia's stop. Nevertheless, the court's dicta quoted above seems to.
[10] Moreover, because defendants fail to explain what the underlying felony was, it is impossible to accept their characterization of this seizure as one involving high risk.
[11] In McNair v. Coffey, 279 F.3d 463, 465 (7th Cir.2002), the court granted qualified immunity to an officer who participated in a "high risk" traffic stop: eight squads surrounded the plaintiff, and the officers ordered him out of the car at gun point. However, McNair is easily distinguishable. In that case, the officers had probable cause to arrest the suspect, he failed to "pull over for some time," and, once he exited the car, he was "not roughed up; matters were handled peaceably." Id. This case differs in critical respects: the officers lacked probable cause, their methods were more intrusive, and plaintiff was "roughed up."
[12] Plaintiff does not allege that the City failed to adequately train officers concerning the circumstances under which the sensory overload procedure was to be used.
[13] Wisconsin has a procedure by which aggrieved applicants can obtain public records its open records law. Under the law, if an applicant for a record believes that the record is being improperly withheld, she may bring an action to compel its disclosure and may obtain damages, costs and attorneys' fees. Wis. Stat. § 19.37. Plaintiff does not claim that this procedure is defective.
[14] The Supreme Court has held that mere injury to reputation does not constitute a deprivation of liberty. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 1162, 155 L.Ed.2d 98 (2003) (citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)).
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84 U.S. 322 (1872)
17 Wall. 322
UNITED STATES
v.
RAILROAD COMPANY.
Supreme Court of United States.
*324 Mr. G.H. Williams, Attorney-General, and Mr. S.F. Phillips, Solicitor-General, for the plaintiff in error; Messrs. J.H.B. Latrobe and I.N. Steele, contra.
Mr. Justice HUNT delivered the opinion of the court.
The defendants insist, firstly, that the section in question does not lay a tax upon the corporations therein named, and by whom the tax is payable, upon their own account, but *325 uses them as a convenient means of collecting the tax from the creditor, or stockholder, upon whom the tax is really laid. They insist as a consequence, secondly, that the present is a tax upon the revenues of the city of Baltimore; and, thirdly, that it is not within the power of Congress to tax the income or property of a municipal corporation.
1. The case of The Railroad Company v. Jackson,[*] decided in 1868, and Haight v. Railroad Company,[] are authorities in support of the first proposition. In the case first mentioned, Jackson, an alien non-resident, sought to recover from the railroad company the amount of the tax of 5 per cent. imposed upon the interest of bondholders by the act of 1864, and withheld by the company. A similar tax was imposed by the statutes of Pennsylvania. The plaintiff claimed that as he was an alien non-resident, it was not in the power of Congress, or of that State, to tax him. The courts of Pennsylvania had sustained the deduction. Mr. Justice Nelson, in delivering the opinion of this court, and in remarking upon the decision of those courts, "that the deduction from the prescribed income of the interest on these railroad bonds, when paid by companies, was regarded as simply a mode of collecting this part of the income tax," says: "We concur in this view. It is not important, however, to pursue this argument, as Congress has since, in express terms, by the acts of March 10th and July 13th, 1866, imposed a tax on alien non-resident bondholders. The question will be hereafter not whether the laws embrace the alien non-resident holder, but whether it is competent for Congress to impose it." In Haight v. Railroad Company it was held that a covenant by the corporation issuing the bond to pay the interest "without any deduction to be made for or in respect of any taxes, charges, or assessments," did not relieve Haight, who was a bondholder, from the deduction of the 5 per cent. authorized by the 122d section. The court below said that "the measure of the company's liability is expressed in the bond as being debt and interest only. It has nothing to do *326 with the taxes which the government may impose on the plaintiff for the interest payable to him... . The plaintiff pays no internal revenue tax on these bonds at his place of residence. It is, therefore, no case of double taxation. The tax should be paid somewhere, and it was to meet investments like this, in banks, railroads, &c., that the 122d section was passed." This opinion was adopted in this court, Mr. Justice Grier saying: "The facts in this case are correctly stated, and the law properly decided by the learned judge of the Circuit Court."
This is a clear, distinct, unqualified adjudication, by the unanimous judgment of this court, that the tax imposed by the 122d section is a tax imposed upon the creditor or stockholder therein named; that the tax is not upon the corporation, and that the corporation is made use of as a convenient and effective instrument for collecting the same. It is a sequence in logical connection with that provision of section 117,[*] which specifies as the subjects of individual taxation all the earnings, profits, gains, and income from whatever source derived, and whether divided or not, except the amount derived from the sources indicated in the 122d section. Of the incomes specified in section 117 the individual must make specific returns, and be directly taxed thereon. Upon or for the incomes received from the sources mentioned in section 122 no tax is directly imposed upon the owner. That tax is to be returned by, and collected from, the corporation as his agent and instrument.
A tax is understood to be a charge, a pecuniary burden, for the support of government. Of all burdens imposed upon mankind that of grinding taxation is the most cruel. It is not taxation that government should take from one the profits and gains of another. That is taxation which compels one to pay for the support of the government from his own gains and of his own property.
In the cases we are considering the corporation parts not with a farthing of its own property. Whatever sum it pays *327 to the government is the property of another. Whether the tax is 5 per cent. on the dividend or interest, or whether it be 50 per cent., the corporation is neither richer nor poorer. Whatever it thus pays to the government, it by law withholds from the creditor. If no tax exists, it pays 7 per cent., or whatever be its rate of interest, to its creditor in one unbroken sum. If there be a tax it pays exactly the same sum to its creditor, less 5 per cent. thereof, and this 5 per cent. it pays to the government. The receivers may be two, or the receiver may be one, but the payer pays the same amount in either event. It is no pecuniary burden upon the corporation, and no taxation of the corporation. The burden falls on the creditor. He is the party taxed.
In the case before us this question controls its decision. If the tax were upon the railroad, there is no defence. It must be paid. But we hold that the tax imposed by the 122d section is in substance and in law a tax upon the income of the creditor or stockholder, and not a tax upon the corporation.
The creditor here is the city of Baltimore, and the question then arises whether this tax can be collected from the revenues of that municipal corporation.
There is no dispute about the general rules of law applicable to this subject. The power of taxation by the Federal government upon the subjects and in the manner prescribed by the act we are considering, is undoubted. There are, however, certain departments which are excepted from the general power. The right of the States to administer their own affairs through their legislative, executive, and judicial departments, in their own manner through their own agencies, is conceded by the uniform decisions of this court and by the practice of the Federal government from its organization. This carries with it an exemption of those agencies and instruments, from the taxing power of the Federal government. If they may be taxed lightly, they may be taxed heavily; if justly, oppressively. Their operation may be impeded and may be destroyed, if any interference is permitted. *328 Hence, the beginning of such taxation is not allowed on the one side, is not claimed on the other.
In the "Compendium of Internal Revenue Law," by Davidge & Kimball, it is said,[*] "Congress may not tax the revenues of a State,"[] and also, "A national bank is not liable under the internal revenue laws to the tax upon dividends due a State on stock owned by the State."
Again:[] "The term corporation as used in the acts of Congress touching internal revenue does not include a State, consequently the income of the State of Georgia from the Western and Atlantic railroad, property owned, controlled, and managed by that State, has not been made by law a subject of taxation."
Again, "The term person as used in §§ 9 and 44 does not include a State. The receipts or certificates issued by the State of Alabama are not subject to the tax of 10 per cent. imposed by the act of Congress of March 25th, 1867."[§]
The inquiry then arises, what is the nature and character of municipal corporations, and what is their connection with the government of the State.
A work on corporations says,[§] that inferior and subordinate communities, imperia in imperio, such as cities and towns, ... are allowed to assume to themselves some of the duties of the State in a partial or detailed form, but having neither property nor power for the purposes of personal aggrandizement, they can be considered in no other light than as auxiliaries of the government, and as the secondary deputies and trustees and servants of the people.[¶]
It is said further by the same authority, the main distinction between public and private corporations is, that over the former the legislature, as guardian of the public interests, *329 has the exclusive and unrestrained control; and acting as such, as it may create, so it may modify or destroy, as public exigency requires or recommends, or the public interest will be best subserved. It possesses the right to alter, abolish, or destroy all such institutions, as mere municipal regulations must, from the nature of things, be subject to the absolute control of the government.[*] "Such institutions (it is added) are auxiliaries of the government in the important business of municipal rule."
A municipal corporation like the city of Baltimore, is a representative not only of the State, but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. The State may withdraw these local powers of government at pleasure, and may, through its legislature or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence. As a portion of the State in the exercise of a limited portion of the powers of the State, its revenues, like those of the State, are not subject to taxation. This proposition is very properly admitted by the counsel for the government. In their brief it is said, "We admit that municipal corporations, acting merely within the scope of their duties as such, are not to be included within general words imposing taxes upon persons or corporations." In support of this view is cited the proviso to the amendment in 1866, in these words: "Provided that it is the intent hereby to exempt from liability to taxation such State, county, town, or other municipal corporation, in the exercise only of functions strictly belonging to them in their ordinary governmental and municipal capacity."
Assuming for the argument that this qualification is well made, let us look at the facts of the case before us. The city of Baltimore, with a view to its commercial prosperity, was desirous of aiding in the construction of a railroad, by *330 which the commerce and business of the Western States would be brought to that city. For this purpose it was authorized by the legislature to issue its corporate bonds for $5,000,000, on which it was to obtain the money. The proceeds of these bonds, reserving 10 per cent. as a sinking fund, were to be paid to the railroad company. To secure the city against loss and to provide for the payment of the interest on the bonds of the city as it should, from time to time mature, and of the principal when payable, the railroad company were to execute a mortgage to the city upon its road and franchises and revenues. All this was done as agreed upon. The interest, secured by this mortgage, has, from time to time, been paid by the railroad company to the city, and it is a tax (under the 122d section before referred to) upon the interest thus paid, that the plaintiff now seeks to recover.
That the State possessed the power to confer this authority upon the city, we see no reason to doubt.[*]
Was it exercised for the benefit of the municipality, that is in the course of its municipal business or duties? In other words, was it acting in its capacity of an agent of the State, delegated to exercise certain powers for the benefit of the municipality called the city of Baltimore? Did it act as an auxiliary servant and trustee of the supreme legislative power? The legislature and the authorities of the city of Baltimore decided that the investment of $5,000,000 in aid of the construction of a railroad, which should bring to that city the unbounded harvests of the West, would be a measure for the benefit of the inhabitants of Baltimore and of the municipality. This vast business was a prize for which the States north of Maryland were contending. Should it endeavor by the expenditure of this money or this credit to bring this vast business into its own State, and make its commercial metropolis great and prosperous, or should it refuse to incur hazard, allow other States to absorb this commerce, and Baltimore to fall into an inferior position? *331 This was a question for the decision of the city under the authority of the State. It was a question to be decided solely with reference to public and municipal interests. The city had authority to expend its money in opening squares, in widening streets, in deepening rivers, in building common roads or railways. The State could do these things by the direct act of its legislature, or it could empower the city to do them. It could act directly or through the agency of others. It is not a question to be here discussed, whether the action proposed would in the end result to the benefit of the city. It might be wise, or it might prove otherwise. The city was to reap the fruits in the advanced prosperity of all its material interests, if successful. If unsuccessful, the city was to bear the load of debt and taxation, which would surely follow. The city had the power given it by the legislature to decide the question. It was within the scope of its municipal powers.
This advance of the city bonds was not a donation. It was an investment supposed to be judiciously made and adequately secured. It was not for the individual benefit of those managing the business. No one received advantage except as he was a citizen or his property was within the city. It was not a loan for the benefit of the railroad; it was for the benefit of the city solely. That the railroad company was also benefited did not affect the purpose of the transaction.
It is said by the counsel for the United States that municipal corporations are those that are created irrespective of those who are associated therein, and that the powers are given and withheld upon grounds which concern the public at large. It is not necessary to discuss the question whether this city is a municipal corporation. If there can exist a municipal corporation, as that expression is generally understood, the cities of this country, like Baltimore, Philadelphia, and New York, fall within the definition. The power in question was conferred because its exercise concerned the public and to benefit that public. This power could no doubt have been imposed upon the city as a duty, and its *332 exercise directed without the assent or against the wish of the corporation or its citizens. The State could do it directly for and on behalf of the city, and without its intervention. The city could act only by authority from the State. The State is itself supreme, and needs no assent or authority from the city. It is not perceived that the act is less public and municipal in its character than if the State had compelled the city to lay the tax and to make the appropriation of the proceeds to the railroad company. In The Town of Guilford v. The Board of Supervisors of Chenango County,[*] it was held:
1. That the legislature has power to levy a tax upon the taxable property of a town, and appropriate the same to the payment of a claim made by an individual against the town.
2. That it is not a valid objection to the exercise of such power, that the claim to satisfy which the tax is levied is not recoverable by action against the town.
3. That it does not alter the case that the claim has been rejected by the voters of the town, when submitted to them at a town meeting, under an act of the legislature authorizing such submission and declaring that their decision should be final and conclusive.
The action is no less a portion of the sovereign authority, when it is done through the agency of a town or city corporation.
We admit the proposition of the counsel, that the revenue must be municipal in its nature to entitle it to the exemption claimed. Thus, if an individual should make the city of Baltimore his agent and trustee to receive funds, and to distribute them in aid of science, literature, or the fine arts, or even for the relief of the destitute and infirm, it is quite possible that such revenues would be subject to taxation. The corporation would therein depart from its municipal character, and assume the position of a private trustee. It would occupy a place which an individual could occupy with equal propriety. It would not in that action *333 be an auxiliary or servant of the State, but of the individual creating the trust. There is nothing of a governmental character in such a position. It is not necessary, however, to speculate upon hypothetical cases. We are clear in the opinion that the present transaction is within the range of the municipal duties of the city, and that the tax cannot be collected.
JUDGMENT AFFIRMED.
Mr. Justice BRADLEY:
I concur in the judgment of the court in this case, without deciding whether Congress can or cannot tax the property of municipal corporations. I concur in the judgment on the ground that Congress did not intend by the internal revenue laws to tax property belonging to the States or to municipal corporations. This is apparent from the language of the 116th section of the Internal Revenue Act of 1864. I also concur in the construction given by the opinion to the Internal Revenue Act, that the tax imposed by the 122d section of that act was substantially a tax on the stock and bondholders, and not on the railroad or canal companies.
