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NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ PAMELA MELVIN, Claimant-Appellant v. DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2017-1550 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 16-1015, Judge William Green- berg. ______________________ Decided: August 17, 2017 ______________________ PAMELA MELVIN, Fayetteville, NC, pro se. MEEN GEU OH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent-appellee. Also represented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER; Y. KEN LEE, LARA EILHARDT, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. 2 MELVIN v. SHULKIN ______________________ Before O’MALLEY, REYNA, and TARANTO, Circuit Judges. PER CURIAM. Pamela Melvin (“Melvin”) appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court denied Melvin’s motion for sanctions against the Department of Veterans Affairs (“VA”) and the Veterans Court. See Melvin v. McDonald, No. 16-1015, 2016 U.S. App. Vet. Claims LEXIS 792 (Vet. App. 2016). Because we lack jurisdiction to review the issues Melvin raises in this appeal, we dismiss. I. BACKGROUND Melvin served on active duty in the United States Army from June 9, 1975 to June 8, 1978. In May 2003, Melvin received service connection, effective June 27, 2001, for degenerative joint disease and instability in her right and left knees. After becoming dissatisfied with her medical treatment and benefits, Melvin filed two separate petitions for a writ of mandamus on November 12, 2015 and November 23, 2015. In the petitions, Melvin asked, inter alia, that the Veterans Court direct the VA Secre- tary to provide Melvin with certain medical benefits and treatment, remove certain statements from her medical records, and provide Melvin with access to certain VA records. The Veterans Court consolidated the petitions because they sought duplicative relief and denied most of the petition because Melvin sought relief that the court did not have jurisdiction to grant. After the Veterans Court’s decision, Melvin filed an- other petition for a writ of mandamus, along with a check for the filing fee, on March 11, 2016. This new petition again asked for the Veterans Court to provide Melvin with certain medical benefits and treatment. The Veter- MELVIN v. SHULKIN 3 ans Court did not accept the petition, and Melvin received a notice stating, “[t]he Court has instructed that we return [the filing] as not contemplated by Court’s Rules [sic] and not to open a new petition using this material.” Suppl. App. 31. Melvin then filed a motion on March 18, 2016 “for an appealable judge’s order of the Court’s deci- sion to not accept, to not review, and to return her the March 11, 2016 petition.” Suppl. App. 26. The Veterans Court, apparently unaware that Melvin had submitted a filing fee on March 11, 2016, asked Melvin to remit a filing fee for the new petition. In response to receiving the notice requesting a filing fee for the new petition, Melvin asserts that she called the Clerk’s office at the Veterans Court on March 30, 2016, and informed the Deputy Clerk that she no longer wished to litigate her additional petition. During this conversa- tion, Melvin also requested that the Veterans Court not cash the check she had sent as her filing fee and instead return the check to her. Thereafter, the Veterans Court issued an order on May 12, 2016, stating that it had received—or found— Melvin’s filing fee for her March 11, 2016 petition and that it had jurisdiction to consider a portion of Melvin’s petition regarding certain benefits. The Veterans Court ordered the VA to respond to the part of Melvin’s petition over which the court had determined it could exercise jurisdiction. On May 13, 2016, Melvin filed a motion to dismiss her petition. Melvin alleged that the Veterans Court had ignored her request to dismiss the petition and return the filing fee and instead had used the fee to file the petition so that the VA could “make certain statements and alle- gations for another matter.” Suppl. App. 38. Melvin filed a related motion on May 16, 2016, requesting that the Veteran’s Court, pursuant to its inherent power, impose sanctions on the VA for “willful and bad faith harass- 4 MELVIN v. SHULKIN ment” and for having the Clerk’s office file her petition “by unlawful means,” thereby “forcing her to litigate this case against her will.” Suppl. App. 44. The Veterans Court acknowledged Melvin’s argu- ments but found that “the alleged facts presented simply are not true.” Melvin, 2016 U.S. App. Vet. Claims LEXIS 792, at 2. The court explained that it asked the VA to file a response in this matter “based on an apparent mistaken belief that [Melvin] requested that the filing fee she had already paid be used for this petition.” Id. The court granted Melvin’s motion to dismiss the petition, revoked the order requesting the VA to respond, returned Melvin’s filing fee to her, and denied Melvin’s motion for sanctions. Melvin now appeals the Veterans Court’s denial of her motion for sanctions. We have jurisdiction pursuant to 38 U.S.C. § 7292. II. DISCUSSION We have limited subject matter jurisdiction to review appeals from the Veterans Court. We have jurisdiction to “review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Unless an appeal presents a constitutional issue, we cannot review “a challenge to a factual determi- nation” or “a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2). Melvin asserts that the Veterans Court had inherent authority to issue sanctions and “the responsibility to control its litigating proceedings and the conduct of those before it.” Appellant’s Informal Br. 8. Melvin argues that the court should have granted sanctions “for the filing of this case in Melvin’s name without her consent and knowledge.” Id. Melvin also alleges that the VA attor- MELVIN v. SHULKIN 5 neys had access to and control over her computer and repeatedly deleted her drafts of her brief in this case. Id. at 8–9. Melvin argues that the filing of this case without her consent violated her Fifth Amendment right to liberty and right to engage in conduct without intervention of the government. Melvin also argues that the filing of her case and the deletion of her draft briefs violated her Fifth Amendment right to equal protection because it forced her to be a party in a court case and provided the court with personal jurisdiction over her. According to Melvin, the VA attorneys also violated numerous federal laws and committed fraud when they allegedly filed this case. Melvin’s request for sanctions is inherently a factual question, which leaves it outside the scope of our jurisdic- tion to review appeals from the Veterans Court. See 38 U.S.C. § 7292(d)(2); see also Melvin v. McDonald, 634 F. App’x 309, 311 (Fed. Cir. 2015) (“Whether sanctions are appropriate [in an appeal from the Veterans Court] is a factual matter outside the jurisdiction of this court.”); Malik v. McDonald, 618 F. App’x 1007, 1012 (Fed. Cir. 2015) (explaining that a decision by the Veterans Court not to impose sanctions “is factual in nature, and thus unreviewable by this Court”). Although Melvin attempts to frame her appeal as one involving constitutional issues under the Fifth Amendment, Melvin never raised any constitutional challenges in her motion for sanctions filed with the Veterans Court, see Suppl. App. 44–53, and thus has waived her constitutional arguments. See, e.g., Charles v. Shinseki, 587 F.3d 1318, 1322 (Fed. Cir. 2009) (finding an argument waived because the party raised it for the first time on appeal). Because Melvin’s appeal raises factual questions and she has waived any potential constitutional arguments, we lack jurisdiction to consider this portion of Melvin’s appeal. 6 MELVIN v. SHULKIN Even if we were to consider Melvin’s constitutional arguments on the merits, which would allow us to consid- er a challenge to a factual question, the Veterans Court’s decision is correct. Based on the record before us, the Veterans Court accepted Melvin’s March 11, 2016 petition and requested a response from the VA because of an apparent misunderstanding regarding Melvin’s desire to pursue the merits of the petition she filed with the court. See Melvin, 2016 U.S. App. Vet. Claims LEXIS 792, at 1– 2. Upon learning that Melvin wished to have her petition voluntarily dismissed and her filing fee returned to her, the Veterans Court dismissed the petition and returned the filing fee to Melvin. Id. Even if we assume that the Fifth Amendment covers the scope of constitutional protections alleged by Melvin, there is no evidence to support Melvin’s claim that a constitutional violation occurred. Melvin also filed a Second Supplemental Informal Brief in which she seeks to add additional issues to this appeal. Melvin asks that we declare that the Veterans Court does not have jurisdiction to consider cases involv- ing certain types of medical benefits. Melvin’s request does not have any bearing on the writ of mandamus that gave rise to this appeal and was voluntarily dismissed at the request of Melvin. Indeed, the Veterans Court agreed with Melvin’s position—i.e., that it does not have jurisdic- tion to consider cases involving the types of medical benefits raised by Melvin—when addressing the consoli- dated case involving her two petitions for a writ of man- damus. Melvin’s requested declaration regarding the Veter- ans Court’s jurisdiction appears to be based on statements allegedly made by the VA in other cases litigated in other federal courts. Because Melvin’s requested declaration does not have any bearing on this appeal, the issues raised in Melvin’s Second Supplemental Informal Brief effectively amount to a request for an advisory opinion MELVIN v. SHULKIN 7 regarding the jurisdiction of the Veterans Court. It is well established that federal courts do not have jurisdic- tion to render advisory opinions. See, e.g., Flast v. Cohen, 392 U.S. 83, 96–97 (1968) (explaining that “no justiciable controversy is presented when . . . the parties are asking for an advisory opinion” and that the “oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions”); Hay- burn’s Case, 2 U.S. (2 Dall.) 409 (1792). We therefore do not have jurisdiction to entertain Melvin’s arguments in the Second Supplemental Informal Brief. III. CONCLUSION We have considered Melvin’s remaining arguments, and we find them unpersuasive. For the foregoing rea- sons, we dismiss Melvin’s appeal for lack of jurisdiction. DISMISSED COSTS No costs.	{ "pile_set_name": "FreeLaw" }
404 Mass. 256 (1989) 534 N.E.2d 1153 COMMONWEALTH vs. WILLIAM J. GRIFFITH. Supreme Judicial Court of Massachusetts, Franklin. November 8, 1988. March 9, 1989. Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & O'CONNOR, JJ. Thomas Lesser (William C. Newman with him) for the defendant. Ariane D. Vuono, Assistant District Attorney, for the Commonwealth. LIACOS, J. The defendant, William J. Griffith, was convicted by a jury of murder in the first degree, attempted armed robbery, illegal possession of a firearm, and using a firearm while committing a felony.[1] He appeals from the denial of his motion for a new trial and of his motion to set aside the verdict of murder in the first degree and to enter a finding of guilty of a 258 lesser offense. The defendant argues numerous claims of error, each of which we discuss below. We conclude that we shall affirm the judgment of conviction. We summarize the facts as the jury could have found them. On the evening of March 28, 1980, the defendant went with his friends, Dawn and David Stowell, to a house in Worcester. At the house, the defendant received a revolver and a bag of marihuana from a friend, consumed "a few beers," and shared a gram of cocaine with the friend, while the Stowells waited in the automobile. The defendant rejoined the Stowells and smoked between six and eight "joints" of marihuana with them. They then proceeded to the apartment of the defendant's cousin in Athol. The defendant smoked more marihuana with his cousin and another companion. He changed his clothing, replacing the jacket he was wearing with a green Army jacket. He then announced to his companions that he was going to rob "Bill's Market," an establishment about a block away. The defendant left the apartment and walked to Bill's Market. He sat in the rain on the steps outside the store, waiting for the customers to leave. The defendant entered the store, showed his gun to the victim, and demanded money. The victim started yelling, and the victim's wife approached the two men. The defendant turned toward the wife, and the victim stepped into a side room. When the defendant turned to look for the victim, the victim's wife went to a telephone in the back to call the police. The victim emerged from a side room with a baseball bat, with which he struck the defendant on the shoulder, head, and arm. The defendant's gun fired,[2] and the victim was struck in the head by a single bullet.[3] The victim slumped down to the floor, one hand clutching some paper money. The defendant went to the cash register and unsuccessfully tried to open it. He returned to his cousin's apartment and related to those there what had transpired at Bill's Market. 259 1. Intoxication instruction. The defendant was convicted of murder in the first degree based solely on a theory of felony-murder. The underlying felony on which the murder conviction was based was attempted armed robbery. G.L.c. 265, § 1 (1986 ed.). The defendant contends that it was reversible error for the judge to instruct the jury not to consider evidence of the defendant's intoxication on the issue of his specific intent to steal, "an essential element of the crime of robbery." Commonwealth v. Sheehan, 376 Mass. 765, 772 (1978). In making this argument, the defendant primarily relies on Commonwealth v. Henson, 394 Mass. 584 (1985), which, he says, applies retroactively to this case. The Commonwealth argues, however, that Henson, decided in 1985, is not applicable to this trial, which occurred in 1981.[3a] In Commonwealth v. Henson, supra at 593, we held that "where proof of a crime requires proof of a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should intruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt." As of the time of the trial in this case, "the relevance of evidence of voluntary intoxication to the proof of specific intent under the Henson rule had been clearly foreshadowed by our earlier decisions." Commonwealth v. Shine, 398 Mass. 641, 655 (1986), citing Commonwealth v. Sheehan, supra at 773-775 (listing the prerequisites for modification of the pre-Henson rule). The Henson decision, then, did not announce a "new rule" and may be applied retroactively to the case at hand. See Commonwealth v. Ennis, 398 Mass. 170, 175 (1986). In a felony-murder case, the intent to commit the underlying felony substitutes for the malice element required in an ordinary murder case. Commonwealth v. Matchett, 386 Mass. 492, 502 (1982). In order to convict a defendant of felony-murder, the Commonwealth must prove beyond a reasonable doubt all the elements of the underlying felony. Where attempted armed 260 robbery is the underlying felony, the Commonwealth must prove beyond a reasonable doubt the specific intent necessary to that underlying felony. While the judge's instruction to the jury precluding them from considering evidence of intoxication was erroneous under Henson, these errors did not create a substantial likelihood of a miscarriage of justice.[4] Although there was evidence that the defendant had consumed drugs and alcohol, there was virtually no evidence that this consumption had any effect on the defendant's capacity to form the specific intent to steal, a necessary element of the crime of armed robbery. See Commonwealth v. Fano, 400 Mass. 296, 307 (1987); Commonwealth v. Gil, 393 Mass. 204, 221 (1984). The conduct of the defendant, as related by the prosecution's witnesses at trial, did not reveal any manifestations of intoxication. Commonwealth v. Fano, supra. The defendant had obtained a gun before ingesting any drugs or alcohol and sat outside the store in the rain waiting until all customers and passersby had departed so that there would be fewer witnesses present to identify him. After shooting the victim, the defendant tried to take money from the cash register. In addition, the defendant had told his friends before the incident "that he was going to rob Bill's Market." Additionally, the defendant himself acknowledged at trial that he had entered the store and pulled out his gun "for the purpose of committing an armed robbery." In short, "[t]he evidence of guilt ... was overwhelming." Commonwealth v. Shine, supra at 655. The trial judge's charge to the jury on intoxication did not create a substantial likelihood of a miscarriage of justice. 2. Felony-murder. The defendant claims that the judge erred in failing to instruct the jury that the Commonwealth had the burden of proving that the shooting was not accidental. In a nonfelony-murder case, the fact that the shooting was accidental negates the malice element required for murder. Lannon v. Commonwealth, 379 Mass. 786, 790 (1980). However, in a 261 felony-murder case, accident does not negate malice. Commonwealth v. Evans, 390 Mass. 144, 151-152 (1983). "The effect of the felony-murder rule is to substitute the intent to commit the underlying felony for the malice aforethought required for murder." Commonwealth v. Matchett, 386 Mass. 492, 502 (1982). Consequently, assuming proof of specific intent to commit the predicate felony, the fact that the shooting was accidental has no effect on the malice element in a felony-murder case. "A defendant who kills a victim in the commission or attempted commission of a robbery, while the defendant is armed with a gun, is guilty of murder by application of the felony-murder rule.... The fact that, according to the defendant, the gun was discharged accidently is of no consequence." Commonwealth v. Evans, supra at 151-152. There was no error. 3. Ballistics expert. The defendant, citing Commonwealth v. Seit, 373 Mass. 83, 92 (1977), asserts that the judge impermissibly permitted the Commonwealth's ballistics expert to state his opinion whether a blow to the defendant's arm could have caused his gun to discharge accidentally. That such an opinion was within the expertise of the expert is a matter within the sound discretion of the trial judge. Id. There was no error. Additionally, even if we assume there was error, it was harmless. The defendant claimed that he accidentally fired the gun when the victim hit him on the arm with a baseball bat. The Commonwealth's ballistics expert testified that it would have been impossible for the gun to have discharged as a result of a blow on the arm. As discussed above, in a case tried solely under a felony-murder theory, it is of no consequence that the gun allegedly discharged accidentally. See Commonwealth v. Evans, supra at 152. Even if the jury had credited the ballistics expert's testimony and had found that there was no accident, such a conclusion would have had no bearing on whether the defendant was guilty of felony-murder.[5] 262 4. Effective assistance of counsel. The defendant asserts that he must be granted a new trial because he was deprived of effective assistance of counsel. We disagree. When presented with a claim of ineffective assistance of counsel, we must make "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We apply this standard in turn to each of the defendant's claims of incompetency of his trial counsel. a. Intoxication issue. The defendant claims that counsel should have objected to the instruction on intoxication. Given the lack of evidence presented regarding the effect of the intoxicants on the defendant's capacity to form the necessary specific intent and the fact that the defendant himself admitted having the requisite specific intent, an objection to the judge's charge on intoxication would not have "accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). "Whether counsel simply failed to notice the omission or had decided not to pursue this claim, given the lack of evidence of intoxication, the failure to object does not constitute ineffective assistance of counsel." Commonwealth v. Fano, 400 Mass. 296, 305 n. 15 (1987). The defendant also claims that counsel's failure to develop the intoxication issue through expert testimony constituted ineffective assistance. The defendant has not shown that expert testimony on the effects of drugs and alcohol on the defendant would have "accomplished something material for the defense." Commonwealth v. Satterfield, supra. "The evidence simply did not support a finding that the defendant was so far overcome by intoxicants as to be incapable" of forming the specific intent to commit armed robbery. Commonwealth v. Doucette, 391 Mass. 443, 458 (1984). 263 b. Closing argument. The defendant contends that his trial counsel, in closing argument, abandoned his role as an advocate by conceding the strength of the Commonwealth's case. We disagree. The Commonwealth presented overwhelming evidence that the defendant shot the victim during an attempted robbery. Against the advice of his counsel, the defendant took the stand and essentially confessed to having committed felony-murder. In this context, counsel made the following statement: "[T]he State must prove to you beyond a reasonable doubt every single element of the crime with which he is charged.... As a matter of fact, under the eyes of the law at this moment, as he sits there, he is presumed innocent.... Now, after what you've heard from the witness stand on this case, I think I would be somewhat less than realistic if you would find [the defendant] not guilty." Counsel went on to argue that the defendant should be convicted of "no more than manslaughter." Considering the overwhelming evidence against the defendant, we cannot say that counsel's statement constituted ineffective assistance of counsel. "[T]he basic trouble from the defense standpoint was weaknesses in the facts rather than any inadequacy of counsel." Commonwealth v. Satterfield, supra at 111. Commonwealth v. Mercado, 383 Mass. 520, 528 (1981). See Delle Chiaie v. Commonwealth, 367 Mass. 527, 537-538 (1975).[6] In view of the situation with which the defense counsel was faced, we cannot conclude that his trial tactics were "manifestly unreasonable." Commonwealth v. Adams, 374 Mass. 722, 728 (1978). Counsel did not abandon his role as an advocate 264 in arguing for mitigation in the face of an almost insurmountable case against the defendant.[7] c. Other claims. (1) The defendant claims that counsel's failure to develop the accident issue constituted ineffective assistance of counsel. Counsel's failure to develop the defense of accident could not have "deprived the defendant of an otherwise available, substantial ground of defence," Commonwealth v. Saferian, supra at 96, for, as discussed above, accident is no defense to felony-murder. (2) The defendant claims that defense counsel failed to inform him about the elements of, and potential defenses to, the crimes charged. The defendant did not make this claim at the hearing on his motion for a new trial. There is nothing in the record to support the claim. The defendant has not satisfied his burden of proving that trial counsel failed to inform him of the nature of the charges against him and of the defenses available to him. See Commonwealth v. Levia, 385 Mass. 345, 352 (1982). (3) The defendant claims that he was unaware that he would be subject to cross-examination when he testified, because counsel had failed to inform him. The judge who heard the motion for a new trial found it "impossible to believe his contention that he did not know he would be cross examined if he took the stand." We defer to the judge's determination on credibility. See Commonwealth v. Irwin, 391 Mass. 765, 770 (1984). 5. Self-defense. The defendant claims that the judge erroneously shifted the burden of proof to the defendant in his instruction to the jury on self-defense. We hold that, if there was any error, it was harmless because the defendant was not entitled to any self-defense instruction based on the evidence presented to the jury. "[T]he right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless that person 265 withdraws in good faith from the conflict and announces his intention to retire.... [T]he right to claim self-defense may be forfeited by one who commits an armed robbery, even if excessive force is used by the intended victim...." (Citation omitted.) Commonwealth v. Maguire, 375 Mass. 768, 772-773 (1978). Commonwealth v. Evans, 390 Mass. 144, 153-154 (1983). The defendant clearly was the initiator of an armed robbery. There was no evidence that the defendant withdrew from the conflict after the victim began hitting him with the baseball bat, although an unimpeded avenue of egress was available to him. "A right of self-defense was not available in this case because there is no evidence that the defendant withdrew from the conflict." Commonwealth v. Evans, supra at 153. Commonwealth v. Johnson, 379 Mass. 177, 180-181 (1979). 6. Accomplice testimony. The defendant argues that the judge erred in failing to instruct the jury that the testimony of Dawn and David Stowell should be scrutinized with care because allegedly they were accomplices to the crime. In this Commonwealth a "judge is not required to give a cautionary instruction to the jury" on accomplice credibility. Commonwealth v. Watkins, 377 Mass. 385, 389 (1979). Commonwealth v. Liebman, 379 Mass. 671, 679 (1980). Commonwealth v. Allen, 379 Mass. 564, 584-585 (1980). 7. Prosecutor's impeachment of his own witnesses. The defendant claims that the judge improperly allowed the prosecution to impeach its own witnesses. During the direct examination of several witnesses for the prosecution, the prosecutor elicited the fact that they were testifying in exchange for his promise not to seek indictments against them. In Commonwealth v. Cadwell, 374 Mass. 308 (1978), we held that it was permissible for the prosecution to elicit its own witness's prior criminal record on direct examination. "The essential import of Cadwell is that the jury are entitled to information regarding the witness's prior conviction as that information bears on his credibility, but that neither party has an unalterable prerogative to bring out these facts at a particular time and `in a perhaps more dramatic way.'" Commonwealth v. Coviello, 378 Mass. *266 530, 533 (1979), quoting Commonwealth v. Cadwell, supra at 312. Similarly, evidence of an agreement for leniency between the witness and the prosecution may be introduced by either party at the discretion of the trial judge. The defendant, having failed to object to the prosecutor's questions, must demonstrate a substantial likelihood of a miscarriage of justice. He has not done so. 8. Chapter 278, § 33E, review. We have reviewed the entire record and transcript pursuant to G.L.c. 278, § 33E (1986 ed.), and we conclude that the interests of justice demand neither a new trial nor the entry of a verdict of a lesser degree of guilt. Judgment affirmed. NOTES [1] The defendant appeals only his conviction of murder in the first degree. The remaining indictments were placed on file with the defendant's consent. See Commonwealth v. Sanchez, 403 Mass. 640, 641 n. 1 (1988), and cases cited. [2] The defendant claimed that the gun fired accidentally when the victim hit him on the arm. We address the import of this contention below. [3] The victim died from the gunshot wound on March 31, 1980. [3a] The Commonwealth conceded at oral argument that Henson applies retroactively to this case. Nevertheless, because of the importance of the issue, we address it here. [4] We apply the "substantial [likelihood] of a miscarriage of justice" standard because of the defendant's failure to object. See Commonwealth v. Shine, supra at 655; Commonwealth v. Ennis, supra at 176. Contrast Commonwealth v. Parker, 402 Mass. 333 (1988) (defendant objected to the charge). [5] The jury found the defendant guilty of attempted armed robbery. "Where a jury reach a determination that the statutory `circumstance' (in this case [attempted] armed robbery[]) has been met, they should return a verdict of murder in the first degree." Commonwealth v. Benjamin, 399 Mass. 220, 225 (1987), quoting Commonwealth v. Dickerson, 372 Mass. 783, 797 (1977). [6] In Delle Chiaie, the court refused to hold that a tactical decision to concede the defendant's guilt constituted ineffective assistance of counsel. The defense counsel had made the following statement to the jury: "`[I]t would also be not only futile but would be an insult to your intelligence ... to say that the facts as they have been established, with the connection adding one item, one incident after another, that this defendant was not the person who was responsible for the death of that little girl.'" Delle Chiaie, supra at 537-538 n. 3. [7] Unlike Commonwealth v. Street, 388 Mass. 281 (1983), and Commonwealth v. Westmoreland, 388 Mass. 269 (1983), cited by the defendant, trial counsel did not abandon defenses which were supported on sufficient evidence in the record.	{ "pile_set_name": "FreeLaw" }
People ex rel. Kim v Smith (2017 NY Slip Op 08782) People v Smith 2017 NY Slip Op 08782 Decided on December 14, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 14, 2017 524819 [1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. BRIAN KIM, Appellant, vBRANDON J. SMITH, as Superintendent of Greene Correctional Facility, et al, Respondents. Calendar Date: October 24, 2017 Before: Garry, J.P., Egan Jr., Devine, Rumsey and Pritzker, JJ. Brian Kim, Flushing, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for Brandon J. Smith and another, respondents. Zachary W. Carter, Corporation Counsel, New York City (Jonathan A. Popolow of counsel), for New York City Department of Correction, respondent. MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Fisher, J.), entered March 31, 2017 in Greene County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Following completion of the term of imprisonment imposed upon his federal conviction of passport fraud, petitioner was delivered to the custody of the Department of Corrections and Community Supervision to begin serving the indeterminate sentence imposed upon his conviction of various larceny-related crimes in New York County. While so incarcerated, petitioner commenced this proceeding seeking a writ of habeas corpus, alleging that he was entitled to certain jail-time credit that, if properly calculated, would result in a parole eligibility date of September 19, 2016 — rather than December 24, 2016. Respondents, noting that petitioner had been released to parole supervision on December 17, 2016, urged Supreme Court to deny the proceeding as moot. Supreme Court granted respondents the requested relief, prompting this appeal. We affirm. Inasmuch as petitioner has been released to parole supervision, the instant proceeding — wherein petitioner seeks an immediate release from state custody — is moot (see [2]People ex rel. Yourdon v Semrau, 133 AD3d 1351, 1351 [2015]; People ex rel. Anderson v James, 125 AD3d 1329, 1330 [2015]; People ex rel. Roman v Haggett, 79 AD3d 1470, 1471 [2010]; People ex rel. Melendez v McLaughlin, 30 AD3d 922, 923 [2006]), and we discern no basis upon which to invoke the exception to the mootness doctrine (see People ex rel. Roman v Haggett, 79 AD3d at 1471; People ex rel. Limmer v McKinney, 23 AD3d 806, 807 [2005]). Moreover, contrary to petitioner's assertion, the issues presented do not affect his maximum expiration date and, therefore, we decline his invitation to convert this matter to a CPLR article 78 proceeding and address the merits (see People ex rel. Keyes v Khahaifa, 101 AD3d 1665, 1665 [2012], lv denied 20 NY3d 862 [2013]; compare People ex rel. Davidson v Smith, 142 AD3d 1237, 1237-1238 [2016]; People ex rel. Albert v Schneiderman, 120 AD3d 856, 856 [2014]). Garry, J.P., Egan Jr., Devine, Rumsey and Pritzker, JJ., concur. ORDERED that the judgment is affirmed, without costs.	{ "pile_set_name": "FreeLaw" }
835 F.2d 345 266 U.S.App.D.C. 281, 20 Soc.Sec.Rep.Ser. 96,Medicare&Medicaid Gu 36,759 BILOXI REGIONAL MEDICAL CENTER, Appellant,v.Otis R. BOWEN, Secretary, Dept. of H.H.S. No. 86-5615. United States Court of Appeals,District of Columbia Circuit. Argued Oct. 2, 1987.Decided Dec. 18, 1987. Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-00043). Ronald N. Sutter, Washington, D.C., for appellant. Thomas K. Stuber, Atty., Dept. of Health and Human Services, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice and Joseph E. diGenova, U.S. Atty., Washington, D.C., were on the brief, for appellee. Before EDWARDS, STARR and D.H. GINSBURG, Circuit Judges. Opinion for the Court filed by Circuit Judge D.H. GINSBURG. D.H. GINSBURG, Circuit Judge: 1 This case arises under the Medicare reimbursement provisions of Title XVIII of the Social Security Act ("the Act"), 42 U.S.C. Sec. 1395 et seq. (1982), and implementing regulations promulgated by the Secretary of Health and Human Services ("the Secretary"). Under the Act and regulations, hospitals and other health care facilities that provide covered health care services to Medicare beneficiaries are ordinarily reimbursed for the actual reasonable costs they incur in delivering those services. 42 U.S.C. Sec. 1395f(b) (1982).1 The appellant, Biloxi Regional Medical Center ("the Center"), rents hospital facilities owned and originally equipped by the City of Biloxi, Mississippi. During its 1982 cost reporting year, the Center's rental payments to the City totaled $800,000. When the Center claimed a portion of these payments as a reasonable cost attributable to its care of Medicare beneficiaries, however, the Center's fiscal intermediary2 denied reimbursement for the payments. 2 The Center appealed to the Provider Reimbursement Review Board ("PRRB"),3 which affirmed the decision of the intermediary.4 The PRRB, like the intermediary, determined that the Center and the City of Biloxi were "organizations related ... by common ownership or control," i.e., that the City controlled the Center. Under regulations promulgated by the Secretary, a provider of covered health services that is furnished services, facilities, or supplies by such a "related organization" is reimbursed for the costs incurred by the related, supplying organization, but only to the extent that such "cost[§ do] not exceed the price of comparable services, facilities, or supplies that could be purchased elsewhere." 42 C.F.R. Sec. 405.427(a) (1982).5 Maintaining that the PRRB improperly applied the related organizations regulation, the Center filed a civil action against the Secretary in the District Court,6 which granted summary judgment in favor of the defendant.7 The Center appealed and, for the reasons set forth below, we reverse. 3 * The Center is a not-for-profit corporation chartered in the State of Mississippi in 1981. By the terms of an agreement dated May 29, 1981, the Center assumed the operation of a hospital formerly known as Howard Memorial Hospital. Signatories to this agreement included the Center, the City, and three other parties: New Biloxi Hospital ("NBH"), which had operated Howard Memorial Hospital since 1963 under a lease from the City; Methodist Hospitals of Memphis, Tennessee ("Methodist"), a corporation that operates health care facilities; and American Medical Management Hospital Group, Inc. ("AMM"), a subsidiary of Methodist. The 1963 lease had provided NBH with a rent-free term of twenty-five years, with an option to renew the lease for an additional twenty-five years.8 Under the 1981 agreement, NBH assigned the lease, with certain revisions, to the Center. Methodist agreed to affiliate with the Center and to lend its cooperation and expertise in establishing the facility as a regional medical center. The agreement recognized AMM as the Center's intended management group and guarantor of the Center's financial responsibilities under the agreement.9 4 In assuming NBH's obligations, the Center agreed to operate Howard Memorial Hospital under the name Biloxi Regional Medical Center, but also promised "to begin as soon as practical and possible plans for the construction of new facilities." J.E. at 275. If the Center did not substantially complete the new facilities by July 1, 1985, the City reserved the right to cancel the agreement and take over operation of the hospital. 5 For purposes of this case, the most significant revision of the 1963 lease between the City and NBH concerns the Center's agreement to make monthly rental payments to the City in "an amount determined after an independent rental appraisal has been completed by a qualified appraisal firm." Id. at 279. After the agreement was signed, an appraisal firm determined that the annual fair market rental value of the facility was $800,000. The Center paid this amount to the City during its 1982 cost reporting year; in its 1982 cost report to its fiscal intermediary, Blue Cross and Blue Shield of Mississippi ("Blue Cross"), the Center claimed slightly more than $450,000 of these payments as a reasonable and reimbursable cost allocable to Medicare. 6 Blue Cross denied the Center's claim on the ground that the Center and the City were related organizations within the meaning of the Secretary's regulations. In reaching this conclusion, Blue Cross relied upon an opinion issued from the Secretary's Regional Office concluding that although "the City [was] not involved in the day to day operations of the Center," the City and the Center were related by common control. Id. at 264.10 As a result of this finding, the Center was reimbursed only about $93,000, representing the City's allocable costs of owning the hospital.11 7 The PRRB affirmed, but it relied principally on the clause in the 1981 agreement providing that upon the expiration of the lease, "the proceeds of the [Center's] operations would revert to the City." Id. at 35. Reading its decision generously, the PRRB appears also to have relied upon five other factors (only one of which had been mentioned by the intermediary) indicative, in its view, of the City's control over the Center: (1) the power given in the agreement to the mayor of the City to approve or reject non-physician candidates selected by AMM to fill four of the nine seats on the Center's Board of Directors; (2) the City's assistance to the Center in financing the construction of the new facility by issuing bonds; (3) a provision in the agreement for the City to take title to all furniture, equipment, and so on, at the expiration of the lease; (4) a clause in the 1963 lease stating that it would be in the City's best interest to lease the hospital to NBH; and (5) the City's extension of the Center's deadline for substantially completing the new facility without requiring additional consideration from the Center. Id. at 35-36.12 8 In granting summary judgment in favor of the Secretary, the District Court held that the PRRB's decision was supported by substantial evidence. The court thought it unnecessary to analyze all the factors on which the PRRB had relied, however; in that court's view, the mayor's power to approve or reject four members of the Center's Board of Directors was sufficient in itself to sustain the finding of relatedness on the ground that the City controlled the Center. II 9 Our review in this case, like that of the District Court, is limited to determining whether, on the record as a whole, the PRRB's decision is supported by substantial evidence.13 Our review proceeds as if this case were an immediate appeal from a decision reached after an administrative hearing on the record. The District Court's decision is not entitled to any particular deference. Walter O. Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 790 n. 2 (D.C.Cir.1984); see Regents of the Univ. of California v. Heckler, 771 F.2d 1182, 1187 (9th Cir.1985) ("[W]e review the Secretary's action under the same standard as did the district court."). Before discussing the record evidence, however, we pause briefly to describe the concept of "related organizations" and its significance in the labyrinth of Medicare reimbursement regulations. 10 * The Medicare program established by Title XVIII of the Social Security Act provides federally funded health insurance for the aged and disabled. Under the Act, payments on behalf of eligible individuals are made to health care providers with whom the Secretary has entered into "provider agreements." 42 U.S.C. Sec. 1395cc (1982). For cost reporting years prior to October 1, 1983, these providers are reimbursed for their "reasonable costs"--costs "actually incurred, excluding therefrom any part of the incurred cost found to be unnecessary in the efficient delivery of needed health services" as "determined in accordance with regulations" promulgated by the Secretary. Id. at Secs. 1395f(b), 1395x(v)(1)(A) (1982); see 42 C.F.R. Sec. 413.9(b) (1986). 11 The Secretary's regulations set forth with particularity the methods to be used in determining the reasonable costs for which providers will be reimbursed. The overall objective of these regulations is to ensure that the Medicare program pays only for the cost of the services that providers render to beneficiaries--no more and no less.14 In accordance with this objective, reimbursement is allowed for both direct and indirect costs incurred by providers, including an allocable portion of the rent a provider pays to occupy and operate facilities owned by others. 42 C.F.R. Sec. 413.130(b) (1986). 12 The Secretary has decided, however, that when services, facilities, or supplies are furnished to a provider by a "related organization," there is "a significant likelihood that charges incurred by providers ... will be artificially inflated because of the absence of bona fide arms-length bargaining." American Hosp. Management Corp. v. Harris, 638 F.2d 1208, 1212 (9th Cir.1981). To ensure that the Medicare program will not bear the costs of such self-dealing, the Secretary has promulgated a prophylactic rule defining reimbursable reasonable costs in the context of transactions between related organizations. "Reasonable costs" for such a provider are the actual costs incurred by the related supplier, rather than the amount the provider pays to it. 42 C.F.R. Sec. 405.427(a) (1982). See Pasadena Hosp. Ass'n v. United States, 618 F.2d 728, 723-33 (Ct.Cl.1980); Goletta Valley Community Hosp. v. Schweiker, 647 F.2d 894, 897 (9th Cir.1981). As other courts have said, the related organization rule thus "serves to screen out both costs not actually incurred and unreasonable costs. That is to say, the regulation precludes reimbursement for cost increases due solely to transactions between different parts of a single economic unit, and it polices 'sweetheart' contracts with suppliers that may inflate costs to the provider." Valley View Community Hosp. v. United States, 679 F.2d 857, 861 (Ct.Cl.1982) (quoting Medical Center of Independence v. Harris, 628 F.2d 1113, 1119 (8th Cir.1980)). 13 The rule is prophylactic in the sense that it involves a judgment that the probability of abuse in transactions between related organizations is significant enough that it is more efficient to prevent the opportunity for abuse from arising than it is to try to detect actual incidents of abuse. See Stevens Park Osteopathic Hosp. v. United States, 633 F.2d 1373, 1379 (Ct.Cl.1980). As a result, the rule limits reimbursement for many transactions between related parties to levels below what might otherwise be entirely reasonable and reimbursable "costs" if incurred by providers dealing with unrelated suppliers. The rule's potential over-inclusiveness does not, however, affect its validity; the Secretary need not promulgate regulations with exacting precision: 14 [I]n a program as complex as the Medicare program, with its large number of providers and suppliers and with its range of supplies and services, the Secretary, in his regulations may make ... generalized classifications governing the methods of calculating "reasonable costs" when it is obvious that individualized cost calculations are both not administratively practical and unduly expensive. 15 Fairfax Hosp. Ass'n v. Califano 585 F.2d 602, 606 (4th Cir.1978) (footnote omitted) (citing Weinberger v. Salfi, 422 U.S. 749, 773-80, 95 S.Ct. 2457, 2470-74, 45 L.Ed.2d 522 (1975)). 16 The potential breadth of the related organizations rule is tempered, however, by the kinds of "relatedness" to which it is applicable.15 Specifically, the Secretary has focused on two types of relatedness that, in his view, involve an unacceptably high risk of abuse. Thus, the rule only comes into play when the relation between a provider and a supplying entity is one of "ownership" or "control."16 In this case, we focus specifically on the type of relatedness on which the PRRB based its decision--namely, "control"--and, in accordance with the Secretary's definition of that term, we ask whether the City "has the power, directly or indirectly, significantly to influence or direct the actions or policies of" the Center. 42 C.F.R. Sec. 405.427(b)(3) (1982). B 17 Our examination of the record convinces us that the district court erred in concluding that substantial evidence supports the decision of the PRRB. We first examine the factor considered by the District Court to be dispositive evidence of such control, and then briefly discuss the PRRB's reliance on other record evidence. 18 The District Court found substantial evidence of control in a clause of the 1981 agreement conferring on the mayor of the City the power to approve four candidates selected by AMM to serve on the Center's nine-member Board of Directors. The court reasoned that: 19 The veto power, if used forcefully, can have a significant influence on the composition of the board. Moreover, knowledge that reappointment may be barred if the board's decisions displease the mayor could potentially affect the actions of the board members. It was therefore reasonable for the [PRRB] to infer that persons approved would be influenced by gratitude for approval and by a desire to maintain the opportunity for reappointment. 20 We disagree with the district court's analysis for several reasons. We acknowledge that the continued operation of the hospital was a matter of great importance to the City and to its people. It is entirely understandable that the City wished to have some check on the policy-making body of the hospital. Our examination of the mayor's power convinces us that the City was willing to accept a very modest role, however. Although not dispositive, we note that the "control" envisioned by the District Court remained entirely potential; affidavits by the current and former mayors of the City indicate that they approved all the candidates selected by AMM without any independent investigation of their background. J.E. at 68, 70. There are additional reasons, however, that convince us that whatever potential role the mayor's veto power conferred upon the City in its relations with the Center, that role cannot without more be equated with "the power, directly or indirectly, significantly to influence or direct the actions or policies of" the Center. 21 First, the mayor's power is limited to vetoing candidates for a minority of the seats on the Center's Board of Directors; it offers no opportunity for the mayor to name a single member of the Board.17 Merely having such a negative potential check cannot be equated with the power to place agents of the City on the Center's board. Nor is there any evidence in the record that any of the Center's directors is or ever has been associated with the City in any meaningful capacity.18 22 Second, from the terms of the agreement, it seems extremely unlikely that any gratitude that approved directors might have toward the mayor, or any desire such directors may have to maintain their board positions, would result in a board decision designed to curry favor with the City should its interests diverge from those of the Center on a particular matter. For if there is a controlling voice from the outside heard in the Center's boardroom, that voice, rather than belonging to the City, belongs to AMM. One director, the hospital administrator, is and must be "AMM's employee[ ] and on AMM's payroll." Id. at 295. Two more directors may be AMM employees, and two must be "active physicians presented by the medical staff and agreed upon by American [AMM]." Id. at 275. Even the four non-physician citizen board members--those subject to the mayor's approval--are appointed by AMM. Id. In sum, AMM is vested with power to select or appoint all nine of the Center's directors. It is not surprising, therefore, that the Regional Office, on whose opinion the intermediary relied, specifically found that "any approval of Board Members by the Mayor of Biloxi is a mere formality as AMM does the actual selections." Id. at 265.19 Finally, uncontradicted affidavits by the two former mayors indicated that each regarded the mayoral approval power as merely a "courtesy." 23 These facts, which neither the District Court nor the PRRB discussed, overwhelmingly suggest that any influence the City might exert through the mayor's "veto" power falls well short of that required to establish "control" under the regulation--i.e., power "significantly to influence or direct the actions or policies" of the Center. 42 C.F.R. Sec. 405.427(b)(3) (1983) (emphasis added). 24 We realize, of course, that the District Court was properly concerned not with the actual but with the potential ability of the City to influence the Center. Indeed, the power of the sword of Damocles is not that it falls but that it hangs. Here, though, the power that the City has over the Center is more akin to the power that the butterknife of Damocles might have on those above whom it hangs. Realistically, if the City had any ability to influence the Center's actions or policies, it was not "significant." It is thus below the threshold necessary for the Secretary to invoke the prophylactic effect of the related organization rule. We must conclude, therefore, that the PRRB's decision, insofar as it relies on this provision in the agreement, is unsupported by substantial evidence.20 C 25 Our review of the other factors upon which the PRRB (but not the District Court) relied indicates that they provide no substantial support for the finding of relatedness. In making its determination that the City had the power to control the Center, the PRRB gave considerable weight to two clauses within a section of the 1981 agreement setting forth the terms governing the distribution of hospital assets upon the termination of the lease. The first clause, which the PRRB stated "most clearly evidences the relatedness" of the City and the Center, J.E. at 35, provided that "[u]pon termination of any twenty-five (25) year term of this lease or any renewals thereof, all funds derived from the operation of said hospital shall become the property of the [City]." Id. at 345. The second clause provided for the City to acquire title to all furniture, equipment, instruments, and other supplies when the lease expires. 26 We believe this evidence is not probative of control. With respect to the reversion of funds clause, we make two observations. First, the possibility that this clause will ever become operative is extremely remote; the agreement contemplated that the Center would substantially complete the construction of a new facility to replace the old hospital by July 1, 1985--long before the 25 year lease of the old facility would expire.21 Second, even assuming the unlikely event that the old facility were kept under lease for 25 years, we find it difficult to believe that the prospect of having to disgorge proceeds (which appears, in context, to mean no more than cash on hand) 25 years down the road will have any significant bearing on the present polices and actions of the Center. 27 The second clause, governing the ownership of used chattels 25 years from now, is similarly no evidence of control. Indeed, the PRRB appears to have ignored one of its critical features: the City would acquire title to equipment "provided or acquired by [the Center] during the term of the lease" only "upon payment of the undepreciated value of said equipment less and except equipment in place July 1, 1981." Id. at 45. That the clause offers no substantial support for the PRRB's decision is obvious. We note finally that the section of the agreement in which these clauses are found is self-evidently designed to ensure an orderly transition between operators should the Center discontinue operating the old facility at the end of the 25 year lease term and the City wish to install a new operator. We find nothing in this section that substantially suggests a relationship of control; in fact, it is the very type of provision one would expect to find in this type of lease, where continuity of service is not only important, but may be critical. 28 We need not discuss in detail the remaining factors that the PRRB regarded as evidence of control, for whether they are viewed individually or in the aggregate, they cannot fairly be said to suggest that the City controls the Center. For example, as further evidence of control, the PRRB pointed to the City's agreement to assist the Center in constructing new facilities by issuing bonds. Such financing arrangements are commonplace apart from any suggestion of control;22 they enable the hospital to get access to lower cost financing through the City's power to issue tax-exempt bonds and to re-lend the proceeds to the hospital operator. This is as consistent with an arms-length transaction as with a control relationship and thus is not probative evidence. In any event, the only indication in the record that the City issued bonds "to construct and furnish a new facility" is a letter from the Secretary's Regional Office to Blue Cross delivered during the intermediary's consideration of the Center's claims. Id. at 264, 33. Neither the Regional Office nor the PRRB cited any other evidence of this bond issue, we find none in the record, and the Center flatly denied that any such bonds were issued.23 Without a better basis for this assertion, we cannot conclude that there is substantial evidence that the bonds were issued and hence it cannot support the PRRB's decision. III 29 Our review of the record convinces us that the evidence relied upon by the PRRB, even when viewed cumulatively, does not provide substantial support for its conclusion that the City and the Center were related by common control within the meaning of the Secretary's regulations. Because they found that the Center and the City were related, however, the intermediary, the PRRB, and the District Court expressed no view on the reasonableness of the rental payments the Center actually made to the City. Such a determination properly lies in the first instance with the Center's fiscal intermediary; as a result, we express no view on this matter. Accordingly, the judgment of the District Court is 30 Reversed and remanded for further proceedings consistent with this opinion. 1 For cost reporting years after 1983, the reimbursement system established by the "reasonable costs" statute and regulations has been replaced, with a few exceptions, by a prospective payment system. For a discussion of the 1983 amendments to the Social Security Act, see Washington Hosp. Center v. Bowen, 795 F.2d 139, 141-42 (D.C.Cir.1986) 2 The Act authorizes the Secretary to enter into agreements with public or private agencies or organizations nominated by providers to serve as their fiscal intermediaries. The nominated agency or organization assumes responsibility for determining the proper amount of reimbursement to which particular providers are entitled and makes payments directly to the providers in accordance with that determination. 42 U.S.C. Sec. 1395h (1982) 3 The PRRB is an administrative body established by the Secretary. Is is composed of five members, all of whom must be "knowledgeable in the field of payment to providers of services." Two members of the PRRB must be representatives of providers, and a third must be a certified public accountant. 42 U.S.C. Sec. 1395oo (1982) 4 Biloxi Regional Medical Center, No. 84-652 (Provider Reimbursement Review Board, Oct. 18, 1985) 5 The Secretary's reasonable costs regulations, including the "related organizations" regulations, have been redesignated as Part 413 of Title 42. See 51 Fed.Reg. 34790 (1986). Following the practice of the parties, we will refer to the original related organizations regulations. The redesignated regulations are substantively identical to the original regulations 6 "The PRRB's decision constitutes final agency action unless the Secretary, acting through the Administrator or Deputy Administrator of the Health Care Financing Administration ... modifies or reverses the PRRB's determination. [citation omitted] This final decision is then subject to judicial review pursuant to 42 U.S.C. 1395oo(f)(1) (1982)." Humana, Inc. v. Heckler, 758 F.2d 696, 698 n. 9 (D.C.Cir.1985) 7 Biloxi Regional Medical Center v. Bowen, C.A. No. 86-0043, mem. op. (D.D.C. Sept. 11, 1986) 8 When NBH was operating the hospital, its intermediary regarded NBH and the City as related organizations for purposes of Medicare reimbursement. Thus, even though NBH paid no actual rent, it was reimbursed for an allocable portion of the City's cost of owning the hospital. See Brief for Appellees at 7 9 The Center agreed to place $400,000 into an account for current working capital. It also agreed to satisfy NBH's outstanding obligations and to make current all the hospital's accounts payable. Additionally, the Center agreed to assume NBH's obligation to pay off the City's bonded indebtedness relating to Howard Memorial Hospital in accordance with the then-existing payment schedule. This indebtedness approximated $500,000. The Center also agreed to make available and to use no less than $1,500,000 for new equipment and to expend no less than $1,100,000 for structural repairs and improvements to the facility. Finally, the Center and AMM agreed to provide an initial performance bond of $5,500,000 and additional annual performance bonds or letters of credit in the amount of $100,000 for each year ending after March 1, 1987. See Joint Excerpts from the Administrative Record ("J.E.") at 278-79, 282 10 The Regional Office pointed to four indicia of the City's "control of major decision [sic] and/or functions": (1) the City's right to cancel the agreement if the Center did not substantially complete the new facility by July 1, 1985; (2) a provision in the 1981 agreement limiting the Center's ability to transfer or change the number and use of hospital beds without prior written consent of the City; (3) a provision in the agreement providing that if a convalescent facility previously owned by NBH and conveyed to the Center was not used by the Center for three consecutive years, title would automatically vest in the City; and (4) the City's issuance of $6,500,000 of bonds to finance the construction of the new facility. The Regional Office also expressed the view that an agreement whereby the City would reimburse the Center for costs incurred in providing health care services to indigents, but only in an amount not to exceed the annual rental payments made to the City by the Center, was "a vehicle to maximize Medicare Reimbursement while the hospital does not incur any actual expense." Id. at 264 11 The amounts allowed by the intermediary were $15,990 for interest expense, $75,990 depreciation, and $1200 for administration fees, totaling $93,180. The intermediary's adjustment reduced the Center's Medicare reimbursement by more than $350,000. Id. at 228-29 12 At oral argument it was also suggested that the City's contributions to the Center for costs associated with the care of indigents, which were increased (coincidentally with the beginning of the new lease) to an amount not to exceed the Center's rental expenses, is an indication of control. The Board did not rely on that fact in its decision and we are therefore obliged not to take this evidence into account. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943) 13 Under the Act, the district court's review of PRRB decisions is governed by the scope of review provisions of the Administrative Procedure Act, 5 U.S.C. Sec. 706. See 42 U.S.C. Sec. 1395oo(f)(1) (1982). Because the PRRB's decision is the result of "an agency hearing provided by statute," a reviewing court must set aside PRRB decisions found to be "unsupported by substantial evidence" after the court has reviewed the whole record. 5 U.S.C. Sec. 706(2)(E) (1982). See Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190 (3d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2481, 96 L.Ed.2d 373 (1987) 14 In statutory terms, the objective is to ensure that "the necessary costs of efficiently delivering covered services to individuals covered by the [Medicare program] will not be borne by individuals not so covered, and the costs with respect to individuals not so covered will not be borne by [the Medicare program]." 42 U.S.C. Sec. 1395x(v)(1)(A) (1982); see 42 C.F.R. Sec. 413.9(b) (1986) 15 As the Court of Claims has explained, the prophylactic nature of the related organizations rule does not lessen the need to show actual relatedness: [T]he need for a clear and easily applicable regulation to prevent abusive self-dealing is such that some over-breadth in the coverage of that regulation is justifiable..... The prophylactic nature of a rule can excuse over-breadth but it should not be made a reason for it. Whether or not parties are related must be determined independently of the prophylactic nature of 42 C.F.R. Sec. 405.427 (1981), which can then only help justify the application of the regulation to situations in which no abuse actually is found. West Seattle General Hosp. v. United States, 674 F.2d 899, 904 (Ct.Cl.1982). 16 The regulation provides: Costs applicable to services, facilities, and supplies furnished to the provider by organizations related to the provider by common ownership or control are includable in the allowable cost of the provider at the cost to the related organization. 42 C.F.R. Sec. 405.527(a) (1982) 17 This case is therefore unlike cases in which courts have held that an organization's representation on a provider's board of directors is an indication of relatedness. See, e.g., Monsour Medical Center v. Heckler, 806 F.2d 1185, 1194 (3d Cir.1986); Goletta Valley Community Hosp. v. Schweiker, 647 F.2d 894, 896-97 (9th Cir.1981) 18 The Secretary also asks us to infer that the Center is related to the City because the Chairman of the Center's Board, Parker Rhett, had been one of NBH's directors, and the PRRB has determined that NBH was itself an organization related to the City. We find this argument unavailing for two reasons, each of which would alone be dispositive. First, the PRRB merely stated that the intermediary had argued that Rhett's role created "the appearance of related parties"; the PRRB did not itself rely on this factor so it cannot properly be urged in support of the PRRB's decision. See SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Moreover, although NBH and the City were previously determined to be "related," there is no evidence that would otherwise link Mr. Rhett personally to the City. He has never been an employee or an official of the City, and he was not tied to the mayor by any other evidence in the record 19 The Regional Office adduced other reasons for believing that the Center and the City were related. See supra note 10. It made the statement quoted above in support of its view that there was a separate "related entity issue ... between [AMM] and the Center." J.E. at 264 20 Appellant argues that the PRRB's decision in this case is arbitrary and capricious because its reasoning is inconsistent with a prior decision. In Hospital Dr. Tito Mattei, Medicare and Medicaid Guide (CCH) p 34,869 (July 1, 1985), the Secretary's delegate affirmed a decision by the PRRB finding that a hospital and the Puerto Rico Department of Health were not related parties even though the Department appointed all seven members of the hospital's original board of directors. Because we find that substantial evidence does not support the PRRB's decision, we do not need to address this argument 21 The Secretary argues that the lease would expire in 1988, and thus, it is reasonable to assume that the reverter provision "could have influenced [the Center's] actions" because "it was possible that the intended construction would be delayed." Brief of Appellee at 30. The Secretary's premise is mistaken. The twenty-five year lease term, although originally commencing in 1963, was revised in the 1981 agreement which provides "the term of this lease as revised by this Agreement is to be for twenty-five (25) years, commencing July 1, 1981...." J.E. at 347. It is thus clear that the reverter provision would become operative only if the Center failed to perform its other responsibilities under the agreement--responsibilities that, if not performed, were themselves a sufficient reason for the City to terminate the lease. See id. at 344 (agreement allows the City to re-enter and assume operation of facilities should Center not "substantially complete" construction of new facilities by July 1, 1985). For these reasons, this provision is unlike the reverter provision found to be substantial evidence of control in Richlands Medical Ass'n v. Harris, 651 F.2d 931 (4th Cir.1981), which became operative on any termination of the lease. Id. at 933 n. 2 Indeed, taken in the context of the agreement as a whole, the reverter clause suggests that NBH's assignment of its lease to Center was the product of bona fide, arm's-length bargaining. Uncontroverted affidavits submitted to the District Court indicate that the 1981 agreement "was the product of approximately two weeks of very intense, and sometimes heated negotiations," with "both the City of Biloxi ... and the Center ... acting entirely at arm's length during those negotiations." J.E. at 59 (affidavit of Lloyd T. Moon, former president of NBH); id. at 66 (affidavit of Jeremiah J. O'Keefe, former mayor of Biloxi). 22 In 1983, for example, government entities issued $9.9 billion in revenue bonds for hospital-related projects. See J. ELROD & J. WILKINSON, HOSPITAL PROJECT FINANCING UNDER PROSPECTIVE PAYMENT 4, reprinted in, J.E. at 13, 16 23 The Secretary urges us to consider $31,135,000 in revenue bonds issued by the City in 1985. This evidence, however, was not presented to the PRRB and is thus not a part of this appeal. Even if we could advert to the matter, however, as the Secretary notes, it would not be sufficient but only "one more" datum pointing toward a control relationship; since we find that there are no other indicia of control, this one could hardly be dispositive	{ "pile_set_name": "FreeLaw" }
310 F.2d 71 Robert G. LAMB, Jr., Appellant,v.David M. HERITAGE, Warden, United States Penitentiary,Atlanta, Georgia, Appellee. No. 19677. United States Court of Appeals Fifth Circuit. Nov. 23, 1962. Robert G. Lamb, Jr., appellant, in pro. per. Charles L. Goodson, U.S. Atty., Burton Brown, Asst. U.S. Atty., Atlanta, Ga., for appellee. Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and JOHNSON, District judge. PER CURIAM. 1 Appellant filed with the District Court for the Northern District of Georgia his petition for writ of habeas corpus. The petition was denied and this appeal is from that denial. 2 On June 20, 1956 appellant was convicted in the United States District Court for the Southern District of Georgia for violating Title 18 U.S.C. 2312. The sentence provided that service of same would commence upon the expiration of or legal release from a sentence the appellant was then serving in the North Carolina State Prison. The State sentence was to have terminated on October 3, 1957; however, appellant later received two additional sentences for escaping from custody of the State officials. On July 2, 1962, having completed his State sentences, appellant was taken into custody by the United States. 3 Appellant contends that his sentence imposed by the United States District Court commenced to run on October 3, 1957-- the time his original State court sentence was due to expire. Title 18 U.S.C. 3568 provides: 4 'The sentence of imprisonment of any person convicted an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. 5 'If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. 6 'No sentence shall prescribe any other method of computing the term.' 7 The exact contention here made by appellant was before this Court in Zerbst v. McPike, 97 F.2d 253 (5 Cir., 1938). In that case, after having a Federal sentence imposed while he was in custody of the State with 'no time being fixed for the commencement', McPike was returned to the State authorities. Upon the completion of his State sentence, McPike was taken into custody of the United States. When he contended the Federal sentence had commenced to run before actually being in Federal custody, this Court stated: 8 'Without the consent of the State authorities the United States Marshal could not lawfully take the person of McPike from the State officers, although McPike had been brought into the federal court and tried; and he did not attempt to. When McPike was taken back to jail he entered it not to await transportation to the federal penitentiary but to await trial in the state court. The proviso of 18 U.S.C.A. 709a (presently 3568) therefore does not apply. His federal sentence could begin to run only from 'the date on which (he) is received at the penitentiary, reformatory or jail for service of said sentence', by the express provision of that law. It has not yet been fully served.' 9 Harrell v. Shuttleworth, 200 F.2d 490, 5 Cir., decided by this Court in 1952, is almost factually identical to the case now presented. In that case, after Federal sentence was imposed the appellant was returned to State custody. The Federal sentence was 'to begin at expiration of sentence defendant is now serving in the Florida State Prison.' Subsequently, appellant escaped twice, received additional sentences, and after serving the original and additional sentences was turned over to the United States authorities. In answering the contention there made, Judge Rives, speaking for this Court, stated: 10 'The short answer to that contention is that the sentence could not prescribe any method of computing the term other than that perscribed by 18 U.S.C.A. 3568 * * *. See Zerbst v. McPike, 5 Cir., 97 F.2d 253; Strewl v. McGrath, 89 U.S.App.D.C. 183, 191 F.2d 347; Vanover v. Cox, 8 Cir., 136 F.2d 442; see also Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607.' 11 'Finally, it seems to be appellant's contention that his federal sentence should run concurrently with his last state sentence. In Mahoney v. Johnston, 9 Cir., 144 F.2d 663, the court considered a case where federal sentence was said to be concurrent with a state sentence. Assuming that that kind of sentence is permissible under 18 U.S.C.A. 3568, it clearly was not intended in this case. The Federal Judge imposing the sentence could not have foreseen that the appellant would thereafter commit another criminal offense and receive another state sentence before he could enter upon the service of his federal sentence. The delay in entering upon the service of his federal sentence was occasioned by appellant's own act and he must bear the consequences.' 12 See also this Court's decision in Gardner v. United States, 274 F.2d 380 (5 Cir., 1960). 13 The judgment of the lower court is Affirmed.	{ "pile_set_name": "FreeLaw" }
419 So.2d 59 (1982) Mary G. SMITH, Plaintiff-Appellee, v. MILLERS MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants-Appellees, Third Party Defendants-Appellants-Appellees, and Defendant-Intervenor-Appellee. No. 14931. Court of Appeal of Louisiana, Second Circuit. August 17, 1982. Writ Denied November 5, 1982. 60 Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendant-appellant, Charles E. Mayfield, Individually and as the Administrator for the Estate of the minor, James W. Mayfield, On the Principal Demand. Nelson & Achee, Ltd. by Roland J. Achee, Shreveport, for third party defendant-appellant, Charles E. Mayfield, Individually and as the Administrator for the Estate of the minor, James W. Mayfield, On the Third Party Demand. Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiffs-appellees, Mary Jo Smith Garland and Gillum William Smith, III, Children and Sole Heirs of Mary G. Smith. Maynard Cush, Shreveport, for defendants-appellees, Paramount Agency, Inc. and Mortimer J. Lasseigne, Jr. Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendant-intervenor-appellee, Firemen's Ins. Co. of Newark. Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for third party defendants-appellees, Paramount Agency, 61 Inc., Mortimer J. Lasseigne, Jr., and Nat. Union Fire Ins. Co. of Pittsburgh, Pa. Before HALL, JASPER E. JONES and NORRIS, JJ. HALL, Judge. Plaintiff, Mary G. Smith, filed this suit for damages against Charles E. Mayfield and his liability insurer, Millers Mutual, alleging that while she was walking across a street she was negligently struck and run over by a pickup truck driven by Mayfield's minor son, James Mayfield. Also named as defendant was Firemen's Insurance Company, plaintiff's insurer, who provided uninsured motorist coverage of $10,000. Charles Mayfield and Millers Mutual answered, denying negligence and pleading plaintiff's contributory negligence. Additionally, Mayfield filed a third party demand against the insurance agency which had procured the Millers Mutual policy, Paramount Agency, Inc., an officer of the agency, Mortimer J. Lasseigne, and their errors and omissions insurer, National Union, alleging third party defendants' negligence and breach of duty in failing to provide liability insurance coverage with higher limits than the $100,000/300,000 limits of the Millers Mutual policy and in failing to obtain a $1,000,000 umbrella policy requested by Mayfield. Third party defendants answered, denying liability. Firemen's Insurance Company, alleging payment of its uninsured motorist coverage limits of $10,000, intervened and sought recovery under its subrogation rights out of any recovery by plaintiff in excess of $150,000. After trial, the district court found that the minor driver of the pickup truck was negligent, fixed plaintiff's damages at $235,623.96, and found no negligence or breach of duty on the part of the insurance agent. Judgment was rendered (1) in favor of plaintiff against Mayfield and Millers Mutual, in solido, for $100,000; (2) in favor of plaintiff against Charles Mayfield for $135,623.96; (3) rejecting Mayfield's third party demand; and (4) in favor of Firemen's Insurance Company against plaintiff recognizing its subrogation rights for $10,000 out of the amount recovered by plaintiff in excess of $150,000. Charles Mayfield appealed from the judgment against him on the main demand and rejecting his third party demand. Millers Mutual did not appeal and the judgment against it is final. Plaintiff, the third party defendants, and the intervenor neither appealed nor answered the appeals. Plaintiff died while this case was pending on appeal and her heirs have been substituted as parties plaintiff. Upon review, we find that the trial court correctly decided all factual and legal issues in its comprehensive written reasons for judgment, which we adopt and attach to this opinion as an appendix. Accordingly, the judgment of the district court is affirmed. Appellant contends on appeal that the district court erred in finding James Mayfield negligent, in awarding an excessive amount of damages for future medical care, and in failing to find the insurance agency and its officer liable to the defendant Mayfield. Without repeating in detail the facts as found by the district court, we address the principal assignments of error. Negligence Briefly summarized, the facts of the accident as found by the trial court are as follows. After a homecoming parade at Haughton High School, James Mayfield was proceeding south on North Hazel Street near the school in his pickup truck. He stopped to talk to a friend, Jay Dupuy, who was headed north in his pickup truck. The trucks were stopped next to each other in such a position that the drivers looked back over their left shoulders in talking to each other out of their respective windows. There were numerous pedestrians walking along the side of the street. Haughton has no sidewalks or designated pedestrian crossovers. Mary Smith, age 76, whose home is located on the east side of the street, with her son, Billy Smith, came to the edge of the street from her driveway with the intention of crossing the street to go to her daughter's 62 yard across the street. They looked for traffic and then started across the street. Mayfield ended his conversation with his friend and, without looking forward, let his foot off the brake at which time the truck moved forward and struck Mrs. Smith who was walking across the street. She fell to the street and the left front wheel of the truck passed over her legs. She sustained serious head injuries, bruises and contusions to the body, and serious injuries to both legs. On appeal, appellant emphasizes that plaintiff has the burden of proving negligence by a preponderance of the evidence, and contends that the trial court erred in accepting the eyewitness testimony of three witnesses who said plaintiff was standing or walking at the time she was struck by the truck in light of inconsistencies and confusion in those witnesses' testimony. Appellant urges that the court should have accepted the testimony of James Mayfield that he looked forward before taking his foot off the brake and of Dupuy who testified that Mayfield looked forward after they finished their conversation, indicating that Mrs. Smith was not standing or walking in front of the truck when it moved forward and was out of sight, having fallen or fainted or having reached over to pick up a purse which she might have dropped. Appellant contends that the court erred in not accepting the opinion of its accident reconstruction expert, Dr. Barnwell, who, based primarily on the position of Mrs. Smith's body on the asphalt pavement with her legs behind the front wheel of the truck, expressed the opinion that Mrs. Smith was not struck by the truck but had fallen and was lying on the pavement at the time the truck moved forward and ran over her legs. Considering all of the evidence in the record, we conclude that the trial court was not clearly wrong; in fact, the evidence establishes that the trial court was clearly correct. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Greg Johnson and Todd Richards, also Haughton High School students, were in an automobile leaving the school grounds. These disinterested witnesses testified that they saw the truck move forward and strike Mrs. Smith and that she was standing in front of the truck at the time it hit her. As argued by appellant there were several errors or inconsistencies in the testimony of these witnesses. Their testimony was inconsistent as to where they were seated in the car in which they were riding. One testified mistakenly that both pickup trucks were headed south. One was not sure whether Mrs. Smith was walking from east to west or west to east. Nevertheless, the trial court correctly accepted as credible their testimony as to the key fact in dispute in this case, that is, that Mrs. Smith was standing or walking in front of the truck when it moved forward. The witnesses were disinterested and were certain of this fact. Likewise, the trial court properly gave some consideration to the testimony of Billy Smith, plaintiff's 48-year-old son, in spite of his confusion and apparent diminished mental capacity and interest in the case. His testimony demonstrates he was able to understand and relate basic facts. He testified that as Mrs. Smith was crossing behind him, the driver of the pickup truck started up without looking and that Mrs. Smith had her hands in the air and hollered when the truck struck her. Significantly, the doctors who treated Mrs. Smith after the accident testified that the severity and nature of her head injury and the bruises to both sides of the body would not likely have resulted from her fainting or falling to the ground prior to having been struck by the vehicle. The testimony of Professor Barnwell is not convincing or persuasive and is highly speculative. Based on laws of physics Professor Barnwell was of the opinion that had Mrs. Smith been struck by the truck moving forward while she was standing up, her body would have been knocked forward and she would not have come to rest perpendicular to the truck with the lower half of her body under the truck and the upper half of her body extending left of the truck. Dr. Barnwell's testimony did not take into 63 account or did not accord sufficient weight to the nature of Mrs. Smith's injuries. It did not accord sufficient weight to the fact that the initial impact of the truck and Mrs. Smith could have been very slight, nor to whether Mrs. Smith was standing still or walking, nor to any evasive actions which might have been taken by Mrs. Smith if and when she saw the truck moving forward. The facts do not justify a conclusion that, for some reason, Mrs. Smith was lying on the pavement when the truck started moving forward. It is established by a clear preponderance of all of the evidence in this record that Mrs. Smith was walking across the street, as she set out to do, when the truck moved forward and struck her. It matters not whether young Mayfield failed to look before taking his foot off the brake allowing the truck to move forward or whether he looked and did not see what he could and should have seen. His negligence, however slight, in allowing the truck to move forward and strike the pedestrian who was crossing in front of his stopped truck was the sole legal cause of the accident. It should be noted that appellants do not urge their plea of contributory negligence on appeal. See Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La.1978); Widcamp v. State Farm Mutual Insurance Company, 381 So.2d 937 (La.App. 3d Cir. 1980); Hyrhorchuk v. Smith, 379 So.2d 281 (La.App. 3d Cir. 1979), modified 390 So.2d 497 (La.1980). Future Medical Expenses Appellant contends that the trial court erred in using the LSA-R.S. 47:2405 life expectancy tables in calculating the award for future medical expenses because of the plaintiff's poor physical condition at the time of trial which could be expected to adversely affect her projected life span. Cited in support of this argument are Norris v. Detroit United Railway, 193 Mich. 578, 160 N.W. 574, and Draisma v. United States, 492 F.Supp. 1317, which held that the use of life expectancy tables is disfavored where the plaintiff has a preexisting condition or disease which adversely affects his or her projected life span, since the tables are based on the lives of healthy persons. Also cited are Muller v. Lykes Brothers Steamship Company, 337 F.Supp. 700, affirmed 468 F.2d 951, and 29 Am. Jur.2d 1006, § 898 for the proposition that the probative value of mortality tables is weakened and in some cases destroyed by evidence of the ill health or disease of the person whose life expectancy is at issue. Appellant also notes that the validity of this argument in Mrs. Smith's case is borne out by the fact that she died while this case was pending on appeal, about three months after judgment was rendered. Plaintiff's economic expert, Dr. Harju, testified it would take a present award of $206,441 to generate the amount necessary to provide the annual cost of private duty nursing at $20,475 per year for a life expectancy of 10.3 years, based on the United States Department of Health, Education and Welfare Vital Statistics 1977 Volume 2, § 5 Life Tables. The trial court expressly considered "the medical testimony as to the condition of Mrs. Smith", her age, and her life expectancy of 5.88 years under LSA-R.S. 47:2405, and awarded $50,000 for future medical care and expenses. The life expectancy table was not the sole criterium upon which the trial court's award was based and was not used as a part of a precise mathematical formula in arriving at the award. The $50,000 award was substantially less than the amount which would have been arrived at under Dr. Harju's formula using the 5.8 years life expectancy. The trial court expressly took into account Mrs. Smith's condition at the time of trial which was obviously very poor. It would be entirely inappropriate to consider the fact that Mrs. Smith died for reasons not shown in this record after judgment was rendered and while this case was pending on appeal in considering whether the trial court judgment is correct. See Dark v. Brinkman, 136 So.2d 463 (La.App. 3d Cir. 1962). There is no evidence as to what medical expenses were actually incurred after the judgment was rendered; whether they were more or less than the amount awarded. 64 We find no abuse of discretion by the district court in its award for future medical care and expense. Liability of the Insurance Agent In his third party demand against Lasseigne and Paramount, Mayfield alleged Lasseigne, his insurance agent, was negligent in failing to recommend higher limits than the $100,000/300,000/25,000 provided by the Millers Mutual policy, in failing to advise him of the availability of a $300,000 single limit policy, and in failing to secure a $1,000,000 umbrella policy after being requested to do so. The evidence at trial as to what coverage Mayfield requested, what coverage Lasseigne advised Mayfield he had, what recommendations Lasseigne made as to liability limits, and what coverage Mayfield thought he had was in sharp conflict. In a credibility call, the trial court found that there was no reason why Mayfield, as an educated, experienced businessman who had received copies of his policy each year and paid the premium, could not tell what limits he had. The court found that appellant had not proven that he ever asked for more coverage than he received or that Lasseigne ever gave him reason to believe that he had more or any different coverage than that requested. There was no action on the part of Lasseigne which would have justified Mayfield in reasonably assuming he was covered to the extent of $300,000. These factual determinations by the trial court are supported by evidence, are not clearly wrong, and will not be disturbed. Appellant contends on appeal that the trial court erred in refusing to allow into evidence a deposition of Lasseigne which appellant contends cast doubt upon his credibility. The deposition, which is in the record as an offer of proof, has been reviewed by this court and we find no inconsistent or contrary statements by Lasseigne which cast doubt upon the trial court's factual findings. The authorities relied on by the trial court in finding that the insurance agent did not breach any duty owed to the appellant were correctly analyzed and applied to the facts of this case. These authorities essentially hold that an insurance agent is responsible not only for his unfaithfulness but also for his fault or neglect. LSA-C.C.P. Art. 3003; Maclan Services Company, Inc. v. Louisiana Companies, 351 So.2d 827 (La.App. 1st Cir. 1977); Walker v. Fontenot, 329 So.2d 762 (La.App. 1st Cir. 1976). "An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent's failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage." Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973); Kieran v. Commercial Union Insurance Co. of N. Y., 271 So.2d 889 (La.App. 4th Cir. 1973). "In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured." Porter v. Utica Mutual Insurance Company, 357 So.2d 1234 (La.App. 2d Cir. 1978); Redmond v. National Union Fire Insurance Company, 403 So.2d 810 (La.App. 2d Cir. 1981). In sum, the evidence adduced at trial shows that Lasseigne discharged his duty as agent to Mayfield, i.e., he procured the $100,000/300,000 insurance requested by Mayfield. Appellant complains of the trial court's finding that Mayfield knew or should have known the limits of his automobile liability insurance, noting the complexities of insurance policies and the necessity for an insured 65 to rely on his insurance agent to provide required coverage. The stated liability limits of an insurance policy is not a complex matter or provision. Although an insured should not be held to have read and understood the complex and often confusing intricate detailed provisions of an insurance policy, an insured should be held to have read and know the liability limits of his automobile insurance policy, plainly disclosed on the face of the policy, particularly where, as here, the insured is an educated, experienced businessman, signed an application showing the policy limits, and has received copies of his policy each year for several years with advice to review it. See Kieran v. Commercial Union Insurance Co. of N. Y., supra; and Porter v. Utica Mutual Insurance Company, supra. Counsel for appellant urges in brief that an insurance agent's duty extends beyond merely obtaining the insurance coverage requested by the client and requires that the agent who holds himself out as a professional review his client's coverage and recommend the forms of insurance best suited to the client's needs, including adequate monetary limits. Counsel refers the court to the Code of Ethics adopted by the National Association of Insurance Agents (NAIA), of which Lasseigne was a member, and to several commentaries. See "Responsibilities of Insurance Agents and Brokers" by Bertram Harnett (Matthew Bender), Vol. 1, § 3.09, pp. 3-15; 22 Drake L.Rev. 738, "Liability Considerations Concerning Insurance Agents and Brokers" by Phil C. Redenbaugh; 43 Am.Jur.2d 229, § 173; Insurance Law Journal, December 1979, pp. 690-691, "Professional Malpractice: Welcome Insurance Agents and Brokers" by David S. Oppenheim. The trial court noted that no case has been cited that places a duty on an insurance agent to advise what limits should be carried by an insured. The only case, state or federal, cited by the parties which has dealt with the issue is Fleming v. Torrey, 273 N.W.2d 169 (S.Ct. of South Dakota, 1978) where the court rejected the argument and held that there is no one right answer to the question of what is a safe or adequate liability limit on a vehicle. Even accepting the broad duty as articulated by appellant (and we recognize that an insurance agent's duty to his client can be greater than merely the procuring of requested insurance, depending on what services the agent holds himself out as performing and on the specific relationship and agreements between the particular agent and client) there was no breach of that duty because Lasseigne on at least two occasions recommended higher limits, which were rejected by Mayfield. On several subsequent occasions Lasseigne either asked Mayfield if he wanted to increase his limits or if he wanted to make any changes in his policy, to which Mayfield expressed no interest. From the time Mayfield started doing business with Lasseigne his insurance limits were increased from $5,000/10,000 to $100,000/300,000 at the time of the accident, on Lasseigne's recommendations. Limits of $100,000/300,000 are substantial. The only kind of policy that would provide completely safe coverage and the best possible protection would be a policy without any limits. There is nothing in this record to suggest what would be the proper and adequate limits of liability that an insured should carry. The trial court correctly held that there was no breach of duty by the insurance agent with regard to recommending higher limits. On appeal the appellant, while continuing to urge error in the trial court's determinations of fact and law on the issues previously discussed, zeroes in on and strenuously urges his contention that the insurance agent breached the duty owed to his client in not advising him specifically of the availability from Millers Mutual of $300,000 single limit coverage, which appellant previously had with another company, and in having an endorsement providing split limits added to Millers Mutual's standard form policy which called for single limit coverage. Appellant seems to pose this contention as being separate and distinct or in addition to the contention that the agent had a duty to his client to recommend higher limits. 