Mr. Justice CLIFFORD (with whose dissent and views concurred Mr. Justice MILLER), dissenting:
I dissent from the opinion and judgment of the court.
Property owned by a municipal corporation and used as means or instruments for conducting the public affairs of the municipality may not be subject to Federal taxation, as it may perhaps be regarded as falling within the implied exemption established by a recent decision of this court.[*]
Well-founded doubts, however, may arise even upon that subject, as the tax in that case was levied directly upon the salary of a judicial officer, and the opinion of the court is carefully limited to the case then before the court. But concede, for the sake of the argument, that the means and instruments for conducting the public affairs of the municipality *334 are entitled to the same exemption from such taxation as the revenues of the State, it by no means follows that the private property owned by such a corporation, and held merely as private property in a proprietary right, and used merely in a commercial sense for the income, gains, and profits, is not taxable just the same as property owned by an individual, or any other corporation. Such a right is one which may be of great value to the government in time of war and imminent public danger, and one which the United States ought never to surrender.
Corporations of the kind are very numerous and they may and often do own large amounts of bank stock, bonds, and stocks of railroads, vacant lots and other real estate of great value, and many other species of personal property and choses in action never used or intended to be used as means or instruments for conducting the public affairs of the municipality, and in respect to all such property the right of Congress to pass laws subjecting the same to taxation with the property of the citizens generally is as clear, in my judgment, as it is that the power to lay and collect taxes, duties, imposts, and excises is vested by the Constitution in the national legislature.[*]
It was decided by this court, in the case of Vidal v. Girard's Executors,[] that the corporation of the city of Philadelphia had the power under its charter to take real and personal estate by deed and also by devise, inasmuch as the English statute which excepted corporations from taking such properties in the former mode was not in force in that State; that where a corporation has this power it may take and hold property in trust in the same manner and to the same extent as a private person may do, even though the trust is not strictly within the scope of the direct purposes of the charter of the municipality.
Ten years later this court affirmed that same rule in the *335 case of The Executors of McDonogh v. Murdoch[*] which gave three millions of dollars to the city of Baltimore and more than a half-million of dollars to the city of New Orleans. Both of those corporations, it was held in that case, were empowered to take the property by devise, as the laws of the respective States do not prohibit such dispositions of property in their favor, affirming the principle that such corporations may take real and personal estate by deed or devise, and that they hold such property in trust in the same manner and to the same extent as private persons, and the statistics will show that such corporations have become the grantees or devisees of vast amounts of personal and real estate, and that many of them still hold and enjoy the same for the income, rents, and profits.
Apply the rule here suggested to the case before the court and it is clear, whether it be held that the tax was levied upon the municipal corporation or the railroad company, that the judgment should be reversed.
NOTE.
Soon after the opinion of the court in the preceding case was delivered, a motion was made by Messrs. Gowen, Biddle, and Cuyler, the counsel of the different railroad companies, in the case of Barnes v. Railroad Companies, decided five weeks before it, for a rehearing of that case; the grounds of the motion being the obvious and irreconcilable contradiction between the language in one of the opinions given in the first case (see supra, pp. 302-3, 309), which opinion the learned counsel assumed to be the opinion of the court and the opinion of the court in the second case (see supra, pp. 326-7); a contradiction which the counsel exhibited by a juxtaposition of passages in the two opinions.
And now, April 28th, 1873, the Chief Justice announced the order of the court
DENYING THE MOTION.[]
NOTES
[*] 7 Wallace, 262.
[] 6 Id. 17.
[*] See this section quoted supra, p. 295.
[*] Page 505; citing Sayles v. Davis, 22 Wisconsin, 229.
[] Page 485; citing 12 Opinions of the Attorneys-General, 402.
[] Page 471; citing State of Georgia v. Atkins, Collector, 8 Internal Revenue Record, 113.
[§] 12 Opinions of the Attorneys-General, 176.
[§] Angel & Ames on Corporations, § 16 et seq.
[¶] 2 Kent, 4th ed. 274, and De Tocqueville Democratie, 1, 64, 96.
[*] Angel & Ames on Corporations, § 31.
[*] Gelpcke v. Dubuque, 1 Wallace, 202; Rogers v. Burlington, 3 Id. 664.
[*] 3 Kernan, 143.
[*] The Collector v. Day, 11 Wallace, 113.
[*] McCulloch v. Maryland, 4 Wheaton, 434; Louisville v. Commonwealth, 1 Duvall, 295; National Bank v. Commonwealth, 9 Wallace, 353; Veazie Bank v. Fenno, 8 Id. 533.
[] 2 Howard, 127.
[*] 15 Howard, 367.
[] No reasons were assigned for the order. The reader will have perceived, probably, that notwithstanding the inconsistency of language in the opinion relied on by counsel in the former case, with that expressing the opinion of the court in the latter, the judgments of the court in the two cases are in no way inharmonious. And the Reporter has already noted in his syllabus of the former case that the judgment in it was given by a court nearly equally divided, and that the majority of the court who agreed in the judgment did not agree in the grounds of it.
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540 U.S. 946
PAW PAW'S CAMPER CITY, INC.v.JIMENEZ.
No. 03-74.
Supreme Court of United States.
October 14, 2003.
1
Appeal from the C. A. 5th Cir.
2
Certiorari denied. Reported below: 64 Fed. Appx. 417.
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954 F.2d 732
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Graydon Roger BOLES, Petitioner/Appellant,v.Edward J. DERWINSKI, Secretary of Veterans Affairs,Respondent/Appellee.
No. 91-7072.
United States Court of Appeals, Federal Circuit.
Oct. 11, 1991.
Before PAULINE NEWMAN, MAYER and MICHEL, Circuit Judges.
ORDER
MICHEL, Circuit Judge.
1
The Secretary of Veterans Affairs asserts that this court lacks jurisdiction over the sole issue presented on appeal. We agree and dismiss for lack of jurisdiction.
2
On May 2, 1990, the Board of Veterans Appeals denied Boles' second claim for entitlement to "service connection" for an alleged acquired psychiatric disorder, including post-traumatic stress disorder. The Board reaffirmed that his schizophrenia was not incurred in or aggravated by active service and determined that no new factual basis warranting entitlement had been presented. On April 22, 1991, the Court of Veterans Appeals, in No. 90-524, summarily affirmed the Board's decision.
3
The Veterans Judicial Review Act bars this court from reviewing "a challenge to a factual determination, ... or a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 4092(d)(2) (1988), redesignated as § 7292(d)(2).* Because Boles' informal brief focuses upon his disagreement with factual determinations of the Board, as affirmed by the Court of Veterans Appeals, and because he does not present a bona fide challenge to a "question of law," our review is barred. 38 U.S.C. § 4092(d)(1) (1988), redesignated as § 7292(d)(2). In answer to question three of the informal brief, "[d]id the trial court apply the wrong law?," Boles responds, "[p]erhaps the COVA did apply the wrong law.... Petitioner is of the opinion that 38 C.F.R. § 3.102 and § 3.103(b) [sic] should be applied." Boles' challenge thus clearly concerns only the application of the regulations of the facts of his case.
4
In the recent decision of Machado v. Derwinski, 928 F.2d 389, 391 (Fed.Cir.1991), we held that the Veterans Judicial Review Act "authorize[s] this court to review non-factual decisions of the Veterans Court" (emphasis added). As Boles challenges only factual decisions made by the Veterans Court, Boles' appeal falls beyond the limited jurisdiction of this court. Cf. Lee v. Office of Personnel Management, 762 F.2d 987, 988 (Fed.Cir.1985) (dismissing for lack of jurisdiction where a single factual issue was presented on appeal, because review of factual determinations by Office of Personnel Management in disability cases is barred).
5
Accordingly,
IT IS ORDERED THAT:
6
The appeal is dismissed for lack of jurisdiction.
*
See Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102-40, § 402(b)(1), 105 Stat. 187, 238-39
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAQUAN JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta C. Biggs, District Judge. (1:16-cr-00420-LCB-1)
Submitted: January 29, 2018 Decided: February 5, 2018
Before DUNCAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. Stephen Thomas Inman, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Taquan Jones pled guilty, pursuant to a written plea agreement, to possession of a
firearm by a convicted felon, in violation of 21 U.S.C. §§ 922(g)(1), 924(a)(2) (2012).
The district court sentenced Jones to 57 months’ imprisonment, the top of the 46- to 57-
month advisory Sentencing Guidelines range. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but questioning whether Jones’ sentence is greater than
necessary to accomplish the sentencing goals enumerated in 18 U.S.C. § 3553(a) (2012).
Although advised of his right to do so, Jones has not filed a pro se supplemental brief.
The Government declined to file a brief. After a thorough review of the record, we
affirm.
We review Jones’ sentence for procedural and substantive reasonableness,
applying “a deferential abuse-of-discretion standard.” United States v. McDonald, 850
F.3d 640, 643 (4th Cir.) (internal quotation marks omitted), cert. denied, 138 S. Ct. 208
(2017). First, we “ensure that the district court committed no significant procedural error,
such as . . . improperly calculating[] the Guidelines range, failing to consider the
§ 3553(a) factors, selecting sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
If there is no procedural error, we must also consider the substantive reasonableness of
Jones’ sentence, “examin[ing] the totality of the circumstances to see whether the
sentencing court abused its discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” United States v. Gomez-Jimenez, 750 F.3d 370, 383
2
(4th Cir. 2014) (internal quotation marks omitted). A sentence must be “sufficient, but
not greater than necessary,” to accomplish the goals set forth in 18 U.S.C. § 3553(a).
“Any sentence that is within . . . a properly calculated Guidelines range is presumptively
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). “Such a
presumption can only be rebutted by showing that the sentence is unreasonable when
measured against the 18 U.S.C. § 3553(a) factors.” Id.
Here, the court correctly calculated Jones’ advisory Guidelines range, heard
argument from counsel, provided Jones an opportunity to allocute, and considered the
§ 3553(a) sentencing factors. We conclude that Jones’ within-Guidelines sentence is
both procedurally and substantively reasonable.
Accordingly, we affirm the judgment of the district court. In accordance with
Anders, we have reviewed the record in this case and have found no meritorious issues
for appeal. This court requires that counsel inform Jones, in writing, of the right to
petition the Supreme Court of the United States for further review. If Jones requests that
a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jones. 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
3
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249 S.W.3d 174 (2006)
Mikael HUGENBERG, Appellant,
v.
WEST AMERICAN INSURANCE COMPANY/OHIO CASUALTY GROUP, Appellee.
Donald Fritz; Peggy Fritz; and Bradley J. Fritz, a Minor, by and through his Parents, Donald and Peggy Fritz, Appellants,
v.
Mikael J. Hugenberg, a Minor; Jack Hugenberg; Susan Hugenberg; Randy Dauwe; Thomas Honebrink; and The Highland Cemetery, Appellees.
Donald Fritz; Peggy Fritz; and Bradley J. Fritz, a Minor, by and through his Parents, Donald and Peggy Fritz, Appellants
v.
West American Insurance Company/Ohio Casualty Group; Mikael J. Hugenberg, a Minor; Jack Hugenberg; Susan Hugenberg; Randy Dauwe; Thomas Honebrink; and The Highland Cemetery, Appellees.
Donald Fritz; Peggy Fritz; and Bradley J. Fritz, a Minor, by and through his Parents, Donald and Peggy Fritz, Appellants
v.
Liberty Mutual Insurance Company; Mikael J. Hugenberg, a Minor; Jack Hugenberg; Susan Hugenberg; Randy Dauwe; Thomas Honebrink; and The Highland Cemetery, Appellees.
Jack Hugenberg; Susan Hugenberg; Appellants and Mikael J. Hugenberg, a Minor, by and through his Parents, Jack and Susan Hugenberg, Appellants
v.
Liberty Mutual Insurance Company; Peggy Fritz; Donald Fritz; Bradley J. Fritz, a Minor, by and through his Parents, Donald and Peggy Fritz; Randy Dauwe; Thomas Honebrink; and The Highland Cemetery, Appellees.
Nos. 2004-CA-001472-MR, 2004-CA-001490-MR, 2004-CA-001491-MR, 2004-CA-002127-MR, 2004-CA-002172-MR.
Court of Appeals of Kentucky.
April 7, 2006.
*179 E. André Busald, Florence, KY, for appellants and appellees Jack Hugenberg; Susan Hugenberg; and Mikael J. Hugenberg, a Minor, by and through his Parents, Jack and Susan Hugenberg.
Robert E. Sanders, Delana S. Pierce, Covington, KY, for appellants and appellees Donald Fritz; Peggy Fritz; and Bradley J. Fritz, a Minor, by and through his Parents, Donald and Peggy Fritz.
Jeffrey A. Stepner, Donald L. Stepner, Covington, KY, for appellee West American Insurance Company/Ohio Casualty Group.
Michael P. Foley, Cincinnati, OH, for appellee Liberty Mutual Insurance Company.
Before BARBER, MINTON, and TACKETT, Judges.
OPINION
MINTON, Judge.
The matter before us concerns five separate appeals. They have not been consolidated, but we heard them together because all arise from three interrelated Kenton Circuit Court cases concerning the same motor vehicle accident. We affirm the summary judgments entered in Case Nos. 2004-CA-001490-MR, 2004-CA-001472-MR, and 2004-CA-001491-MR. We reverse the summary judgments entered in Case Nos. 2004-CA-002127-MR and 2004-CA-002172-MR and remand to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY.
On Saturday, September 18, 1999, fifteen-year-old Mikael Hugenberg (Mikael)[1] convinced Randy Dauwe (Dauwe) to buy him two twelve-packs of beer. Dauwe was the boyfriend of Annie Hugenberg (Annie), Mikael's older sister. Dauwe left the beer in the trunk of his unlocked car, which was parked on the street near the Hugenbergs' house, and departed with Annie in her car. Although Mikael had no driver's license or learner's permit, he decided that he would drive Dauwe's car rather than walk to his destination carrying the beer.[2] That night, Mikael, Bradley Fritz (Brad),[3] and Blake Gehring (Gehring) each drank some of the beer at the home of Ryan Arlinghaus (Arlinghaus), whose parents were out for the evening.[4] Mikael then drove Brad and Gehring to another teen gathering in The Highland Cemetery (the cemetery) near the resident caretaker's house. Mikael, Brad, and Gehring may have drunk more beer there. Later, Mikael drove through the cemetery with Brad and Gehring as passengers when he lost control of the car, hitting a tree. As a result of the crash, Brad suffered serious and *180 permanent injuries, including brain damage.