66 The facts relevant to this issue are as follows. Mayfield started doing business with Lasseigne in 1971 at which time Mayfield had been carrying insurance on his automobiles with limits of $5,000/10,000. At Lasseigne's suggestion the limits of his policy were increased to $10,000/20,000. In 1974 Lasseigne recommended that Mayfield obtain a package policy from Travelers which provided workman's compensation, general liability, and automobile liability coverage with single limit of $500,000. Mayfield wanted lower limits and Lasseigne obtained, with Mayfield's approval, the package policy from Travelers with $300,000 single limit for the 1974-1975 year. At the end of the policy year Travelers refused to renew the policy and when Lasseigne determined a similar policy was not available, he recommended to Mayfield an automobile policy with $250,000/500,000 split limits. Mayfield wanted lower limits so Lasseigne, pursuant to an application signed by Mayfield requesting $100,000/300,000/25,000, obtained a policy from Millers Mutual with those limits for the year 1975-1976. Based on the original application, the Millers Mutual policy was renewed for the years 1976-77, 1978-79, and 1979-80 with the same limits. Each year the renewal policy, showing the $100,000/300,000/25,000 limits, was sent to Mayfield with a letter from Lasseigne asking Mayfield to review the policy and notify him if there should be any changes. Each year at renewal time Lasseigne asked Mayfield if he wanted to change or increase his coverage and Mayfield expressed no interest in doing so. Lasseigne made no further specific recommendations as to insurance limits and did not advise Mayfield specifically of the availability of single limit coverage. In 1978 Millers Mutual changed the form of its business auto policy. Previously, the printed form provided for split limits and could be changed by endorsement to provide single limit. After the change, the printed form provided the single limit and could be changed by endorsement to provide split limits, which was done in Mayfield's case. Single limit coverage was available from Millers Mutual from at least 1977 on, regardless of the printed form. Lasseigne had three or four customers who had the single limit policy and knew of its availability. There is evidence in the record showing that there was a relatively insignificant difference in the annual premium between the $100,000/300,000 split limits and either the $250,000/500,000 split limits or the $300,000 single limits. In spite of the skillful and forceful arguments of counsel for appellant we are unable to perceive the difference between the contention that the agent had a duty to recommend higher limits in general and the contention that the agent had a duty to advise of the availability of the $300,000 single limit specifically. The single limit as opposed to split limits was not significant to Mayfield prior to this accident, as shown by his testimony that he was not aware that he ever had a single limit policy previously. It is true that the $300,000 single limit would provide higher coverage than the $100,000/300,000/25,000 split limits in most situations and particularly as applied to this case. However, so would $250,000/500,000 or any other higher split limits. The contention that the insurance agent was somehow at fault in causing the endorsement providing split limits to be attached to the printed form of policy is without merit. The change in the printed form used by the insurance company in writing business auto insurance is entirely inconsequential. Either single limit or split limit coverage was available both before and after the change in 1978. It matters not whether the requested amount of coverage was stated in a printed form of policy or printed form of endorsement. The policy issued here provided the coverage and limits originally applied for by the insured through the agent, and required no further specific authorization by the insured. There was no breach of duty on the part of the insurance agent which would make him liable to the insured for that part of the judgment in favor of plaintiff that exceeds the amount of the insured's policy limits. 67 Conclusion For the reasons assigned in the reasons for judgment of the trial court and in this appellate opinion, the judgment of the district court is affirmed. Affirmed. APPENDIX MARY G. SMITH : NO. 53,819 VERSUS : 26TH JUDICIAL DISTRICT COURT MILLERS MUTUAL INSURANCE : COMPANY, ET AL : BOSSIER PARISH, LOUISIANA OPINION On March 25, 1980, Mary G. Smith brought this suit against Charles E. Mayfield, individually, and as the administrator of the estate of his minor son, James W. Mayfield, and their liability insurer, Millers Mutual Fire Insurance Company of Texas (referred to in petition as Millers Mutual Insurance Company) claiming $1,272,511.46 in damages for injuries that she sustained as a result of being struck as a pedestrian on October 12, 1979, by a 1979 GMC pickup truck being operated by young Mayfield. The Millers Mutual policy contained limits of $25,000.00 for property damage, of $100,000.00 for the bodily injury or death, or both, of any one person in any one accident, and of $300,000.00 for the bodily injuries or deaths, or both, of more than any one person in any one accident, and the plaintiff also joined her own uninsured motorist insurer, Fireman's Insurance Company of Newark, New Jersey. The petition contends that plaintiff was crossing North Hazel Street in Haughton, Louisiana, from its east side to its west side; that while in the process of negotiating the street at this point, it was necessary for her to walk in front of a pickup truck being operated by Jimmy Mayfield and which was stopped in the southbound lane facing in a southerly direction; that when plaintiff was standing erect in front of the truck, the driver allowed it to roll or move slowly forward until it struck the plaintiff and knocked her to the asphalt surface. Further that, after plaintiff was on the surface of the street, the left front wheel rolled over her legs and came to a stop immediately thereafter. The petition alleges that Jimmy Mayfield, who at the time was fifteen years of age and resided with his parents near Princeton, Louisiana, was at fault or negligent in that he did not look in front of him before allowing his vehicle to move forward, and that had he looked he would have seen plaintiff. Defendant Charles Mayfield filed an alternate third party action on July 24, 1980 against his former insurance agent, Mortimer J. Lasseigne, Jr. and his employer, Paramount Agency, Inc., a corporation in which he was also a stockholder and an officer. Later, in an amended third party petition, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, was named as an additional third party defendant as the errors and omissions insurer of Mr. Lasseigne and Paramount Agency, Inc. to the extent of $100,000.00. In the original and amended third party petitions it is alleged that Mr. Lasseigne and Paramount were negligent in failing to inform Mr. Mayfield that combined single limits could have been obtained in 1978 and 1979 under the business-auto policy form, and in telling him in 1978 that a one million dollar umbrella policy could not be procured. All of these allegations were denied by the third party defendants. THE PRINCIPAL DEMAND Plaintiff Mary G. Smith sustained such severe injuries that she was unable to appear at the trial or to testify by deposition. The Court does not have the benefit of her testimony. 68 James W. "Jimmy" Mayfield, Jr. was the first witness and was called under cross-examination by plaintiff. Mayfield testified that he was travelling south on Allentown Road (also known as North Hazel Street) in order to talk with a friend of his, Jay Dupuy, who was going in the opposite direction in his pickup truck. The cab of Dupuy's truck was about five feet past Mayfield's so it was necessary for Mayfield to look back over his left shoulder out of the driver's window in order to converse with Dupuy. Mayfield testified that there was a homecoming parade that day; that numerous cars were parked in the vicinity; and that lots of kids were leaving from school, walking up and down the side of the road. (Trans. pg. 22-23) "Q Lots of kids walking up and down the side of the road and so forth? A Yes, sir. Q All right, does your truck have automatic transmission? A Yes, sir. Q And you had your truck in drive while you were stopped? A Yes, sir. Yes, sir. Q Presume you had your foot on the brake? A Yes, sir. Q Now, you were stopped there talking with Jay, you noticed a number of different people walking around, different school kids and so forth, near the vicinity of your truck, did you not? A Yes, sir. Q In fact, you sawI believe you saw Mr. Billy Smith, plaintiff's son, on the side of the road also, didn't you? A Yes, sir. Q All right. Where was he located? A On the east side of the road. Q That would be in front of his mother's home? A Yes, sir. Q Did you see Mrs. Smith? A No, sir. Q Now, on your vehicle, if you have your vehicle in drive with the motor running, and take your foot off the brake, will your truck move? A Yes, sir; just barely. Q It will go forward, without having to put your foot on the accelerator? A Right. Q Now, when you andand Jay Dupuy were talking, at no time did you put your vehicle in park, did you? A No, sir. Q Now, do you remember running over Mrs. Smith? A Yes, sir. Q Would you just briefly tell me what happened? A After we got finished talking, turned around and looked, didn't see anybody in front of me, took my foot off the brake and rolled about three feet, I felt a little bump, I looked out the window and saw her laying on the ground. Q Under your truck? A Yes, sir. Q And she was behind the left front wheel, right? A Right. Q With her headwas she on her back or her stomach? A I don't remember. Q What time of day did this happen? A You mean the time? Q Yes. A About five minutes till three. Q What kind of weather conditions? A It was clear. Q Was there anything to obstruct your view? A No, sir. Q All right. After you ran over Mrs. Smith, what did you then do? A Got out, put my truck in park, got out and walked over there. I didn't do nothing." 69 Later in the trial on re-cross examination Jimmy Mayfield stated that Officer Paul Rousell was either lying or in error in his testimony. (Trans. page 234) "Q Mr. Mayfield, did you state to Officer Rousell that you let off the brake in preparation of proceeding southbound on Allentown Road without looking up to see if the road was clear? A I didn't say that. Q You deny that statement? A Right. Q If Officer Rousell were to say that you made that statement, he would either be lying or in error? A Right." Plaintiff's next witness was Officer Paul Rousell, who at the time of the accident was employed by Louisiana State Police as a helicopter pilot for Region Three North. Officer Rousell stated that he had been doing accident investigations for five years. He had three-weeks course in accident investigation at the Academy and OJT for three months on the road. He admitted that this was his first auto pedestrian accident investigation. At the time Officer Rousell received notice of the accident he was at a shift meeting. He proceeded to the accident scene and testified that when he arrived, it was apparent that the plaintiff had a head injury, a broken right leg, damage to the left leg, minor cuts with visible blood, and that she was unconscious. He assisted in giving first-aid in order to stabilize her to the hospital. He was unable to talk to Mrs. Smith at the scene and had not talked to her since the accident. In conducting his investigation he stated that he talked to a Todd Richards and O'Neal Summers and several other people at the scene but he did not know their names. (Trans. pg. 30-31) "Q Now, did you have an occasion to discuss the accident with the driver of the vehicle? A Yes, sir, I did. Q And was that James W. Mayfield? A Yes, sir, it is. Q Did he tell you what happened? A Yes, sir, hehe gave me his statement as to what occurred? Q What did he first tell you? A To tell you the truth, Mr. Hammons, I don't remember what his exact statements were to begin with; later, I brought up some information and came to a conclusion that he concurred with, but to remember his exact statementlet me think a second. He advised me he was talking to a friend of his and proceeded to pull off, felt the bump, and then felt the front of the vehicle lift up and then he observed Mrs. Smith on the ground. Q Now, you said that you arrived at certain conclusions from your investigation A Yes, sir. Q did you inform him of what those conclusions were? A Yes, sir, I did. Q Did he then concur with those conclusions? A He did, sir." And at page 34 of the transcript: "Q Officer Rousell, what did Jimmy Mayfield say to you after you informed him about your conclusions? A He agreed that that is probably what occurred. Q And what did you tell him that he agreed to? A Okay. I explained to Mr. Mayfield that what had occurred in my opinion. Which is what we're out there to do. Find out what happened in an accident. He was talking to his friend, he decided to leave the scene where he was talking to his friend, let his foot off the brake, the vehicle began moving before he looked up, he felt a bump, at that time, he looked up the second bump occurred and here's Mrs. Smith laying on the ground. He said, yes, sir, that's probably what happened." 70 The next witness called by plaintiff was David Reiling, a student at Haughton High School who was in the vicinity at the time of this accident. He testified that he saw the Mayfield and Dupuy vehicles stopped in the middle of the street, side by side, headed in opposite directions. He further stated that he saw plaintiff and her son, Billy Smith, walk from their home on the east side of the street, out of their driveway to the edge of the street, and stop, "like they were looking for cars." He testified that he turned away after that. "Q When did you next see either of the two of them? A After the car had hit her. Q All right, who did you then see? A Well, I saw here in the road and the truck stops. Q Okay, where was she in relationship to the truck? A She was behind the front left wheel. Q Was she lying on the ground? A Yes." Greg Johnson, another student at Haughton High School, testified that he was in a vehicle with Todd Richards and his mother and that they were turning onto Allentown Road headed southbound from the Haughton High School Gymnasium, approximately 210 feet north of the point of impact. He stated that he was on the backseat and that Todd's mother was driving. He further testified that he saw the Mayfield and Dupuy vehicles stopped in the road and that it appeared that the two of them were talking to one another. (Trans. pg. 72). "Q Did you seetell us what you saw after you first saw the two trucks stopped in the road? A I see the lady and she was at the edge of his truck and then, like he eased off the brake or something, hit herrolled forward and hit her." And at Page 73 of the transcript: "Q Okay. Now you stated that you saw her in the middle of the road. Was shewhat was she doing in the middle of the road? A I guess she was crossing. Q All right, was she jumping up and down, running, walking? A No, she was just walking. Q Across the road? A Right, yes sir. Q Could you tell what direction she was walking in? A Uh Q Which way was she going? A She was going to the left from where, you know, from where I was. Q Okay. Now, did you see the truck actually hit her? A Yes, sir. Q What was her position or what was she doing as the truck hit her? A I justI saw her fall when it hit here (sic) and it rolled over her. She was between the wheels. Q Okay, you saw the truck roll over her? A Yes, sir." Under cross-examination Greg Johnson maintained his position that plaintiff was standing up and walking across the road when she was struck by the Mayfield vehicle and that it appeared that Mayfield had let off the brake just prior to impact. (Trans. pg. 83). "Q Well, let me ask you this. You did give a statement about this accident date November 24th, 1980? Do you recognize that statement? A Yes. Q You do say in that statement that James let off the brake and rolled forward and hit the elderly woman, is that right? A Right. Q But you really don't know A I don't know. Q It's just a conclusion on your part, isn't it? A Well, that's what it looked like. I don't know." (Trans. pg. 84) "Q You did say that you don't know whether she did or did not stoop 71 down to pick up her purse before the accident? A Well, I was saying that she was standing up when she was hit." Todd Richards, also a student at Haughton High School, testified that he was driving a vehicle with his mother and Greg Johnson. He stated that his mother was in the middle and that Greg Johnson was on the passenger side in the front seat. He testified that he was in the gym parking lot preparing to turn south and that he saw the impact between the Mayfield truck and plaintiff. (Trans. pg. 97-98). "Q Now, what did you see with regard to the accident? A Okay, I looked back to the right to make sure, you know, that it was clear to pull out and when I looked back I saw, you know, someone get hit. Q By what? A By a truck. Q At that point in time, did you know who the pedestrian or who the person was that was hit? A No, sir, I did not. Q Did you see the actual impact between the truck and the person? A Yes sir. Q All right. What position was that person in when she was hit by the truck? A She was standing up. Q After the impace (sic), what happened to her body? A When the truck hit her, she kind of threw her arms back and she just fell to the ground then. Q Did thewhat did the truck do? A It was so far off, I couldn't tell. It did stop though. The truck did stop." Under cross-examination Todd maintained his position. (Trans. pg. 97-98) "Q Did you see the bumper of Jimmy Mayfield's truck come in contact with the pedestrian? A No sir, I just saw about the corner of his truck hit the pedestrian. Q What corner? A It would be the left front." G. W. "Billy" Smith, III, son of plaintiff, testified that he and his mother left their home to go across the street to the home of his elderly aunts, Mrs. R. V. Kerr and Mrs. A. S. McDade, Sr. The pertinent part of his testimony that corroborates that of plaintiff's other eye-witnesses: (Trans. pg. 105-106). "Q Okay. Now, when you left your home were you with your mother? A Yes. Q All right, which door did you exit from? A We came out the carport door. Q Does that led (sic) into a circular driveway? A That is correct. Q And how did you proceed toward Mary Jo's house from that circulur (sic) driveway? A Well, we went out of theI went out of the door, went to the first drive where you come in the circular drive and Q Is that the southern most corner of the drive? A That's right. Q Okay. A And I stopped. Q Was your mother with you? A Not at the time, she wasn't. Q All right. A And I waited for her to come. Q All right. Once she caught up with you, did you and she then proceed on toward the street? A No, notwhen she got there we didn't. Traffic was very heavy and we stopped to check the traffic. Q Where were you with relationship to the pavement of the road, where did you stop? A At the edge. Q Were you still in your yard? 72 A Yes. Q Were you in the driveway? A Yes. Q When you stopped, what did you do? A When I stopped, as I said, we were checking the traffic to see before we crossed the road. Q Did you see any vehicles stopped in the road? A Yes, I certainly did. Q And could you describe what vehicles you saw and where they were located? A There were two trucks side by side. Q All right, were they to your left or to your right? A In front of me. Q Were they moving or were they stopped? A They had stopped. Q Did you recognize the drivers of either of the vehicles? A No, I did not. Q Could you tell what the drivers of either of the vehicles were doing? A They had stopped and they were talking to one another." (Trans. pg. 107) "Q When you got across, what did you then do? A I turned around to see if mother was coming. Q All right, did you see your mother? A Yes. Q What did you then see? A Well, when I turned around to see if she was coming, that's when the young man in the truck decided to start up. Q All right. When you first saw here (sic), what was she doing? A When I first Q When you turned around? A When I turned around, she had her hands up in the air and she was hollering. Q And did you see the impact between her body and the truck? A Yes, he never looked. Q Didwhat happened to her body? A He hit her right in the middle of her chest and when he did, it knocked her body up in the air and it fell to the asphalt." Mr. Smith is forty-eight years of age and has never been employed. Under cross-examination he appeared confused and unable to understand simple questions necessitating a bench conference. However, he maintained his position that his mother was walking in front of the Mayfield truck when she was hit. (Trans. pg. 132-133). "Q And you saw her walking? A I did. Q And then you saw her throw her hands up? A When the truck was coming near her, when the young man accelerated his truck, was coming toward her, she threw up her hands. Q Where was her purse when she threw up her hands? A It was on her arm. Q So, during the time that you crossed from one side of the road to about five feet into Mary Jo Garland's driveway, you (sic) mother had crossed just half of the road? A That's right. Q And where was she in ralation (sic) to the pickup that eventually hit her at that point? A She was in front of it. Q Do you know how far in front of it? A Well, I'd say in the middle of it. Q And her purse was where? A On her arm. Q You particularly recall noticing her purse? A Yes. Q Now, when the truck hit her, was she continuing to face Mary Jo Garland's house or was she facing the pickup truck? A She was facing my sister's house. 73 Q And what part of this pickup truck hit your mother? A The wheels hit her. When it hit her, it was the radiator part of the truck that hit her in the chest, and knocked her up in the air. Q Up into the air? A Yes, it did. Q Did she get up above the pickup truck? A Almost and then she hit pavement. Q Pavement? A Yes. Q To the side of the pickup? A As I said when he hit her in the middle of her chest, it threw her up and she hit the pavement. Q But did she hit the pavement in front of the truck or beside the truck? A Yes. Q Front? A In front of the truck." In addition to Jimmy Mayfield defendants called as witnesses Albert Joseph Dupuy, III, referred to throughout the testimony as "Jay Dupuy"; Professor Joseph H. Barnwell, who was accepted by the Court as an expert in reconstruction of auto-pedestrian accidents; and Mrs. C. S. McIntosh, a retired Registered Nurse. Jay Dupuy is eighteen years of age and lives with his parents in Haughton and at the time of the trial was employed by Calumet Oil Refinery in Princeton. Prior to the accident, he was talking to Jimmy Mayfield on the Allentown Road, which is also known as North Hazel Street. Prior to stopping his truck to talk to Jimmy, Mr. Dupuy had been headed north toward the Haughton High School Gymnasium. They stopped, rolled down their windows and talked for a few minutes. Mr. Dupuy's description of what happened when their conversation was terminated is seen as Tr. 197 and is as follows: "Q All right, now whentell the Court, if you will, what Mr. Mayfield did from the time that the conversation ended until his truck started forward? A Well, when we got through talking he turned around and then his truck started moving after he turned around. Q All right now, when you say his when he turned around, his head would have been facing in what direction? A A head, forward. Q You mean toward the hood of the car? A Yes, toward the front of the truck. Q All right, and then what happened after that? A Well, I guess he let off the brake. Q Then after that occurred, what did you do? A Well, after that I went on." The next witness called by defendant was Mrs. C. S. McIntosh, who lives on Highway 80 near Princeton, Louisiana, and has known plaintiff, Mary Smith, since 1946. Mrs. McIntosh attended church and Sunday School with plaintiff at Haughton Methodist Church, and she also associated with plaintiff in the activities of the Eastern Star. She was interrogated as to whether she had had an occasion to see plaintiff a short time prior to the accident, and she responded at Tr. 214 as follows: "Q All right. Now, after the Sunday School class was dismissed that day, did you have occasion to talk to Mrs. Smith? A Well, I was across the room and I heard her say, I have had a blackout. Q All right. Now, I believe that you are a registered nurse? A Yes sir, retired." Under cross-examination she responded at Tr. 216-217 as follows: "Q During the time that you knew Mrs. Smith before this accident occurred, before she was hurt, could you tell us what her general physical and mental condition was as far as you knew? 74 A She, as I say, she appeared to be in perfect health and she was very active in church, in the Eastern Star and the UDC. I do not belong to the UDC, but she was very active. Q There have been some discussion about some statement that you overheard her say about a blackout. Did you ever see her blackout or faint or anything? A No sir, no sir. Q Before this accident happened, did you ever see her have any type of physical or mental disability? A Well, no, not disability. She had a dizzyness and asked me to take her blood pressure, because she thought it might be her blood pressure. I took her blood pressure and it was a good blood pressure. A hundred and thirty over eighty. Q Okay, when was that? A It was months before that. I don't it wasI can't remember, but it was quite a while. It was quite a while. Am I talking to loud?" Professor Joseph H. Barnwell heard the testimony of the witnesses as to the liability aspect prior to giving his testimony and he had also read the deposition of Dr. C. G. McAlister and Dr. J. V. Hendricks. He had gone to the scene on two occasions and inspected, photographed and measured the truck driven by Jimmy Mayfield at the time of the accident. He studied the police photographs, obtained the weight of Mrs. Smith and had the weight of the Mayfield truck. Based on principle of physics and mathematics he offered testimony and used a scale model of the truck and a pedestrian (D-14) to demonstrate what would happen to a pedestrian's body if struck by a truck or automobile. A summary of Professor Barnwell's testimony appears at Tr. 272 as follows: "Q Now, Professor Barnwell, in your opinion could Mrs. Smith have been standing erect in front of the truck, crossing from either direction, one side to the other, and been struck by the front bumper of that truck or the front of that truck and ended up in the position in which she was found after this accident? A I don't believe so. Q And tell us why? A Because I think she would have been knocked forward and the truck would have passed directly over her. I don't think she would have had time to get out and around in the position she was run over. Q All right now, approximately how far would Mrs. Smith's body have been from the front bumper of the truck after the accident? A That's a little betterapproximately four feet." And his opinion at Tr. 273: "Q In your opinion, would it be possible for the front of the truck to hit a pedestrian like this and the pedestrian end up so that the truck would run over both wheels in that distance? Both legs, I mean, both legs. A Not from afrom hitting her in front of the truck, I don't thinkI think she would have been knocked forward and the truck would have passed directly over her. Q If it did not happen that way according to your opinion Professor Barnwell, how do you think it did happen? A I think she fell down and was in that position and got run over." Defendants contend in their brief that due to the conflicting testimony of the teenagers, Greg Johnson and Todd Richards, and the confusion of Billy Smith, that their testimony should be disregarded. Defendants further contend that an admitted error by Officer Rousell in measurement of the distance the Mayfield truck travelled on his report and his failure to list all of the witnesses or to interview some, makes his investigation suspect. Defendant would have the Court accept the testimony of his two teenage witnesses and the opinion of Professor Barnwell. 75 G. W. "Billy" Smith, III and Jimmy Mayfield obviously have an interest in this case. The accident could have happened as astute counsel for defendants contend. However, despite the inconsistencies as to the seating in the Richards car and their testimony as to the direction the truck of Dupuy was headed, Greg Johnson and Todd Richards were disinterested witnesses who were unwavering in their testimony that the Mayfield truck struck Mrs. Smith while she was walking. Billy Smith amid all his confusion did not waiver from his statements that Mrs. Smith was standing when hit and that Mayfield was looking back talking to Jay Dupuy. Officer Rousell was investigating an accident which required that his immediate attention be given to Mrs. Smith until she was placed in an ambulance. Despite any shortcomings of his investigation he arrived at certain conclusions as to what happened and as these conclusions varied with the first version given by Jimmy Mayfield, he stated his conclusions to young Mayfield who at that time concurred. In Baumgartner v. State Farm Mutual Insurance Company, 356 So.2d 400 (La.1978) the Louisiana Supreme Court established an extremely high duty of care on the part of a motorist to avoid injuring a pedestrian. In that regard the court eliminated contributory negligence of the pedestrian as a defense to the liability of the motorist and established a strict liability concept to be applied in motorist-pedestrian accidents. "It is well settled in our jurisprudence that the first duty of those operating motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. Rottman v. Beverly, 183 La. [947] at 955,165 So. [153] at 156. `... (W)hat they can see they must see and in legal contemplation they do see; ... their failure to see what they could have seen by the exercise of due diligence does not obsolve them from liability.' Jackson v. Cook, 189 La. [860] at 868, 181 So. [195] at 197. "... Perhaps these courts had in mind the fact that in motor vehicle-pedestrian cases there is lacking a `mutuality of risks.' That is, the operator of a dangerous instrumentality, such as a motor vehicle, creates a great risk of injury to the life and limb of others. Thus he owes a duty to the public to protect it from that danger. The pedestrian, on the other hand, endangers himself only; therefore, his duty is owed primarily to himself. The motorist runs small risk of harm, physical or financial, from a pedestrian's negligence. "Since the operator of a motor vehicle is aware that he could meet many emergencies in which pedestrians will not always act prudently and will sometimes be found in perilous situations, he should have the added burden of keeping the roads safe even for those who are negligently caught off their guard. Further, where injury results, the burden should fall on the motorist who, with the exercise of care reasonable under the circumstances, saw or should have seen the impending peril and had, at that moment, the opportunity to avoid it. 356 So.2d 400, 405. "Accordingly, we hold that the doctrine of `last clear chance' has no application in absolving a motorist from liability when he negligently strikes a pedestrian. In the city a motorist is obligated to maintain a lookout for pedestrians at crosswalks at all times. If he fails to see a pedestrian in a position of peril when he should have, the motorist is at fault and is responsible. A motorist who could have avoided injury to a pedestrian by the exercise of care which is reasonable under the circumstances is at fault, and is responsible. The motorist cannot escape liability by proving that the pedestrian, admittedly in peril because of his own negligence, could have avoided injury more quickly than the motorist. The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the 76 motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter's negligence. And since, in such case, a plaintiff's contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue." (356 So.2d 400, 406). There are no crosswalks in Haughton. However, when the accident is on a street in a municipality in daylight with kids admittedly walking up and down by the side of the street the rules of Baumgartner would apply: "We agree with plaintiff that Baumgartner does not appear to be limited to pedestrians at crosswalks." Widcamp v. State Farm Mutual Automobile Insurance Co., 381 So.2d 937, 941; also see Hryhorchuk v. Smith, 379 So.2d 281 (3rd Cir. 1979) to the same effect. The Court is of the opinion that Jimmy Mayfield was negligent. The preponderance of evidence indicates that Mayfield took his foot off the brake, without looking forward, and that his truck began rolling toward plaintiff knocking her to the asphalt surface of the street, and then the vehicle ran over her legs. Applying the set of facts most favorable to the defendant, liability still attaches under the rule of Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936) to the effect that what a motorist can see he must see and in legal contemplation he does in fact see. His failure to see what he could have seen by the exercise of due diligence does not absolve him from liability. Even if Jimmy Mayfield did look before starting forward, he is held to see what he should have seen. The testimony shows that the plaintiff was walking across the street a few feet in front of the Mayfield vehicle. Mayfield is therefore held to have seen plaintiff and is required to have allowed her to pass safely to the other side of the street before starting forward. DAMAGES The medical testimony was by deposition and there is no question as to the severity of the injuries sustained by plaintiff. All of the doctors who treated Mrs. Smith and the various lay people testified that she is now an invalid. Mrs. Smith is a retired school teacher who, prior to this accident, was a leading citizen of her community, actively involved in church and civic organizations and described as a vibrant, healthy, active individual. Following plaintiff's injury, she was hospitalized at Bossier City General Hospital from October 12, 1979 through February 20, 1980, a period of 131 days. The final diagnosis was closed head injury; open comminuted segmental fracture of the right tibia; severe soft tissue injury to the left leg; right brachial plexus injury; and pneumonia. She also underwent the following surgical procedures: thorough irrigation and debridement of the laceration of the left leg as well as open fracture; suture of laceration of left leg and scalp; application of external fixation device for the open segmental fracture of the right tibia and fibula; and split thickness skin graft to the left lower leg. Plaintiff was next admitted to Bossier City General Hospital on July 25, 1980, and discharged on August 4, 1980, a period of ten days, with a final diagnosis of phlebitis of the right lower leg; old fracture of the right lower extremity; and cerebral ischemia. Plaintiff was last admitted to Bossier City General Hospital on September 10, 1980, and discharged on September 12, 1980. Mrs. Emma Pittillo testified that she had been close friends with the plaintiff for in excess of fifty years and that they had attended First Methodist Church together, both being very active in church activities. She further noted that plaintiff was associated with the Eastern Star and held an office in that organization at the time of the accident, as well as being president of the United Daughters of the Confederacy. Mrs. Pittillo described plaintiff's physical 77 condition as being "just great" and "perfect" and further described plaintiff's mental condition prior to the accident as being "great, she couldn't have done all the things she did without that." After noting that plaintiff was unable to take care of herself and really was bedridden most of the time, Mrs. Pittillo described her condition since the accident as, "I would say it is a pathetic completely turn-about situation." Mrs. Martha Swindle, another long time friend of plaintiff, testified to the same effect. Mr. Billy Smith and Mr. John D. Garland, Jr., plaintiff's son-in-law, testified that plaintiff could not take care of herself and now spends twenty to twenty-two hours in bed. Similar testimony was given by Mrs. Glendola Nelson, a practical nurse who sat with plaintiff while she was hospitalized and for several months after she returned home. John Rasmussen served as plaintiff's minister at the First Methodist Church in Haughton for six years just prior to plaintiff's injury. He described her activities in the church as, "extremely active. One of those individuals that was there every time the door opened and always willing to do any sort of volunteer work that was necessary." He described her home as being "immaculate" and her physical condition as being "excellent, remarkable" and her mental condition as being "... very astute, very alert." Mr. Rasmussen described her physical condition following her discharge from the hospital as, "Well, improved, but certainly nowhere near the physical condition that she experienced prior to the accident or the hospitalization." and her mental condition as, "I'd say that it parallels the physical condition." James W. Little, Bossier Parish Tax Assessor, stated that he had known plaintiff personally for forty-two years, that she had been a good teacher and that she had actually taught him in the fifth grade and that he had kept in touch with her and her family on a regular basis since that time. He described her physical and mental conditions as, "very active person, very alert, concerned about other people." He noted that she did not have any physical or mental disabilities prior to the accident, but now, "Well, now it appears that she's very limited in her ability to move herself and her speech is very slurred. You have to be very attentive to understand what she is saying." It was stipulated that were they to testify that Officer Ray Wilson of the Bossier Parish Sheriff's Department, Mr. Billy Montgomery, Assistant Principal at Haughton High School, Mr. Harold Harlan, Principal of Haughton High School, and Mr. Jap Gullatt, Jr., Supervisor of Bossier Parish School Board, would testify in substantial accordance to the testimony of Mr. Little. In his deposition Dr. J. V. Hendrick testified that he had been plaintiff's personal physician since 1968 and that he would describe her as a healty, white female and that he noted that prior to October 12, 1979, she exhibited no signs of senility. Dr. C. G. McAlister described plaintiff's initial orthopedic injury as follows: "Basically from my standpoint she suffered an open segmental fracture of her right tibia and fibula which is the small bone and the open just means it is bone sticking through the skin, comminuted means it is more than one piece and segmental means it is two different levels. It was broken like about two inches away from the knee and the second about three inches from the ankle area. ..."Well, at the time after she was evaluated in regards to her history on her was that she had respiratory arrests twice in the ambulance on the way and she, her orthopedic injuries were really secondary to everything else going on with her head injury. ... "Dr. Long and I both felt she had an injury to her brachial plexus on the right shoulder area. That is the group of nerves coming down through the shoulder area from the neck and this really impaired her as far as use of some crutches on the right plus she didn't want to... 78 ..."She had difficulty from one of the pins up towards the knee. She was having some purulent type of drainage meaning pus indicating a possible or probable infection." Dr. McAlister gave a description of the tissue loss due to the injury of her legs: "Q Now, you actually sutured up cuts that were later covered by the skin graft; is that correct? A Yes. Well, that's not true. The level of where the suturing was went, from what Dr. Valiulis told me as well as what the nurses told me, just went in the room and basically all the skin and the fat between her knee and ankle just peeled off. Q Just literally like skinning a deer? A Shucking a pea out of the pod and the leg was bared." Dr. McAlister further noted that plaintiff would spend ninety to ninety-five percent of her time in bed or in a wheelchair and that she would even have trouble reading a book because she would have difficulty turning the pages. Dr. Donald R. Martin was called in by Dr. McAlister on a consult for the pulmonary and respiratory problems which arose during the plaintiff's initial hospitalization. He first saw her on November 18, 1979 and stated that she had difficulty speaking and breathing with some arousal in her chest and probable congestive heart failure. He further noted that she had contracted pneumonia which was a complication of the immobility necessitated by the seriousness of her other injuries. Dr. Martin further noted that she developed a monilia infection in her mouth as well as a bladder infection, both of which were attributed to the continued use of antibiotics which were necessary to hold down other types of infection inherent in the type of injuries which she had received. At the time of her discharge in February, 1980, Dr. Martin noted that there had been some improvement but not a marked change. She could say a few words and could move her arms slightly, but the dilated pupil remained and she had difficulty in walking. Dr. Martin examined plaintiff on December 11, 1980, and noted little improvement. Dr. Warren Long, neurosurgeon, noted that plaintiff suffered a closed head injury with swelling of her brain and that she was unconscious for a considerable period following the injuries. He stated the tracheal tube was left in longer than desired and this resulted in injured vocal cords. He also noted plaintiff suffered a brachial plexus injury to the fifth and sixth nerve roots. Dr. Roy M. Fleniken, who specializes in otolargngology, noted that plaintiff had a paralyzed left vocal cord which was attributed to a neural injury that was consistent with a closed head injury as diagnosed by Dr. Long. Dr. John P. Valiulis, a plastic surgeon, stated that on initial examination, plaintiff was found to have a severe injury to the left lower leg in that the skin and fatty tissue was necrotic, dead. It was necessary to do extensive skin grafting over the entire left lower leg from just below the knee to plaintiff's ankle. Dr. Valiulis described the case of the injury as follows: "Q What would cause that type of a problem? A Numerous things can cause that; crushing injury, twisting injuries. It was like a commonly seenlike a wringer injury. The arm sometime is pulled through a wringer, the old wringers in washing machines. And it would take the skin and fat and just twist it off of its underlying structures. Then it would sort of, like, be a loose glove sitting on top of the muscle underneath. And, of course, it would have crushed it, twisted it and separated it from its blood supply. And, of course, also the full thickness skin loss could be caused from burns. It didn't look like that in her case, though. It wasn't a burn scar. But it looked like a de-glovingwhat would be called a de-gloving, which is this wringer-like injury to it." Dr. Valuilis stated that the scarring would be permanent. 79 Medical expenses incurred by plaintiff through December 4, 1980 are as follows: Bossier City General Hospital 10/12/79 through 2/20/80 $39,322.10 Bossier City General Hospital 7/25/80 through 8/4/80 1,600.60 Bossier City General Hospital 9/10/80 through 9/12/80 431.95 Private Duty Nurses through 12/4/80 31,753.12 Home Health Care 4,754.29 Dr. Clinton McAlister (Orthopedic Surgeon) 2,362.00 Dr. Warren Long 1,085.00 Dr. Roy M. Fleniken 35.00 Dr. Michael Ellis 125.00 Ambulance Service 353.50 Prescriptions 419.00 Dr. D. R. Martin 1,240.00 Associated Pathology 38.35 Dr. John P. Valiulis 1,560.00 Snell's Limbs and Braces 433.50 Abbet Medical Mart 12.55 P & S Shoe Clinic, Inc. 63.00 Ear, Nose and Throat Associates 35.00 __________ $85,623.96 Additionally, Dr. Melvin W. Harju, expert economist, calculated the present value as of January 1, 1981, of expected medical care cost expenses to be incurred on behalf of plaintiff. The Court will not go into detail as to the method of computation utilized by Dr. Harju. He computed her expectant life as of January 1, 1981 at 10.3 years based on the United States Department of Health, Education and Welfare Vital Statistics of the United States, 1977 Vol. 2, Section 5, Life Tables. He projected that annual cost of private duty nursing was $20,475.00 and to generate that sum, together with medical care inflation, it would take a present award of $206,441.00. Using the same method he also calculated nursing home ICFI care, which was stated to be $9,716.28 per year, and ICFU, which was stated to be $7,737.96 per year. Considering the medical testimony as to the condition of Mrs. Smith, her hospital record (Exhibit P-1) showing her date of birth to be 9/17/03 and hence under LSA-R.S. 47:2405 as amended by Act 440 of 1976, she would have a life expectancy of 5.88 years, the Court is of the opinion that she is entitled to $50,000.00 for future medical expenses. Plaintiff is entitled to special damages in the amount of $135,623.96. The injuries to plaintiff have maimed her for life. She expressed the desire to die to her friends. Her age does not give her much life expectancy but the quality of that life is forfeited. The Court is of the opinion that plaintiff is entitled to general damages in the amount of $100,000.00. The Court is of the opinion that there should be judgment herein in favor of Mary G. Smith, plaintiff, and against Charles E. Mayfield, defendant, in the sum of $235,623.96, together with legal interest thereon from judicial demand and all costs of the main demand. Defendant Millers Mutual Fire Insurance Company of Texas should be cast solidarily with Mayfield in the amount of its policy limits, i.e. $100,000.00, with interest thereon and costs. The fees of the doctors who testified by deposition are fixed as follows: Dr. J. V. Hendrick $100.00 Dr. John P. Valiulis 100.00 Dr. Roy Murl Fleniken 100.00 Dr. C. G. McAlister 125.00 Dr. Warren Long, M.D. 100.00 Dr. Donald R. Martin 125.00 and taxed as costs herein. The charges of the Court Reporters for taking the above depositions are fixed in accordance with their statements filed into evidence and are taxed as costs herein. The fee of Melvin W. Harju, expert economist, is fixed at $500.00 and taxed as costs. THE THIRD PARTY DEMAND The third party demand in this case was brought by Charles E. Mayfield, individually and as the administrator of the estate of his minor son, James W. Mayfield, hereinafter referred to as "Mayfield", against his former insurance agent, Mortimer J. Lasseigne, 80 Jr., hereinafter referred to as "Lasseigne". All of Lasseigne's actions were within the course and scope of his employment with Paramount Agency, Inc., likewise named a third party defendant. By supplemental and amending third party demand the errors and omissions insurer of Paramount Agency, Inc., National Union Fire Insurance Company of Pittsburgh, Pennsylvania, was named a third party defendant. National Union had issued a policy with limits of $1,000,000.00 per person and $300,000.00 per occurrence. The allegations of the third party petition are that Lasseigne was negligent in not suggesting to Mayfield prior to the accident that he obtain "far higher" liability limits for his automobiles than he had ($100,000.00 per person, $300,000.00 per accident and $25,000 property damage (100/300/25) as shown by Exhibit P. Mayfield 20), in failing to inform Mayfield that combined single limits could have been obtained in 1978 and 1979 under the business auto policy form, and in telling him in 1978 a $1,000,000.00 umbrella policy could not be obtained for him. All of these allegations are denied by Lasseigne and Paramount. Lasseigne and Mayfield had a passing relationship beginning in the 1960s. However, no professional relationship existed between the two until approximately 1971 when Mayfield came to Lasseigne to obtain his automobile insurance. Mayfield at the time had a policy with limits of $5,000.00 per person and $10,000.00 per accident for bodily injury and $5,000.00 property damage liability limits (5/10/5). Lasseigne obtained for him a policy of insurance with limits of 10/20/10. That policy was renewed each year until 1974. Lasseigne testified that in 1974 he recommended to Mayfield a "package" policy containing not only automobile liability insurance, but general liability insurance as well. The policy limit was $300,000.00 per occurrence. This limit is often referred to as a "combined single limit", meaning the limit is not divided per person, and there is no separate property damage limit, instead the company will pay $300,000.00 per occurrence and will pay that amount to any one person or group of persons and whether or not their injuries are in the nature of personal or bodily injuries or property damage. Thus, at the suggestion of Lasseigne, Mayfield for the first time had general liability insurance providing coverage to him for any liability to which he might be exposed in the operation of his business. Lasseigne stated that one of the reasons that he recommended this policy was the excellent premium. Lasseigne testified that he recommended a combined single limit of $500,000.00, but that Mayfield selected $300,000.00. Travelers ceased to write this type of policy the next year. Lasseigne further testified that at his suggestion, and through his efforts, Mayfield was issued a policy of workmen's compensation insurance for that same year, September, 1974September, 1975. That in 1975 he recommended to Mayfield that he obtain automobile liability insurance with limits of $250,000.00 per person and $500,000.00 per occurrence (250/500/25), that he obtain general liability insurance and that he obtain a policy of workmen's compensation insurance. Mayfield asked Lasseigne to obtain for him an auto policy with liability limits not of 250/500, but with limits of $100,000.00 per person and $300,000.00 per occurrence (100/300/25), and that was done. Lasseigne testified that Mayfield declined to obtain general liability insurance or workmen's compensation insurance. He said Mayfield informed him that all of his employees were family members and, therefore, workmen's compensation insurance was not necessary. When the automobile policy came up for renewal in September of 1976 Lasseigne testified he talked to Mayfield by phone and inquired as to whether or not Mayfield wanted to increase his limits. He testified he did not, after 1975 when he suggested 250/500 and Mayfield selected 100/300, suggest any particular dollar amount and he made no direct quotations because Mayfield was not interested in increasing his limits. Lasseigne testified that Mayfield was premium conscious. He said that he talked 81 by telephone or in person to Mayfield in August or September of each year to see if any changes were desired in the policies. Mayfield contends that he relied "100 per cent" on Lasseigne. Mayfield denied having any knowledge that in 1974 to 1975 he had a package policy containing auto liability limits of $300,000.00 and general liability limits of $300,000.00. He further denied that in 1975 Lasseigne recommended that he obtain auto liability limits of 250/500 and denied that Lasseigne at any time, other than 1974, suggested that he increase his auto liability limits. Mayfield contends that he thought in 1975 he had $300,000.00 liability and continued to think that after the switch to Millers. Pages 486-492 of the record contain important testimony of Mr. Mayfield under cross-examination: "Q Okay, All right. Now, this policy here, Mr. Mayfield, according to what it indicates has several different coverages in it and it may be referred to as a package policy. A Okay. Q Were you ever aware that you had a package policy? A I never heard that term before. Q Okay, you were aware though, I take it, that you had the workman's compensation coverage from 1974 till '75? A Now, is that through Q Through September of '75 through Mr. Lasseigne? A Yes, Yes. Q All right, and you were aware that you had property damage insurance? A Yes. Q You were aware that you had general liability? A No. Q You weren't aware of that? A No general liability, no. Q You never saw this policy, because if you had seen it, you would have seen the general liability checked wouldn't you? A I did not know I had general liability. Q Okay, and you were aware that you had auto, but you thought it was with another policy and you thought this was your equipment policy? A Correct. Q All right now, in 1975 this policy expired and Mr. Lasseigne got no more insurance for you through Travelers, did he? A That is correct. Q All right now, at the time that that policy expired, what insurance did Mr. Lasseigne suggest to you that you buy? A At that time, he told me that he was changing from Travelers to Millers as far ashe said, I'll have you the same coverage Q Well, Mr. Mayfield my question is A Okay. Q What insurance did Mr. Lasseigne suggest to you that you purchase in September of 1975 when he did not get a renewal of the Travelers policy? A There was no suggestion made. He said, I Q No suggestion? A No suggestion. He said I am changing from Travelers to Millers. Q Okay. No discussion of whether you should have manufactures and contractors liability? A No sir. Q No discussion as to whether you should have general liability? A That is correct. Q No discussion as to whether you should have automobile liability? A That is correct. Q No discussion as to what limits of automobile liability you should have? A Said it would be the same. Q Be the same? A Correct. Q And what did you assume that to be? A Three hundred thousand on my liability. 82 Q Well, Mr. Mayfield you told us awhile ago you never knew you had the three hundred thousand. How could you assume you would have the same? A I had three hundred thousand liability through the policy with Travelers through Mr. Lasseigne. He said when I'm changing frim (sic) Travelers to Millers, I'll have you the same coverage. Q All right now, are you telling us right now, Mr. Mayfield, that in 1975 you thought you had three hundred thousand dollars worth of insurance? A Liability insurance, yes. Q All right. How were your limits broken down, tell me that? A Okay, it was first one hundred, was my recollection. Q And what was the A And, let me see, the first figure was, to my recollection was, one hundred, three hundred, one hundred. Since then, I have found out that was incorrect. It was one hundred, three hundred, twenty-five. Q Okay, that's what you thought you had in 1975? A In '76. Q Well, what aboutfrom 1974 till 1975, you thought your limits were one hundred A No sir, I had three hundred thousand dollar liability. Now, as far as the other figures, I was not sure of those. Q And you knew that in 1975, you knew you had three hundred thousand dollars? A The center figure to my recollection was always liability. Q Okay, what was the first figure to your recollection? A As I told you until after all these proceedings started, I did not have any idea what either the first or last figure referred to. Q Now, Mr. Mayfield, did you tell me at your deposition that the largest limit you had ever had prior to this accident was one hundred, three hundred? A That is what I told you, yes sir. Q. Okay. I take it then that you do not consider the three hundred thousand that you are talking about now to be a larger limit than the one hundred, three hundred? A No sir, I thought that the three hundred figure was the same, that the three hundred was my liability. Q Okay. All right, now, and it's your testimony that when this policy, the '74 to '75 Travelers policy expired that you assumed that it was all going to be continued just with another company? A Yes sir. Q You would have all the same coverage? A I was told I would have the same coverage with a different company. Q And you testified a moment ago that every year you got these policies in the mail? A That is correct. Q And in 1974 to '75 you got that workman's compensation policy in the mail, you got that policy there in the mail and you got another policy on your autos in the mail? A Yes. Q All right, and in 1975 you got what in the mail? A Any policy he sent me came through the mail, I would take out the invoice, I would write him a check and mail it back to him. Q Did you get workman's compensation coverage in 1975? A Now that I'm not sure of. Q Did you get A I don't believe I did in 1975. Q Did you get general liability coverage in 1975? A Not to my knowledge. Q Okay. Did you ask for it? A No sir. Q When did you ask for general liability coverage? A In 1978. 83 Q Had Mr. Lasseigne suggested it to you before? A No sir. Q Never have? A Never. Q Did not suggest it to you in 1977? A No sir. Q Did you call Mr. Lasseigne in 1977 with reference to an injury to an employee? A I believe that was in '76 that I called him, in the latter part of '76, to my knowledge that I called him. Q Okay. And did you discover that you did not have workman's compensation? A That is correct. Q Did you obtain workman's compensation at that time? A Yes. Q Did Mr. Lasseigne suggest to you at that time that you obtain general liability insurance? A No sir. Q Did he obtain a quote for you? A Not to my knowledge. Q Did Mr. Lasseigne ever at anytime suggest to you that you needed more automobile liability insurance coverage than you had? A Only when we increased it, which would have been back at the time of the Travelers policy. Q From ten twenty to the three hundred? A Correct. Q And itlet me make sure I understand. Your belief is or your impression was that from 1974 on you had the same coverage? A Yes sir, with the exception of when I requested and received this general liability policy which was an additional one hundred thousand. Q Okay, but I'm talking about your auto coverage? A Well, I thought that was auto coverage. That was general liability. Q All right, you thought it was auto? A Yes sir, on the very front page of the policy it stated auto coverage. Q. Let me show you this. I'll write 3-D number two, and this maywell, if you don't recognize it, will have it identified by Mr. Lasseigne. Ask you if that's that general liability policy that you are talking about? A Could I get Mr. Achee to look at it? Q No, I want to know what you think about it. A Yes sir. Q That's the policy A Thison the very front corner it says, general liability automobile. Q It says general liability, dash, automobile, isn't that right? A Yes. Q Mr. Mayfield do you every look at anything other than the upper left hand corner when you look at an insurance policy? A I only look at the head lines. Q Okay, thatwe know that now. All right. A Great. Q What premiums are shown on that policy Mr. Mayfield? A It shows two thousand dollars, but I paid two thousand seventy-five for it. Q Well, Mr. Mayfield my question is very simply A Yes. Q What premium is shown and what are they shown to be for? A It shows two thousand dollars right there. Q All right. And it says coverage part numbers, coverage parts, manufactures and contractors liability insurance, is that correct? Is that what it says right there Mr. Mayfield? A Yes sir, but on the other side it says automobile physical damage insurance. Q Is there any coverage listed for automobile physical damage insurance? A It's on the same line. MR. TUTT: I want to introduce this as 3-D number 2. 84 MR. ACHEE: No objection. THE COURT: Let the offering identified as 3-D number 2 be received. Q Mr. Mayfield, at the time we took your deposition in September of 1980, did you testify that atas of that date, you did not know whether you had a combined or a single limit policy? A That is correct. Q As of that date A As of that date. Q September 25, 1980? A That is correct. Q That means that you didn't know what the limits of your present coverage in September of 1980 were, is that right? A That is correct. Mr. Mayfield contends that when this suit was filed he believed that he had $300,000 coverage for this accident under the automobile fleet policy and an additional $100,000 under a manufacturer's and contractor's policy which policy was issued by Paramount and contained the words "General LiabilityAutomobile" on the first page. He told his personal attorney the limits as he understood them. However, when his attorney contacted Mr. Alex Smith, Jr. he was informed of Mayfield's actual coverage and was advised to increase his liability coverage. Mayfield testified that in 1978 he requested Lasseigne to obtain for him an umbrella policy with $1,000,000.00 limits. Lasseigne denied that the request was ever made. Mayfield testified that the request was made in the presence of Mr. Wayne Wicker. Mr. Wicker is in the oil business and has an umbrella policy with a $5,000,000.00 limit. Mr. Wicker remembers eating lunch with Mayfield and Lasseigne on occasions, sometimes once a month, but he couldn't recall any specifics of any conversation. The issue is one of credibility. Mr. Mayfield attended UCLA and graduated with a degree in geology from Centenary College and has been successful in the oil business for some time. He stated that he didn't read his insurance policies. The evidence shows each policy was mailed and the premium paid. There is no reason why he could not tell what limits he had. He has not proven that he ever asked for more than he received or that Lasseigne ever gave him reason to believe that he had more or any different coverage than that requested. The question remaining is whether Mr. Lasseigne had a duty to advise Mr. Mayfield that his liability limits were insufficient and whether the excess exposure of Mr. Mayfield in this lawsuit is a result of that breach of duty. Counsel have filed excellent but lengthy briefs herein. The thrust of third party plaintiff's argument is that Mr. Mayfield had a growing successful business; that Mr. Lasseigne was a Chartered Property and Casualty Underwriter (CPCU); that the National Association of Insurance Agents, Inc. (NAIA) has adopted a code of ethics to which more than fifty agents, including Paramount, subscribed in the yellow pages of the January, 1978 and January, 1979 Shreveport Telephone Directory; and that as a CPCU, Lasseigne was considered a highly qualified expert in the insurance field and that he had a duty to bring Mr. Mayfield's policy up-to-date with respect to monetary limits and new forms of coverage available. Third party plaintiff relies on an article in the Insurance Counsel Journal and a Drake Law Review article as projecting the duty of seeing that when an insured's operations are expanding, care should be taken to see that limits are raised accordingly and the possible liability for failure to so do. No case in this state or in any other state has been cited as holding that an insurance agent has a duty to recommend to an insured that he increase his personal liability limits. The only issue heretofore sanctioned in Louisiana in actions between agents and their insureds is: What did the insured want, what did he ask for and did he get it? In Karam v. St. Paul Fire and Marine Insurance Company, 281 So.2d 728 (La.1973) 85 cited by both parties, the Court said at page 730-731: "An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent's failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage." Kiernan v. Commercial Union Insurance Company of New York, 271 So.2d 889 (La. App. 4th Cir. 1973) is a case relied upon heavily by the Supreme Court in the Karam decision and the holding therein is essentially identical to that of the Karam case: "An insurance agent is responsible to his client to use reasonable diligence in attempting to place requested insurance and can be held liable if his actions warrant a reasonable assumption on the part of the insured that the insured is covered when, in fact, he is not." The Court went on, however, to place the blame for the failure of the insured to be covered on the insured for not reading his policy. The Kiernan case involved a situation wherein the insured had in force a $25,000.00 liability policy which was to be renewed. The insurer informed the agent it would not insure one of the drivers of one of the vehicles for more than $5,000.00. The policy was subsequently issued and the agent wrote to the insured advising them that the $5,000.00 limitation applied whenever the son was driving the car. She neglected to advise them that the policy endorsement actually limited the coverage to $5,000.00 when any male under the age of 25 was driving the car. The insureds had not informed the agent that the family vehicles were used in the insureds' business as well as for personal use and subsequent to that time a male employee of the insured under the age of 25 was involved in an accident causing considerable damage. The insured sought to recover the difference between the $5,000.00 coverage available and the $25,000.00 which they thought to have been available from the agent. The Court cited the rule of the Karam case that a prospective insured may recover loss sustained as a result of the agent's failure to procure the desired coverage when the agent's actions warrant an assumption by the insured that he was suitably covered. The Court went on to state, however, that "The burden of proof is on the plaintiff to show the defendant agent agreed to provide the coverage." The Court cited Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3rd Cir. 1963). The Court went on to find that there was no negligence or fault on the part of the agent and, to the contrary, the fault lay with the insureds for not telling the agent the cars were used in the family business and "... in not reading the clear provisions of their policy." Kiernan v. Commercial Union Insurance Company of New York, supra, at page 892. There was no action on the part of Lasseigne proven at trial which would have justified Mayfield in reasonably assuming he was covered to the extent of $300,000.00. A restatement of the law is found in the Second Circuit case of Porter v. Utica Mutual Insurance Company, 357 So.2d 1234 (La.App. 2nd Cir. 1978), at page 1238 which reads as follows: "In order to recover for loss arising out of the failure of an insurance agent to obtain insurance coverage, the plaintiff must prove: (1) an undertaking or agreement by the insurance agent to procure insurance; (2) failure of the agent to use reasonable diligence in attempting to place the insurance and failure to notify the client promptly if he has failed to obtain the insurance; and (3) the actions of the agent warranted an assumption by the client that he was properly insured." The Second Circuit restated this rule this year in Redmond v. National Union Fire Insurance Company, 403 So.2d 810. None of these circumstances exist in this case. Third party defendants in their brief state that they have no quarrel with most of the authorities cited and statements *86 therein that were cited by third party plaintiffs, but point out that they still cite a rule of law similar to the Karam holding. Mayfield also cites for his position Fiorentino v. Travelers Insurance Company, 448 F.Supp. 1364 (1978) wherein the United States District Court for the Eastern District of Pennsylvania said: "When the insured informs the agent of his insurance needs and the agent's conduct permits a reasonable inference that he was highly skilled in this area, the insured's reliance on the agent to obtain the coverage that he represented that he will obtain is justifiable." The agent did not obtain the coverage he said he would. Third party plaintiff cites Grant v. Touro Infirmary, et al., 223 So.2d 148 (La.1969) and Louisiana Title Insurance Company v. Cary Hodges & Associates, Inc., et al., 358 So.2d 964 (1st Cir. 1978) for his contention that expert testimony would not be required to show what Lasseigne's duty was. In Grant a surgeon left a sponge in a patient and in Louisiana Title a surveyor wrongfully located a drainage structure. The apparent negligence in those cases is not at all like this case where the question is: What is adequate insurance coverage for Mayfield? Third party defendant states in his brief that the jurisprudence of the entire United States has been combed by way of computer and that this cause of action has been attempted to be asserted but one time and that was in Fleming v. Torrey, 273 N.W.2d 169 (S.Ct. of South Dakota, 1978) where the Court rejected the argument and held as follows: "For the purposes of our opinion we assume that plaintiff Fleming relied on defendant, had confidence in him and would likely follow his advice on insurance matters. But where the insured did not request the agent's advice as to liability limits but instead ordered specific limits; where the subject involved is a money limit rather than a more complex policy provision; and where there is no special relationship beyond that shown here, we cannot find a legal duty upon the agent to volunteer advice regarding liability limits for the breach of which the agent could become liable for $107,500.00.3" The footnote to the paragraph reads as follows: "There is no one right answer to the question of what is a `safe' liability limit on a truck. Many factors enter in at the time of the accident that cannot be known in advance. The `safe' limit on property damage on property owned by an insured, for instance, is quite a different matter." No case has been cited that places a duty on an agent to advise what limits should be carried. Homeowners' limits and equipment coverage is different for what ought to be in place in those areas can be ascertained. This Court cannot say what is a safe liability coverage. The Court is of the opinion that the demands of third party plaintiff should be denied at his cost. Counsel for plaintiff Mary G. Smith will prepare a judgment in accordance with this opinion and present it to the Court for signature. Benton, Louisiana, this 7 day of December, 1981.	{ "pile_set_name": "FreeLaw" }
618 F.2d 92 Blaisv.R. I. Adult Correctional Institutions 79-1632 UNITED STATES COURT OF APPEALS First Circuit 1/10/80 1 D.R.I. AFFIRMED	{ "pile_set_name": "FreeLaw" }
312 S.W.3d 657 (2009) Michael MBUGUA, Appellant, v. The STATE of Texas, Appellee. No. 01-07-00690-CR. Court of Appeals of Texas, Houston (1st Dist.). August 21, 2009. Discretionary Review Refused March 17, 2010. 659 Jani J. Maselli, Houston, TX, for Appellant. Michael Mbugua, Kenedy, TX, pro se. Bridget Holloway, Assistant District Attorney-Harris County, Dan McCrory, Assistant District Attorney, Houston, TX, for Appellee. Panel consists of Justices BLAND, SHARP, and TAFT.[] OPINION TIM TAFT, Justice (Retired). A jury convicted appellant, Michael Mbugua, of the offense of murder and assessed punishment at life in prison. See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003). We determine whether (1) the trial court abused its discretion in failing to suppress appellant's statement; (2) this appeal should be abated and the trial court required to submit findings of fact and 660 conclusions of law regarding the denial of appellant's motion to suppress; (3) the trial court erred in not submitting a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure;[1] and (4) the exclusion of portions of appellant's medical records from evidence was reversible error. We affirm. Facts Kimberly Watkins and Blair Brown were driving westbound on West Bellfort in Houston, Texas, on the night of May 13, 2006, when they saw the complainant lying facedown in the road. They stopped at an Auto Zone store parking lot, and Watkins exited the car to help the complainant. When Watson approached him, she saw that he was covered in blood. She bent down to check on him and touched his neck. He was breathing and making a humming sound, but was not moving or speaking and did not respond to her. Watson stood up and waved her arms to deter cars from accidentally hitting him, turning around occasionally to check on the complainant. Brown was trying to call 9-1-1; she had borrowed a cell phone from a Pizza Hut delivery driver in the same parking lot, but the phone was not working properly. Within a minute or so, Watson saw a young man come across the street and approach the complainant, and she asked him if the complainant "was okay." He did not answer her and, when she turned, she saw him stabbing the complainant with a knifefirst in the back about five times, and then lifting the complainant's head and slitting his throat twice. Brown also saw the attack. The man then stepped back calmly, dropped the knife, and slowly walked away. According to Brown and Watson, the complainant did not have a weapon. After the assault, other cars stopped, and Brown was able to borrow another person's cell phone and place a call to 9-1-1. After the ambulance arrived, Watson noticed a vehicle across the street in someone's front lawn, as if an accident had occurred. The vehicle was on the opposite side of the street from the Auto Zone and on the same side of the street from whence the assailant had come. The complainant, later identified as Bruce Caldwell Jr., died from his injuries. Brown and Watson were able to give a description of the assailant to the police, but neither was able to identify him from a police photographic spread. Houston Police Department Sergeant Mark Newcomb investigated the murder scene and noticed that a car had driven up onto a nearby lawn, hitting some landscaping in the yard. The keys were still in the car, the passenger side door was open, and there was blood in the car and a trail of blood leading from the car to the spot on the street where the complainant was attacked. Two knives were recovered from the scene, and another was later found in the car.[2] A piece of human finger was later recovered from the driver's seat of the vehicle. Newcomb determined that the wrecked vehicle was registered to appellant and went to appellant's home around 2:30 a.m. on the same night of the incident, but did not find him. The next day, Newcomb spoke to appellant by telephone. At that time, appellant was at his parents' home, being treated by emergency medical technicians for an injury to his hand. Appellant 661 agreed to make a statement and was transported by the police to the Homicide Division, where appellant gave a videotaped oral statement regarding the incident. In his statement, appellant explained that he and the complainant had been traveling to Wal-Mart in appellant's car, which appellant was driving. He and the complainant were talking about business, but appellant felt that, "between the lines," the complainant was talking about how he was going to kill appellant. Appellant said that he and the complainant had been partners in the music business,[3] but the complainant had broken the partnership by trying to kill him. According to appellant, the complainant had felt it necessary to put a price on appellant's head, had "a lot of people ... coming to [appellant's] house trying to kill" appellant, and had told appellant that he was going to kill him, his mother was going to kill him, his father, a police officer,[4] was going to kill him, and other people were going to kill him. The complainant had threatened appellant periodically over the previous few weeks. Appellant carried two knives in his car for personal protection. Appellant never reported these threats to the police. The night of the incident, appellant and the complainant "got into an altercation" and appellant "had to pull out [his] knife." He did not know if the complainant had a weapon; he did not see one. Appellant stabbed the complainant twice in the arm or shoulder. During the scuffle, the complainant cut appellant, injuring him. The complainant grabbed the steering wheel, he turned the car into the yard, and they hit a curb. The complainant then jumped out of the car and ran. Appellant followed the complainant into the median to find out what was wrong with him, to see if he was all right, and to help him; he made it within a few feet of the complainant, but ran when he heard someone rack a shotgun. He kept running because he was afraid that someone was trying to kill him and he walked all night, finally arriving at his parents' house. He expressed surprise in learning from the interviewing officer that the complainant was dead, said, "Damn," repeatedly, and asked, "So, what am I looking at?" When the officer asked appellant why he stabbed the complainant in the median, he answered, "I don't even remember," and when the officer asked appellant if he did not remember stabbing the complainant after leaving the car, appellant answered, "Damn." After the interview, Newcomb went down to the second floor of the same building, signed a formal complaint charging appellant with murder, and then, once the complaint went to the clerk's office, arrested appellant, who was booked in and charged with murder. Appellant filed a motion to suppress the oral statement, which was denied after a hearing. The videotaped oral statement was played to the jury at appellant's trial, over appellant's objection.[5] At trial, appellant 662 asserted a claim of self-defense and called two witnesses. The first was his mother, who testified about appellant's fear that the complainant was going to kill him, his arrival at home in the early hours on the morning after the incident, and police actions on the night of the incident and the following morning, as they searched for appellant at his home and ultimately took him to the police station to make a statement. His second witness was Dr. Vincent Di Maio, a forensic pathologist, who testified that the complainant was likely killed by the wound to the heart, not the wounds to the neck, and that appellant's wounds were consistent with being defensive wounds.[6] Appellant did not testify. Denial of Appellant's Motion to Suppress In his first issue, appellant contends that the trial court erred by denying his motion to suppress his statements because appellant was in custody and "had clearly invoked his right to an attorney, in violation of state law and the Constitution." In his third issue, appellant contends that the trial court erred in failing to suppress his statement "because he was in custody at the time it was given and he was not given his Miranda[7] warnings in violation of state law and Constitution." A. The Motion to Suppress Appellant filed a motion to suppress any statements made by him,[8] asserting that: (1) any conversations between himself and law enforcement officials occurred when he was under arrest or substantially deprived of his freedom by law enforcement officials; (2) any statements made were involuntary, coerced, and enticed; (3) he was deprived of his right to counsel and did not make an intelligent and knowing waiver of that right; (4) his statements were tainted by an illegal and unlawful detention in violation of his constitutional rights under "the Fifth and Fourteenth Amendments of the Constitution to the United States, Article 1, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure"; (5) his statements "were taken without the safeguards required by and in 663 violation of Article 38.22 of the Code of Criminal Procedure"; and (6) the admission of his statements "is a violation of [appellant's] rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States, Constitution, Article I, Section[s] 9 and 10 of the Texas Constitution and Articles 1.05 and 38.23 of the Texas Code of Criminal Procedure." The trial court held a hearing on the motion, at which the State called four witnessesDarryl Smith, Hilario Galvan, Anthony Wayne Duncan, and Newcomb. Appellant called his father, Joe Mbugua. The court also had before it the videotape of the interview, a transcript of the same, and several photographs that had been admitted into evidence. At the conclusion of the evidence, the State argued that the requirements of article 38.22 did not apply because appellant had not been under arrest until after he made his initial admissions, at which point the officer gave appellant his article 38.22 warnings. The defense argued that appellant was in custody the entire time and invoked his right to an attorney or, alternatively, that appellant was initially not in custody, but was in custody when he arrived at the police station. After further arguments about custody and the invocation of the right to counsel, the court stated to appellant's counsel, "I think succinctly you're arguing he was in custody at the time he's making statements about the lawyer, and, therefore, it constitutes an invocation of his right. The State's position is he was not in custody at the time that he made the statements about the lawyer, so the Court doesn't need to reach the question as to whether it was an invocation or not at that point." The defense responded, "Right," as did the State. Appellant concluded by saying that the final portion of his argument was that appellant invoked his right to counsel, but that the police improperly kept asking questions after such invocation, instead of stopping the interrogation. The trial court then denied the motion to suppress, making the following statements: The Court finds that [appellant] ... was not in custody at the time that he was taken in to the Homicide department, was not in custody at the beginning of the conversationthe questioning that occurred at the beginning of the videotape. And I also find, just so the record is clear, that his question about ... could he wait for his lawyer did not constitute an invocation of right to counsel. So, furthermore, the Court therefore finds that the requirements of Article 38.22 of the Code of Criminal Procedure, at the time they were given, [appellant], that he understood those rightsthat he voluntarily gave those rights up and voluntarily gave the statement. And I think mymy statement that, "Can I wait until my lawyer gets here," not being an invocation of right to counsel applies as well to the statement made by [appellant] when he is making the same inquiry on page 14 [of the transcript] when he is being given his legal warnings. All right. The statement will be admitted. B. Invocation of Right to Counsel Under the Fifth Amendment of the United States Constitution, an accused has the right to have an attorney present during custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981) (noting that that right was first declared in Miranda decision). Once an accused has invoked that right, police interrogation must stop until counsel has been made available or the accused himself initiates a dialogue 664 with the police. Id. at 484-85, 101 S.Ct. at 1884-85; State v. Gobert, 275 S.W.3d 888, 892 (Tex.Crim.App.2009). However, a person in custody must unambiguously and unequivocally invoke his right to counsel before interrogation must cease. Davis v. United States, 512 U.S. 452, 458-61, 114 S.Ct. 2350, 2355-56, 129 L.Ed.2d 362 (1994). Not every mention of a lawyer will invoke the right to the presence of counsel during questioning. Gobert, 275 S.W.3d at 888; Dinkins v. State, 894 S.W.2d 330, 351 (Tex.Crim.App.1995). An ambiguous or equivocal statement regarding counsel does not require officers to halt the interrogation or even to seek clarification. Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356; Gobert, 275 S.W.3d at 892. Whether the particular mention of an attorney constitutes a clear invocation of the right to counsel depends on the statement itself and the totality of the surrounding circumstances. Gobert, 275 S.W.3d at 892. The test is an objective one: "whether a reasonable police officer, under similar circumstances, would have understood the statement to be a request for an attorney or merely one that might be invoking the right to counsel." Reed v. State, 227 S.W.3d 111, 116 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd) (citing Dinkins, 894 S.W.2d at 351). "The suspect `must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer would understand the statement to be a request for an attorney.'" Gobert, 275 S.W.3d at 893 (quoting Davis, 512 U.S. at 459, 114 S.Ct. at 2350). The statement that appellant asserts on appeal was an invocation of his right to counsel[9] occurred at the beginning of the interview in the following exchange with Newcomb, after Newcomb had confirmed that appellant did not need immediate medical care, had had an opportunity to use the bathroom and have a drink of water, understood that he was not under arrest, and wanted to speak with the police: [Newcomb]: Okay. So you are not under arrest. We just want to get your side of the story on what happened, okay? [Appellant]: Okay. [Newcomb]: And so, do youyou want to continue to talk to us and speak with us; is that correct? [Appellant]: Can I wait until my lawyer gets here? [Newcomb]: Okay. Ifif you want to talk to a lawyer, we'll have to cut off the interview right now. We can't ask you anything else. We can't speak to you anymore, and you will not have an opportunity to give your side of the story. [Appellant]: Then what's going to happen? [Newcomb]: I'm sorry? [Appellant]: What's going to happen? [Newcomb]: Well, from that point I'll have to go make some phone calls, and I'll get back with you. But if you are refusing to speak with us and you want an attorney, if that's what you're saying, then we're going to get up, we're going to walk out of this room and that's whatthe end of the conversation. Now you are not under arrest at this time. So you don't have to have an attorney if you are not under arrest, okay? So [Appellant]: Can I call my parents so I can [sic] I feel more comfortable talking 665 to my parents here because they knowthey know the story too. Appellant argues that the question, "Can I wait until my lawyer gets here," was an unequivocal and unambiguous request for counsel, during a custodial interrogation. He contends that, therefore, the police should have ceased questioning him at that point and that the additional questioning was an improper attempt to coerce a statement from him. The State argues that appellant did not clearly invoke his right to counsel and, even if he had, appellant was not in custody at the time and therefore the police were not required to cease questioning. The State also argues that, although not required to, the police followed the ambiguous statement with questions seeking to clarify whether appellant wanted an attorney, and appellant did not state that he wanted counsel, but instead confirmed that he wanted to keep talking to police. We hold that the statement at issue was not a clear and unambiguous invocation of the right to counsel. An accused "must unambiguously request counsel" and "a statement either is such an assertion of the right to counsel or it is not." Davis, 512 U.S. at 459, 114 S.Ct. at 2355. If the statement does not meet the required level of clarity, then officers are not required to stop questioning. Id. Appellant has referred us to the Court of Criminal Appeal's decision in Gobert. In Gobert, after the police had read Gobert his article 38.22 rights and asked if he understood them, Gobert replied that he did, and then stated, "I don't want to give up any right, though, if I don't got no lawyer." Gobert, 275 S.W.3d at 889-90. The Court of Criminal Appeals held that Gobert's use of the term "any right" referred to the article 38.22 rights just read to him, which included the right to counsel, and that the entire statement expressed Gobert's clear desire not to waive any rights in the absence of counsel. Id. at 893. The Court held that such statement was a limited invocation of the right to counsel, "clearly stating" a "firm and unqualified condition" that, before any further attempts to persuade Gobert to waive any other rights, the officers must first afford him the right to have his attorney present during that attempt. Id. at 894. The Court held that the officers had violated Gobert's right to counsel when they failed to abide by this "unambiguous and unqualified condition." Id. By contrast, appellant's question, "Can I wait until my lawyer gets here?" did not clearly state a firm, unambiguous, and unqualified condition that any further questioning must be conducted only with his attorney present. Appellant's question, both by the language used and in the context of the totality of the circumstances, was not a clear and unambiguous assertion of the right to counsel and an exercise of that right, but was more in the nature of an inquiry about the interview process and appellant's options in regard to that process. Newcomb understood the question as such and responded accordingly, explaining what would happen in the process if appellant wished to "wait" and to talk to his lawyer. Appellant's question was, at best, an ambiguous articulation of a desire for counsel.