Brad's parents, Donald and Peggy Fritz (the Fritzes), filed suit on their own behalf and on Brad's behalf demanding judgment for Brad's injuries against Mikael; his parents, Jack and Susan Hugenberg (the Hugenbergs); Dauwe; the cemetery; and Thomas Honebrink,[5] the cemetery caretaker.[6] The only claim against the Hugenbergs was for negligent supervision of Mikael. After summary judgment was granted in the Hugenbergs' favor, the Fritzes appealed (collectively, "the Fritz appellants").[7]
At the time of the accident, the Hugenbergs had both a homeowner's insurance policy and an auto insurance policy with West American Insurance Company/Ohio Casualty Group (West American). West American filed a separate declaratory judgment action (Case No. 00-CI-02584), seeking a declaration that there was no liability coverage available under either policy for the Hugenbergs or Mikael for the claims raised against them in the underlying personal injury suit. The trial court granted summary judgment in favor of West American. Mikael and the Fritz appellants have separately appealed this summary judgment.[8]
Dauwe had an auto insurance policy with Liberty Mutual Insurance Company (Liberty Mutual) at the time of the accident. Liberty Mutual also filed a separate declaratory judgment action (Case No. 01-CI-00209), seeking a declaration that there was no liability coverage under Dauwe's auto policy for the claims raised against Mikael. Liberty Mutual also sought a declaration that it owed no contractual duty to defend Mikael. Summary judgment was granted in favor of Liberty Mutual. The Hugenbergs have filed an appeal of this summary judgment on their own behalf and on behalf of Mikael (collectively, "the Hugenberg appellants").[9] The Fritz appellants have also separately appealed.[10]
The general issues before the Court in these five appeals are:
1) Whether a genuine issue of material fact exists as to the alleged negligence of the Hugenbergs in supervising their son, Mikael;
2) Whether a genuine issue of material fact exists as to coverage under the Hugenbergs' homeowner's insurance policy with West American;
3) Whether a genuine issue of material fact exists as to coverage under the Hugenbergs' auto insurance policy with West American; and
4) Whether a genuine issue of material fact exists as to coverage under Dauwe's auto insurance policy with Liberty Mutual.
II. STANDARD OF REVIEW.
Summary judgment is proper only if the movant demonstrates "that the adverse *181 party could not prevail under any circumstances."[11] However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial."[12] "In the analysis, the focus should be on what is of record rather than what might be presented at trial."[13] In ruling on a motion for summary judgment, the trial court must view the facts and all inferences reasonably drawn from them in the light most favorable to the party opposing the motion.[14] And, on appeal, we must determine whether the trial court correctly found that there were no genuine issues of material fact and that the moving party was entitled to summary judgment as a matter of law.[15] Because findings of fact are not at issue, we need not defer to the trial court.[16]
III. ANALYSIS.
A. There is no Genuine Issue of Material Fact Regarding the Summary Judgment Claim in Favor of the Hugenbergs on the Negligent Supervision Claim.
The Fritz appellants assert that the trial court erred in granting summary judgment on the negligent supervision claim because there are material questions of fact concerning whether the Hugenbergs were negligent in their supervision of their minor son, Mikael, and whether this negligence contributed to the injuries suffered by Brad. While negligent parental supervision can give rise to a viable cause of action, the Fritz appellants have failed to present any facts that raise a jury question.
1. The Elements of the Tort of Negligent Supervision.
The essence of a negligent supervision claim is that the parent's "failure to exercise due care has made it possible and probable that the child would injure another."[17] A negligence action requires proof of: (1) a duty on the part of the defendant; (2) a breach of that duty; and (3) a consequent injury, which consists of actual injury or harm, plus legal causation linking the defendant's breach with the plaintiff's injury.[18] Kentucky's highest court has cited, with approval, the following description of a parent's duty to supervise or control the minor child:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.[19]
*182 The existence of a parent's duty to control a minor child largely turns on the foreseeability of the child's injurious conduct. For a child's act to be foreseeable, it is not necessary that the child have committed that same act before. A duty to control the child may also arise where the child previously has committed a very similar act and there are circumstances making it foreseeable that the child might later commit the specific act at issue.
In Moore v. Lexington Transit Corp., the Court found that a material question of fact existed regarding a mother's negligence in failing to prevent her eight-year-old child from opening a car door into a moving bus, even though the child allegedly had never opened his door without direction before.[20] But, on multiple occasions, the mother had let the child open the door into the bus lane and exit the car at the dangerous intersection where the accident happened.[21] Also, at the time of the accident, there were children in the crosswalk at the intersection.[22] Under these circumstances, the Court reasoned that the mother might well have foreseen that her young son might anticipate and open the door without her direction in his eagerness to join the other children on the way to school.[23]
Parents are not required to be prescient, however. Thus, in James v. Wilson,[24] this Court affirmed a summary judgment in favor of the parents of a high-school student, who shot several classmates, on the claim of negligent supervision because there was no evidence that the son had exhibited any behavior that should have placed his parents on notice that they needed to prevent him from shooting his classmates.[25]
When determining whether a child's injurious conduct was foreseeable, the trial court should consider only those facts that the parents knew, or should have known, about before the incident at issue.[26] This determination must be made considering the facts from the perspective of the parents before the incident with every attempt to eliminate the distorting effects of hindsight.[27]
2. The Hugenbergs Owed No Duty to the Fritz Appellants Because Mikael's Actions Were Not Foreseeable.
There is insufficient evidence to raise a material question of fact about whether the Hugenbergs were aware, or should have been aware, of the need to prevent their fifteen-year-old son from drinking and driving under the influence of *183 alcohol on September 18, 1999. The Fritz appellants do not assert that the Hugenbergs had actual knowledge that Mikael was drinking alcohol or driving, much less both, on the night of the accident. And they offer no evidence showing that Mikael had ever driven under the influence of alcohol before. Nevertheless, the Fritz appellants assert that the accident was foreseeable based on a few previous incidents when Mikael had drunk alcohol or had driven a car.
The Hugenbergs only knew of Mikael drinking on two occasions. Once, possibly as long as eleven months earlier, Mikael and some other teenagers drank beer in the woods behind the cemetery. One of the boys called the Hugenbergs to fetch Mikael because he was acting strangely. The Hugenbergs could tell that Mikael had been drinking but thought his condition was due as much to being extremely cold as to being intoxicated. He was lectured by both parents about drinking before he was of legal age. He was grounded and had his privileges curtailed for a time. He was also warned that if he drank again, his parents would not sign the permission form for him to get his learner's permit when he turned sixteen.
They later learned that Mikael also drank alcohol at a party thrown by a girl whose parents were out of town.[28] When confronted, he admitted that he drank at the party. And he was again punished.
On another occasion, Thomas Honebrink called the Hugenbergs to inform them that Mikael was at a particular girl's house; that he had heard that there were no parents present; and that some of the teens, apparently, planned to drink alcohol. Mikael's father picked him up immediately. He saw no alcohol present, and Mikael had not been drinking. Nevertheless, Mikael was punished by his parents, apparently for being at a house without parental supervision and for not being where he said he was going to be.
The Fritzes have presented some testimony indicating that Mikael drank alcohol on other occasions and that he may have been reckless or out of control when he drank. But they have offered no evidence showing that the Hugenbergs knew, or should have known, of these incidents.
Regarding Mikael's driving, Jack Hugenberg testified that he was not aware until after the accident that Mikael had ever driven a car before. Susan Hugenberg testified that she knew of only one incident when she let Mikael practice driving in the cemetery with her in the passenger seat several weeks before the accident. Some of the appellants have presented some evidence indicating that Mikael may have driven on other occasions; but they have offered no evidence indicating that the Hugenbergs knew, or should have known, about these other incidents.
The Fritz appellants assert that "[a]ny reasonable person or parent should have foreseen that if a child with this drinking problem is allowed to continue to drink and is also allowed to operate a motor vehicle, both in violation of the law, that the two illegal acts would inevitably and eventually combine, causing injury to someone." We disagree. We do not think that the knowledge of one driving lesson with his mother, two isolated incidents of drinking, and one incident of being in an unsupervised house with peers who may have intended to drink were sufficient to render Mikael's conduct on the night of September 18, 1999, foreseeable.
*184 The Fritz appellants have criticized the Hugenbergs' efforts to discipline Mikael for drinking as ineffectual, pointing out other steps they might have taken. But parents are under no duty "to take precautionary disciplinary measures or to regulate their children's behavior on an ongoing basis . . . to prevent their children from ever entering into a situation where they might commit a negligent act[,]"[29] unless they know, or should know, of a specific need to prevent their child from committing an injurious act. This is true even when the child's prior conduct has not been perfect.[30] Even if drastic punitive measures might have prevented the automobile accident in this case, this does not mean that the Hugenbergs' failure to impose such measures constitutes negligent supervision. Because Mikael's conduct on the night of the accident was not foreseeable, the Hugenbergs were under no duty to take measures to prevent this conduct.
3. The Hugenbergs Owed No Duty to the Fritz Appellants Because Mikael Was Not Under the Hugenbergs' Immediate Control.
We also find that the Fritz appellants have presented no evidence establishing that the Hugenbergs had the actual ability to control Mikael sufficiently to prevent him from drinking alcohol and driving under the influence on the night of the accident. The duty to control one's child and prevent injurious behavior depends, in part, on the actual, physical ability to do so.
In Moore, the court held that the mother's actual ability to control her son and prevent him from opening the car door could not be disputed because she was in the vehicle with him.[31] In contrast, this Court found in James that the fact that the son was not in the "immediate control of his parents" when he stole the gun and ammunition used in the shootings from a third party, nor when the actual shootings occurred at school, served as an additional reason for upholding the summary judgment dismissing the negligent supervision claim against the parents.[32]
The Fritz appellants try to distinguish James on the ground that the shootings happened at school where the parents were required by law to send their son but were not permitted to supervise him. The Hugenbergs were not required by law to permit Mikael to go out and socialize with his friends on a Saturday night. Therefore, the Fritz appellants reason that the fact that Mikael was not in his parents' immediate control when all the relevant acts occurred on the night of the accident is proof of the Hugenbergs' negligent supervision. This argument ignores the fact that part of the negligence claim in James was based on the fact that the son was able to steal the gun and ammunition from a third party without his parents noticing. Thus, the Court's decision affirming the summary judgment in favor of the parents on the negligent supervision claim did not turn on the fact that the shootings occurred at school where the parents were unable to supervise their son personally.
It is not negligent supervision per se for parents to fail to monitor their *185 teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring. Parents owe no duty to third parties to supervise or control their minor child to prevent the child from harming others unless the parents know, or should know, of the need and opportunity to exercise such control and the parents have the ability to exercise such control. The mere fact that the parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty to control their child to prevent him from harming others.
The Fritz appellants have not presented any evidence to establish either that the Hugenbergs knew, or should have known, of a need to prevent Mikael from drinking and driving and of an opportunity to prevent him from doing so or that the Hugenbergs had the actual, physical ability to have prevented Mikael from drinking and driving on the evening of September 18, 1999. Therefore, summary judgment was properly granted on the negligent supervision claim.
B. There is no Genuine Issue of Material Fact Regarding the Coverage Under the Hugenbergs' Homeowner's Insurance Policy with West American.
Mikael and the Fritz appellants separately have appealed the trial court's summary judgment in favor of West American on the issue of the lack of coverage under the homeowner's policy for Mikael or the Hugenbergs based on "the motor vehicle exclusion" in the policy. The provision states, in relevant part, that the policy's coverage provisions for personal liability and medical payment to others "do not apply to `bodily injury' . . . [a]rising out of . . . [t]he ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned to an `insured.'"
In their briefs, both sets of appellants assert that the motor vehicle exclusion does not apply to the Hugenbergs because the negligent supervision claim against them is not one "arising out of" their use of a motor vehicle. We will address the appeals of this summary judgment separately because there are procedural issues complicating the appeal filed by Mikael.
1. Appeal by the Fritz Appellants.
a. Standards for Interpreting Insurance Contracts.
Interpretation of insurance contracts is generally a matter of law to be decided by the court.[33] As such, it is subject to de novo review on appeal.[34] Under the reasonable expectation doctrine, ambiguous terms in an insurance contract must be interpreted in favor of the insured's reasonable expectations and construed as an average person would construe them.[35] But "[o]nly actual ambiguities, not fanciful ones, will trigger application of the doctrine."[36] Absent ambiguity, terms in an insurance contract are to be construed according to their "plain and ordinary meaning."[37] Insurance polices should be construed according to the parties' mutual understanding at the time *186 they entered into the contract, with this mutual understanding to be deduced, if at all possible, from the language of the contract itself.[38] Exceptions and exclusions in insurance policies are to be narrowly construed to effectuate insurance coverage.[39] But "[r]easonable conditions, restrictions, and limitations on insurance coverage are not deemed per se to be contrary to public policy."[40]
b. The Motor Vehicle Exclusion is Clear and Unambiguous.
The doctrine of reasonable expectation does not come into play in the instant case because the motor vehicle exclusion in the Hugenbergs' homeowner's policy with West American is clear and unambiguous. It is true that the Hugenbergs did not use or operate a motor vehicle. But the policy does not just deny liability coverage to an insured for any bodily injury arising out of the use of a motor vehicle operated by that same insured. Instead, it denies liability coverage for a bodily injury arising out of the use of a motor vehicle "operated by . . . an `insured.'" Based on the plain meaning of this exclusion, coverage for any and all insureds would be denied where the claim was for bodily injury arising out of the use of a motor vehicle operated by any insured.
c. "Arising Out of . . ." Requires a Causal Connection.
It is undisputed that Mikael used a motor vehicle. It is also clear that he is "an `insured'" within the meaning of the motor vehicle exclusion. The term "insured" is defined in the policy as follows: "`Insured' means you and residents of your household who are: a. Your relatives; or b. Other persons under the age of 21 and in the care of any person named above." Elsewhere in the definitions section, the policy states as follows: "In this policy `you' and `your' refer to the `named insured' shown in the Declarations and the spouse if a resident of the same household." Both the Hugenbergs are listed as named insureds. It is undisputed that Mikael is their son and that at the time of the accident, he lived in their household and was under the age of 21. Therefore, according to the homeowner's policy, Mikael is an "insured."
The only remaining question is whether the negligent supervision claim against the Hugenbergs is a claim for "`bodily injury' . . . [a]rising out of . . . [t]he ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned to an `insured[.]'"
The answer turns largely on the meaning of the phrase "arising out of." This phrase has been construed expansively:
The words `arising out of * * * use' in an automobile liability insurance policy, are broad, general and comprehensive terms meaning `originating from,' or `having its origin in,' `growing out of' or `flowing from'. . . . All that is required to come within the meaning of the words `arising out of the * * * use of the automobile' is a causal connection with the accident.[41]
*187 Thus, we must determine whether the negligent supervision claim against the Hugenbergs is causally connected with Mikael's automobile accident.
d. The Negligent Supervision Claim is a Claim "Arising Out of" the Use of a Motor Vehicle by an Insured.
The Hugenberg appellants assert that the negligent supervision claim is not a claim arising out of the use of a motor vehicle because the negligent acts or omissions asserted against them do not necessarily involve the use of a motor vehicle, as would be the case if they were accused of negligently entrusting Mikael with a car, for example. But no cause of action lies for negligence unless the plaintiff has suffered a legally-cognizable injury or damage. The negligent supervision claim against the Hugenbergs is based on the bodily injury suffered by Brad in the motor vehicle accident. If not for Mikael's losing control of the car and injuring his passenger, Brad, there could be no claim for negligent supervision against the Hugenbergs because Brad and the Fritzes would have suffered no injury, an essential element of the tort. The negligent supervision claim is based upon Brad's injuries, and Brad's injuries were caused by Mikael's use of Dauwe's car. This satisfies the causal connection between the use of the motor vehicle and the negligent supervision claim, which is required by the "arising out of" language in the motor vehicle exclusion.
Based on the plain meaning of the clear and unambiguous language of the policy, the claim for negligent supervision is a claim seeking coverage for bodily injury arising out of the use of a motor vehicle. The trial court properly entered summary judgment in favor of West American regarding the homeowner's policy. Therefore, we affirm in that appeal brought by the Fritz appellants.
2. Any Claims Regarding Coverage for Mikael Under the Homeowner's Policy Have Been Abandoned, and Any Claims Regarding Coverage for the Hugenbergs are not Properly Before this Court.
With regard to both Mikael and the Hugenbergs, there are procedural problems barring us from considering the merits regarding coverage under the West American homeowner's policy. The notice of appeal lists Mikael as the only appellant, both in the caption and the body. And the only issue presented in that notice of appeal concerns Mikael's coverage under the policy "for his liability arising out of his negligent operation of a non-owned automobile which was involved in an accident on 09/18/99." Moreover, the agreed statement filed by counsel for Mikael and counsel for West American under Kentucky Rules of Civil Procedure (CR) 75.15 and the prehearing statement filed by Mikael also list Mikael as the only appellant, both in the caption and the body. And both refer to the only issues on appeal as whether Mikael was entitled to liability insurance coverage and a defense under the homeowner's policy with West American.
Yet, the brief filed in this appeal listed "Mikael J. Hugenberg, a minor, and Jack and Susan Hugenberg, his parents," as "Appellants." This brief exclusively addresses the issue of liability coverage under the West American homeowner's policy for the Hugenbergs on the claim of negligent supervision and whether they were entitled to a defense against this claim. Nowhere in the brief are the issues of liability coverage for Mikael or a duty to provide a defense for him addressed.
"An appellant's failure to discuss particular errors in his brief is the same as *188 if no brief at all had been filed on those issues."[42] Because Mikael has failed to raise the issue of the availability of liability coverage and a defense for him and his actions under the homeowner's policy with West American, we deem these issues to be waived or abandoned.[43]
As for those claims that were raised in the appellant's brief regarding the Hugenbergs' liability coverage under the homeowner's policy for the claim of negligent supervision and their entitlement to a defense, these issues are not properly before the Court. We do not have jurisdiction over the Hugenbergs in this case. This is not a case where the Hugenbergs substantially complied with CR 73.03. They were not identified as appellants anywhere until the brief. And the claims raised in the brief are not remotely the same as those identified in the prehearing statement, notice of appeal, or agreed statement under CR 75.15. Therefore, the issues of the availability of a defense and liability coverage for the Hugenbergs on the negligent supervision claim under the homeowner's policy with West American are, also, not properly before this Court in the appeal by Mikael. For these procedural reasons, we affirm in the appeal filed by Mikael.[44]
C. There is no Genuine Issue of Material Fact Regarding Coverage Under the Hugenbergs' Auto Policy with West American.
In the summary judgment in favor of West American, the trial court concluded that Mikael was an insured under the Hugenbergs' automobile policy but was, nevertheless, denied coverage based on the following policy exclusion: "We do not provide Liability Coverage for any `insured': . . . [u]sing a vehicle without a reasonable belief that that `insured' is entitled to do so" (hereinafter "the entitlement exclusion"). The Fritz appellants assert that there are material questions of fact concerning whether the exclusion applies to Mikael and whether he used Dauwe's vehicle without a reasonable belief that he was entitled to do so.
1. The Entitlement Exclusion is not Ambiguous.
It is clear that Mikael is an "insured" within the terms of the Hugenbergs' auto policy with West American, despite the fact that he had no driver's license or learner's permit.[45] The question is whether he is excluded from coverage, nevertheless, because he used the vehicle without a reasonable belief that he was entitled to do so. Although the Fritz appellants assert that the exclusion is inherently *189 ambiguous, the Kentucky Supreme Court has held otherwise with regard to a very similar exclusion in York v. Kentucky Farm Bureau Mutual Insurance Co.[46] The issue in that case was whether a user of a vehicle had coverage under his father's auto insurance policy for which he was a listed driver covered during his use of "any auto" or whether he was subject to the following exclusion:
"B. We do not provide Liability Coverage for any person:
. . . .
4. Using a vehicle without a reasonable belief that a person is entitled to do so."[47]
The Court found "no ambiguity in the nonpermissive user exclusion[,]" stating that "[t]he clear and unambiguous words of an insurance contract should be given their plain and ordinary meaning."[48] It held that the plain meaning of the exclusion showed it be "an overarching exception to the policy coverage as a whole," which excluded liability coverage for the driver.[49] However, the court never addressed what it means to use a vehicle without a reasonable belief that a person is entitled to do so. Presumably this issue was not contested because, under the facts of that case, the driver did not have a reasonable belief that he was entitled to use the vehicle under any possible meaning of that phrase.
2. The History of Entitlement Exclusion Clauses.
Although the Supreme Court referred to the clause in York as a "non-permissive user exclusion," a more useful designation for the type of clause is an "entitlement exclusion."[50] Entitlement exclusion clauses are a later development in the history of insurance than traditional omnibus clauses, also known as "permissive use clauses," which typically provided coverage for any person provided that the actual use of the vehicle was with the permission of the named insured.[51] Because the issue with regard to a permissive use clause was whether the owner of the vehicle gave the user express or implied permission to use the vehicle, "the focus was solely on the actions of the policyholder."[52] Entitlement exclusion clauses gradually came to replace permissive use clauses as part of a trend toward more expansive coverage. Coverage based on the user's reasonable belief of entitlement is broader in scope and more liberal than coverage based on the express or implied permission to operate the vehicle.[53]
An exclusionary provision in an automobile liability insurance policy which provides that no liability coverage is provided for any person using a vehicle without a reasonable belief that that person is entitled to do so differs from the traditional "omnibus" clause which authorizes coverage for a non-owner's permissive use of a vehicle; the exclusionary clause in question is couched in terms of entitlement rather than permission, causing a shift in the inquiry from an objective determination (whether the *190 owner or one in legal possession of the car gave the user permission) to a mixed objective/subjective determination of the user's state of mind the reasonableness of the user's subjective belief of entitlement.[54]
3. The Two-Pronged Test to Analyze an Entitlement Exclusion Has a Subjective Component and an Objective Component.
In General Accident Fire & Life Assurance Corp. Ltd. v. Perry,[55] a Maryland court analyzed how entitlement exclusions, similar to the one in the instant case, have been construed and applied by courts of many different jurisdictions. The court concluded that an exclusion barring liability coverage "for any person . . . [u]sing a vehicle without a reasonable belief that that person is entitled to do so" is not ambiguous.[56] Moreover, the court reasoned that the appropriate way to analyze the entitlement exclusion is with a two-pronged test. The first prong looks at whether the driver had a subjective belief that he was entitled to use the car, and the second prong looks at whether this belief was objectively reasonable.[57] As the court explained, "it is clear that coverage is excluded if the driver (a) knew he was not entitled to drive the vehicle, or (b) if he claimed he believed he was entitled to drive the vehicle, but was without reasonable grounds for such belief or claim."[58]
We find this two-pronged test consistent with the plain meaning of the language of the entitlement exclusion clause in the instant case because "belief" comports with a subjective standard while "reasonable" comports with an objective standard.
4. Mikael Did Not Believe that He was Entitled to Use Dauwe's Car.
The best indication of Mikael's subjective belief at the time he took the car came from his testimony.[59]
Q. At the time you took Randy Dauwe's car, . . . did you feel like that was really okay with Randy?
. . . .
A. Yes. I just figured he wasn't a real strict person, yes, I just figured that he would have just maybe have, you know, said don't do that or don't do that again, but I mean would have understood my reasoning for doing it, not wanting to get caught walking down the street with beer.
. . . .
Q. Did you feel like you were stealing anything when you took Randy's car or did you feel like
A. No.
*191 Q. Or did you believe it was really okay?
. . . .
A. No. I did not feel like I was stealing anything.
. . . .
Q. At the moment you got into Randy's car, drove it down the street to Ryan Arlinghaus' so that you wouldn't be seen walking down the street with the beer that Randy bought you, did you believe at the time that what you were doing was okay with Randy Dauwe?
A. I knew it was wrong to take the car, but I just assumed that he wouldn't make that big of a deal of it and get that angry about it to where I should be really concerned like how would he react so I figured I didn't give too much thought to the situation which in a whole, which, you know that led up to the whole accident in general, but I would have thought that he wouldn't have cared that much.[60]
In later testimony, Mikael further clarified as follows:
Q. You testified that you knew that evening you didn't you shouldn't be driving the car? This is on previous depositions.
A. Correct.
Q. Correct? And you also testified that you didn't think Randy would be, quote unquote, "upset" because you knew he didn't want you driving the car, is that correct?
A. Correct.
Q. When you say he wouldn't be upset, do you mean he wouldn't come up and try to start a fight with you or start yelling at you? You just knew he wouldn't be screaming and yelling at you, is that what you mean?
A. I knew it wouldn't be like just a confrontation or like anything involved with, you know, him being mad like, you know, angry or
Q. Verbally or physically
A. Correct.
Q. upset?
A. It would be just on a calmer plane.
Q. But you understood that he did not want you to drive his car, is that correct?
A. Correct.[61]
The appellants make much of the fact that Mikael did not think that he was "stealing" Dauwe's car, but we think this may be a question of semantics. To a layperson, "stealing" may connote an intent permanently to deprive someone of a possession. Mikael intended to return the car. In fact, he did not necessarily intend to tell Dauwe about using the car.[62] Whether or not Mikael considered what he was doing stealing is irrelevant. Nothing Mikael said or did indicates that he thought he was entitled to use the car. Indeed, he testified that he knew at the time he took the car that it was wrong to do so.
The Fritz appellants also point to statements by Gehring in an affidavit to the effect that he believed that Mikael was entitled to use Dauwe's car. If Gehring's belief was based on some indication by Mikael of Mikael's belief in his entitlement *192 to use the car, then this might raise a material question of fact. But a closer examination of Gehring's testimony shows that he simply assumed that Mikael was authorized to use the car, based on his own belief that Mikael would not steal and the fact that Mikael had the car keys.[63] Gehring's assumptions do not raise a material question of fact because they do not go to the critical question of Mikael's subjective belief.
The Fritz appellants have also attempted to say that since Mikael's mother let him drive in the cemetery once with her and since he knew that some other unlicensed drivers drove in the cemetery, then he, Mikael, may have reasonably believed that he, too, was entitled to drive in the cemetery. But the question is not whether he believed he was entitled to drive in the cemetery but whether he believed he was entitled to drive Dauwe's car.
The Fritz appellants also point to testimony by Susan Grout that she had seen Mikael driving Dauwe's car on a previous occasion in the street in front of the Hugenbergs' house with Dauwe standing outside watching Mikael. We do not think that evidence that Mikael had used the car on another occasion in Dauwe's presence even raises an inference that Mikael subjectively believed that he was entitled to use the vehicle on this occasion.
Similarly, any evidence suggesting that Dauwe might have given Mikael the keys does not show that Mikael subjectively believed that he was entitled to drive the car.[64] It is clear from the record that at the time he took Dauwe's vehicle, Mikael did not believe that he was entitled to use it. And, based on the evidence presented, no reasonable jury could conclude otherwise.
Because Mikael did not satisfy the first prong of the test, there is no need to continue further. When the driver has made it clear that he did not believe that he was entitled to operate the vehicle under the circumstances just before the accident, "[t]he question of whether or not, if the operator had believed that he was entitled to operate the vehicle, that belief was reasonable, is irrelevant."[65] Where Mikael held no belief in his entitlement to use Dauwe's car, we need not determine the reasonableness of this nonexistent belief. For all these reasons, the trial court properly determined that the entitlement exclusion precluded liability coverage for Mikael under the Hugenbergs' auto policy. The summary judgment in favor of West American was proper.