[10]See Davis, 512 U.S. 666 at 462, 114 S.Ct. at 2357 (holding that statement, "Maybe I should talk to a lawyer" was not request for counsel); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (deciding that question, "Can I have [my attorney] present now?" was ambiguous question about counsel); Halbrook v. State, 31 S.W.3d 301, 302 (Tex.App.-Fort Worth 2000, pet. ref'd) (determining that statement, "Do I get an opportunity to have my attorney present?" did not constitute clear and unambiguous invocation of counsel); Flores v. State, 30 S.W.3d 29, 34 (Tex.App.-San Antonio 2000, pet. ref'd) (holding that question, "Will you allow me to speak to my attorney before?" was not clear and unequivocal invocation of right to counsel). Having concluded that appellant's question did not clearly and unambiguously invoke the right to counsel, we hold that trial court did not abuse its discretion in not granting appellant's motion to suppress on this basis. We overrule appellant's first issue.[11] C. Failure to Give Miranda Warnings The State contends that appellant failed to preserve his contention under his third issue, regarding the failure of the police to give appellant his Miranda warnings, because appellant did not specifically direct the trial court's attention to the failure to give article 38.22 warnings as a basis for suppression in either his motion to suppress or at the motion-to-suppress hearing, but instead only pursued his claim as a violation of his invocation of counsel while in custody. The State argues that, at the conclusion of the motion-to-suppress hearing, appellant asked the trial court to decide only whether he was in custody and had invoked his right to counsel, in effect abandoning any other grounds for suppression listed in the motion. We first note that the videotape and the transcript of the interview indicate that appellant received the required Code of Criminal Procedure article 38.22 warnings after he had made some initial inculpatory admissions and prior to more detailed questioning. The only issues then, regarding the provision of any required warnings are whether the police were required to give appellant such warnings at an earlier time than was actually done; if so, when that should have been done; and if there were any incriminating statements made after that time that should have been suppressed. Appellant did not bring such a contention to the attention of the court, either in his motion to suppress or during the oral hearing, nor did he ask the court to decide these questions and issue a ruling thereon. His motion failed to preserve his contention on appeal because it did not alert the trial court that he wished the issue to be decided; rather, the motion stated that the rights encompassed in these warnings were violated and that his oral statements were taken "without safeguards." These general statements in the motion would not have alerted the trial court to the specific complaint that his article 38.22 warnings should have been provided at an earlier point in the interview, and they do 667 not comport with the issue on appeal. See TEX.R.APP. P. 33.1(a)(1) (requiring, in order to preserve error, sufficient specificity to make trial court aware of complaint and ruling by court on complaint); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995) (holding that issue on appeal must comport with complaint made at trial). Appellant likewise did not bring the issue of the delay in the article 38.22 warnings to the trial court's attention at the motion-to-suppress hearing or at trial. Appellant's sole focus and argument to the trial court at the motion-to-suppress hearing was that he was in custody, had invoked his right to counsel, and was improperly questioned after having done so. When the videotaped oral statement was offered into evidence at trial, defense counsel asked to approach the bench. The court asked if appellant "had any additional objections other than the ones already made," and counsel responded, "No, I just wanted to make sure it was clear that I wasn't waiving any of my previous objections." Because appellant did not object to the admission of his statement based on the failure of the police to provide required warnings at an earlier time, either at the suppression hearing or at the time of trial, and did not secure a ruling on such a complaint, he did not preserve error as to this issue. See TEX.R.APP. P. 33.1(a)(1); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.App.2005) (concluding that, when appellant failed to object to admission of statement at motion-to-suppress hearing on ground for suppression raised on appeal, but instead, argued a different basis for suppression, issue was not preserved); Johnson v. State, 263 S.W.3d 287, 290 (Tex.App.-Houston [1st Dist.] 2007, pet. dism'd) (same). We hold that this contention was not preserved and decline to address it. We overrule appellant's third issue. Abatement for the Preparation of Findings of Fact and Conclusions of Law In his second issue, appellant asserts that the trial court erred in not submitting written findings of fact and conclusions of law regarding its ruling on his motion to suppress. As detailed previously, the trial court made a statement of its findings and conclusions at the close of the motion-to-suppress hearing. Following these remarks, appellant's counsel commented to the court, "I think it has to be on the record that we havewe are entitled to do specific findings of fact and conclusions of law. So I just want to get that on the record." The court responded, "Well, I think you're certainly entitled to those. And I think that will be an interesting issue for you if it gets that far." Appellant's counsel replied, "Correct. Thanks, Judge. That's all I have." No proposed findings of fact or conclusions of law appear in the record, nor is there any formal written order containing findings of fact or conclusions of law. Appellant asserts on appeal that the trial court was required to enter written findings of fact and conclusions of law pursuant to Texas Code of Criminal Procedure article 38.22, section 6. See TEX.CODE CRIM. PROC. art. 38.22, § 6 (Vernon 2005). Appellant requests that we abate this appeal and order the trial court to issue such findings. See Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App.2004) (holding that when trial court fails to make findings of fact and conclusions of law required by article 38.22, section 6, proper procedure is for reviewing court to direct trial court to comply with this provision). The State asserts that, because appellant did not argue that his statement was involuntary during the suppression hearing, the trial 668 court was not required to make findings under article 38.22, section 6. See Jones v. State, 859 S.W.2d 537, 540-41 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (holding that trial court was not required to make finding under section 6 of article 38.22 when appellant did not make objection as to voluntariness of statement). Section 6 of article 38.22 provides, in relevant part: In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must .... [i]f the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court ... enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific facts upon which the conclusion was based, which order shall be filed among the papers of the cause. TEX.CODE CRIM. PROC. ANN. art. 38.22, § 6. A trial court satisfies this requirement of article 38.22, section 6 when it dictates its findings of fact and conclusions of law to the court reporter and they are subsequently transcribed and made part of the appellate record. Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App.2003); Vasquez v. State, 179 S.W.3d 646, 654 (Tex. App.-Austin 2005), aff'd, 225 S.W.3d 541 (Tex.Crim.App.2007). This the trial court did. On appeal, appellant does not challenge the sufficiency of the trial court's oral statements to serve as the required conclusions and findings; he complains only that the trial court did not enter written findings. We conclude that the trial court's dictation of its findings of fact and conclusions of law to the court reporter, which are now part of the appellate record, satisfied the requirement of article 38.22, section 6. See Murphy, 112 S.W.3d at 601. We overrule appellant's second issue. Jury Instruction In his fourth issue, appellant contends that the trial court erred in failing to give an instruction to the jury, pursuant to article 38.23(a) of the Texas Code of Criminal Procedure,[12] that would have required the jury to determine whether appellant was in custody at the time that he gave his statement. At trial, appellant specifically requested the trial court to include "a 38.23 charge involving the factual issue of whether or not [appellant] was in custody at the time that he arrived at the Houston Police Department for his statement .... [a]nd if he was in custody and did not receive Miranda [warnings], that the jury be instructed to disregard the statement in its entirety." He also tendered a proposed charge. The State responded that there was no dispute as to any factual issue. The trial court then explained that custody was a term of art, a mixed question of law and fact, and did not "boil[ ] down to a fact determination turning on a particular fact," discussed the evidence regarding custody, found that it did not raise an issue with respect to whether appellant was in 669 custody, and denied the proposed instruction and any instruction under article 38.23. On appeal, appellant acknowledges that he was entitled to an instruction under article 38.23(a) "only if the trial evidence raised a factual issue concerning whether the evidence was obtained in violation of the federal constitution or the Texas Constitution or any of its laws," quoting Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). He asserts that the testimony of his mother, that she told the paramedics that she wanted to take appellant to the emergency room and that the police told her that she could not do that, raised a factual issue as to whether appellant was actually "in custody," entitling him to an instruction under article 38.23(a). An accused's right to the submission of an instruction under article 38.23(a) "is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible." Madden v. State, 242 S.W.3d 504, 509-10 (Tex.Crim.App. 2007). Before an accused is entitled to the submission of a jury instruction under article 38.23(a), he must meet three requirements: (1) The evidence heard by the jury must raise an issue of fact; (2) The evidence on that fact must be affirmatively contested; and (3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510. "The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant request an instruction on a specific historical fact or facts. The jury decides facts: the judge decides the application of the law to those facts." Id. at 511. There must be a genuine dispute about a material issue of fact before an article 38.23 instruction is warranted; if there is no disputed fact issue, the legality of the conduct is determined by the trial court alone, as a question of law. Id. at 510. In order for there to be a conflict in the evidence that raises a disputed fact issue, there must be some affirmative evidence in the record that puts the existence of that fact in question. Id. at 513. Furthermore, if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not material to the ultimate admissibility of the evidence and is not to be submitted to the jury. Id. The disputed issue must be essential to deciding the lawfulness of the challenged conduct. Id. at 511. There was no error in the jury charge from the absence of any article 38.23(a) instruction regarding custody because there was no conflict in the evidence raising a disputed fact material to the question of custody that would have mandated an article 38.23(a) instruction. Appellant's mother's statements to the paramedics and the police officer's response were not in dispute at trial. The State did not introduce any affirmative evidence at trial contradicting this testimony, and the possibility that the jury may or may not believe a witness does not create a factual dispute warranting an article 38.23(a) instruction. Madden v. State, 242 S.W.3d 504, 514 n. 26 (Tex.Crim.App.2007). Moreover, the proposed instruction did not charge the jury with resolving a specific issue of historical fact, but asked it to determine whether appellant was "in custody." A jury may not be instructed under article 38.23(a) to determine whether a person is "in custody" because such an instruction requires the jury to resolve an 670 issue of law, not of fact. See Thompson, 516 U.S. at 111-12, 113 n. 13, 116 S.Ct. at 465, 465 n. 13 (holding that "in custody" determinations presented mixed question of law and fact; also stating that "[j]udges alone make `in custody' assessments for Miranda purposes."); accord Madden, 242 S.W.3d at 510-11, 513 (involving proposed article 38.23 instruction regarding "probable cause"). We hold that there was no error in the trial court's not providing an article 38.23(a) instruction to the jury. We overrule appellant's fourth issue. Redacting of Medical Records In his fifth issue, appellant contends that the trial court erred in redacting portions of his medical records for the treatment of his hand that referenced his statements that the injuries had been sustained in a fight. At trial, appellant called Dr. Vincent Di Maio, a forensic pathologist, to testify about the wounds sustained by the complainant and those sustained by appellant. Di Maio opined that the complainant died from the wound to the heart, not the wounds to the neck. He also testified that if appellant's medical records indicated that he suffered incised wounds or the cutting off of a tip of a finger, those injuries would be consistent with defensive injuries. Appellant attempted to introduce his medical records, and the State objected to the hearsay in the document, including the comment, "cut while fighting approximately 12 hours ago." Appellant responded that the comment fell under a hearsay exception for medical diagnosis or treatment. The court admitted the document, conditioned on the court's later ruling on the issue. Di Maio then reviewed the records and testified that his opinion was that appellant's wounds were consistent with being defensive wounds. At a later time, outside of the presence of the jury, the trial court granted the State's request to redact two phrases in the medical records, "while fighting" and "following an altercation," explaining that they were not necessary for medical treatment and diagnosis. Appellant responded that he objected to the redaction on the ground that the State had waived its objection to the statements' being admitted by its cross-examination of Di Maio. The court overruled the objection. We review a trial court's decision to admit or to exclude evidence for an abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.2006). If the ruling is within the bounds of reasonable disagreement, it should not be disturbed on appeal. Id. The mere fact that a trial court may decide a matter within his discretionary authority differently from an appellate judge in a similar circumstance might does not demonstrate an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). Rather, an abuse of discretion is shown when the trial court's ruling is "arbitrary or unreasonable," made "without reference to any guiding rules or principles." Id. Texas Rule of Evidence 803(4) provides that the following statements are admissible as an exception to the hearsay exclusionary rule: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pains, or sensations, or the inception or general character or the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. TEX.R. EVID. 803(4). In order for statements to be admitted under rule 803(4), the proponent of the evidence must show that (1) the declarant 671 was aware that the statements were made for the purposes of medical diagnosis or treatment and that proper diagnosis or treatment depended on the veracity of the statement and (2) the particular statement offered is also "pertinent to treatment," that is, it was reasonable for the health care provider to rely on the particular information in treating the declarant. Taylor v. State, 268 S.W.3d 571, 589, 591 (Tex.Crim.App.2008). The trial court excluded the evidence in this case based on the second factor. Appellant argues on appeal that "knowing how an injury occurred assists in treatment." However, he has not explicated why it was important for his treatment that the medical professionals know that he was cut in a fight, and he presented no evidence or argument at trial establishing that such information was important to his treatment. See id. at 591 (holding that it was appropriate to require proponent of hearsay exception to make record reflect that statement in question was important to efficacy of treatment). While the fact that appellant was cut was clearly pertinent to his treatment, the fact that he was injured "while fighting" and "following an altercation" was not. See Fleming v. State, 819 S.W.2d 237, 247 (Tex.App.-Austin 1991, pet. ref'd) (noting that "a patient's statement that he was struck by an automobile would qualify" under the rule 803(4) hearsay exception, but "his statement that the car was driven through a red light" did not). The trial court acted within the scope of its discretion in finding that appellant did not establish that the statements "while fighting" and "following an altercation" were pertinent to his treatment and that therefore appellant failed to establish that the statements fell within the medical records hearsay exception. We hold that the trial court did not abuse its discretion in redacting these statements from the medical records admitted into evidence. We overrule appellant's fifth issue. Conclusion We affirm the judgment of the trial court. Justice SHARP, concurring. JIM SHARP, Justice, concurring. I am compelled to concur in the decision of the Court and write separately to express my concern over the conduct of the police, trial counsel, and the State in this case. Appellant was clearly in custody at the time that he first made incriminating statements, and I would expressly so hold. Telling a person repeatedly that he is "not under arrest" will neither cloak all sins nor absolve police from failing to provide a person required warnings[1] before interrogation when that person is, in fact, in custody. Behavior may speak as loudly as words, and when police behavior would cause a reasonable person to feel that he or she was not at liberty to terminate the interrogation and leave, then that person is in custody, no matter how many times an officer may declare otherwise.[2]See 672 Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996); Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995). In this case, the detective's refusal to allow appellant to use the telephone at the time that appellant requested it and the detective's statements to appellant that officers would "not allow" him to "to make a phone call right now," that officers were "going to just have you talk to us right here," and that appellant could make a phone call "after you talk to us" would have led a reasonable person to believe that his freedom of movement had been significantly restricted, Dowthitt, 931 S.W.2d at 255, and a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and to leave.[3]Thompson, 516 U.S. at 112, 116 S.Ct. at 465. At that point, appellant was in custody. The police were, therefore, required to provide him with the proper warnings and to receive from him a knowing, intelligent, and voluntary waiver of his rights before questioning him.[4] They did not. They proceeded with a custodial interrogation and did not bother to warn him or to seek a waiver of his rights until after appellant had already given incriminating statements as the result of that custodial interrogation. The police officers' failure to timely provide appellant his required warnings is compounded (indeed, fatally) by trial counsel's failure to preserve this complaint for appellate review, which precludes us from reviewing what seems to me to be the improper admission at trial of statements made as a result of custodial interrogation without proper warnings and without a proper waiver of rights. Trial counsel must be vigilant to properly assert, present, and argue all grounds at trial that are appropriate to suppress a client's statement that was taken in violation of constitutional or statutory rights. While appellant would undoubtedly have been convicted even without the admission of his statement (the often recited phrase by prosecutors to describe sure-win cases"like shooting fish in a barrel"has rarely been more appropriate), he may well not have had his own words used against him if the rights that are granted to all under our laws had been properly championed by the person who had the particular duty to do so. Lastly, the State need not have introduced this statement to secure appellant's conviction. Appellant was witnessed by at least two people in the commission of this offense. Appellant's wrecked vehicle was at the scene, complete with a clear trail from that vehicle to the decedent. And, although forensic scientists at the Houston Police Department did not trace appellant's fingerprints to the knives found on site, there was little need tofingerprints 673 should be a mere footnote in a case file when a piece of the appellant's actual finger was left behind! Thus, the use of appellant's constitutionally suspect statement against him was not only violative of his rights, but wholly unnecessary to secure justice. NOTES [*] Justice Tim Taft, who retired from the First Court of Appeals on May 31, 2009, continues to sit by assignment for the disposition of this case, which was submitted on March 24, 2009. [1] TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). [2] The blood found on the blade from one knife contained the complainant's blood and the other contained a mixture of appellant's and the complainant's blood. [3] Appellant and the complainant were neighbors, had been "best friends" since 1995, and had been involved in the rap music business together since 2005. [4] The complainant's father was an officer with the Sugar Land Police Department. [5] The State also called Brown, Watson, and Newcomb at trial, along with three other officers who were relevant to the taking of the oral statement; a forensic pathologist, who discussed the autopsy of the complainant; two friends and business associates of the complainant, who discussed the relationship between appellant and the complainant; a police officer assigned to the crime scene unit, who described the scene of the incident and sponsored evidence from the scene; a latent print examiner, who stated that she was unable to find sufficient fingerprints to make an identification; a district attorney investigator, who had taken a buccal swab from appellant and delivered it to the crime lab; and an analyst from the crime lab, who testified regarding blood found on various items at the scene that was consistent with the genetic profile of the complainant, appellant, or a mixture of both. [6] The State called two witnesses in rebuttala friend of the complainant and a neighborwho both offered opinion and reputation testimony regarding whether the complainant was a peaceful and law-abiding person. Appellant then called his mother in rebuttal to give opinion and reputation testimony regarding whether he was a peaceful and law-abiding person. [7] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Texas, peace officers give the warnings required by Texas Code of Criminal Procedure article 38.22, not Miranda warnings. See TEX.CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 2005) (setting out required warnings). [8] Appellant filed two motions to suppress, one entitled, "Motion to Suppress Statements," and one entitled, "Motion to Suppress." At the commencement of the hearing, appellant's counsel clarified that he was seeking to suppress only any statements by appellant and the only signed order regarding a suppression motion in the record is the order denying the "Motion to Suppress Statements." We therefore consider only the "Motion to Suppress Statements." [9] There was a later, similar question that the trial court also ruled was not an invocation of the right to counsel, but appellant makes no complaint on appeal regarding the second question, and we therefore do not review it. [10] Appellant has also referred us to Silva v. Estelle, 672 F.2d 457 (5th Cir.1982) and United States v. Lee, 413 F.3d 622 (7th Cir.2005). As we noted in Reed v. State, 227 S.W.3d 111, 116 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd), we are not bound by such authority. However, more significantly, the question in the case before us is far more ambiguous than those in Silva (in which the appellant told a magistrate that he wanted a lawyer and wanted to use the telephone to call a lawyer) and Lee (in which the appellant asked directly, "Can I have a lawyer?"). [11] The last sentence of appellant's first issue reads, "The statement by [appellant] should have been suppressed as a violation of his Fifth Amendment right to remain silent." Because there is no discussion, citation to authorities, or legal analysis regarding this statement, we read this to be a conclusion to appellant's arguments regarding an invocation of his right to counsel, rather than a separate argument regarding his Fifth Amendment right to remain silent. [12] TEX.CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). This section provides: No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence obtained. Id. [1] See TEX.CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 2005). [2] A person is in "custody" during an interrogation if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). In other words, given these circumstances surrounding the interrogation, would a reasonable person have felt that he or she was not at liberty to terminate the interrogation and to leave? See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995). [3] The State refers us to Lewis v. State, 737 S.W.2d 857, 862 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). However, the section to which the State directs us in Lewis is one in which the State was arguing that access to the telephone during the day was indicative of a lack of coercion. Id. It does not support an argument that the deprivation of access to a telephone is not indicative of custody. Indeed, deprivation of the use of a telephone is one indicator of police coercion. See Haynes v. Washington, 373 U.S. 503, 509-10, 83 S.Ct. 1336, 1341, 10 L.Ed.2d 513 (1963); Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim.App.1985), overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex.Crim. App. 1998). [4] See TEX.CODE CRIM. PROC. ANN. art. 38.22, § 3(2) (Vernon 2005) (prohibiting admission of oral statement of accused as result of custodial interrogation unless, prior to statement, required warnings were given and accused knowingly, intelligently, and voluntarily waived rights).	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-09-00401-CR Gordon Lee Currin, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT NO. CR22,329, HONORABLE ED MAGRE, JUDGE PRESIDING M E M O R A N D U M O P I N I O N Gordon Lee Currin was convicted of murdering Greg Storey. (1) See Tex. Penal Code Ann. § 19.02 (West 2003) (listing elements for murder). During the trial, Currin pleaded not guilty, but the jury found him guilty and imposed a life sentence. On appeal, Currin challenges the district court's decision to exclude evidence regarding violent acts allegedly committed by Greg. We will affirm the judgment of the district court. BACKGROUND Three years before his death, Greg purchased property from Currin and agreed to make monthly payments directly to Currin. Greg lived on that property with his wife, Tammy Storey. In addition to the Storeys' home, there was another building located on the property, which Greg had at one time rented out to John and Deborah Alexander. While they leased the property, the Alexanders ran a barbecue restaurant inside the building. However, shortly before Greg's murder, Greg evicted the Alexanders from the property. Currin and Greg had an amicable relationship until Currin indicated that he wanted to discontinue their financial arrangement and wanted to sell either the property or the note on the property to someone else. (2) As the relationship deteriorated, Greg and Currin each contacted law-enforcement officials regarding threats allegedly made by the other. Several officials advised both Currin and Greg to stay away from one another. Shortly after having a discussion with the police, Currin saw Greg sitting outside in front of the building that the Alexanders had used as a barbecue restaurant. At the time, Currin was riding in his truck with his friend, Rosalee Jones. As Currin drove by, he and Greg exchanged obscene gestures. After exchanging gestures with Greg, Currin then proceeded to Jones's home and dropped her off. Once Jones got out of the truck, Currin retrieved his shotgun from behind the seat, put the gun in the front of the car, and proceeded to Greg's property again. While driving by Greg's home for the second time, Currin and Greg again exchanged obscene gestures. In addition, Greg also yelled something at Currin. Around this time, Greg told his wife to go to their home and call the police. Eventually, Currin turned onto Greg's property and parked in a lot in front of the restaurant. After Currin parked his truck, Greg moved quickly towards the truck. When he saw Greg moving towards the truck, Currin pulled his gun from the front floorboard and showed the gun to Greg. Once Greg saw the gun, he yelled, "gun," and then turned and ran back towards the building. As Greg was running away, Currin shot him in the back three times. When Tammy heard the shots, she ran back to the restaurant and found her husband lying on the ground. She also saw Currin's truck leaving the parking lot. After shooting Greg, Currin drove to the sheriff's office and told an officer that he "just shot a fella," "shot the motherfucker," or "shot the son of a bitch." Shortly after his arrival at the sheriff's station, Currin was arrested and questioned regarding the shooting. During the questioning, Currin stated that he shot Greg in self-defense and that Greg must have been running to get a weapon. The police searched the area where Greg's body was found, but they found no weapons in the area. Ultimately, a trial was held, and the jury found Currin guilty of murdering Greg and imposed a life sentence. DISCUSSION In one issue on appeal, Currin asserts that the district court abused its discretion by refusing to allow Currin to present evidence regarding violent acts allegedly committed by Greg prior to the shooting. See Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998) ("Tate I") (explaining that appellate courts review decision to exclude evidence for abuse of discretion). Specifically, Currin insists that the district court erred by preventing him from introducing evidence showing that Greg had threatened the Alexanders. After the court concluded that John and Deborah could not testify regarding threats Greg allegedly made against them, Currin made an offer of proof in which the Alexanders testified outside the presence of the jury regarding the events. The Alexanders both stated that a few weeks before Greg was killed, he came to their restaurant, threatened them, and showed them a gun that he had under his shirt. Further, the Alexanders related that during the time of the eviction proceedings, Greg went to the restaurant again and told them that he would burn their house down and shoot them when they ran out of the house. On appeal, Currin insists that the district court's decision harmed him because it "denied him the opportunity to discredit the testimony by the State concerning the lack of weapons available to [Greg], as well as the opportunity to bolster [his] contention that he reasonably thought [Greg] was going for a weapon when he turned from the truck and ran towards the building." (3) In general, evidence regarding a victim's character is not admissible "for the purpose of proving action in conformity therewith." Tex. R. Evid. 404(a). Similarly, evidence of other crimes or bad acts committed by a victim is not admissible simply to show character conformity. Id. R. 404(b); see Torres v. State, 117 S.W.3d 891, 895 (Tex. Crim. App. 2003). However, these general rules have several exceptions, including admitting evidence of a "pertinent character trait of the victim." Id.; see Tate I, 981 S.W.2d at 192. For murder cases, if a defendant raises the issue of self-defense, the defendant may "introduce evidence of the deceased's violent character" in order to demonstrate "the reasonableness of the defendant's fear of danger or to demonstrate that the deceased was the first aggressor." Torres, 117 S.W.3d at 895; see Tate I, 981 S.W.2d at 193 (explaining that rules of evidence allow for admission of evidence of prior bad acts for certain purposes). Evidence pertaining to whether the deceased was the first aggressor is admissible because it relates to "the deceased's intent, motive, or state of mind." Torres, 117 S.W.3d at 895; see Tex. R. Evid. 404(b) (allowing evidence of violent acts by victim to be introduced as proof of motive, intent, plan, and other reasons). Because evidence addressing whether the victim was the first aggressor goes to the victim's state of mind, it is not necessary that the defendant know of the violent act or acts. Torres, 117 S.W.3d at 895. Before evidence of violent acts by the victim may properly be introduced, the defendant must show "some act of aggression that tends to raise the issue of self-defense, which the violent act may then help clarify." See id. When arguing that the district court erred by excluding the evidence, Currin insists that a proper predicate had been laid prior to the Alexanders being called to testify. Specifically, Currin refers to testimony from several witnesses, including himself, describing various threats Greg allegedly made and to the portion of his testimony where he stated that Greg moved aggressively towards his truck before the shooting. Even assuming that the district court erred by excluding the evidence sought, that error would not be grounds for reversal in this case. For criminal cases, there are two types of reversible errors: (1) constitutional errors, and (2) nonconstitutional errors that affect a substantial right. See Tex. R. App. P. 44.2. Incorrect evidentiary rulings only rarely rise to the level of constitutional error. Williams v. State, 191 S.W.3d 242, 257 (Tex. App.--Austin 2006, no pet.); see also Tex. R. App. P. 44.2(a) (outlining review of constitutional errors). The exclusion of defensive evidence is constitutional error only if the "evidence forms such a vital portion of the case that exclusion effectively precluded the defendant from presenting a defense." Williams, 191 S.W.3d at 257; see Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). In other words, if the defendant was not prevented from presenting the substance of his defense, the erroneous exclusion of evidence was not of a constitutional nature. Potier, 68 S.W.3d at 666. No unconstitutional deprivation occurred in this case. Although Currin was not allowed to question the Alexanders in front of the jury regarding threats Greg allegedly made against them, Currin was able to present his defense. The jury was properly instructed regarding the law of self-defense and was told to acquit Currin if they determined that Currin "reasonably believed that the use of deadly force on his part was necessary to protect himself against . . . [Greg's] use or attempted use of unlawful deadly force." See Tex. Penal Code Ann. § 9.32(a)(2)(A) (West Supp. 2009) (listing circumstances in which use of deadly force is authorized). In his testimony, Currin also insisted that he never threatened Greg. Further, Currin asserted that he placed the gun in the front seat because he was going hunting later and that he only went to Greg's property to collect money from him. Regarding the shooting, Currin claimed that Greg threatened to beat him when he drove by the property and that he only shot Greg after first hearing a gun shot. During the trial, Currin insisted that the shot was fired by a "sniper" from across the street. In addition, Currin testified that Greg aggressively advanced towards his truck before he pulled out the gun. Furthermore, Currin communicated his belief that Greg "had to be" or "might have been" going to get a gun when Greg ran back to the building. In addition to Currin, several witnesses testified that they heard more than three gunshots. For example, John testified that he was in the general area when the shooting occurred and that he heard four shots. John also explained that one of the shots sounded different than the others, but he admitted that he did not tell the police about the fourth shot when they questioned him. Deborah agreed with her husband's testimony and stated that she heard four shots but that the first one was louder than the others. Similarly, Melissa Jackson testified that she lives about a block from where the shooting occurred and that she heard the shots. However, when she described the shots, she stated that she initially heard "a small pop like it was either a small pistol or a firecracker, and then three loud booms." (4) Jackson admitted that she never told the police what she had heard. Moreover, although the Alexanders did not testify in front of a jury about threats Greg allegedly made against them, other witnesses provided general testimony regarding the alleged threats. For example, Deputy Chris White testified that he had been called to the Storeys' property on more than one occasion due to disagreements between Greg and the Alexanders and agreed that the parties had threatened each other. Similarly, Constable Herbie Vaughan testified that he had witnessed a confrontation between Greg and the Alexanders. In addition to testimony pertaining to these alleged threats, testimony was also presented describing other threatening behavior allegedly engaged in by Greg. For example, Deputy White testified that Currin and Greg had both threatened one another. Also, Currin's daughter, Diane Whiteley, testified that Currin had been preoccupied by "threats [Greg] was making against him." Officer Johnny Beathard testified that he had known Greg for years and admitted that Greg had a temper. Similarly, Sheriff David Greene stated that Greg has a reputation for being violent. Finally, Hollis Lewis, who was a former district attorney, and Delmon Cude, who was an inmate at the time of the trial, testified that Greg had a reputation for not being a peaceful person, that Greg was a bully, and that Greg was not a law-abiding citizen. Beyond this general testimony, Currin testified regarding specific threats Greg allegedly made against him prior to the day of the shooting. In his testimony, Currin recalled that Greg had threatened to beat him "into the ground," to "whoop" him, to shoot him, and to burn his house down. (5) In addition, Currin related that Greg once went to Currin's house with a "little old pistol" and that Tammy and Greg had threatened his life. Further, Currin testified that right after Greg threatened his life, he invited Greg to go hunting with him. When describing the hunting trip, Currin stated that he gave Greg a gun to use and that Greg later pointed the weapon at him and cocked the gun. In light of the preceding, we cannot conclude that Currin was prevented from presenting the substance of his self-defense claims. Accordingly, assuming that the exclusion was erroneous, the error is nonconstitutional in nature and, therefore, must be disregarded unless it affected one of Currin's substantial rights. See Tex. R. App. P. 44.2(b); see also Tate v. State, 988 S.W.2d 887, 890 (Tex. App.--Austin 1999, pet. ref'd) ("Tate II") (explaining that ruling that results in "the erroneous exclusion of defensive evidence is nonconstitutional error if the trial court's ruling merely offends the rules of evidence"). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." Tate II, 988 S.W.2d at 890. In other words, the conviction should not be overturned if the reviewing court, "after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Id. Even assuming that the jury would have believed the testimony from the Alexanders and assuming that their testimony would have supported Currin's self-defense claim, the exclusion of that evidence did not affect Currin's substantial rights. As described above, the jury was properly instructed on the law of self-defense, and Currin was able to elicit testimony from various witnesses regarding threatening behavior allegedly committed by Greg prior to the shooting. Furthermore, the evidence presented at trial demonstrated that Currin drove by Greg's property, exchanged offensive hand gestures with Greg, moved his gun from his back seat to his front seat before driving back to Greg's property, exchanged obscene gestures with Greg again, parked on Greg's property, flashed his gun, shot Greg in the back three times when Greg attempted to run away from the gun, drove to the police station, and told the police that he had shot Greg. In his testimony, Currin also stated that he would not tolerate anyone yelling at him. In addition, Currin explained that his gun would have continued to shoot additional rounds if it had not jammed. Moreover, evidence was also introduced showing that Currin had threatened to kill Greg shortly before Greg was shot. Specifically, Jones testified that on the day Greg died, she heard Currin tell John over the phone that "either you're going to get [Greg] or I'm going to get him; somebody is going to kill him." (6) In addition, Tammy testified that Currin told her that the only reason Greg was still alive was because Greg had a wife and children to take care of. During his testimony, Officer Beathard explained that a few days before the shooting, Currin asked, "what can I do, shoot [Greg]?" In addition, although Currin testified that Greg may have been going for a gun, no evidence was introduced showing that Greg was armed or attempted to use deadly force. In fact, when the police searched the area in response to Currin's assertion that he thought Greg may have been going for a weapon, the police found no weapons in the area near where the shooting occurred. Further, the three shot gun casings that were recovered from the scene and from Currin's truck had all been fired from Currin's gun. Regarding the alleged sniper, none of the witnesses that were in the area when the shooting occurred or that responded to the scene reported seeing a sniper. Moreover, Currin admitted that he did not know who the sniper was shooting at. Also, although the Alexanders and Jackson testified that they heard four shots, Tammy testified that she only heard three shots. Similarly, Jennifer Juhl, who was driving by the Storeys' property when the shooting occurred, testified that she heard three shots fired. Furthermore, when Currin drove to the sheriff's office and admitted that he shot Greg, he did not mention a sniper. (7) Instead, Currin stated that he drove to Greg's property to see what Greg had been yelling and that he blew Greg's "ass away" when Greg tried "to run in the house." During that same session with the police, he later stated that he shot Greg "flat as hell that's what I did." Currin's statement to the police was played to the jury. In addition to that recording, the State also played a recording of a conversation Currin had with Jones while he was at the police station. During that telephone exchange, Jones told Currin, "I heard you killed [Greg]," and Currin responded, "Well he knew he was going to get it." The absence of any evidence showing that Greg used or was about to use deadly force against Currin prior to Currin displaying his gun and shooting Greg persuades us that any error that the district court may have committed by excluding the evidence in question did not have a substantial and injurious effect or influence on the jury's verdict. In light of the evidence in the record, we have more than a fair assurance that the error did not influence the jury or had but a slight effect. Accordingly, we conclude that any error did not affect a substantial right and overrule Currin's issue on appeal. CONCLUSION Having overruled Currin's sole issue on appeal, we affirm the judgment of the district court. David Puryear, Justice Before Chief Justice Jones, Justices Puryear and Pemberton Affirmed Filed: August 27, 2010 Do Not Publish 1. Due to the fact that several of the people involved in this case share identical last names, we will refer to those individuals by their first names. 2. One witness testified that Currin was planning on selling the property to the Alexanders. 3. We note that no evidence was introduced showing that Currin was aware of the threats allegedly made against the Alexanders prior to the shooting. 4. Jackson testified that she has known Currin for over twelve years and has purchased eleven properties from him over the years. 5. In his testimony, Currin stated that the threats did not bother him and that he was not scared of Greg. 6. In their testimonies, John and Currin both denied that this exchange occurred. 7. In his statement, Currin did assert that he thought Greg was running from the truck to get a gun.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON ______________________________________________________________________________ RUDY E. ROGERS, Henry Chancery No. 15885 C.A. No. 02A01-9604-CH-00081 Plaintiff, Hon. Walton West, Judge v. GERALD L. YOUNG and wife, TONYA A. YOUNG, FILED July 17, 1997 Defendants. Cecil Crowson, Jr. RICHARD L. DUNLAP, III, The Dunlap Law Firm, Paris, Attorney for Appellate C ourt Clerk Plaintiff. WILLIAM T. LOONEY, Paris, Attorney for Defendants. AFFIRMED Opinion filed: ______________________________________________________________________________ TOMLIN, Sr. J. Rudy E. Rogers (by name or “plaintiff”) filed a suit to quiet title in the Chancery Court of Henry County against Gerald L. Young and wife, Tonya A. Young (by name or “defendants”), relative to a tract of land owned by him. Following a bench trial the chancellor held that plaintiff was barred from bringing an action to quiet title pursuant to the provisions of T.C.A. § 28-2-110, but nonetheless held that plaintiff was the rightful owner of the disputed property. The sole issue presented by this appeal is whether or not the chancellor erred in holding that plaintiff was barred from bringing his action to quiet title. For the reasons hereinafter stated w e affirm the chancellor. Most if not all the facts in this case are not in dispute. For a m ore complete understanding of the facts pertaining to the size, location and proximity to one another of the respective tracts, the reader’s attention is directed to Appendix A, attached and made a part of this opinion. This appendix is a portion of a TVA map utilized repeatedly by both parties in the trial court for the purpose of depicting an aspect of the case that directly affected plaintiff or defendants. Its accuracy as far as representing the location, shapes and approximate sizes of the respective parcels has not been questioned-- therefore our willingness to use it to present the facts to the reader. The names appearing on the map and the parcel identification numbers were affixed by TVA at the time of the creation of the map by the agency. As of June 18, 1968 Graceland Estates, Inc. (“Graceland”) owned the fee sim ple title to parcels numbered 1 and 4. The triangular portion of parcel 1, shaded and num bered “2", is the parcel in dispute and was and is an integral part of parcel 1. “Parcel 1" will refer to the entire tract, unless otherwise identified. The TVA plat identifies “Rachal Conyers” as the owner of Tract GIR-4090F, (parcel 1). Title to this property was conveyed to Graceland on June 5, 1968. The parcel was described in the deed as follows: A Tract or parcel of land in the 11th Civil District Henry County, State of Tennessee, as follows: Beginning on the east bank of the Creek, the northeast corner of this tract; thence west 88 poles to a stake; thence south 25 poles to a stake; thence east 70 poles to a stake in the Creek; thence northeast with the Creek about 28 poles to the beginning, containing 13 acres, more or less. Using the same legal description G raceland conveyed this property to plaintiff on D ecember 7, 1968. The deed was recorded shortly thereafter. Previously, Rachal Conyers had sold Tract GIR-4090F to C.E. Parker, in Novem ber 1943, utilizing the sam e legal description as used by Graceland in its deed to plaintiff. This property was conveyed three times prior to its conveyance to Graceland in June, 1968. Each tim e the sam e legal description was used. The tract identified as parcel 4 on Appendix A was conveyed to Graceland by deed of date June 18, 1968. From an examination of the legal description of that property the south boundary line of same constitutes the north boundary line of the disputed parcel in this litigation. A fter Graceland had m ade its conveyance of parcel 1 to plaintiff, Graceland in turn conveyed a parcel of land to Thomas L. Gregory and wife, (“Gregory”) defendants’ predecessor in title. This conveyance, represented by parcel 3 on the attached appendix, had as its beginning point the southwest corner of the tract previously conveyed by Graceland to plaintiff. The foundation for this litigation was laid by the subsequent conveyance by Gregory to the defendants in December, 1988. The legal description in this conveyance has as its beginning point the same beginning point as in the prior deed from Graceland 2 to Gregory, namely, the southwest corner of plaintiff’s property. However, instead of proceeding to describe the parcel heretofore conveyed to Gregory by Graceland, the legal description described a parcel of land north and east of this beginning point, encompassing the disputed triangle of plaintiff’s property and described parcel 4 as well. The deed from Gregory to defendants sought to convey title to a parcel of land in which the grantor, Gregory, had no interest in. As an additional development to complicate matters, in 1971 the state ordered that the counties of Tennessee were required to implement a mapping process as part of their record keeping of real estate in their respective counties. Prior to this time there were no tax plats or maps in Henry County from which one might ascertain the size and shapes of the various pieces of property. As a result of this mapping process the taxing authorities of Henry County treated parcel 2, the disputed parcel, as a separate piece of property and assessed it in the name of defendants or their predecessors in title. This occurred som etim e in 1971. Plaintiff continued to pay Henry County property taxes yearly, as he was billed on all properties assessed to him. It was stipulated that because the Henry County tax assessor had erroneously assessed the disputed parcel as aforesaid from that date until 1992, the taxes were paid on this disputed property by defendants or their predecessors in title. This situation was not discovered by plaintiff until som etime in 1992 or shortly thereafter. Finally, the record does not reflect that plaintiff ever declined or failed to pay any and all real estate taxes charged to him in Henry County during the course of these events. After plaintiff learned of the mix-up in the tax assessor’s office, he consulted counsel and this suit ultim ately followed. In his complaint plaintiff set forth his chain of title by which he claimed ownership to the subject property. In addition he contended that defendants’ claim to the subject property was invalid and of no force in effect because defendants had never been conveyed any right, title or interest in and to the property, as their grantors had no title to the property to convey. In addition to asking the court to bar all claims of the defendants to the subject property plaintiff sought to have the court adjudicate that he was the law ful owner and vested with the unencumbered fee sim ple title to the property 3 described in contention and entitled to sole possession of it. In their answer defendants claimed title by adverse possession, and in addition alleged that plaintiff’s suit was barred by the statute of limitations set out in T.C.A . § 28-2-110, specifically asserting that plaintiff had failed to pay taxes on the subject property for a period of twenty years. T.C.A. § 28-2-110 reads in pertinent part as follows: Any person having a claim to real estate or land of any kind, or to any legal or equitable interest therein, the same having been subject to assessment for state and county taxes, who and those through whom he claims have failed to have the same assessed and to pay any state and county taxes thereon for a period of more than twenty (20) years, shall be forever barred from bringing any action in law or in equity to recover the same, or to recover any rents or profits therefrom in any of the courts of this state. In addition to asking the chancellor to dismiss plaintiff’s com plaint defendants also asked the court to declare them to be the rightful and legal owners of the disputed property. At the close of all the proof the chancellor found that the record established that plaintiff had failed to pay county property taxes on the disputed property for a period of more than twenty years prior to filing this suit. As a result, the court held that plaintiff was barred from bringing this action to recover land or profits from same by virtue of this failure to pay taxes. However, inasmuch as both plaintiff and defendants in their respective pleadings called on the court to declare them to be the true and lawful owners in fee simple of the property in question, the chancellor did so, finding that by virtue of plaintiff’s deed from Graceland he was vested with fee simple title to the disputed tract and that the deed to defendants from their predecessor in title seeking to convey fee sim ple title to them was a nullity, in that plaintiff’s predecessor in title had no interest or right whatsoever in the property which they sought to convey to defendants. The chancellor further held that while Section 28-2-110 restricted the rights of a property owner who fell within its purview to assert a claim, nothing in said statute prevented plaintiff from defending his title from the claim of another. The chancellor decreed that ownership of the property in dispute was declared to be with plaintiff. 4 The only issue presented by this appeal by both plaintiff and defendants is whether or not the chancellor erred in holding that plaintiff was barred from bringing his suit by virtue of the provisions of T.C.A. § 28-2-110, plaintiff contending that the chancellor erred, defendants asserting that the chancellor w as correct. Defendants in their brief did not raise as an issue the ruling by the chancellor that plaintiff was the rightful owner of the disputed property. Defendants do in their brief in one paragraph state that “defendants in this case only filed an answ er and never brought any kind of counter action. . . .” To this court, this is a distinction without a difference. W hile defendants m ay not have labeled their relief sought as a counter-claim, they specifically asked for affirmative relief directly contrary to the relief sought by plaintiff by asking the court to declare them to be the lawful owners of the dispute property. In defending against plaintiff’s suit it would have been sufficient to have simply raised the special defense of the statute of limitations as set forth in Section 28-2-110. Defendants did seek affirmative relief, which is clearly in the nature of a counter-claim . So that there shall be no doubt, for the sake of this opinion, the court will treat the issue as raised. In our opinion the evidence does not preponderate against the finding of the chancellor in this regard. Under our scope of review, all findings of the trial court come to this court with a presumption of correctness, and, absent an error of law, unless we find that the evidence preponderates against such a finding, we must affirm . T.R.A.P. 13(d). The evidence clearly supports the finding of the chancellor in this regard. The record reflects that Graceland conveyed a parcel of land to Gregory, defendants’ predecessor in title, located in the “South Forty.” Thereafter, Gregory, using the same startin point, attempted to convey to defendants title to a tract of land located in the “North Forty” in the opposite direction from the parcel of land heretofore conveyed to him , and which by chance encom passed part of the property owned by plaintiff. Gregory had never been conveyed any interest whatsoever in the disputed tract in litigation by Graceland and thus could convey no interest to the defendants. Finally, we are of the opinion that the chancellor did not err in holding that 5 plaintiff’s suit insofar as it sought to affirmatively assert his property rights was barred by the provisions of T.C.A. § 28-2-110. W hile it reasonably appeared that plaintiff paid taxes on the disputed property for perhaps two years after acquiring title to it, since the inception of the utilization of tax maps in Henry County beginning in 1971, the disputed property had been assessed in the name of defendants, or their predecessor in title, and that for a period of more than twenty years prior to the filing of this suit, Henry County property taxes had been paid by the immediate predecessor in title or by defendants. The application of T.C.A. § 28-2-110 is to be determined based upon the intent or purpose of the legislature as expressed in the statute. The intention is to be gathered from a reading of the statute, giving the language and words used their natural, ordinary and com mon accepted meaning. Burress v. Woodward, 665 S.W.2d 707, 708 (Tenn. 1984). The language of this statute, given its usual and ordinary meaning, bars plaintiff’s suit. Accordingly, the decree of the chancellor is affirmed in all respects. As such, plaintiff is barred from bringing this action pursuant to the provisions of T.C.A. § 28-2- 110. Furthermore, having established ownership of the disputed property by virtue of a recorded deed from the rightful owner thereof, plaintiff is declared to be the true and lawful owner of all right, title and interest in and to said property in dispute. Costs in this cause on appeal are taxed one-half to plaintiff and one-half to defendants, for which execution may issue if necessary. ________________________________________ TOMLIN, Sr. J. 6 ________________________________________ CRAWFORD, P. J., W.S. (CONCURS) ________________________________________ LILLARD, J. (CONCURS) 7	{ "pile_set_name": "FreeLaw" }
707 F.2d 19 83-1 USTC P 9372, 12 Fed. R. Evid. Serv. 2027 UNITED STATES of America, Plaintiff, Appellant,v.F. Lee BAILEY, et al., Defendants, Appellees. No. 82-1400. United States Court of Appeals,First Circuit. Argued April 6, 1983.Decided May 23, 1983. Kenneth L. Greene, Tax Div., Dept. of Justice, Washington, D.C., with whom Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Daniel F. Ross, Richard W. Perkins, Attys., Tax Div., Dept. of Justice, Washington, D.C., and William F. Weld, U.S. Atty., Boston, Mass., were on brief, for plaintiff, appellant. Kenneth J. Fishman, Boston, Mass., for F. Lee Bailey. Before COFFIN and BOWNES, Circuit Judges, and TAURO,* District Judge. COFFIN, Circuit Judge. 1 The United States government (government) appeals from a judgment by the district court holding defendants liable, under 26 U.S.C. Sec. 6332, for the value of certain stock certificates upon which the government imposed a tax levy and which defendants refused to release. The issue before us is whether the district court erred in determining that, despite the fact that on September 28, 1970, stock in Transogram Company, Inc. traded for $8 per share on the American Stock Exchange, the value of 10,000 shares of the stock on that date was only $1, because of circumstances set forth below. Since the court's finding was not clearly erroneous and since the court committed no error of law, we affirm. 2 Thomas and Evelyn Shaheen retained defendants F. Lee Bailey and Colin W. Gillis to represent them in certain civil and criminal proceedings arising out of the Shaheens' unpaid federal income tax liabilities for the 1966, 1967 and 1968 taxable years. To secure payment of their legal fees, the Shaheens created a trust for the benefit of the defendants and transferred certain items of real and personal property to the defendants as trustees. Included in the property transferred were 10,000 shares of Transogram stock. The certificates were in the name of Columbia Financial Corporation (Columbia) and on the certificates was the notation "SUBJECT TO INVESTMENT LETTER". Also transferred to defendants were documents executed by three directors of Columbia ratifying the transfer of the stock to the trust. 3 On September 14, 1970, the government made jeopardy assessments against the Shaheens for the taxable years 1966, 1967 and 1968. On September 28, 1970, the government issued Notices of Levy to defendants informing them that the assessments had been made and that they were immediately to surrender to the government all property in their possession belonging to the Shaheens. Defendants did not comply. On July 16, 1971, the government filed a complaint in the United States District Court for the District of Massachusetts alleging that, pursuant to Section 6332 of the Internal Revenue Act of 1954, 26 U.S.C. Sec. 6332, defendants were jointly and severally liable for a sum equal to the value as of the date of the levy of the assets of the Shaheens in their possession. 4 A trial was held on April 29, 1980. The court determined that the government had perfected its levy and that it was entitled to all the right title and interest of the Shaheens in the assets held by defendants as trustees. The court held, further, that in lieu of the property itself, which had become worthless since the date of the levy, the government was entitled to recover from defendants the value of that property as of September 28, 1970. 5 The only property concerning which the government introduced evidence of value was the Transogram stock, which, by the time of the trial, had become worthless. Based on the government's evidence that 900 shares of Transogram stock were traded on the American Stock Exchange on September 28, 1970, and that the closing price was $8 per share, the court concluded that the stock had some value. The court recognized, however, that several other factors bore on the value of the stock. First, the sale of 900 shares of the stock on September 28, 1970, brought about a price change of 3/8 of a point, thus suggesting that the market in Transogram shares was "thin" and would not absorb the 10,000 shares. Second, the certificates bore the legend "SUBJECT TO INVESTMENT LETTER", and it appeared that defendants lacked sufficient information regarding the restriction to enable them to transfer the shares freely on the open market. Finally, it was unclear whether the Shaheens were authorized to transfer the stock to defendants in the first place, given that the shares were in the name of Columbia and that there was no evidence that the directors who authorized the transfer constituted a majority of the board of directors. Noting those factors and the opinion testimony of defendant Gillis that the stock was worthless at the time of the levy, the court assigned the value of $1 for the 10,000 shares. From that determination, the government appeals. 6 The government admits that the fair market value of shares of stock is generally considered a question of fact that may not be disturbed unless it is clearly erroneous. See Arc Realty Co. v. Commissioner, 295 F.2d 98, 103 (8th Cir.1961); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). It argues, however, that because the court placed on the government too heavy a burden of proof as to value, it did not require sufficient evidence of defendants that the stock was valueless. 7 In support of its argument that the district court should have placed a greater burden on defendants to rebut its evidence of value, the government points to several factors. First, it urges that section 6332 is a coercive statute that seeks to foster the swift tender of property upon which a levy has been made. See Flores v. United States, 551 F.2d 1169, 1174 (9th Cir.1977); United States v. Montchanin Mills, Inc., 512 F.Supp. 1192, 1195 (D.Del.1981). The purpose of the statute requires that the risk of loss due to property becoming worthless be on the defendants who refused to give up the property when the Notice of Levy was issued. That purpose would be undermined by a rule that places too heavy a burden of proof as to value on the government. Second, the government insists that evidence of the stock's actual value is more readily available to the holders of the stock than to the government. Thus, it is fair to place the burden on them to come forward with the evidence. Finally, the government points out that a number of courts have adopted a rule that absent evidence to the contrary, the value of stock is presumed to be equivalent to the value indicated by stock exchange quotations. See 10 J. Mertens, Law of Federal Income Taxation (Rev.), Sec. 59.14 and cases cited therein. 8 We acknowledge the reasonableness of a presumption that the value of stock is equal to the value indicated by the stock exchange quotations. Absent such a presumption, the government would rarely be able to establish the value of stock that a party wrongfully withheld from it. Even assuming that the government is entitled to such a presumption, however, we do not interpret the presumption as shifting to the defendants the burden of proving that the stock had no value. The presumption satisfies the government's initial burden of going forward with evidence of value. Absent rebuttal evidence, the government is entitled to prevail based on the value established by the stock exchange quotations. The burden imposed on the defendants by the presumption, however, is not to prove that the stock was valueless or that it had a particular value lower than that urged by the government, but only to come forward with enough evidence to support a finding that the stock exchange quotations are not a reliable indicator of the actual value of the stock on the day in question. As one court explained a similar presumption, in favor of the validity of the deficiency determinations of the Commissioner of Internal Revenue, the presumption is "a procedural device which requires the taxpayer to come forward with enough evidence to support a finding contrary to the Commissioner's determination." Rockwell v. Commissioner, 512 F.2d 882, 885 (9th Cir.1975). The job of assessing the sufficiency of the evidence produced by defendants to rebut the presumption remains committed to the sound discretion of the trial court and the ultimate burden of persuasion on the issue of value remains on the government. 9 Admittedly, a different rule--one that would shift to defendants the burden of persuasion on the issue of value--would further enhance the coercive effect of the statute. Such a rule, however, might also result in injustice to defendants who do not, in fact, have any greater access to proof of the actual value of the property in question than does the government.1 In the absence of specific Congressional directive, we are reluctant to abandon the general rule that in tax, as in other litigation, plaintiffs have the burden of persuasion. See Rockwell v. Commissioner, supra, 512 F.2d at 887. See also United States v. Massachusetts Mutual Life Ins. Co., 38 F.Supp. 333 (D.Mass.1941), aff'd, 127 F.2d 880 (1st Cir.1942) (under predecessor statute to section 6332, the government has the burden of proving the value of property it alleged was not surrendered).2 10 Viewing the evidence in light of these principles, we cannot say that the court's determination was clearly erroneous. In addition to the stock certificates themselves, which raised questions about the stock's transferability, the district court had before it the testimony of defendant Gillis, a professor of law and an attorney admitted to practice in the Commonwealth of Massachusetts, and the deposition testimony of defendant Bailey. Both defendants testified that they had abandoned efforts to dispose of the stock because defendant Gillis had determined it to be worthless. 11 It would be helpful to know exactly what defendant Gillis testified led him to the conclusion that the stock was worthless. We are handicapped, however, by the fact that a significant portion of the transcription of defendant Gillis' testimony has been lost. Pursuant to Fed.R.App.P. 10(c), the government has filed and the district court has approved a supplemental statement of the evidence, briefly summarizing the lost testimony. The summary recites that "The substance of Mr. Gillis' testimony concerning the value of the Transogram shares was that he and Mr. Bailey (the other defendant) had believed the entire bundle of assets in the trust to be worthless, and that they had neither ascribed any particular value to the Transogram shares, nor made any effort to determine the value of those shares as of the date of the levies." In their brief, defendants' description of the testimony is that because the stock was subject to an investment letter, defendant Gillis believed that the stock could not be traded and had no market value. 12 Whatever the specifics of the testimony, the district court relied on it in support of its conclusion that the combined factors of evidence of a "thin" market in Transogram shares, an investment restriction on the certificates and the fact that the stock was in Columbia's name rendered the stock exchange quotations insufficient evidence of value to entitle the government to prevail. Particularly in light of the gaps in the evidence before us, we are unwilling to say that the court was not entitled to credit the testimony of defendant Gillis that in his opinion the stock was worthless on the date of the levy. We are also unwilling to say that the combined factors of the restrictions noted by the district court and the testimony of defendants was insufficient evidence for the court to conclude that the stock exchange quotations were not probative evidence of actual value of the stock on the date of the levy. 13 As the district court noted, the government offered no other evidence of value. Since the probative value of the stock exchange quotations was cast into serious doubt by the other evidence before the district court, the government failed to meet its burden of establishing that the value of the stock was more than $1. The judgment of the district court, granting the government recovery against the defendants of $1, plus interest from September 28, 1970 and costs, must be and is therefore 14 Affirmed. * Of the District of Massachusetts, sitting by designation 1 In this case, the court found that defendants did not have information available to them that would have permitted them to transfer the shares freely on the open market. The court thus apparently credited the testimony of defendants that they had been unable to obtain information that would enable them to dispose of the stock 2 The defense of no value is distinguishable from the defense that the defendant did not hold any property of the taxpayer at the time of the levy. The latter is one of two specifically recognized affirmative defenses to a claim under section 6332. See United States v. Montchanin Mills, Inc., supra, 512 F.Supp. at 1194. Defendants can be presumed to have access to the necessary information to establish this defense and courts have imposed on defendants the burden of doing so. Id. at 1195	{ "pile_set_name": "FreeLaw" }
T.C. Memo. 2015-7 UNITED STATES TAX COURT EUGENE JIM KIPP AND BILLIE JO KIPP, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 18765-13L. Filed January 12, 2015. Eugene Jim Kipp and Billie Jo Kipp, pro sese. S. Mark Barnes, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION VASQUEZ, Judge: Pursuant to section 6330(d)(1),1 petitioners seek review of respondent’s determination to proceed with collection by levy of their unpaid Federal income tax for 2008, 2009, and 2011. The sole issue for decision is 1 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times. -2- [2] whether respondent abused his discretion in sustaining the proposed levy action for these years. FINDINGS OF FACT I. Background The tax liabilities at issue arose from self-reported underpayments on petitioners’ Federal income tax returns for 2008, 2009, and 2011. In 2011 petitioners submitted two separate offers-in-compromise (OICs) to the Internal Revenue Service (IRS) to settle their outstanding tax liabilities for 2008 and 2009.2 On February 9, 2011, the IRS returned the first OIC as not processable. On April 2, 2012, the IRS returned the second OIC for, among other reasons, failure to make estimated tax payments for the current tax year.3 On February 11, 2013, the IRS mailed petitioners Letter 1058A, Final Notice--Notice of Intent to Levy and Notice of Your Right to a Hearing, with respect to their outstanding income tax liabilities for 2008, 2009, and 2011. On February 26, 2013, the IRS received petitioners’ Form 12153, Request for a Collection Due Process or Equivalent Hearing. On that Form 12153 petitioners 2 Petitioners submitted both offers in 2011, so neither offer included the tax liability for 2011. 3 By April 30, 2012, petitioners were aware that the second OIC had been returned. -3- [3] indicated an interest in submitting an OIC and acknowledged that they owed the tax due. II. Collection Due Process (CDP) Hearing On June 11, 2013, Settlement Officer Aaron Hansen of the IRS Office of Appeals (Appeals) mailed petitioners a letter stating that Appeals had received their request for a CDP hearing and scheduling a telephone CDP hearing for July 9, 2013. In the letter Settlement Officer Hansen stated that he could consider collection alternatives, such as an installment agreement or an OIC, only if petitioners provided: (1) a completed Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals; (2) proof of estimated tax payments for 2013; and (3) a completed Form 656, Offer in Compromise, with the required fee, payments, and supporting documentation. Settlement Officer Hansen instructed petitioners to submit the listed items by June 25, 2013. He also informed petitioners that they could request a face-to-face hearing by June 25, 2013. Petitioners neither submitted the requested information nor requested a face-to-face hearing by June 25, 2013. In the letter Settlement Officer Hansen instructed petitioners to call him at the scheduled hearing time. Petitioners, however, did not call Settlement Officer -4- [4] Hansen at the scheduled time because they mistakenly thought that Settlement Officer Hansen was supposed to initiate the call. Approximately an hour after the scheduled time, petitioner husband realized his mistake and called Settlement Officer Hansen, but Settlement Officer Hansen did not answer. Petitioner husband left a message on Settlement Officer Hansen’s voicemail. Settlement Officer Hansen called petitioners back about 30 minutes later, but they did not answer. Settlement Officer Hansen left a message on their voicemail informing them that they had 14 days to respond. On July 9, 2013, Settlement Officer Hansen mailed petitioners a letter offering them another opportunity to submit the requested information. In the letter he informed petitioners that they had failed to submit the requested information by the original deadline and that he was extending the deadline to July 23, 2013. Settlement Officer Hansen received a fax from petitioners dated July 11, 2013, of a partially completed Form 433-A.4 On July 12, 2013, petitioner husband called Settlement Officer Hansen to inform him that he had recently faxed in the Form 433-A, but Settlement Officer Hansen did not answer. Settlement Officer Hansen called petitioners back, but petitioners did not answer, and he left a 4 The Form 433-A did not include any of petitioner husband’s income in the gross monthly income calculation. -5- [5] message with petitioners’ son. Petitioners and Settlement Officer Hansen made several more attempts to reach each other by phone but were unsuccessful each time. Settlement Officer Hansen did not receive any further correspondence from petitioners. As a result, he concluded that their prior fax and voicemail correspondence adequately constituted petitioners’ CDP hearing. Throughout the course of the CDP hearing, petitioners did not submit a written proposal for a collection alternative. As noted above, petitioners submitted two OICs relating to 2008 and 2009, but both offers were returned to them more than a year before the CDP hearing. On July 30, 2013, the IRS issued petitioners a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330.5 Petitioners, while residing in Montana, timely petitioned this Court for review of the determination. 5 Before the notice of determination was issued, Settlement Officer Hansen verified that all legal and administrative requirements for collection had been met. -6- [6] OPINION I. Statutory Framework Section 6331(a) authorizes the Secretary to levy upon property and property rights of a taxpayer liable for tax if the taxpayer fails to pay the tax within 10 days after notice and demand for payment is made. Section 6330(a) provides that no levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of the right to a hearing before the levy is made. If a taxpayer requests a hearing in response to a notice of levy pursuant to section 6330, a hearing shall be held before an impartial officer or employee of Appeals. Sec. 6330(b)(1), (3). At the hearing the taxpayer may raise any relevant issue, including appropriate spousal defenses, challenges to the appropriateness of the collection action, and collection alternatives. Sec. 6330(c)(2)(A). Following a hearing Appeals must determine whether proceeding with the proposed levy action is appropriate. In making that determination Appeals is required to take into consideration: (1) verification presented by the Secretary during the hearing process that the requirements of applicable law and administrative procedure have been met, (2) relevant issues raised by the taxpayer, and (3) whether the proposed levy action appropriately balances the need for -7- [7] efficient collection of taxes with the taxpayer’s concerns regarding the intrusiveness of the proposed collection action. Sec. 6330(c)(3). II. Standard of Review Section 6330(d)(1) grants this Court jurisdiction to review the determination made by Appeals in connection with the section 6330 hearing. Where, as here, the underlying tax liabilities are not at issue, we review the Commissioner’s determination for abuse of discretion. See Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000). An abuse of discretion occurs when the exercise of discretion is arbitrary, capricious, or without sound basis in fact or law. Giamelli v. Commissioner, 129 T.C. 107, 111 (2007) (citing Sego v. Commissioner, 114 T.C. at 610, and Woodral v. Commissioner, 112 T.C. 19, 23 (1999)). Acting without a sound basis in fact or law means that an agency such as the IRS “makes an error of law * * * or rests its determination on a clearly erroneous finding of fact * * * [or] ‘applies the correct law to facts which are not clearly erroneous but rules in an irrational manner.’” United States v. Sherburne, 249 F.3d 1121, 1125-1126 (9th Cir. 2001) (citations omitted) (quoting Friedkin v. Sternberg (In re Sternberg), 85 F.3d 1400, 1405 (9th Cir. 1996)); see also Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 402-403 (1990). In reviewing for abuse of discretion, we generally consider only the -8- [8] arguments, issues and other matters that were raised at the CDP hearing or otherwise brought to the attention of Appeals. Giamelli v. Commissioner, 129 T.C. at 115; see also sec. 301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs. III. Determination To Sustain the Proposed Levy Action Petitioners argue that Settlement Officer Hansen abused his discretion in denying a collection alternative. Respondent argues that petitioners were ineligible for a collection alternative because they failed to provide the required forms and information. It is not an abuse of discretion for Appeals to reject collection alternatives and sustain a proposed collection action when taxpayers do not submit the requested financial information. See Balsamo v. Commissioner, T.C. Memo. 2012-109, slip op. at 10; Huntress v. Commissioner, T.C. Memo. 2009-161, slip op. at 12; Cavazos v. Commissioner, T.C. Memo. 2008-257, slip op. at 11. Additionally, it is not an abuse of discretion for Appeals to decline to consider a collection alternative where no written proposal is placed before the reviewing officer. Kendricks v. Commissioner, 124 T.C. 69, 79 (2005). Furthermore, we do not require the IRS to reopen an OIC that it returned to a taxpayer years before a CDP hearing commenced. See Reed v. Commissioner, 141 T.C. 248, 254-256 (2013), supplemented by T.C. Memo. 2014-41. Finally, it is not an abuse of -9- [9] discretion for Appeals to consider a taxpayer ineligible for an OIC on the ground that the taxpayer is not in compliance with current tax obligations. See Giamelli v. Commissioner, 129 T.C. at 111-112; Internal Revenue Manual pt. 5.8.7.2.2.2 (May 10, 2011). On Form 12153 petitioners indicated an interest in submitting an OIC. At the hearing, however, petitioners did not submit a Form 656 for an OIC. Although petitioners had submitted two OICs to the IRS, they were both disposed of more than a year before the commencement of the CDP hearing. Thus, petitioners had no outstanding requests for any collection alternative for Settlement Officer Hansen to consider. Petitioners assert that they did not submit a Form 656 to Settlement Officer Hansen because they had been waiting for the IRS to respond to their previously submitted OIC. The record shows, however, that by April 30, 2012, petitioners were aware that the IRS had returned their previously submitted OIC. Furthermore, petitioners submitted an incomplete Form 433-A and did not provide proof of estimated tax payments for 2013. Given that petitioners did not submit (1) Form 656, (2) adequate financial information, and (3) proof of estimated tax payments for 2013, we cannot find that Settlement Officer Hansen abused his discretion in denying a collection alternative. - 10 - [10] Petitioners also argue that Settlement Officer Hansen abused his discretion in concluding that the correspondence between him and petitioners constituted a proper CDP hearing. We disagree. A CDP hearing is an informal proceeding, not a formal adjudication. Katz v. Commissioner, 115 T.C. 329, 337 (2000); Davis v. Commissioner, 115 T.C. 35, 41 (2000); sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs. Although a CDP hearing may occur face-to-face, a proper hearing may also occur by telephone or by correspondence. Katz v. Commissioner, 115 T.C. at 337-338; Barry v. Commissioner, T.C. Memo. 2011- 127, slip op. at 11-12. Once a taxpayer has been given a reasonable opportunity for a hearing but does not avail himself of that opportunity, the Appeals officer may make a determination based on the administrative file. Calafati v. Commissioner, 127 T.C. 219, 223 (2006). Petitioners did not request a face-to-face hearing. Settlement Officer Hansen scheduled a telephone CDP hearing for petitioners and, when they did not call in, gave them a final opportunity to submit the requested information by extending the deadline. Settlement Officer Hansen gave petitioners multiple opportunities to contest the proposed levy, but petitioners did not take advantage of these opportunities. Thus, we find that the correspondence hearing in this case constituted a proper CDP hearing. - 11 - [11] Finally, petitioner husband argues in his posttrial brief that his posttraumatic stress disorder (PTSD) prevents him from functioning and causes unwarranted consequences. However, petitioner husband presented no facts of his PTSD at trial, and there is nothing in the administrative record that indicates that he mentioned his condition at any time during the Appeals process. Even if we were to accept that petitioner husband suffers from PTSD, we do not have authority to consider section 6330(c)(2) issues that were not raised before Appeals. See Giamelli v. Commissioner, 129 T.C. at 115; Magana v. Commissioner, 118 T.C. 488, 493 (2002). The record reflects that Settlement Officer Hansen determined that the requirements of applicable law and administrative procedure were met and concluded that sustaining the proposed levy action appropriately balanced the need for efficient collection of taxes with petitioners’ interest in a collection alternative. Accordingly, we hold that respondent did not abuse his discretion in sustaining the proposed levy action. - 12 - [*12] In reaching our holding, we have considered all arguments made, and to the extent not mentioned, we consider them irrelevant, moot, or without merit. To reflect the foregoing, Decision will be entered for respondent.	{ "pile_set_name": "FreeLaw" }
NUMBER 13-11-00604-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ YOLANDA HIGUERA LINAN, ET AL., APPELLANTS, v. NELCOR PURITAN BENNETT INC., ET AL., APPELLEES. ____________________________________________________________ On Appeal from the 275th District Court of Hidalgo County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Benavides Memorandum Opinion Per Curiam Appellants, Yolanda Higuera Linan, et. al, perfected an appeal from a judgment entered by the 275th District Court of Hidalgo County, Texas, in cause number C-015-07-E. Appellants have filed a motion to withdraw the notice of appeal and requests that this Court disregard the notice of appeal. The Court, having considered the documents on file and appellants’ motion to withdraw the appeal, is of the opinion that the motion should be granted. See TEX. R. APP. P. 42.1(a). Appellants’ motion to withdraw is granted, and the appeal is hereby DISMISSED. Costs will be taxed against appellants. See TEX. R. APP. P. 42.1(d) ("Absent agreement of the parties, the court will tax costs against the appellant."). Having dismissed the appeal at appellants’ request, no motion for rehearing will be entertained, and our mandate will issue forthwith. PER CURIAM Delivered and filed the 20th day of October, 2011. 2	{ "pile_set_name": "FreeLaw" }