D. There is a Material Question of Fact as to Dauwe's Coverage Under the Liberty Mutual Policy.
The Fritz appellants and the Hugenberg appellants have each separately appealed from the summary judgment granted in favor of Liberty Mutual in its declaratory judgment action. The trial court's decision was based on its ruling that there could be no liability coverage for Mikael under Dauwe's auto insurance policy because of an entitlement exclusion. The exclusion in question reads as follows: "We do not provide Liability Coverage for any `insured:' . . . [u]sing a vehicle without a reasonable belief that that `insured' is entitled to do so."[66] As with the entitlement *193 exclusion in the West American policy, both sets of appellants assert that there are material questions of fact concerning whether Mikael used Dauwe's vehicle without a reasonable belief that he was entitled to do so.
Mikael is clearly an "insured" within the meaning of the Liberty Mutual policy.[67] Because this provision is identical to the one in the Hugenbergs' West American auto insurance policy and the facts are identical, our holding would be the same with regard to coverage under the Liberty Mutual Policy, except for the possible effect of the Motor Vehicle Reparations Act (MVRA).[68]
1. The Minimum Liability Coverage Requirements of the MVRA.
The question is whether the entitlement exclusion by Liberty Mutual is in derogation of the minimum liability coverage required by the MVRA. The effect of the MVRA was properly before the trial court. The Fritz appellants, in their answer to Liberty Mutual's complaint for declaratory judgment, incorporated "any special or affirmative defense provided for under the Kentucky No-Fault Motor Vehicle Reparations Act, [KRS] 304.39-010 [et seq.] and all subsequent amendments and case law interpretations thereof." Also, the Hugenberg appellants raised the issue more plainly, stating that the court had to address whether the policy exclusion relied upon by Liberty Mutual derogates from the minimum liability coverage required by the MVRA and, hence, is void as against the expressed public policy of the MVRA. By enacting the MVRA, the legislature "intended to create a comprehensive compulsory insurance system that requires owners to provide vehicle security covering basic reparation benefits and that imposes legal liability on vehicle owners for damages or injuries arising out of ownership of or use of the vehicle."[69] KRS 304.39-080 states, in relevant part, as follows:
[E]very owner of a motor vehicle registered in this Commonwealth or operated in this Commonwealth by him or with his permission shall continuously provide with respect to the motor vehicle while it is either present or registered in this Commonwealth, and any other person may provide with respect to any motor vehicle, by a contract of insurance or by qualifying as a self-insurer, security for the payment of basic reparation benefits in accordance with this subtitle and security for payment of tort liabilities, arising from maintenance or use of the motor vehicle. . . .
This statute creates an affirmative duty for the owner of every vehicle operated in the Commonwealth "by him [the owner] or with his permission" to obtain insurance coverage for basic reparation benefits and the required minimum tort liability coverage. "Owner" is defined within the MVRA as "a person, other than a lienholder or secured party, who owns or has title to a motor vehicle or is entitled to the use and possession of a motor vehicle subject to a security interest held by another person[,]" excluding "a lessee under a lease not intended as security."[70] Under KRS *194 304.39-100(1), "[a]n insurance contract which purports to provide coverage for basic reparation benefits or is sold with representation that it provides security covering a motor vehicle has the legal effect of including all coverages required by this subtitle." Thus, auto liability insurance contracts sold in Kentucky cannot cover less than the minimum coverage required by the MVRA.
Based on the evidence in the record, Dauwe was an owner of a motor vehicle within the MVRA. So he had an obligation to obtain insurance coverage for the payment of basic reparation benefits and tort liabilities "arising from maintenance or use of the motor vehicle"[71] for any motor vehicle "operated in this Commonwealth by him or with his permission[.]"[72] And, under KRS 304.39-100, Liberty Mutual would not be permitted to offer Dauwe less coverage than the minimum required by the MVRA.
2. York is Distinguishable from the Instant Case.
The MVRA requires Dauwe to provide insurance coverage for basic reparation benefits and tort liabilities arising out of the use of the motor vehicle to anyone operating the motor vehicle "with his [Dauwe's] permission." Yet, the entitlement provision in Dauwe's policy with Liberty Mutual excludes liability coverage "for any `insured:'. . . . [u]sing a vehicle without a reasonable belief that that `insured' is entitled to do so." In York, the Kentucky Supreme Court held that an insurance company was not required to provide liability coverage for its insured, who was excluded from coverage by his auto insurance policy based on a similar entitlement exclusion.[73] But the insurance company in question was the insurer for the driver of the vehicle, not the owner.[74] And this distinction was crucial to the holding of the case. The Court determined "that the language of KRS 304.39-080(5) regarding liability insurance on non-owned vehicles is merely permissive, as it reads `any other person may provide' liability insurance."[75] Thus, the exclusion was valid because the driver, who did not own the car, was under no obligation under the MVRA to provide any insurance coverage for anyone using the car. This explains why the MVRA was not relevant to the question of whether there was liability coverage under the Hugenbergs' auto insurance policy.
We also note that York was distinguishable from the instant case in another way. In York, there was no question over whether the driver had permission to use the vehicle; all the parties acknowledge that he did not.[76] Since the MVRA only requires coverage for a car used with the owner's permission, this also meant that there was no obligation under the MVRA to provide liability coverage. York does not address the question of whether the MVRA requires the owner of a car to provide minimum coverage for a driver who used the owner's car without a reasonable belief that he was entitled to do so but with the owner's permission.
3. The MVRA and the Entitlement Exclusion Apply Different Standards to Determine Coverage.
The difficulty lies in the fact that the entitlement exclusion and the MVRA *195 use different standards. The insurance policy excludes liability coverage for an insured using the car without a reasonable belief that he is entitled to do so while the MVRA mandates that Dauwe and his auto insurer provide minimum coverage, including liability coverage, for anyone using Dauwe's car with Dauwe's permission. Just as one might have a reasonable belief in his entitlement to use a vehicle, even though he has no permission to do so, one might have the owner's permission to use a vehicle but still have no reasonable belief that he is entitled to do so. Thus, we must determine if there is a question of fact regarding whether Dauwe gave Mikael permission to use his car. This question is material because, to the extent that the entitlement clause of Dauwe's insurance contract with Liberty Mutual tried to deny liability coverage for a driver using Dauwe's vehicle with Dauwe's permission, it would be void and unenforceable.
4. There is a Material Question of Fact Regarding Whether Mikael had Dauwe's Express or Implied Permission to Operate Dauwe's Car.
Mikael and Dauwe both testified in depositions to the following points: (1) Mikael had never driven Dauwe's car before the night of the accident; (2) Dauwe had refused Mikael's previous requests to drive; (3) Mikael did not ask to drive Dauwe's car on that night; (4) Dauwe did not tell Mikael that he could drive his car on that night; and (5) Dauwe did not give Mikael his car keys, nor tell him where he left them.
Dauwe testified that he habitually left the car keys in the closed console of his unlocked car. He stated that he did not know that Mikael was aware of his habit of leaving his keys in the car. Mikael, on the other hand, testified that he knew of Dauwe's habit of leaving the keys in his car. Mikael stated that he did not decide to drive until he went with Gehring and Joe Brady to retrieve the beer from the trunk on the way to the Arlinghauses. Mikael said he got the keys from the open console and, then, went to remove the beer from the trunk.[77] Mikael said he decided to drive Dauwe's car only when he saw that the beer was in clear plastic bags. But Gehring testified in his deposition and stated in an affidavit that Mikael already had Dauwe's car keys in his hand and was discussing driving Dauwe's car before they ever arrived at the car, meaning that Mikael did not get them from the console when he said that he did. This creates a possible inference that Dauwe gave Mikael the keys to his car, which further suggests that he gave Mikael express or implied permission to drive the car.
This inference is supported by testimony by Susan Grout that she had seen Mikael driving Dauwe's car on an earlier occasion while Dauwe watched. Because the facts must be interpreted in the light most favorable to the nonmoving party, we perceive a question of fact concerning whether Mikael had permission to use Dauwe's car. Based on these facts, we cannot say that it would be impossible for the Fritz appellants or the Hugenberg appellants to prove that Mikael operated Dauwe's vehicle with Dauwe's permission. If they succeeded in establishing this point, the plain language of the MVRA would require Dauwe's insurer to provide liability coverage for Mikael, despite the language of the entitlement clause. So the trial court's grant of summary judgment in favor of Liberty Mutual on the issue of coverage *196 for Mikael under Dauwe's auto insurance policy was premature. We reverse and remand on this point for further proceedings.
IV. DISPOSITION.
A. Based on the merits, we affirm the underlying summary judgments in the following cases:
1. Case No. 2004-CA-001490-MR; and
2. Case No. 2004-CA-001491-MR;
B. We also affirm in Case No. 2004-CA-001472-MR on procedural grounds because the only issues properly before this Court on appeal were abandoned or waived; and
C. We reverse and remand for further proceedings consistent with this opinion in the following cases:
1. Case No. 2004-CA-002127-MR; and
2. Case No. 2004-CA-002172-MR.
ALL CONCUR.
NOTES
[1] Mikael's name has been misspelled at times in the record as "Michael."
[2] There is some dispute over how Mikael obtained Dauwe's car keys, which will be discussed below. Mikael did not want to carry the beer because it was bagged in clear plastic, which did not adequately conceal the contents.
[3] We have referred to Bradley Fritz as "Brad" because this is the nickname used in the briefs filed by his parents on their own behalf and on his behalf.
[4] Brad, Gehring, and Arlinghaus were all fifteen at the time.
[5] Mikael's friend Bo Honebrink was the son of the cemetery's caretaker.
[6] A number of additional parties were brought into this case; and additional claims were raised as a result of the filing of cross-claims, a counterclaim, and a third-party complaint. These additional parties and claims are not relevant to the summary judgment orders on appeal.
[7] This appeal is Case No. 2004-CA-001490-MR.
[8] Mikael's appeal is Case No. 2004-CA-001472-MR. The Fritz appellants' appeal is Case No. 2004-CA-001491-MR.
[9] The appeal by the Hugenberg appellants is Case No. 2004-CA-002172-MR.
[10] The Fritz appellants' appeal is Case No. 2004-CA-002127-MR.
[11] Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991).
[12] Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.1992).
[13] Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky.1999).
[14] Steelvest, 807 S.W.2d at 480; Smith v. O'Dea, 939 S.W.2d 353, 356 (Ky.App.1997).
[15] Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.1996).
[16] Id.
[17] Moore v. Lexington Transit Corp., 418 S.W.2d 245, 248 (Ky.1967).
[18] Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89 (Ky.2003).
[19] Moore, 418 S.W.2d at 248 (quoting RESTATEMENT (SECOND) OF TORTS § 16 (1965)).
[20] 418 S.W.2d at 246-247.
[21] Id. at 247-248.
[22] Id. at 248.
[23] Id.
[24] 95 S.W.3d 875 (Ky.App.2002).
[25] Id. at 887-888 (stating that the son's occasional practice of taking out his frustrations by beating a barrel did not indicate any proclivity toward violence against people or likelihood of him shooting his fellow students).
[26] See, e.g., id. at 887 (discounting as factors to be considered in determining whether the son's school shootings were foreseeable the facts that he had previously stolen a gun from his father to sell at school and had accessed violent and pornographic materials on the internet where there was no evidence that the parents knew, or should have known, of these incidents until after the shootings).
[27] See, e.g., id. at 887-888 (describing as "reasonable under the circumstances" the son's explanation to his parents that the noises from his room the night before the shootings and the large bundle he was taking to class that day were due to a school project, even though the noises were actually part of his preparations for the shootings, and the bundle contained guns).
[28] They were called after the fact by the girl's mother. Having learned of the unauthorized party, she was apparently calling all of the parents of the children who attended.
[29] Lott v. Strang, 312 Ill.App.3d 521, 245 Ill. Dec. 154, 727 N.E.2d 407, 409-410 (2000).
[30] See id. at 409 (holding that the fact that the minor had had an automobile accident one year earlier did not place the parents on notice that another accident was likely to occur.)
[31] 418 S.W.2d at 248.
[32] 95 S.W.3d at 887-888.
[33] Stone v. Kentucky Farm Bureau Mutual Insurance Co., 34 S.W.3d 809, 810 (Ky.App. 2000).
[34] MGA Insurance Co., Inc. v. Glass, 131 S.W.3d 775, 777 (Ky.App.2004).
[35] True v. Raines, 99 S.W.3d 439, 443 (Ky.2003).
[36] Id.
[37] Nationwide Mutual Insurance Co. v. Nolan, 10 S.W.3d 129, 131-132 (Ky.1999).
[38] Id.
[39] Eyler v. Nationwide Mutual Fire Insurance Co., 824 S.W.2d 855, 859 (Ky.1992).
[40] Snow v. West American Insurance Co., 161 S.W.3d 338, 341 (Ky.App.2004).
[41] Insurance Co. of North America v. Royal Indemnity Co., 429 F.2d 1014, 1017-1018 (6th Cir.1970). Citations omitted. Asterisks in original. See also 43 AM.JUR.2D Insurance § 708 (2005) (stating that "`[a]rising out of' the use or occupancy of a motor vehicle requires a causal connection between the injuries and the vehicle.").
[42] Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App.1979).
[43] C.f., Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 815 (Ky.2004).
[44] We note that the arguments which the Hugenbergs attempted to raise concerning coverage under the homeowner's policy for the negligent supervision claim were substantially the same as those rejected on the merits in the appeal filed by the Fritz appellants.
[45] In an endorsement to the policy, "[i]nsured" is defined as:
"The `named insured' or any `family member' while: . . .
`[o]ccupying' . . . any `motor vehicle.'"
In the same endorsement, "[f]amily member" is defined, in relevant part, as follows:
"the spouse and any person related to the `named insured' by blood, marriage or adoption . . . who is a resident of the `named insured's' household. . . . "
The Hugenbergs and Annie are all named insureds. Since Mikael was related by blood to the Hugenbergs and Annie and resided in the same household, he was a family member of a named insured and, hence, an insured himself.
[46] 156 S.W.3d 291 (Ky.2005).
[47] Id. at 293.
[48] Id.
[49] Id.
[50] We borrow this term from Darla L. Keen, Note, The Entitlement Exclusion in the Personal Auto Policy: The Road to Reducing Litigation in Permissive Use Cases or a Dead End? 84 KY.L.J. 349, 350 (1995).
[51] Id.
[52] Id.
[53] Id. at 351.
[54] 7 AM.JUR.2D Automobile Insurance § 242 (2005).
[55] 75 Md.App. 503, 541 A.2d 1340 (1988).