419 B.R. 474 (2009) In re Fernisa PARKER, Debtor. Fernisa Parker, Appellee, v. Pioneer Credit Company of Alabama, Inc., d/b/a First Southeast Acceptance Corporation, Appellant. Civil Action No. 1:07cv737-MHT. United States District Court, M.D. Alabama, Southern Division. September 29, 2009. 475 David Gerald Poston, Gary Wyatt Stout, Michael Derek Brock, Walter Allen Blakeney, Brock & Stout, LLC, Brock & Stout, Enterprise, AL, for Plaintiff. Thadius William Morgan, Jr., Thadius W. "Bill" Morgan, Jr., Enterprise, AL, for Defendant. OPINION AND ORDER MYRON H. THOMPSON, District Judge. Appellee Fernisa Parker seeks an award of additional attorneys' fees and costs associated with defending, on appeal, a bankruptcy-court judgment for damages arising out of the willful violation of an automatic stay by appellant Pioneer Credit Company of Alabama, Inc., doing business as First Southeast Acceptance Corporation. Parker also seeks an award of the costs and attorneys' fees associated with protecting her interest in the judgment during the pendency of the appeal. First Southeast denies that Parker is entitled to such fees and further asserts that the fees she seeks are not reasonable. I. Background This court laid out the factual and procedural history of this case in its prior opinion upholding the bankruptcy's judgment: In re Parker, 2008 WL 4183436, 1 (M.D.Ala.2008) (Thompson, J.). In short, as a result of a Chapter 13 petition, an automatic stay precluded creditors from commencing judicial actions and enforcing property judgments against Parker. Parker contended that First Southeast willfully violated the stay. After a trial, the bankruptcy court held that First Southeast had willfully violated the stay, and awarded Parker $ 500 in actual damages and $ 12,791.45 in attorneys' fees and expenses pursuant to 11 U.S.C. § 362(k)(1). First Southeast appealed to this court, seeking a reduction in the award of attorneys' fees and contending only that the rate Parker's counsel sought was excessive. This court affirmed the judgment of the bankruptcy court. Parker then filed the petition that is now before the court, seeking a supplemental award of $ 11,227.50 in attorneys' fees for the appeal and for protecting her interest in the judgment during the pendency of the appeal. Parker contends that, because First Southeast did not post a bond or offer to satisfy the judgment while the appeal was pending, she was forced to execute on First Southeast's property in order to protect her interest by requesting condemnation of garnished funds. First Southeast counters that Parker is not entitled to attorneys' fees associated with the cost of defending the prior award of fees included in the judgment and that her fee request is excessive. 476 II. Discussion A. Whether the law entitles Parker to the attorneys' fees she seeks 11 U.S.C. § 362 provides that "an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees." 11 U.S.C. § 362(k)(1).[1] Under 362(k)(1), an award of attorneys' fees is mandatory when a party willfully violates an automatic stay. Jove Engineering, Inc. v. I.R.S., 92 F.3d 1539, 1559 (11th Cir.1996). Parker argues that this language, which plainly covers attorneys' fees when a debtor suffers injury due to willful violation of a stay, also extends to appellate attorneys' fees incurred in defending such an award. First Southeast responds that Parker's claim for appellate fees must fail because no statute or rule expressly provides for the award of such in this situation. First Southeast's argument is without merit. It is well-established that "appellate attorney's fees and costs flow from the creditor's violation of the automatic stay." In Re Shade, 261 B.R. 213, 217 (Bankr.C.D.Illinois 2001) (Lessen, J.) (citing In re Florio, 229 B.R. 606 (S.D.N.Y. 1999)). As with attorneys' fees for prosecuting the willful violation of a stay, attorneys' fees incurred resisting a non-frivolous appeal are `actual damages' incurred by the debtor. Eskanos & Adler, P.C. v. Roman (In re Roman), 283 B.R. 1, 10 (9th Cir. BAP 2002) ("Section 362(h) ... allows attorneys' fees to be `actual damages,' rather than a separate litigation expense."). Thus, as part of her entitlement to damages flowing from the violation of a stay, a debtor is entitled to collect attorneys' fees incurred in resisting a non-frivolous appeal. Id. at 15; see also In re Walsh, 219 B.R. 873, 878 (9th Cir.Cal. BAP 1998). Indeed, such damages are mandatory. Roman, 283 B.R. at 15. This conclusion is consistent with caselaw concerning other, parallel federal fee-shifting statutes in the civil-rights context. For example, an entitlement to attorneys' fees under 42 U.S.C. § 1988 includes an entitlement to fees on fees. Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 798-99 (11th Cir.2003); accord Volk v. Gonzalez, 262 F.3d 528, 536 (5th Cir.2001); Hernandez v. Kalinowski, 146 F.3d 196, 200-01 (3d Cir.1998).[2] Courts considering analogous fee requests under § 1988 have reasoned that "[t]he effect of completely denying compensation to [an attorney] for the time she spent on the fee issue is to diminish the proper net award of attorney's fees for the successful civil rights 477 claim: an outcome that frustrates the intent of Congress." Thompson v. Pharm. Corp. of Am., Inc., 334 F.3d 1242, 1245 (11th Cir.2003). In § 362, Congress evinced the intent to award fees to debtors injured by a creditor's willful violation of a stay. A bankruptcy attorney, no less than a civil-rights attorney, should not suffer a decrease in effective fees simply because an appeal is taken. See Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 879 (11th Cir.1990) ("attorneys' fees in bankruptcy cases should be no less, and no more, than fees received for comparable non-bankruptcy work."). The same reasoning supports Parker's claim to the costs of collecting the judgment in the lower court. See Johnson v. Mississippi, 606 F.2d 635, 639 (5th Cir. 1979) (failure to allow attorney's fee for cost incurred in protecting judgment would decrease the attorney's effective rate, contrary to statutory purpose); Vukadinovich v. McCarthy, 59 F.3d 58, 60-61 (7th Cir.1995). First Southeast contends that Parker's counsel should not recover any money for the costs of collecting the judgment because allowing Parker to recover the cost of enforcing the judgment results in double payment since First Southeast has now satisfied the judgment in full. It is illogical to suggest that, because Parker's efforts to collect on the judgment were successful, it is double-paying to compensate her for the additional work required to collect it. Although courts must be careful to avoid compensating lawyers "for turning the litigation about attorneys' fees into a second major litigation," Thompson, 334 F.3d at 1245 (quotation marks and citation omitted), the court is satisfied that this is not such a case.[3] Rather, Parker's attorney seeks fair compensation for the additional time required to obtain satisfaction of the judgment. B. Whether Parker's fee request is reasonable First Southeast protests that the attorneys' fees Parker seeks for the appeal and collection of judgment are unreasonable. As the court explained in its prior decision in this case, § 362(k)(1) attorneys' fee requests must be reasonable and are calculated using the lodestar approach: "[T]he Eleventh Circuit Court of Appeals has instructed that, `Attorneys fees in bankruptcy cases should be no less, and no more, than fees received for comparable non-bankruptcy work.' Grant v. George Schumann Tire & Battery Co., 908 F.2d 874, 879 (11th Cir. 1990) (emphasis omitted). Thus, the court should use the lodestar approach. Id. at 878-79. The lodestar `is the number of hours (tempered by billing judgment) spent in the legal work on the case, multiplied by a reasonable market rate in the local area.' Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir.2000). In determining the allowable hours and rates that make up the lodestar, `a judge must 1) determine the nature and extent of the services rendered; 2) determine the value of those services; and 3) consider the factors laid out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) and explain how they affect the award.' Grant, 908 F.2d at 877-78 (footnotes omitted)." 478 In re Parker, 2008 WL 4183436, 2 (M.D.Ala.2008) (Thompson, J.) (footnote omitted). The Johnson factors are: (1) the time and labor required, (2) the novelty and difficulty of the legal questions, (3) the skill required to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorney, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. First Southeast argues that the attorneys' fees Parker seeks are excessive because Parker's counsel did not exercise sufficient billing judgment. First Southeast contends that "the 2.1 hours . . . for lead counsel David Poston's conferring with his associates on July 6, 9, and 19, 2007 should not be compensable." Def. Mem. Br. at 3. This argument is without merit. The 2.1 hours that First Southeast claims Parker's counsel billed for "conferring" with associates clearly incorporates many other tasks, such as reviewing filings and conducting legal research, that First Southeast does not dispute are appropriate. Moreover, First Southeast articulates no logical basis for excluding consultation with co-counsel from legal fees. Thus, these hours are compensable. In addition, First Southeast contends that Parker's counsel improperly seeks compensation for 1.5 hours of "secretarial work." This contention is equally without merit. As a preliminary matter, First Southeast does not indicate where it gets this number; the court must assume that First Southeast refers to the hours billed for paralegal work, which was 1.2, not 1.5, hours. However, Parker's counsel excised 1.1 paralegal hours for truly secretarial work, such as transcription, from the fee request. The remaining 1.2 hours is for work nearly identical in nature to work that merited fees from the bankruptcy court. Thus, Parker's counsel will receive these fees. First Southeast also asserts that Parker's counsel's hours for researching, drafting, and editing the appellee brief was excessive. The total hours billed for the brief is 30.05 (26.95 hours for Poston, and 3.1 hours for Blakeney).[4] The court agrees that these hours are excessive, given that the appeal centered on a narrow, straightforward dispute of Parker's counsel's rate. The Johnson factors here counsel in favor of a reduction: the legal questions were uncomplicated; the substance of the brief filled fewer than 10 pages; and the dispute, on appeal, concerned less than $ 3,000. In light of the limited scope of the appeal, Parker's counsel's hours are excessive. Accordingly, the court will reduce Poston's hours by 13.5 hours. Finally, First Southeast contends that the court should deny all of Parker's supplemental fee request because Parker's counsel has not submitted new affidavits since the filing of the original fee petition. Although, technically, Parker's counsel should have filed new affidavits with the fee petition, the court disagrees that the record is insufficient to support Parker's rate. The sole dispute on appeal was the reasonableness of Parker's counsel's rates. The record is clear: the rate for the senior attorneys, David Poston and Michael 479 Brock, is $ 250; for associates it is $ 125; and for paralegals it is $ 75. After reducing Poston's fee by 13.5 hours, the fee is as follows: -------------------------------------------------- David Poston 28.1 hours × $ 250 $ 7,025.00 -------------------------------------------------- Michael Brock 0.5 hours × $ 250 125.00 -------------------------------------------------- Walter Blakeney 4.9 hours × $ 125 612.50 -------------------------------------------------- Paralegal 1.2 hours × $ 75 90.00 __________________________________________________ TOTAL $ 7,852.50 -------------------------------------------------- * * For the above reasons, it is ORDERED that appellee Fernisa Parker's motion for award of additional attorneys' fees (doc. no. 12) is granted and appellee Parker shall have and recover from appellant Pioneer Credit Company of Alabama, Inc., doing business as First Southeast Acceptance Corporation the additional sum of $ 7,852.50 as attorneys fees and costs. NOTES [1] In 2005, the Bankruptcy Code was amended to move from 11 U.S.C. § 362(h) to 11 U.S.C. § 362(k)(1) the language governing the award of attorneys' fees for willful violations of bankruptcy stays. The relevant language in both pre-amendment § 362(h) and post-amendment § 362(k)(1) is that an "individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees. . . ." Because, with the move, the relevant language did not change, case law addressing pre-amendment § 362(h) is instructive in interpreting § 362(k)(1). [2] The fee-shifting language is quite similar between the two statutes, compare 42 U.S.C. § 1988 ("In any action or proceeding to enforce a provision of [enumerated] sections . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs") with 11 U.S.C. § 362(k)(1) ("[A]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees."), and is therefore generally governed by the same legal principles. Cf. Simpleville Music v. Mizell, 511 F.Supp.2d 1158, 1161 n. 1 (M.D.Ala.2007) (Thompson, J.) (Reasoning that caselaw governing fee-shifting under 42 U.S.C. § 1988 applied to 17 U.S.C. § 505 because of similarity of fee-shifting language). [3] Parker's counsel makes a passing reference suggesting that her attorneys seek fees for the hours spent on this supplemental fee petition. The court notes that it is awarding Parker's counsel the hours spent preparing the fee petition, which are included in the fee Parker's counsel seeks, but no more. To do otherwise does, in fact, risk turning the litigation over attorneys' fees into a second major litigation. [4] First Southeast contends that the hours billed for the brief is 27.5.	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: THE THIRTY-FIVE STATEWIDE : No. 175 MM 2014 INVESTIGATING GRAND JURY : : : PETITION OF: ATTORNEY GENERAL : KATHLEEN G. KANE : ORDER PER CURIAM AND NOW, this 18th day of August, 2015, this Court’s order of December 19, 2014, is hereby UNSEALED. UNSEALED PER ORDER OF THE COURT DATED AUGUST 18, 2015 IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: THE THIRTY-FIVE STATEWIDE : No. 175 MM 2014 INVESTIGATING GRAND JURY : : : PETITION OF: ATTORNEY GENERAL : KATHLEEN G. KANE : ORDER PER CURIAM AND NOW, this 19th day of December, 2014, the Application to File under Seal is GRANTED, and the Application for Extraordinary Relief is DENIED. This Court notes that, per the opinion of the Supervising Judge William R. Carpenter, the purpose of the protective order, entered per the authority of 18 Pa.C.S. § 4954, “was/is to prevent the intimidation, obstruction and/or retaliation, in the ordinary sense of those words . . . . [and] was never intended to prevent the [Office of Attorney General] from carrying out its constitutional duties.” Opinion, dated 12/12/2014, at 10- 11 (filed at 171 MM 2014). Additionally, as explained by Judge Carpenter, the protective order “is not intended to restrict or impact ‘appropriate public [disclosure]’ of information connected with the possession and/or distribution of possibly pornographic images by members of the [Office of Attorney General].” Id. at 11. Mr. Justice Stevens notes his Dissent and would grant relief to the OAG in the Application except for that portion that relates to witness intimidation and would direct that this Order be filed in the normal course of Court business and publically available.	{ "pile_set_name": "FreeLaw" }
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 16-1145 _____________ UNITED STATES OF AMERICA v. RALPH MILLER, Appellant On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-11-cr-00493-001) District Judge: Honorable Cynthia M. Rufe Submitted under Third Circuit L.A.R. 34.1(a) on February 10, 2017 Before: MCKEE, RENDELL, and FUENTES, Circuit Judges (Opinion filed: June 6, 2017) O P I N I O N* * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RENDELL, Circuit Judge In 2015, Ralph Miller was convicted of money laundering and mail fraud, and aiding and abetting both offenses, as a result of insurance claims he filed for damages to his theatre businesses. In 2016, he was sentenced for that conviction. Miller raises two issues on appeal: one related to the sufficiency of the evidence supporting his conviction, and another related to a violation of his allocution rights at sentencing. We will uphold Miller’s conviction, but vacate for re-sentencing in light of United States v. Moreno, 809 F.3d 766 (3d Cir. 2016). I. Sufficiency of the Evidence Miller claims there was not sufficient evidence to convict him of (1) money laundering, related to a 2006 flood insurance claim, and (2) mail fraud, related to a 2009 fire and theft insurance claim.1 Miller did not move for a judgment of acquittal based on the sufficiency of the evidence at the District Court.2 Thus, we review his claim for plain error. United States v. Wolfe, 245 F.3d 257, 260–61 (3d Cir. 2001). Even when a defendant makes a motion for judgment of acquittal based on the sufficiency of the evidence in the District Court, our standard of review is demanding: we ask if any rational trier of fact could have found guilt beyond a reasonable doubt based on 1 The district court had subject matter jurisdiction under 18 § U.S.C. 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. 2 Miller argues on appeal that he preserved his sufficiency of the evidence challenge by a Fed. R. Crim. Pro. 29 motion for judgment of acquittal at trial. But, as Miller himself concedes, his motion did not object to sufficiency of the evidence related to intent to defraud, which is at issue in this appeal. Instead, he raised this motion on a different ground: that “the government did not prove that [Miller] benefited from the fraud.” Appellant’s Brief at 3; J.A. 1409–13. 2 the evidence, viewed in the light most favorable to the government. See United States v. Lore, 430 F.3d 190, 203–04 (3d Cir. 2005). But when, as here, the defendant has not made such a motion below, our standard for reviewing the verdict is even more deferential: we will reverse only if the verdict “constitutes a fundamental miscarriage of justice.” United States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002) (quoting United States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999)). Under either standard of review, there was more than sufficient evidence to convict Miller. Miller first argues that the government failed to establish the elements of necessary for conviction of wire fraud,3 which was an element of the money laundering charge against him.4 In short, he claims that there was insufficient evidence to prove that he intended to defraud anybody. Although Miller admits that there were errors in insurance submissions related to a 2006 flood, he asserts that these errors were simply mistakes resulting from the hasty preparation of his claim. 3 For the jury to find that Miller committed wire fraud, the government was required to prove beyond a reasonable doubt that Miller (1) knowingly and willfully devised a scheme to defraud or obtain money or property by materially false or fraudulent pretenses, representations, or promises, or attempted to do so; (2) acted with intent to defraud; and (3) that in advancing, furthering, or carrying out the scheme, Miller transmitted, or caused the transmission of, any writing, signal, or sound by means of a wire, radio, or television communication in interstate or foreign commerce. See 18 U.S.C. § 1343; United States v. Hedaithy, 392 F.3d 580, 590 (3d Cir. 2004). 4 Under the relevant money laundering statute, 18 U.S.C. § 1957, the government had to prove (1) Miller engaged or attempted to engage in a monetary transaction in or affecting interstate commerce; (2) the monetary transaction involved criminally derived property of a value greater than $10,000; (3) the property was derived from specified unlawful activity; (4) Miller acted knowingly; and (5) the transaction took place in the United States. See United States v. Sokolow, 91 F.3d 396, 407–08 (3d Cir. 1996). The “unlawful activity” at issue was Miller’s alleged wire fraud. J.A. 1460–63. 3 But the jury was free to find intent to defraud based on the evidence before it: conflicting statements Miller had given regarding damage to stage lights, and the sheer number of items included in the claim that were not in fact damaged. While Miller suggests that he was an innocent, although negligent, bystander in the claims process, Miller’s handwritten notations on loss summary reports provided a basis for finding otherwise. App. 733, 1971–86. Faced with this evidence, a rational jury could easily have found that the Government proved the elements of wire fraud, and, in turn, money laundering. See United States v. Caraballo-Rodriguez, 726 F.3d 418, 424, 430 (3d Cir. 2013). It follows, then, that his conviction is far from a “fundamental miscarriage of justice,” Gordon, 290 F.3d at 547, such that we would disturb the verdict. With respect to the fire insurance claim, Miller presents a variation on the same argument: he claims that he, or his agents, simply made mistakes, and thus he could not be convicted of mail fraud,5 as he lacked intent to defraud. But so, too, here, significant evidence supported the jury’s conclusion that Miller was in fact guilty: multiple claims for items that had never been damaged, and claims for items that in fact had never been installed. Although Miller argues that he was simply cooperating with those handling his claim, the jury heard testimony suggesting that Miller personally reviewed and made 5 To find that Miller committed mail fraud, the Government had to prove that (1) Miller knowingly devised a scheme to defraud or to obtain money or property by materially false or fraudulent pretenses, representations, or promises or attempted to do so; (2) acted with intent to defraud; and (3) in advancing, furthering, or carrying out the scheme, used mails or caused mails to be used. See 18 U.S.C. § 1341; Hedaithy, 392 F.3d at 590. 4 changes to insurance submissions. App. 1167–78, 2346. In sum: the jury had more than enough evidence to convict Miller, and we will not substitute our judgment for theirs. II. Allocution Miller claims the District Court violated his rights of allocution at sentencing. As he did not raise this challenge below, we review for plain error. Moreno, 809 F.3d at 773.6 In Moreno, we announced that the prosecution should not be allowed to cross- examine a defendant during allocution, and that doing so violated a defendant’s allocution rights. Id. at 779. Six days after we decided Moreno, the District Court judge invited the prosecution to examine Miller during his allocution. Although the prosecution asked only three brief questions on a matter of subsidiary importance, we must vacate for re-sentencing. In Moreno we stated that “a defendant is automatically entitled to resentencing if the trial court violates the defendant’s right of allocution.” Id. at 780 (quoting United States v. Adams, 252 F.3d 276, 281 (3d Cir. 2001)). Because the trial court violated Miller’s rights of allocution, we vacate for resentencing.7 6 We will find plain error where there is (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States v. Tai, 750 F.3d 309, 313–14 (3d Cir. 2014). 7 Miller also challenges the District Court judge’s questioning of Miller at sentencing. But neither Moreno nor any of our other cases has held that questioning similar to the District Court judge’s violates allocution rights. Indeed, the questioning in this case occurred after Miller concluded his allocution statement. Thus, we vacate on the grounds of the prosecution’s cross-examination alone. 5	{ "pile_set_name": "FreeLaw" }
124 N.W.2d 830 (1963) AMERICAN LIFE AND CASUALTY INSURANCE COMPANY, a Corporation, Plaintiff and Appellant, v. OTIS HANN COMPANY, Inc., a Corporation, Defendant and Respondent. No. 8106. Supreme Court of North Dakota. November 19, 1963. 831 Cupler, Tenneson, Serkland & Lundberg, Fargo, for plaintiff and appellant. Lanier, Knox & Shermoen, Fargo, for defendant and respondent. STRUTZ, Judge. This is an action for rescission of a contract entered into in 1947 by and between American Christian Mutual Life Insurance Company, the predecessor of the plaintiff, and the defendant, Otis Hann Company, Inc., under which agreement the defendant was to perform certain services for the American Christian Mutual Life Insurance Company, in return for which services the defendant was to be paid certain sums of money. Such services were to be rendered by the defendant in attempting to convert American Christian Mutual Life Insurance Company from a benevolent society into a legal reserve life company, a stock company. The record discloses that some modifications were made in the terms of this agreement, which modifications were mutually agreed upon. Thereafter, in September of 1949, the plaintiff's predecessor, American Christian Mutual Life Insurance Company, brought an action against the defendant for rescission of the contract on the ground of false and fraudulent representation in its execution. On May 29, 1950, this action was settled and a stipulation providing for such settlement was made and executed by the parties. In such stipulation, the parties agreed that the 1947 contract was in all things ratified and confirmed, with certain changes in the agreement specifically mentioned and set out in the stipulation. The stipulation further provided that the 1947 contract, with the changes which then were agreed upon, was renewed as of the date of the stipulation and was to become effective as of the date of the stipulation. Pursuant to such stipulation, the action of September 1949 was dismissed with prejudice on July 7, 1950. Following the execution of the settlement agreement and the dismissal of the action, the defendant entered into the performance of the contract as amended. In October of 1950, the defendant was advised by the president of the plaintiff's predecessor that the defendant was to discontinue any further work under the provisions of the contract. Following such written notice to render no further services under the agreement, no further work was performed by the defendant for the plaintiff. Thereafter, on December 31, 1951, the plaintiff acquired all of the assets of the American Christian Mutual Life Insurance 832 Company, its predecessor, and assumed all of its liabilities. Although the defendant was performing no services for the plaintiff because of the written notice of October 1950 to discontinue doing any work under the contract, the plaintiff's predecessor andafter December 31, 1951, the plaintiffcontinued to make regular payments to the defendant under the terms of the agreement. These payments continued until April 1954. On June 28, 1954, the plaintiff commenced this action for rescission of the 1947 contract as amended by the stipulation of 1950. In its complaint, the plaintiff charges that the defendant is not qualified to perform the services it had contracted to perform, that it has failed to discharge the obligations of its contract, and that it still fails and refuses to perform or to render any services to the plaintiff. The defendant, in its answer, denies that it is not qualified to perform the services which it contracted to perform, and alleges that it has, in all things, performed its obligations under both the 1947 agreement and the stipulation of 1950, and that the contract still is in full force and effect. The defendant then counterclaims for the payments due under the contract between the parties. The court dismissed the plaintiff's complaint on the ground that the plaintiff had failed to rescind promptly, as required by law. The court further held that the defendant is entitled to an interlocutory judgment, and ordered the plaintiff to render an accounting to the defendant for the amount due the defendant under the contract and the stipulation of May 29, 1950. From the judgment entered in favor of the defendant, the plaintiff has taken this appeal. As basis for its appeal, the plaintiff alleges that the court committed the following errors: 1. That the court erred in finding that the defendant did not breach the contract between the parties, following the stipulation of settlement of May 1950; 2. That the court erred in finding that the plaintiff failed to comply with statutory provisions requiring a party to rescind promptly upon discovery of facts which would warrant rescission of an agreement; 3. That the court erred in finding that the plaintiff failed to show duress, menace, undue influence, and disability sufficient in law to excuse the plaintiff for delay in attempting to rescind; and 4. That the court erred in holding that the defendant was entitled to judgment dismissing the plaintiff's complaint and to an interlocutory judgment on its counterclaim for an accounting under the contract and the stipulation of May 29, 1950. The laws of the State of North Dakota provide that a party to a contract may rescind under certain conditions and for certain reasons. Sec. 9-09-02, N.D.C.C. Rules governing rescission also are provided, one of them being that the party seeking to rescind must act promptly upon discovering facts which entitle him to cancellation of the contract. Sec. 9-09-04, N.D.C.C.; Raymond v. Edelbrock, 15 N.D. 231, 107 N.W. 194. What would be a prompt rescission in one case might not necessarily be so under the facts of another case. Annis v. Burnham, 15 N.D. 577, 108 N.W. 549. Whether relief by way of cancellation should be granted is a matter to be determined by the facts of each individual case. The requirement of prompt rescission is subject to the qualification that such rule does not operate where legal excuse or justification for delay is shown. Annis v. Burnham, supra; Fedorenko v. Rudman (N.D.), 71 N.W.2d 332; Lanz v. Naddy (N.D.), 82 N.W.2d 809. Thus it can be seen that no rigid rule governing the right to rescind can be 833 laid down, but each case must be governed by its own facts. Where grounds for rescission exist, the motive for rescission or the injury to the party rescinding is immaterial to the exercise of that right. Fawkes v. Knapp, 138 Minn. 384, 165 N.W. 236; E. E. Atkinson & Co. v. Neisner Bros., Inc., 193 Minn. 175, 258 N.W. 151, 259 N.W. 185. The fact that no actual damage has been sustained by the party seeking to rescind, because of the failure of the other party to perform its obligations under the contract, also will not preclude rescission for breach. Associated Lathing & Plastering Co. v. Louis C. Dunn, Inc., 135 Cal. App.2d 40, 286 P.2d 825. In the case now before the court, the plaintiff's predecessor, in 1949, discovered grounds which it claimed were sufficient for rescission of the 1947 contract. In September of that year, it commenced an action to rescind the contract with the defendant. Thereafter, in May of 1950, this action was compromised and settled and the contract was ratified and confirmed, with certain changes. The defendant thereupon entered into performance of the new agreement and continued to perform until October of 1950 when it was requested by the plaintiff's predecessor to discontinue any further work under the contract. The reason given for such request was that the plaintiff's predecessor could not handle any great volume of additional business. At no time after October 1950 did the plaintiff's predecessor or the plaintiff request the defendant to perform any further services under this contract. On December 31, 1951, more than one year after the defendant had been ordered not to perform any further services the plaintiff succeeded to the interests of the American Christian Mutual Life Insurance Company in the contract. After it had acquired such interests, the plaintiff continued to pay the defendant under the contract, as had the plaintiff's predecessor. Such payments continued until April of 1954, or for more than two years after the plaintiff had acquired such interests and for almost four years after defendant had been notified not to render any further services under the contract. We have carefully examined the record, and do not find that the evidence would warrant rescission for breach of contract following the settlement between the parties in May of 1950. The plaintiff alleges that the defendant "wholly failed to discharge the obligations of its contract and still fails, refuses, and neglects to perform said obligations or to render any services to the plaintiff." To support this contention, the plaintiff points to the agreement of 1947 whereby the defendant assumed certain obligations which it did not oras the plaintiff contends which it could not perform. The plaintiff further contends that the defendant represented itself as having ability to perform services which it could not perform and services which it had not rendered, before that time, to any party. But we would point out that all of these facts were known to the plaintiff or its predecessor prior to the action commenced against the defendant in 1949. Having this knowledge, the plaintiff's predecessor settled and compromised the action to rescind the contract of 1947. In the settlement, the plaintiff specifically ratified and confirmed the contract, with certain amendments. The plaintiff cannot now raise objection to the defendant's performance which the plaintiff's predecessor had knowledge of in 1950 when it settled the prior action. The plaintiff's predecessor, in writing, instructed the defendant not to perform any further services. Such request was made in October of 1950. After having instructed the defendant not to perform any further services, the plaintiff's predecessor and the plaintiff, after it acquired the predecessor's interests in the contract, continued to recognize the agreement by paying to the 834 defendant moneys which were due thereunder. Such payments were continued for almost four years after the defendant had been told to discontinue any further performance of the agreement. Only after such lapse of time was the action commenced which now is before this court. Under these circumstances, the plaintiff cannot complain that the defendant did not render the services which it was required to render under the agreement, which agreement the plaintiff now attempts to rescind, because the defendant had been specifically instructed not to perform such services. The issues which were raised by the plaintiff's predecessor in the 1950 action to rescind the contract then existing between American Christian Mutual Life Insurance Company and the defendant were the same as those raised in this case by the plaintiff. The defendant's failure to perform under the contract, if there is merit to the plaintiff's contention, was known to the plaintiff's predecessor when the first action was dismissed. The plaintiff's contention that there was fraud in the inception of the contract drawn in 1947 cannot, therefore, be considered by this court. Such claim was urged by the plaintiff's predecessor in its action in 1949, and it is res judicata by reason of the 1949 action and the 1950 settlement of the action. Plaintiff also urges that there has been a failure of consideration, and that the defendant has failed to perform any services under the contract. We would point out that the services of the defendant were discontinued at the specific instruction of the plaintiff. If the plaintiff's predecessor had knowledge, in October of 1950, when it instructed the defendant to perform no further services, of any breach of contract which would entitle the plaintiff's predecessor to rescind, then it should have brought an action for rescission promptly. But it merely notified the defendant not to perform any further services and then continued to pay the defendant, under the contract, for almost four years. The plaintiff now argues that the plaintiff's predecessor and the plaintiff, after it acquired the interests of the American Christian Mutual Life Insurance Company, could not rescind promptly because it was under the influence of the defendant company. Plaintiff further argues that the financial condition of the plaintiff's predecessor was such, at that time, that it did not dare to bring an action to rescind because of the adverse effects such an action would have had on the plaintiff's predecessor. We have examined the record, and there is no evidence that would justify the court in holding that the plaintiff's predecessor or the plaintiff, after it acquired interests of the American Christian Mutual Life Insurance Company in 1951, were under any spell of the majority stockholder in the defendant company, as contended. The plaintiff's predecessor certainly was not under such influence in 1949 because it commenced an action in that year and then proceeded to settle such action and renew the contract. Neither the plaintiff's predecessor nor the plaintiff may thereafter claim rescission on grounds (existing prior to such 1950 settlement. We have carefully examined the record, and find nothing which would warrant a rescission of the agreement, as amended and ratified in 1950. The judgment of the district court therefore is affirmed. MORRIS, C. J., and TEIGEN, BURKE, and ERICKSTAD, JJ., concur.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Onunwor, 2012-Ohio-4818.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 97895 STATE OF OHIO PLAINTIFF-APPELLEE vs. CLIFTON ONUNWOR DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-517054 BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J. RELEASED AND JOURNALIZED: October 18, 2012 ATTORNEYS FOR APPELLANT Robert L. Tobik Cuyahoga County Public Defender By: Erika B. Cunliffe Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Mary H. McGrath Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN A. GALLAGHER, J.: {¶1} Clifton Onunwor appeals the denial of his petition for post-conviction relief in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm. {¶2} Appellant was indicted on October 23, 2008, and charged with one count of aggravated murder and two counts of tampering with evidence. Following a jury trial, appellant was found to be guilty of all counts and sentenced to life without parole for aggravated murder, to be served consecutively to a three-year firearm specification. The trial court further sentenced appellant to two two-year prison terms on the tampering with evidence counts, to be served concurrently. {¶3} Appellant brought a direct appeal of his convictions to this court wherein he asserted eight assignments of error, essentially amounting to procedural errors, improper admission of evidence and ineffective assistance of counsel due to the failure to preserve certain issues for appeal. On November 18, 2010, this court affirmed appellant’s convictions. State v. Onunwor, 8th Dist. No. 93937, 2010-Ohio-5587 (“Onunwor I”). Appellant petitioned for leave to appeal to the Ohio Supreme Court, but the court denied appellant’s petition and dismissed the appeal. State v. Onunwor, 128 Ohio St.3d 1415, 2011-Ohio-828, 942 N.E.2d 386. {¶4} During the pendency of his direct appeal, appellant filed a petition for postconviction relief in the Cuyahoga County Court of Common Pleas on April 26, 2010. Appellant asserted that he received ineffective assistance from his trial counsel and that the prosecution failed to produce exculpatory evidence to him prior to trial. The trial court summarily denied appellant’s petition for postconviction relief. {¶5} Appellant appeals from the trial court’s denial of his petition asserting the following sole assignment of error: The trial court’s summary dismissal of Clifton Onunwor’s petition for post-conviction relief violated his right to due process because the court did so without meaningfully addressing the new evidence upon which the petition was based or analyzing its impact on the [sic] Onunwor’s case overall. {¶6} Petitions for postconviction relief are governed by the standards set forth in R.C. 2953.21, which provides, in pertinent part: (A)(1)(a) Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. *** (C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript. {¶7} A trial court’s decision granting or denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion is “more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). A reviewing court should not overrule the trial court’s finding on a petition for postconviction relief that is supported by competent and credible evidence. Gondor at ¶ 58. {¶8} A trial court’s decision to deny a postconviction petition without a hearing is also reviewed under the abuse of discretion standard. State v. Broom, 8th Dist. No. 96747, 2012-Ohio-587, ¶ 13, citing State v. Abdussatar, 8th Dist. No. 92439, 2009-Ohio-5232, ¶ 15. {¶9} The Ohio Supreme Court has held that a trial court, pursuant to R.C. 2953.21(C), may dismiss a petition for postconviction relief “without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief.” State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, at paragraph two of the syllabus. According to the Ohio Supreme Court, it is “not unreasonable to require the defendant to show in his petition for postconviction relief that such errors resulted in prejudice before a hearing is scheduled.” Id. at 283. {¶10} Pursuant to State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975), there are two conditions that must be satisfied prior to the court holding a hearing: the petitioner must state substantive grounds for relief, and the issue cannot be determined through a review of the record. This court, therefore, additionally recognized that trial courts are required to hold an evidentiary hearing only if the petitioner is relying on facts outside the record. Broom, ¶ 14. {¶11} R.C. 2953.21(A) requires a petitioner for postconviction relief to allege a “denial or infringement” of his rights under the Ohio or United States Constitutions. In the case sub judice, appellant asserted two separate denials or infringements: first, that he was denied effective assistance of counsel as required by the Sixth Amendment to the United States Constitution because his trial counsel did not “investigate, develop, and present evidence that would have undermined the prosecution’s case”; and second, that he was denied his due process rights to a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution due to “prosecutorial misconduct.” {¶12} Both of appellant’s arguments are related to records of appellant’s cell phone activity during the time frame of his mother’s murder on the night of September 18, 2008, and the early morning hours of September 19, 2008. Appellant argues that these phone records show a near-constant exchange of text messages and phone calls between appellant and others (primarily his girlfriend) on the night of the murder and that, due to this exchange, appellant would have been unable to commit the crime as alleged. Appellant further argues that the phone records contradict and would have discredited testimony, including time frames of his activity that night, provided by prosecution witnesses at trial. Appellant’s ineffective assistance of counsel claim stems from his trial counsel’s alleged failure, despite appellant’s alleged repeated requests, to obtain the phone records for use at trial. Appellant’s prosecutorial misconduct claim stems from his assertion that the prosecution possessed the cell phone records prior to trial but failed to produce them to the defense as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). {¶13} At the outset, we are compelled to address one of the common doctrinal hurdles that postconviction relief petitioners must clear: the doctrine of res judicata. Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment. (Internal quotation marks and citation omitted.) Abdussatar, 8th Dist. No. 92439, 2009-Ohio-5232, ¶ 13. {¶14} A petition for postconviction relief may be denied or dismissed on res judicata grounds if the trial court “finds that the petitioner could have raised the issues in the petition at trial or on direct appeal without resorting to evidence beyond the scope of the record.” (Emphasis added.) Id. at ¶ 16; accord State v. Williams, 8th Dist. No. 85893, 2005-Ohio-6020, ¶ 7. {¶15} With these principles in mind, we find that appellant’s prosecutorial misconduct claim is barred by res judicata. Appellant asserts that the prosecution provided in discovery that it had obtained phone records and, despite his own submitted records indicating that he possessed at least three separate cell phone accounts, appellant assumes that the state must have possessed the particular cell phone records upon which he now bases his arguments. Accordingly, it is apparent that appellant’s prosecutorial misconduct claim is rooted in actions that occurred during the pretrial discovery process. Records of that process, and the parties’ motions and responses therein, would certainly be within the scope of the record on direct appeal. Similarly, appellant acknowledged his own awareness of these particular cell phone records prior to trial as he asserts that he implored his trial counsel to obtain the records for use in his defense. Appellant was, therefore, required to present his prosecutorial misconduct argument on direct appeal and, having failed to do so, the argument is barred by res judicata. Accordingly, we dismiss appellant’s prosecutorial misconduct claim.1 1 Even were we to consider the merits of appellant’s prosecutorial misconduct claim, we would not find it convincing. Brady requires that evidence “material either to guilt or to punishment” may not be suppressed by the prosecution. Brady, 373 U.S. 83, 87, 83 S.Ct. 1194. Evidence is “material” when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). For reasons more fully explored below, on the facts before us, we are not convinced that the phone records at issue were material evidence. In addition, the defense’s argument rests on a prosecution discovery response that lists “Cell phones and records” in an “Evidence List.” There is no indication of what the “records” were, or to what cell phone numbers they corresponded. Appellant’s brief notes that appellant’s own trial counsel first requested records for two telephone numbers under appellant’s name that had been discontinued and only afterwards did his appellate counsel obtain the phone records corresponding to the number that appellant was {¶16} In contrast to appellant’s prosecutorial misconduct argument, his claim of ineffective assistance of counsel argument is firmly based on evidence that was outside the scope of the trial record: namely, the cell phone records attached to his petition for postconviction relief. “It is well-established in Ohio law that where an ineffective assistance of counsel claim cannot be supported solely on the trial court record, it should not be brought on direct appeal.” Williams v. Anderson, 460 F.3d 789, 800 (6th Cir. 2006), citing, inter alia, State v. Cooperrider, 4 Ohio St.3d 226, 228-229, 448 N.E.2d 452 (1983); State v. Coleman, 85 Ohio St.3d 129, 134, 707 N.E.2d 476 (1999). Because the phone records at issue were not part of the record prior to appellant’s petition for postconviction relief, they were not proper subjects of direct appeal and, therefore, appellant’s claim of ineffective assistance of counsel is not barred by res judicata. {¶17} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the proceeding’s result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Pursuant to Strickland, courts need not undertake analysis of both prongs: allegedly using at the time of the homicide. There is no indication in the record that the phone records referenced in the prosecution’s discovery records have any relation to the phone records at issue in this appeal. “[i]n particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland at 697; accord Bradley, at 143. {¶18} We are prevented from examining appellant’s alleged ineffective assistance of counsel claim due to his failure to furnish the court with the transcripts and exhibits from his trial. In Ohio, the appellant has the duty to file the transcript or such parts of the transcript that are necessary for evaluating the lower court’s decision. App.R. 9(B); State v. Peterson, 8th Dist. No. 96958, 2012-Ohio-87, ¶ 7. Failure to file the transcript prevents an appellate court from reviewing an appellant’s assignments of error. State v. Turner, 8th Dist. No. 91695, 2008-Ohio-6648, ¶ 13. In order to evaluate appellant’s arguments that the phone records would have altered the outcome of the case by discrediting prosecution witnesses, review of the trial transcripts is a necessity. 2 Lacking the requisite materials in the record to evaluate the trial court’s analysis pursuant to R.C. 2953.21(C), we must presume regularity in the proceedings below. State v. Lababidi, 2012-Ohio-267, 969 N.E.2d 335, ¶ 13 (8th Dist.); State v. Rice, 8th Dist. No. 95100, 2011-Ohio-1929, ¶ 6. Because appellant did not file a transcript of the proceedings below and the accompanying exhibits that are necessary for our determination of the issue at bar, his argument that the trial court abused its discretion in 2 The trial court noted in its journal entry that appellant was provided with a full opportunity at trial to cross-examine the witnesses, including his girlfriend, regarding his phone conversations, whereabouts and activity on the night in question. denying his petition for postconviction relief without holding an evidentiary hearing is without merit.3 {¶19} We do note that our examination of appellant’s phone records, without reference to the transcript and exhibits from trial, does not reveal exculpatory evidence. It is incredulous for appellant to suggest that one is incapable of multitasking by having an open phone call while simultaneously discharging a firearm. The records, a significant portion of which were text messages, do not demonstrate that appellant could not have been engaged in other activities while he was using the phone throughout the night. Any observer of modern society would note that cell phone users are (often regrettably) capable of performing multiple tasks while using their phones. {¶20} The phone records provided by appellant offer nothing more than the date, time, phone number from which a call was placed or to which a call was placed and the call length. They do not specify the location of the phone at the time the call was being had or call into question appellant’s ability to have been present at the victim’s home on the night of the murder. {¶21} The court does acknowledge that appellant’s phone activity on the night in question was, during certain parts of the night, prolific, but nevertheless there are numerous gaps in time in which no activity was recorded. It is not this court’s position, or duty, to speculate as to how long it would take to commit the crime that occurred in this case but, particularly in light of appellant’s failure to provide us with the record from 3 Appellant’s failure to provide the record would similarly preclude a proper examination of his trial, we cannot say that the trial court abused its discretion in concluding that, “[n]otwithstanding his phone use, [appellant] had full opportunity to commit the offenses within the window of time established by the state.” {¶22} Appellant’s sole assignment of error is overruled. {¶23} The judgment of the trial court is affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said lower court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. EILEEN A. GALLAGHER, JUDGE KATHLEEN ANN KEOUGH, J., CONCURS; COLLEEN CONWAY COONEY, P.J., CONCURS IN JUDGMENT ONLY claim of prosecutorial misconduct even if that argument was not barred by res judicata.	{ "pile_set_name": "FreeLaw" }
300 Multiple Choices Multiple Choices The document name you requested (/attorneys/assets/opinions/supreme/a_35_15.pdf) could not be found on this server. However, we found documents with names similar to the one you requested.Available documents: /attorneys/assets/opinions/supreme/a_38_15.pdf (mistyped character) /attorneys/assets/opinions/supreme/a_65_15.pdf (mistyped character) /attorneys/assets/opinions/supreme/a_85_15.pdf (mistyped character) IBM_HTTP_Server at www.judiciary.state.nj.us Port 443	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-3575 ___________________________ Kasib Tauheed Bilal lllllllllllllllllllllPlaintiff - Appellant v. IDS Property Casualty Insurance Company, (originally named as Progressive Home Owners & Auto Insurance Company) lllllllllllllllllllllDefendant - Appellee Ameriprise Auto & Home Insurance lllllllllllllllllllllDefendant ____________ Appeal from United States District Court for the Eastern District of Arkansas - Little Rock ____________ Submitted: September 24, 2018 Filed: October 16, 2018 [Published] ____________ Before KELLY, ERICKSON, and GRASZ, Circuit Judges. ____________ PER CURIAM. In this civil rights action brought under 42 U.S.C. § 1981, Kasib Bilal appeals following the district court’s1 adverse grant of summary judgment. Upon careful de novo review, see Withers v. Dick’s Sporting Goods, Inc., 636 F.3d 958, 962 (8th Cir. 2011), we conclude that the district court did not err in granting summary judgment and we find no other basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. ______________________________ 1 The Honorable D.P. Marshall Jr., United States District Judge for the Eastern District of Arkansas. -2-	{ "pile_set_name": "FreeLaw" }
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 31 2018, 9:09 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Jon P. McCarty Curtis T. Hill, Jr. Covington, Indiana Attorney General of Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA In Re the Matter of the May 31, 2018 Termination of the Parent-Child Court of Appeals Case No. Relationship of: N.M., R.M., Jr., 18A-JT-91 L.M., and T.M. (Minor Children) Appeal from the Vermillion Circuit Court and The Honorable Bruce V. Stengel, Judge R.B. (Mother) and R.M. Trial Court Cause Nos. (Father), 83C01-1703-JT-5 Appellants-Respondents, 83C01-1703-JT-6 83C01-1703-JT-7 v. 83C01-1703-JT-8 Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 1 of 12 Indiana Department of Child Services, Appellee-Petitioner. Bradford, Judge. Case Summary [1] R.B. (“Mother”) and R.M. (“Father”) (collectively, “Parents”) appeal the juvenile court’s order terminating their parental rights to N.M.; R.M., Jr.; L.M.; and T.M. (collectively, “the Children”). The Indiana Department of Child Services (“DCS”) became involved in the Children’s lives after receiving reports of drug use by Parents. The Children were subsequently determined to be children in need of services (“CHINS”) and Parents were ordered to complete certain services. Parents, however, failed to successfully complete the court- ordered services. [2] DCS filed a petition seeking the termination of Parents’ parental rights to the Children on March 14, 2017. Following an evidentiary hearing, the juvenile court issued an order granting DCS’s petition. On appeal, Parents contend that DCS did not provide sufficient evidence to support the termination of their parental rights. They also contend that the trial court’s order should be set Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 2 of 12 aside because DCS failed to provide notice of the evidentiary hearing to a necessary party. We affirm. Facts and Procedural History [3] N.M. was born on July 16, 2009; R.M., Jr., was born on August 13, 2010; L.M. was born on May 21, 2012; and T.M. was born on July 10, 2014. It is uncontested that Parents are the parents of N.M.; R.M., Jr.; and L.M. Parents also presented evidence during the underlying CHINS and termination proceedings indicating that Father is the biological father of T.M. However, on appeal, Parents argue for the first time that Father is not the biological father of T.M. [4] On September 2, 2015, DCS received a report that Parents were using drugs. Initially, DCS planned to enter into an informal adjustment with Parents. Plans changed, however, after Parents both tested positive for methamphetamine on October 2, 2015. The Children were removed from Parents’ care on November 5, 2015, after Parents again both tested positive for methamphetamine. On November 6, 2015, DCS filed petitions alleging that the Children were CHINS. Parents admitted to the allegations set forth in the CHINS petitions. They were subsequently ordered to participate in random drug screens, therapy, and supervised visitation. Parents were also ordered to complete and follow the recommendations of parenting assessments and to avail themselves of all services available during any period of incarceration. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 3 of 12 Over the course of approximately the next eighteen months, Parents struggled with sobriety and continued to test positive for drugs and alcohol. [5] On March 14, 2017, DCS filed petitions seeking the termination of Parents’ parental rights to the Children. The juvenile court conducted an evidentiary hearing on DCS’s petitions on September 8, 2017. During the evidentiary hearing, DCS presented evidence indicating that Parents had not made significant progress towards reunification and continued to struggle with sobriety. DCS also presented evidence that (1) the Children were doing well in their current foster placements, (2) termination of the Parents’ parental rights was in the Children’s best interests, and (3) its plan was for the Children to be adopted. For their part, Parents argued that they loved the Children and wanted more time to improve their situations with the hopes of one day being in the position to provide adequate care for the Children. On October 24, 2017, the juvenile court issued an order terminating Parents’ parental rights to the Children. Discussion and Decision [6] The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). However, although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 4 of 12 App. 2001), trans. denied. Parental rights, therefore, are not absolute and must be subordinated to the best interests of the children. Id. Termination of parental rights is proper where the children’s emotional and physical development is threatened. Id. The juvenile court need not wait until the children are irreversibly harmed such that their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id. I. Sufficiency of the Evidence [7] Parents contend that the evidence is insufficient to sustain the termination of their parental rights to the Children. In reviewing termination proceedings on appeal, this court will not reweigh the evidence or assess the credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile court’s decision and reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court includes findings of fact and conclusions thereon in its order terminating parental rights, our standard of review is two- tiered. Id. First, we must determine whether the evidence supports the findings, and, second, whether the findings support the legal conclusions. Id. [8] In deference to the juvenile court’s unique position to assess the evidence, we set aside the juvenile court’s findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 5 of 12 Id. A judgment is clearly erroneous only if the legal conclusions made by the juvenile court are not supported by its findings of fact, or the conclusions do not support the judgment. Id. [9] Parents claim that DCS failed to present sufficient evidence to prove by clear and convincing evidence that: (B) that one (1) of the following is true: (i) There is a reasonable probability that the conditions that resulted in the child[ren]’s removal or the reasons for placement outside the home of the parents will not be remedied[; and] (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child[ren].… (C) termination is in the best interests of the child[ren.] Ind. Code § 31-35-2-4(b)(2).1 A. Indiana Code Section 31-35-2-4(b)(2)(B) [10] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court need only find either that (1) the conditions resulting in removal from or continued placement outside the parents’ home will not be remedied, (2) the continuation of the parent-child relationship poses a threat to the children, or (3) the children have been adjudicated CHINS on 1 Parents do not dispute that DCS presented sufficient evidence to support the first and fourth elements set forth in Indiana Code section 31-35-2-4(b)(2). Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 6 of 12 two separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore, where the juvenile court determines one of the above-mentioned factors has been proven and there is sufficient evidence in the record supporting the juvenile court’s determination, it is not necessary for DCS to prove, or for the juvenile court to find, either of the other two factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882. [11] In its order terminating Parents’ parental rights to the Children, the trial court found both that the conditions resulting in removal and continued placement outside Parents’ home will not be remedied and that the continuation of the parent-child relationship poses a threat to the Children. While Parents challenge the sufficiency of the evidence to sustain the juvenile court’s determination that the conditions leading to the Children’s removal from their home would not be remedied, they do not raise any challenge to the juvenile court’s determination that the continuation of the parent-child relationship also posed a threat to the well-being of the Children. Therefore, juvenile court’s order satisfies the requirements of Indiana Code section 31-35-2-4(b)(2)(B). [12] Be that as it may, DCS presented ample evidence to support the trial court’s ruling. The evidence shows that despite claims to the contrary, Parents have continued to test positive for drugs and alcohol. Out of 125 offered drug screens, Father tested positive for alcohol or controlled substances thirty-nine times and was a “no show” forty-nine times. Tr. Vol. II, p. 94. Out of 262 offered drug screens, Mother tested positive for alcohol or controlled substances fifty-three times and was a “no show” sixty-five times. Tr. Vol. II, p. 75. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 7 of 12 Although Mother has participated in multiple substance abuse treatment programs, she has shown a pattern of relapse within a couple of weeks of leaving the program. For his part, Father committed a burglary in a stated attempt to go to jail because he “needed to be in a drug free environment.” Tr. Vol. II, p. 174. Father pled guilty to this crime and at the time of the evidentiary hearing, Father, who has an extensive criminal record, was awaiting sentencing for his most recent conviction and was facing a term of up to eight years of incarceration. Angela Bullock, the Children’s guardian ad litem (“GAL”), questioned the wisdom of Father’s decision making, testifying that “I’m not convinced that incarceration is a good plan to help your children or your family, even for drug rehabilitation.” Tr. Vol. II, p. 185. In addition, Parents both acknowledged that they were not in a position to care for the Children as of the date of the evidentiary hearing and that they would require more time before they were in a position to do so. B. Indiana Code section 31-35-2-4(B)(2)(C) [13] Parents also argue that DCS failed to establish by clear and convincing evidence that termination of their parental rights is in the Children’s best interests. We are mindful that in considering whether termination of parental rights is in the best interests of a child, the juvenile court is required to look beyond the factors identified by DCS and look to the totality of the evidence. McBride, 798 N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of the parent to those of the child involved. Id. Furthermore, this court has previously determined that the testimony of the case worker, GAL, or a court Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 8 of 12 appointed special advocate (“CASA”) regarding the child’s need for permanency supports a finding that termination is in the child’s best interests. Id.; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied. [14] Bullock testified that termination of the Parents’ parental rights was in the Children’s best interests and additionally that it is in the Children’s best interests to be placed in a permanent placement. Bullock further testified that the Children “need to have a permanent placement and both parents have somewhat testified today that they don’t have a plan right now for those children today and maybe not next month or the next six months[.]” Tr. Vol. II, pp. 184–85. In addition, DCS Family Case Manager Jennifer Hogan testified that the Children were doing well in their current placements and that the plan was for the Children to be adopted. Parents, on the other hand, continued to struggle with stability and sobriety. [15] The juvenile court did not have to wait until the Children were irreversibly harmed such that their physical, mental, and social development was permanently impaired before terminating Parents’ parental rights. See In re C.M., 675 N.E.2d at 1140. DCS presented sufficient evidence to prove that termination of Parents’ parental rights is in the Children’s best interests. Parents’ claim to the contrary merely amounts to an invitation for this court to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 9 of 12 II. Motion for Relief from Judgment [16] Parents also contend that the trial court’s order should be set aside because a necessary party was not given notice of the evidentiary hearing. In support, Parents cite to Indiana Code section 31-35-2-6.5(c)(1) which provides that a child’s parent “shall receive notice of a hearing” in proceedings related to the termination of one’s parental rights. The term “parent” includes an alleged father. Ind. Code § 31-9-2-88. [17] The record reveals that approximately four days after initiating this appeal, Parents filed a Trial Rule 60(B) motion seeking relief from the trial court’s judgment. Trial Rule 60(B) provides that “on motion and upon such terms as are just the court may relieve a party … from a judgment … for … any reason justifying relief from the operation of the judgment….” It does not appear that the trial court has ruled on Parents’ motion.2 [18] In seeking relief from the trial court’s judgment, Parents alleged for the first time that DCS had failed to provide notice to a necessary party, i.e., the known biological father of T.M. Parents included declarations made both by Mother and Shane Smith, the alleged biological father of T.M., in their filing. However, nothing in either declaration indicated that Smith had protected his rights by establishing paternity or registering with Indiana’s Putative Father 2 The trial court’s inaction is likely explained by the fact that this court had assumed jurisdiction of the case before the motion was filed. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 10 of 12 Registry. These declarations merely provided that Mother (1) believes that Smith is T.M.’s biological father and (2) claims to have informed DCS of Smith’s identity and alleged relationship with T.M. at the beginning of the underlying CHINS proceeding. These declarations, however, were in direct conflict with (1) Mother’s testimony during the evidentiary hearing that Father is the biological father of all four of the Children and (2) evidence indicating that Father’s paternity of T.M. was established by a paternity affidavit. [19] DCS alleges that Parents cannot now argue that the trial court’s order should be set aside because they invited the potential error by providing testimony and other evidence indicating that Father was the biological father of all four children. “[T]he ‘doctrine of invited error is grounded in estoppel,’ and forbids a party to ‘take advantage of an error that [he] commits, invites, or which is the natural consequence of [his] own neglect or misconduct.’” Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)) (first set of brackets added, second and third set in original). We agree with DCS and conclude that since Parents invited the claimed error, they may not take advantage of it. [20] Additionally, we find it troubling that despite knowing of Smith’s identity and alleged relationship to T.M., Parents stayed silent throughout the proceedings, raising this issue only after the juvenile court ruled against them and they initiated an appeal. Such behavior suggests an attempt by Parents to manipulate the system. If we were to permit such behavior, the children involved—all of whom require stability and finality—would undoubtedly suffer. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 11 of 12 [21] The judgment of the juvenile court is affirmed. Baker, J., and Kirsch, J., concur. Court of Appeals of Indiana \| Memorandum Decision 18A-JT-91 \| May 31, 2018 Page 12 of 12	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1162 THOMAS EARL JONES, Plaintiff - Appellant, v. WILBERT BURIAL VAULT INC; BOYD C. ANDERSON; STEPHEN M. YOUNG, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Greenville. Timothy M. Cain, District Judge. (6:15-cv-03408-TMC) Submitted: May 23, 2017 Decided: May 25, 2017 Before KING, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas Earl Jones, Appellant Pro Se. Vernon F. Dunbar, McANGUS, GOUDELOCK & COURIE, LLP, Greenville, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thomas Earl Jones appeals the district court’s order dismissing his civil action seeking recovery under a profit sharing retirement plan administered by his former employer, Wilbert Burial Vault, Inc. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jones v. Wilbert Burial Vault Inc., No. 6:15-cv-03408-TMC (D.S.C. Jan. 6, 2017). In light of this disposition, we deny the Defendants’ motion to dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
626 F.Supp. 722 (1985) Antonio PALOMBA, et al. v. Marvin I. BARISH, et al. Civ. A. No. 85-1278. United States District Court, E.D. Pennsylvania. December 13, 1985. 723 Sidney J. Smolinsky, Philadelphia, Pa., for plaintiffs. Elizabeth McKenna, Philadelphia, Pa., for defendant, Marvin I. Barish. H. Robert Fiebach, Philadelphia, Pa., for defendant, Robert C. Daniels. Joseph Frontino, Philadelphia, Pa., for defendants, Avram G. Adler, Arnold Levin, Howard J. Creskoff and Marvin J. Levin, Ind. & t/a Adler, Barish, Daniels, Levin, Creskoff. MEMORANDUM AND ORDER JAMES McGIRR KELLY, District Judge. Presently before this court is defendant, Robert C. Daniels' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Daniels has submitted for my consideration of the motion to dismiss, affidavits of his counsel, Neil Witkes and his own affidavit. Daniels seeks to invoke that portion of Rule 12(b)(6)[1] which mandates conversion of a motion to dismiss to a summary judgment where (1) a party submits material outside the pleading for the court's consideration, and (2) the court considers such material in making its decision. Plaintiffs, a group of seamen, were allegedly injured while the vessel they were on was in navigable waters of the Atlantic Ocean. Plaintiffs engaged the defendant law firm of Adler, Barish, Daniels, Levin & Creskoff (Adler-Barish) to represent them in their action against the ship for damages. Defendant, Marvin Barish, a partner of Adler-Barish was the attorney who handled plaintiffs' claims. The court which was presiding over the plaintiffs' action against the ship dismissed certain of the plaintiffs'[2] claims (hereinafter "dismissed plaintiffs") because dismissed plaintiffs were not produced for deposition and medical examination and plaintiffs' expert witness medical reports were not furnished for the steamship company as required by an order entered and agreed to by counsel. The remaining plaintiffs'[3] claims (hereinafter "limited plaintiffs") were allowed to proceed to trial as 724 to damages,[4] but a key expert witness was prohibited from testifying on behalf of the limited plaintiffs due to the alleged failure of defendant, Marvin Barish to make the expert witnesses reports available to the steamship company's counsel. Plaintiffs here allege they suffered injury due to the alleged malpractice of defendant attorneys who had represented them in their claim against the steamship company. In Count I of the complaint the dismissed plaintiffs assert that because of the negligence of the defendants in the preparation and handling of their claims, they were prejudiced and lost the right to recover damages against the steamship company. In Count II of the complaint the limited plaintiffs assert that because of the negligence of the defendants they were injured because they were deprived of putting into evidence material and testimony which would have benefited them in their attempt to establish damages. Count III of the complaint asserts a claim on behalf of all plaintiffs for punitive damages against the defendants for "continual and flagrant disregard of agreed upon scheduling orders". Complaint ¶ 41. I have jurisdiction over plaintiffs' action because of diversity of the parties. Accordingly, I must apply Pennsylvania state law. Pennsylvania law is clear that the negligence of one partner acting in the ordinary course of the business of the partnership will be imputed upon the non-acting partners, making the non-acting partners jointly and severally liable for the negligence. Pa.C.Stat.Ann. Title 59 § 325 & § 327 (Purdon Supp.1985).[5] Defendant Daniels has contended that he was forced out of Adler-Barish, thus dissolving the partnership two years prior to the time of the purported negligence which give rise to plaintiffs' claims. While plaintiffs have alleged negligence on behalf of all defendant attorneys, they assert that defendant Marvin Barish was the firm's representative which they dealt with. A party who has prior dealings with a partnership and without knowledge[6] of a subsequent dissolution of the partnership, and continues to deal with a partner can hold liable the former partners of the dissolved partnerhip. Pa.Stat.Ann. Title 59 § 357.[7] 725 Thus, a party who is not given notice of dissolution, but continues to transact business with a "partner" can hold liable the former partnership. It should be noted at this juncture that "even after dissolution, a partnership is not terminated but continues to exist until the winding up of partnership affairs is completed and the authority remains to act for the partnership in winding up partnership affairs and complete transactions begun but not yet finished at the time of dissolution." North Star Coal v. Eddy, 442 Pa. 583, 586, 277 A.2d 154, 156, (1971). The dissolution of a partnership will not relieve an individual partner of a duty under a contract entered into before the partnership was dissolved. Stewart v. Angle, 315 Pa. 135, 139, 172 A. 898, 899, (1934); Cope v. Warner, 13 Serg. & Rawle, 411, 415 (1825). Thus, I find the fact that Daniels' withdrawal from Adler-Barish two years prior to the purported negligent act is of little moment to whether or not Daniels can be held liable for the malpractice of his former partners. An action of malpractice by an attorney can generally be based upon either tort or contract theory. Goggin, Attorney Negligence ... A Suit Within a Suit, 60 W.Va. L.Rev. 225 (1958). The action brought by plaintiffs here appears to rest upon tort theory for recovery. Generally a tort by one partner occurring subsequent to dissolution of a partnership cannot be imputed upon the former partners, unless the party who committed the tort was winding up the partnership affairs or completing partnership business. A partner who has not, inter alia, wrongfully dissolved the partnership has the right to wind up the partnership affairs. Pa.Stat.Ann. Title 59 § 359.[8] Because no pleadings or material submitted to the court have expressed that defendant Barish wrongfully dissolved the partnership, I must assume that Barish had a right to wind up certain former Adler-Barish commitments.[9] Defendant Daniels has submitted an affidavit of his counsel, Neil Witkes, to support his position that plaintiffs had actual knowledge of the Adler-Barish firm being dissolved, since Daniels' withdrawal from Adler-Barish. Witkes avers that certain correspondence[10] of various plaintiffs which were addressed to the successor firm of Adler-Barish establishes that these plaintiffs had knowledge of the expulsion or absence of defendant Daniels from the firm. It may be permissible, but not advisable, for an attorney to present his own affidavit for a motion for a summary judgment. Crockett v. Johns-Manville Corp., No. 81-1268 (E.D.Pa., October 11, 1984). However, here the more serious problems arise because of possible hearsay and authentication[11] questions of the documents Witkes has submitted as well as inferences such writings convey. Indeed, the fact that plaintiffs addressed letters to a succeeding firm of Adler-Barish does not dispose of all questions of fact as to whether or not the plaintiffs had knowledge that Daniels was no longer with the law firm 726 which represented them.[12] The letters do not preclude an issue of fact in dispute. Because I find in consideration of the letters, an issue of fact still present, I need not rule (except for Carlos Giacomino's discharge of counsel letter see Footnote 11) as to whether the letters should be excluded because they were not properly authenticated or may contain hearsay. Daniels has submitted an affidavit averring that he was expelled from the partnership and was denied access to the client files to which he could have obtained address information of clients so that notice of his leaving Adler-Barish could be made. Conversely, other partners of the former Adler-Barish firm who are defendants in this action have submitted affidavits averring that Daniels withdrew on his own accord and was not forced out of Adler-Barish; additionally, other defendants aver that Daniels was not prohibited from accessing client files. Thus, I cannot rule as to the absence of a factual dispute concerning Daniels leaving the Adler-Barish firm. Moreover, the fact that Daniels' former partners allegedly wrongfully denied him access to the client files does not release Daniels from his duties to plaintiffs. Additionally, Daniels argues that to require him to personally contact his former law firm's clients and inform the clients of his resignation or expulsion from the firm would transverse the holding of the Pennsylvania Supreme Court in Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). I find that the matter before the Pennsylvania Supreme Court in Epstein is sufficiently distinguishable from the dilemna facing defendant Daniels; thus the holding's prohibition would not affect Daniels' duties to notify clients of his former firm. Daniels submission of affidavits has not precluded a genuine issue of fact concerning, inter alia, whether or not plaintiffs had knowledge of the dissolution of Adler-Barish or that Barish was not charged with winding up Adler-Barish's affairs. Accordingly, I must deny defendant Daniels' motion for summary judgment as to Counts I and II of plaintiffs' complaint. Last, I turn to defendant Daniels' assertion that the punitive damages claim, Count III of plaintiffs' complaint is improper because defendant Daniels avers in his affidavit that he was not a partner of Barish when the purported negligence occurred. However, as stated earlier the fact that a partnership dissolves does not terminate affairs that were current at the time of dissolution; termination of liability occurs once the current matters (at time of dissolution) are resolved or wound up. See also Dean Witter Reynolds, Inc. v. Genteel, 346 Pa.Super. 336, 499 A.2d 637 (1985) (Pennsylvania permits vicarious application of punitive damages). Moreover, the very fact that Barish was permitted to wind up affairs for the former partnership may in itself be a reckless act. Accordingly, defendant Daniels' motion for summary judgment as to Count III must be denied. In conclusion, since defendant Daniels as well as other defendants in this action have submitted various affidavits and exhibits for my consideration, I will convert the instant motion to dismiss to one for summary judgment. Because the affidavits have not narrowed any genuine issue of fact, the summary judgment motion must be denied. NOTES [1] Rule 12(b)(6) of the Federal Rules of Civil Procedure states in pertinent part: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. [2] Plaintiffs, Antonio Palomba, Giuseppi Santangelo, Giuseppi Alotta, Ramon Martinez, Heber Cabrera Sosa, Hugo Arzuga, Raul G. LaTorre, Daniel O. Barboza, Carlos Alberto Giacomino, Rodolfo C. Aquirre, Heber Wilson Cabrera, Almaro Carratu, Leonico Carrasco. [3] Plaintiffs, Vincenzo Abate, Moises Walter Carrasco, Mario Aresmondi and Omar Lemes. [4] It is alleged that the shipping company had acknowledged liability giving rise to the alleged injuries. [5] Section 325 states in pertinent part: Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, ... loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act. Section 327 states in pertinent part: All partners are liable: (1) Jointly and severally, for everything chargeable to the partnership under section 325 (relating to wrongful act of partner).... [6] Without actual or constructive knowledge. [7] Section 357 states specifically in part: Power of partner to bind partnership to third persons (a) General rule. After dissolution a partner can bind the partnership, except as provided in subsection (c): (1) By any act appropriate for winding up partnership affairs, or completing transactions unfinished at dissolution. (2) By any transaction which would bind the partnership if dissolution had not taken place, if the other party to the transaction: * * * * * * (ii) though he had not so extended credit, had nevertheless known of the partnership prior to the dissolution, had having no knowledge or notice of dissolution, and the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place, if more than one,) at which the partnership business was regularly carried on, and in the legal periodical, if any, designated by rule of court in such place or places for the publication of legal notices. * * * * * * (c) Restrictions on post dissolution authority of partner. The partnership is in no case bound by any act of a partner after dissolution: * * * * * * (3) where the partner has no authority to wind up partnership affairs, except by a transaction with one who: * * * * * * (ii) had not extended credit to the partnership prior to dissolution, and, having no knowledge or notice of his want of authority, and the fact of his want of authority has not been advertised in the manner provided for advertising the fact of dissolution in subsection (a)(2)(ii). [8] Section 359 states: Unless otherwise agreed the partners who have not wrongfully dissolved the partnership, or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; except that any partner, his legal representative, or his assignee, upon cause shown, may obtain winding up by the court. [9] It appears from the complaint that Barish continued to be the attorney who represented plaintiffs as against the steamship company. [10] Including power of attorney forms signed by the various plaintiffs. [11] In Exhibit "A" of Witkes' affidavit he has submitted a letter which appears to be a discharge of counsel from Carlos Giacomino. If this letter was to be established as authentic, it may release Daniels from any liability to Giacomino; however, Witkes merely avers that he received it from defendant Barish's file. This alone does not authenticate this writing. Because the letter has not been shown to be authentic, I cannot consider it on a summary judgment motion. Fed.R.Civ.P. 56(e). [12] The law firm originally engaged was Adler, Barish, Daniels, Levin & Creskoff, the succeeding law firm was Adler, Barish, Levin & Creskoff. The fact that a person's name does not appear in the firm's name does not necessarily mean that the person is not a partner with the firm. Additionally, I note that the new firm's name may be confusingly similar to the first firm's name so that the plaintiffs were not aware of Daniels' absence.	{ "pile_set_name": "FreeLaw" }
217 N.W.2d 754 (1974) In re GUARDIANSHIP OF William S. STANGER, et al, Ervin HARTMANN, et al, Appellants, v. Henry M. WHITEMAN, guardian, Respondent. No. 44323. Supreme Court of Minnesota. April 5, 1974. Firestone, Fink, Krawetz, Miley & Maas, William W. Fink, and Kenneth J. Maas, Jr., St. Paul, for appellants. Dougherty & Scott, and Kenneth E. Scott, Fairmont, for respondent. Heard before KNUTSON, C. J., and OTIS, MacLAUGHLIN, and MULALLY, JJ., and considered and decided by the court. PER CURIAM. In April 1970, William S. Stanger, the paternal grandfather of the minor children involved in these guardianship proceedings, 755 petitioned the Martin County probate court to have Henry M. Whiteman appointed guardian of the persons and estates of his three minor grandchildren. Shortly thereafter, a petition was filed by Ervin F. Hartmann, the maternal grandfather, requesting that he and his wife, Betty Lou Hartmann, be appointed guardians of the children. On December 9, 1970, Whiteman was appointed guardian by the probate court. Appeals were taken to the district court, which resulted in the affirmance of Whiteman's appointment. This is an appeal from the district court's denial of a new trial. We affirm. On April 24, 1967, a divorce proceeding was pending in Ramsey County between Beth Marie Stanger and William S. Stanger, Jr. On that date William Stanger murdered his wife and then committed suicide. They were survived by three children: William S. Stanger, born June 19, 1960; Cynthia Stanger, born August 28, 1961; and Stephen A. Stanger, born November 2, 1962. Since April 25, 1967, the three children have lived in Fairmont, Minnesota, with their maternal grandparents, Ervin and Betty Hartmann. The evidence clearly shows that the children have received adequate care and affection in the Hartmann home, and there is no attempt by anyone to take the physical custody of the children from the Hartmanns. The genesis of the dispute in this proceeding is the acrimony surrounding the visitation rights of the paternal grandparents, William Stanger and his former wife, Alice Stanger. Mrs. Hartmann testified that she had refused to allow Mr. Stanger to see the children even after the probate judge informed her that she should do so. She said that she opposed Stanger's visiting the children because he insisted on talking to them about their father and that this greatly upset them. Stanger testified that he seldom discussed the children's father with them. He said that he felt unwelcome in the Hartmann home, and he eventually stopped visiting the children. Florence Nowicki, a social worker, testified that she had been requested by the paternal grandparents to see what her agency could do about the visitation problem. She learned from Mrs. Hartmann that visitation was refused because Mr. Stanger talked about the children's father. Mrs. Nowicki testified that the children would benefit by association with their paternal grandparents. The district judge extensively questioned Mrs. Hartmann. During the course of the questioning, Mrs. Hartmann's bitterness toward Mr. Stanger was clearly revealed. She indicated that she blamed Mr. Stanger, at least in part, for the death of her daughter because she claims that he knew there was something wrong with his son at an early age, but failed to seek help for him. Henry M. Whiteman, the guardian appointed by the probate court, testified that, to the best of his knowledge, the purpose of the guardianship was to relieve the problem of the visitation rights of the paternal grandparents and to establish a savings plan for the children. He testified that he deposits $25 a month for each child from social security payments. The issue is whether the district court abused its discretion in affirming the appointment of Whiteman as guardian. We have long held that the appointment of a guardian is uniquely within the discretion of the appointing court. In In re Guardianship of Dahmen, 192 Minn. 407, 410, 256 N.W. 891, 893 (1934), we said: "Generally speaking, the selection of the person to be appointed guardian is a matter peculiarly for and within the discretion of the appointing court. On appeal it devolves upon the appellant clearly to show error. * * "The probate court as well as the trial court possessed opportunities and advantages not available to us. The parties were before both courts and duly testified. * * * The evidence amply sustains the conclusion reached. There can be no doubt that upon this record a pure fact question has been determined contrary 756 to appellant's claims. He is bound thereby. We see no reason for interference." See, also, Swick v. Sheridan, 107 Minn. 130, 119 N.W. 791 (1909); Prokosch v. Brust, 128 Minn. 324, 151 N.W. 130 (1915); Wood v. Wood, 137 Minn. 252, 163 N.W. 297 (1917); Hallenberg v. Hallenberg, 144 Minn. 39, 174 N.W. 443 (1919); Wilkowske v. Lynch, 124 Minn. 492, 145 N.W. 378 (1914). Here, as in Dahmen, the probate court and the district court had ample opportunity to view the witnesses and fully consider the evidence. The district court's memorandum clearly indicates that the judge was primarily concerned with the best interests of the children and that, in his judgment, the children would suffer as a result of being deprived of the affection and companionship of their paternal grandparents. The district court obviously feared that if the Hartmanns were appointed as guardians the visitation rights of the paternal grandparents would be seriously jeopardized. The court's memorandum states, in part, as follows: "What is not understandable is that Mrs. Hartmann is now proclaiming that the petitioner was at fault for not securing proper treatment for his son. Furthermore, it is a fair deduction, from the evidence as a whole, that she is attempting to instill in the children an active dislike for their grandfather. * * "The solution to the real problem here appears to lie in the heart and the mind of Mrs. Hartmann. The finding of this Court, that it is in the best interests of the children to be under guardianship of someone other than the Hartmanns, is based on the belief that it is unhealthy for the children to be deprived of a normal relationship with their paternal grandparents, and especially for them to be encouraged to adopt a hostile attitude toward the Stangers. If Mrs. Hartmann's attitude does not change, the orders of the Courts will be futile, since in a relatively few years the children will have a voice in the choice of their guardians. However, Mrs. Hartmann might give some thought to the likelihood that the children will one day discover that their paternal grandfather had something beneficial to offer them through his companionship, and that they have been deprived of it. If and when that happens, the present attitude and conduct of Mrs. Hartmann might well redound to her detriment in the eyes of the children." We affirm the order of the district court. Its decision to appoint a third party as guardian preserves the status quo of the Hartmann family, assures the children of some savings for the future, and facilitates the paternal grandparents' ability to visit with their grandchildren. Affirmed. SHERAN, C. J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.	{ "pile_set_name": "FreeLaw" }