[56] Id. at 1342, 1347-1349.
[57] Id. at 1348-1350.
[58] Id. at 1349. See also, Allstate Insurance Co. v. United States Fidelity and Guaranty Co., 663 F.Supp. 548, 553 (W.D.Ark.1987) (holding that the phrase "`using a vehicle without a reasonable belief that the person is entitled to do so'" means that "the trier of fact must find that the person using the vehicle believed that he was entitled to do so and that such belief was reasonable"); Omaha Property & Casualty Insurance Co. v. Peterson, 865 S.W.2d 789, 790 (Mo.Ct.App.1993) (stating that to avoid the application of the entitlement exclusion, "[the driver] not only had to believe that she had a right to drive the car, but her belief had to be rational.").
[59] Although we do not attempt to weigh the credibility of the evidence, we note that it would have been in Mikael's best interest to assert that he believed that he was entitled to drive Dauwe's car.
[60] Mikael Hugenberg Deposition, 07/16/2002, pp. 259-262.
[61] Mikael Hugenberg Deposition, 08/09/2002, pp. 106-107. This deposition is also captioned as occurring on 08/09/2000, but this earlier date is an error.
[62] Mikael Hugenberg Deposition, 08/09/2002.
[63] Blake Gehring Affidavit, 07/02/2004.
[64] If Mikael had believed that he was entitled to drive the car, any evidence suggesting that Dauwe gave him the car keys would go toward showing the reasonableness of that belief.
[65] Donegal Mutual Insurance Co. v. Eyler, 360 Pa.Super. 89, 519 A.2d 1005, 1010 (1987).
[66] This provision was contained within an endorsement to the policy, but it was also found in the original policy. It was merely designated by a new number and letter. This policy, along with several other documents, including Liberty Mutual's motion for summary judgment, was misfiled in Case No. 00-CI-02269 rather than Case No. 01-CI-00209. However, the trial court in Case No. 01-CI-00209 was aware of this misfiling and considered these documents anyway.
[67] The policy defines "insured" as including "[a]ny person using `your covered auto.'"
[68] KRS 304.39, et seq.
[69] McGrew v. Stone, 998 S.W.2d 5, 6 (Ky. 1999).
[70] KRS 304.39-020(12).
[71] KRS 304.39-080(5).
[72] Id. (Emphasis added.)
[73] 156 S.W.3d at 294.
[74] Id. at 292, 293.
[75] Id. at 294.
[76] Id. at 293-294.
[77] Mikael did not recall if he used the keys to unlock the trunk or used the trunk release button.
| {
"pile_set_name": "FreeLaw"
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124 F.3d 204
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Emily HARRINGTON, Plaintiff-Appellant,v.Cheryl ESGAR, et al., Defendants-Appellees.
No. 96-1942.
United States Court of Appeals, Seventh Circuit.
Submitted Aug. 7, 1997.*Decided Aug. 12, 1997.
Appeal from the United States District Court for the Central District of Illinois. No. 94-1045 Michael M. Mihm, Chief Judge.
Before POSNER, Chief Judge, EASTERBROOK, Circuit Judge and MANION, Circuit Judge.
ORDER
1
Emily Harrington, a state prisoner proceeding pro se, sued various officials at the Dwight (Illinois) Correctional Center for violating her civil rights. 42 U.S.C. §§ 1981, 1983. The district court directed a verdict for the defendants on most of the claims; a jury found in favor of the only remaining defendant. Harrington appeals, arguing that the evidence was insufficient to support the verdict; that the district court erred in dismissing claims that her due process rights were violated, that she was denied access to the courts, and that defendants retaliated against her for exercising her constitutional rights; and that the trial was unfair because the district court refused to appoint an attorney for her We affirm.
2
Harrington's complaint is based on two incidents that occurred at the prison. Harrington fell ill and received a medical leave, or "lay-in," from the prison nurse. The lay-in excused her from her work assignment in the prison kitchen. Harrington, who served her fellow inmates as a law clerk/writ-writer, had a pass to the prison library. Because she was working on at least two lawsuits, including one which had to be filed the next day, she went to the prison law library to complete her research. Sharon Wahl, supervisor of the Food Service Department where Harrington worked, telephoned her in the library later that day, and insisted that if she was well enough to do legal research, she was well enough to work. Harrington insisted, correctly, that the medical lay-in prohibited her from handling food, and added that she was only in the library because she was facing court deadlines. Wahl had prison security officers take Harrington away from the library and escort her back to her living unit. Later that day security made Harrington leave the unit to retrieve her legal papers. Over the next few days, Harrington persisted in staying away from her work assignment and going to the law library, while Wahl, and later Cheryl Esgar, Harrington's immediate supervisor, persisted in requiring Harrington to return to her kitchen work, and tried to revoke her medical lay-in. Esgar wrote a number of disciplinary reports against Harrington. Harrington, who is black, claimed she knew of instances where white inmates on medical lay-in were allowed to use the law library and leave their living units while on lay-in, without being charged with disciplinary violations.
3
In another incident Julie Terlep, a paralegal in the prison library, asked Harrington and Kathy Bowen, a white inmate, to help her retrieve some boxes of papers from Bowen's residence. Though the record is not entirely clear, it seems that Terlep got in some trouble for not following prison procedures in bringing the inmates with her. The next day, Terlep filed a disciplinary report against Harrington, but not against Bowen. As a result of Terlep's report, James Darden and Kinda Pellino, security officers at Dwight, ordered Harrington permanently out of the law library, confiscated her legal materials, filed a report which led to Harrington being placed in segregation for having excessive personal property, and prevented her from doing legal work for other inmates.1 Harrington's court-appointed public defender complained to prison officials that the confiscation of legal materials was hindering the preparation of a petition for post-conviction relief.
4
Harrington filed suit against Wahl, Esgar, and Warden Gwendolyn Thornton, claiming that they violated her right to equal protection by treating her differently than similarly situated white inmates; attempted to deny her access to the courts; and denied her due process in prison disciplinary hearings. She added claims of retaliation and equal protection violations against Terlep, Darden, and Pellino; and a charge of denial of access to the courts against Darden and Pellino. The district court dismissed the denial of due process charges for failure to state a claim, dismissed Thornton because she was not personally responsible for the alleged constitutional violations, Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996), and dismissed the claim of denial of access to the courts against Wahl and Esgar. The court let the equal protection violations against Wahl, Esgar, and Terlep, as well as the charges of retaliation and denial of access to the courts against Terlep, Darden, and Pellino, proceed to trial. Before trial, Harrington voluntarily dismissed her complaint against Wahl. At trial, after the close of Harrington's case in chief, the district court directed a verdict in favor of defendants on all remaining claims except the equal protection allegation against Terlep. The jury then found in favor of Terlep. Harrington appeals.
5
Harrington's principal contention is that the defendants should have been found guilty. We construe this as a claim that the evidence was insufficient to support the verdict against Terlep, and that the district court should not have directed verdicts against the other defendants. The test in this circuit for reviewing a jury verdict on appeal is "whether there is a reasonable basis in the record for the verdict.... If this test is met, we will not reweigh the evidence but will let the verdict stand." Gorlikowski v. Tolbert, 52 F.3d 1439, 1446 (7th Cir.1995) (internal quotation omitted). The only evidence in the trial record that supported Harrington's case is that Harrington is an African-American and Bowen, the inmate whom Terlep failed to report, is not. A rational jury could not find that distinction sufficient to support an inference of racial animus, which is necessary to an equal protection claim. See Minority Police Officers Ass'n of South Bend v. City of South Bend, 801 F.2d 964, 967 (7th Cir.1986). Moreover, Harrington argues only that she submitted enough evidence to prove her case. That argument is insufficient on appeal: she must show that a reasonable jury could not find against her. Gorlikowski, 52 F.3d at 1446.
6
Neither were the directed verdicts improper. In reviewing a directed verdict, we determine whether there is evidence to support Harrington's claim on which a jury could properly have found in her favor, and review the evidence in the light most favorable to Harrington. Fed.R.Civ.P. 50(a); The Hammond Group, Ltd. v. Spalding & Evenflo Cos., 69 F.3d 845, 484 (7th Cir.1995). Harrington herself conceded at trial that there was not enough evidence to support the equal protection charge against Pellino. Similarly, because no evidence suggested that either Esgar or Darden knew that white inmates had been involved in the same activity for which Harrington was being disciplined, neither is there evidence that racial animus motivated them. The directed verdict on the issue of denial of access to the courts was also correct, because Harrington failed to demonstrate that the confiscation of her legal materials caused any actual injury. Lewis v. Casey, 116 S.Ct. 2174, 2180 (1996). Harrington alleged that her petition for post-conviction relief would have been successful if there had not been a delay in getting the necessary documents to her attorney, but failed to support that allegation with evidence in the record. Finally, the most problematic case, as the district court recognized, was the retaliation claim. There was some evidence that Terlep (by filing a disciplinary report) and Darden (by shaking down Harrington's living unit) retaliated against Harrington. The evidence, however, only suggested that they did so because they were angry that Terlep had gotten in trouble, not because Harrington had exercised her constitutional rights. Consequently, there was no evidence to support a claim under § 1983.
7
Harrington also argues that the district court wrongly dismissed for failure to state a claim her complaints that the prison disciplinary hearings denied her due process; and that Esgar and Wahl denied her access to the courts by disciplining her for her medical lay-in. We find no such error. First, the district court correctly concluded that the disciplinary hearings provided Harrington with all the process due to her under Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Second, Harrington failed to allege that Esgar and Wahl's restriction of her access to the prison library and her legal papers caused any actual injury. Prisoners have no inherent right of access to a law library, or to legal assistance. Lewis, 116 S.Ct. at 2180. Nor do Harrington's activities as a writ-writer entitle her to special treatment: as prisoners have no right of access to legal assistance, so they have no right to have a particular person to whom they may turn for legal advice. Neither do Harrington's pleadings suggest that any of her "clients" were unable to obtain legal redress because of restrictions on her activities.2 Without any allegation of actual injury, her complaint of access to the courts is doomed. Id.
8
Finally, Harrington complains that she was unable to present her case adequately, because the district court refused to appoint counsel for her. Indigent litigants have no constitutional right to appointment of counsel in a civil case. Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir.1997). The fact that a pro se plaintiff is forced to litigate against an experienced attorney is not, of itself, sufficient reason to appoint counsel. The district court concluded that the issues involved in Harrington's suit were not so complex that they required trained counsel, and that in light of the court's policy of giving wide latitude to pro se litigants, Harrington was capable of presenting her own case. Particularly because the trial transcript corroborates the court's latitude toward Harrington, and because the record does not suggest that Harrington "would have had a reasonable chance of winning with a lawyer at her side," we find that the district court did not abuse its discretion by refusing to appoint counsel. Id.
9
Harrington presents several other issues for the first time on appeal. Because she did not raise these matters before the district court, she has waived them. Zemke v. City of Chicago, 100 F.3d 511, 514 (7th Cir.1996).
10
AFFIRMED.
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Therefore, the appeal is submitted on the briefs and the record. See Fed. R.App. P. 34(a); Cir. R. 34(f)
1
Harrington filed a grievance regarding these actions, which resulted in a ruling that the order placing her in segregation be expunged, and her personal property, including personal legal materials, be returned to her
2
For the same reasons, the district court properly granted the defendants' motion in limine barring Harrington from presenting evidence that she was kept from doing legal work for other prisoners. And even if Harrington succeeded in showing that restrictions placed on her ability to do legal research caused injury to other prisoners, it is doubtful that Harrington has standing to assert a claim on behalf of her "clients." See Gometz v. Henman, 807 F.2d 113, 115 (7th Cir.1986)
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925 F.2d 419
Pascarell (William A.) for and on Behalf of National LaborRelations Boardv.Control Services, Inc.
NO. 90-5451
United States Court of Appeals,Third Circuit.
JAN 18, 1991
Appeal From: D.N.J.,
Ackerman, J.
1
AFFIRMED.
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People v Hernandez (2015 NY Slip Op 08756)
People v Hernandez
2015 NY Slip Op 08756
Decided on November 25, 2015
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 25, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.
2013-08505
(Ind. No. 3241/12)
[*1]The People of the State of New York, respondent,
vMatthew Hernandez, appellant.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Robert Ho on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mondo, J.), rendered August 5, 2013, convicting him of criminal trespass in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on the appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see Anders v California, 386 US 738; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606; People v Sedita, 113 AD3d 638).
RIVERA, J.P., DICKERSON, MALTESE and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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116 F.2d 584 (1940)
ROCHFORD
v.
NEW YORK FRUIT AUCTION CORPORATION.
No. 121.
Circuit Court of Appeals, Second Circuit.
December 23, 1940.
I. Saul Fleischman, of New York City (Irving Coopersmith and Michael Berman, both of New York City, on the brief), for plaintiff-appellee.
Harry Weinberger, of New York City (Chester A. Pearlman and W. E. Aronberg, both of New York City, on the brief), for defendant-appellant.
Before L. HAND, SWAN, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
We are asked to hold "clearly erroneous" [Rules of Civil Procedure, Rule *585 52(a), 28 U.S.C.A. following section 723c] the district court's findings that the bankrupt here did not have a fraudulent intent to leave unpaid for goods bought on credit from defendant and by the latter repossessed when insolvency became clear. But the evidence of record does not justify such a step. The law is, of course, well settled. A purchase of goods on credit by one hopelessly insolvent and so knowing that payment can never be made may be held fraudulent without proof of specific representations. In re Meiselman, 2 Cir., 105 F.2d 995, 998, and cases cited. But the charge of fraud, being in effect one of a crime, must be thoroughly proven, Morris v. Talcott, 96 N.Y. 100, 107; merely continuing business in the not unnatural hope "that better times would come that tomorrow should be as this day and much more abundant," Nichols v. Pinner, 18 N.Y. 295, 299, is not enough. There must be evidence from which the trier can reasonably infer in the buyer both a knowledge of insolvency and a present intent not to pay for the goods. Dwelle-Kaiser Co. v. Aetna Casualty & Surety Co., 241 N.Y. 464, 469, 150 N.E. 517; In re B. & R. Glove Corporation, 2 Cir., 279 F. 372, 381.