Harris v Reagan (2019 NY Slip Op 07972) Harris v Reagan 2019 NY Slip Op 07972 Decided on November 07, 2019 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: November 07, 2019 527716 [*1]Calvin L. Harris, Appellant, vJoseph C. Reagan, Respondent. Calendar Date: September 9, 2019 Before: Lynch, J.P., Clark, Devine and Pritzker, JJ. Bellavia Blatt, PC, Mineola (Steven H. Blatt of counsel), for appellant. Harris Beach, LLP, Pittsford (Kelly S. Foss of counsel), for respondent. Devine, J. Appeal from an order of the Supreme Court (O'Shea, J.), entered October 9, 2018 in Cortland County, which granted defendant's motion for an order permitting him to make payments into escrow. The underlying facts are set forth in this Court's prior decision (161 AD3d 1346 [2018]). As is relevant here, this case involves a dispute over the terms of an agreement providing that, under certain circumstances, plaintiff would convey his shares in two automobile dealerships to defendant in return for monthly payments of $15,000 for 20 years. Defendant received the shares and began making the payments after plaintiff was found guilty by a jury of murdering his wife in 2007. Plaintiff successfully challenged that verdict and, after extended efforts, was acquitted in 2016. Plaintiff claims that the agreement required the return of the shares, cessation of payments and transmutation of prior payments to salary upon his acquittal, and that defendant has converted his property by retaining the shares. Defendant maintains that all of that is a fiction, that he purchased the shares and that the monthly payments are installments on the purchase price. After we reversed an order granting defendant's motion to dismiss the complaint (161 AD3d at 1348-1350), defendant answered and counterclaimed for unjust enrichment upon the ground that, if plaintiff prevails, defendant is entitled to damages for the "salary" paid to plaintiff given that nothing of value was received in return. Defendant further moved for an order directing that he make the monthly payments into escrow. Supreme Court granted the motion, prompting this appeal by plaintiff. We reverse. Defendant's position is that he purchased plaintiff's shares and that the monthly payments must continue until the purchase price is paid in full, while plaintiff asserts that the shares should have been returned to him after his acquittal and that the payments must continue until that transfer occurs. In other words, although there is a dispute as to the nature of the payments, defendant is obliged to make them while he possesses the shares under either party's interpretation of the agreement. His stated goal in seeking authorization to make the payments into escrow was to create a pool of money to satisfy an eventual judgment, but CPLR 2701 cannot be used to achieve that end where the parties are locked "in a disputed contract action" like this one (Renad, Inc. v Grana, Ltd., 127 AD2d 994, 995 [1987]; see Norwalk v J.P. Morgan & Co., 268 AD2d 413, 416 [2000]; Rosenblat v Seidman, 243 AD2d 699, 699-700 [1997]; Island Intellectual Prop. LLC v Reich & Tang Deposit Solutions, LLC, 57 Misc 3d 195, 216 [Sup Ct, NY County 2017], mod on other grounds 155 AD3d 542 [2017]).[FN1] Defendant's counterclaim for unjust enrichment does not sound in contract, but is of dubious merit given that plaintiff's entitlement to the monthly payments is governed by the terms of the parties' agreement (see Cox v NAP Constr. Co., Inc., 10 NY3d 592, 607 [2008]; Catlyn & Derzee, Inc. v Amedore Land Devs., LLC, 166 AD3d 1137, 1139 [2018]). In any event, to allow defendant to invoke CPLR 2701 simply because of that claim's existence "would be too facile a way to avoid and undermine the settled" rule against using the statute "to preserve a fund for eventual execution of judgment in suits for money damages" (Credit Agricole Indosuez v Rossiyskiy Kredit Bank, 94 NY2d 541, 548 [2000]). Defendant, as a result, failed to establish statutory grounds for the relief he sought. Finally, although Supreme Court does have "inherent plenary power to fashion any remedy necessary for the proper administration of justice" with regard to the payments (People ex rel. Doe v Beaudoin, 102 AD2d 359, 363 [1984]; see Matter of Wien & Malkin v Wichman, 255 AD2d 244, 244 [1998]; Cane v Herman, 209 AD2d 368, 368 [1994]), there is no reason to exercise that power in a case where similar statutory relief is not called for and its use would deprive plaintiff of monies to which he is entitled under defendant's own interpretation of their agreement. Thus, we find that Supreme Court abused its discretion in directing that the payments be made into escrow. Lynch, J.P., Clark and Pritzker, JJ., concur. ORDERED that the order is reversed, on the law, without costs, and motion denied. Footnotes Footnote 1: Supreme Court invoked CPLR 2701 (1), and the parties argue over whether the case should be analyzed under CPLR 2701 (1) or (2). We note that the two provisions "appear[] to grant the same powers," although courts have relied upon CPLR 2701 (2) more often (5 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 2701.09 [2019]). The outcome in this case is the same regardless of which subdivision is used.	{ "pile_set_name": "FreeLaw" }
42 So.3d 24 (2010) GLENN v. STATE. No. 2008-CT-01551-COA. Supreme Court of Mississippi. August 26, 2010. Petition for Writ of Certiorari Denied.	{ "pile_set_name": "FreeLaw" }
159 F.3d 1354 U.S.v.John Nelson NO. 97-7593 United States Court of Appeals,Third Circuit. July 29, 1998 Appeal From: M.D.Pa. ,No.97cr00038 1 Affirmed.	{ "pile_set_name": "FreeLaw" }
43 Wn. App. 673 (1986) 719 P.2d 583 BAKER BOYER NATIONAL BANK, Appellant, v. RICHARD GARVER, ET AL, Respondents. No. 6404-2-III. The Court of Appeals of Washington, Division Three. May 15, 1986. W.L. Minnick and Minnick, Hayner & Zagelow, for appellant. Gary Schrag, Kristian Hedine, and Reese, Baffney, Schrag & Siegle, for respondent Richard Garver. Stephen Palken and Sorrell & Palken, for respondents Russell and Gregory Garver. MUNSON, J. Baker Boyer National Bank appeals a judgment in which it was surcharged, as trustee, for failing 675 to properly diversify trust assets and for the unauthorized transfer of trust property. It contends the court erred: (1) in finding it failed to adequately diversify trust investments under the prudent person rule; (2) in not reducing the surcharge for the unauthorized transfer of the assets by the value of Richard Garver's life estate; (3) in granting Russell and Gregory Garver attorney fees; and (4) in denying trustee and attorney fees. Richard, Russell, and Gregory cross-appeal. In 1960, Leonard R. Garver executed a will which also created and funded a pour-over trust. The trust instrument named the Bank as trustee and included certain farmland designated in Mr. Garver's will. Pursuant to the will, the testator's wife, Hazel, and son, Richard, received successive life interests in the farmland. The remainder interest in the farmland was given to Russell and Gregory Garver, Richard's sons and Mr. Garver's grandsons. The will further provided if Russell and Gregory had not reached the age of 25 upon Richard's death, the Bank was to hold the real property in trust until they reached that age. Hazel B. Garver, by her will, left Richard a life estate in the residue of her estate including her community interest in the farmland. Upon the death of Richard, the remainder of Hazel's property was to pass in fee to Russell and Gregory. The Bank was to receive this remainder as trustee only if Richard's children were under the age of 25 when Richard died. Leonard Garver died on July 17, 1964; Hazel Garver died on October 18, 1969. Russell and Gregory were under 25 years of age at the time both grandparents passed away. During the probate of these estates, Richard, as executor of each estate, sold two parcels of real property and invested the proceeds, approximately $194,000, primarily in tax-free municipal bonds.[1] Subsequently, Richard petitioned for final accountings 676 and decrees of distribution in each estate. In Leonard's estate, the decree of distribution provided the cash and bonds, with a value of approximately $97,000, were to be held by the Bank in trust during Richard's lifetime, then to be distributed to Richard's children according to the provisions of Leonard's will. In addition, the Bank was retained as trustee over Russell and Gregory's remainder interest in the farmland. In Hazel's estate, the other half of the tax-exempt bonds and cash, also totaling approximately $97,000, were distributed to the Bank as trustee of a newly created Hazel Garver Trust.[2] This decree of distribution provided for the contingent remainder in the remaining real estate to be placed in her trust. Both decrees of distribution provided all income from the trusts was to be paid to Richard during his lifetime. The Bank accepted the trusteeship; each trust contained approximately $97,000 in tax-exempt securities and 846 acres of farmland. During the period of trust administration from 1973 until 1982, the Bank continued to invest in tax-exempt securities, upon the advice of Richard's attorney and his broker. On May 28, 1975, Richard and the Bank as trustee of Leonard's trust conveyed approximately 5.44 acres of trust real estate to Betty Seavy. A correction deed was executed by the same parties in the same capacities in January of 1979. No bank records exist to explain the transaction and no bank officer had any recollection as to why the deeds were executed. No consideration was received for the deed. In 1981, Richard, Russell, and Gregory requested the Bank to sell the bonds held in trust. The proceeds were to be used by Russell and Gregory to purchase Richard's interest in a parcel of real estate entitled the Hughes Ranch. The Bank refused to sell in an unfavorable market 677 and decided to resign as trustee. On March 29, 1982, the Bank requested the court approve its final accounting in each trust and appoint a successor trustee. Russell and Gregory, in answer to the Bank's petition, agreed, along with Richard, to become successor co-trustees. However, Russell and Gregory objected to the final accounting alleging the Bank had mismanaged the two trusts. Following a hearing, the trial court, on June 11, 1982, appointed Richard, Russell, and Gregory as co-trustees, ordered the liquidation of all personal assets with the proceeds to be paid to Richard in exchange for his interest in the Hughes Ranch. The entire portfolio of tax-exempt bonds was sold at a loss of $63,750.[3] Russell and Gregory subsequently amended their answer to the Bank's original petition; they alleged the Bank had failed to adequately diversify and failed to act impartially with respect to their interest as remaindermen. Russell and Gregory also moved to amend their original petition to include a cross claim against Richard. This motion was denied; they filed a motion for discretionary review with this court; that motion was denied. Trial was limited to the Bank's management of the trust assets. The trial court found: (1) the Bank had acted unreasonably in concentrating investments almost exclusively in the tax-exempt, municipal bonds; (2) Russell and Gregory were injured by the Bank's failure to diversify the investment portfolio; (3) the Bank had no authority to transfer the 5.44 acres of farmland from Leonard's trust; and (4) Leonard's will provided for and intended that a vested remainder interest in real property was to be distributed to the trust. However, with respect to Hazel's trust, the remainder interest in farmland was a contingent interest; the Bank was to act as trustee only if Russell and Gregory were under 25 when Richard died. Thus, the Bank could have conveyed only a one-half interest in the 5.44 acres in 1975. 678 Russell and Gregory were awarded damages of $22,950 for the failure to diversify, $1,900 for the unauthorized transfer of the 5.44 acres, and attorney fees and expenses in the amount of $17,732. The Bank, Richard, and Russell and Gregory appeal. APPEAL OF THE BANK First, the Bank contends the court erred in surcharging it, as trustee, $22,950 for investing primarily in fixed-income securities. The Bank asserts it did not have an absolute duty to diversify under the prudent person rule (RCW 30.24.020),[4] but if it did have such a duty, the diversification between the fixed-income, tax-exempt securities and equity investment of real property fulfilled this duty. RCW 30.24.020 codified the prudent person rule: General criterion specified. In acquiring, investing, reinvesting, exchanging, selling and managing property for the benefit of another, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of the foregoing standard, and subject to any express provisions or limitations contained in any particular trust instrument, a fiduciary is authorized to acquire and retain every kind of property, real, personal or mixed, and every kind of investment specifically including but not by way of limitation, debentures and other corporate obligations, and stocks, preferred or common, which men of prudence, discretion and intelligence acquire for their own account. Whether, under the prudent person rule, a trustee is required to diversify trust investments has not been resolved in Washington. See Baldus v. Bank of Cal., 12 Wn. App. 621, 629 n. 11, 530 P.2d 1350, review denied, 85 Wn.2d 1011 (1975). However, the weight of decisional and scholarly 679 authority supports the view the trustee as a prudent person has a duty to diversify.[5] In regard to this obligation, the Restatement (Second) of Trusts § 228 (1959) provides: Except as otherwise provided by the terms of the trust, the trustee is under a duty to the beneficiary to distribute the risk of loss by a reasonable diversification of investments, unless under the circumstances it is prudent not to do so. Comment a to this section explains: The trustee is under a duty to the beneficiary to exercise prudence in diversifying the investments so as to minimize the risk of large losses, and therefore he should not invest a disproportionately large part of the trust estate in a particular security or type of security. It is not enough that each of the investments is a proper investment ... [1] The Bank cites several cases which it contends stand for the proposition there is no absolute duty to diversify trust investments. See, e.g., In re Will of Kilmer, 18 Misc.2d 60, 186 N.Y.S.2d 120, 130-31 (Sur. Ct. 1959); In re Estate of Knipp, 489 Pa. 509, 414 A.2d 1007, 1009 (1980). Baldus, at 626, recognized this split of authority. However, reliance on these cases is misplaced. A close reading of these cases indicates a trustee has a general obligation to diversify, subject to at least two exceptions: (1) an express provision by the settlor relieving the trustee of the duty to diversify, or (2) the circumstances dictate that it is not 680 prudent to diversify. See Restatement (Second) of Trusts § 228, comments c, f (1959). Therefore, we hold a trustee by virtue of the prudent investor rule is under a duty to diversify trust investments. Leonard's trust contained no provisions relieving the Bank of its duty to diversify. Baldus v. Bank of Cal., supra. Likewise, none of the circumstances here would have made it imprudent to diversify. Cf. Commercial Trust Co. v. Barnard, 27 N.J. 332, 142 A.2d 865 (1958) (no duty to diversify where sole investment in tax-exempt securities was best possible investment given high income status of plaintiff income beneficiaries). [2] The Bank contends, however, the trust was diversified between the securities and the equity investment of the real property farmland. The Bank further asserts the Washington Trust Act of 1984 (Laws of 1984, ch. 149; RCW 11.100.010 et seq.) which amended RCW 30.24.010 et seq. supports its contention because RCW 11.100.020[6] sets out the "total asset" approach to investment. RCW 11.100.020 681 was not adopted, however, until after the trial court had rendered its decision in this case. Notwithstanding, the Bank argues legislative intent indicates the 1984 trust act applies retroactively. RCW 11.100.050 provides: "Scope of chapter. [Effective January 1, 1985.] The provisions of this chapter govern fiduciaries acting under wills, agreements, court orders, and other instruments effective before or after January 1, 1985." Contrary to the Bank's contention, the plain language of RCW 11.100.050 specifies the 1984 trust act is effective as of January 1, 1985. Although its provisions apply to instruments created before that time, any new standards of care created thereby only apply from January 1, 1985, forward. Here, the bonds were sold in 1982. Whether RCW 30.24.020 itself implicitly incorporates the "total asset" approach is unnecessary to decide. The trial court expressly found the Bank had not weighed the investment in securities against the investment in the farmland for purposes of diversification. Finding of fact 5 provides, in part: The Bank went beyond the bounds of reasonable judgment in concentrating investments almost exclusively in municipal bonds. Although this court has concluded that the remainder interest in the farmlands could not be considered equity investment by the trustee, if it were the trustee did not at any time make any considered conscious balancing of risk and advantages weighing the amount invested in farmland equity against the amount invested in fixed-income securities. (Italics ours.) [3] While the Bank argues in its reply brief that finding of fact 5 is not supported by substantial evidence, it did not assign error to it in its opening brief. Thus, it is a verity on appeal. State v. Moses, 70 Wn.2d 282, 284, 422 P.2d 775, cert. denied, 389 U.S. 428 (1967); Bayley v. Kane, 16 Wn. App. 877, 560 P.2d 1165 (1977); St. Luke's Evangelical Lutheran Church v. Hales, 13 Wn. App. 483, 534 P.2d 1379 (1975). Notwithstanding, the evidence supports finding of fact 5. The farmland was valued on the Bank's books at $1. 682 There is no evidence of the market value of that land, or that the Bank considered other investments, or made any independent determination other than to follow the advice of Richard's attorney and investment broker. [4] Second, the Bank contends the court erred in computing the amount of surcharge for the improper conveyance of the 5.44 acres in 1975. The Bank maintains the court ignored the value of Richard's life estate, and the surcharge must be discounted by Richard's life expectancy since by the time Russell and Gregory received the land, the one-half remainder interest would have been worth less. This proposition is argued in only one paragraph of the brief; no citation of authority is provided; it will not be considered. State v. Kroll, 87 Wn.2d 829, 838, 558 P.2d 173 (1976); Tokarz v. Frontier Fed. Sav. & Loan Ass'n, 33 Wn. App. 456, 465, 656 P.2d 1089 (1982). We note, however, the Bank produced no evidence to indicate the value of the land would have decreased because of Richard's use. [5] Third, the Bank contends the court erred in granting Russell and Gregory attorney fees and expenses. However, it admits "[t]he rights of the parties to fees will largely depend upon the resolution of the surcharge issue." In Allard v. Pacific Nat'l Bank, 99 Wn.2d 394, 407-08, 663 P.2d 104 (1983), the court found the trustee had breached its fiduciary duty in the sale of trust assets and stated: "[S]ince defendant breached its fiduciary duty plaintiffs should be granted their request to recover all attorney fees expended at both the trial and on appeal on behalf of the plaintiffs ..." Russell and Gregory are entitled to attorney fees and expenses given our conclusion the Bank breached its fiduciary duties and was properly surcharged. Finally, the Bank assigns error to the court's denial of either its trustee or attorney fees. Again, Allard, at 407, supports the court's denial of the fees: "[A] trial court abuses its discretion when it awards attorney fees to a trustee for litigation caused by the trustee's misconduct." The court was correct in denying the Bank its fees. 683 CROSS APPEAL OF RUSSELL AND GREGORY Russell and Gregory cross-appeal contending: (1) the Bank breached its fiduciary duty by not providing them with information about the trust's administration; (2) the amount of the surcharge for the transfer of 5.44 acres was incorrect; (3) the Bank violated the Consumer Protection Act; and (4) the amount of surcharge for the imprudent diversification was incorrect. Initially, Russell and Gregory maintain the Bank breached its fiduciary duty because it did not (1) provide them with information about the trust's administration and (2) inform them about the nonroutine transactions of trust assets. Allard v. Pacific Nat'l Bank, supra, supports their contentions the Bank breached its fiduciary duty of disclosure. However, the determinative issue is whether they were injured, given the Bank's breach of fiduciary duty. Conclusion of law 3 provides: "Russell and Gregory were not damaged by the violations of any duty of disclosure of information owed to them by the bank." We agree Russell and Gregory were not separately injured by this lack of information. Allowing them to recover additional damages for the Bank's failure to disclose would in effect constitute a second recovery for harm already compensated for by the surcharges. Second, Russell and Gregory contend the court erred in calculating the surcharge for the unauthorized transfer of 5.44 acres of trust property. The court found the Bank only had the power to transfer one-half of the interest of the 5.44 acres, i.e., Leonard's one-half community interest in the farmland. Moreover, the court found on the date of the trial the land was worth $800 per acre. Assuming the court was correct in valuing the property at the date of trial, a proper calculation of damages based on these findings would be 5.44 times $800 times one-half, for a total of $2,176. Instead, in conclusion of law 5, the court awarded Russell and Gregory $1,900. Findings of fact 2 and 7 do not logically support a surcharge of $1,900. Rather, if findings of fact 2 and 7 are correct, then the court had no choice but 684 to conclude the surcharge was $2,176. Therefore, the surcharge must be increased by $276. In addition, Russell and Gregory assert they are also entitled to damages for the one-half interest in the 5.44 acres which the trial court ruled was not held in trust. This interest would have eventually passed to them as remaindermen under Hazel's will. The court reasoned since Hazel's community interest was not in trust, the Bank never had legal title to her interest in the property; the Bank could not be held liable for this interest. [6] Although we agree the Bank could not convey title it did not have, it does not follow the Bank should not be held liable for the purported conveyance of Hazel's interest in the 5.44 acres simply because it was not in the trust. The deed purported to transfer the entire fee interest in the 5.44 acres to Ms. Seavy. While we recognize her title to the property is defective, Russell and Gregory nevertheless will be forced to bring a quiet title action against Ms. Seavy who we assume is now in possession of the property. Since the Bank's wrongful transfer created the need for this action, it should be required to compensate for the damages which result from a quiet title action. Wells v. Aetna Ins. Co., 60 Wn.2d 880, 376 P.2d 644 (1962). The court in Wells, at 882, noted: "when the natural and proximate consequences of a wrongful act by defendant involve plaintiff in litigation with others, there may, as a general rule, be a recovery of damages for the reasonable expenses incurred in the litigation, including compensation for attorney's fees." Therefore, we remand this issue to the trial court to determine the amount of damages reasonably incurred by Russell and Gregory in quieting title in the property. [7] Third, Russell and Gregory assign error to the court's determination there was no factual basis for finding a violation of the Consumer Protection Act. RCW 19.86. In bringing a claim under the Consumer Protection Act, the conduct complained of must: (1) be unfair and deceptive; (2) be within the sphere of trade or commerce; and (3) impact the public interest. Haner v. Quincy Farm Chems., 685 Inc., 97 Wn.2d 753, 759, 649 P.2d 828 (1982); Anhold v. Daniels, 94 Wn.2d 40, 45, 614 P.2d 184 (1980). The third requirement, impact the public interest, is shown by evidence the defendant's deceptive acts have the potential for repetition. Jackson v. Harkey, 41 Wn. App. 472, 475, 704 P.2d 687, review denied, 104 Wn.2d 1023 (1985). Assuming arguendo the first two prongs of the test have been met, there is little likelihood of repetition given the facts of this case. The conduct of the Bank was not shown to have extended to a widespread pattern of deceptive practices. See Jackson, at 477. Fourth, Russell and Gregory contend the trial court erred in surcharging the Bank only $22,950 which was based on the court's conclusion a reasonable policy would have been to invest 40 percent of the funds in other investment quality stocks.[7] Mr. Nelson, an investment expert, testified the portfolio should have contained between 40 and 60 percent equity stock. Russell and Gregory contend that 50 percent would be a more appropriate percentage for the court to use in computing the damages. [8] It was within the court's discretion to determine, consistent with the evidence, the extent of the Bank's liability for investing too large an amount in the tax-exempt securities. See 3 A. Scott, Trusts § 228.1, at 1859-60 (3d ed. 1967). A trustee is liable only for such loss as results from the investment beyond the amount which would have been proper to invest. Restatement (Second) of Trusts § 228, comment h (1959). The court's conclusion was within the range which Mr. Nelson testified constituted proper diversification. Therefore, the court did not err in using the conservative figure of 40 percent. See Pennsylvania Co. v. 686 Gillmore, 142 N.J. Eq. 27, 59 A.2d 24 (1948); In re Toel, 180 Misc. 447, 39 N.Y.S.2d 898, 901-02 (1943). [9] Russell and Gregory also assert the court should have computed into the damage award the amount which equity stock appreciated as a whole during the trust period. We agree the court should have considered the lost appreciation in equity securities which would have been realized but for the failure to diversify. The object of awarding damages to Russell and Gregory is to place them in the position they would have been in if the Bank had prudently diversified between tax-exempt and equity securities. Since the court found the Bank should have placed 40 percent of the funds in equity securities (approximately $77,600), the measure of damages should properly reflect the increase in their value. See Restatement (Second) of Trusts §§ 205(c), 207 (1959); Witmer v. Blair, 588 S.W.2d 222, 225 (Mo. Ct. App. 1979). See also G. Bogert, Trusts and Trustees § 701, at 203-07; § 702, at 209-13; § 863, at 48-51 (2d rev. ed. 1982). The court found that the stock equity market, as measured by the broad stock indexes, rose approximately 20 to 22 percent during the trusts' administration. If properly diversified, the trusts should have totaled $171,270 when liquefied.[8] Instead, the trusts totaled approximately $130,250. The correct measure of damages should have been $41,020, not $22,950 as found by the trial court. Therefore, the surcharge is increased by $18,070. 687 CROSS APPEAL OF RICHARD Richard alleges the attempt by Russell and Gregory to amend their answer to assert a claim against him was frivolous and entitled him to attorney fees. RCW 4.84.185. However, Russell and Gregory apparently attempted to amend their answer only after discovering Richard had joined the Bank in conveying the 5.44 acres. Moreover, the commissioner of this court granted the motion for discretionary review after the trial court denied Russell and Gregory's motion to amend. While this court eventually upheld the decision of the trial court, an action by Russell and Gregory is still pending in Walla Walla Superior Court. The actions by Russell and Gregory were not so unwarranted as to be deemed frivolous. Richard further asserts Russell and Gregory acted in bad faith by attempting to amend their answer. As a result, he contends he is entitled to attorney fees based on equitable grounds. PUD 1 v. Kottsick, 86 Wn.2d 388, 545 P.2d 1 (1976). However, given the facts presented above, the record is devoid of any evidence of bad faith on their part. Richard's request for attorney fees is denied. The judgment is affirmed in part, remanded in part, and reversed in part. The total amount of damages is increased by $18,346 ($41,020 - $22,950 = $18,070 + $276). THOMPSON, J., concurs. GREEN, C.J. (dissenting) Although Baker Boyer National Bank failed to assign error to finding of fact 5 in its opening brief, as required by RAP 10.3(g), it did so in its reply brief. Since the briefs of both parties deal with the matters contained in this finding, there is no prejudice to any party by considering the merits of the assignment of error. Therefore, I respectfully dissent. Finding of fact 5 states: The liquid assets and intangibles in each trust consisted of cash and various securities. During the period of trust administration, the bank invested basically in tax 688 exempt securities, the intent and purpose of which was to increase the income yield to Garver. The basis for purchasing tax exempt municipal bonds was apparently Garver's counsel's word or his broker Shield's word. The specific investments placed or held in trust were made either by Garver or by the bank. The bank went beyond the bounds of reasonable judgment in concentrating investments almost exclusively in municipal bonds. Although this Court has concluded that the remainder interest in the farm lands could not be considered equity investments by the trustee, if it were the trustee did not at any time make any considered conscious balancing of risks and advantages in weighing the amount invested in farm land equity against the amount invested in fixed income securities. In my view the court erred when it found "[t]he bank went beyond the bounds of reasonable judgment in concentrating investments almost exclusively in municipal bonds." In making this finding, the court eliminated consideration of farmland which it found was distributed to the trusts from the estates of Leonard R. Garver and Hazel Garver. This land was the primary asset of a total estate valued for federal tax audit purposes at over $860,000. The decedents' son, Richard, received a life estate in the land and the remainder to his sons, Russell and Gregory, to vest when they attained age 25. Tax-exempt bonds valued at $194,500 were also distributed to the trusts. In deciding the question of whether the trust estate was prudently diversified, the court excluded the land from its consideration. In doing so, I believe the court erred. Restatement (Second) of Trusts § 227, comment o, at 535 (1959).[9] It is evident the Bank was in the delicate position of balancing the conflicting interests of the life tenant, who needed tax-exempt income, and the remaindermen, who wanted the principal to appreciate in value. If the Bank is 689 prohibited from considering the land in balancing the beneficiaries' interests, then it is impossible for the Bank to satisfy the best interests of the beneficiaries as they are in direct conflict. As a consequence, any action detrimental to either interest could be argued imprudent by the other party. Here, the record shows that Richard's income as a life tenant placed him in a tax bracket where he needed tax-exempt income to avoid higher taxes. On the other hand, the remaindermen would eventually receive the farmland that could appreciate in value keeping pace with inflation, and bonds that would pay off at their face value about the time of expiration of Richard's life expectancy. In fact, some of the farmland by the time of trial had already appreciated from $200 per acre to $800 (finding of fact 7). According to its trust officers, the Bank, in balancing the conflicting interests of the beneficiaries, decided the remaindermen had a diversified portfolio of bonds and valuable land and concluded the bonds should be retained to satisfy the life estate's need for tax-exempt income. Further, any sale of the bonds would have been at a loss to the estate and whether a reinvestment would have recouped the loss is speculative. To form a contrary opinion is to be governed by hindsight which, without more, is insufficient to establish abuse of discretion by the Bank. Baldus v. Bank of Cal., 12 Wn. App. 621, 530 P.2d 1350, review denied, 85 Wn.2d 1011 (1975). In fact, the bonds were sold, pursuant to court order and at the beneficiaries' request, at a substantial loss. Considering all of these circumstances, I conclude the Bank acted prudently in dealing with these conflicting interests. My conclusion coincides with the total-asset approach adopted in RCW 11.100.060 for measuring whether a trustee prudently managed trust property. The court also found the Bank did not "make any considered conscious balancing of risks and advantages in weighing the amount invested in farm land equity against the amount invested in fixed income securities." The testimony 690 of the trust officers supports a finding to the contrary. Even if the court's finding is correct, the underlying question is whether the fact of diversification between the land and the tax-exempt bonds was prudent. Whether there was a conscious balancing evidenced in the record is immaterial where prudent diversification exists in fact. As I have indicated, the farmland should have been considered an equity investment that would pace inflation and counterbalance the bonds that produced tax-exempt income. Since this portion of the court's finding was interlineated at the time of entry, it must have influenced the court's conclusions of law and to that extent it was error. Further, the findings were based primarily on the testimony of Mr. Nelson, a full-service investment broker from Seattle, who rejected consideration of the farmland in rendering his expert opinion as to whether the Bank properly diversified the trust estate. Since I have concluded all of the assets of the trust, including the farmland, should have been considered in making this determination, his testimony should be disregarded. The only remaining expert testimony is that of Mr. Brockhouse, Vice-President Trust Counsel for Seattle-First National Bank, Seattle, who testified the farmland should have been considered and Baker Boyer National Bank had prudently diversified the trust estate. His testimony supports my conclusion and governs the diversification issue. For these reasons, I would reverse the damage award based on imprudent trust investment and adjust the award of attorney fees accordingly. Reconsideration denied June 12, 1986. Review denied by Supreme Court September 2, 1986. NOTES [1] The propriety of this transaction is the subject of another lawsuit between Richard and his sons still pending in Walla Walla Superior Court. [2] The interesting issue of how Richard set up a trust in his mother's name, years after her death, and named himself income beneficiary is apparently also part of the pending action. [3] The issue of whether the court's action constituted a "forced sale" is not raised on this appeal. [4] Laws of 1955, ch. 33, § 30.24.020, p. 210. RCW 30.24.020 was amended by Laws of 1984, ch. 149 and recodified as RCW 11.100.020, effective January 1, 1985. [5] Restatement (Second) of Trusts §§ 227, 228 (1959); 3 A. Scott, Trusts § 228 (3d ed. 1967 & Supp. 1984); G. Bogert, Trusts and Trustees § 612 (2d rev. ed. 1980); In re Estate of Collins, 72 Cal. App.3d 663, 139 Cal. Rptr. 644 (1977); Steiner v. Hawaiian Trust Co., 47 Hawaii 548, 393 P.2d 96 (1964); In re Estate of Sanders, 304 Ill. App. 57, 25 N.E.2d 923 (1940); Indiana Trust Co. v. Griffith, 176 Ind. 643, 95 N.E. 573 (1911); Security Trust Co. v. Appleton, 303 Ky. 328, 197 S.W.2d 70 (1946); First Nat'l Bank v. Hyde, 363 S.W.2d 647 (Mo. 1962); Mazzola v. Myers, 363 Mass. 625, 296 N.E.2d 481 (1973); In re Irrevocable Inter Vivos Trust, 305 N.W.2d 755 (Minn. 1981); Commercial Trust Co. v. Barnard, 27 N.J. 332, 142 A.2d 865 (1958); Knox Cy. v. Fourth & First Nat'l Bank, 181 Tenn. 569, 182 S.W.2d 980 (1944); Will of Mueller v. Mueller, 28 Wis.2d 26, 135 N.W.2d 854, 24 A.L.R.3d 714 (1965). See also Annot., 24 A.L.R.3d 730 (1969); In re Trust of Dwight, 204 Misc. 204, 128 N.Y.S.2d 23 (1952); In re Estate of Newhoff, 107 Misc.2d 589, 435 N.Y.S.2d 632 (Sur. Ct. 1980). [6] RCW 11.100.020 provides: "(1) A fiduciary is authorized to acquire and retain every kind of property. In acquiring, investing, reinvesting, exchanging, selling and managing property for the benefit of another, a fiduciary, in determining the prudence of a particular investment, shall give due consideration to the role that the proposed investment or investment course of action plays within the overall portfolio of assets. In applying such total asset management approach, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, ... "(2) ... the following are among the factors that should be considered by a fiduciary in applying this total asset management approach: "... "(g) Other assets of the beneficiary or beneficiaries including earning capacity; ... "... "Within the limitations of the foregoing standard, and subject to any express provisions or limitations contained in any particular trust instrument, a fiduciary is authorized to acquire and retain every kind of property, real, personal, or mixed, and every kind of investment specifically including but not by way of limitation, debentures and other corporate obligations, and stocks, preferred or common, which persons of prudence, discretion, and intelligence acquire for their own account." (Italics ours.) [7] The court reached the result of $22,950 by multiplying the portfolio loss of $63,750 by 90 percent (giving the Bank a 10 percent credit for gains realized or built into the portfolio's value by virtue of the fact the bonds were purchased at discount) and then multiplying by the 40 percent ($63,750 x 90 percent x 40 percent = $22,950). The record does not reflect whether the court chose the lower percentage because of the "forced sale" requested by the beneficiaries and ordered by the court; it might be one explanation. [8] If the Bank had invested in a reasonably prudent manner, the loss in tax-exempt bonds would be calculated as follows: 60 percent of $194,000 is $116,400. Since this figure would be discounted 10 percent, only $104,760 would have been invested in bonds. Using the ratio of what was actually invested, i.e., $174,600 ($194,000 discounted by 10 percent) and the actual loss of $63,750, the expected loss from an investment of $104,760 would be $38,250 ($63,750 ÷ $174,600 x $104,760 = $38,250). If 40 percent had been invested in equity securities, the 20 percent gain in value would have generated an increase of $15,520. (The 10 percent discount would not apply. Thus, $194,000 x .40 = $77,600 x .20.) Hence, the res should have had a value of approximately $171,270. However, the securities were liquefied for approximately $130,250 ($194,000 - $63,750). Thus, the Bank through poor investment practice damaged the estate $41,020. [9] Comment o states that among the matters a trustee should consider in selecting a given investment are: "(6) the aggregate value of the trust estate and the nature of the other investments; ... (8) the other assets of the beneficiary or beneficiaries including earning capacity". This principle has been incorporated into RCW 11.100.020.	{ "pile_set_name": "FreeLaw" }
134 F.3d 368 Richardv.Drewry NO. 96-11421 United States Court of Appeals,Fifth Circuit. Dec 11, 1997 Appeal From: N.D.Tex. ,No.196CV273BA 1 Dismissed. Conference Calendar	{ "pile_set_name": "FreeLaw" }
875 S.W.2d 691 (1994) Ruben and Anita HERNANDEZ, Petitioners, v. GULF GROUP LLOYDS, Respondent. No. D-3795. Supreme Court of Texas. Argued November 30, 1993. Decided April 28, 1994. Larry Zinn, Phillip D. Hardberger, San Antonio, for petitioners. Mary Mishtal, San Antonio, for respondent. 692 SPECTOR, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, and GONZALEZ, HIGHTOWER, HECHT, DOGGETT, CORNYN and GAMMAGE, Justices, join. In this cause, we consider whether an insurer may deny an uninsured/underinsured motorist claim on the basis of a "settlement without consent" exclusion clause absent any showing that the settlement prejudiced the insurer. The trial court rendered judgment in favor of the insureds. The court of appeals reversed, reasoning that the insureds had violated their insurance contract by settling with the underinsured motorist without the insurer's consent. 876 S.W.2d 162. We hold that an insurer may escape liability on the basis of a settlement-without-consent exclusion only when the insurer is actually prejudiced by the insured's settlement with the tortfeasor. This case was tried on the following stipulated facts. On November 21, 1987, Elizabeth Hernandez was killed when the car in which she was a passenger flipped over. The sole proximate cause of the accident was the negligence of the driver of the car, Charles McCullough, Jr. At the time of the accident, McCullough was nineteen years old and his only asset was a $25,000 liability policy with State Farm Mutual Automobile Insurance Company. Elizabeth Hernandez was covered by her parents' insurance policy with Gulf Group Lloyds. That policy included uninsured/underinsured motorist coverage in the amount of $100,000. The damages suffered by Elizabeth Hernandez and her parents exceeded $125,000. Six weeks after the accident, the Hernandezes, without the consent of Gulf, entered into a settlement with McCullough for the limits of McCullough's State Farm policy. On March 30, 1990, the Hernandezes sought to recover from Gulf under the underinsured motorist coverage. Gulf denied coverage based upon the Hernandezes' failure to obtain its consent before settling with McCullough.[1] After a bench trial, the trial court rendered judgment for the Hernandezes in the amount of $100,000 (the amount of the underinsured motorist policy), plus pre-judgment interest, post-judgment interest, and attorney's fees. In its conclusions of law, the trial court stated that Gulf had suffered no material prejudice because of the Hernandezes' failure to comply with the settlement-without-consent exclusion, and that invocation of the exclusion would deprive the Hernandezes of protection required by the Texas Uninsured/Underinsured Motorist Statute, TEX. INS.CODE ANN. art. 5.06-1 (Vernon 1981). The court of appeals disagreed with the latter conclusion, and thus reversed the trial court's judgment and rendered a take-nothing judgment against the Hernandezes. 876 S.W.2d 162. The Hernandezes do not dispute the validity of settlement-without-consent exclusions. See Guaranty County Mut. Ins. Co. v. Kline, 845 S.W.2d 810 (Tex.1992). They argue, however, that such an exclusion is unenforceable absent a showing by the insurer that it has been prejudiced by an insured's failure to obtain consent before settling with an uninsured or underinsured motorist. We agree. Insurance policies are contracts, and as such are subject to rules applicable to contracts generally. See Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987); First Texas Prudential Ins. Co. v. Ryan, 125 Tex. 377, 82 S.W.2d 635, 637 (1935). A fundamental principle of contract law is that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform. See Jack v. State, 694 S.W.2d 391, 398-99 (Tex.App.San Antonio 1985, writ ref'd n.r.e.) (citing Mead v. Johnson Group, Inc., 615 S.W.2d 685, 689 (Tex. 1981)). 693 In determining the materiality of a breach, courts will consider, among other things, the extent to which the nonbreaching party will be deprived of the benefit that it could have reasonably anticipated from full performance. See Restatement (Second) of Contracts § 241(a) (1981); Advance Components, Inc. v. Goodstein, 608 S.W.2d 737 (Tex.Civ.App.Dallas 1980, writ ref'd n.r.e.).[2] The less the non-breaching party is deprived of the expected benefit, the less material the breach. In the context of an underinsured motorist claim, there may be instances when an insured's settlement without the insurer's consent prevents the insurer from receiving the anticipated benefit from the insurance contract; specifically, the settlement may extinguish a valuable subrogation right. Cf. Liberty Mut. Ins. Co. v. Cruz, (Tex.1994) (insured's failure to provide notice of suit prejudiced insurer as a matter of law).[3] In other instances, however, the insurer may not be deprived of the contract's expected benefit, because any extinguished subrogation right has no value. In the latter situationwhere the insurer is not prejudiced by the settlementthe insured's breach is not material. We conclude, therefore, that an insurer who is not prejudiced by an insured's settlement may not deny coverage under an uninsured/underinsured motorist policy that contains a settlement-without-consent clause.[4] Applying this materiality principle to the facts of this case, we conclude that the Hernandezes' failure to obtain Gulf's consent before settling with McCullough was not a material breach. Gulf stipulated that it knew of no case in which it has refused its consent to settle a claim when an underinsured driver has tendered the full limits of his or her policy. The parties stipulated that McCullough had no assets other than the $25,000 State Farm policy, and that he did not believe his financial situation would change in the foreseeable future; and Gulf further stipulated that it "has not incurred any financial losses ... with regard to its subrogation 694 rights by the failure of the [Hernandezes] to obtain [its] consent before settling with McCullough and releasing him from all liability." Gulf, therefore, remains in the same position it would have occupied had the Hernandezes complied with the settlement-without-consent clause.[5] Since Gulf has not been prejudiced by the Hernandezes' breach, the breach is not material, and Gulf therefore is not excused from its obligation to perform under the contract. Because the stipulated facts establish as a matter of law that Gulf was not prejudiced by the Hernandezes' settlement with McCullough, Gulf may not escape liability by invoking the settlement-without-consent exclusion. We therefore reverse the judgment of the court of appeals and affirm the trial court's judgment in favor of the Hernandezes. ENOCH, Justice, dissenting. If this were a breach of contract case, I would agree that for Gulf Group to avoid its duty to cover the Hernandezes' underinsured claim, it would have to show a loss of "expected benefit." However, this case is not about a breach of contract. This case is about coverage. The insuring agreement states: This insurance does not apply: a) to bodily injury or property damage with respect to which the insured, ..., without written consent of the company, make[s] any settlement with any person... who may be legally liable therefore.... The Hernandezes raise four points of error in this Court. All four points, though, ask one question, may an insurance company that is not materially prejudiced by a settlement deny coverage under an uninsured/underinsured motorist policy that contains a consent to settle exclusion. In support of their position, the Hernandezes argue that the exclusion is inconsistent with the purposes of the Texas Uninsured or Underinsured Motorist statute, Tex.Ins.Code Ann. art. 5.06-1 (Vernon 1981). The Court is correct in recognizing that the other states that have addressed this issue, and that have "imposed a prejudice requirement," have done so "primarily on public policy grounds." See 875 S.W.2d 693, n. 4. And in this context, this Court has already addressed the Hernandezes' argument. Guaranty County Mutual Ins. Co. v. Kline, 845 S.W.2d 810 (Tex.1992). Guaranty held that "the settlement clause is clearly consistent with, and indeed advances the purpose of article 5.06-1(6)." Id. at 811. Implicit in the acceptance of this consent to settle exclusion is the idea that the insurance company might not be prejudiced and that an inequitable result might occur. See Members Mut. Ins. Co. v. Cutaia, 476 S.W.2d 278 (Tex.1972). While Cutaia involved a notice of claim provision, rather than a settlement clause, the issue was whether to impose a prejudice requirement. In refusing to impose a prejudice requirement, this Court stated that even though an injustice might occur by disallowing an otherwise valid claim, this Court should not overreach its boundaries and imply new standards into insurance contracts. Id. at 281. This Court has consistently upheld consent to settle exclusions. E.g., Kline, 845 S.W.2d at 811; Ford v. State Farm Mut. Auto. Ins. Co., 550 S.W.2d 663, 665 (Tex.1977); Dairyland County Mut. Ins. Co. v. Roman, 498 S.W.2d 154, 159 (Tex.1973); see also, Huttleston v. Beacon Nat'l Ins. Co., 822 S.W.2d 741, 742 (Tex.App.Fort Worth 1992, writ denied). Among these cases, there were undoubtedly insurance companies that were not prejudiced, but the point of the consent to settle exclusion is to not usurp the insurance companies' subrogation rights. In this case, when an insured person asks for consent to settle, Gulf conducts a thorough financial check of the motorist to ensure that he cannot satisfy a judgment. It cannot be gainsaid that most insureds do not have the resources to conduct such an investigation. 695 Irrespective of the stipulations,[1] what the Hernandezes are asking this Court to do is allow all insureds to settle as quickly as possible with the person at fault, then, years later (two years in this case) make a claim against their underinsured motorists policy. Without the claim, the insurance company is unaware that it needs to investigate the negligent person and determine whether or not he is judgment proof. Concomitantly, how will the insurance company prove prejudice two years after the accident, not only faced with trying to locate the negligent party, but without the aid of civil process to assist in discovering the tortfeasor's assets? This approach is not the way in which the uninsured/underinsured motorist provision was designed to work. For the above reasons, I would affirm the judgment of the court of appeals. I therefore dissent. NOTES [1] The insurance contract between the Hernandezes and Gulf Group Lloyds contained the following settlement-without-consent clause: This insurance does not apply: a) to bodily injury or property damage with respect to which the insured, his legal representative or any person entitled to payment under this insurance shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor[.] [2] The other factors courts consider in determining the materiality of a breach are: (i) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (ii) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (iii) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (iv) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. Restatement (Second) of Contracts § 241 (1981). [3] Cruz involved an insurance policy provision that required the insured to provide notice of suit. In spite of this provision, the insurer in Cruz did not receive notice of suit until 41 days after the entry of a $3.2 million default judgment. The insured's failure to comply with the notice provision prejudiced the insurer by denying its opportunity to answer for the insured and litigate the merits of the suit or to appeal any adverse judgment. [4] Most other jurisdictions presented with this issue have likewise imposed a prejudice requirement, primarily on public policy grounds. See Thompson v. American States Ins. Co., 687 F.Supp. 559, 564 (M.D.Ala.1988); Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637, 640 (1992); Rafferty v. Progressive American Ins. Co., 558 So.2d 432, 433 (Fla.App.1990); Marsh v. Prestige Ins. Group, 58 Ill.App.3d 894, 16 Ill.Dec. 390, 392, 374 N.E.2d 1268, 1270 (1978); Kapadia v. Preferred Risk Mut. Ins. Co., 418 N.W.2d 848, 852 (Iowa 1988); MacInnis v. Aetna Life & Casualty Co., 403 Mass. 220, 526 N.E.2d 1255, 1257-58 (1988); Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E.2d 21, 27 (1989); Wheeler v. Nationwide Mut. Ins. Co., 749 F.Supp. 660, 663 (E.D.Penn.1990). But see Stevens v. Merchants Mut. Ins. Co., 135 N.H. 26, 599 A.2d 490 (1991) (enforcement of settlement-without-consent term did not depend upon showing of prejudice to insurer). Cf. Newark Ins. Co. v. Ezell, 520 S.W.2d 318 (Ky.Ct.App.1975) (showing of prejudice required in order for insurer to invoke a "consent to sue" clause as a basis for denying uninsured motorist benefits); Bazinet v. Concord Gen. Mut. Ins. Co., 513 A.2d 279 (Me.1986) (stating that when an insurer's subrogation rights are unaffected by a settlement, courts may not permit settlement-without-consent clauses to defeat the claims of the insured); Tegtmeyer v. Snellen, 791 S.W.2d 737, 740 (Mo.App.1990) (insurer who refused to consent to a settlement for the full limits of a tortfeasor's liability policy was not prejudiced and therefore could not escape liability under a settlement-without-consent exclusion); Thiringer v. American Motor Ins. Co., 91 Wash.2d 215, 588 P.2d 191, 193 (1978) (showing of prejudice required in order for insurer to deny personal injury protection coverage on the basis that an insured's settlement failed to comply with a subrogation provision). [5] Gulf does not suggest that it has been prejudiced by the passage of time between the Hernandezes' settlement and the filing of their claim. To the extent that such a delay might, in other circumstances, increase an insurer's difficulties in recovery, an insured may face a claim that the delay itself caused prejudice. Thus, contrary to the suggestion of the dissenting opinion, an insured's interests are not served by postponing the filing of the claim until years after a settlement. [1] The court should additionally be wary of taking a position founded upon public policy considerations, which thus affects all parties to insuring agreements, in a case literally conceded away by one of the litigants.	{ "pile_set_name": "FreeLaw" }
79 Cal.App.3d 314 (1978) 144 Cal. Rptr. 773 EMMA KINGSBURY, Plaintiff and Appellant, v. TEVCO, INC., et al., Defendants and Respondents. Docket No. 16475. Court of Appeals of California, Third District. March 10, 1978. 316 COUNSEL Milton L. McGhee and Richard Keith Corbin for Plaintiff and Appellant. Elliot D. Pearl and Franklin G. Gumpert for Defendants and Respondents. OPINION REGAN, J. The trial court sustained, without leave to amend, a general demurrer to plaintiff's first amended complaint. The complaint is based upon an alleged erroneous survey made pursuant to the order of the court and "the agreement of the parties" by Tevco, acting by and through defendant Roecker, in a previous action in superior court captioned Russell R. Ford v. Emma J. Kingsbury, No. 210857, seeking an injunction against plaintiff here and involving a boundary line dispute. The court, after a trial, rendered judgment that the Tevco survey was true and correct and marked the boundary line between the litigants contiguous lands. The judgment enjoined plaintiff Kingsbury from encroaching on the Ford land. In the action before us on appeal, one of the allegations in the complaint is that at the time Arthur Roecker was making the survey for the court in the earlier boundary dispute case plaintiff herein "verbally informed him of the error he was making ... but the said Arthur Roecker refused to change his survey ... and verbally advised plaintiff that his concern was to make a survey according to the wishes of defendant RUSSELL R. FORD." Defendants state the demurrer was properly sustained as plaintiff cannot state a cause of action and that no amendment to the complaint would allow plaintiff relief under any legal or equitable theory. 317 Plaintiff contends the first cause of action does not speak exclusively in tort, but states facts sufficient to indicate that she is entitled to relief on some theory, hence, sustaining the demurrer to the first amended complaint without leave to amend was improper. It is true, as argued by plaintiff, that the form of action is immaterial if a plaintiff has stated facts showing an entitlement to relief in law or equity. (See, e.g., Lacy v. Laurentide Finance Corp. (1972) 28 Cal. App.3d 251, 257-258 [104 Cal. Rptr. 547]; Jaffe v. Carroll (1973) 35 Cal. App.3d 53, 57 [110 Cal. Rptr. 435].) (1) However, plaintiff's argument that all the elements of a cause of action based on breach of contract are present in the first cause of action as against the defendants (Tevco, Inc., and Roecker) is not well taken. Contrary to plaintiff's assertions on appeal, the complaint shows no agreement between plaintiff and defendants to make a survey. It was made by order of the court, which commissioned defendant Tevco, Inc., to make a survey to establish the true and correct boundary, and for use of the court. The fact that the parties consented to the selection of these particular surveyors does not make for privity of contract, nor does the fact that plaintiff was subsequently ordered to pay the $400 fee for the survey. (2a) Neither does the first cause of action state facts for relief based on the equitable principle of extrinsic fraud or mistake, as argued by plaintiff. She relies on the allegation, which we have set forth above, that she told Arthur Roecker he was making an error but he refused to listen to her and said he was concerned with making a survey in accordance with the wishes of Russell R. Ford. This alleged statement was made by Roecker before the end of the trial in the first case and plaintiff herein (who was defendant in that trial) had ample opportunity to bring this matter to the full attention of the trial court at the earlier trial. (See Evid. Code, § 732.) If she did so, the court was apparently not impressed with her position, and she did not appeal. Even if she did not bring the matter of the alleged improperly conducted survey to the attention of the trial court, she could have done so, and she may not use it now in a new case to collaterally attack the judgment. She has in fact run afoul of the doctrine of collateral estoppel in connection with the first cause of action, whether looked upon as sounding in the tort of negligence or some more esoteric theory of equitable relief based on extrinsic fraud or mistake. In the original action she had the opportunity to show negligence, fraud, deceit or mistake as to the survey. There was a final judgment on the merits of the matter of the proper boundary line. This judgment, based as it was, in whole or in large part, upon the accuracy and validity of the 318 survey made by defendants Tevco, Inc., and Roecker, carried implicit findings that the survey was neither negligently, fraudulently, deceitfully nor mistakenly made. (See Price v. Sixth District Agricultural Assn. (1927) 201 Cal. 502, 511 [258 P. 387]; Sutphin v. Speik (1940) 15 Cal.2d 195, 202 [99 P.2d 652]; Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 724 [285 P.2d 636].) (3) Collateral estoppel will apply as to all issues which were in an earlier case "`... even though some factual matters or legal arguments which could have been presented were not.'" (Original italics.) (Bleeck v. State Board of Optometry (1971) 18 Cal. App.3d 415, 429 [95 Cal. Rptr. 860]; see also Kronkright v. Gardner (1973) 31 Cal. App.3d 214, 216-217 [107 Cal. Rptr. 270]; Kelley v. Kelley (1977) 73 Cal. App.3d 672, 677 [141 Cal. Rptr. 33].) (2b) Moreover, both as to the first cause of action (negligence) and as to the second cause of action (slander of title) it would be essential for plaintiff to prove that the survey line was incorrect. If it were correct, there could, ipso facto, have been neither negligence not slander of title in filing the (allegedly) incorrect survey. The survey (boundary) was plainly an issue of fact actually litigated in the prior action. It follows that the collateral estoppel rule we have been discussing, which is an aspect of the doctrine of res judicata or estoppel by judgment, is a bar. (See Todhunter v. Smith (1934) 219 Cal. 690, 695 [28 P.2d 916]; see generally 4 Witkin, Cal. Procedure (2d ed. 1971) Judgment, § 197, pp. 3335-3336; Rest., Judgments, § 68.) With respect to the statutes of limitations as to both causes of action, it is unnecessary for us to decide whether either is barred by such statutes. The trial court's ruling sustaining the demurrer that the first amended complaint failed to state facts sufficient to constitute a cause of action for which relief can be granted was sound (Code Civ. Proc., § 430.10) and, by stating the ground, the trial court complied with section 472d of the Code of Civil Procedure. The courts have made it clear that any proper and sufficient ground properly stated is enough. (See Weinstock v. Eissler (1964) 224 Cal. App.2d 212, 225 [36 Cal. Rptr. 537].) (4) A judgment of dismissal based on the sustaining of a demurrer without leave to amend brings into play the exercise of judicial discretion and is tested on appeal by the question of abuse of such discretion. A general demurrer may be sustained without leave to amend where it is probable from the nature of the complaint and the previous unsuccessful attempt to plead that the plaintiff cannot state a cause of action. To do so 319 does not constitute an abuse of discretion. (See 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, §§ 847, 848, pp. 2451-2452.) This is such a case. The judgment is affirmed. Puglia, P.J., and Evans, J., concurred. Appellant's petition for a hearing by the Supreme Court was denied May 25, 1978.	{ "pile_set_name": "FreeLaw" }
626 F.Supp. 127 (1985) George SQUILLACOTE, Martin M. Arlook, Louis V. Baldovin, Jr., Harold A. Boire, Michael M. Dunn, Arthur Eisenberg, Emil C. Farkas, Robert S. Fuchs, Bernard Gottfried, Roger W. Goubeaux, Thomas C. Hendrix, Peter W. Hirsch, Wilford W. Johansen, Bernard Levine, William T. Little, Thomas W. Seeler, Henry Shore, Daniel Silverman, Joseph H. Solien, Robert J. Wilson and Glenn A. Zipp, on their own behalf and on behalf of all persons similarly situated, Plaintiffs, v. The UNITED STATES of America, Defendant. Civ. A. Nos. 81-C-1553, 85-C-1567. United States District Court, E.D. Wisconsin. December 17, 1985. 128 Kevin M. Forde and Katrina Veerhusen, Kevin M. Forde, Ltd., Richard J. Prendergast, Richard J. Prendergast, Ltd., Chicago, Ill., for plaintiffs. Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., Judith F. Ledbetter and Arthur R. Goldberg, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant. DECISION AND ORDER REYNOLDS, Chief Judge. Plaintiffs commenced their original class action lawsuit alleging that members of the Senior Executive Service ("SES") had been underpaid from July 13, 1979 through September 30, 1981. This court granted the government's motion for summary judgment on all three counts. Squillacote v. United States, 562 F.Supp. 338 (E.D.Wis. 1983). The Seventh Circuit reversed this Court's decision as to the second and third counts, holding that the plaintiffs were entitled to recover for the period running from October 1, 1979 until September 30, 1981. Squillacote v. United States, 739 F.2d 1208 (7th Cir.1984), reh. denied, 747 F.2d 432, cert. denied, ___ U.S. ___, 105 S.Ct. 2021, 85 L.Ed.2d 302 (1985). The court of appeals remanded the case for proceedings consistent with its opinion, and on December 6, 1984, this Court entered judgment in favor of the plaintiffs. The parties disagree about the effect of the circuit court's opinion as to two issues, and the plaintiffs' counsel have applied for an award of attorneys' fees and costs. In addition, at a hearing held November 15, 1985, this Court certified a second class action involving the same dispute between the parties for the first three months of fiscal year 1982, Squillacote v. United States, No. 85-C-1567 (E.D.Wis., filed Nov. 15, 1985), (Squillacote II), and ordered that the second action be consolidated with the original action. (Squillacote I). Pursuant to the parties' stipulation, the Court immediately entered judgment as to the first count of the Squillacote II complaint. Count II of that complaint involves the same disputed issues that are now before this court in Squillacote I, and the parties have agreed that the government shall not be required to respond to that complaint until the matters in dispute in Squillacote I have been fully litigated. The parties have fully briefed the issues that are in dispute. They are: (1) whether class members who were in pay grades SES-1, SES-2, and SES-3 should have had their fiscal year 1981 pay frozen at what they should have been paid on September 30, 1980, regardless of what their scheduled rate of pay for fiscal year 1981 was, or whether their fiscal year 1981 pay should have been what their scheduled rate of pay was for 1981, subject to the limitation that such rate could not exceed that paid for Executive Schedule Level IV; and (2) whether sovereign immunity shields the government from an award to the plaintiffs of post-judgment interest from the date of this court's December 6, 1984, judgment. Finally, plaintiffs' counsel have presented the court with a detailed analysis of their fees and costs in this matter and the period for class members to comment on that application has expired. The court will decide the questions in the order they are presented. BACK PAY FOR FISCAL YEAR 1981 The answer to this question is determined by the Seventh Circuit's opinion in Squillacote I, 739 F.2d at 1208, and three resolutions passed by Congress during fiscal year 1981. Pub.L. No. 96-369, 94 Stat. 1351 (1980); Pub.L. No. 96-536, 94 Stat. 3166 (1980); Pub.L. No. 97-12, 95 Stat. 14 (1980). The parties disagree as to how these authorities answer the question presented. 129 In Squillacote I, the court of appeals held, among other things, that the resolutions listed above "were enacted during FY 1981 for the purpose of freezing federal employees' salaries at rates payable on September 30, 1980." 739 F.2d at 1219. The court also found that in fiscal years 1980 and 1981 the government had improperly capped plaintiffs' pay at the lower rates paid for Executive Schedule Level V rather than at the higher rate payed for Executive Schedule Level IV. 739 F.2d at 1219. This court must determine if class members whose pay had not yet reached the Level IV cap as of September 30, 1980, were entitled to receive their scheduled increase in pay up until the point it hit the Level IV cap. The government points to the Seventh Circuit's language in Squillacote I that federal employees' fiscal year 1981 salaries were to be frozen "at rates payable on September 30, 1980," 739 F.2d at 1219, and argues that means that SES members are limited to what they should have been receiving as of that date. The government also claims that Congress intended to freeze salaries, and that allowing plaintiffs raises would have been contrary to this intent. Plaintiffs argue that the matter is governed by the doctrine of res judicata and direct this court's attention to that portion of the court of appeals' decision stating "that plaintiffs' salaries for FY 1981 were frozen at improper rates, to the extent that the plaintiffs' salaries were frozen at Executive Schedule level V rates rather than at rates for Executive Schedule level IV," 739 F.2d. at 1219, and the fact that this court's judgment of December 6, 1984, contained similar language. The plaintiffs contend that the freeze at September 30, 1985, rates does not kick in until the class member has reached the Executive Schedule level IV ceiling. Thus, class members whose rates of pay in 1980 had not yet reached the cap would have been entitled to receive their scheduled 1981 raises up until the point the scheduled rate equalled the Executive Schedule level IV cap. The controlling resolutions incorporate a House Resolution that froze SES fiscal year 1981 salaries at "the rate (or maximum rate, if higher) of salary or basic pay payable for such office or position for September 30, 1980...." H.R. 7593, § 306(a) (1980). The government argues that the phrase "or maximum rate, if higher" can only be interpreted to mean that no person can be paid more than his scheduled rate or the maximum rate if that person's salary has already reached the limit. The government's reading of the statute is unreasonable. The plaintiffs argue that the question has already been conclusively decided and point out that the government's position is inconsistent with its own previous payment practices the Office of Personnel Management raised the salaries of certain SES members above that which they were receiving on September 30, 1980. More importantly, the plaintiffs correctly state that if Congress had merely intended to freeze salaries at whatever level the employee received on September 30 of 1980, then the reference to the maximum rate would have been superfluous. This court therefore finds that SES personnel were entitled to be paid their scheduled rates up to the Executive Schedule level IV cap. POST-JUDGMENT INTEREST Plaintiffs also seek to recover interest on this court's December 6, 1984, judgment. Although equitable considerations favor plaintiffs' position, the government points out that absent an express waiver of its sovereign immunity it is not liable for any post-judgment interest. Plaintiffs' attempts to find such authority have been unsuccessful. Plaintiffs' contention that 28 U.S.C. § 1961 provides an independent waiver of immunity for post-judgment interest is unsupported by either that statute or case law. Arvin v. United States, 742 F.2d 1301 (11th Cir.1984); Holly v. Chasen, 639 F.2d 795 (D.C.Cir.), cert. denied, 454 U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94 (1981). In each of those cases the courts of appeal 130 held that 28 U.S.C. § 1961 failed to provide a waiver of the government's immunity from the award of interest on attorneys' fees. In Arvin, the court expressly rejected plaintiffs' proffered interpretation of 28 U.S.C. § 2516 as providing the necessary waiver of immunity for actions filed in district courts. 742 F.2d at 1304-5. Both parties agree that the plaintiffs would have been entitled to interest under that section had they obtained judgment from the court of claims or the Court of Appeals for the Federal Circuit. The plaintiffs, however, chose to file suit in this forum where there is no explicit waiver for similar judgments entered by a district court. Because the plaintiffs failed to present this court with authority for the proposition that Congress explicitly waived governmental immunity from post-judgment interest in this court on this claim, the court is unable to award it. ATTORNEYS' FEES Plaintiffs' attorneys have presented this Court with their application for fees and expenses incurred in successfully prosecuting this action. The government takes no position on this question because any amount awarded will come from the class' recovery. Class members were given notice of the petition and an opportunity to respond to the request for fees and costs. Although 7,865 class members returned forms to the Office of Personnel Management verifying that they were entitled to backpay, only thirteen took the time to inform the court of their views on the question of attorneys' fees. Petitioners request for $1,250,000 in attorneys' fees and $9,379.64 in costs and expenses will be granted. Six of the thirteen class members wrote to support petitioners' application in the full amount. Five objected to the amount requested and suggested that, in any event, the government should be obligated to pay the fees. Two other class members objected only as to the amount, and one of those two stated he was so strongly opposed to the request that he would prefer to receive nothing himself rather than see it paid. Although the court can understand how someone unfamiliar with the going rates in the legal profession might view the request as out of line, a review of the relevant factors for determining an appropriate fee reveals that it is not. The Seventh Circuit Court of Appeals recently addressed the question of an award of attorneys' fees and endorsed the method the Supreme Court used in Hensley v. Eckert, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Lynch v. Milwaukee, 747 F.2d 423 (1984), the Court stated: "... The initial step is to multiply the number of hours reasonably expended by a reasonable hourly rate. 103 S.Ct. at 1939. The resultant figure, which has often been referred to as the "lodestar" amount, may then be modified upward or downward, depending on the following considerations: 1. the time and labor required; 2. the novelty and difficulty of the questions; 3. the skill requisite to perform the legal service properly; 4. the preclusion of employment by the attorney due to acceptance of this case; 5. the customary fee; 6. whether the fee is fixed or contingent; 7. time limitations imposed by the client or the circumstances; 8. the amount involved and the results obtained; 9. the experience, reputation, and ability of the attorneys; 10. the "undesirability" of the case; 11. the nature and length of the professional relationship with the client; and 12. awards in similar cases." 747 F.2d at 426, (footnote omitted) (citing Hensley v. Eckert as 103 S.Ct. at 1937 n. 3). Petitioners' time records and affidavits show that there was no unnecessary duplication of effort and that the time spent was 131 of direct benefit to the class. Given the complexity and history of this case, the Court finds it reasonable that petitioner Forde has, and will have, devoted 687 hours to this case, and that petitioner Prendergast has, and will have, devoted 1,091 hours to this case. The same is true for the 952 hours of associate time and the 783 hours requested for law clerks. The Court further finds that the requested rates of compensation in this matter are reasonable. Kevin M. Forde seeks reimbursement at the rate of $175 per hour and Richard J. Prendergast at the rate of $150 per hour. Petitioners seek compensation for associate work, principally done by Katrina Veerhusen, at the rate of $110 per hour, and law clerk time has been billed at a rate of $40 an hour. The high-quality work of petitioners Forde and Prendergast has been recognized before, Will v. United States, 90 F.R.D. 336, 343 (N.D.Ill.1981), and was reflected in their efforts in this case. It is not necessary for this Court to list their impressive credentials or their past success at class action lawsuits. The requested rates reflect their normal hourly fees and are not out of line with rates attorneys of similar skill would charge. Katrina Veerhusen is an associate of Kevin M. Forde, Ltd. and also has had experience working on major class action lawsuits. Like Forde and Prendergast she is a former judicial clerk. Her billing rate of $110 is reasonable for this type of work and reflects her normal hourly fee. Finally, the Court finds that a rate of $40 per hour for law clerk time is reasonable. The Court must multiply the number of hours reasonably expended by the corresponding billing rates to obtain a "lodestar" amount. Calculation of the relevant numbers in the present case yields an amount of $419,840.[] Petitioners argue that this is an appropriate case for an upward modification of the lodestar and request an award of $1,250,000, roughly three times the lodestar. The twelve factors listed above from Lynch, 747 F.2d at 426, are to be utilized in determining what adjustment, if any, should be made in the lodestar before awarding attorneys' fees. They are merely guidelines, however, and are not always consistently applied. Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc., 776 F.2d 646, 651, note 3 (7th Cir.1985). The Court should not make any adjustment if the lodestar already reflects those factors. October 21, 1985, at p. 652. The list of twelve factors also includes related considerations. For instance, the time and labor required is reflected both in the amount of hours that make up the lodestar and in factor four, whether or not it precluded other employment. Factor five, the customary fee, is unavoidably related to factor twelve, awards in similar cases. The skill requisite to perform the legal service properly, factor three, is related to the novelty and difficulty of the questions, factor two. Although the Court finds that each of the factors listed would tend to support petitioners' application, the Court is especially 132 persuaded by the successful outcome and the fact that this case was taken on a contingent basis. If the plaintiffs had lost, their attorneys would have been paid nothing. Plaintiffs unsuccessfully sought administrative resolution of their claims through the National Labor Relations Board and the Office of Personnel Management. Two associations of federal employees refused to bring the case. Nonetheless, petitioners agreed to take the case on a contingent basis with the fee, if any, to be set by the Court in the event of a successful outcome. This Court's view of the likelihood of success was reflected in an earlier opinion that granted summary judgment against petitioners' clients. Squillacote v. United States, 562 F.Supp. 338 (E.D.Wis.1983). Despite that earlier setback petitioners successfully argued the class' cause in the appellate courts. As a result of petitioners' efforts in Squillacote I and Squillacote II the class will recover back pay and benefits approaching $40,000,000. Attorneys' fees in the amount of $1,250,000 are reasonable especially when one considers that they might have received nothing for their efforts. A multiplier of three is appropriate in that it represents a relatively small percentage of the total recovery. ORDER IT IS ORDERED that petitioners' request for fees and costs is granted. The firm of Kevin M. Forde, Ltd., is awarded $697,250 in fees and $6,160.54 for costs and expenses. The firm of Richard J. Prendergast, Ltd. is awarded $552,750 in fees and $3,219.10 for costs and expenses. IT IS FURTHER ORDERED that each class member is entitled to recover for fiscal year 1981 the difference between the salary received and the scheduled SES salary for that year up to the rate for level IV of the Executive Schedule. IT IS FURTHER ORDERED that the class is not entitled to post-judgment interest as the government has not waived its sovereign immunity to such an award. NOTES [*] PETITIONERS' TIME THROUGH AUGUST 12, 1985 Petitioner Hours Hourly Rate Lodestar Kevin M. Forde 627.00 $175.00 $109,725.00 Richard J. Prendergast 1025.75 150.00 153,862.50 Mary Anne Mason 19.00 110.00 2,090.00 Katrina Veerhusen 721.75 110.00 79,392.50 James Prendergast 7.50 110.00 825.00 Joseph E. Tighe 13.50 110.00 1,485.00 Law Clerks 642.75 40.00 25,710.00 ___________ Total $373,090.00 ESTIMATED FUTURE TIME REQUIRED TO PREPARE AND FILE VARIOUS MEMORANDA OF LAW Hours Hourly Rate Total Kevin M. Forde 35.00 $175.00 $ 6,125.00 Richard J. Prendergast 40.00 150.00 6,000.00 Associates 90.00 110.00 9,900.00 Law Clerks 40.00 40.00 1,600.00 ___________ $ 23,625.00 ESTIMATED FUTURE TIME REQUIRED FOR ADMINISTRATIVE TASKS Hours Hourly Rate Total Kevin M. Forde 25.00 $175.00 $ 4,375.00 Richard J. Prendergast 25.00 150.00 3,750.00 Associates 100.00 110.00 11,000.00 Law Clerks 100.00 40.00 4,000.00 ___________ $ 23,125.00 Total Lodestar $419,840.00	{ "pile_set_name": "FreeLaw" }
33 So.3d 654 (2008) JEFFREY PAUL STOUT v. STATE. No. CR-07-1297. Court of Criminal Appeals of Alabama. December 19, 2008. Decision of the Alabama Court of Criminal Appeal Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
224 P.3d 773 (2010) 167 Wash.2d 1017-1023 MASON v. COLUMBIA BASIN COLLEGE. No. 83463-6. Supreme Court of Washington, Department I. January 5, 2010. Disposition of Petition for Review Denied.	{ "pile_set_name": "FreeLaw" }
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-30064 Plaintiff-Appellee, D.C. No. 1:06-cr-00126-BLW v. MEMORANDUM* GREGORY FRANK SPEROW, Defendant-Appellant. Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding Submitted September 12, 2018** Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges. Gregory Frank Sperow appeals pro se from the district court’s order granting in part and denying in part his motion for return of property under Federal Rule of Criminal Procedure 41(g). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Sperow first contends that the district court erred when it relied on Special Agent Gleason’s declaration rather than conducting an evidentiary hearing to determine the status of his property. Gleason’s sworn declaration established that he had personally reviewed all of the seized evidence then in the custody of the relevant Idaho agencies, conducted additional investigations relating to the outstanding property, and provided a detailed account of the status of each item of property. Contrary to his contention, Sperow did not adduce any evidence that conflicted with Gleason’s declaration. Under these circumstances, the district court properly relied on Gleason’s declaration and did not abuse its discretion when it declined Sperow’s request for an evidentiary hearing. See United States v. Hagege, 437 F.3d 943, 953 (9th Cir. 2006). Sperow’s argument that, in the absence of a hearing, the court was required to construe the facts in a light most favorable to him, is unsupported. In any event, there were no genuine factual issues with respect to the location of the property. Sperow next contends that the district court erred by failing to require the government to produce a property inventory in accordance with 41 C.F.R. § 128- 50.101. We disagree. Nothing in the regulation, which is directed to federal bureaus, appears to give property owners like Sperow a claim for relief. Moreover, Sperow cannot show any need for a property inventory. Sperow’s declaration identified the items he sought, Gleason conducted a thorough search for each item, 2 17-30064 and the government ultimately returned to Sperow everything it had in its possession with the exception of evidence that appeared to be contraband or to have been seized from someone other than Sperow. Sperow does not explain what else he could have obtained with a complete inventory. Lastly, Sperow contends that the district court erred when it refused to consider his challenge to the legality of the search of his truck. The district court did not err because the legality of the underlying search and seizure of property is irrelevant for purposes of Rule 41(g) once criminal proceedings are complete. See United States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). In this case, irrespective of whether the search was legal, the government could not return the evidence allegedly seized from the truck because it did not possess that property. AFFIRMED. 3 17-30064	{ "pile_set_name": "FreeLaw" }