Here, however, facts justifying, not to speak of compelling, such a conclusion are lacking. Ardeeco Produce, Inc., a small corporation engaged in the business of selling fruit and produce, had made purchases of supplies from defendant, so that the balance due on January 1, 1939, was approximately $1,895.61. On January 3, Ardeeco made a payment of $266 on account and, on that day and the next, bought of defendant additional merchandise on credit to the extent of $700.75. The court found that defendant in making the sale had relied upon a financial statement which Ardeeco had furnished it about two months earlier and had made no inquiry with respect to Ardeeco's subsequent financial condition.
On the morning of January 5, Ardeeco was served with a summons in a creditors' action, and its officers then realized that it could not continue in business unless some arrangement could be effected with its creditors. So they notified the creditors that a creditors' meeting would be held four days later. Defendant received the notice that same day and immediately repossessed itself of some of the merchandise, to the amount of $430.50, which it had just sold Ardeeco. Defendant concedes its then knowledge of Ardeeco's insolvency; the court found that insolvency existed on January 2, 3, and 4. An involuntary petition in bankruptcy was filed on January 12 and adjudication followed thereafter. The estate now in the hands of the trustee amounts to $4,027.05; claims filed total slightly more than $14,000.
Defendant claims that an inference of fraudulent intent must be drawn from the foregoing facts. But other evidence rebuts any such inference. The bankrupt's last balance sheet, that for October 1, 1938, showed liabilities slightly over $12,000, against assets of more than $25,000, as well as a net profit from operations for the first nine months of 1938 of $3,595.73. Undoubtedly the assets, particularly the accounts receivable, would show substantial depreciation in the event of financial stringency; but this affords little basis for supporting an absence of hope on the part of the debtor.
The balance sheet was made up by a certified public accountant who was Ardeeco's auditor and credit man and who was examined at great length by defendant. He conceded knowledge of losses on goods in October of $4,200 and that business got worse in November and December, so that the officers faced financial difficulties, as they realized, about the middle of December, because their cash position was getting smaller and weaker. That is in substance all the proof, except for denials of knowledge of insolvency and fraudulent intent upon the part of the bankrupt's officers; we agree with the trial court that it "falls far short of establishing any fraud." Therefore, when, after notice of the creditors' meeting, defendant retook the merchandise it had sold, it had a voidable preference under Bankruptcy Act, § 60, sub. b, and N. Y. Stock Corporation Law, § 15, for the value of which the trustee was properly given judgment below. The motion for a new trial for "fraud, perjury and concealment of evidence" is only an attempt once again to examine the auditor; if his work sheets were destroyed, not delivered to the attorney as he claimed, and if that point deserved more exploration than it had already received, that voyage of discovery should have been had at the original trial.
Affirmed.
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362 So.2d 138 (1978)
Leveral "Sparky" RAFFIELD, Appellant,
v.
STATE of Florida, Appellee.
No. W-412.
District Court of Appeal of Florida, First District.
September 8, 1978.
*139 Guillermon A. Ruiz and Philip J. Padovano, of Ruiz & Padovano, St. Petersburg, for appellant.
Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
MILLS, Judge.
The facts of this case are sufficiently set forth in prior opinions entered in this cause.[1] Pursuant to the mandate of the Supreme Court, the sole issue for our determination is whether Raffield consented to the warrantless search of his barn.
Where consent is relied upon to justify a warrantless search, the State has the burden of proving that the consent was freely and voluntarily given and was not mere acquiescence to apparent authority. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Such consent must be established by clear and convincing evidence. Talavera v. State, 186 So.2d 811 (Fla. 2d DCA 1966).
The transcript of the suppression hearing reveals that the State was not relying on consent to justify the warrantless search. What was said and done at Raffield's farm immediately prior to the search was not even mentioned in the State's presentation. After the State rested, John Van Tronk, an agent of the Florida Department of Law Enforcement, was called by the defense. He stated that nine law enforcement officers from various state, local and federal agencies in four or five vehicles went to Raffield's farm after receiving instructions to search the barn. Raffield was in front of his house when the officers arrived. Van Tronk told Raffield that the officers were going to search the barn and asked Raffield if he wanted to go down to the barn with them. Raffield got in the car with Van Tronk. When they arrived at the barn Van Tronk said, "We're going to *140 search the barn now", and Raffield replied, "Well, it's in there" or "I'm guilty" or words to that effect.
"Acquiescence which is resignation a mere submission in an orderly way to the actions of arresting agents is not that consent which constitutes an unequivocal, free and intelligent waiver of a fundamental right." United States v. Gregory, 204 F. Supp. 884 (S.D.N.Y. 1962).
Clearly, there was no consent to the warrantless search at Raffield's barn. The trial court erred in denying Raffield's motion to suppress the evidence, and therefore the judgments of conviction and sentences are reversed.
McCORD, C.J., concurs.
BOYER, J., dissents.
BOYER, Judge, dissenting.
In my view Raffield's words coupled with his actions constituted consent rather than mere acquiescence, submission or resignation. I would affirm.
NOTES
[1] Raffield v. State, 333 So.2d 534 (Fla. 1st DCA 1976), quashed in part and remanded, 351 So.2d 945 (Fla. 1977).
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28 Cal.2d 664 (1946)
GEORGE DURHAM ROBINSON et al., Appellants,
v.
VERA PULS, as Administratrix, etc., Respondent.
S. F. No. 17120.
Supreme Court of California. In Bank.
Aug. 1, 1946.
William Berger and Abraham Setzer for Appellants.
James R. Agee, Breed, Burpee & Robinson and Lester Perry for Respondent.
GIBSON, C.J.
This action was brought for declaratory relief, for cancellation of two promissory notes, and for an accounting if a trust were found to exist, or, in the alternative, for a money judgment. Defendant filed a cross-complaint, seeking a money judgment on two book accounts. Plaintiffs' demand for a jury trial was refused, and after trial by the court without a jury judgment was entered against plaintiffs on their complaint and for defendant on her cross- complaint. Plaintiffs contend on this appeal that the court erred in denying them a jury trial.
[1] The issues raised by the complaint were both equitable and legal in nature and those raised by the cross-complaint were solely legal in character. It is settled in this state that where legal and equitable issues are joined in the same *666 action the parties are entitled to a jury trial on the legal issues. (Connell v. Bowes, 19 Cal.2d 870 [122 P.2d 456]; Crouser v. Boice, 51 Cal.App.2d 198 [124 P.2d 358]; Hutchason v. Marks, 54 Cal.App. 2d 113 [128 P.2d 573].)
[2] It is argued, however, that plaintiffs' demand for a jury trial was defective in that it failed to specify the legal issues to be tried by the jury. Defendant relies on Meek v. De Latour, 2 Cal.App. 261 [83 P. 300], and Whittier v. Auth, 99 Cal.App. 759 [279 P. 491], which hold that it is not error to refuse a general demand for a jury to try a cause consisting of legal and equitable issues. These decisions are based on cases from other jurisdictions and are in conflict with our constitutional and statutory provisions relative to waiver of jury trial. They are therefore disapproved.
This court held, in People v. Metropolitan Surety Co., 164 Cal. 174, at page 177 [128 P. 324, Ann.Cas. 1914B 1181], that under article I, section 7, of the state Constitution "The legislature is ... given the sole power of declaring what shall constitute a waiver of trial by jury ... and has exercised its power by the enactment of section 631 of the Code of Civil Procedure [fn. *] ... [and] ... a jury may be waived only in one of the ... modes prescribed by this section." Nowhere in section 631 is it provided that a jury is waived by *667 failure to specify in the demand the issues to be tried by jury, and the trial court could not, therefore, properly deny plaintiffs a jury trial for the reason that the demand did not so specify. The fact that both legal and equitable issues were involved does not alter the rule.
[3] Defendant also contends that plaintiffs waived a jury by reason of their failure to deposit jury fees 10 days prior to the day set for trial, as required by subdivision 5 of section 631. The order denying plaintiffs' demand for a jury was made more than 45 days prior to the date set for trial. Plaintiffs having been refused a jury were not thereafter required to deposit fees for a jury trial which had been denied them. The law does not require the performance of an idle act. (Civ. Code, 3532.)
The court therefore erred in denying plaintiffs a jury trial upon the legal issues and they are entitled to a reversal of the judgment, at least in so far as it disposes of issues that should have been submitted to a jury. It is impracticable on this appeal to separate the legal from the equitable issues, and there is some doubt as to the propriety of the refusal of the court to permit plaintiffs to offer evidence on the question of the authenticity of a receipt which was material on the trial of the equitable issues. The entire judgment should therefore be reversed in order to permit a full and proper consideration on a single trial of all the issues (see Connell v. Bowes, 19 Cal.2d 870, 872 [122 P.2d 456], outlining proper procedure in such cases).
A question arose during the trial as to the admissibility in evidence of certain books of account and, inasmuch as the *668 court will undoubtedly be confronted with the same question on retrial, we will consider the contentions of the parties with respect thereto. The books in question were kept by Puls and were offered in evidence by the administratrix in support of her cross-complaint for a money judgment. Certain of these books (Exhibits A, B, C and D) were kept by Puls in connection with a gasoline service station operated by him, and reflected transactions with his customers, including plaintiff, George Robinson. A second set of books kept by Puls (Exhibits M and N) covered financial transactions between Puls and Robinson with respect to a fruit growing and drying business in which the latter was engaged. All of these books were admitted in evidence over plaintiffs' objection that there was no showing that the entries were made within reasonable proximity to the time of the respective transactions as required by the Uniform Business Records as Evidence Act (Code Civ. Proc., 1953e-1953h).
Both sets of books were identified as those kept by Puls during the years in question; they were in his handwriting and they were shown to have been kept in an orderly manner. The dates of the entries in the books appear to correspond reasonably with the dates of the original events.
[4] Where the person who made the entry is dead, evidence that the books of account were in his handwriting, and that they were kept correctly, is sufficient foundation for their admission. (O'Neill v. O'Neill, 45 Cal.App. 772, 774 [188 P. 603]; see, also, Foster v. Wehr, 114 Pa.Super. 101 [173 A. 712]; G. S. Wood Mercantile Co. v. Dougall, 100 Utah 267 [114 P.2d 202]; Burton v. Phillips, 161 Ala. 664 [49 So. 848]; Leighton v. Manson, 14 Me. 208; Davie v. Lloyd, 38 Colo. 250 [88 P. 446, 12 Ann.Cas. 75]; Dodge v. Morse, 3 N.H. 232; Cram v. Spear, 8 Ohio 494; In re Greenwood's Estate, 201 Mo.App. 39 [208 S.W. 635, 637]; 52 L.R.A. 558; 1 Elliott on Evidence, 465; 2 Ency. of Evidence, pp. 610-611; 10 R.C.L. 1175; 32 C.J.S. 557; 20 Am.Jur. 929.) Moreover, the statutory presumptions that "a writing is truly dated" (Code Civ. Proc., 1963(23)), and that "the ordinary course of business has been followed" (Code Civ. Proc., 1963(20)) obviate the necessity for any additional showing as to the contemporaneous nature of the entry.
[5] Plaintiffs, citing section 1946, subdivision 1, of the Code of Civil Procedure, contend that the books were not admissible in evidence because the entries were not adverse *669 to the decedent. This section, which expressly permits the admission in evidence of writings of a decedent when made against interest, states a separate and distinct exception to the hearsay evidence rule. (Radtke v. Taylor, 105 Ore. 559 [210 P. 863, 870, 27 A.L.R. 1423]; see, also, 1 Elliott on Evidence, 477; 5 Wigmore on Evidence, 1518.) It does not, however, in any way restrict the application of the rule governing the admission in evidence of book accounts.
The further contention is made that the books (Exhibits M and N) containing records of deposits and loans made in connection with the fruit growing business constitute private memoranda and, therefore, are not admissible. These books were kept by Puls pursuant to an agreement with Robinson, and an expert accountant testified that the entries appearing therein, with minor exceptions, covered transactions reflected by original vouchers and drafts. The objection that these books are private memoranda was not made in the trial court. It appears that the original documents evidencing most of the transactions are available and it may not be necessary to use the books to prove the account. The defendant, however, is now informed of plaintiffs' contention and if she desires to offer the books at a second trial she will have an opportunity to establish their character in laying a foundation for their admission in evidence.
The judgment is reversed.
Shenk, J., Edmonds, J., Carter, J., Schauer, J., and Spence, J., concurred.
TRAYNOR, J.
I concur in the judgment. I cannot agree, however, with that part of the majority opinion holding that the store books and the two other books reflecting the financial transactions between Puls and the plaintiff are admissible in evidence in absence of proof that the entries on which defendants rely were made at or near the time of the transactions in question. Section 1953f of the Code of Civil Procedure, enacted in this state in 1941 as part of the Uniform Business Records as Evidence Act provides: "A record of an act, condition of event shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, *670 the sources of information, method and time of preparation were such as to justify its admission." (Italics added.) This statute not only requires preliminary proof in all cases that the record was made "at or near the time" of the transaction, it also vests in the trial court authority to determine, before such records are admitted in evidence, whether the time of its preparation was near enough to the transactions to be proved to justify the admission of the record. The uniform act was formulated after years of discussion (see 5 Wigmore, Evidence (3d ed.) 362) and its draftsmen undoubtedly weighed the disadvantage of the rule to estates against the dangers of admitting records whose trustworthiness was not established, when they did not deem it advisable to relax the requirements of preliminary proof in the case of the books of a decedent. (See Barrow, Business Entries Before the Court, 32 Ill.L.Rev. 334; 5 Wigmore, Evidence (3d Ed.) 363.)
In abandoning the requirement of proof that the record was made at or near the time of the transaction, if the person who made it is dead, the majority opinion opens the door for the admission of records that might be made at a time so remote from their occurrence as to lack trustworthiness. The justification for admitting records as evidence is that they can be regarded as trustworthy when they have been prepared in the ordinary course of business and at or near the time of the transaction. (Palmer v. Hoffman, 318 U.S. 109, 115 [63 P. 477, 87 L.Ed. 645, 144 A.L.R. 719]; same case 129 F.2d 976, 982; Roge v. Valentine, 280 N.Y. 268 [20 N.E.2d 751, 755].) "The entry should have been made at or near the time of the transaction recorded,--not merely because this is necessary in order to assure a fairly accurate recollection of the matter, but because any trustworthy habit of making regular business records will involve the making of the record contemporaneously." (5 Wigmore, Evidence (3d ed.) 375.) "This is another circumstance very properly required as tending to accuracy, and is similar to the requirement ... as to entries by deceased persons." (5 Wigmore, Evidence (3d ed.) 405.) There is particular need of such proof when the entries of a deceased person are presented and there is no opportunity to examine those in whose favor the entries speak. Any doubt as to the requirement of such proof is dispelled by section 1946 of the Code of Civil Procedure, which relates specifically to the entries and other writings of a decedent: "The entries and other writings of a decedent, made *671 at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the following cases. ..." (Italics added.) Thus both section 1946 of the Code of Civil Procedure and the Uniform Business Records as Evidence Act require proof that the entry was made at or near the time of the transaction, and there is no reason for construing them differently.
The cases cited in the majority opinion relate to the shop-book rule of the common law rather than to the uniform act. Under the common law the two books in the present case (Exhibits M and N), which were not store books but books reflecting the financial transactions between Puls and plaintiff, would not have been admissible to show the alleged loans by Puls, for account books were inadmissible to show transactions concerning the paying or lending of money. (Collin v. Card, 2 Cal. 421; Yick Wo v. Underhill, 5 Cal.App. 519 [90 P. 967]; see Le Franc v. Hewitt, 7 Cal. 186; 84 A.L.R. 147, 148; 5 Wigmore, Evidence (3d ed.) 396.)
"1. By failing to appear at the trial;"
"2. By written consent filed with the clerk or justice;"
"3. By oral consent, in open court, entered in the minutes or docket;"
"4. Failure to demand jury. By failing to announce that a jury is required, at the time the cause is first set upon the trial calendar if it be set upon notice or stipulation, or within five days after notice of setting if it be set without notice or stipulation; provided, that in justices' courts such waiver may be made by failure of either party to demand a jury within two days after service upon him of the notice provided for in Section 594 of this code; provided further, that in any superior court action if a jury is demanded by either party in the memorandum to set cause for trial and such party thereafter by announcement or by operation of law waives a trial by jury, then in said event any and all adverse party or parties shall be given 10 days' written notice by the clerk of the court of such waiver, whereupon, notwithstanding any rule of the court to the contrary, such adverse party or parties shall have not exceeding five days immediately following the receipt of such notice of waiver, within which to file and serve a demand for a trial by jury and deposit advance jury fees for the first day's trial whenever such deposit is required by rule of court, and if it is impossible for the clerk of the court to give such 10 days' notice by reason of the trial date, or if for any cause said notice is not given, the trial of said action shall be continued by the court for a sufficient length of time to enable the giving of such notice by the clerk of the court to such adverse party."
"Regardless of anything contained in the foregoing to the contrary, the court may in its discretion, upon such terms as may be just, allow a trial by jury to be had, although there has been a waiver of such a trial."
"5. Failure to make deposit. By failing to deposit with the clerk, or justice, a sum equal to the amount of one day's jury fees payable, under the law, as provided herein. In justices' courts such deposit must be made two days prior to the date set for trial or prior to the date to which the trial has been postponed because of the demand for a jury trial; in other courts such deposit must be made 10 days prior to the date set for trial."
"6. By failing to deposit with the clerk or justice, promptly after the impanelment of the jury, a sum equal to the mileage or transportation (if any be allowed by law) of the jury accrued up to that time;"
"7. By failing to deposit with the clerk or justice, at the beginning of the second and each succeeding day's session a sum equal to one day's fees of the jury, and the mileage or transportation, if any there be."
"Jury despite waiver. The court may, in its discretion upon such terms as may be just, allow a trial by jury to be had although there has been a waiver of such trial."
NOTES
[fn. *] *. "Trial by jury may be waived by the several parties to an issue of fact in manner following:
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99 F.3d 1153
Fordv.Morrison*
NO. 95-6327
United States Court of Appeals,Eleventh Circuit.
Aug 12, 1996
1
Appeal From: M.D.Ala., No. 93-01474-CV-A-N
2
REVERSED IN PART, VACATED IN PART.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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102 F.3d 553
G.D.V. Foster Wheelerv.M/V KAIROS**
NO. 95-3320
United States Court of Appeals,Eleventh Circuit.
Nov 22, 1996
1
Appeal From: M.D.Fla., No. 93-02189-CIV-T-25C
2
AFFIRMED.
**
Local Rule 36 case
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378 S.E.2d 446 (1989)
Marshall and Lorena NORMAN
v.
Benjamin Brooks BELCHER.
No. 17338.
Supreme Court of Appeals of West Virginia.
February 17, 1989.
William E. Hamb, Hamb, Poffenbarger & Williams, Charleston, for appellant.
Carrie L. Newton, Ripley, for appellees.
*447 PER CURIAM:
This is an appeal from a final order of the Circuit Court of Kanawha County, entered January 3, 1986, which held that the defendant, Benjamin Brooks Belcher, had failed to prove, by clear and convincing evidence, that he was entitled to a prescriptive easement over the lands of the plaintiffs, Marshall and Lorena Norman. We find no error warranting reversal of the circuit court's decision, and we affirm the judgment.
In November, 1977, the defendant acquired a 15-acre tract of land, located in Malden District, Kanawha County, which is separated from the public highway, Belcher Road, by four other parcels of land, including one owned by the plaintiffs. A paved private roadway leads from Belcher Road to the home of the plaintiffs. When the defendant attempted to use this roadway to enter upon the 15-acre tract, the plaintiffs stopped him and instituted proceedings to enjoin him from trespassing on their land. The defendant counterclaimed, alleging a prescriptive easement over the plaintiffs' property acquired by his predecessors in title.
The matter was referred to a special commissioner, who, after hearing the evidence of the parties, reviewing the land records in the Kanawha County Courthouse, and conducting a view of the property, found that the defendant's predecessors in title had acquired a prescriptive easement over the lands now owned by the plaintiffs. The circuit court overruled and disaffirmed the special commissioner's report, finding that the defendant had failed to prove the existence of such an easement by clear and convincing evidence. It is from this order that the defendant now appeals.
Initially, we note that we are required to review the evidence de novo in this appeal. As we stated in Syllabus Point 3 of Fanti v. Welsh, 152 W.Va. 233, 161 S.E.2d 501 (1968):
"`Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the circuit court, the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the circuit court.' Point 1, Syllabus, Hyre v. Lambert, 45 W.Va. 715 [31 S.E. 927 (1898) ]."
See Parrish v. Pancake, 158 W.Va. 842, 215 S.E.2d 659 (1975). Of course, no special weight is accorded to the lower court's conclusions of law. See Martin v. Pugh, ___ W.Va. ___, 334 S.E.2d 633 (1985); Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980).
The evidence adduced below showed that the 15-acre tract owned by the defendant is horseshoe-shaped, located at the head of a hollow, and surrounded on three sides by steep, mountainous terrain. Two streams originate on the property and converge into a creek which flows southward out of the open end of the tract over adjacent lands currently owned by the plaintiffs and others. The tract currently owned by the plaintiffs was at one time part of a 62.5-acre tract owned by Kinniman Belcher, grandfather of both the defendant and plaintiff Lorena Norman.
The paved roadway leading from Belcher Road to the home of the plaintiffs follows the path of the creek. The evidence fairly shows that at one time, the road continued beyond the plaintiffs' home to a residence located on the 15-acre tract at the point where the two streams converge. A dwelling, historically referred to as the "Buck Anderson place," was shown to have been present at that site as early as 1880. Witnesses testified that the Buck Anderson family had occupied a log house located on the 15-acre tract for at least five or six years at the turn of the century and had used the road as their means of ingress and egress to the property without objection from Kinniman Belcher. Geological survey maps, tax maps, and Department of Highways maps showed the presence of such a road from 1913 until 1971, and the physical imprint of a road leading from the end of the paved roadway along the creek bed to the site of the Buck Anderson house was observed after the institution of this action.
*448 Most of the witnesses who offered an opinion agreed that this road was the only feasible means of access to the 15-acre tract.
The defendant contends that this evidence demonstrates that his predecessors in title, the Buck Anderson family, obtained a prescriptive easement over the 62.5-acre Kinniman Belcher tract for purposes of ingress and egress. The general rules in this regard were recently restated as Syllabus Points 2 and 3 of Keller v. Hartman, ___ W.Va. ___, 333 S.E.2d 89 (1985):
"2. `The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof. In the absence of any one or all of such requisites, the claimant of a private way does not acquire such way by prescription over the lands of another.' Syl. pt. 1, Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908 (1954).
"3. `The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing evidence.' Syl. pt. 1, Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976)."
See Fanti v. Welsh, 152 W.Va. at 236, 161 S.E.2d at 503.
We do not believe the defendant here has met his burden of proof. Although the defendant presented evidence that the Buck Anderson family did use the roadway in question for access to their residence on the 15-acre tract, the direct evidence shows only that they lived there for five or six years at the turn of the century. The uninterrupted use of the roadway for a continuous period of ten years must, like all other elements of the prescriptive right, be proven by clear and convincing evidence by the party asserting it. See Fanti v. Welsh, 152 W.Va. at 233, 161 S.E.2d at 502; Beckley Nat'l Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935). "If there is a substantial doubt as to such user during any substantial part of the time necessary to create the right to prescription, it will be denied." Syllabus Point 4, in part, Perdue v. Ballengee, 87 W.Va. 618, 105 S.E. 767 (1921). In view of the speculative nature of the evidence submitted below on this issue, we cannot say that the defendant carried his burden of proving, by clear and convincing evidence, that his predecessors in title acquired a prescriptive easement over the property now owned by the plaintiffs.
Even if the defendant had demonstrated the existence of a prescriptive easement at the turn of the century, however, we do not believe he would be entitled to the relief sought. The evidence clearly demonstrates that the Buck Anderson house collapsed sometime after 1914 and that the road to the 15-acre tract was not used for vehicular access after 1918 or 1919. The uncontroverted testimony shows that in 1920 or 1921, Kinniman Belcher completely enclosed his 62.5-acre tract with a fence and used the property for a garden until at least 1941. On at least one occasion during this period, Kinniman Belcher refused a third party permission to haul timber over the tract because such activity would damage his garden. When the plaintiffs moved onto the property in 1953, they found a barbed wire fence lying on the ground on the property line behind the house. The roadway stopped at their house, and there was no evidence of any vehicular traffic across their property to the 15-acre tract thereafter.
A private easement may be extinguished by adverse possession wholly inconsistent with the use of the easement. Bauer Enter., Inc. v. City of Elkins, ___ W.Va. ___, 317 S.E.2d 798 (1984); Higgins v. Suburban Improvement Co., 108 W.Va. 531, 151 S.E. 842 (1930); Rudolph v. Glendale Improvement Co., 103 W.Va. 81, 137 S.E. 349 (1927). The elements of adverse possession have recently been restated in Syllabus Points 1 and 2 of White v. Lambert, ___ W.Va. ___, 332 S.E.2d 266 (1985):
"1. `One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the *449 possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title.' Syllabus Point 3, Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 232 S.E. 2d 524 (1977).
"2. `Adverse possession of a right of way granted by deed must be hostile at its inception, adverse, actual, visible, open, notorious, exclusive, under claim of ownership and continuous for the statutory period.' Syllabus Point 1, Higgins v. Suburban Improvement Co., 108 W.Va. 531, 151 S.E. 842 (1930)."
The statutory period for adverse possession is ten years. W.Va.Code, 55-2-1 (1923).
Here, Kinniman Belcher's use of the 62.5-acre tract as an enclosed garden during the 1920's and 1930's satisfies these requirements. His use of the property in such a manner was wholly inconsistent with the use of the roadway as a means of ingress and egress to the 15-acre tract. He expressly refused to allow others to use the roadway for vehicular access during that period. Indeed, there is no evidence that the roadway was used for any vehicular traffic after 1918 or 1919. We believe the evidence here clearly justified the conclusion that any easement acquired by the defendant's predecessors in title had been extinguished by the adverse possession of Kinniman Belcher.
Accordingly, and for the reasons stated herein, the judgment of the Circuit Court of Kanawha County is affirmed.
Affirmed.
McGRAW, J., participated and concurred in this decision, but departed from the Court prior to the preparation of the opinion.
WORKMAN, J., did not participate in the consideration or decision of this case.
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795 F.2d 1018
Lambv.MSPB
86-633
United States Court of Appeals,Federal Circuit.
6/9/86
MSPB, 29 M.S.P.R. 185
Affirmed
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705 F.2d 463
Krockav.City of Evanston
81-2563
UNITED STATES COURT OF APPEALS Seventh Circuit
4/15/83
1
N.D.Ill.
AFFIRMED
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Glodek v Kadmon Holdings, LLC (2018 NY Slip Op 07962)
Glodek v Kadmon Holdings, LLC
2018 NY Slip Op 07962
Decided on November 20, 2018
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 November 20, 2018
Sweeny, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
7679 156177/16
[*1]Kevin Glodek, Plaintiff-Appellant-Respondent,
vKadmon Holdings, LLC, et al., Defendants-Respondents-Appellants.
Golenbock Eiseman Assor Bell & Peskoe, LLP, New York (Martin S. Siegel of counsel), for appellant-respondent.
McKool Smith, P.C., New York (Christopher P. Johnson of counsel), for respondents-appellants.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered April 18, 2017, which, to the extent appealed from, granted defendants' motion to dismiss the complaint and denied defendants' and plaintiff's applications for sanctions, unanimously affirmed, with costs.
Plaintiff's claims are precluded under the terms of the broad general release of known and unknown claims in the parties' settlement agreement (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276-277 [2011]), and plaintiff has not sufficiently alleged that he was fraudulently induced to enter into that agreement. In fact, plaintiff assumed the risk of the exact reverse stock split that now forms the basis of his fraud claim, as this particular risk was specifically disclosed in Kadmon Holdings' limited liability agreement, which plaintiff admitted reviewing before entering into the settlement agreement (id. at 278; Pappas v Tzolis, 20 NY3d 228, 233 [2012]).
The unjust enrichment claim was also correctly dismissed because the settlement agreement governs the parties' rights and responsibilities (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]).
The motion court did not abuse its discretion in denying defendants' motion for sanctions.
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 20, 2018
CLERK
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