147 S.W.3d 390 (2004) Robert C. HERRING, Appellant, v. The STATE of Texas. No. 358-03. Court of Criminal Appeals of Texas, En Banc. October 6, 2004. 391 Brian E. Murray and Russell I. Gunter, II, Lubbock, for Appellant. William C. Sowder, District Atty., Lubbock, Matthew Paul, State's Atty., Austin, for State. Before the Court en banc. OPINION KELLER, P.J., delivered the opinion for a unanimous Court. This case involves a claim of error under Tamez v. State.[1] The offense in question is failure to register as a sex offender.[2] Appellant hoped to prevent the jury from discovering the exact sex offense that made him subject to the registration requirement. To accomplish this end, appellant offered to stipulate that he had previously been convicted of an offense that required him to register as a sex offender, without specifying what that offense was. We now determine that the Court of Appeals was correct in declaring that, if there was error, it was harmless. We shall affirm. I. BACKGROUND A. Trial Appellant was charged with failing to register as a sex offender because he failed to report in person an intended change of address seven days prior to moving.[3] The indictment specified the prior sex offense that subjected appellant to the registration requirements: attempted indecency with a child by contact. At a pretrial hearing, appellant offered to stipulate that "he was convicted and placed on probation in cause no. 960919, in the 299th District Court of Travis County, Texas, and as a result of such conviction is required to register as a sex offender." This stipulation was offered, pursuant to Tamez, to prevent the 392 prosecution from mentioning to the jury the exact nature of his prior sex crime. The State responded that it needed the judgment because it showed appellant's registration conditions (as well as his signature and fingerprints) and appellant's defense was going to be that he did not know he had to register. In reply, defense counsel requested that the name of the offense be redacted from the release papers. The trial court refused to accept the stipulation and allowed appellant a running objection. The prosecution referred to the attempted indecency with a child conviction at voir dire, in the reading of the indictment, through witness testimony, and in closing arguments. The State also introduced evidence of the conditions of community supervision for the prior offense. These conditions included multiple references to restrictions against (1) residing in areas where minor children congregate or in residences where they live, (2) accepting employment that would bring him into contact with children, and (3) having contact with children without an adult present. No objection was made to the introduction of this evidence of the conditions of probation. As the parties anticipated, the only contested issue at trial was whether appellant, who the evidence showed was deaf, knew of his registration requirements. Appellant's judgment of conviction contained his conditions of community supervision, including sex offender registration requirements. Appellant signed a statement on the judgment form acknowledging that he understood and agreed to obey the conditions of community supervision. On November 5, 1997, David Rowan, appellant's community supervision officer in Lubbock, gave appellant a written form containing an expanded explanation of the registration requirements, including the requirement to notify the authorities seven days before moving. Appellant initialed this form. Rowan interviewed appellant on October 18, 1999, with the assistance of an interpreter. Rowan discussed with appellant all of his conditions of community supervision, which included the registration requirements. If appellant did not understand a particular point, Rowan repeated himself or made additional explanations until appellant indicated that he understood. Appellant gave appropriate answers to questions. Appellant was scheduled to report on November 16th, but failed to show up. He did report the next day, but because his appearance was unscheduled, no interpreter was present. Consequently, Rowan conducted an interview by passing written notes back and forth. Appellant did not appear to have any difficulty understanding the interview conducted in this format. Appellant checked in as scheduled on December 14th, January 10th, and February 8th. On all of these occasions an interpreter was present, and appellant appeared to understand all the matters discussed. On cross-examination, Rowan acknowledged that the interpreter assigned during these sessions was a "Level I." According to a handbook prepared by the Texas Commission for the Deaf and Hard of Hearing, "Level I" was a beginning level, indicating an interpreter who could "communicate on a one-to-one basis and may have some success with both expressive and receptive fingerspelling."[4] This 393 level of interpreter "is expected to have a limited sign vocabulary and a limited knowledge of conceptual accuracy." By contrast, a "Level IV" interpreter "exhibits excellent expressive and receptive skills in both interpreting and transliterating. This interpreter exhibits vocabulary necessary to interpret in medical, legal, and psychiatric settings." On redirect, Rowan further testified that appellant had properly registered with law enforcement authorities for moves occurring in June of 1996, September of 1997, February of 1999, and November of 2000. In April of 2000, Betty Parker became appellant's community supervision officer. She testified that he reported to her on April 12th, May 11th, June 29th, July 7th, August 7th, September 1st, October 2nd, and November 9th. An interpreter was present during the April, May, and July visits. An interpreter was not present for the June, August, September, October, and November visits. With the possible exception of the October visit, these latter visits were without an interpreter because appellant failed to show up at the scheduled time.[5] When no interpreter was present, Parker would communicate with appellant in writing. Parker testified that appellant did not appear to have any difficulty understanding their conversation during any of the visits. Parker conducted occasional field visits to appellant's apartment in Lubbock, including one on October 4, 2000, when she discovered an eviction notice on his door. When appellant reported on November 7th, Parker gave him an "Office Visit Report Form" on which to report his change of address and any other new information. Appellant filled out the form without difficulty. During cross-examination, defense counsel questioned Parker regarding some responses on the form that seemed inappropriate. Appellant listed the business he worked for as "Firus Café" (it was Furr's Cafeteria). In response to the question, "How many hours do you work a week?" appellant wrote "200.00" (phrased on cross-examination as two hundred dollars). He wrote his gross pay as $5.50 (phrased on cross-examination as $5.50/hr). A review of the form, which was admitted into evidence, shows that appellant filled in the correct address and phone number for Furr's Cafeteria. He left blank the question regarding his income or wages in the previous montha question that appeared two lines down from the one asking for the number of hours he worked in a week. Rowan testified that it appeared that appellant, in filling in the blank for hours worked, had simply placed an answer in the wrong spot. In addition, appellant correctly answered the question, "Have you been arrested or questioned by Law Enforcement officials in the past 30 days?" with "Arrested 11-4-00 for traffic warrants." He left a number of questions blank on the form, including: "Address where you actually stay." However, he did fill in his "mailing address" as "3814 64th Dr., Lubbock, 79413" and answered the question regarding "Other people living with you" with "Joe Herring/Bobby Herring." This mailing address was in fact the residence of Joe Herring, appellant's grandfather. Joe Herring testified that appellant received some mail there but had never lived there. Amy Lewis was in charge of the sex offender registration program at the Lubbock Police Department. She testified that appellant first came in to see her 394 when he moved from Terry County to Lubbock County in April of 2000. At that time, appellant correctly communicated to her in writing his residence address on Brownfield Highway. On November 15, 2000, appellant personally appeared at Lewis's office and communicated in writing a change of address to 3814 64th Drive. On November 20, appellant again contacted Lewis with a change of address, this time to 4401 Avenue Q. After Lewis's testimony, the State called as a witness Scott Steggs, the head of the Lubbock Community Services for the Deaf, the agency in charge of supplying interpreters in Lubbock County. Steggs indicated that a Level III, or higher, interpreter was appropriate for interactions between a deaf probationer and his community supervision officer. The defense called to the witness stand Tori Gustafson, an audiologist. Gustafson testified that American Sign Language was a language wholly separate from English, that there were different levels of interpreters and only the higher levels could effectively translate legal concepts, and that the average deaf person read English at a fourth to seventh grade level. On cross-examination, Gustafson testified that she had never met or examined appellant and had no knowledge regarding his ability to communicate. In rebuttal, the State called Penny Spencer, the manager at the apartment complex appellant lived in during the year 2000. Spencer testified that she conversed with appellant by passing written notes when he sought an apartment and in several discussions about his being behind on his rent. During these latter discussions, appellant would agree to pay his rent in installments. Appellant was convicted and sentenced to two years in state jail. B. Court of Appeals opinion The Court of Appeals held that the trial court did not err in permitting the State to read the portion of the indictment referring to the prior conviction.[6] In support of this holding, the appellate court explained that the State was required by statute to read the indictment.[7] Then, "without deciding but assuming arguendo" that the trial court erred "by refusing to exclude evidence of the exact description of appellant's prior crime during the guilt-innocence phase of trial," the Court of Appeals determined that any such error would be nonconstitutional in nature.[8] The court proceeded to conduct a harm analysis under Texas Rule of Appellate Procedure 44.2(b).[9] It observed that defense counsel's trial strategy was to concede that appellant failed to report but establish that this failure was not intentional or knowing by showing that appellant was deaf, had very poor communication skills, did not understand all of the requirements of his community supervision, and did not understand his reporting requirements.[10] The court further noted that the jury would have been fully aware of the exact sex offense for which appellant had to report because that offense was read in the indictment and because several conditions of probation involved restrictions 395 regarding children.[11] The Court of Appeals concluded that, even if the trial court had erred in allowing the State to offer proof of the exact description of the prior crime, the error did not affect appellant's substantial rights, and therefore was harmless.[12] C. Appellant's claims on discretionary review We granted the following grounds for review: (1) The Court of Appeals erred in ruling that the trial court's failure to accept appellant's proposed stipulation, thus excluding evidence of appellant's prior conviction, was not erroneous. (2) The Court of Appeals erred in ruling that even if the trial court committed error by failing to accept appellant's proposed stipulation, and exclude evidence of appellant's prior conviction, such error was harmless. In his petition, with regard to his first ground, appellant conceded that the Court of Appeals's determination that the State was required to read the indictment is consistent with the state of the law in Texas. He contended, however, that the State should have been limited to reading the indictment and that all additional references to the prior convictionin voir dire, through the introduction of evidence, and in closing argumentwere improper.[13] The remainder of appellant's argument under this ground involved a discussion of Tamez and Old Chief v. United States,[14] regarding the admissibility of the evidence under Rule 403,[15] in light of the offer to stipulate.[16] With regard to the second ground, appellant's petition faulted the Court of Appeals for engaging in a "truncated" evaluation of the record in conducting its harm analysis. Appellant contended that the Court of Appeals failed to consider the numerous instances in which the State referred to the prior offense. He claimed that the State used every opportunity to mention the specific offense to the jury and that this emphasizing of the offense was inflammatory. Although appellant recognized the Court of Appeals's finding that the jury would have been aware of the specific prior offense by virtue of the reading of the indictment, appellant contended that "the error occurred in the multiple references to the prior conviction, thus improperly refocusing the jury's attention on Petitioner's prior conviction."[17] II. ANALYSIS The Court of Appeals addressed the merits of the Tamez claim with respect to the indictment, and held that the prior-conviction portion of the indictment was properly read to the jury. Appellant does not dispute that holding. As to appellant's claim that the trial court erred in allowing other references to the prior offense during the trial, we need not address that 396 claim because the Court of Appeals assumed error. Regarding appellant's second ground for reviewwhether the Court of Appeals erred in concluding that any trial court error was harmlessboth appellant and the Court of Appeals correctly cite the applicable harm standard as Rule 44.2(b). Under that standard, which applies to non-constitutional errors, an appellate court will not reverse a conviction if it has "fair assurance that the error did not influence the jury, or had but a slight effect."[18] Appellant's chief argument is that the State emphasized the prior offense. Even if we accept that contention, we cannot conclude that the Court of Appeals was mistaken in finding any error harmless. Because the indictment referred to the prior "attempted indecency with a child" conviction, the Court of Appeals correctly observed that the jury would have known the identity of the prior offense even if all further references to that offense had been excluded.[19] The conditions of community supervision, containing the admonitions against contact with children, would have served as a reminder that this offense was one that involved a child. And this evidence is not so far on the inflammatory and prejudicial side of the character-evidence spectrum that repeating it several times before the jury would likely cause significant harm beyond the jury's knowledge that the defendant has committed the offense. Indecency with a child and failure to register are not similar offenses for propensity purposes: failing to register is not an instance of acting in conformity with a propensity to molest children. Had the present offense been, for instance, sexual assault of a child, a prior conviction for sexual assault of a child would give rise to a character conformity inference flowing from the character trait of being a child molester. But because the primary offense is failure to register, the conformity inference of the prior conviction is simply to show generally that appellant is a criminal. While general criminality is a prohibited inference, it is not as strong or inflammatory an inference as the conformity inference that arises from substantially similar offenses as it did in Tamez, where the State sought a felony DWI conviction and the prior convictions were DWI's,[20] and in Old Chief, where the Government sought a conviction for possession of a firearm by a felon and the prior crime was a gun crime.[21] Moreover, the particular prior offense in this case is far from being the worst offense a sex offender might have on his record. The evidence that the prior offense was attempted indecency with a child prevented the jury from speculating that the offense was worse than it was. Moreover, there is substantial evidence supporting the conviction. The evidence shows that appellant did not in fact give his home address as was required, that this failure occurred on more than one occasion (November 7 and November 15), that he had ample notice of the requirement, and that he had reported changes of address before. No evidence was offered of appellant's actual understanding of the 397 requirements for sex offender registration. Nor did the defense offer evidence of appellant's actual communicative ability other than to point to two incorrectly filled out questions on one report form. The defense pointed to no other such mistakes, much less to a pattern of mistakes that might show an inability to understand or communicate effectively. The defense did offer evidence that the Lubbock community supervision office used interpreters with an inadequate level of training but gave no reason to believe the interpreter at the plea hearing in Travis County was inadequate or that appellant did not clearly understand the registration conditions at that time. And regardless of the capabilities of the interpreters that provided their services at various times, the jury had reason to believe that appellant understood the address requirement when it was given to himat least twicein writing. While the defense introduced expert testimony that the average deaf person could read and write at a fourth to seventh grade level, the defense introduced no testimony as to appellant's reading and writing abilities. By contrast, the State introduced evidence from community supervision officers and a former landlord that appellant could communicate well by passing written notes. In summary, the State's repetition of the name of the offense at various stages of the trial was not harmful because: 1) the jury would have known of, and been reminded of, the nature of the offense even if the trial court had accepted the stipulation and prevented mention of the name of the offense at any stage of the trial except the indictment, 2) the character conformity inference of the prior conviction was not particularly strong, 3) the conviction itself was for one of the less serious offenses subject to the registration statute, and 4) the evidence supporting the conviction was substantial. We have fair assurance that the error, if any, did not influence the jury, or had but slight effect. We affirm the judgment of the Court of Appeals. WOMACK, J., filed a concurring opinion. WOMACK, J., concurring. I join the Court's opinion which addresses only the issue of harmless error,[1] and which, it seems to me, is limited to the facts of this case. The Court has not addressed the issue of whether there was error. This was prudent. For one thing, a decision of that issue would not affect the judgment in this case. For another, the appellant conceded in this court a very important point that was presented in this case: whether the law requires the State to read everything in this indictment.[2] I join the court's opinion with the understanding that this point remains undecided. NOTES [1] 11 S.W.3d 198 (Tex.Crim.App.2000). [2] See TEX. CODE CRIM. PROC., Art. 62.10. [3] Art. 62.02(a). [4] Texas Commission for the Deaf and Hard of Hearing, Board for Evaluation of Interpreters, A Handbook for Interpreter Licensing Candidates, November 1998. Rowan testified that he knew that the Commission existed but knew nothing about it. Nevertheless, the handbook was admitted into evidence, and defense counsel had Rowan read portions to the jury. [5] Parker's notes failed to document the reason for the absence of an interpreter for the October visit. [6] Herring v. State, 147 S.W.3d 425, 427-28, 2003 WL 1961106, at 2, 2003 Tex.App. LEXIS 3642, 6 (Amarillo, delivered April 24, 2003). [7] Id. at 427-28, at 2-3, at 5-6. [8] Id. at 428, at 2, at 6. [9] Id. at 428, at 2-3, at 6-7. See Tex.R.App. P. 44.2(b): "Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." [10] Id. at 429, at 3, at 7. [11] Id. at 425, at 3, at *8. [12] Id. [13] Emphasis added. [14] 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). [15] Tex.R. Evid. 403, which provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." [16] When questioned at oral argument, defense counsel conceded that the State was required by statute to read the indictment. [17] Emphasis added. [18] Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). [19] The jury would, of course, have been informed of the stipulation. Hollen v. State, 117 S.W.3d 798, 802 (Tex.Crim.App.2003). [20] See Tamez, generally. [21] Old Chief v. United States, 519 U.S. 172, 185, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)("Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious"). [1] "We now determine that the Court of Appeals was correct in declaring that, if there was error, it was harmless." Ante, at 391. [2] See Ante, at 395.	{ "pile_set_name": "FreeLaw" }
2020 WI 67 SUPREME COURT OF WISCONSIN CASE NO.: 2019AP614-LV & 2019AP622 COMPLETE TITLE: Service Employees International Union (SEIU), Local 1, SEIU Healthcare Wisconsin, Milwaukee Area Service and Hospitality Workers, AFT-Wisconsin, Wisconsin Federation of Nurses and Health Professionals, Ramon Argandona, Peter Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey Myers, Andrew Felt, Candice Owley, Connie Smith and Janet Bewley, Plaintiffs-Respondents, v. Robin Vos, in his official capacity as Wisconsin Assembly Speaker, Roger Roth, in his official capacity as Wisconsin Senate President, Jim Steineke, in his official capacity as Wisconsin Assembly Majority Leader and Scott Fitzgerald, in his official capacity as Wisconsin Senate Majority Leader, Defendants-Appellants, Josh Kaul, in his official capacity as Attorney General of the State of Wisconsin and Tony Evers, in his official capacity as Governor of the State of Wisconsin, Defendants-Respondents. REVIEW OF AN ORDER OF THE COURT OF APPEALS (2019 – unpublished) OPINION FILED: July 9, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 18, 2020 SOURCE OF APPEAL: COURT: Circuit COUNTY: Dane JUDGE: Frank D. Remington JUSTICES: The opinion of the court is being announced in two writings. HAGEDORN, J., delivered a majority opinion of the Court addressing all issues other than the provisions of 2017 Wis. Act 369 concerning guidance documents. This is a majority opinion of the Court with respect to Part II.E.2.-4., in which all Justices joined; and a majority opinion of the Court with respect to Parts I, II.A.-D., II.E.1., and III, in which ROGGENSACK, C.J., ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. KELLY, J., delivered a majority opinion of the Court with respect to the provisions of 2017 Wis. Act 369 concerning guidance documents, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. DALLET, J., filed an opinion concurring in part and dissenting in part, in which ANN WALSH BRADLEY, J., joined. HAGEDORN, J., filed an opinion concurring in part and dissenting in part, in which ZIEGLER, J., joined. NOT PARTICIPATING: ATTORNEYS: For the defendants-appellants, there were briefs filed by Misha Tseytlin and Troutman Sanders LLP, Chicago, Illinois, and Eric M. McLeod, Lisa M. Lawless and Husch Blackwell LLP, Madison. There was an oral argument by Misha Tseytlin. For the plaintiffs-respondents, there was a brief filed by Nicole G. Berner, Claire Prestel, John M. D’Elia and Service Employees International Union, Washington, D.C.; Timothy E. Hawks, Barbara Z. Quindel and Hawks Quindel, S.C., Milwaukee; Jeremy P. Levinson, Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee; David Strom and American Federation of Teachers, Washington, D.C.; and Matthew Wessler and Gupta Wessler PLLC, Washington, D.C. There was an oral argument by Matthew Wessler. For the defendants-respondents, there were briefs filed by Lester A. Pines, Tamara B. Packard, Christa O. Westerberg, Leslie A. Freehill, Beauregard W. Patterson and Pines Bach LLP, Madison; Joshua L. Kaul, attorney general, Thomas C. Bellavia, assistant 2 attorney general and Colin T. Roth, assistant attorney general. There was an oral argument by Joshua L. Kaul and Lester A. Pines. An amicus curiae brief was filed on behalf of Wisconsin Law and Liberty, Inc. by Richard M. Esenberg, CJ Szafir, Lucas T. Vebber and Anthony LoCoco, Milwaukee. An amicus curiae brief was filed on behalf of Wisconsin Manufacturers & Commerce by Corydon J. Fish, Madison. 3 2020 WI 67 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP614-LV & 2019AP622 (L.C. No. 2019CV302) STATE OF WISCONSIN : IN SUPREME COURT Service Employees International Union (SEIU), Local 1, SEIU Healthcare Wisconsin, Milwaukee Area Service and Hospitality Workers, AFT- Wisconsin, Wisconsin Federation of Nurses and Health Professionals, Ramon Argandona, Peter Rickman, Amicar Zapata, Kim Kohlhaas, Jeffrey Myers, Andrew Felt, Candice Owley, Connie Smith and Janet Bewley, Plaintiffs-Respondents, v. Robin Vos, in his official capacity as FILED Wisconsin Assembly Speaker, Roger Roth, in his official capacity as Wisconsin Senate JUL 9, 2020 President, Jim Steineke, in his official capacity as Wisconsin Assembly Majority Leader Sheila T. Reiff and Scott Fitzgerald, in his official capacity Clerk of Supreme Court as Wisconsin Senate Majority Leader, Defendants-Appellants, Josh Kaul, in his official capacity as Attorney General of the State of Wisconsin and Tony Evers, in his official capacity as Governor of the State of Wisconsin, Defendants-Respondents. The opinion of the court is being announced in two writings. HAGEDORN, J., delivered a majority opinion of the Court addressing all issues other than the provisions of 2017 Wis. Act 369 concerning guidance documents. This is a majority opinion of the Court with respect to Part II.E.2.-4., in which all Justices joined; and a majority opinion of the Court with respect to Parts I, II.A.-D., II.E.1., and III, in which ROGGENSACK, C.J., ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. KELLY, J., delivered a majority opinion of the Court with respect to the provisions of 2017 Wis. Act 369 concerning guidance documents, in which ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and DALLET, JJ., joined. ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. DALLET, J., filed an opinion concurring in part and dissenting in part, in which ANN WALSH BRADLEY, J., joined. HAGEDORN, J., filed an opinion concurring in part and dissenting in part, in which ZIEGLER, J., joined. APPEAL from an order of the Circuit Court of Dane County, Frank D. Remington, Circuit Court Judge. Affirmed in part, reversed in part, injunction vacated in part, cause remanded. ¶1 BRIAN HAGEDORN, J. Under our constitutional order, government derives its power solely from the people. Government actors, therefore, only have the power the people consent to give them. The Wisconsin Constitution is the authorizing charter for government power in Wisconsin. And that document describes three— —and only three——types of government power: legislative, executive, and judicial. See Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, § 2. Legislative power is the power to make the law, to decide what the law should be. Executive power is power to execute or enforce the law as enacted. And judicial power is the power to interpret and apply the law to disputes between parties. 2 Nos. 2019AP614-LV & 2019AP622 ¶2 The constitution then provides that each type of power is "vested" in a corresponding branch of government. The legislative power is vested in two elected bodies——the senate and the assembly. Id. art. IV, § 1. The executive power is vested in the governor. Id. art. V, § 1. And the judicial power——being exercised in this very writing——is vested in a "unified court system" headed by the supreme court. Id. art. VII, §§ 2-3. With some exceptions, the general rule is that this diffusion of power into three separate branches creates a concomitant separation of powers requiring each branch to exercise only the power vested in it by the people of Wisconsin. ¶3 This case arises from enactment of 2017 Wis. Act 369 and 2017 Wis. Act 370. These acts were passed by the legislature and signed by the governor following the 2018 election, but before the newly elected legislature, governor, and attorney general were sworn into office. In response, several labor organizations and individual taxpayers (the Plaintiffs) filed suit against the leaders of both houses of the legislature (the Legislative Defendants), the Governor, and the Attorney General. The Plaintiffs broadly claimed that many of the enacted provisions violate the separation of powers. In particular, the Plaintiffs argued these new laws either overly burden the executive branch or took executive power and gave it to the legislature. ¶4 The complaint unequivocally presents a facial attack on all the laws challenged. That is, the Plaintiffs seek to strike down application of the challenged laws in their entirety, rather than as applied to a given party or set of circumstances. Briefing 3 Nos. 2019AP614-LV & 2019AP622 below and to this court confirms this. By presenting their challenge this way, the Plaintiffs face a tall task. Under our well-established law, a facial challenge succeeds only when every single application of a challenged provision is unconstitutional. ¶5 The procedural history is a bit complicated, but in short, the Legislative Defendants moved to dismiss the entire complaint, which the circuit court denied in full. In the same order, the circuit court granted a temporary injunction against enforcement of some of the provisions, most notably, laws requiring legislative approval of settlements by the attorney general, a provision allowing multiple suspensions of administrative rules, and a set of statutes defining and regulating administrative agency communications called "guidance documents." We took jurisdiction of this case, and therefore review the circuit court's denial of the motion to dismiss and its partial grant of a temporary injunction. ¶6 The court's opinion in this case is being announced in two writings. Justice Kelly's opinion constitutes the majority opinion of the court on all of the guidance document provisions. This writing constitutes the majority opinion of the court on all other issues raised in this case. ¶7 In light of the procedural posture of this case and the briefing before us, our analysis in this opinion rests on our review of the circuit court's denial of the Legislative Defendants' motion to dismiss. Our task is to determine whether the complaint states a valid legal claim against the challenged laws assuming the allegations in the complaint are true. Accordingly, this is 4 Nos. 2019AP614-LV & 2019AP622 purely a question of law and requires no factual development. See infra, ¶26. ¶8 While the Legislative Defendants moved to dismiss the entire complaint, they have not sufficiently briefed or developed arguments regarding several challenged provisions. Where the party seeking dismissal has not developed arguments on a legal issue, we will not develop arguments for them. See infra, ¶24. Therefore, we offer no opinion on the merits of these undeveloped claims——none of which were enjoined by the circuit court——and they may proceed in the ordinary course of litigation on remand. ¶9 All of the enjoined claims, as well as several other related claims, were sufficiently briefed and argued. We conclude that with respect to each of these claims, other than those separately addressed in Justice Kelly's opinion for the court, the Plaintiffs have not met their high burden to demonstrate that the challenged provisions are unconstitutional in all of their applications. Each of these provisions can be lawfully enforced as enacted in at least some circumstances. Accordingly, the motion to dismiss the facial challenges to these claims should have been granted. This therefore means the temporary injunction is vacated in full except as otherwise instructed in Justice Kelly's opinion for the court. ¶10 Specifically, the provisions regarding legislative involvement in litigation through intervention and settlement approval authority in certain cases prosecuted or defended by the attorney general are facially constitutional. The legislature may have an institutional interest in litigation implicating the 5 Nos. 2019AP614-LV & 2019AP622 public purse or in cases arising from its statutorily granted right to request the attorney general's participation in litigation. These institutional interests are sufficient to allow at least some constitutional applications of these laws, and the facial challenge asking us to declare the laws unenforceable under any circumstances necessarily fails. ¶11 In a similar vein, the provision permitting legislative committee review of any proposed changes to security at the State Capitol has at least some constitutional applications with respect to security of legislative space. It follows that a facial challenge to this provision must fail. ¶12 Likewise, the provision allowing multiple suspensions of administrative rules plainly has constitutional applications under Martinez v. DILHR, where we held that one three-month suspension is constitutionally permissible. 165 Wis. 2d 687, 702, 478 N.W.2d 582 (1992). No party asks us to revisit Martinez or its principles. We conclude that if one three-month suspension passes constitutional muster, two three-month suspensions surely does as well. Therefore, the facial challenge to this provision fails. ¶13 Finally, the provision partially codifying our holding in Tetra Tech is also clearly constitutional in many, if not all, applications. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21. The facial challenge to this provision cannot survive. ¶14 With this summary in view, our analysis begins with how we got here. 6 Nos. 2019AP614-LV & 2019AP622 I. BACKGROUND ¶15 In December 2018, both houses of the Wisconsin legislature passed and the governor signed into law 2017 Wis. Act 369 and 2017 Wis. Act 370. The specific provisions challenged—— because there are many——will be discussed in more detail below. For now, we give a high-level overview of the somewhat complicated procedural posture. ¶16 Two months after Act 369 and Act 370 became law——and after the new legislature, governor, and attorney general were sworn in——the Plaintiffs brought the complaint underlying this appeal in Dane County Circuit Court.1 They sued the Legislative Defendants,2 Attorney General Josh Kaul, and Governor Tony Evers— —all in their official capacities. The complaint sought declaratory and injunctive relief from enforcement of numerous The Plaintiffs are: Service Employees International Union 1 (SEIU), Local 1; SEIU Healthcare Wisconsin; Milwaukee Area Service and Hospital Workers; AFT-Wisconsin; Wisconsin Federation of Nurses and Health Professionals; Ramon Argandona; Peter Rickman; Amicar Zapata; Kim Kohlhaas; Jeffrey Myers; Andrew Felt; Candice Owley; Connie Smith; and Janet Bewley. The Honorable Frank D. Remington, Dane County Circuit Court, presided. The Legislative Defendants, all sued in their official 2 capacities, are: Wisconsin Assembly Speaker Robin Vos; Wisconsin Senate President Roger Roth; Wisconsin Assembly Majority Leader Jim Steineke; and Wisconsin Senate Majority Leader Scott Fitzgerald. 7 Nos. 2019AP614-LV & 2019AP622 provisions of these acts. Concurrent with the filing of their complaint, the Plaintiffs also moved for a temporary injunction.3 ¶17 The Legislative Defendants responded with a motion to dismiss the entire complaint, arguing all challenged provisions were consistent with the Wisconsin Constitution. ¶18 Although a defendant in his official capacity, the Governor supported the Plaintiffs' arguments and took them a step further. The Governor brought his own motion for a temporary injunction seeking to enjoin additional provisions not raised in the Plaintiffs' temporary injunction motion.4 The Governor also filed a cross-claim joining the complaint in full and requesting his own declaratory and injunctive relief with respect to the additional provisions he sought to enjoin.5 ¶19 The Attorney General was also sued in his official capacity, but did not render a substantive defense of the laws. Rather, the Attorney General largely supported the Plaintiffs, and 3 The Plaintiffs' motion was styled as a request for a temporary restraining order; however, the circuit court, by agreement of the parties, construed the motion as one for a temporary injunction. 4 The Governor's motion was similarly titled a motion for a temporary restraining order and construed as a motion for a temporary injunction. 5 We observe that the Governor, who was sued in his official, not personal, capacity, signed these bills into law. We leave for another day whether the governor of Wisconsin may sue the legislature over laws that the legislature passed, and here, ones the governor himself in his official capacity signed into law. We also leave for another day whether the legislature may be sued by the governor for passing laws the governor at some point thereafter believes are inconsistent with the constitution. 8 Nos. 2019AP614-LV & 2019AP622 asked the circuit court to strike down multiple laws impacting his authority. ¶20 On March 25, 2019, the circuit court heard arguments on all pending motions, and it provided its decision and order the following day. The circuit court denied in full the Legislative Defendants' motion to dismiss the complaint. It also granted the motions for temporary injunction in part and denied them in part. The laws enjoined concern legislative involvement in state-related litigation; the ability of the Joint Committee for Review of Administrative Rules to suspend an administrative rule multiple times; and various provisions regarding a newly defined category of agency communications called guidance documents.6 ¶21 The Legislative Defendants then sought appellate review of both the denial of the motion to dismiss and the order granting 6 The circuit court enjoined the following sections: 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1) (2017-18)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 31 (Wis. Stat. § 227.01(3m)); § 33 (Wis. Stat. § 227.05); § 38 (Wis. Stat. § 227.112); § 64 (Wis. Stat. § 227.26(2)(im)); § 65 (Wis. Stat. § 227.40(1)); § 66 (Wis. Stat. § 227.40(2)(intro.)); § 67 (Wis. Stat. § 227.40(2)(e)); § 68 (Wis. Stat. § 227.40(3)(ag)); § 69 (Wis. Stat. § 227.40(3)(ar)); § 70 (Wis. Stat. § 227.40(3)(b) & (c)); § 71 (Wis. Stat. § 227.40(4)(a)); and §§ 104-05. All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 9 Nos. 2019AP614-LV & 2019AP622 injunctive relief.7 On April 19, 2019, this court assumed jurisdiction over the appeal of the temporary injunction. And on June 11, 2019, we assumed jurisdiction over and granted the Legislative Defendants' interlocutory appeal of the denial of the motion to dismiss. On the same date, we issued an order imposing a stay on the temporary injunction issued by the circuit court with respect to all but one provision.8 II. DISCUSSION A. Scope of Review ¶22 Because of the procedural posture of this case, we have two categories of claims before us. The first category comprises claims raised by the Plaintiffs in their complaint and challenged by the Legislative Defendants' in their motion to dismiss the entire complaint. Some of these were enjoined by the circuit court, some were not. But the motion to dismiss, which includes all issues raised in the complaint, is before us on review. ¶23 The second category of claims are new issues raised in the Governor's cross-claim and in the Governor's motion for a temporary injunction. These are, with one exception, not properly 7 Originally, the Legislative Defendants filed one appeal requesting review of both the denial of the motion to dismiss and the order granting injunctive relief. However, this appeal was split into two separate appeals——No. 2019AP622 is the appeal as of right from the temporary injunction while No. 2019AP614-LV is the petition for leave to file an interlocutory appeal from the circuit court's denial of the motion to dismiss. 8 We did not stay the circuit court's temporary injunction of 2017 Wis. Act 369, § 38 with respect to Wis. Stat. § 227.112(7)(a). 10 Nos. 2019AP614-LV & 2019AP622 before us on review. The exception is 2017 Wis. Act 369, § 33 (Wis. Stat. § 227.05), a guidance document provision addressed in Justice Kelly's opinion for the court. ¶24 Although the Legislative Defendants seek dismissal of the entire complaint, several provisions challenged by the Plaintiffs either were not argued at all or were only perfunctorily raised in briefing before us. We do not step out of our neutral role to develop or construct arguments for parties; it is up to them to make their case. State v. Pal, 2017 WI 44, ¶26, 374 Wis. 2d 759, 893 N.W.2d 848. If they fail to do so, we may decline to entertain those issues. See State v. Lepsch, 2017 WI 27, ¶42, 374 Wis. 2d 98, 892 N.W.2d 682 ("We dismiss Lepsch's argument . . . as undeveloped."). Because the Legislative Defendants failed to set forth sufficient arguments on several challenged provisions, these claims may proceed in the ordinary course of litigation on remand. We express no opinion on the merits of those claims.9 ¶25 This opinion therefore addresses only the provisions properly raised in the complaint and substantively argued in the circuit court and before us. Accordingly, we will address all 9Provisions raised in the complaint that we do not address are 2017 Wis. Act 369, § 87 (Wis. Stat. § 238.399(3)(am)); 2017 Wis. Act 370, § 10 (Wis. Stat. § 20.940), and § 11 (Wis. Stat. § 49.175(2)(a)). In the course of briefing, the parties reference many additional and often related provisions. We similarly decline to opine on any additional provisions not explicitly addressed in either this or Justice Kelly's opinion for the court. 11 Nos. 2019AP614-LV & 2019AP622 claims enjoined by the circuit court along with several additional provisions not enjoined but nonetheless argued by the parties. B. Standard of Review ¶26 A motion to dismiss tests the legal sufficiency of the complaint. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. For purposes of our review, we treat all allegations in the complaint as true. Id., ¶18. "However, legal conclusions asserted in a complaint are not accepted, and legal conclusions are insufficient to withstand a motion to dismiss." Id. Thus, our focus is on the factual allegations, not on any additional claims or arguments asserted by the parties. We then determine whether the facts alleged in the complaint state a viable cause of action. This is a legal question we review de novo, and one requiring no further factual development. Id., ¶17. ¶27 Granting injunctive relief is a discretionary decision that we review for an erroneous exercise of discretion. Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 519, 259 N.W.2d 310 (1977). Here, we conclude the circuit court should have granted the motion to dismiss with respect to the enjoined provisions discussed in this opinion and direct it to do. By necessity, the temporary injunction based on these to-be-dismissed claims must be vacated as well. ¶28 This case raises questions requiring interpretation of constitutional and statutory provisions. These are questions of law we review de novo. League of Women Voters of Wis. v. Evers, 12 Nos. 2019AP614-LV & 2019AP622 2019 WI 75, ¶13, 387 Wis. 2d 511, 929 N.W.2d 209. It is the text of statutes that reflects the policy choices of the legislature, and therefore "statutory interpretation focus[es] primarily on the language of the statute." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. The text of the constitution reflects the policy choices of the people, and therefore constitutional interpretation similarly focuses primarily on the language of the constitution. See League of Women Voters, 387 Wis. 2d 511, ¶¶16-18. "It is the enacted law, not the unenacted intent, that is binding on the public."10 State ex rel. Kalal, 271 Wis. 2d 633, ¶44. ¶29 Our analysis begins in Part C with an overview of the separation of powers under the Wisconsin Constitution. In Part D, we address the standards governing facial and as-applied challenges. Finally, in Part E, we apply these principles claim by claim. 10For this reason, in statutory interpretation, we generally do not resort to extrinsic aids like legislative history unless the statute is ambiguous. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶51, 271 Wis. 2d 633, 681 N.W.2d 110. Resort to these extrinsic aids is likewise unnecessary where the constitutional text is plain. See League of Women Voters of Wis. v. Evers, 2019 WI 75, ¶18, 387 Wis. 2d 511, 929 N.W.2d 209 (determining a historical review was unnecessary because the meaning of the constitutional text was clear). But where necessary, helpful extrinsic aids may include the practices at the time the constitution was adopted, debates over adoption of a given provision, and early legislative interpretation as evidenced by the first laws passed following the adoption. See State v. City of Oak Creek, 2000 WI 9, ¶18, 232 Wis. 2d 612, 605 N.W.2d 526. 13 Nos. 2019AP614-LV & 2019AP622 C. Separation of Powers Under the Wisconsin Constitution ¶30 "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." The Federalist No. 51, at 319 (James Madison) (Clinton Rossiter ed. 1961). James Madison's sober assessment of human nature and government power was rooted in the reality that fear of tyranny was not far from the men who risked their lives in the service of liberty. It was these men who drafted our country's Constitution and established a system where power is diffused to different branches. We are more than two centuries into the American constitutional experiment, but the separation of powers is not an anachronism from a bygone era. Our founders believed the separation of powers was not just important, but the central bulwark of our liberty. See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) ("The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government."). ¶31 The Wisconsin Constitution, adopted in 1848, was born of these same beliefs. Government power is divided into three separate branches, each "vested" with a specific core government power. Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384. By "vesting" the respective powers, our constitution "clothe[s]" that branch with the corresponding power; each branch is "put in possession of" a specific governmental power. Noah Webster, An American Dictionary of the English Language (1828). "The legislative power shall be vested 14 Nos. 2019AP614-LV & 2019AP622 in a senate and assembly"; "The executive power shall be vested in a governor"; and "The judicial power of this state shall be vested in a unified court system." Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, § 2. To exercise this vested power, the legislature is tasked with the enactment of laws; the governor is instructed to "take care that the laws be faithfully executed"; and courts are empowered to adjudicate civil and criminal disputes pursuant to the law. Id. art. IV, § 17; id. art. V, § 4; id. art. VII, §§ 3, 5, 8, 14. ¶32 While the separation of powers is easy to understand in theory, it carries with it not-insignificant complications. Notably, the Wisconsin Constitution itself sometimes takes portions of one kind of power and gives it to another branch. For example, the governor is granted the power "to convene the legislature on extraordinary occasions" and is required to "communicate to the legislature, at every session, the condition of the state, and recommend such matters to them for their consideration as he may deem expedient." Id. art. V, § 4. And while the legislature generally makes the law, the supreme court has authority over the practice of law, which requires us to establish normative rules and guidelines that, although not legislation as such, have the same prescriptive effect. Id. art. VII, § 3(1); see also Wis. Stat. § 751.12 (detailing the supreme court's authority to "regulate pleading, practice, and procedure in judicial proceedings in all courts"); Rao v. WMA Sec., Inc., 2008 WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220 ("A rule adopted by this court in accordance with Wis. Stat. § 751.12 is numbered 15 Nos. 2019AP614-LV & 2019AP622 as a statute, is printed in the Wisconsin Statutes, may be amended by both the court and the legislature, has been described by this court as 'a statute promulgated under this court's rule-making authority,' and has the force of law." (footnotes omitted)). ¶33 That said, these are exceptions to the default rule that legislative power is to be exercised by the legislative branch, executive power is to be exercised by the executive branch, and judicial power is to be exercised by the judicial branch. "The Wisconsin constitution creates three separate co-ordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another." State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982). ¶34 Nevertheless, determining "where the functions of one branch end and those of another begin" is not always easy. Id. at 42-43. Thus, we have described two categories of powers within each branch——exclusive or core powers, and shared powers. See Gabler, 376 Wis. 2d 147, ¶30. ¶35 A separation-of-powers analysis ordinarily begins by determining if the power in question is core or shared. Core powers are understood to be the powers conferred to a single branch by the constitution. State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). If a power is core, "no other branch may take it up and use it as its own." Tetra Tech, 382 Wis. 2d 496, ¶48 (Kelly, J.). Shared powers are those that "lie at the intersections of these exclusive core constitutional powers." 16 Nos. 2019AP614-LV & 2019AP622 Horn, 226 Wis. 2d at 643. "The branches may exercise power within these borderlands but no branch may unduly burden or substantially interfere with another branch." Id. at 644 (citing State ex rel. Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995) (per curiam)). ¶36 This legal framework is our starting point, but it must be filtered through the type of challenge before us. The Plaintiffs brought what is known as a facial challenge to all the statutory provisions in dispute. This is key to our disposition of the issues before us, and worthy of some extended examination. D. Facial and As-Applied Challenges ¶37 Challenges to the constitutionality of a statute are generally defined in two manners: as-applied and facial. League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, ¶13, 357 Wis. 2d 360, 851 N.W.2d 302. As-applied challenges address a specific application of the statute against the challenging party. Id. With that focus, the reviewing court considers the facts of the particular case in front of it to determine whether the challenging party has shown that the constitution was actually violated by the way the law was applied in that situation. Id. ¶38 In a facial challenge, however, the challenging party claims that the law is unconstitutional on its face——that is, it operates unconstitutionally in all applications. Id. We have repeatedly reaffirmed that to successfully challenge a law on its face, the challenging party must show that the statute cannot be 17 Nos. 2019AP614-LV & 2019AP622 enforced "under any circumstances." Id.; see also State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63 ("If a challenger succeeds in a facial attack on a law, the law is void 'from its beginning to the end.'" (quoted source omitted)).11 ¶39 This is no small wall to scale. Proving a legislative enactment cannot ever be enforced constitutionally "is the most difficult of constitutional challenges" and an "uphill endeavor." League of Women Voters, 357 Wis. 2d 360, ¶15; State v. Dennis H., 2002 WI 104, ¶5, 255 Wis. 2d 359, 647 N.W.2d 851. ¶40 The United States Supreme Court has described facial challenges as "disfavored," and the type of constitutional attack 11See also Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶29, 376 Wis. 2d 147, 897 N.W.2d 384 (explaining "the standard for a facial challenge" is that the law "'cannot be constitutionally enforced' . . . 'under any circumstances'" (quoted source omitted)); Soc'y Ins. v. LIRC, 2010 WI 68, ¶26, 326 Wis. 2d 444, 786 N.W.2d 385 ("[A] facial constitutional challenge attacks the law itself as drafted by the legislature, claiming the law is void from its beginning to the end and that it cannot be constitutionally enforced under any circumstances . . . ."); State v. Cole, 2003 WI 112, ¶30, 264 Wis. 2d 520, 665 N.W.2d 328 ("A 'facial' challenge to the constitutionality of a statute means that the 'challenger must establish, beyond a reasonable doubt, that there are no possible applications or interpretations of the statute which would be constitutional.'" (quoted source omitted)). 18 Nos. 2019AP614-LV & 2019AP622 that raises the risk of judicial overreach.12 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). This is so in part because claims of facial invalidity often rest on speculation about what might occur in the future. Id. They raise the serious risk of calling on courts to interpret statutes prematurely and decide legal questions before they must be decided. Id. at 450-51. Striking down a law facially "threaten[s] to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Id. at 451. Thus, caution in the face of a facial challenge shows due respect to the other branches of government——allowing the legislature to legislate and the executive to execute——which gives them space to carry out their own constitutional duties. ¶41 And beyond respect for other branches, facial challenges raise the risk of the judiciary overstepping its own constitutional authority. The United States Supreme Court has explained the solemnity of exercising the judicial power: 12 This court has previously acknowledged that requiring facial challenges to show a law cannot be enforced "under any circumstances" mirrors the standard enunciated by the United States Supreme Court in United States v. Salerno, 481 U.S. 739 (1987). League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, ¶15, 357 Wis. 2d 360, 851 N.W.2d 302; see also id., ¶60 n.1 (Crooks, J., concurring) (citing Salerno as the applicable framework of law for facial challenges). In Salerno, the Court explained that "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." 481 U.S. at 745. 19 Nos. 2019AP614-LV & 2019AP622 This Court, as is the case with all federal courts, "has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. United States v. Raines, 362 U.S. 17, 21 (1960) (citation omitted). ¶42 Judicial modesty, then, counsels that "courts should not nullify more of a . . . law than necessary." Wash. State Grange, 552 U.S. at 456 (citation omitted). It also ensures that courts stay in their lane by prohibiting only unconstitutional applications of laws. If a law can only be applied unconstitutionally, it is our duty to say so. But if it can be applied constitutionally, it would be an overstep on our part to strike down a legislative enactment with constitutional applications.13 In her partial dissent, Justice Dallet suggests that 13 subjecting broad statutes to piecemeal, as-applied litigation invites this court to engage in policymaking. Justice Dallet's concurrence/dissent, ¶¶178-179. Quite the contrary. Requiring a party to prove a law is unconstitutionally applied to the facts of a given case is precisely how as-applied challenges work. Our decision here invites no more policymaking than any other as- applied challenge that a court entertains. Justice Dallet's alternative proposal to sweep aside more of a law than is necessary to quickly settle a matter is not, by any definition, a more modest route. 20 Nos. 2019AP614-LV & 2019AP622 ¶43 It is with this understanding and appreciation of a modest judicial power that this court has continually required a party bringing a facial challenge to prove that the statute cannot be constitutionally enforced "under any circumstances." This has not been a principle selectively applied; it is not optional.14 Parties casting the widest possible net and seeking the broadest possible remedy must make the maximum possible showing. ¶44 At oral argument, the Attorney General asserted that this standard should not apply to the laws affecting him because the facial challenge doctrine is applied only in cases involving private litigants. The Attorney General described the doctrine as a matter of standing, and claimed that because every controversy 14The United States Supreme Court has recognized the validity of facial challenges premised on general claims of statutory overbreadth; however, the circumstances in which such challenges may be raised are very limited and not applicable here. See Sabri v. United States, 541 U.S. 600, 609–10 (2004). This court has taken a similar approach. See State v. Konrath, 218 Wis. 2d 290, 305, 577 N.W.2d 601 (1998) ("With the exception of a challenge under the First Amendment to the United States Constitution, a party does not have standing to raise a facial challenge that a statute is overbroad."). In the face of our precedent, Justice Dallet dispenses with well-established law and instead chooses to adopt and apply the overbreadth standard to two legislative approval provisions. As an initial matter, Justice Dallet raises this sua sponte; no party argued that we should adopt overbreadth in place of our standard facial challenge framework. Moreover, in a case with many separation-of-powers questions, Justice Dallet does not argue that this new standard should apply across the board. It is unclear why. One is left to surmise that Justice Dallet's approach is a tacit, if not explicit, admission that current law does not support her conclusion on these issues. We see no need to change our law to fit this case. We will stick with and apply the law as it exists. 21 Nos. 2019AP614-LV & 2019AP622 arising from the legislative approval provisions would involve the same public parties, the traditionally recognized concerns with facial-challenge adjudication are not at issue here. Hence, the Attorney General contends these provisions may be facially challenged because every application will implicate his office and interested parties in the legislature. No such argument was made in briefing. And when pressed for supporting authority at oral argument, the Attorney General cited only to our decision in Gabler, 376 Wis. 2d 147. ¶45 Gabler plainly does not stand for the propositions advanced by the Attorney General. In that case, the Crime Victims Rights Board issued a decision that Judge Gabler had violated a victim's constitutional right to speedy disposition of the proceedings. Id., ¶21. Judge Gabler challenged the constitutionality of certain provisions under Wis. Stat. ch. 950 as they applied to judges. Id., ¶29. We agreed with him that the provisions could never be constitutionally applied against judges. Id., ¶60. In so doing, we recognized that the label of a challenging party's claim "is not what matters"; rather it is the "claim and the relief that would follow" that dictate the relevant standard of constitutional review. Id., ¶¶28-29 (quoting Doe v. Reed, 561 U.S. 186, 194 (2010)). The statutory challenge in Gabler included characteristics of both a facial and an as-applied claim. Id., ¶29. Namely, Judge Gabler sought to invalidate the challenged provisions insofar as they could ever be applied against judges—— that is, he brought a broad challenge to a specific category of applications. Id., ¶29. In a challenge of this kind, we explained 22 Nos. 2019AP614-LV & 2019AP622 that the challenging party is still required to demonstrate that, as to the specific category of applications, the statute could not be constitutionally enforced under any circumstances. Id. Judge Gabler had to show that the provisions could never be constitutionally applied against judges, even if it could be constitutionally applied to others. The statutory provisions in Gabler were neither challenged nor struck down in their entirety. In no way did our decision change the basic difference between a facial and an as-applied challenge. ¶46 In contrast, under the Attorney General's theory, so long as the relief requested does not reach beyond the parties before the court, a facial challenge can be subject to a more lenient standard of constitutional review. The Attorney General's approach would allow a court to order far broader relief than necessary to alleviate any unconstitutional applications of the law simply because litigation involves the same two public parties. ¶47 The Attorney General has acknowledged the existence of constitutional applications of the challenged provisions (more on this below), yet still asks that we strike down the laws in their entirety. As we have explained, this is contrary to an appropriate exercise of judicial power. The facial versus as-applied distinction is not merely a question of standing or whether the parties are public or private litigants. It goes to the appropriate reach of the judicial power to say what the law is, 23 Nos. 2019AP614-LV & 2019AP622 and to craft a remedy appropriately tailored to any constitutional violation.15 ¶48 In short, our law is clear and of long standing. A facial challenge requires a showing that all applications of the law are unconstitutional. It is the burden of the party bringing the challenge to prove this. And to the extent a party challenges the application of a law, it is the burden of that party to show that the specific application or category of applications is unconstitutional. ¶49 Before us, no arguments have been developed by any party setting forth challenges to specific applications or categories of applications. The parties arguing against the constitutionality of the provisions ask that we prohibit enforcement of the laws in their entirety. Therefore, we analyze each of the challenged provisions as facial challenges. E. Application to Challenged Provisions 1. Legislative Involvement in Litigation ¶50 Several challenged provisions give the legislature or its committees power to participate in litigation involving the State. As a general rule, prior to 2017 Wis. Act 369, Wisconsin law authorized the attorney general to represent the State in 15Furthermore, the default rule in Wisconsin is that statutes are severable. See Wis. Stat. § 990.001(11) ("If any provision of the statutes or of a session law is invalid, or the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application."). 24 Nos. 2019AP614-LV & 2019AP622 litigation and to settle cases in the State's best interest. Provisions of 2017 Wis. Act 369 substantially changed that. See § 5 (Wis. Stat. § 13.365); § 26 (Wis. Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); and § 97 (Wis. Stat. § 803.09(2m)). ¶51 Previously, the legislature had limited power to intervene in litigation. Now, Wis. Stat. § 13.365 and Wis. Stat. § 803.09(2m) give three state legislative committees, each acting on behalf of a particular legislative entity——the assembly, the senate, and the whole legislature, respectively——the power to intervene in an action in state or federal court when a party argues a state statute is unconstitutional or "preempted by federal law," "or otherwise challenges [the statute's] construction or validity."16 16 Wisconsin Stat. § 13.365 provides: Pursuant to [Wis. Stat. §] 803.09(2m), when a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense: (1) The committee on assembly organization may intervene at any time in the action on behalf of the assembly. The committee on assembly organization may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under [Wis. Stat. §] 20.765(1)(a), to represent the assembly in any action in which the assembly intervenes. (2) The committee on senate organization may intervene at any time in the action on behalf of the senate. The committee on senate organization may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation 25 Nos. 2019AP614-LV & 2019AP622 ¶52 In addition, prior to Act 369, the attorney general had the power in many cases to settle litigation impacting the State as he thought in the best interest of the State. In Wis. Stat. § 165.08(1) and Wis. Stat. § 165.25(6)(a)1., much of that unilateral power has been removed and is now subject to legislative approval. ¶53 Wisconsin Stat. § 165.08(1) provides that the Department of Justice (DOJ), the agency headed by the attorney general, cannot settle or discontinue a case prosecuted by the attorney general unless either the legislative intervenor approves, or if the legislature has not intervened, DOJ receives approval from the under [Wis. Stat. §] 20.765(1)(b), to represent the senate in any action in which the senate intervenes. (3) The joint committee on legislative organization may intervene at any time in the action on behalf of the legislature. The joint committee on legislative organization may obtain legal counsel other than from the department of justice, with the cost of representation paid from the appropriation under [Wis. Stat. §] 20.765(1)(a) or (b), as determined by the cochairpersons, to represent the legislature in any action in which the joint committee on legislative organization intervenes. While Wis. Stat. § 803.09(2m) states: When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense, the assembly, the senate, and the legislature may intervene as set forth under [Wis. Stat. §] 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in [Wis. Stat. §] 801.14. 26 Nos. 2019AP614-LV & 2019AP622 Joint Committee on Finance (JFC). Further, if DOJ wishes to concede the validity of a statute, "it must first get permission from the joint committee on legislative organization before asking the joint committee on finance." § 165.08(1).17 ¶54 Wisconsin Stat. § 165.25(6)(a)1. amends the power of the attorney general to settle actions seeking injunctive relief or involving a proposed consent decree. In such cases, the attorney general must obtain the approval of any legislative intervenor. If no legislative entity has intervened, the new law establishes a multi-phase approval process with JFC. DOJ must first submit a plan to JFC. The JFC co-chairs, in turn, have 14 working days to notify the attorney general that the committee will meet to review the plan. If the attorney general receives notification from the committee of a meeting, the attorney general is required to obtain permission from JFC in order to settle. Moreover, the attorney 17 Wisconsin Stat. § 165.08(1) states: Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under [Wis. Stat. §] 803.09(2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan. No proposed plan may be submitted to the joint committee on finance if the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization. 27 Nos. 2019AP614-LV & 2019AP622 general cannot submit a plan that concedes "the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law," without first getting approval from the Joint Committee on Legislative Organization. § 165.25(6)(a)1.18 18 Wisconsin Stat. § 165.25(6)(a)1. now provides: At the request of the head of any department of state government, the attorney general may appear for and defend any state department, or any state officer, employee, or agent of the department in any civil action or other matter brought before a court or an administrative agency which is brought against the state department, or officer, employee, or agent for or on account of any act growing out of or committed in the lawful course of an officer's, employee's, or agent's duties. Witness fees or other expenses determined by the attorney general to be reasonable and necessary to the defense in the action or proceeding shall be paid as provided for in [Wis. Stat. §] 885.07. The attorney general may compromise and settle the action as the attorney general determines to be in the best interest of the state except that, if the action is for injunctive relief or there is a proposed consent decree, the attorney general may not compromise or settle the action without the approval of an intervenor under [Wis. Stat. §] 803.09(2m) or, if there is no intervenor, without first submitting a proposed plan to the joint committee on finance. If, within 14 working days after the plan is submitted, the cochairpersons of the committee notify the attorney general that the committee has scheduled a meeting for the purpose of reviewing the proposed plan, the attorney general may compromise or settle the action only with the approval of the committee. The attorney general may not submit a proposed plan to the joint committee on finance under this subdivision in which the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization. 28 Nos. 2019AP614-LV & 2019AP622 ¶55 The Plaintiffs argue (and the Governor and Attorney General agree) that this takes a core executive power and gives it to the legislature in violation of the separation of powers.19 Specifically, they maintain that such a requirement impermissibly limits the governor's duty to "take care that the laws be faithfully executed." Wis. Const. art. V, § 4. If deemed a shared power, the Plaintiffs and Attorney General argue that these provisions substantially burden the executive branch in violation of the separation of powers. The Legislative Defendants offer two main defenses, and we take each in turn. ¶56 First, the Legislative Defendants argue these provisions are constitutional because the attorney general has no inherent constitutional powers, and the powers that are statutorily granted are therefore entirely subject to legislative modification. With this, they argue that because the attorney general is not the governor (whom the Wisconsin Constitution specifically "vests" with the executive power), any modifications to the attorney general's power cannot implicate the separation of powers. ¶57 We disagree. Our constitution describes only three types of power——legislative, executive, and judicial. When pressed to say at oral argument what exactly the attorney general is doing if not executing the law, the Legislative Defendants had no good answer. There is none. The attorney general is assuredly 19"Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them." Koschkee v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting Schuette v. Van De Hey, 205 Wis. 2d 475, 480-81, 556 N.W.2d 127 (Ct. App. 1996)). 29 Nos. 2019AP614-LV & 2019AP622 a member of the executive branch whose duties consist in executing the law. ¶58 The constitution itself plainly acknowledges officers other than the governor who may permissibly deploy executive power. Article IV, Section 28 requires "Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted," to take an oath before entering upon the duties of their office. Wis. Const. art. IV, § 28 (emphasis added). The only fair reading of this is that there are other executive officers besides the governor. ¶59 Article VI of the constitution covers administrative officers. This article establishes three statewide officers——the secretary of state, the treasurer, and the attorney general. Id. art. VI, §§ 2, 3. It also establishes various county officers, including coroners, registers of deeds, district attorneys, sheriffs, and chief executive officers. Id. art. VI, § 4. But these administrative officers do not constitute a separate "administrative" branch of government carrying out something called "administrative" power. We have repeatedly recognized that the constitution describes only three types of government power and creates only three branches of government. Panzer v. Doyle, 2004 WI 52, ¶48, 271 Wis. 2d 295, 680 N.W.2d 666 ("Our state constitution has created three branches of government, each with distinct functions and powers."), overruled on other grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408; Gabler, 376 Wis. 2d 147, ¶11 (same); 30 Nos. 2019AP614-LV & 2019AP622 State v. Washington, 83 Wis. 2d 808, 816, 825, 266 N.W.2d 597 (1978) (same). ¶60 While the constitution vests executive power in the governor and also places primary responsibility on the governor to see that the laws are faithfully executed (Wis. Const. art. V, §§ 1, 4), our cases have made clear that these "administrative" officers carry out executive functions. In 1855, just a few short years after adoption of the Wisconsin Constitution, Justice Abram Smith observed "that sheriffs, coroners, registers of deeds, and district attorneys . . . are a part of the executive department." Attorney Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 795 (1855). Just last term we held that the superintendent of public instruction "has the executive constitutional function to supervise public instruction." Koschkee v. Taylor, 2019 WI 76, ¶¶2, 25-29, 387 Wis. 2d 552, 929 N.W.2d 600. We have also said that state administrative agencies "are considered part of the executive branch." Id., ¶14. DOJ, through which the attorney general carries out his functions, is such an administrative agency and therefore part of the executive branch. See Wis. Stat. § 15.01(5) and Wis. Stat. § 15.25 (creating the "executive branch" agency, the department of justice, "under the direction and supervision of the attorney general"). And we have explicitly made this point with reference to the attorney general himself, calling him "a high constitutional executive officer." State v. Woodington, 31 Wis. 2d 151, 167, 142 N.W.2d 810 (1966); see also Milo M. Quaife, The Struggle Over Ratification 1846-47, at 456 ("The subordinate executive, or as they are called, administrative 31 Nos. 2019AP614-LV & 2019AP622 officers, are a secretary of state who is ex officio auditor, a treasurer, and an attorney general . . . ."). ¶61 The Legislative Defendants also hang their hat on Oak Creek where we held that the attorney general has no constitutionally granted powers. State v. City of Oak Creek, 2000 WI 9, ¶¶24, 55, 232 Wis. 2d 612, 605 N.W.2d 526. The powers the attorney general does have, we explained, "are prescribed only by statutory law," and the attorney general "has no common-law powers or duties." Id., ¶¶21, 24 (quoted source omitted); see also State v. Snyder, 172 Wis. 415, 417, 179 N.W. 579 (1920) ("In this state the attorney general has no common-law powers or duties."). ¶62 This principle is true, but inapplicable to the case at hand. The question in this case is not whether the legislature may give or take powers away from the attorney general; it may. The question is whether the legislature may participate in carrying out the executive branch functions previously assigned to the attorney general. Or said another way, the question is not whether the legislature may circumscribe the attorney general's executive powers, but whether it may assume them, at least in part, for itself. Thus, Oak Creek is inapposite to the separation-of-powers argument at the heart of this case. ¶63 The Legislative Defendants offer a second argument, this one with more traction. They argue that the attorney general's power to litigate on behalf of the State is not, at least in all circumstances, within the exclusive zone of executive authority. We agree. While representing the State in litigation is predominately an executive function, it is within those 32 Nos. 2019AP614-LV & 2019AP622 borderlands of shared powers, most notably in cases that implicate an institutional interest of the legislature. ¶64 One kind of institutional interest is reflected in the statutory language authorizing the attorney general to represent the State or state officials at the request of the legislature. Wis. Stat. § 165.25(1m). Early enactments following the adoption of the constitution are appropriately given special weight. Oak Creek, 232 Wis. 2d 612, ¶18. This is because these enactments are likely to reflect the original public meaning of the constitutional text. See id., ¶¶29-31; Koschkee, 387 Wis. 2d 552, ¶32. In that vein, the attorney general was granted the power, even the duty, to represent the legislature or to represent the State at the request of the legislature from our state's earliest days. ¶65 When the Wisconsin Constitution created the office of attorney general, it specified that his duties "shall be prescribed by law." Oak Creek, 232 Wis. 2d 612, ¶15 (quoting Wis. Const. art. IV, § 3 (1846) (proposed)); Wis. Const. art. VI, § 3. So the first legislature of our new state went about prescribing those duties by statute. In 1848, the same year the constitution was adopted, the legislature enacted a law requiring the attorney general to "appear for the state in any court or tribunal in any other causes criminal or civil in which the state may be a party or be interested," and this was to occur "when required by the governor or either branch of the legislature." An Act concerning the Attorney General, Wis. Laws 1848 (emphasis added). This language was modified in 1849: "[W]hen requested by the governor or either branch of the legislature," the attorney general was 33 Nos. 2019AP614-LV & 2019AP622 required to "appear for the people of this state, and prosecute or defend in any other court, or before any officer, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested." Wis. Stat. ch. 9, § 36 (1849) (emphasis added). ¶66 This language remains substantially the same today. See Wis. Stat. § 165.25(1m).20 Therefore, under the law since our state's founding, the attorney general may defend a legislative official, employee, or body. And either house of the legislature can request the attorney general to "prosecute or defend in any court or before any officer, any cause or matter, civil or 20 Wisconsin Stat. § 165.25(1m) provides: The department of justice shall: . . . . (1m) REPRESENT STATE IN OTHER MATTERS. If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested. The joint committee on legislative organization may intervene as permitted under [Wis. Stat. §] 803.09(2m) at any time. The public service commission may request under [Wis. Stat. §] 196.497(7) that the attorney general intervene in federal proceedings. All expenses of the proceedings shall be paid from the appropriation under [Wis. Stat. §] 20.455(1)(d). (Emphasis added.) 34 Nos. 2019AP614-LV & 2019AP622 criminal, in which the state or the people of this state may be interested." Id. ¶67 These early prescriptions, adopted nearly contemporaneously with the adoption of our state constitution, reflect an understanding that the attorney general's role is not, at least in all cases, a core executive function. The legislature's institutional interest as a represented party, and as one that can authorize the attorney general to prosecute cases, puts at least some of these cases within the zone of shared powers. ¶68 Another on-point institutional interest of the legislature is spelled out in the constitution. Article VIII, Section 2 states in relevant part, "No money shall be paid out of the treasury except in pursuance of an appropriation by law." Wis. Const. art. VIII, § 2. The legislature, of course, is the branch granted the power to enact laws. Id. art. IV, § 17. ¶69 The takeaway is that the constitution gives the legislature the general power to spend the state's money by enacting laws. Therefore, where litigation involves requests for the state to pay money to another party, the legislature, in at least some cases, has an institutional interest in the expenditure of state funds sufficient to justify the authority to approve certain settlements. The Attorney General himself conceded during oral argument that Wis. Stat. § 165.25(6)(a)1. has constitutional applications where the power of the purse is implicated. ¶70 Other state legislatures appear to have this power as well under various circumstances. See Ariz. Rev. Stat. Ann. § 41- 621(N) (2019) (requiring approval of some settlements by joint 35 Nos. 2019AP614-LV & 2019AP622 legislative budget committee after reaching certain dollar threshold); Conn. Gen. Stat. Ann. § 3-125a(a) (2019) (requiring approval of settlements exceeding certain dollar threshold by the legislature); Neb. Rev. Stat. § 81-8,239.05(4) (2018) (requiring legislative approval in order to pay punitive damages); Okla. Stat. Ann. tit. 51 § 200(A)(1) (2019) (requiring legislative approval for settlement or consent decrees above certain dollar threshold); Utah Code Ann. § 63G-10-202 (2018) (same). Although the practice of other states is not determinative of the constitutional questions before us, this generally reflects a shared understanding that legitimate institutional, even constitutional, legislative interests may be implicated when the attorney general purports to enter settlement agreements affecting state appropriations. ¶71 These institutional interests of the legislature are sufficient to defeat the facial challenge to the provisions authorizing legislative intervention in certain cases, and those requiring legislative consent to defend and prosecute certain cases. Namely, where a legislative official, employee, or body is represented by the attorney general, the legislature has, in at least some cases, an institutional interest in the outcome of that litigation. Similarly, where a legislative body is the principal authorizing the attorney general's representation in the first place, the legislature has an institutional interest in the outcome of that litigation in at least some cases. This is true where the attorney general's representation is in defense of the legislative official, employee, or body, or where a legislative body is the 36 Nos. 2019AP614-LV & 2019AP622 principal authorizing the prosecution of a case. And in cases where spending state money is at issue, the legislature has a constitutional institutional interest in at least some cases sufficient to allow it to require legislative agreement with certain litigation outcomes, or even to allow it to intervene. ¶72 Because this is a facial challenge, and there are constitutional applications of these laws, that challenge cannot succeed. In at least some cases, the legislature may permissibly give itself the power to consent to an agreement where the action involves injunctive relief or a proposed consent decree (Wis. Stat. § 165.25(6)(a)1.), or in the compromise or discontinuance of a matter being prosecuted (Wis. Stat. § 165.08). In at least some cases, we see no constitutional violation in allowing the legislature to intervene in litigation concerning the validity of a statute, at least where its institutional interests are implicated.21 See Wis. Stat. § 13.365; Wis. Stat. § 803.09(2m). As we have explained, because the Plaintiffs have not met their burden to prove these provisions may not be constitutionally The legislature, or its committees or members, have 21 litigated cases in Wisconsin impacting potential institutional interests throughout the history of the state. See Risser v. Klauser, 207 Wis. 2d 176, 180, 558 N.W.2d 108 (1997) (original action brought by several legislators against the governor); Citizens Util. Bd. v. Klauser, 194 Wis. 2d 484, 487-88, 534 N.W.2d 608 (1995) (original action brought by citizens utility board and several legislators against the governor and the secretary of the Department of Administration); State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 433, 424 N.W.2d 385 (1988) (original action brought by, among other petitioners, the senate and assembly against the governor). 37 Nos. 2019AP614-LV & 2019AP622 applied under any circumstances, the motion to dismiss the Plaintiffs' facial challenge should have been granted.22 ¶73 We stress that this decision is limited. We express no opinion on whether individual applications or categories of applications may violate the separation of powers, or whether the legislature may have other valid institutional interests supporting application of these laws. But the facial challenge seeking to strike down Wis. Stat. § 13.365; Wis. Stat. § 165.08(1); Wis. Stat. § 165.25(6)(a)1.; and Wis. Stat. § 803.09(2m) in their entirety——the only claim developed before us——does not succeed. Given this, the order enjoining these provisions is vacated as well. 2. Capitol Security ¶74 The Plaintiffs also challenge the constitutionality of 2017 Wis. Act 369, § 16 (Wis. Stat. § 16.84(2m)), which grants the Joint Committee of Legislative Organization (JCLO) the authority to review and approve changes proposed by the Department of Administration (DOA) to security at the Capitol.23 This new 22 As explained above, the attorney general's litigation authority is not, in at least some cases, an exclusive executive power. These types of cases fall under a shared powers analysis. Where the legislature has appropriate institutional interests, legislative exercise of this shared power in at least some cases does not unduly burden or substantially interfere with the attorney general's executive authority. Hence, the facial challenge gets nowhere under an "unduly burdensome" shared powers analysis. 23This provision, Wis. Stat. § 16.84(2m), which was not enjoined by the circuit court, states as follows: 38 Nos. 2019AP614-LV & 2019AP622 provision requires DOA to notify JCLO of any proposed security changes. § 16.84(2m). If JCLO does not notify DOA within 14 days that a meeting has been scheduled to discuss the proposed changes, DOA may implement those changes. Id. However, if JCLO schedules a meeting to discuss the proposal, DOA may proceed with the proposed changes only with the approval of JCLO. Id. The statute also provides an exception if there is risk of imminent danger. Id. ¶75 The Legislative Defendants contend this section is squarely permissible within the framework of J.F. Ahern Co. v. Wisconsin State Building Commission, 114 Wis. 2d 69, 336 N.W.2d 679 (Ct. App. 1983), and Martinez, 165 Wis. 2d 687. Specifically, the Legislative Defendants maintain this is "a cooperative venture" with the "proper standards or safeguards" to Send notice to the joint committee on legislative organization of any proposed changes to security at the capitol, including the posting of a firearm restriction under [Wis. Stat. §] 943.13 (1m)(c)2. or 4. If, within 14 working days after the date of the notice, the cochairpersons of the joint committee on legislative organization do not notify the department that the committee has scheduled a meeting to review the department's proposal, the department may implement the changes as proposed in the notice. If, within 14 working days after the date of the department's notice, the cochairpersons of the committee notify the department that the committee has scheduled a meeting to review the department's proposal, the department may implement the proposed changes only upon approval of the committee. If there is a risk of imminent danger, the department may take any action related to security at the capitol that is necessary to prevent or mitigate the danger and the cochairpersons may review the action later if the cochairpersons determine review is necessary. 39 Nos. 2019AP614-LV & 2019AP622 avoid a separation-of-powers violation. Ahern, 114 Wis. 2d at 108; Martinez, 165 Wis. 2d at 701 (quoted source omitted). The Plaintiffs characterize this section as an impermissible legislative veto that violates bicameralism and presentment as well as the constitution's quorum requirement. See Wis. Const. art. IV, § 7; id. art. V, § 10. ¶76 Ahern correctly noted that the construction and maintenance of public buildings is an executive function. 114 Wis. 2d at 106. In fact, the legislature created DOA and granted it broad duties to construct and repair state buildings, among other tasks. Wis. Stat. § 15.10; Wis. Stat. § 16.85. See generally Wis. Stat. ch. 16. However, before the enactment of Wis. Stat. § 16.84(2m), the legislature, by statute, created and implemented limitations on DOA's authority. For example, Wis. Stat. § 16.843 denotes where and how vehicles may park around the Capitol. Likewise, even before § 16.84(2m) was enacted, DOA's authority to use state buildings for public events did not include the areas of the Capitol reserved for use by the legislature. See Wis. Admin. Code § DOA 2.04(1) (July 2014). ¶77 We conclude that control of at least legislative space in the Capitol is a shared power between the legislature and executive branches. It logically follows that if the legislature can control the use of legislative space, as it already does in many ways, it can also control the security measures put in place for use of that space. Because there are at the very least some constitutional applications of this provision, the facial challenge to Wis. Stat. § 16.84(2m) cannot succeed. 40 Nos. 2019AP614-LV & 2019AP622 3. Multiple Suspensions of Administrative Rules ¶78 The Plaintiffs also challenge 2017 Act 369, § 64 (Wis. Stat. § 227.26(2)(im)), which allows the Joint Committee for Review of Administrative Rules (JCRAR) to suspend a rule more than once.24 ¶79 Wisconsin agencies are required to promulgate rules for "each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute." Wis. Stat. § 227.10(1). When promulgated as required by statute, rules have "the force of law." Wis. Stat. § 227.01(13). Current statutory law authorizes JCRAR to review rules prior to promulgation, and to suspend rules following promulgation. See Wis. Stat. § 227.19; Wis. Stat. § 227.26. The legislature can establish the procedures by which an agency promulgates rules, and can even take away rulemaking authority altogether. Koschkee, 387 Wis. 2d 552, ¶20. Additionally, the legislature may limit or retract its delegation of rulemaking authority, review rules prior to implementation, and determine the methods agencies must use to promulgate rules. Id. ¶80 In Martinez, this court addressed the constitutionality of this temporary rule suspension power. 165 Wis. 2d at 691. We upheld the ability of JCRAR to temporarily suspend a rule for three months, reasoning that "[i]t is appropriate for the legislature to 24This new paragraph states: "Notwithstanding pars. (i) and (j), the committee may act to suspend a rule as provided under this subsection multiple times." Wis. Stat. § 227.26(2)(im). 41 Nos. 2019AP614-LV & 2019AP622 delegate rule-making authority to an agency while retaining the right to review any rules promulgated under the delegated power." Id. at 698. In so doing, we also stressed the importance of the temporary nature of the suspension. Id. at 699-700. To permanently repeal a suspended rule, the legislature must pass a bill in both houses and have it signed by the governor. Id. If no repeal occurs, the rule remains in effect and cannot be suspended again. Id. at 700. This structure, we concluded, did not violate the separation of powers. Id. at 700-01. ¶81 Under the new legislative changes, the legislature may impose the temporary three-month suspension addressed in Martinez multiple times. The parties do not ask us to revisit Martinez or any of its conclusions. Under Martinez, an endless suspension of rules could not stand; there exists at least some required end point after which bicameral passage and presentment to the governor must occur. Id. at 700. But also under Martinez, a single temporary three-month suspension is permissible. ¶82 Accepting these boundary markers, if one three-month suspension is constitutionally permissible, two three-month suspensions are as well. Under such a scenario, the six-month (rather than three-month) delay would still be followed by acceptance of the rule or repeal through bicameral passage and presentment. This fits comfortably within the unchallenged reasoning of Martinez——a modest suspension that is temporary in nature. ¶83 Again, this case comes to us as a facial challenge. To succeed, every application of this law must be found 42 Nos. 2019AP614-LV & 2019AP622 unconstitutional. Because this provision has constitutional applications, the facial challenge must necessarily fail. To strike down all applications of this law, or to draw a line in the future under which an additional suspension is too long is exactly the sort of speculation that counsels caution and a narrow application of Martinez in the context of a facial challenge. The facial challenge to Wis. Stat. § 227.26(2)(im) must be dismissed on remand, and the order enjoining this provision is thereby vacated as well. 4. Agency Deference Provision ¶84 The Plaintiffs also challenge the constitutionality of 2017 Wis. Act 369, § 35 (Wis. Stat. § 227.10(2g)), which provides: "No agency may seek deference in any proceeding based on the agency's interpretation of any law." This provision partially codifies our holding in Tetra Tech where we ended "our practice of deferring to administrative agencies' conclusions of law." 382 Wis. 2d 496, ¶108. Given our own decision that courts should not defer to the legal conclusions of an agency, a statute instructing agencies not to ask for such deference is facially constitutional. III. CONCLUSION ¶85 This writing constitutes the majority opinion of the court on all issues raised in this case other than the guidance document provisions, which are addressed in Justice Kelly's opinion for the court. With respect to the issues addressed in this opinion, we conclude as follows. 43 Nos. 2019AP614-LV & 2019AP622 ¶86 For all provisions where arguments were sufficiently developed, the Legislative Defendants have successfully shown that the motion to dismiss the facial challenge to these laws should have been granted. On remand, we direct the circuit court to grant the motion to dismiss with respect to these provisions.25 We also vacate the temporary injunction in full for all provisions addressed in this opinion.26 We stress that we pass no judgment on the constitutionality of individual applications or categories of applications of these laws. The judicial power is at once immense, yet modest. While it is our solemn obligation to say what the law is, that power extends to deciding only the cases and claims actually presented. And that is what we do today.27 By the Court.—The judgment of the circuit court is affirmed in part and reversed in part, the temporary injunction is vacated in part, and the cause is remanded for further proceedings Specifically, we reverse the circuit court's order denying 25 the motion to dismiss with respect to: 2017 Wis. Act 369, § 5 (Wis. Stat. § 13.365); § 16 (Wis. Stat. § 16.84(2m)); § 26 (Wis. Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 35 (Wis. Stat. § 227.10(2g)); § 64 (Wis. Stat. § 227.26(2)(im)); and § 97 (Wis. Stat. § 803.09(2m)). The circuit court's temporary injunction is vacated with 26 respect to the following provisions: 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)); § 30 (Wis. Stat. § 165.25(6)(a)1.); § 64 (Wis. Stat. § 227.26(2)(im)). Following oral argument, the Attorney General moved 27 to modify the stay of the temporary injunction that we imposed on June 11, 2019. As we remand this case for the circuit court to issue an order vacating its temporary injunction order in part, we deny the Attorney General's motion. 44 Nos. 2019AP614-LV & 2019AP622 consistent with this opinion and the opinion of Justice Daniel Kelly. 2 Nos. 2019AP614-LV & 2019AP622.dk ¶87 DANIEL KELLY, J. The great Justice Joseph Story once said "the three great powers of government . . . should for ever be kept separate and distinct." 2 Joseph Story, Commentaries on the Constitution of the United States § 519, at 2-3 (Boston, Hilliard, Gray, & Co. 1833). We agree. As a consequence, we conclude that when the legislature prohibited the executive branch from communicating with the public through the issuance of guidance documents without first going through a pre-clearance process and including legislatively-mandated content, it invaded the executive branch's exclusive province to "take care that the laws be faithfully executed." Wis. Const. art. V, § 4. ¶88 This opinion is the opinion of the court with respect to 2017 Wis. Act 369, §§ 31, 33, 38, 65-71, and 104-105, all of which address (at least in part) the subject of guidance documents. Here, we explain why § 33 (to the extent it applies to guidance documents) and § 38 unconstitutionally intrude on power the constitution vested in the executive branch of government. We also describe why § 31 (which defines what a guidance document is), §§ 65-71 (to the extent they provide judicial review of guidance documents), and §§ 104-05 (which describe the applicability and effective date of § 33) are not facially unconstitutional. 1 Nos. 2019AP614-LV & 2019AP622.dk I. BACKGROUND1 ¶89 "Guidance documents" are not conceptually new to administrative agencies, although they had no statutory definition until the Act created Wis. Stat. § 227.01(3m) (2017-18)2 to read as follows: (a) "Guidance document" means, except as provided in par. (b), any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that does any of the following: 1. Explains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency. 2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected. 2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)). ¶90 The Act regulates guidance documents in several ways, the following two of which implicate the boundaries between the executive and legislative branches. The first is § 33, which requires administrative agencies (with some exceptions) to identify existing law that supports a guidance document's contents: 1 The part of the court's opinion authored by Justice Brian Hagedorn provides the broad background strokes necessary to consider SEIU's claims. In this part of the court's opinion, we provide some additional context for our treatment of the "guidance document" provisions of 2017 Wis. Act 369. 2 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 2 Nos. 2019AP614-LV & 2019AP622.dk Agency publications. An agency, other than the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds, shall identify the applicable provision of federal law or the applicable state statutory or administrative code provision that supports any statement or interpretation of law that the agency makes in any publication, whether in print or on the agency's Internet site, including guidance documents, forms, pamphlets, or other informational materials, regarding the laws the agency administers. 2017 Wis. Act. 369, § 33 (Wis. Stat. § 227.05). The second is § 38, which describes the procedure an administrative agency must follow when creating a guidance document. (1)(a) Before adopting a guidance document, an agency shall submit to the legislative reference bureau the proposed guidance document with a notice of a public comment period on the proposed guidance document under par. (b), in a format approved by the legislative reference bureau, for publication in the register. The notice shall specify the place where comments should be submitted and the deadline for submitting those comments. (b) The agency shall provide for a period for public comment on a proposed guidance document submitted under par. (a), during which any person may submit written comments to the agency with respect to the proposed guidance document. Except as provided in par. (c), the period for public comment shall end no sooner than the 21st day after the date on which the proposed guidance document is published in the register under s. 35.93(2)(b)3.im. The agency may not adopt the proposed guidance document until the comment period has concluded and the agency has complied with par. (d). (c) An agency may hold a public comment period shorter than 21 days with the approval of the governor. (d) An agency shall retain all written comments submitted during the public comment period under par. (b) and shall consider those comments in determining whether to adopt the guidance document as originally proposed, modify the proposed guidance document, or take any other action. 3 Nos. 2019AP614-LV & 2019AP622.dk (2) An agency shall post each guidance document that the agency has adopted on the agency's Internet site and shall permit continuing public comment on the guidance document. The agency shall ensure that each guidance document that the agency has adopted remains on the agency's Internet site as provided in this subsection until the guidance document is no longer in effect, is no longer valid, or is superseded or until the agency otherwise rescinds its adoption of the guidance document. (3) A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, requirement, or threshold, including as a term or condition of any license. An agency that proposes to rely on a guidance document to the detriment of a person in any proceeding shall afford the person an adequate opportunity to contest the legality or wisdom of a position taken in the guidance document. An agency may not use a guidance document to foreclose consideration of any issue raised in the guidance document. (4) If an agency proposes to act in any proceeding at variance with a position expressed in a guidance document, it shall provide a reasonable explanation for the variance. If an affected person in any proceeding may have relied reasonably on the agency's position, the explanation must include a reasonable justification for the agency's conclusion that the need for the variance outweighs the affected person's reliance interest. (5) Persons that qualify under s. 227.12 to petition an agency to promulgate a rule may, as provided in s. 227.12, petition an agency to promulgate a rule in place of a guidance document. (6) Any guidance document shall be signed by the secretary or head of the agency below the following certification: "I have reviewed this guidance document or proposed guidance document and I certify that it complies with sections 227.10 and 227.11 of the Wisconsin Statutes. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold that is not explicitly required or explicitly permitted by a statute or a rule that has been lawfully promulgated. I further certify that the guidance document or proposed guidance document contains no standard, requirement, or threshold 4 Nos. 2019AP614-LV & 2019AP622.dk that is more restrictive than a standard, requirement, or threshold contained in the Wisconsin Statutes." (7)(a) This section does not apply to guidance documents adopted before the first day of the 7th month beginning after the effective date of this paragraph . . . [LRB inserts date], but on that date any guidance document that has not been adopted in accordance with sub. (1) or that does not contain the certification required under sub. (6) shall be considered rescinded. (b) This section does not apply to guidance documents or proposed guidance documents of the Board of Regents of the University of Wisconsin System, the Technical College System Board, or the department of employee trust funds. (8) The legislative council staff shall provide agencies with assistance in determining whether documents and communications are guidance documents that are subject to the requirements under this section. 2017 Wis. Act. 369, § 38 (Wis. Stat. § 227.112). ¶91 SEIU alleges § 38 violates the separation of powers, and Governor Tony Evers alleges that, to the extent it addresses guidance documents, § 33 does the same. For the following reasons, we agree. II. STANDARD OF REVIEW ¶92 We are reviewing the circuit court's denial of the Legislative Defendants'3 motion to dismiss the plaintiffs' complaint, as well as the temporary injunction the circuit court granted with respect to §§ 31, 33, 38, 65-71, and 104-05. The motion to dismiss asserted that the plaintiffs' complaint failed to state a claim upon which relief could be granted. "Whether a 3 The "Legislative Defendants," who were sued in their official capacity, are Wisconsin Assembly Speaker Robin Vos, Wisconsin Senate President Roger Roth, Wisconsin Assembly Majority Leader Jim Steineke, and Wisconsin Senate Majority Leader Scott Fitzgerald. 5 Nos. 2019AP614-LV & 2019AP622.dk complaint states a claim upon which relief can be granted is a question of law for our independent review[.]" Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693. The motion puts at issue whether the guidance document provisions of 2017 Wis. Act 369 are facially unconstitutional. A statute is facially unconstitutional only when it "cannot be enforced 'under any circumstances.'" Mayo v. Wisconsin Injured Patients & Families Comp. Fund, 2018 WI 78, ¶24, 383 Wis. 2d 1, 914 N.W.2d 678 (quoted source omitted). ¶93 A circuit court may issue a temporary injunction if: "(1) the movant is likely to suffer irreparable harm if a temporary injunction is not issued; (2) the movant has no other adequate remedy at law; (3) a temporary injunction is necessary to preserve the status quo; and (4) the movant has a reasonable probability of success on the merits." Milwaukee Deputy Sheriffs' Ass'n v. Milwaukee Cty., 2016 WI App 56, ¶20, 370 Wis. 2d 644, 883 N.W.2d 154 (citing Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 520–21, 259 N.W.2d 310 (1977)). We review the circuit court's decision to issue a temporary injunction for an erroneous exercise of discretion. Id. III. ANALYSIS ¶94 Our inquiry into the constitutionality of the Act's guidance document provisions requires that we determine whether the creation of such a document represents the exercise of executive as opposed to legislative power. We then assess whether the Act's guidance document provisions impermissibly encroach on the executive branch's authority to promulgate those documents. 6 Nos. 2019AP614-LV & 2019AP622.dk A. The Nature of Executive and Legislative Powers ¶95 It is common knowledge that the Wisconsin Constitution organizes our government in a tripartite structure. Goodland v. Zimmerman, 243 Wis. 459, 466-67, 10 N.W.2d 180 (1943) ("[G]overnmental powers are divided among the three departments of government, the legislative, the executive, and judicial[.]"). At the risk of oversimplification, the legislature's authority comprises the power to make the law,4 whereas the executive's authority consists of executing the law.5 The distinction between the two has been described as the difference between the power to prescribe and the power to put something into effect: In 1792, Jacques Necker, the famous French statesman, neatly summed up the function and significance of the executive power. Of the function: "[I]f by a fiction we were for a moment to personify the legislative and the executive powers, the latter in speaking of the former might . . . say: All that this man has talked of, I will perform." Of the significance: "The laws would in effect be nothing more than counsels, than so many maxims more or less sage, without this active and vigilant authority, which assures their empire and transmits to the administration the motion of which it stands in need." Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701, 819 (2003) (quoted source omitted). This commentator concluded that, "[i]n the late-eighteenth century, someone vested with the executive power and christened as the chief executive enjoyed the power to control the execution of law." Id. 4"The legislative power shall be vested in a senate and assembly." Wis. Const. art. IV, § 1. 5"The executive power shall be vested in a governor." Wis. Const. art. V, § 1. 7 Nos. 2019AP614-LV & 2019AP622.dk ¶96 The executive, however, is not a legislatively- controlled automaton. Before executing, he must of necessity determine for himself what the law requires him to do. As Alexander Hamilton said, "[h]e who is to execute the laws must first judge for himself of their meaning." See Alexander Hamilton, Letters of Pacificus No. 1 (June 29, 1793), reprinted in 4 The Works of Alexander Hamilton 438 (Henry Cabot Lodge ed. 1904). This is intrinsic to the very nature of executive authority. The executive must certainly interpret and apply the law; it would be impossible to perform his duties if he did not. After all, he must determine for himself what the law requires (interpretation) so that he may carry it into effect (application). Our constitution not only does not forbid this, it requires it. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶53, 382 Wis. 2d 496, 914 N.W.2d 21 (Kelly, J., lead op.). See also Wis. Const. art. V, § 1 ("The executive power shall be vested in a governor . . . ."); Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring) ("It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law . . . ."). 8 Nos. 2019AP614-LV & 2019AP622.dk ¶97 The executive oftentimes carries out his functions through administrative agencies.6 Although agencies have sometimes been criticized as a "headless fourth branch of government,"7 they are not——we have only three. Agencies must belong to one of them, and we have said before that they are one manifestation of the executive. Koschkee v. Taylor, 2019 WI 76, ¶14, 387 Wis. 2d 552, 929 N.W.2d 600 ("Agencies are considered part of the executive 6 See, e.g., Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 327 (2014) ("Under our system of government, Congress makes laws and the President, acting at times through agencies . . . 'faithfully execute[s]' them." (quoting U.S. Const. art. II, § 3 (alterations in original))); State ex rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 159, 277 N.W. 278 on reh'g, 228 Wis. 147, 280 N.W. 698 (1938) ("It is fundamental that under our constitutional system the governmental power to execute the laws is vested in the executive department of the state, and can be exercised only by duly constituted officers thereof."); DOR v. Nagle-Hart, Inc., 70 Wis. 2d 224, 226–27, 234 N.W.2d 350 (1975) ("It is for the department[s] to implement and carry out the mandate of the legislative enactments . . . and stop at the limits of such legislative mandate or direction."); Black & Decker, Inc. v. DILHR, No. 1988AP0409, unpublished slip op. (Sept. 15, 1988) (Wherein the court of appeals described the function of an agency as one of carrying out and implementing a legislative act.). 7 Peter L. Strauss Agencies' Place in Government, 84 Colum. L. Rev. 573, 578 (1984) (internal marks and quoted source omitted). 9 Nos. 2019AP614-LV & 2019AP622.dk branch.").8 This understanding is not unique to Wisconsin.9 And when an administrative agency acts (other than when it is exercising its borrowed rulemaking function), it is exercising executive power. See, e.g., Jones v. United States, 137 U.S. 202, 217 (1890) ("[T]here can be no doubt that it [the power "conferred on the president of the United States"] may be declared through the department of state, whose acts in this regard are in legal contemplation the acts of the president." (emphasis added)); Wolsey v. Chapman, 101 U.S. 755, 769 (1879) ("[T]he acts of the heads of departments, within the scope of their powers, are in law the acts of the President."); Mistretta v. United States, 488 U.S. 361, 424 (1989) (Scalia, J., dissenting) ("Although the This is also apparent from the fact that the governor 8 appoints agency secretaries, all of whom serve at the governor's pleasure. Wis. Stat. § 15.05(1)(a) ("If a department is under the direction and supervision of a secretary, the secretary shall be nominated by the governor, and with the advice and consent of the senate appointed, to serve at the pleasure of the governor."). See, e.g., Town of Walkerton v. New York, C. & St. L. R. 9 Co., 18 N.E. 2d 799, 803 (Ind. 1939) ("Under our form of government an administrative agency belongs to the executive department."); Barrett v. Tennessee Occupational Safety & Health Review Comm'n, 284 S.W. 3d 784, 789 (Tenn. 2009) ("Administrative agencies are part of the executive branch of government."); Meyers v. Chapman Printing Co., 840 S.W. 2d 814, 820 (Ky. 1992) ("Decisionmaking performed by an administrative agency is an executive function."); Judges of 74th Judicial Dist. v. Bay Cty., 190 N.W. 2d 219, 226 (Mich. 1971) ("Administrative agencies are a part of the executive branch of government. While they often act in a quasi-judicial capacity, it is recognized that they are established to perform essentially executive functions."); Matter of Kallen, 455 A. 2d 460, 463 (N.J. 1983) ("Administrative agencies are the arms of the executive branch of government that implement the laws passed by the Legislature."); Muddy Boys, Inc. v. Dep't of Commerce, 440 P. 3d 741, 747 (Ut. Ct. App. 2019) ("[A]dministrative agencies are part of the executive."). 10 Nos. 2019AP614-LV & 2019AP622.dk Constitution says that '[t]he executive Power shall be vested in a President of the United States of America,' [U.S. Const.] Art. II, § 1, it was never thought that the President would have to exercise that power personally. He may generally authorize others to exercise executive powers, with full effect of law, in his place." (alterations in original)).; Frank B. Cross, Executive Orders 12,291 and 12,498: A Test Case in Presidential Control of Executive Agencies, 4 J.L. & Pol. 483, 507 (1988) ("Obviously, one person cannot execute all the functions of government personally. In order to carry out his constitutional responsibility, the president must delegate his authority to other executive officers."). ¶98 In addition to the executive power that agencies exercise as a consequence of their placement in the executive branch, they also exercise some limited legislative power. This second type of authority depends entirely on the legislature's delegation of the power to promulgate rules that have the force and effect of law. Wis. Stat. § 227.11(2) ("Rule-making authority is expressly conferred on an agency[.]"); Kieninger v. Crown Equip. Corp., 2019 WI 27, ¶16 n.8, 386 Wis. 2d 1, 924 N.W.2d 172 ("Administrative rules enacted pursuant to statutory rulemaking authority have the force and effect of law in Wisconsin." (quoted source omitted)). We have recognized before that when an agency promulgates a rule, it is exercising "a legislative power[.]" Koschkee, 387 Wis. 2d 552, ¶39. An agency, however, "has no inherent constitutional authority to make rules . . . ." Martinez v. DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992). To the 11 Nos. 2019AP614-LV & 2019AP622.dk extent it exists, it comes solely through express delegation from the legislature. Because this capability is only on loan,10 agencies necessarily "remain subordinate to the legislature with regard to their rulemaking authority." Koschkee, 387 Wis. 2d 552, ¶18. ¶99 The constitutional authority of the executive encompasses determining what the law requires as well as applying it (preferably in that order). Because the executive's power is supplemented by a legislatively-delegated authority to promulgate rules that have the force and effect of law, we must determine what manner of authority an agency uses to create guidance documents before we can evaluate the legislature's right to control them. If it is a delegated rulemaking authority, then the legislature's power to dictate their content and manner of promulgation would be almost beyond question. If, however, the authority to create guidance documents is executive, then we must consider whether the legislature's reach extends far enough to control how members of the executive branch explain statutes and provide guidance or advice about how administrative agencies are likely to apply them. ¶100 Our analysis on this point necessarily begins with the undisputed understanding that a guidance document does not have the force or effect of law. The Act explicitly says so: "A guidance document does not have the force of law and does not provide the authority for implementing or enforcing a standard, "As a legislative creation, [an agency's] . . . rule- 10 making powers can be repealed by the legislature." Martinez v. DILHR, 165 Wis. 2d 687, 698, 478 N.W.2d 582 (1992). 12 Nos. 2019AP614-LV & 2019AP622.dk requirement, or threshold, including as a term or condition of any license." 2017 Wis. Act. 369, § 38 (Wis. Stat. § 227.112(3)). That's an important place to start because right away it establishes that, unlike a rule,11 the executive branch needs no borrowed authority from the legislature to create a guidance document. In fact, the executive was creating them long before the legislature passed the Act and gave them that name. The Act implicitly recognizes this by not even purporting to delegate the authority to create such documents to the executive——it assumed the power already resided there. ¶101 Having established that guidance documents are not rules, we must determine what manner of thing they are. The Act describes them as: [A]ny formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that does any of the following: 1. Explains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency. 2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected. 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)(a)1.-2.).12 11Koschkee v. Taylor, 2019 WI 76, ¶18, 387 Wis. 2d 552, 929 N.W.2d 600 (Executive "agencies ha[ve] no inherent constitutional authority to make rules[.]" (some alterations in original)). 12 The Act also describes what a guidance document is not: 13 Nos. 2019AP614-LV & 2019AP622.dk (b) "Guidance document" does not include any of the following: 1. A rule that has been promulgated and that is currently in effect or a proposed rule that is in the process of being promulgated. 2. A standard adopted, or a statement of policy or interpretation made, whether preliminary or final, in the decision of a contested case, in a private letter ruling under s. 73.035, or in an agency decision upon or disposition of a particular matter as applied to a specific set of facts. 3. Any document or activity described in sub. (13) (a) to (zz), except that "guidance document" includes a pamphlet or other explanatory material described under sub. (13) (r) that otherwise satisfies the definition of "guidance document" under par. (a). 4. Any document that any statute specifically provides is not required to be promulgated as a rule. 5. A declaratory ruling issued under s. 227.41. 6. A pleading or brief filed in court by the state, an agency, or an agency official. 7. A letter or written legal advice of the department of justice or a formal or informal opinion of the attorney general, including an opinion issued under s. 165.015 (1). 8. Any document or communication for which a procedure for public input, other than that provided under s. 227.112 (1), is provided by law. 9. Any document or communication that is not subject to the right of inspection and copying under s. 19.35(1). 2017 Wis. Act. 369, § 31 (Wis. Stat. § 227.01(3m)(b)1.-9.). 14 Nos. 2019AP614-LV & 2019AP622.dk ¶102 The Act's plain language allows us to discern the following essential attributes of guidance documents.13 They are not law, they do not have the force or effect of law, and they provide no authority for implementing or enforcing standards or conditions. They simply "explain" statutes and rules, or they "provide guidance or advice" about how the executive branch is "likely to apply" a statute or rule. They impose no obligations, set no standards, and bind no one. They are communications about the law——they are not the law itself. They communicate intended applications of the law——they are not the actual execution of the law. Functionally, and as a matter of law, they are entirely inert. That is to say, they represent nothing more than the knowledge and intentions of their authors. It is readily apparent, therefore, that the executive need not borrow any legislative authority, nor seek the legislature's permission, to create guidance documents. It could hardly be otherwise. This creative power is necessarily inherent to the executive because no other State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 13 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning."). 15 Nos. 2019AP614-LV & 2019AP622.dk branch of government has even the theoretical ability to know the executive's mind with respect to the law he is to execute.14 B. May the Legislature Regulate the Executive's Guidance Documents? ¶103 Because the executive branch has the native authority to create and disseminate guidance documents, we must next determine whether the legislature may nonetheless prescribe the content or method of disseminating such documents. The answer depends on whether the creation of guidance documents represents an exercise of the executive's core function, or merely a power shared with the legislature. The separation of powers doctrine "envisions a system of separate branches sharing many powers while jealously guarding certain others, a system of 'separateness but interdependence, autonomy but reciprocity.'" State ex rel. Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). "The constitutional powers of each branch of government fall into two categories: exclusive powers and shared powers." State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). "Shared powers lie at the intersections of these exclusive core constitutional powers," and "[t]hese '[g]reat borderlands of power' are not exclusive to any one branch." Id. at 643-44 (quoting Friedrich, 192 Wis. 2d at 14); see also State v. Holmes, 106 Wis. 2d 31, 42–43, 315 N.W.2d 703 (1982). Although the "branches may exercise [shared] power within these borderlands," they "may [not] unduly burden or 14 Chief Justice Roggensack suggests that this is a "change in the law[.]" See Chief Justice Roggensack's concurrence/dissent, ¶150. But she does not say what it is a change from. We have never said that the creative power to make a guidance document resides somewhere other than the executive branch, and the Chief Justice cites no authority suggesting we have. 16 Nos. 2019AP614-LV & 2019AP622.dk substantially interfere with another branch." Horn, 226 Wis.2d at 644. Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶46 (alterations in original). ¶104 A branch's core powers are those that define its essential attributes.15 With respect to these, we have previously recognized that "[e]ach branch has exclusive core constitutional powers, into which the other branches may not intrude." Flynn v. DOA, 216 Wis. 2d 521, 545, 576 N.W.2d 245. "Core powers," as has been previously observed, "are not for sharing." Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶47. "Shared powers[, however,] lie at the intersections of these exclusive core constitutional powers," and "[t]hese '[g]reat borderlands of power' are not exclusive to any one branch." Horn, 226 Wis. 2d at 643-44 (quoting Friedrich, 192 Wis. 2d at 14 (alterations in original)). "Although the 'branches may exercise [shared] power within these borderlands,' they 'may [not] unduly burden or substantially interfere with another branch.'" Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶46 (quoting Horn, 226 Wis. 2d at 644 (alterations in original)). So if guidance documents fall somewhere in the realm of shared powers, the legislature would conceivably retain some claim of right to govern 15The Chief Justice's concurrence says there is no basis for this definition of core powers. See Chief Justice Roggensack's concurrence/dissent, ¶152. That is simply not true; the constitution itself constitutes the source. First, we know that "[e]ach branch has exclusive core constitutional powers[.]" State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999). These core powers are the "zones of authority constitutionally established for each branch of government[.]" State ex rel. Fiedler v. Wisconsin Senate, 155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990). In other words, a core power is a power vested by the constitution that distinguishes that branch from the other two. 17 Nos. 2019AP614-LV & 2019AP622.dk their content and dissemination. But if they lie within the executive's core authority, the legislature must retain a constitutionally-respectful distance. ¶105 We conclude that the creation and dissemination of guidance documents fall within the executive's core authority. Guidance documents, as the legislature has defined them, necessarily exist outside of the legislature's authority because of what they are and who creates them. As we explained above, a guidance document is something created by executive branch employees through the exercise of executive authority native to that branch of government. Creation of a guidance document requires no legislative authority and no legislative personnel. A guidance document cannot affect what the law is, cannot create a policy, cannot impose a standard, and cannot bind anyone to anything. ¶106 This is all true because guidance documents merely explain statutes and rules, or provide guidance or advice about how the executive is likely to apply them. Thought must precede action, of course, and guidance documents are simply the written record of the executive's thoughts about the law and its execution. They contain the executive's interpretation of the laws, his judgment about what the laws require him to do. Because this intellectual homework is indispensable to the duty to "take care that the laws be faithfully executed," Wis. Const. art. V, § 4, it is also inseparable from the executive's constitutionally-vested power. It is all one, and has been one since the creation of our tripartite form of government centuries ago. See Hamilton, supra, 18 Nos. 2019AP614-LV & 2019AP622.dk ¶96; see also Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 600 (1838) ("If, therefore, the executive be clearly satisfied as to the meaning of such a law, it is his bounden duty to see that the subordinate officers of his department conform with fidelity to that meaning; for no other execution, however pure the motive from which it springs, is a faithful execution of the law." (emphasis added)); Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶53 ("The executive must certainly interpret and apply the law; it would be impossible to perform his duties if he did not. After all, he must determine for himself what the law requires (interpretation) so that he may carry it into effect (application)."); State v. Whitman, 196 Wis. 472, 220 N.W. 929 (1928) ("Every executive officer in the execution of the law must of necessity interpret it in order to find out what it is he is required to do."). ¶107 Sections 33 and 38 of the Act are problematic, therefore, because they insert the legislature as a gatekeeper between the analytical predicate to the execution of the laws and the actual execution itself. The legislature may see itself as a benign gatekeeper between the two, but that is entirely irrelevant. The question is whether it may install a gate at all. If the legislature can regulate the necessary predicate to executing the law, then the legislature can control the execution of the law itself. Such power would demote the executive branch to a wholly- owned subsidiary of the legislature. Capturing the executive's ability to communicate his knowledge, intentions, and understanding of the laws he is to execute makes him a drone 19 Nos. 2019AP614-LV & 2019AP622.dk without the energy or independent wherewithal to act as a co-equal member of government.16 ¶108 The legislature may enact the laws the executive is duty- bound to execute. But it may not control his knowledge or intentions about those laws. Nor may it mute or modulate the communication of his knowledge or intentions to the public. Because there are no set of facts pursuant to which § 33 (to the extent it applies to guidance documents) and § 38 would not impermissibly interfere with the executive's exercise of his core constitutional power, they are in that respect facially unconstitutional. C. Challenges to The Remaining Guidance Document Provisions ¶109 The plaintiffs' challenge to the guidance document provisions of 2017 Wis. Act 369 goes beyond §§ 33 and 38, but as it reaches §§ 31, 65-71, and 104-05, the focus of their argument becomes so diffuse that the justification for declaring them unconstitutional appears to rely almost entirely on their association with §§ 33 and 38. As we now explain, the plaintiffs have not established that these remaining provisions "cannot be The problem is especially acute because this regulation on 16 the executive's pre-execution analysis and communication is infinitely recursive. That is, if he wished to publish a bulletin about his understanding of 2017 Wis. Act 369, §§ 33 and 38 or how he intends to implement them, that bulletin itself would have to go through the legislatively-mandated pre-clearance procedure. And if he wished to communicate about the communication he was required to submit to the legislative mandate, that communication too would be subject to pre-clearance. Ultimately, the Act's guidance document provisions prohibit the executive branch of government from publicizing his thoughts, knowledge, and intentions about the laws he is to execute without first surmounting the legislature's hurdles. 20 Nos. 2019AP614-LV & 2019AP622.dk enforced 'under any circumstances.'" Mayo, 383 Wis. 2d 1, ¶24 (quoted source omitted). ¶110 Section 31 of 2017 Wis. Act 369 defines the term "guidance document" (see supra, ¶90). It is conceivable that the legislature might introduce an unneeded and even unwanted entry into our legal glossary, but the parties do not describe how that could even potentially impose upon or detract from any part of the executive's vested authority. SEIU's brief acknowledged creation of this definition, noted the circuit court's global lack of faith in the utility of any of the guidance document provisions, and asserted that this provision (in conjunction with all the other guidance document provisions) "improperly intrude on the Governor's authority to implement state law." The Governor said pretty much the same thing, and the Attorney General did not specifically mention § 31 at all. The parties, therefore, have identified no basis for asserting that there is no constitutional application of § 31, and we see none. ¶111 Sections 65-7117 make guidance documents reviewable by the courts in the same fashion as administrative rules. Each of 17 Sections 65 to 71 of the Act provide: Section 65. 227.40 (1) of the statutes is amended to read: 227.40 (1) Except as provided in sub. (2), the exclusive means of judicial review of the validity of a rule or guidance document shall be an action for declaratory judgment as to the validity of the rule or guidance document brought in the circuit court for the county where the party asserting the invalidity of the rule or guidance document resides or has its principal place of business or, if that party is a nonresident or does not have its principal place of business in this state, in the circuit court for the county where the dispute arose. The officer or other agency whose rule 21 Nos. 2019AP614-LV & 2019AP622.dk or guidance document is involved shall be the party defendant. The summons in the action shall be served as provided in s. 801.11 (3) and by delivering a copy to that officer or, if the agency is composed of more than one person, to the secretary or clerk of the agency or to any member of the agency. The court shall render a declaratory judgment in the action only when it appears from the complaint and the supporting evidence that the rule or guidance document or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question. Section 66. 227.40 (2) (intro.) of the statutes is amended to read: 227.40 (2) (intro.) The validity of a rule or guidance document may be determined in any of the following judicial proceedings when material therein: Section 67. 227.40 (2) (e) of the statutes is amended to read: 227.40 (2) (e) Proceedings under s. 66.191, 1981 stats., or s. 40.65 (2), 106.50, 106.52, 303.07 (7) or 303.21 or ss. 227.52 to 227.58 or under ch. 102, 108 or 949 for review of decisions and orders of administrative agencies if the validity of the rule or guidance document involved was duly challenged in the proceeding before the agency in which the order or decision sought to be reviewed was made or entered. Section 68. 227.40 (3) (intro.) of the statutes is renumbered 227.40 (3) (ag) and amended to read: 227.40 (3) (ag) In any judicial proceeding other than one set out above under sub. (1) or (2), in which the invalidity of a rule or guidance document is material to the cause of action or any defense thereto, the assertion of such that invalidity shall be set forth in the pleading of the party so maintaining the invalidity of such the rule or guidance document in that proceeding. The party so asserting the invalidity of such the rule or guidance document shall, within 30 days after the service of the pleading in which the party sets forth such the invalidity, apply to the court in which such the proceedings are had for an order suspending the trial of said the proceeding until after a determination of the 22 Nos. 2019AP614-LV & 2019AP622.dk validity of said the rule or guidance document in an action for declaratory judgment under sub. (1) hereof. Section 69. 227.40 (3) (a) of the statutes is renumbered 227.40 (3) (ar) and amended to read: 227.40 (3) (ar) Upon the hearing of such the application, if the court is satisfied that the validity of such the rule or guidance document is material to the issues of the case, an order shall be entered staying the trial of said proceeding until the rendition of a final declaratory judgment in proceedings to be instituted forthwith by the party asserting the invalidity of such the rule or guidance document. If the court shall find finds that the asserted invalidity of a the rule or guidance document is not material to the case, an order shall be entered denying the application for stay. Section 70. 227.40 (3) (b) and (c) of the statutes are amended to read: 227.40 (3) (b) Upon the entry of a final order in said the declaratory judgment action, it shall be the duty of the party who asserts the invalidity of the rule or guidance document to formally advise the court of the outcome of the declaratory judgment action so brought as ordered by the court. After the final disposition of the declaratory judgment action the court shall be bound by and apply the judgment so entered in the trial of the proceeding in which the invalidity of the rule or guidance document is asserted. (c) Failure to set forth the invalidity of a rule or guidance document in a pleading or to commence a declaratory judgment proceeding within a reasonable time pursuant to such the order of the court or to prosecute such the declaratory judgment action without undue delay shall preclude such the party from asserting or maintaining such that the rule or guidance document is invalid. Section 71. 227.40 (4) (a) of the statutes is amended to read: 227.40 (4) (a) In any proceeding pursuant to this section for judicial review of a rule or guidance document, the court shall declare the rule or guidance document invalid if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated or adopted without compliance with statutory rule-making or adoption procedures. 23 Nos. 2019AP614-LV & 2019AP622.dk these sections does little more than add the term "guidance document" to various subsections of Wis. Stat. § 227.40, which formerly applied only to rules. The parties do not make any particularized argument against judicial review of guidance documents, and we see no reason why the legislature's provision for such review differs so profoundly from judicial review of administrative rules that the former would necessarily be unconstitutional under any circumstances, while the latter is not. Mayo, 383 Wis. 2d 1, ¶24 (A statute is facially unconstitutional only when it "cannot be enforced 'under any circumstances.'" (quoted source omitted)). ¶112 The final two provisions of 2017 Wis. Act 369 that implicate guidance documents are §§ 104 and 105. Section 104 establishes the initial applicability of § 33. It says: "(1) Agency publications. The treatment of [Wis. Stat. § ]227.05 with respect to printed publications first applies to guidance documents, forms, pamphlets, or other informational materials that are printed 60 days after the effective date of this subsection." Section 105 is similarly unremarkable in that it simply determines the effective date of the Act's provisions: "(1) Agency publications. The treatment of [§] 227.05 and Section 104 (1) takes effect on the first day of the 7th month beginning after publication." None of the respondents provide any reason to believe these provisions are facially unconstitutional, and no such reason immediately presents itself to us. IV. THE CONSEQUENCES 2017 Wis. Act. 369, §§ 65-71 (amending Wis. Stat. § 227.40). 24 Nos. 2019AP614-LV & 2019AP622.dk ¶113 Sections 33 and 38 are before us today on different procedural footings. The latter is here on a straightforward review of the circuit court's denial of a motion to dismiss. Section 33, however, presents in a somewhat awkward posture for two reasons. First SEIU does not claim this provision is unconstitutional. That allegation appears in the Governor's cross-claim. The Legislative Defendants' answer to the cross- claim asserts the Governor does not have standing to challenge the constitutionality of a law. However, the Legislative Defendants did not advance that argument in this court, and they fully briefed their position on the section's constitutionality. Because standing is a matter of judicial prudence, Milwaukee District Council 48 v. Milwaukee County, 2001 WI 65, ¶38 n.7, 244 Wis. 2d 333, 627 N.W.2d 866 ("[S]tanding is generally a matter of judicial policy rather than a jurisdictional prerequisite."), and it was not argued here, we will not apply it. State v. Chamblis, 2015 WI 53, ¶54 n.15, 362 Wis. 2d 370, 864 N.W.2d 806 ("We choose not to address that argument because it was not briefed by the parties."). We do not opine on whether the Governor actually has standing; we simply do not address it. ¶114 The second postural oddity with respect to § 33 is that we are reviewing it in the context of determining whether the circuit court properly issued a temporary injunction against its enforcement. That is to say, this section was not included in the Legislative Defendants' motion to dismiss. That means our task is to determine whether the circuit court erroneously exercised its discretion in issuing the temporary injunction. Such 25 Nos. 2019AP614-LV & 2019AP622.dk interlocutory relief is available when: "(1) the movant is likely to suffer irreparable harm if a temporary injunction is not issued; (2) the movant has no other adequate remedy at law; (3) a temporary injunction is necessary to preserve the status quo; and (4) the movant has a reasonable probability of success on the merits." Milwaukee Deputy Sheriffs' Ass'n, 370 Wis. 2d 644, ¶20 (citing Werner, 80 Wis. 2d at 520–21). ¶115 We conclude the circuit court did not erroneously exercise its discretion in issuing the temporary injunction with respect to §§ 33 and 38 because those provisions are unconstitutional, and it would therefore be unlawful to enforce them. Justice Hagedorn, however, does not believe this ends the inquiry: "The majority could have determined the claim is likely to be successful, and gone on to analyze the remaining factors." Justice Hagedorn's concurrence/dissent, ¶211 n.6. ¶116 Justice Hagedorn acknowledges that one aspect of the temporary injunction test is the likelihood of success on the merits. The merits in this case depend entirely on whether the challenged portions of the Act are unconstitutional. Consequently, our review unavoidably requires us to inquire into the constitutionality of the enjoined provisions, including §§ 33 and 38. We performed that inquiry, and have concluded that both of those provisions are unconstitutional. ¶117 Justice Hagedorn's insistence that we analyze the remaining factors makes sense only if there are circumstances under which it would be appropriate to continue enforcing a law we have already decided is unconstitutional. If we concluded that the 26 Nos. 2019AP614-LV & 2019AP622.dk movant would not suffer irreparable harm, would that make it acceptable for the executive to enforce an unconstitutional law? If there were an alternative legal remedy, would we tell the circuit court that the continued application of an unconstitutional law is legally warranted? If the status quo would not change without a temporary injunction, would that mean the unconstitutional law could remain in effect? Obviously not. ¶118 Justice Hagedorn's concerns grow out of a failure to account for the supreme court's position in the judiciary. If we were the circuit court, or the court of appeals, he would be correct——consideration of each of the remaining factors would be necessary because the relief sought would be interlocutory. That is to say, when the case was pending in the circuit court, the merits of the plaintiffs' claims were in question because a declaration of unconstitutionality was subject to judicial review. Once this court opines on a state statute's fidelity to the state constitution, however, the ultimate result is no longer in doubt because there is no further judicial review of our decision (unless it implicates federal law, which this does not).18 So the only purpose in considering the remaining temporary injunction factors would be if we would consider remanding the case to the circuit court to decide whether a law we declared unconstitutional should 18J. C. Penney Co. v. Wisconsin Tax Comm'n, 238 Wis. 69, 72, 298 N.W. 186 (1941), overruled in part on different grounds by Wisconsin Dep't of Taxation v. Nash-Kelvinator Corp., 250 Wis. 533, 27 N.W.2d 889 (1947) ("As we understand the law, our construction of the state statute is conclusive upon the Supreme Court of the United States."). 27 Nos. 2019AP614-LV & 2019AP622.dk nevertheless be enforced. We believe such a result would be anomalous and contrary to law. ¶119 Accordingly, we conclude that the circuit court erred in denying the Legislative Defendants' motion to dismiss with respect to 2017 Wis. Act 369, §§ 31, 65-71, and 104-05 because the plaintiffs have not established that they cannot be enforced under any set of circumstances. Further, because the interlocutory relief rested on their asserted unconstitutionality, which we have now rejected, the temporary injunction can have no further force or effect with respect to those provisions. However, because we have declared that 2017 Wis. Act 369, §§ 33 and 38 are unconstitutional, there can be no reason to further consider whether the circuit court erroneously exercised its discretion in granting the temporary injunction with respect to these provisions. V. THE DISSENTS ¶120 Justice Hagedorn says our reasoning "is wrong on the facts and runs contrary to the plain language of the laws the legislature passed. This means its constitutional conclusion is similarly faulty." Justice Hagedorn's concurrence/dissent, ¶191. But he never identifies any error in our understanding of the laws the legislature passed. In fact, there appears to be no disagreement at all with respect to what §§ 33 and 38 actually do. Instead, the disagreement is over what the constitution requires. It is also about Justice Hagedorn's misunderstanding of what we said about the constitution, which he mischaracterizes as having rejected §§ 33 and 38 "on the thinnest of foundations——its 28 Nos. 2019AP614-LV & 2019AP622.dk misguided determination that guidance documents regulate executive branch thought." Id. At the risk of repeating what we have already said, this is not just about regulating the executive's thought——it is about interfering in the relationship between the executive branch's interpretation of the law, its communication of that interpretation to the public, and its execution of the law. ¶121 Then, after selectively ignoring our analysis, Justice Hagedorn announces that "[g]uidance documents regulate executive branch communications with the public——a permissible and longstanding area of legislative regulation." Id. But how would he know this is constitutionally permissible? His opinion makes no effort to determine what lies within the executive branch's core authority, or how the statutory definition of "guidance document" might relate to that authority. He simply asserts that "[b]y enacting the guidance document provisions, the legislature is carrying out its function of determining what the law should be by passing laws pursuant to its constitutional authority." Id., ¶198. If this is the correct standard for determining whether the legislature invaded the executive's exclusive zone of authority (and his opinion contains no further exploration of this concept), then there can be no structural limitations on the scope of laws the legislature may adopt. Of course §§ 33 and 38 are laws the legislature adopted under its constitutional authority to make the law. That is not the question. The question is whether, in making this law, the legislature legislated on something the constitution says it may not. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with 29 Nos. 2019AP614-LV & 2019AP622.dk ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Ultimately, because Justice Hagedorn offers no constitutional analysis, his opinion is little more than an invitation to place our faith in his personal pronouncement about what is and is not within the executive branch's core authority. ¶122 We part ways with Justice Hagedorn's belief that the legislature's power to command the executive branch to create and disseminate a document is coextensive with the power to ban the executive branch from creating and disseminating a document unless it complies with the legislature's content (§ 33) and publication (§ 38) requirements. There is no logical correlation between those two concepts, and Justice Hagedorn's opinion does nothing to link them. Nonetheless, the bulk of his opinion is simply an extended discussion of statutes that require the executive branch to create certain documents, followed by his assumption that this confers on the legislature the power to prevent the executive branch from creating and disseminating documents unless they comply with the legislature's content and publication requirements. Justice Hagedorn introduces this part of his analysis by accusing the court of resting its analysis on "its mistaken interpretation of what guidance documents are." Justice Hagedorn's concurrence/dissent, ¶192. He then proceeds to essentially repeat the statute's definition of guidance documents, a definition on which we based 30 Nos. 2019AP614-LV & 2019AP622.dk our entire analysis. As relevant here, a guidance document "[e]xplains the agency's implementation of a statute or rule[,]" or "[p]rovides guidance or advice with respect to how the agency is likely to apply a statute or rule[.]" See 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)(a)1.-2.). Because the executive branch (through its agencies) creates and issues guidance documents, it necessarily follows that they contain the executive's explanations, or the executive's guidance or advice. Naturally, that means the explanations, guidance, and advice must originate in the minds of executive branch employees, which further means guidance documents are nothing but the written manifestations of the executive branch's thought processes. But if the legislature can "determine the content" of a guidance document, then it is no longer the executive's explanation, or the executive's guidance or advice——it is the legislature's explanation, guidance, or advice. So, to the extent the legislature commands production of a document, or determines the content of a guidance document, it simply is no longer a guidance document. The failure to make that distinction explains his assertions that "determining the content and timing of executive branch communications are not the exclusive prerogative of the executive," and that "nothing in the constitution suggests the legislature cannot, at least in some circumstances, make laws that determine the content of certain formal communications from the government to the public." Justice Hagedorn's concurrence/dissent, ¶198. His assertions are correct with respect to documents the legislature has the power to command. 31 Nos. 2019AP614-LV & 2019AP622.dk But they are not correct with respect to guidance documents, because having not been commanded, they belong entirely to the executive. Nothing in Justice Hagedorn's opinion describes how the power to command the former translates into the power to ban the latter unless they comply with the legislature's content and publication requirements. ¶123 Justice Hagedorn says he does not see why there is any difference between: (a) commanding the creation of a document and; (b) preventing the executive branch from creating a certain class of documents unless they comply with the legislature's requirements. "For example," he says, "if an executive agency must by legislative command create a youth hunting bulletin and cite the relevant law, this is a reflection of the executive branch's understanding of the law no less than if the executive chooses to do the same thing in the absence of such a command." Id., ¶206. In the absence of a legislative command, of course, the document would belong to the executive department. Justice Hagedorn's reasoning works only if the executive branch has no authority to create or disseminate guidance documents, and depends on legislative permission to do so. This, of course, is not true and Justice Hagedorn does not even attempt to demonstrate otherwise. ¶124 But the really instructive aspect of Justice Hagedorn's discussion of this bulletin is its revelation that his paramount concern is with the amount of the executive's authority the legislature pre-empts, rather than with whether the legislature may pre-empt it at all. He says "Wisconsin Stat. § 227.05 requires 32 Nos. 2019AP614-LV & 2019AP622.dk that a guidance document cite the applicable laws. But the majority opinion holds that this is too much for the legislature to demand of the executive branch because it controls executive branch thought." Id., ¶210. The question is not whether the legislature demanded too much, but whether it had the right to demand at all. Now, it is obviously true that the legislature could require the Department of Natural Resources to issue a bulletin citing the law applicable to the youth hunting season. It would simply need to pass a law mandating such a bulletin and require the citation. But that authority does not translate into the power to ban executive guidance documents on that subject unless they meet the legislature's content and process requirements. ¶125 To these errors Justice Hagedorn adds a metaphysical impossibility. He says the legislature can, and regularly does, co-opt the executive's thought processes that go into creating what are now known as guidance documents: "The legislature has long regulated . . . the executive branch's understanding of what the law is . . . and how the executive branch intends to execute the law going forward." Justice Hagedorn's concurrence/dissent, ¶199. That, of course, is not and cannot be true. The legislature may tell executive branch employees what the law is and what to do with it, but regulating the employees' understanding of the law or their intentions with respect to the execution of the law is entirely beyond the legislature's reach——not as a matter of separation of powers, but as an epistemological recognition that 33 Nos. 2019AP614-LV & 2019AP622.dk one person cannot control another's understanding or intentions.19 He says "[t]he clearest example [of this phenomenon] may be the mandatory creation of certain executive branch reports," such as Wis. Stat. § 15.04(1)(d), which he says requires the executive agencies to "include what the agency has done, how it operates, and its goals and objectives moving forward." Justice Hagedorn's concurrence/dissent, ¶199. Commanding the executive to divulge its understanding of the law and intentions with respect to the law is not the same thing as regulating the executive's understanding and intentions. So the dispositive difference between this and the guidance document provisions is really not that hard to spot. The legislature may command the executive to speak, and even provide content to include in that speech. But absent a command to produce a document, the document is the executive's own, and the legislature cannot, as an epistemological matter, control how the executive understands the law he is addressing, or his intentions with respect to that law. Justice 19Another epistemological error shows up in Justice Hagedorn's reversal of our observation that "[t]he constitutional authority of the executive encompasses determining what the law requires as well as applying it (preferably in that order)." Supra, ¶99. He says this is "wrong on the facts, and therefore, wrong on the law" because guidance documents "are the result of, rather than the necessary predicate to, executing the law." Justice Hagedorn's concurrence/dissent, ¶203. But this formulation——act first, do the intellectual homework later——cannot possibly be correct. Creating a guidance document does not reflect the execution of any law. It is simply a written record of the executive branch's thoughts about how it will——future tense—— execute the law, or how others ought to——future tense——conform themselves to the law. In the relationship between guidance documents and execution of the law, therefore, guidance documents come first as a definitional and epistemological matter. 34 Nos. 2019AP614-LV & 2019AP622.dk Hagedorn could probably provide an endless list of examples in which he believes this type of legislative control over the executive branch would be a good idea and minimally intrusive (and he makes a good start on it (see id., ¶207)), but that would be to entirely miss the point. With respect to core powers, the constitutionality of the legislature's reach into the executive branch is not determined by the wisdom of what it would do once there, or the relative lack of discomfort to those exercising core powers. It is determined by whether the legislature is exercising that control at all. But for Justice Hagedorn, there is no difference between: (a) a mandatory report describing an agency's understandings and intentions and; (b) a law that attempts to regulate the executive branch's "understanding of what the law is" and how it "intends to execute the law." Id., ¶199. The former is clearly lawful and achievable; the latter is impossible because the executive branch's thought processes about the implementation of the law, and its guidance and advice, are (by definition) its own. ¶126 These are some of the granular reasons we believe Justice Hagedorn's analysis is incorrect. But taking a step back to get an overall picture of the legislature's assertion of power in §§ 33 and 38 reveals why, as a structural matter, it simply cannot work. To the extent Justice Hagedorn's opinion contains a constitutional analysis, it rests solely on the proposition that because the legislature can command the executive to produce certain documents, it may ban those that do not follow the legislature's content and publication requirements. Because his analysis 35 Nos. 2019AP614-LV & 2019AP622.dk focuses on the legislature's power, without any reference to what might lie within the executive's core authority, there is no reason his analysis would not be equally applicable to the judiciary. Would Justice Hagedorn be as sanguine about §§ 33 and 38 if they applied to us? Would he pick up our "constitutional penalty flag," Justice Hagedorn's concurrence/dissent, ¶190, if the legislature told us that, prior to publishing our opinions, we must submit them to a public comment process, and then take those comments into consideration before finalizing and publishing our work? Would he find it constitutionally unobjectionable if the legislature were to mandate that "draft [court opinions] be posted for 21 days before they are officially issued"? Id., ¶211. Would he quizzically ask why "[p]osting a draft before issuance of some [court opinions] is now denominated a regulation of [judicial] branch thought and invades core [judicial] power"? Id. Would he say that "[t]he legislature is not invading the [judiciary]'s ability to read the law or think about the law when it regulates how [the courts] officially communicate to the public about what the law is and where in the statutes the law may be found"? Id., ¶204. Would he conclude that the legislature may mandate the content and publication process of our opinions because "[b]y the time [the court's opinion] has been reduced to writing, the thinking and analyzing has been done"? Id., ¶203. Would he be mollified if we could reduce the pre-clearance time period to something inconsequential? ¶127 One could do this with the entirety of Justice Hagedorn's analysis. And even though the answers are so obvious they make 36 Nos. 2019AP614-LV & 2019AP622.dk the questions rhetorical, he has no substantive response to any of this. But he does reject it on the sweeping basis that "the legislature's relationship to the judiciary is far different than its relationship to the branch charged with the constitutional duty to execute the laws the legislature passes." Id., ¶204 n.5. A long time ago the notion that the branches of government are co- equal passed into the realm of common knowledge. But Justice Hagedorn's assertion, coming as it does with no explanation, carries a suggestion that the executive is less than equal in its relationship with the legislature.20 Perhaps it is because his guiding principle (as far as he says in his opinion, at least) is simply that, so long as "the legislature is carrying out its function of determining what the law should be by passing laws pursuant to its constitutional authority," there are no structural limitations on the scope of that law. Id., ¶198. He certainly provides no analysis of the legislature's limits, nor does he even attempt to describe what might be included in the executive's core 20Justice Hagedorn apparently misses the import of these illustrations. He says: Moreover, the majority's criticisms ring hollow because the majority says the legislature can pass laws that do the very things it cites; the legislature just has to enact laws regarding specific documents (create a youth hunting bulletin, for example). So the majority's criticisms apply just as forcefully to its own reasoning, which is to say, not much at all. Justice Hagedorn's concurrence/dissent, ¶204 n.5. The whole point of putting the "very things" we cite in the judicial context is to illustrate why the legislature may not do what Justice Hagedorn thinks it may. So, to be clear, the illustrations identify things Justice Hagedorn says the legislature may do with respect to the executive, but which we say the legislature may not do. 37 Nos. 2019AP614-LV & 2019AP622.dk powers. And yet without doing any of this work, he says "[our] analysis falls far short of the mark," id., ¶201, even though the constitutional principles informing our analysis are well- documented and fundamental to the separation of powers established under our constitution more than 170 years ago. * ¶128 And now a few closing words about Chief Justice Roggensack's partial concurrence and partial dissent. She says our analysis is flawed because it does not recognize that the legislature has plenary authority over administrative agencies, and that they may do nothing without legislative permission. This is so, she says, because of the nature of administrative agencies within our constitutional structure: "[A]dministrative agencies have no constitutional core powers because they are not a branch of government in our tripartite system." Chief Justice Roggensack's concurrence/dissent, ¶148. She also asserts that we have previously said that administrative agencies can do nothing but what the legislature tells them to do: "[A]dministrative agencies are creations of the legislature and that they can exercise only those powers granted by the legislature." Id., ¶150 (quoting Martinez, 165 Wis. 2d at 697). ¶129 But this is only partly true. With respect to what agencies are, it is certainly true that they are not "a branch of government" in the sense of being discrete from the standard three. But as we said just last term, "they are considered part of the executive branch." Koschkee, 387 Wis. 2d 552, ¶14. The Chief Justice agrees, or at least she did last year. See id. 38 Nos. 2019AP614-LV & 2019AP622.dk ("[A]gencies are part of the executive branch once established[.]"). And the executive, at times, acts through administrative agencies to fulfill his constitutional obligation that the laws be faithfully executed. Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 327 (2014) ("Under our system of government, Congress makes laws and the President, acting at times through agencies . . . 'faithfully execute[s]' them." (quoted source omitted; alterations in original)); see also supra, ¶97. ¶130 With respect to the granting of power to administrative agencies, the Chief Justice mistakes the import of our analysis in Martinez. There, we said "administrative agencies are creations of the legislature and . . . they can exercise only those powers granted by the legislature." Martinez, 165 Wis. 2d 20 at 697. From this the Chief Justice concludes that because agencies are created by the legislature they are subject to its plenary control. Chief Justice Roggensack's concurrence/dissent, ¶147. That, however, overlooks the fact that agencies exercise both executive and legislative powers. Our observations in Martinez related to the legislature's ability to govern the rule-making authority—— that is, the legislative power——it delegates to administrative agencies. So our statements on the legislature's ability to limit the legislative authority the agencies exercise say nothing about its ability to limit the agencies' exercise of executive authority. Nor does the Chief Justice find any authority for the proposition that an agency's exercise of that executive authority arises from or is dependent on the legislature. The legislature undeniably has plenary authority to govern administrative agencies' exercise 39 Nos. 2019AP614-LV & 2019AP622.dk of their delegated rule-making power because the legislature could simply choose to revoke it altogether. Martinez, 165 Wis. 2d at 698. It naturally follows that if the legislature may eliminate the power it conferred, it may also condition the exercise of that power. Koschkee, 387 Wis. 2d 552, ¶20. But the legislature does not confer on administrative agencies the ability to exercise executive power; that comes by virtue of being part of the executive branch. The Chief Justice cites no authority nor presents any argument suggesting the legislature's authority over an agency's exercise of legislative power is necessarily (or even potentially) co-extensive with its authority over an agency's exercise of executive power. ¶131 This is a dangerous path the Chief Justice is pursuing. The Wisconsin Constitution provides for a circuit court, but does not say how many circuit court judges there shall be. So the existence of any given circuit court judge is dependent entirely on the legislature's choice to create the position. The Chief Justice says the power to create includes the ability to control the exercise of authority in that position, even when the legislature is not the source of the authority the employee exercises. If that logic is sound, the legislature could tell circuit court judges how to exercise their judicial power on the grounds that it did not have to create the circuit court position in the first place and could eliminate it. ¶132 The Chief Justice also says the executive's authority to explain the law, or give guidance or advice about it, is not core to the executive: 40 Nos. 2019AP614-LV & 2019AP622.dk While the executive may interpret laws so that he can "faithfully execute" them, it does not follow that interpretation of the law is a constitutional core power of the executive. Many elected and appointed persons interpret the law in order to carry out their assigned duties, be they constitutional functions or otherwise. Chief Justice Roggensack's concurrence/dissent, ¶137. In support, she quotes Justice Clarence Thomas, who said: [t]he judicial power was understood [at the time of the founding of the United States] to include the power to resolve ambiguities over time. Alexander Hamilton lauded this power, arguing that '[t]he interpretation of the laws is the proper and peculiar province of the courts.' It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding." Id., ¶138 (quoting Perez, 575 U.S. at 119–20 (Thomas, J., concurring) (some alterations in original; internal citations omitted)). Justice Thomas, of course, was careful to note that the judiciary's interpretation of the law is authoritative "in a judicial proceeding." Perez, 575 U.S. at 120. He made no claim that our interpretation would be authoritative in the executive branch's determination of what the law requires. As Alexander Hamilton said: "He who is to execute the laws must first judge for himself of their meaning." See Hamilton, supra, ¶96 (emphasis added). ¶133 The question here is not whether the executive branch alone may interpret the law. The question is whether interpreting the law within the executive branch is an exercise core to the executive and his employees. The Chief Justice says this is a shared power, but does not indicate how that could possibly be. The general power to interpret the law is "shared" in the sense 41 Nos. 2019AP614-LV & 2019AP622.dk that each of the branches must perform that function while performing their vested responsibilities, but the Chief Justice does not explain how the interpretation of the law within the executive branch could be shared with any other branch. She simply concludes that "[i]f explaining what the law means through guidance documents actually were a constitutional core power of the executive, courts could not strike down such an interpretation." Chief Justice Roggensack's concurrence/dissent, ¶154. But we don't strike down executive interpretations of the law. We strike down the executive's application of the law in specific cases. A guidance document is not an application of the law, it is simply the executive branch's understanding of what the law requires.21 ¶134 Finally, the Chief Justice says that, "[e]ven though guidance documents do not have the force of law as rules of administrative agencies do, employees of agencies apply them to the public's interaction with the agency. Sometimes those interactions result in litigation when a person against whom a guidance document is being enforced objects to enforcement." Chief Justice Roggensack's concurrence/dissent, ¶141. She also cautions The Chief Justice says we ignored State v. Unnamed 21 Defendant, 150 Wis. 2d 352, 441 N.W.2d 696 (1989), as an example of the judiciary properly invading the executive's interpretation of the law. Chief Justice Roggensack's concurrence/dissent, ¶151. There, as the Chief Justice notes, "an acting district attorney concluded that he could not prove a sexual assault occurred beyond a reasonable doubt, and, therefore, decided not to commence criminal proceedings." Id. (citing Unnamed Defendant, 150 Wis. 2d at 356). We ultimately approved the circuit court's order authorizing issuance of a complaint under Wis. Stat. § 968.02(3). But this does not illustrate what the Chief Justice thinks it does. We didn't countermand the district attorney's interpretation of the law, we countermanded his exercise of discretion. 42 Nos. 2019AP614-LV & 2019AP622.dk that "[g]uidance documents can have a practical effect similar to an unpromulgated rule," noting that "historically, administrative agencies have relied on guidance documents to circumvent rulemaking." Id., ¶¶142-43. Now that the legislature has specifically defined a guidance document as something that cannot be a rule, impose any obligations, set no standards, or bind anyone, it is no longer even conceptually possible for them to be "applied" or "enforced" against a person in accordance with the law. However, should an administrative employee treat a guidance document as a source of authority, that employee would be making a mistake, not defining the nature of a guidance document. So although the Chief Justice accurately describes how guidance documents were used prior to adoption of 2017 Wis. Act 369, they may no longer be lawfully used in that manner. We expect, as befits a co-equal branch of government, that executive branch employees will respect that change in the law. But if they should mistakenly use them as before, their mistakes are subject to judicial review pursuant to §§ 65-71, as we explained above. The Chief Justice's concern that executive branch employees will misuse guidance documents in the future is not a justification for allowing the legislature to overstep its constitutional boundaries in order to check those transgressions. Procedural safeguards enacted by the legislature, even those that respond to the executive's historical misuse of guidance documents, must comport with the constitution. Sections 33 and 38 do not. VI. CONCLUSION 43 Nos. 2019AP614-LV & 2019AP622.dk ¶135 We affirm the circuit court's judgment that 2017 Wis. Act 369 § 33 (to the extent it addresses guidance documents) and § 38 are facially unconstitutional because they intrude on power the Wisconsin Constitution vests in the executive branch of government. However, we reverse the circuit court's judgment with respect to 2017 Wis. Act 369, §§ 31, 65-71, 104-05. 44 No. 2019AP614-LV & 2019AP622.pdr ¶136 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part, dissenting in part). I conclude that 2017 Wis. Act 369's regulation of guidance documents does not invade the executive's core powers. I write to point out the fundamental flaw that underlies Justice Kelly's reasoning and on which he bases his conclusion that "the creation and dissemination of guidance documents fall within the executive's core authority." Justice Kelly's majority op., ¶105. ¶137 The executive's constitutional core power is to "take care that the laws be faithfully executed." Wis. Const. art. V, § 4. Justice Kelly gets to the conclusion he seeks by adding interpretation of the law to Article V, § 4's core power of execution of the law. Justice Kelly's majority op., ¶¶105–06. While the executive may interpret laws so that he can "faithfully execute" them, it does not follow that interpretation of the law is a constitutional core power of the executive. Many elected and appointed persons interpret the law in order to carry out their assigned duties, be they constitutional functions or otherwise. ¶138 In judicial proceedings, interpretation of the law is the constitutional core power of the courts. Wis. Const. art. VII, § 2; State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110 ("It is, of course, a solemn obligation of the judiciary to faithfully give effect to the laws enacted by the legislature, and to do so requires a determination of statutory meaning."). When an executive's interpretation of a law has been challenged in court, it is the court's interpretation that prevails, not the executive's. State 1 No. 2019AP614-LV & 2019AP622.pdr v. Unnamed Defendant, 150 Wis. 2d 352, 360, 441 N.W.2d 696 (1989); see also Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 119–20 (2015) (Thomas, J., concurring) ("The judicial power was understood [at the time of the founding of the United States] to include the power to resolve these ambiguities over time. Alexander Hamilton lauded this power, arguing that '[t]he interpretation of the laws is the proper and peculiar province of the courts.' It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding." (Internal citations omitted.)). ¶139 Outside of judicial proceedings, interpreting the law is a power that is shared by many governmental actors, e.g., state executive agency employees, state legislative employees, county agency employees, court employees and municipal employees, to name only a few who must interpret the law in order to perform their functions. Martinez v. DILHR, 165 Wis. 2d 687, 696, 478 N.W.2d 582 (1992). Although the executive interprets laws, such interpretation does not convert a shared power into a constitutional core power of the executive. Rather, outside of court proceedings, interpreting the law remains a shared function. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶140–41, 382 Wis. 2d 496, 914 N.W.2d 21 (Ziegler, J., concurring). 2 No. 2019AP614-LV & 2019AP622.pdr I. BACKGROUND ¶140 2017 Wis. Act 369 has several provisions that affect guidance documents. Section 31 generally defines guidance documents; § 33 addresses required content of guidance documents; § 38 regulates creation of guidance documents and §§ 65-71 set out how litigation may proceed when guidance documents are at issue.1 Justice Kelly has concerns with only §§ 33 and 38. Justice Kelly's majority op., ¶88. He has concluded that the other guidance document provisions are facially constitutional. Id. II. DISCUSSION A. The Remedial Nature of 2017 Wis. Act 369 ¶141 Guidance documents explain agencies' interpretations of provisions in statutes and administrative agency rules. They explain how the agency that created the guidance document likely will apply the law, often giving factual examples in the guidance document. Guidance documents include such things as handbooks, "how to" instructions for meeting various agency requirements and many other suggestions for successful interactions with the agency. Even though guidance documents do not have the force of law as rules of administrative agencies do, employees of agencies apply them to the public's interaction with the agency. Sometimes those interactions result in litigation when a person against whom a guidance document is being enforced objects to enforcement. Newcap, Inc. v. DHS, 2018 WI App 40, ¶3, 383 Wis. 2d 515, 916 N.W.2d 173. Sections 104–05 address 1 the initial applicability and effective date of § 33. 3 No. 2019AP614-LV & 2019AP622.pdr ¶142 Guidance documents can have a practical effect similar to an unpromulgated rule. To explain, "[a]gency guidance . . . can have similar effect to an enforcement action or regulation——imposing norms on regulated entities or the beneficiaries of regulatory programs. Moreover, the individual interests subject to agency guidance frequently are no less important than those interests regulated through administrative enforcement actions and regulations." Jessica Mantel, Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the Administrative State, 61 Admin. L. Rev. 343, 345 (2009). ¶143 Given the rule-like practical effects of guidance documents, we should not be surprised that, historically, administrative agencies have relied on guidance documents to circumvent rulemaking. Andrew C. Cook, Extraordinary Session Laws: New Limits on Governor and Attorney General, 92 Wis. Law. 26, 27 (2019) (discussing the problem created when "guidance documents contain new interpretations that operate essentially as administrative rules but without going through the proper rulemaking process"); Written Testimony of Senator David Craig on Senate Bill 745 Before the Senate Committee on Labor and Regulatory Reform (Feb. 6, 2018), https://docs.legis. wisconsin.gov/misc/lc/hearing_testimony_and_materials/2017/sb745 /sb0745_2018_02_06.pdf (explaining that guidance documents have been used "to avoid the deliberative process of rulemaking") (last visited June 25, 2020); Floor Speech by Andre Jacque Floor Session on 2017 Assembly Bill 1072 (2017 Wis. Act 369), at 3:25, https://wiseye.org/2018/12/05/assembly-floor-session-part- 4 No. 2019AP614-LV & 2019AP622.pdr 2-8/ (last visited June 25, 2020) (explaining the assemblyman "frequently heard from constituents, small businesses [and] local government" about "how guidance documents have been abused as a vehicle to actually change the law" and how they are sometimes "hidden from sight or dusted off after decades"). ¶144 Wisconsin's troublesome history with guidance documents is not unique.2 The D.C. Circuit summarized the problem well in 2000: The phenomenon we see in this case is familiar. Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register of the Code of Federal Regulations. Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020 (D.C. Cir. 2000) (emphasis added). ¶145 Justice Kelly ignores the remedial nature of 2017 Wis. Act 369. He argues that "should an administrative agency employee treat a guidance document as a source of authority, that employee would be making a mistake, not defining the nature of a guidance 2 Hale Melnick, Comment, Guidance Documents and Rules: Increasing Executive Accountability in the Regulatory World, 44 B.C. Environmental Affairs L. Rev. 357, 364 (2017) ("By issuing guidance documents, agencies circumvent the costly and time- consuming——but democratically important——notice-and-comment requirements."). 5 No. 2019AP614-LV & 2019AP622.pdr document. . . . [T]heir mistakes are subject to judicial review." Justice Kelly's majority op., ¶134. ¶146 I cannot ignore the history that led to the enactment of 2017 Wis. Act 369 simply because judicial review is available. Recently, we explained that judicial review is, by itself, an inadequate protection against the deprivation of the people's liberty. Wis. Legislature v. Palm, 2020 WI 42, ¶¶32–35, 391 Wis. 2d 497, 942 N.W.2d 900. As we explained, "[j]udicial review does not prevent oppressive conduct from initially occurring." Id., ¶35. The legislature has a legitimate interest in providing effective procedural safeguards. Id. Justice Kelly should not be so quick to dismiss the history that led to the enactment of 2017 Wis. Act 369. B. Agencies ¶147 While agencies are part of the executive branch once established, it is the legislature that creates agencies and grants them "power as is necessary to carry into effect the general legislative purpose." Koschkee v. Taylor, 2019 WI 76, ¶12, 387 Wis. 2d 552, 929 N.W.2d 600. An administrative agency has only those powers as are expressly conferred by the statutory provisions under which it operates.3 State ex rel. Castaneda v. Welch, 2007 3 2011 Wis. Act 21 affected the authority of agencies by imposing an "explicit authority requirement" on agency authority. See generally Kirsten Koschnick, Comment, Making "Explicit Authority" Explicit: Deciphering Wis. Act 21's Prescriptions for Agency Rulemaking Authority, 2019 Wis. L. Rev. 993. This requirement is set out in Wis. Stat. § 227.10(2m), which provides: No agency may implement or enforce any standard, requirement, or threshold, . . . unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has 6 No. 2019AP614-LV & 2019AP622.pdr WI 103, ¶26, 303 Wis. 2d 570, 735 N.W.2d 131 (quoting Brown Cty. v. DHSS, 103 Wis. 2d 37, 43, 307 N.W.2d 247 (1981)); see also Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46, 56, 158 N.W.2d 306 (1968) ("The very existence of the administrative agency or director is dependent upon the will of the legislature; its or his powers, duties and scope of authority are fixed and circumscribed by the legislature and subject to legislative change."); Gray Well Drilling Co. v. Wis. State Bd. of Health, 263 Wis. 417, 419, 58 N.W.2d 64 (1953) (explaining that administrative agencies are not required to follow rules governing judicial proceedings unless a statute requires otherwise because "rules of procedure for administrative bodies" are a "function" that "belongs to the legislature"); State ex rel. Wis. Inspector Bureau v. Whitman, 196 Wis. 472, 508, 220 N.W. 929 (1928) ("[A]dministrative agencies are the creatures of the legislature and are responsible to it. Consequently the legislature may withdraw powers which have been granted, prescribe the procedure through which granted powers are to be exercised, and if necessary wipe out the agency entirely."). ¶148 I agree that separation of powers is a doctrine that is firmly established under Wisconsin law. Martinez, 165 Wis. 2d at 696 n.8 (explaining that the Wisconsin Constitution "art. IV., sec. 1 vests legislative power in the senate and assembly; art. V., sec. 1 vest[s] executive power in the governor and lieutenant been promulgated in accordance with this subchapter[.] Section 227.10(2m) clearly limits agency authority from what courts had held in the past. Wis. Legislature v. Palm, 2020 WI 42, ¶52, 391 Wis. 2d 497, 942 N.W.2d 900. Justice Kelly never mentions the explicit authority requirement of § 227.10(2m). 7 No. 2019AP614-LV & 2019AP622.pdr governor; and art. VII, sec. 2 vest[s] judicial power in a unified court system"); see also Unnamed Defendant, 150 Wis. 2d at 360. However, administrative agencies have no constitutional core powers because they are not a branch of government in our tripartite system. Martinez, 165 Wis. 2d at 696 n.8. Stated otherwise, the core power of the executive resides with the governor and lieutenant governor; it does not reside with administrative agencies, which are merely "creatures of statute." Lake Beulah Mgmt. Dist. v. DNR, 2011 WI 54, ¶23, 335 Wis. 2d 47, 799 N.W.2d 73; see also Koschkee, 387 Wis. 2d 552, ¶47 (R. Grassl Bradley, J., concurring) ("Article V, Section 1 'vest[s]' the 'executive power . . . in a governor' . . . . These constitutional 'grants are exclusive,' which has been understood to mean 'only the vested recipient of that power can perform it.'" (alterations in the original) (internal citations omitted)). ¶149 Justice Kelly reasons that creating guidance documents is a core power of the executive because the power to create guidance documents does not come from the legislature: "[A] guidance document is something created by the executive branch employees through the exercise of executive authority native to that branch of government." Justice Kelly's majority op., ¶105. Justice Kelly asserts that "unlike a rule, the executive branch needs no borrowed authority from the legislature to create a guidance document." Justice Kelly's majority op., ¶100. He asserts, "This creative power is necessarily inherent to the executive because no other branch of government has even the 8 No. 2019AP614-LV & 2019AP622.pdr theoretical ability to know the executive's mind with respect to the law he is to execute." Justice Kelly's majority op., ¶102. ¶150 He cites no authority for this change in the law, which has repeatedly held that "administrative agencies are creations of the legislature and that they can exercise only those powers granted by the legislature." Martinez, 165 Wis. 2d at 697; see also Castaneda, 303 Wis. 2d 570, ¶26; Brown, 103 Wis. 2d at 43. As creatures of statute, the legislature may "prescribe the procedure through which granted powers [of administrative agencies] are to be exercised." Whitman, 196 Wis. at 508. ¶151 Justice Kelly also ignores our decision in Unnamed Defendant where an acting district attorney concluded that he could not prove a sexual assault occurred beyond a reasonable doubt, and, therefore, decided not to commence criminal proceedings. Unnamed Defendant, 150 Wis. 2d at 356. Notably, his conclusion occurred outside the context of a judicial proceeding, as most charging decisions do. Nevertheless, the circuit court ordered the district attorney or his designee to file charges pursuant to Wis. Stat. § 968.02(3), which states a judge "may permit the filing of a complaint" in a John Doe proceeding "if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing." Id. at 357. We upheld the circuit court's decision. Id. at 367. In so doing, we authorized circuit courts to disregard prosecutors' statutory interpretations in light of the "John Doe Law," Wis. Stat. §§ 968.02(3) and 968.26. Id. at 366. The interpretation of the 9 No. 2019AP614-LV & 2019AP622.pdr acting district attorney would not have been overruled if interpretation of the law were a core power of the executive. ¶152 Justice Kelly ultimately concludes that the answer to whether the legislature can legislate in regard to guidance documents "depends on whether the creation of guidance documents represents an exercise of the executive's core function, or merely a power shared with the legislature." Justice Kelly's majority op., ¶103. To address this concern, he creates his own definition core powers: "A branch's core powers are those that define its essential attributes." Justice Kelly's majority op., ¶104. He acknowledges that if guidance documents fall within shared powers, the legislature may have the "right to govern their content and dissemination." Justice Kelly's majority op., ¶104. However, he does not give a moment's pause to shared powers, but rather, he opines that all of his legal contentions are "true because guidance documents merely explain statutes and rules, or provide guidance or advice about how the executive is likely to apply them." Justice Kelly's majority op., ¶106. ¶153 To explain shared powers, and their relationship to core powers, "it is neither possible nor practicable to categorize all governmental action as exclusively legislative, executive or judicial." Martinez, 165 Wis. 2d at 696 (quoting State v. Washington, 83 Wis. 2d 808, 825, 266 N.W.2d 597 (1978)). Therefore, separation of powers is transgressed only when one branch "interferes with a constitutionally guaranteed 'exclusive zone' of authority vested in another branch," Martinez, 165 Wis. 2d at 697, i.e., a constitutional core power, or when a shared power 10 No. 2019AP614-LV & 2019AP622.pdr is unduly burdened. Flynn v. DOA, 216 Wis. 2d 521, 556, 576 N.W.2d 245 (1998). ¶154 If explaining what the law means through guidance documents actually were a constitutional core power of the executive, courts could not strike down such an interpretation. Yet courts have done so when an agency oversteps the authority granted by the legislature in reliance on the agency's interpretation of what the law requires. Newcap, 383 Wis. 2d 515, ¶3; Papa v. DHS, 2020 WI __, ¶2, __ Wis. 2d __, __ N.W.2d __. ¶155 Additionally, the legislature often interprets its own laws. In the case before us, members of the legislature would not have standing if the legislature had no power to interpret its laws. Yet Justice Kelly takes no issue with these members arguing before our court. ¶156 Justice Kelly also supports his legal conclusion with quotes from portions of Tetra Tech. For example, he says: The executive must certainly interpret and apply the law; it would be impossible to perform his duties if he did not. . . . Our constitution not only does not forbid this, it requires it. Justice Kelly's majority op., ¶96 (citing Tetra Tech, 382 Wis. 2d 496, ¶53 (lead)). However, this paragraph of Tetra Tech was joined by only one justice in addition to Justice Kelly who wrote the provision; it does not represent the opinion of the court. Id., ¶3 n.4. Indeed, Justice Ziegler wrote a concurrence, which I joined, in part to respond to this portion of the lead opinion in Tetra Tech. Id., ¶141 & n.10 (Ziegler, J., concurring). She explained that "the power to interpret and apply the law" is a 11 No. 2019AP614-LV & 2019AP622.pdr shared power outside the context of a judicial proceeding. Id., ¶¶140–41. ¶157 That an executive would interpret a law as he executes it does not convert interpretation of the law into a constitutional core power. Interpretation of the law is a shared power that many governmental actors employ as they interpret what they must do in order to be in compliance with the law. See e.g., State v. Horn, 226 Wis. 2d 637, 644-45, 594 N.W.2d 772 (1999) (discussing the shared power of administrative revocation of probation and the court's power to sentence); State v. Dums, 149 Wis. 2d 314, 323- 24, 440 N.W.2d 814 (1989) (discussing the shared power to amend or dismiss a filed charge under the separation of powers doctrine). ¶158 A final note worth mentioning is the standard of review. Justice Kelly and I agree on the standard of review, although we apply it quite differently. He explains that, because this lawsuit is a facial challenge, we must uphold the statutes unless they cannot be enforced under any circumstances. Justice Kelly's majority op., ¶92. He later states: [The legislature] may not control [the Governor's] knowledge or intentions about those laws. Nor may it mute or modulate the communication of his knowledge or intentions to the public. Because there are no set of facts pursuant to which §§ 33 (to the extent it applies to guidance documents) and 38 would not impermissibly interfere with the executive's exercise of his core constitutional power, they are in that respect facially unconstitutional. Justice Kelly's majority op., ¶108. ¶159 There are a few issues with this application of the standard of review. First, I would not conflate administrative agencies with the governor as Justice Kelly does. The governor is 12 No. 2019AP614-LV & 2019AP622.pdr a constitutional officer; administrative agencies are "creatures of statute." Lake Beulah, 335 Wis. 2d 47, ¶23. ¶160 Second, even if I were to assume, arguendo, that administrative agencies were equivalent to the governor, 2017 Wis. Act 369, §§ 33 & 38 do not "control" the governor's "knowledge or intentions." Justice Kelly's majority op., ¶108. Instead, they require administrative agencies to follow certain procedures. For example, agencies must "provide for a period for public comment on a proposed guidance document." Wis. Stat. § 227.112(1)(b). Public comments might inform the "knowledge or intentions" of the administrative agency; however, they would not control it. Justice Kelly rhetorically questions whether I would feel similarly if the legislature required the Wisconsin Supreme Court to submit its opinions to a public comment period before publication. No, I would not, because we are constitutional officers; administrative agencies are not. ¶161 Third, and relatedly, this case is not an as-applied challenge. In some situations, §§ 33 & 38 might contain procedural hurdles on the issuance of guidance documents that are so difficult to meet that they are unduly burdensome. However, we do not have an as-applied challenge before us. ¶162 Justice Kelly's conclusion is in error because his reasoning relies on a fundamentally inaccurate legal premise. Interpreting the law is a shared power, not a constitutional core power of the executive. As a shared power, it cannot be unduly burdened. Flynn, 216 Wis. 2d at 556. However, before us is a facial challenge, and the plaintiffs have not established that 13 No. 2019AP614-LV & 2019AP622.pdr 2017 Wis. Act 369, §§ 33 & 38 are unduly burdensome in all circumstances. Accordingly, I respectfully concur with respect to the majority opinion on all issues except guidance documents, and I respectfully dissent from the majority opinion regarding guidance documents. 14 No. 2019AP614-LV & 2019AP622.rfd ¶163 REBECCA FRANK DALLET, J. (concurring in part, dissenting in part). Just days before the swearing-in of Wisconsin's newly elected governor and attorney general, the legislature passed, and the outgoing governor signed into law, 2017 Wis. Act 369 and 2017 Wis. Act 370. The Plaintiffs, a group of labor organizations and individual taxpayers, filed this lawsuit alleging several provisions of these Acts violate the separation of powers enshrined in the Wisconsin Constitution. ¶164 I agree with the scope of the majority opinions1 and join several parts.2 I write separately, however, because the complaint 1I agree the following provisions were not properly before the court on this interlocutory appeal: 2017 Wis. Act 369, § 87 (Wis. Stat. § 238.399(3)(am)), 2017 Wis. Act 370, § 10 (Wis. Stat. § 20.940), and 2017 Wis. Act 370, § 11 (Wis. Stat. § 49.175(2)(a)). See Justice Hagedorn's majority op., ¶24 n.9. 2Specifically, I join Justice Kelly's majority opinion with respect to 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01 (3m)), § 33 (Wis. Stat. § 227.05), § 38 (Wis. Stat. § 227.112), §§ 65-71 (amending Wis. Stat. § 227.40), and §§ 104-05 in full, and Justice Hagedorn's majority opinion on the following parts:  Part II.E.1., insofar as it reverses the circuit court with respect to 2017 Wis. Act 369, § 5 (Wis. Stat. § 13.365) and § 97 (Wis. Stat. § 803.09(2m));  Part II.E.2., "Capitol Security" provision, 2017 Wis. Act 369, § 16 (Wis. Stat. § 16.84(2m));  Part II.E.3, "Multiple Suspensions of Administrative Rules" provision, 2017 Wis. Act 369, § 64 (Wis. Stat. § 227.26(2)(im)), in light of Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992); and  Part II.E.4., "Agency Deference Provision," 2017 Wis. Act 369, § 35 (Wis. Stat. § 227.10(2g)), in light of Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21. 1 No. 2019AP614-LV & 2019AP622.rfd plausibly suggests that the sweep of the "Litigation Control" provisions, 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)) and § 30 (Wis. Stat. § 165.25(6)(a)1.), violates our constitutional separation of powers because it unduly burdens and substantially interferes with executive power. Accordingly, I respectfully concur in part and dissent in part. I ¶165 This case was snatched from the circuit court in its infancy, on the eve of the first trial on the challenged provisions.3 Consequently, the facts have not been developed and the parties have not had the opportunity to amend their pleadings to conform to those facts.4 The impact of the majority opinions is therefore limited, as is our review. Several undeveloped claims are remanded right back to the circuit court to proceed in the ordinary course of litigation. Even those claims dismissed by the majority will likely find their way back to us after newly filed lawsuits result in the very development that this court's Because I join the majority opinions with respect to 2017 Wis. Act 369, § 31 (Wis. Stat. § 227.01(3m)), § 64 (Wis. Stat. § 227.26(2)(im)), §§ 65-71 (amending Wis. Stat. § 227.40), and §§ 104-05, I would similarly vacate the circuit court's temporary injunction with respect to these sections. 3 This court assumed jurisdiction over the Legislative Defendants' interlocutory appeal on June 11, 2019, staying all circuit court proceedings the day before the first part of the bifurcated trial was set to commence. 4 A litigant's ability to amend the pleadings pursuant to Wis. Stat. § 802.09(1) is "liberally construed . . . so as to present the entire controversy providing the amendment does not unfairly deprive the opposing party of timely opportunity to meet the issue created by the amendment." Wiegel v. Sentry Indem. Co., 94 Wis. 2d 172, 184, 287 N.W.2d 796 (1980) (quoted source omitted). 2 No. 2019AP614-LV & 2019AP622.rfd assumption of jurisdiction snuffed. This court's impatience did not allow the challenges to 2017 Wis. Act 369 and 2017 Wis. Act 370 to percolate and will prove to be an unfortunate waste of judicial resources.5 ¶166 We have before us a limited review of the circuit court's denial of a motion to dismiss. "A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint." Voters with Facts v. City of Eau Claire, 2018 WI 63, ¶27, 382 Wis. 2d 1, 913 N.W.2d 131 (quoting Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693). The legal sufficiency of a complaint, in turn, "depends on [the] substantive law that underlies the claim made because it is the substantive law that drives what facts must be pled." Id. (alteration in original) (quoting Data Key Partners, 356 Wis. 2d 665, ¶31). ¶167 Here, the underlying substantive law is this court's jurisprudence on the separation of powers under the Wisconsin Constitution, as well as the United States Supreme Court's jurisprudence regarding the separation of powers under the United 5 See, e.g., Richard A. Posner, The Federal Courts: Crisis and Reform 163 (1985) ("[A] difficult question is more likely to be answered correctly if it is allowed to engage the attention of different sets of judges deciding factually different cases than if it is answered finally by the first panel to consider it."); John Paul Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 183 (1982) ("The doctrine of judicial restraint teaches us that patience in the judicial resolution of conflicts may sometimes produce the most desirable result."). 3 No. 2019AP614-LV & 2019AP622.rfd States Constitution.6 The Wisconsin Constitution establishes a tripartite state government whereby it vests the senate and assembly with the legislative power, Wis. Const. art. IV, § 1; the governor with the executive power, id., art. V, § 1; and the unified court system with the judicial power, id., art. VII, § 2. "[N]o branch [is] subordinate to the other, no branch [may] arrogate to itself control over the other except as is provided by the constitution, and no branch [may] exercise the power committed by the constitution to another." Koschkee v. Taylor, 2019 WI 76, ¶10, 387 Wis. 2d 552, 929 N.W.2d 600 (quoting State ex rel. Friedrich v. Cir. Ct. for Dane Cty., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995) (per curiam)). ¶168 Despite this formal proscriptive language, our separation-of-powers doctrine at times embraces a functionalist approach: "the doctrine envisions a system of separate branches sharing many powers while jealously guarding certain others, a system of 'separateness but interdependence, autonomy but reciprocity.'" Friedrich, 192 Wis. 2d at 14 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)). Our doctrine distinguishes core powers that the Wisconsin Constitution exclusively vests in one of the branches from shared powers that "lie at the intersections of these exclusive core constitutional powers." State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 The 6 "principles underlying the United States Constitution . . . 'inform our understanding of the separation of powers under the Wisconsin Constitution.'" League of Women Voters of Wisconsin v. Evers, 2019 WI 75, ¶31, 387 Wis. 2d 511, 929 N.W.2d 209 (quoting Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384). 4 No. 2019AP614-LV & 2019AP622.rfd (1999). The core powers are "jealously guard[ed]," while branches with intersecting powers may exercise their shared authority so long as they do not "unduly burden or substantially interfere with another branch." Id. at 644. ¶169 This court's functionalist approach, however, is vulnerable to one branch's accretion of another's power in their shared zone of authority.7 That vulnerability threatens our constitutional structure8 and requires this court to vigorously apply the limiting principle in our shared-power analysis: the exercise of shared power cannot unduly burden or substantially interfere with a coequal branch's function. Mindful of this limiting principle, I turn to the Litigation Control provisions. II ¶170 The complaint alleges that the Litigation Control provisions, 2017 Wis. Act 369, § 26 (Wis. Stat. § 165.08(1)) and § 30 (Wis. Stat. § 165.25(6)(a)1.), violate the separation-of- powers doctrine because they effectively eliminate executive power 7 Justice Brennan, a prolific modern advocate of living constitutionalism and constitutional functionalism generally, adhered to a formal separation-of-powers philosophy because of this vulnerability. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 859–62 (1986) (Brennan, J., dissenting) (reasoning that the Court's functional approach risked the "incremental erosion" of the separation between the branches "central to our constitutional scheme"); see also N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (Brennan, J.). 8 "While individual encroachments on the constitutional structure may appear harmless, at some point the structure will fail, and '[w]hen structure fails, liberty is always in peril.'" Ara Lovitt, Fight for Your Right to Litigate: Qui Tam, Article II, and the President, 49 Stan. L. Rev. 853, 866 (1997) (footnotes omitted) (quoting Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring)). 5 No. 2019AP614-LV & 2019AP622.rfd to settle civil litigation by enacting an overriding legislative veto. Prior to Act 369, executive branch officials could direct a civil prosecution to be compromised or discontinued. Act 369 amended § 165.08(1) to remove the executive branch's unilateral control by barring the attorney general from compromising or discontinuing a civil prosecution without prior "approval of a[] [legislative] intervenor" or, if there is no legislative intervenor, "only if the joint committee on finance approves the proposed plan [to compromise or discontinue]" the prosecution. (Emphasis added.) Further, pursuant to § 165.08(1) the attorney general can no longer concede "the unconstitutionality or other invalidity of a statute" or that "a statute violates or is preempted by federal law" without first receiving the approval of another legislative committee, the joint committee on legislative organization. ¶171 Similarly, Wis. Stat. § 165.25(6)(a)1. removes the executive branch's unilateral control by mandating legislative approval in cases where the attorney general defends the State of Wisconsin in a civil action for injunctive relief or where there is a proposed consent decree. Section 165.25(6)(a)1. dictates that the attorney general "may not compromise or settle the action without the approval of a[] [legislative] intervenor . . . or, if there is no intervenor, without first submitting a proposed plan to the joint committee on finance." (Emphasis added.) The attorney general may now only settle a case in defense of the State of Wisconsin with the committee's approval, if the committee chooses to meet. And if the plan "concedes the unconstitutionality 6 No. 2019AP614-LV & 2019AP622.rfd or other invalidity of a statute, facially or as applied, or concedes a statute violates or is preempted by federal law," section 165.25(6)(a)1. adds yet another layer of legislative control: "the approval of the joint committee on legislative organization" before the attorney general may even submit the plan. Collectively, the Litigation Control provisions make legislative officials the final arbiters over the attorney general's discretionary authority to resolve state-related litigation. ¶172 The question presented to this court is whether the Plaintiffs have sufficiently stated a claim that the sweep of the Litigation Control provisions "unduly burden[s] or substantially interfere[s] with" the executive branch's power to execute the law. Horn, 226 Wis. 2d at 645. It is indisputable that litigation is a tool of the executive branch for executing the law, see Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam),9 and that removal of sufficient executive control over litigation can violate the constitution, see Morrison v. Olson, 487 U.S. 654, 685-96 (1988). However, the majority undertakes no substantive analysis of whether the Litigation Control provisions' removal of executive control over resolving litigation unduly burdens or substantially interferes with the executive branch's function. Instead, the majority mechanically applies a strict review standard for facial challenges and concludes that the Plaintiffs' 9 "A lawsuit is the ultimate remedy for a breach of the law, and it is to the President . . . that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed.'" Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam) (quoting U.S. Const. art. II, § 3). 7 No. 2019AP614-LV & 2019AP622.rfd challenge fails because the court can conceive of some unarticulated constitutional application of the Litigation Control provisions. ¶173 I dissent for two reasons. First, the legislature does not have a constitutionally-vested "institutional interest as a represented party" in civil litigation resolution and the power of the purse cannot be understood so broadly as to permit substantial burdens on another branch's intersecting power. Second, the majority's rigid application of a strict facial-challenge standard in this case achieves the exact opposite of judicial modesty. Application of the overbreadth doctrine better safeguards the separation of powers established by the Wisconsin Constitution. A ¶174 The majority's conception of the legislature's "institutional interest as a represented party," Justice Hagedorn's majority op., ¶67, is unsupported by the Wisconsin Constitution and creates a dangerously expansive ability for the legislature to unduly burden and substantially interfere with the other branches.10 The Wisconsin Constitution, like the United States Constitution, does not contemplate an active role for the legislature in executing or in supervising the executive officers 10If the legislature had an institutional interest such that it could arrogate the executive power to ensure its laws were upheld (or at least not conceded) in court, the legislature could also rely on this interest to enact the same controls on the judiciary's authority to declare its laws invalid, unconstitutional, or preempted by federal law. Such a result is constitutionally suspect. 8 No. 2019AP614-LV & 2019AP622.rfd charged with executing the laws it enacts.11 See Schuette v. Van De Hey, 205 Wis. 2d 475, 480–81, 556 N.W.2d 127, (Ct. App. 1996) ("Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them, or appoint the agents charged with the duty of such enforcement." (quoting 2A Eugene McQuillin, Municipal Corporations § 10.06 at 311 (3d ed. 1996))); see also Bowsher v. Synar, 478 U.S. 714, 722, 726 (1986). Justice Hagedorn's majority opinion fails to tie its concept of an institutional interest to any constitutional text. This is fatal to its argument because a separation-of-powers analysis begins and ends with the Wisconsin Constitution. 11I do not contest that the legislature's institutional interest may permit it to intervene in litigation on its own branch's behalf. For this reason, I join Justice Hagedorn's opinion with respect to 2017 Wis. Act 369, § 5 (Wis. Stat. § 13.365) and § 97 (Wis. Stat. § 803.09(2m)). I further emphasize that this concurrence/dissent should not be read to advance the position that the attorney general, as part of the executive branch, has the sole power to decide the litigation positions of other constitutional officers when those officers are named parties in a lawsuit. We have previously warned that such a practice "would give the attorney general breathtaking power" and "would potentially make the attorney general a gatekeeper for legal positions taken by constitutional officers, such as the governor or justices of this court sued in their official capacity." Koschkee v. Evers, 2018 WI 82, ¶13, 382 Wis. 2d 666, 913 N.W.2d 878 (per curiam). Likewise, irrespective of Wis. Stat. § 14.11(2), when a conflict arises and the attorney general, as part of the executive branch, is unable to represent a named judicial party, it is the judicial branch rather than the executive branch that selects subsequent representation. See id., ¶13 n.3 (citing SCR 81.02(1)) (referring to "this court's practice of appointing counsel for a court, for judges sued in their official capacity . . . and for boards, commissions and committees appointed by the supreme court"). 9 No. 2019AP614-LV & 2019AP622.rfd ¶175 The other legislative power relied upon by the majority, the power of the purse, is found in the Wisconsin Constitution. Wis. Const. art. VIII, § 2 ("No money shall be paid out of the treasury except in pursuance of an appropriation by law."); see Justice Hagedorn's majority op., ¶68. The legislature's control of the purse strings, however, cannot be read so broadly that it allows the legislature to curtail the functions of another branch even in an area of shared authority.12 See Gabler v. Crime Victims Rights Bd., 2017 WI 67, ¶4, 376 Wis. 2d 147, 897 N.W.2d 384 ("[N]either the legislature nor the executive nor the judiciary 'ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.'" (quoting The Federalist No. 48, at 305 (James Madison) (Clinton Rossiter ed., 1961))). If it were so broad, the legislature could authorize itself to veto any function constitutionally assigned to the executive or judiciary because money is required to enforce the law and maintain a judiciary. Such an "overruling influence" over the other branches is not constitutionally tolerable. B ¶176 Even assuming the power of the purse gives the legislature a share of the power to resolve litigation, I do not 12 In fact, the Wisconsin legislature's constitutional "power of the purse" is substantially more constrained relative to other state and the federal constitutions because the Wisconsin Constitution grants the governor "coextensive" authority over appropriations legislation. Wis. Const. art. V, § 10(1)(b); State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 315, 260 N.W. 486 (1935). 10 No. 2019AP614-LV & 2019AP622.rfd agree with the majority's mechanical adherence to a strict "no set of circumstances" test for facial challenges. ¶177 The majority cites to United States v. Salerno, 481 U.S. 739, 745 (1987), for the standard that the challenging party "must establish that no set of circumstances exists under which the [challenged act] would be valid." See Justice Hagedorn's majority op., ¶40 n.12. However, this dicta from the Salerno case has been applied inconsistently by the United States Supreme Court depending upon the nature of the facial challenge. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (adopting the undue burden test for facial challenges to state abortion laws); see also City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (plurality opinion) ("To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation . . . ."); Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175 n.1 (1996) (mem.) (citing United States Supreme Court cases that did not apply the Salerno test to a facial challenge). Recognizing the United States Supreme Court's inconsistency with regard to facial challenges, this court has previously declined to apply the no set of circumstances test to an Establishment Clause challenge where there was no clear United States Supreme Court precedent for doing so. Jackson v. Benson, 218 Wis. 2d 835, 854 n.4, 578 N.W.2d 602 (1998); see also State v. Konrath, 218 Wis. 2d 290, 305 n.15, 577 N.W.2d 601 (1998) ("[T]he United States Supreme Court has not consistently applied the 'no set of circumstances' language."). 11 No. 2019AP614-LV & 2019AP622.rfd ¶178 The majority claims this test is nonetheless appropriate as an exercise of judicial modesty that will avoid judicial overstepping into the legislature's prerogative. However, the majority effectuates the exact opposite result. Instead of respecting the coequal branches, it forces the subverted branch, here the executive, to repeatedly vindicate its constitutionally delegated role through as-applied challenges. That litigation burden may itself be undue and substantially detracts from the time and resources that both branches should instead be directing toward their respective constitutional functions. ¶179 More distressingly, the piecemeal litigation invited by the majority means that the judiciary will have to engage in line- drawing that is effectively policy-making, a clear overstep of its constitutional role. The much narrower statutes enacted by other states demonstrate that it is for the legislature, not the judiciary, to determine a dollar threshold where the power of the purse is implicated. See Justice Hagedorn's majority op., ¶70. For example, the Connecticut legislature limited its involvement to settlements over $2,500,000. See Conn. Gen. Stat. Ann. § 3- 125a(a) (2019). The Oklahoma legislature set a threshold of $250,000. See Okla. Stat. Ann. tit. 51 § 200A.1. (2019). In Utah, legislative approval only becomes mandatory for settlements that might cost more than $1,000,000 to implement. Utah Code Ann. § 63G-10-202 (2018). In contrast, Wisconsin's legislature granted itself an unfettered veto power in every proposed settlement, compromise, or discontinuation of not only civil cases where the attorney general is defending the State of Wisconsin, but also 12 No. 2019AP614-LV & 2019AP622.rfd where the executive is prosecuting the law. I fail to see the touted judicial modesty in an approach that will result in an exercise of judicial policy-making. ¶180 Instead, this court should determine whether the Litigation Control provisions substantially interfere with the function of the executive because of their unconstitutional overbreadth.13 An overbreadth challenge is appropriate upon "specific reasons weighty enough to overcome our well-founded reticence" in entertaining facial challenges. Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citing United States Supreme Court cases applying an overbreadth test to facial challenges in various substantive contexts). Indeed, the United States Supreme Court will evaluate a facial challenge alleging that a statute is unconstitutionally overbroad where "good reason" exists——generally where the statute may encumber a fundamental constitutional protection. Id.; see, e.g., Aptheker v. U.S. Sec'y of State, 378 U.S. 500, 515–517 (1964) (applying overbreadth to evaluate a facial challenge to a statute affecting the right to travel because it is "a personal liberty protected by the Bill of Rights"). ¶181 The United States Supreme Court's broader understanding of the overbreadth doctrine is instructive for this court, as we have not had the opportunity to address the overbreadth doctrine outside of the First Amendment context. See, e.g., State v. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 90; Konrath, 218 13At oral argument, Attorney General Kaul and the Legislative Defendants debated the issue of whether analyzing this case as a traditional facial challenge was appropriate. My analysis stems from their debate. 13 No. 2019AP614-LV & 2019AP622.rfd Wis. 2d 290. As we noted in Konrath, the limited use of the overbreadth doctrine is based on third-party standing concerns: a private party to whom a statute constitutionally applies could escape his or her deserved sanction because of the statute's unconstitutional application to parties not before the court. 218 Wis. 2d at 305. We tolerate this result and modify the rules of standing in the First Amendment context because of "the gravity of a 'chilling effect' that may cause others not before the court to refrain from constitutionally protected speech or expression." Stevenson, 236 Wis. 2d 86, ¶12 (quoted sources omitted). ¶182 Here, there is no third-party standing concern. The constitutional and unconstitutional applications of the Litigation Control provisions affect a single party: the attorney general. By assuming jurisdiction over this case, the court obtained jurisdiction over the only party that could be affected by the requested declaratory and injunctive relief.14 This eliminates the possibility for judicial overreach that standing is meant to moderate. ¶183 Additionally, application of the overbreadth doctrine in a separation of powers challenge such as this one would prevent the "incremental erosion" of our tripartite constitutional structure, a harm as grave as the chilling effect on protected In other words, the facial remedy would be no broader than 14 the as-applied remedy since the only potential as-applied challenger is currently under this court's jurisdiction. This renders the distinction between the two analytically meaningless. See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010) ("The distinction [between facial and as-applied challenges] . . . goes to the breadth of the remedy."). 14 No. 2019AP614-LV & 2019AP622.rfd speech in the First Amendment context.15 See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 859–62 (1986) (Brennan, J., dissenting). With respect to the Litigation Controls provisions particularly, the overbreadth doctrine would alleviate the danger of the legislature's "selective enforcement" of its new veto power to discriminately force the executive to continue litigation no longer deemed to be in the public interest. Cf. Stevenson, 236 Wis. 2d 86, ¶13; see also Gabler, 376 Wis. 2d 147, ¶5 (warning that absent separation of powers the legislature could "first 'enact tyrannical laws' then 'execute them in a tyrannical manner.'" (quoting 1 Montesquieu, The Spirit of the Laws 151-52 (Oskar Piest et al. eds., Thomas Nugent trans., 1949) (1748))). It also would prevent "practically unbridled . . . discretion" in delaying or denying executive decision-making on how to best enforce the law. Cf. Stevenson, 236 Wis. 2d 86, ¶13. ¶184 Given the absence of third-party standing issues and the gravity of the harm alleged with respect to these provisions, there is "good reason" for this court to apply the overbreadth doctrine to the Litigation Control provisions,16 consistent with the United States Supreme Court's approach. See Sabri, 541 U.S. at 609-10; 15Incremental erosion "undermines the checks and balances . . . designed to promote governmental accountability and deter abuse." Panzer v. Doyle, 2004 WI 52, ¶52, 271 Wis. 2d 295, 680 N.W.2d 666, overruled on other grounds by Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. 16This conclusion might be true in all shared-powers analyses, but I leave that question for another time. I focus my application of the overbreadth doctrine on the Litigation Control provisions because, as compared to the other challenged provisions, only their sweeping grab of power could unduly burden or substantially interfere with the executive branch's function. 15 No. 2019AP614-LV & 2019AP622.rfd see also Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000) (advocating that the review of a facial challenge should be evaluated on a "doctrine-by-doctrine basis" and guided by "the applicable substantive tests of constitutional validity"). ¶185 In the context of a motion to dismiss review, this court's overbreadth inquiry is whether the Plaintiffs have stated a claim that the Litigation Control provisions sweep so broadly that they "unduly burden or substantially interfere with" the executive branch's power to execute the law. See Horn, 226 Wis. 2d at 644. We must accept as true the Plaintiffs' allegations that the Litigation Control provisions can: (1) prolong litigation deemed no longer in the public interest; (2) lock in public resources on those cases; (3) undermine the attorney general's leverage at settlement conferences by removing ultimate settlement authority; and (4) inhibit the executive's check on unconstitutional legislative action. See Voters with Facts, 382 Wis. 2d 1, ¶27 (quoting Data Key Partners, 356 Wis. 2d 665, ¶19). ¶186 To assess the burden on a branch of government, the concern is with "actual and substantial encroachments by one branch into the province of another, not theoretical divisions of power." Martinez v. DILHR, 165 Wis. 2d 687, 697, 478 N.W.2d 582 (1992) (quoting J.F. Ahern v. Bldg. Comm'n, 114 Wis. 2d 69, 104, 336 N.W.2d 679 (Ct. App. 1983)). The court has in previous cases relied upon affidavits and statistical analyses. See Friedrich, 192 Wis. 2d at 25-30 (relying on affidavits from judges and attorneys to assess burden to the judicial branch); State v. 16 No. 2019AP614-LV & 2019AP622.rfd Holmes, 106 Wis. 2d 31, 70, 315 N.W.2d 703 (1982) (relying on statistical evidence to assess the burden on the judicial branch caused by the challenged statute). In this case, however, there has been no factual development as to the amount and types of cases the attorney general litigates, the types and frequency of resolutions pursued in those cases, or the kinds of burdens the Litigation Control provisions now impose on that litigation. Only after development of the facts can a court determine whether the sweep of the Litigation Control provisions unduly burdens or substantially interferes with the attorney general's ability to execute the law through litigation. ¶187 I conclude that the complaint and the reasonable inferences drawn therefrom sufficiently states a claim that the sweep of the Litigation Control provisions will unduly burden or substantially interfere with the executive branch's power to execute the law through civil litigation. Accordingly, I would affirm the circuit court's denial of the motion to dismiss the Litigation Control provisions and remand the case to the circuit court to proceed through the ordinary course of litigation. The temporary injunction should be reinstated on remand because the circuit court did not erroneously exercise its discretion. Its written decision states the correct law, applies that law to the facts of record, and demonstrates a reasoned process in reaching its conclusion. See Thoma v. Vill. of Slinger, 2018 WI 45, ¶11, 381 Wis. 2d 311, 912 N.W.2d 56. ¶188 For the foregoing reasons, I respectfully concur in part and dissent in part. 17 No. 2019AP614-LV & 2019AP622.rfd ¶189 I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence/dissent. 2 No. 2019AP614-LV & 2019AP622.bh ¶190 BRIAN HAGEDORN, J. (concurring in part, dissenting in part). In 2017 Wis. Act 369, the legislature defined a new category of formal or official executive branch documents and communications called "guidance documents." The legislature established certain requirements governing their contents, a process governing their issuance, and a procedure permitting their administrative and judicial challenge. The majority bases its declaration that two provisions are unconstitutional on this proposition: legislative governance over guidance documents regulates executive branch thought and therefore invades core executive power. Hence, it throws the constitutional penalty flag and declares as facially unconstitutional a statutory provision requiring that the law be cited in formal agency communications. It also declares a notice-and-comment period prior to the issuance of guidance documents facially unconstitutional. ¶191 The majority's thesis, however, is wrong on the facts and runs contrary to the plain language of the laws the legislature passed. This means its constitutional conclusion is similarly faulty. The court may assert it is upholding the separation of powers, but it is not. The powers exercised by the legislature here are properly within their province, at least on a facial challenge. Although the majority denies it, the majority takes these powers away based on the thinnest of foundations——its misguided determination that guidance documents regulate executive branch thought. This isn't what the statutes do, and every other error follows from this flawed wellspring. Guidance documents regulate executive branch communications with the public——a 1 No. 2019AP614-LV & 2019AP622.bh permissible and longstanding area of legislative regulation. I would hold that all of the guidance document provisions survive a facial challenge. I. WHAT GUIDANCE DOCUMENTS ARE ¶192 My disagreement with the majority is not over the meaning of the constitution; we both embrace the same separation-of-powers principles. Rather, the majority's analytical error rests with its mistaken interpretation of what guidance documents are and what they do. Wis. Stat. § 227.01(3m).1 The new statute affirms 1 2017 Wis. Act 369, § 31 created the following subsection: (a) "Guidance document" means, except as provided in par. (b), any formal or official document or communication issued by an agency, including a manual, handbook, directive, or informational bulletin, that does any of the following: 1. Explains the agency's implementation of a statute or rule enforced or administered by the agency, including the current or proposed operating procedure of the agency. 2. Provides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency, if that guidance or advice is likely to apply to a class of persons similarly affected. (b) "Guidance document" does not include any of the following: 1. A rule that has been promulgated and that is currently in effect or a proposed rule that is in the process of being promulgated. 2. A standard adopted, or a statement of policy or interpretation made, whether preliminary or final, in the decision of a contested case, in a private letter ruling under s. 73.035, or in an agency decision upon or 2 No. 2019AP614-LV & 2019AP622.bh that guidance documents are not rules; they do not have the force of law. Rather, guidance documents are "formal or official documents or communications issued by an agency" that either explain how an agency is implementing a rule, or provide guidance or advice on how the agency is likely to apply a statute or rule if it is likely to apply to a class of persons similarly affected. § 227.01(3m)(a). disposition of a particular matter as applied to a specific set of facts. 3. Any document or activity described in sub. (13) (a) to (zz), except that "guidance document" includes a pamphlet or other explanatory material described under sub. (13) (r) that otherwise satisfies the definition of "guidance document" under par. (a). 4. Any document that any statute specifically provides is not required to be promulgated as a rule. 5. A declaratory ruling issued under s. 227.41. 6. A pleading or brief filed in court by the state, an agency, or an agency official. 7. A letter or written legal advice of the department of justice or a formal or informal opinion of the attorney general, including an opinion issued under s. 165.015 (1). 8. Any document or communication for which a procedure for public input, other than that provided under s. 227.112 (1), is provided by law. 9. Any document or communication that is not subject to the right of inspection and copying under s. 19.35 (1). Wis. Stat. § 227.01(3m) (2017-18). All subsequent references to the Wisconsin Statutes are to the 2017-18 version. 3 No. 2019AP614-LV & 2019AP622.bh ¶193 The statute contains some clue as to the type of communications being envisioned: "a manual, handbook, directive, or informational bulletin." Id. While this list is nonexclusive, these examples help us understand what is meant by "formal or official document[s] or communication[s]." Id. Not every agency communication is a guidance document, only formal or official communications that either are or are like manuals, handbooks, directives, or bulletins. See Schill v. Wis. Rapids School Dist., 2010 WI 86, ¶66, 327 Wis. 2d 572, 786 N.W.2d 177 (explaining that "general terms . . . may be defined by the other words and understood in the same general sense" under the interpretive canon of noscitur a sociis (a word is "known by its associates")). ¶194 The guidance document provisions undoubtedly reach far and wide into agency operations. Agencies regularly create informational documents to inform the public regarding a given area of law. These communications do not themselves carry the force of law; rather they explain the agency's understanding and execution of the law to the public. The Plaintiffs and the Governor provided the following examples of guidance documents:  A pamphlet issued by the Department of Public Instruction explaining how the department administers funding;  A Department of Health Services guide about health insurance;  A bulletin from the Division of Motor Vehicles about driver's license exams; and  Forms created by the Department of Children and Families explaining eligibility for child support. 4 No. 2019AP614-LV & 2019AP622.bh These are, in the main, ordinary sorts of official communications that greatly affect the public's knowledge of the laws that govern them. ¶195 This newly defined category of communications comes with new statutory requirements. Of particular moment are the two provisions receiving the court's disapproval. Wisconsin Stat. § 227.05 states that agencies "shall identify the applicable provision of federal law or the applicable state statutory or administrative code provision that supports any statement or interpretation of law that the agency makes in any publication." And Wis. Stat. § 227.112 requires, among other things, that proposed guidance documents be sent to the legislative reference bureau and undergo a notice-and-comment period before the guidance documents are issued, subject to the caveat that public comment periods shorter than 21 days are allowed with the governor's approval.2 II. ANALYSIS ¶196 I refer the reader to the discussion of the separation of powers in the majority opinion analyzing the remaining issues in this case. Justice Hagedorn's majority op., ¶¶30-35. But by way of reminder, a core power is one conferred by the constitution such that only the branch vested with a core power may exercise that power. See State v. Horn, 226 Wis. 2d 637, 643, 594 N.W.2d 772 (1999); Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶48, Wisconsin Stat. § 227.112 is cited in full in paragraph 90 2 of Justice Kelly's majority opinion. 5 No. 2019AP614-LV & 2019AP622.bh 382 Wis. 2d 496, 914 N.W.2d 21 (Kelly, J.). Not all government power has this exclusive character. Shared powers, those residing where the powers of the branches converge, may be exercised by more than one branch so long as no branch "unduly burden[s] or substantially interferes[s] with another branch." Horn, 226 Wis. 2d at 643-44. ¶197 The Plaintiffs and the Governor argue that all of the guidance document provisions impermissibly infringe on a core executive power——namely, the Governor's constitutional duty to "take care that the laws be faithfully executed." Wis. Const. art. V, § 4. This occurs, the parties contend, because the legislature is regulating non-legislative power——the power to give advice, for example. The majority agrees in part and holds that two of the guidance document provisions intrude upon the core powers of the executive branch.3 ¶198 The challenged provisions do not intrude upon the core powers of the executive branch because determining the content and timing of executive branch communications are not the exclusive prerogative of the executive. By enacting the guidance document provisions, the legislature is carrying out its function of determining what the law should be by passing laws pursuant to its constitutional authority. Wis. Const. art. IV, § 1, § 17; Koschkee 3 In the alternative, the Plaintiffs and the Governor assert that the guidance document provisions unduly burden and substantially interfere with the Governor's ability to faithfully execute the laws under a shared powers analysis. I conclude that all of the disputed guidance document provisions survive a facial challenge under both a core powers and shared powers analysis. But in light of the majority's decision, a separate analysis regarding shared powers is unnecessary. 6 No. 2019AP614-LV & 2019AP622.bh v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600 (stating legislative power "is the authority to make laws"). And nothing in the constitution suggests the legislature cannot, at least in some circumstances, make laws that determine the content of certain formal communications from the government to the public, or prescribe the process by which certain formal or official documents and communications are finalized and issued. ¶199 The legislature has long regulated at least some formal executive branch communications about the law——including the executive branch's understanding of what the law is, how the executive branch is executing the law, and how the executive branch intends to execute the law going forward. The clearest example may be the mandatory creation of certain executive branch reports. For instance, Wis. Stat. § 15.04(1)(d) requires executive agencies to create a report each biennium, delivered "[o]n or before October 15 of each odd-numbered year." The report must include what the agency has done, how it operates, and its goals and objectives moving forward. Id. Similar mandated reports regarding what the executive branch is doing and plans to do are found throughout Wisconsin law.4 4 For example, the Read to Lead Development Council, a subordinate of the Department of Children and Families, annually submits an operation report to appropriate standing committees of the legislature. Wisconsin Blue Book 194 (2019-20). Likewise, the Board on Aging and Long-Term Care reports to both the governor and the legislature regarding "long-term care for the aged and disabled." Id. at 184. And the Farmland Advisory Council, a subordinate council of the Department of Revenue, is also required to report annually to the legislature. Id. at 226. 7 No. 2019AP614-LV & 2019AP622.bh ¶200 In short, while the formal delineation of a category of executive branch communications called guidance documents are something new in state law, they are not new in kind. Here, the legislature has passed laws telling the executive branch what content must be included in certain communications, how those communications must be issued, and the process by which those communications may be challenged. This has never been thought of as a power exclusive to the executive, and nothing in the constitution makes it so. The constitution gives the legislature the power to say what the law should be. At the very least, this gives the legislature a say in at least some formal executive Sometimes the legislature is quite specific in directing the content of formal communications and the internal operations and decision-making processes in the executive branch. One example is the groundwater coordinating council, found in Wis. Stat. § 15.347(13). This statutory provision not only creates the council and its membership, it also details with particularity how often and under what conditions it can meet. § 15.347(13)(f) ("The council shall meet at least twice each year and may meet at other times on the call of 3 of its members."). The legislature has further mandated that the council must file a report every August which summarizes the operations and activities of the council during the fiscal year concluded on the preceding June 30, describes the state of the groundwater resource and its management and sets forth the recommendations of the council. The annual report shall include a description of the current groundwater quality in the state, an assessment of groundwater management programs, information on the implementation of [Wis. Stat.] ch. 160 and a list and description of current and anticipated groundwater problems. In each annual report, the council shall include the dissents of any council member to the activities and recommendations of the council. § 15.347(13)(g). 8 No. 2019AP614-LV & 2019AP622.bh branch communications to the public about the law. The challenged provisions therefore should survive a facial challenge. ¶201 The majority disagrees and concludes Wis. Stat. §§ 227.05 and 227.112 violate the core powers of the executive branch. Its analysis falls far short of the mark because it rests on a singular proposition that finds no support in the statutory provisions at issue, and therefore has no basis in the constitution. ¶202 The majority summarizes its reasoning and conclusion as follows: Thought must precede action, of course, and guidance documents are simply the written record of the executive's thoughts about the law and its execution. They contain the executive's interpretation of the laws, his judgment about what the laws require him to do. Because this intellectual homework is indispensable to the duty to "take care that the laws be faithfully executed," Wis. Const. art. V, § 4, it is also inseparable from the executive's constitutionally- vested power. Justice Kelly's op., ¶106. ¶203 This conclusion, however, does not follow from the premises because the guidance document provisions do not control or regulate executive branch thought, at least in all circumstances. That is the hook upon which the majority's entire analysis rests, and it is mistaken. The only thing the legislature purports to regulate here is a "formal or official document or communication" about the law——in other words, formal communications reflecting the product of thought. Wis. Stat. § 227.01(3m)(a). The majority's explanation that the legislature is regulating "the necessary predicate to executing the law," 9 No. 2019AP614-LV & 2019AP622.bh Justice Kelly's op., ¶107, is wrong on the facts, and therefore, wrong on the law. The legislature is regulating formal communications that are the result of, rather than the necessary predicate to, executing the law. By the time a guidance document has been reduced to writing, the thinking and analyzing has been done. ¶204 It is true that an executive branch document explaining when fishing season starts will require the executive branch to read and think about the law. But there's nothing core to the executive branch's powers in disseminating formal information which answers that legislatively determined question. Indeed, under our constitutional structure, it must be the executive that formally disseminates that information; that is the branch that executes the law, which necessarily includes communication about the law.5 The majority's abstract approach misses what's actually going on here. The legislature is not invading the executive's ability to read the law or think about the law when it regulates how agencies officially communicate to the public about what the law is and where in the statutes the law may be found. 5 The majority raises a series of questions asking whether the legislature could tell the judicial branch to do similar things as the disputed laws do here. Justice Kelly's op., ¶126. But the legislature's relationship to the judiciary is far different than its relationship to the branch charged with the constitutional duty to execute the laws the legislature passes. Moreover, the majority's criticisms ring hollow because the majority says the legislature can pass laws that do the very things it cites; the legislature just has to enact laws regarding specific documents (create a youth hunting bulletin, for example). So the majority's criticisms apply just as forcefully to its own reasoning, which is to say, not much at all. 10 No. 2019AP614-LV & 2019AP622.bh ¶205 The majority realizes, of course, that the legislature can tell the executive branch to communicate on a topic and can specify what the communication must include. Justice Kelly's op., ¶¶122-23. But such a communication, the majority tells us, does not meet the statutory definition of a guidance document. The majority explains: [I]f the legislature can "determine the content" of a guidance document, then it is no longer the executive's explanation, or the executive's guidance or advice——it is the legislature's explanation, guidance or advice. So, to the extent the legislature commands production of a document, or determines the content of a guidance document, it simply is no longer a guidance document. Id., ¶122. ¶206 Nothing in the statutes, however, supports this conclusion. If the law commands that a manual be created reflecting the executive's understanding and intended application of the law——and the statutes are full of such mandates——by definition, the manual will reflect the executive's understanding and intended application of the law. The "authorship," as the majority calls it, doesn't change one bit. For example, if an executive agency must by legislative command create a youth hunting bulletin and cite the relevant law, this is a reflection of the executive branch's understanding of the law no less than if the executive chooses to do the same thing in the absence of such a command. ¶207 Moreover, the statutory definition of guidance documents contains strong internal clues that the majority's analysis is unsound. The law tells us guidance documents include manuals, handbooks, or informational bulletins. Wis. Stat. 11 No. 2019AP614-LV & 2019AP622.bh § 227.01(3m)(a). These have lay definitions, but they also appear as terms of art throughout our statutes to describe formal agency communications. Sometimes our law requires the creation of specific informational communications. See, e.g., Wis. Stat. § 7.08(3) (instructing the Elections Commission to create an election law manual); Wis. Stat. § 49.32(3) (instructing the Department of Health Services (DHS) to create a policy and procedural manual regarding aid to families with dependent children); Wis. Stat. § 73.03(57) (instructing the Department of Revenue to create a tax increment financing manual); Wis. Stat. § 84.02(4)(e) (instructing the Department of Transportation (DOT) to create a manual establishing uniform traffic control devices); Wis. Stat. § 108.14(23) (instructing the Department of Workforce to create an unemployment insurance handbook). And at other times the statutes authorize, rather than command, the creation of informational communications. See, e.g., Wis. Stat. § 84.01(11) (instructing that the DOT shall issue bulletins, pamphlets and literature as necessary); Wis. Stat. § 115.28(4) (instructing the State Superintendent of Public Instruction to create informational bulletins); Wis. Stat. § 452.05(2) (authorizing the Real Estate Examining Board to prepare informational letters and bulletins); Wis. Stat. § 458.03(2) (authorizing the Department of Safety and Professional Services to create informational letters and bulletins). ¶208 It would be extraordinarily odd to read the use of terms like manual, handbook, and bulletin in the definition of a guidance document to exclude nearly all other statutory uses of the terms 12 No. 2019AP614-LV & 2019AP622.bh "manual," "handbook," and "bulletin." That's not normally how we do statutory interpretation. Bank Mut. v. S.J. Boyer Constr., Inc., 2010 WI 74, ¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the same term is used throughout a chapter of the statutes, it is a reasonable deduction that the legislature intended that the term possess an identical meaning each time it appears." (citation omitted)). ¶209 The majority's mistaken interpretation also produces results at odds with other portions of the definition of guidance documents. Under the majority's reasoning, the optional creation of a manual by the executive branch is a guidance document, while the mandatory creation of that same manual containing the same thoughts and written by the same authors is not a guidance document. But both a legislative command to communicate and legislative permission to communicate fall well within the statutory language that a guidance document "[e]xplains the agency's implementation of a statute or rule enforced or administered by the agency" or "[p]rovides guidance or advice with respect to how the agency is likely to apply a statute or rule enforced or administered by the agency." Wis. Stat. § 227.01(3m)(a). The majority's approach to authorship does not square with the words the legislature wrote. ¶210 The two provisions the majority opinion strikes down should easily survive a facial challenge. Wisconsin Stat. § 227.05 requires that a guidance document cite the applicable laws. But the majority opinion holds that this is too much for the legislature to demand of the executive branch because it controls 13 No. 2019AP614-LV & 2019AP622.bh executive branch thought. Again, the majority's analysis is not grounded in the constitution, but in its misinterpretation of the statutes. The legislature can, at least sometimes, command the executive branch to cite the legal basis for its formal explanation of laws. ¶211 Similarly, Wis. Stat. § 227.112 mandates draft guidance documents be posted for 21 days before they are officially issued, among other related requirements. Posting a draft before issuance of some formal communications is now denominated a regulation of executive branch thought and invades core executive power. The majority's reasoning is likewise rooted in its notion of authorship that runs counter to the statutory language. Again, the constitution allows the legislature to regulate the process by which at least some formal executive branch communications are issued. The majority agrees the legislature may do this if it commands the creation of such documents, but says the legislature may not do this if it merely permits the creation of such documents. Nothing in the statutes or the constitution suggests such a distinction.6 As the majority notes, Wis. Stat. § 227.05 was not 6 challenged by the Plaintiffs; it was raised in the Governor's motion for a temporary injunction. Therefore, the underlying merits are not before us, only the motion for temporary injunction. Rather than conduct an analysis under the rubric we have established for reviewing temporary injunctions, the majority goes right to the merits and decides the legal claim. The majority could have determined the claim is likely to be successful, and gone on to analyze the remaining factors. That is ordinarily how a claim under this posture would be analyzed since the legal question presented here relates only to the temporary injunction, not to the legal claim in the case itself. 14 No. 2019AP614-LV & 2019AP622.bh III. CONCLUSION ¶212 I part ways with the majority not in the general constitutional principles at stake, but in the majority's erroneous interpretation of what guidance documents are under the laws the legislature passed. The majority's criticisms and constitutional conclusion all derive from this error. The unfortunate result is that the court's decision undermines, rather than protects, the separation of powers by removing power the people gave to the legislature through their constitution. I would have directed the circuit court to grant the motion to dismiss the facial challenge to all the guidance document provisions challenged here and vacated the order enjoining these provisions in full. ¶213 I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this dissent. I also observe that even if the circuit court appropriately granted the temporary injunction, as the majority opinion concludes, the Legislative Defendants should still be able to raise their affirmative defenses on remand, including their claim that the governor does not have standing to sue the legislature on this question. The Legislative Defendants did not waive any opportunity to brief that question in the circuit court on remand given the question now before us relates only to the temporary injunction. 15 No. 2019AP614-LV & 2019AP622.bh 1	{ "pile_set_name": "FreeLaw" }
366 So.2d 1020 (1978) Janet Voorhies DURBIN et al. v. CITY OF BATON ROUGE et al. No. 12335. Court of Appeal of Louisiana, First Circuit. December 27, 1978. 1021 Charles W. Rea, Baton Rouge, of counsel for plaintiff-appellee Janet Voorhies Durbin, et al. Parish Atty. Joseph F. Keogh, Asst. Parish Atty. Charles E. Pilcher, Baton Rouge, of counsel for defendant-appellant City of Baton Rouge, et al. Before LANDRY, COVINGTON and PONDER, JJ. PONDER, Judge. The issues in this tort suit are: Does strict liability under LSA-C.C. Art. 2317 apply to governmental agencies; and what court costs are to be assessed to governmental agencies. The lower court held that C.C. Art. 2317 did apply to the City of Baton Rouge and assessed all court costs to the city. We affirm. The plaintiff, Janet Durbin, suffered personal injuries and property damage when a large tree limb fell onto her car which she was occupying. The tree, situated on a street right-of-way belonging to the City of Baton Rouge, was proved to be rotted. However, there was no proof that the defect was apparent or that the city had notice of any defect. In American Road Insurance Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1978), we held that C.C. Art. 2317 did apply to the department of Highways, even though no liability to that defendant resulted because of the fault of a third person. The Supreme Court denied writs, 356 So.2d 430, 434, 435 (La.1978). We found nothing in the words of C.C. Art. 2317 or of Loescher v. Parr, 324 So.2d 441 (La.1975), to justify a governmental agency being treated differently from a private defendant. We adhere to that opinion. It is true that the Third Circuit in Gallien v. Commercial Union Insurance Co., 353 So.2d 1127 (La.App. 3d Cir. 1978), held that C.C. Art. 2317 did not apply to governmental entities. The Supreme Court denied a writ there also. The court's rationale was that the strict liability of Art. 2317 had not yet been held applicable to governmental agencies and that the Supreme Court had not taken an opportunity to do so but had looked for and found notice of the defect before finding liability. United States Fidelity and Guaranty Company v. State of Louisiana, Dept. of Hwys., 339 So.2d 780 (La.1976). The Supreme Court also denied a writ in the Gallien case. 354 So.2d 1379 (La.1978). It is also true that there are some economic justifications for exempting governmental agencies. These were recognized in both the Gallien and in The American Road Insurance Company cases. We feel now, as we did formerly, that the question of exemptions is properly addressed elsewhere. The City of Baton Rouge complains that it was assessed all costs in violation of LSA-R.S. 13:4521.[1] However, the recent case of Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978), held that the provisions of that statute were superseded by Section 10(A) of Article XII of the Constitution of 1974 to the effect that the state, a state agency or a political subdivision shall not be immune from suit 1022 and liability in contract or for injury to person or property. For these reasons, the judgment is affirmed. The costs are assessed against the appellant. AFFIRMED. NOTES [1] LSA-R.S. 13:4521: "Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers' costs for taking testimony. As amended Acts 1964, No. 509, § 1."	{ "pile_set_name": "FreeLaw" }
17 F.3d 1429 Henglein (George W.), Albacker (L.C.), Andrews (R.B.),Appeldorn (R.L.), Ashenbaugh (R.H.), Austin (A.L.), Bagosi(J.W.), Balser (J.D.), Barrasso (A.), Bauer (J.O.), Best(E.E.), Bigleman (H.W.), Blazier (C.R.), Bressanelli (J.P.),Brown (G.D.), Buchholz (F.C.), Calvin (E.C.), Campbell(R.R.), Castellano (P.D.), Cerasi (J.L.), Chapman (E.),Christy (S.), Costello (T.M.), Dauka (C.A.), Decosta (A.J.),Degrande (M.G.) Diciccio (A.S.), Dimarzio (A.P., C.J.),Dougherty(R.J.) NO. 93-3219 United States Court of Appeals,Third Circuit. Jan 13, 1994 1 Appeal From: W.D.Pa.; Appealing after remand 974 F.2d 391 2 VACATED.	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) EARNEST DURANT, Jr., ) ) Plaintiff, ) ) v. ) Civil Action No. 10-0025 (ABJ) ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION In this action, plaintiff, Earnest Durant, Jr., alleges that his former employer, the District of Columbia Government Department of Corrections (“DOC;” “department”), retaliated against him for prior protected activities and subjected him to a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq. 1 Before the Court is defendant District of Columbia’s motion for summary judgment, [Dkt. # 67], as well as a motion to strike a supplemental Rule 26(a)(2) statement that plaintiff filed out of time, [Dkt. # 79]. While the Court finds that plaintiff has identified at least one action by his employer that is sufficiently adverse to be actionable under Title VII, he has failed to demonstrate that a reasonable jury could find that defendant’s justification for that action is mere pretext and that the real reason was retaliation for plaintiff’s prior protected activities. The Court also finds that plaintiff has failed to demonstrate that there is a genuine dispute of material fact as to whether he was forced to endure a hostile work environment in retaliation for his filing of 1 Although Count I of the amended complaint alleges discrimination on the basis of age and race under Title VII, plaintiff has agreed to withdraw those claims. Pl.’s Opp. to Def.’s Mot. for Summ. J. [Dkt. # 69] (“Pl.’s Op.”) at 3. Accordingly, the Court will grant defendant’s motion for summary judgment on Count I. Title VII claims. At bottom, plaintiff has done very little to supply the Court with the facts that are needed at this point in the proceedings, and he simply reiterates his allegations. Accordingly, the Court will grant summary judgment for defendant in full and will deny the motion to strike as moot. BACKGROUND The following facts are undisputed, except where noted. 2 At all times relevant to this case, plaintiff was employed with the DOC. Durant Dep., Ex. 1 to Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [Dkt. # 67-4] at 9:9–13, 28:19–22. He eventually attained the position of a Grade 11 Criminal Investigator in the Warrant Squad in 2001, following his participation in the class action, Neal v. Director, Department of Corrections, Civil No. 93-2420 (D.D.C.). Durant Dep. at 9:9–13; Exs. A.1, A.3 to Pl.’s Opp. [Dkt. # 69-5, 69-7]. In that case, another court in this district found in favor of a class of male and female employees of the DOC who suffered retaliation for opposing the department’s practices of sexual harassment. Neal v. Director, Civ. A. No. 93-2420 (RCL), 1995 WL 517248, at 1 (D.D.C. Aug. 9, 1995). 3 2 The sparse evidentiary record presented by the parties leaves the Court with an incomplete picture of the factual background and little knowledge about what if anything was uncovered in discovery. Even though this case is at the summary judgment stage, and despite the requirements under the local rules that “[e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue which shall include references to the parts of the record relied on to support the statement,” and “[a]n opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement,” LCvR 7(h)(1) (emphasis added), defendant’s statement of undisputed material facts points to many allegations in the amended complaint, Ex. 1 to Def.’s Mot. for Summ. J. [Dkt. # 67-1] (“Def.’s Mot.”), and plaintiff’s statement of disputed facts contains only a single citation to the record, Attach. 1 to Pl.’s Opp. [Dkt. # 69-1]. 3 The transcript of plaintiff’s deposition reveals that plaintiff was promoted to his position upon the direction of Alan Balaran, the Special Master in the Neal case. Durant Dep. 28:16–22, 30:12–20. 2 On June 14, 2007, plaintiff was placed on administrative leave based on allegations that he had permitted an unauthorized person to enter the DOC office to make photocopies of union documents the day before. Notice of Administrative Leave, Ex. B to Pl.’s Opp. [Dkt. # 69-8]; Memorandum from Wanda Patten to Devon Brown Regarding Unauthorized Use of Office Xerox Machine, Unauthorized Admittance of Personnel to the OIA, Ex. C to Pl.’s Opp. [Dkt. # 69-9]; Am. Compl. ¶¶ 16–18. In the wake of that employment action, plaintiff began filing unfair labor complaints with the Public Employee Relations Board (“PERB”) and later, discrimination complaints with the D.C. Human Rights Commission (“DCHRA”) and the United States Equal Employment Opportunity Commission (“EEOC”). Those complaints and the allegations therein are summarized below. Also summarized are the remaining adverse actions that plaintiff claims to have suffered 4: June 27, 2007: Plaintiff filed an unfair labor practice complaint with the PERB, challenging his administrative leave. See Durant v. District of Columbia Dept. of Corr., Case Nos. 07-U-43 & 08-U-57, Opinion No. 1286, at 1 (PERB May 30, 2012). 5 August 1, 2007: Plaintiff filed a second unfair labor practice complaint with the PERB, which was consolidated with the first. Id. at 3. August 10, 2007: According to the findings of the PERB, plaintiff was informed that he should return to work on August 13, 2007, based on an internal investigator’s conclusion that no discipline should be imposed for the June 13 incident. Id. at 10. However, he was told to report to the records office at the D.C. Jail instead of the OIA headquarters at 300 Indiana Avenue Northwest. Id. at 10–11. 4 The Court has attempted to reconstruct this chronology based on the documents provided by plaintiff and defendant as exhibits. These documents, however, are not well-organized or well-labeled, which has made the Court’s job particularly difficult. 5 This complaint was eventually amended to include claims that the August 13, 2007 transfer of offices, an April 2007 denial of reinstatement to a multi-agency taskforce, and a low performance rating on a 2007–2008 performance evaluation report were all retaliatory unfair labor practices. Id. at 13. 3 August 13, 2007: According to the findings of the PERB, plaintiff was reassigned to the Community Corrections Office at Department headquarters in the Grimke Building, located at 1923 Vermont Avenue Northwest. Id. at 11. October 17, 2007: Plaintiff submitted a “memorandum” to Fred Staten, whom he identifies as the EEOC Coordinator for DOC. The memorandum states that “[a]ttached is an EEOC Complaint to be filed against the Department of Corrections . . . .” The memorandum concerns the June 13, 2007 photocopy incident, the June 14 to August 13, 2007 period of administrative leave, the transfer out of the Warrant Squad Offices, and DOC’s refusal to furnish plaintiff with documents about the internal investigation of the photocopy incident that plaintiff claimed he needed in order to “pursue this serious matter through other appropriate channels including EEOC and PERB on charges of discrimination and retaliation.” Ex. E to Pl.’s Opp. at 1–3. While Durant recites the word “discrimination” in his memorandum, he does not make any references to his status as a member of a protected class or to any actions supposedly taken against him on those grounds; like the PERB complaints, the focus of the memorandum was the administrative leave and the events that transpired thereafter. See id. October 31, 2007: Plaintiff submitted a second “memorandum” to Fred Staten. Id. at 4– 6. The memorandum states, “[t]his complaint is filed under the provisions of the Human Rights Act of 1977 [concerning “coercion or retaliation”] . . . against Supervisory Criminal Investigator Wanda Patten[.]” Id. at 4. It alleges “coercion or retaliation” and states that the complaint “concern[s] an alleged incident which in part is based upon retaliation for being involved in protected activities . . .” and the department’s refusal to furnish him with documents from the internal investigation of the photocopy incident. Id. at 4. 6 November 9, 2007: Plaintiff submitted a third “memorandum” to Fred Staten. Id. at 8– 10. The memorandum states that it is being filed “under the provisions of the Human Rights Act of 1977 [concerning ‘coercion or retaliation’] . . . and is filed against Supervisory Criminal Investigator Wanda Patten[,] Department of Corrections Internal Affairs Division and against the Department of Corrections in the support of her continued actions[.]” Id. at 8. It addresses the same workplace grievances addressed in the previous memoranda, as well as other allegations of workplace grievances. Id. at 8– 10. November 14, 2007: Plaintiff submitted a fourth “memorandum” to Fred Staten. Id. at 11–13. Again, the memorandum states, “[t]his complaint is filed under the provisions of the Human Rights Act of 1977” concerning “[c]oercion or [r]etaliation.” Id. at 11. This memoranda was filed against Wanda Patten and Devon Brown, who is identified as the Director of the Department of Corrections. Id. It addresses the same workplace grievances addressed in the previous memoranda, as well as other allegations of 6 Plaintiff also submits a D.C. Department of Corrections “pre-complaint form” dated October 31, 2007. Ex. E to Pl.’s Opp. at 7. 4 workplace grievances. It stated that the complained-of actions were “based solely upon my participation into legally protected activities.” Id. at 12. November 28, 2007: Plaintiff submitted his first memorandum to the D.C. Office of Human Rights (“DCOHR”). Id. at 14–15. The memorandum states that “[a]ttached is a copy of the Resolution Letter, dated November 15, 2007 from Mr. Fred Staten, EEO Officer . . . and in accordance with provisions of the Human Rights Act of the District of Columbia, my complaint is being forwarded for further action in that agency . . . .” Id. at 14. The memorandum first describes the memoranda that plaintiff had submitted to Fred Staten. It further states that “I am a member of a prior ‘protected group’ action filed against the Department of Corrections [in Bessye Neal] and am concerned over this action as a continuation of the retaliation and disparate treatment continued to be received as a result of my participation.” Id. at 15. Attached to the memorandum is a “resolution letter” from Fred Staten, addressed to plaintiff, dated Nov. 15, 2007. It is signed by Staten and plaintiff. The resolution letter explains that plaintiff met with an EEO officer on November 15, 2007 and was provided with a copy of the documents that he had requested (a copy of the Investigation Report and the eight attachments). Id. at 16. It also provides that if plaintiff believes the agency has not complied with the terms of the informal resolution, he must contact the DCOHR within fifteen days of the final interview and file a formal complaint. Finally, it states that the signatures on the document signify that both parties have agreed to the terms of the informal resolution of the dispute. Id. at 15. December 9, 2007: Plaintiff submitted a memorandum to the Washington Field Office of the EEOC and to Mr. Alan Balaran, Esq. Id. at 18–20. The memorandum states that “[t]his is a request that a formal complaint be filed against the District of Columbia Government, Department of Corrections and specifically against Devon Brown, Director, Patricia Britton, Deputy Director, Joan Murphy Office of Special Projects and Wanda Patten, Supervisor Internal Affairs[.]” Id. at 18. It alleges that the June 14 administrative leave and the post-August 13, 2007 transfer of offices were imposed in retaliation for plaintiff’s Neal activities. Id. at 19–20. April 1, 2008: Plaintiff submitted a memorandum to the Washington Field Office of the EEOC, Balaran, and the DCOHR, which is labeled “Amended EEOC Complaint.” Id. at 21–22. It requests that the December 9 “complaint” be amended to reflect “continued retaliation that has adversely affected my terms and conditions of employment within the Department of Corrections . . . and a deliberate refusal by Devon Brown, Director Department of Corrections to resolve approximately four (4) separate complaints filed under provisions of the Human Rights Act of 1977.” Id. at 22. August 1, 2008: Plaintiff submitted a memorandum to the Washington Field Office of the EEOC, which is labeled “2d Amended Equal Employment Opportunity Complaint.” Id. at 25–27. It requests that his December 9, 2007 “complaint” be amended to “include continued and additional violations of Section 704(a), Title VII of the Civil Rights Act of 1964. The Civil Rights Act of 1871 Title 42 Section 1983 U.S.C. and the Age Discrimination in Employment Act (AEDA) [sic] Public Law 20-2272[.]” Id. at 27. In 5 addition to recounting the same incidents described in the December 9 memorandum, it alleges that the same people named in the previous complaint engaged in “continued disparate treatment and other unlawful employment practices, which individually, collectively, maliciously and illegally over a period of time, have deprived [him] of [his] rights under color of law, directed, allowed, encouraged and participated in an [sic] more sophisticated, severe, recurring and pervasive pattern and practice of retaliation, reprisals, creation of a disparate, discriminatory and dual standard hostile work environment, issuance of and involvement of defamatory statements or actions that has deliberately deprived [him] of equal employment opportunities, intentionally inflicted extreme and severe emotional distress.” Id. January 27, 2009: Plaintiff submitted a memorandum to Eugene T, Reed Jr., EEOC Intake Officer for the Washington Field Office of the EEOC, which indicates that it is intended to be a third amended complaint to the EEOC. Id. at 28–34. The memorandum explains that plaintiff had not received any response “concerning the status of [his] complaint[.]” Id. at 29. It further alleges that the allegedly “discriminatory and retaliatory practices of Respondent Department of Corrections . . . still continue[.]” Id. It also requests that the December 9 “complaint” be amended to include new and continued allegations of discrimination on the basis of age and retaliation on the basis of testimony given in hearings before the Public Employees Relations Board in 2008. Id. Although it provides a detailed description of his alleged mistreatment through August 2007 transfer of offices, it states only that “[w]ithout going into any further details, these actions have continued to this date.” Id. at 33. January 6, 2010: Plaintiff filed his original complaint in this action. [Dkt. # 1]. March 6, 2010: Plaintiff filed an official Charge of Discrimination with the EEOC, which alleges discrimination based only on retaliation. Attach. 1.H to Ex. 6 to Def.’s Mot. [Dkt. # 67-4]. It recounts that plaintiff filed “an Amended EEOC Charge Form 5, EEOC Complaint Number 570-2008-00315” on August 13, 2009, which contained allegations that he “had been retaliated against by the Department of Corrections as a result of ‘prior’ and ‘current’ participation into ‘protected’ activities[.]” Id. at 1. It also recounts that on October 10, 2009, plaintiff received a right to sue letter dated October 6, 2009. 7 It further alleges that “[a]s a direct result of filing a federal EEOC civil suit before the US District Court on January 6, 2010 . . . I was the object of additional acts of retaliation and reprisals.” Id. at 2. It alleges that on February 5, 2010, Wanda Patten effectively revoked his police arrest powers. It also alleges that plaintiff was deprived of and denied promotions on four separate occasions. Finally, it acknowledges that on May 28, 2009, plaintiff was transferred back to the warrant squad offices in accordance with the report and recommendation of a hearing examiner in his case before the PERB, who had found that the transfer away from those offices had been conducted in retaliation for his union activities. Id. at 3. The charge alleges that despite this, he was still physically separated and isolated from the internal affairs offices and the other investigators and 7 It appears that neither of these documents, if they exist, has been submitted to the Court. 6 clerical staff, and he was denied equal access to any of the vehicles assigned to the Internal Affairs Section. Id. at 3–4. May 25, 2010: Plaintiff was notified that his position would be terminated pursuant to an upcoming reduction in force (“RIF”), and he was placed on administrative leave. Ex. K to Pl.’s Opp. [Dkt. # 69-18] ¶ 9. July 2, 2010: Plaintiff’s employment was terminated. Pl.’s Opp. at 11. August 3, 2010: Plaintiff filed an appeal of the RIF with the District of Columbia Government Office of Employee Appeals (OEA Case number 2401-0354-10). Pl.’s Opp. at 12. November 6, 2010: Plaintiff filed an employment intake questionnaire with the DCOHR. Att. 1.F to Ex. 6 to Def.’s Mot. [Dkt. # 67-4]. The form states “Completing this intake questionnaire does not constitute the filing of a discrimination charge.” Id. at 1. On the form, plaintiff indicated that he was discriminated on the basis of age based on the following issues: retaliation, discharge, promotion, hostile work environment, failure to hire, violation of the district priority re-employment program preferences, and violation of federal veterans preference program. Id. at 4. November 19, 2010: Plaintiff filed a formal EEOC Charge of Discrimination based on retaliation. Although the cover page for the charge is attached to defendant’s motion for summary judgment as page seven of Attachment 1.F to Exhibit 6, and the signature page is attached to plaintiff’s opposition to the motion for summary judgment as page fifteen of Exhibit J, it appears that the content of the charge has not been submitted to the Court. May 11, 2012: Plaintiff filed his first amended complaint in this action. May 30, 2012: The PERB ruled on plaintiff’s complaints in a combined decision and order. The board upheld the findings of a hearing examiner that plaintiff’s administrative leave period was warranted, but that plaintiff’s reassignment to a different building was conducted in retaliation for filing the PERB complaint. Durant v. District of Columbia Dept. of Corr., Case Nos. 07-U-43 & 08-U-57, Opinion No. 1286, at 18–20 (PERB May 30, 2012). The litigation in this Court has a tortured history. Plaintiff filed his original complaint on January 6, 2010, against the District of Columbia, several District of Columbia officials, the United States Department of Justice, the United States Marshal Service, and the National Capital Regional Joint Fugitive Task Force. [Dkt. # 1]. On March 31, 2011, after plaintiff failed to respond to the federal defendants’ motion to dismiss, the court granted the motion as conceded 7 and dismissed the federal defendants. 8 Order, [Dkt. # 23] at 6. On the same day, the court dismissed several of the claims against the remaining defendants. Order, [Dkt. # 24] at 6–7. 9 On October 5, 2011, plaintiff filed a motion for leave to file an amended complaint, [Dkt. # 40]. 10 Defendant District of Columbia objected on grounds that (1) the proposed amended complaint that plaintiff submitted as an attachment to the motion for leave to amend contained counts that the Court had previously dismissed, and (2) two of the new claims were barred by the statute of limitations. Def.’s Opp. to Pl.’s Mot. to Am., [Dkt. # 42] at 3–4. This Court granted plaintiff’s motion for leave to amend on April 23, 2012. Order, [Dkt. # 57]. However, because the Court agreed with defendant that the proposed amended complaint asserted some claims that had already been dismissed by the Court with prejudice and other claims that the Court had dismissed without prejudice, without establishing that that the proposed amendments cured the deficiencies that led to the Court to dismiss them in the first instance, the Court declined to 8 Plaintiff filed the original complaint pro se, but has been represented by counsel since January 17, 2011. See Notice of Appearance [Dkt. # 14]. 9 In addition, plaintiff filed a motion to amend his opposition to defendants’ motion for summary judgment, [Dkt. # 17], and an amended motion to amend his opposition to defendants’ motion for summary judgment, [Dkt. # 20]. The Court denied both by Minute Order on March 4, 2011. Plaintiff then filed a second motion for leave to file an amended opposition [Dkt. # 26], as well as a motion for reconsideration of the Court’s denial of the amended motion to amend the opposition, [Dkt. # 27], both of which the Court denied on May 20, 2011. Order, [Dkt. # 28]. 10 Plaintiff failed to file a reply in support of his motion within the time permitted under the local rules, but instead, four days after the reply was due, he filed a motion for extension of time to file the reply four days out of time. [Dkt. # 44]. The Court denied the motion for extension of time by Minute Order of November 17, 2011, explaining that plaintiff failed to raise any justification whatsoever, and noting the many previous extensions that plaintiff had requested and that the Court had granted in this case. Plaintiff then filed a motion for reconsideration of the Court’s denial of the extension the next day. [Dkt. # 45]. The Court granted the motion and permitted plaintiff to file his reply in support of the motion to amend. Minute Order (Nov. 21, 2011). 8 docket the proposed amended complaint that plaintiff had attached to his motion. Id. Instead, it authorized plaintiff to file a revised amended complaint by May 7, 2012. Id. Plaintiff did not file the revised amended complaint within the time permitted by the Court; rather, on May 10, 2012, he filed a motion for leave to file the amended complaint three days out of time. [Dkt. # 60]. The Court granted the motion, [Dkt. # 62], and plaintiff filed the revised amended complaint on May 11, 2012. [Dkt. # 63]. Count I, which has since been voluntarily dismissed by plaintiff, alleged discrimination and hostile work environment on the basis of age and race in violation of Title VII. Count II alleged that defendant retaliated against plaintiff for filing his complaints in violation of Title VII and that it subjected him to a hostile work environment in retaliation for protected activities, also in violation of Title VII. 11 Discovery closed on May 11, 2012, after four extensions to the original deadline. Defendant filed its motion for summary judgment on July 13, 2012. [Dkt. # 67]. The motion has been fully briefed and is now before the Court. One of the issues raised in the motion for summary judgment was the sufficiency of the evidence showing any monetary loss. Mem. of Points and Authorities in Support of Def. District of Columbia’s Mot. for Summ. J. [Dkt. # 67-3] (“Def.’s Mem.”) at 19–22. On October 3, 2012, plaintiff filed a supplemental Rule 26(a)(2)(B) expert report by Eric M. Sherman addressing 11 The Court notes that it has excused repeated late filings and mistakes in this case as it endeavored to give plaintiff every opportunity to articulate his claims, and that it has struggled throughout the pendency of this case to get plaintiff to identify the particular legal theory or theories on which his claims were based. See, e.g., Order granting plaintiff’s motion for leave to amend the complaint [Dkt. # 57] (“Furthermore, the Court notes that the proposed amended complaint does not clearly identify the specific legal basis for the relief sought; rather it recites the facts and then lumps a number of state and federal statutes – including those underlying the claims already dismissed – in a single concluding paragraph. The revised amended complaint must contain at least one clearly delineated count that identifies the particular legal basis – one per count – for plaintiff’s remaining claim or claims . . . .”). 9 plaintiff’s monetary loss. [Dkt. # 73]. The report was filed nearly five months after the close of discovery and over a year after the deadline for plaintiff to file expert reports. 12 Defendant filed a motion to strike the supplemental report on December 14, 2012. [Dkt. # 79]. That motion has also been fully briefed and is now before the Court. STANDARD OF REVIEW Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247. 12 In fact, plaintiff originally filed his expert designation without attaching a report. Although defendant filed a motion to strike, [Dkt. # 43], the Court denied the motion and gave plaintiff additional time to file the report. Minute Order (Nov. 30, 2011). 10 ANALYSIS I. Plaintiff has identified a proper defendant. Defendant first argues that plaintiff has failed to designate a proper defendant in this action. Although the Court agrees that plaintiff’s amended complaint is not the model of clarity, it finds that plaintiff has properly identified the District of Columbia as the defendant. “It is beyond peradventure that a ‘noncorporate department or other body within a municipal corporation is not sui juris.’” Hinton v. Metro. Police Dep’t, Fifth Dist., 726 F. Supp. 875, 875 (D.D.C. 1989), quoting Braxton v. Nat’l Capital Hous. Auth., 396 A.2d 215, 216–17 (D.C. 1978). Moreover, plaintiff does not assert that any provision of the D.C. Code provides for the Department of Corrections to be sued. Accordingly, the proper party to this action is the District of Columbia. Although plaintiff refers to the DOC as “defendant” throughout the amended complaint, the caption of the amended complaint lists “District of Columbia, et al.” as defendants. The Court therefore finds that the District of Columbia has been properly named as a defendant in this action. Moreover, since plaintiff concedes in his opposition to the motion for summary judgment that the District of Columbia is the proper defendant in this action and that the Department of Corrections is not an appropriate defendant, Pl.’s Opp. at 15, the Court will construe the amended complaint as asserting claims against only the District of Columbia.13 This construction does not prejudice the District of Columbia as it has been litigating this case as a defendant since 2010 and has continued to act as a defendant in this case since the amended complaint was filed. 13 To the extent plaintiff intended to name DOC as a defendant in this action, the Court finds that it has been voluntarily dismissed, in accordance with Hinton, 726 F. Supp. at 875. 11 II. The Court will dismiss any part of the retaliation claim that is based on adverse actions taken against plaintiff prior to 2007. Defendant also argues that to the extent Count II of the amended complaint claims that actions taken against plaintiff by DOC prior to October 2007 violated Title VII, those claims should be dismissed as time-barred. Defendant points to a provision of Title VII that provides that an aggrieved employee must submit a charge of discrimination to the EEOC within 180 days of the allegedly unlawful incident, or within 300 days of the incident if the employee first presented the charge to a state or local equal opportunity agency. 42 U.S.C. § 2000e-5(e)(1). In his opposition to defendant’s motion to dismiss, plaintiff does not address this argument at all. “It is well understood in this Circuit that when a plaintiff files an opposition to a motion . . . addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” McMillan v. Wash. Metro. Area Transit Auth., -- F. Supp. 2d --, 2012 WL 4845641, at 3 (Oct. 12, 2012), citing Howard v. Locke, 729 F. Supp. 85, 87 (D.D.C. 2010). Defendant asserts that the timeliness argument has therefore been conceded. Def.’s Reply to Pl.’s Opp. [Dkt. # 71] (“Def.’s Reply”) at 2. The Court agrees. Accordingly, the Court will grant this portion of defendant’s motion and enter summary judgment for defendant on Count II of the amended complaint to the extent that it is based on any actions alleged to have been taken before October 2007. 14 14 The Court notes also that there is no evidence in the record that would defeat defendant’s motion for summary judgment on these grounds. Plaintiff has not alleged – or submitted any evidence that would show – that he filed a charge of discrimination with the EEOC or the DCOHR before March 6, 2010. See Pl.’s Opp. at 4–11 (setting out the complaints plaintiff allegedly lodged). 12 III. The Collective Bargaining Agreement Between the District of Columbia Department of Corrections and Fraternal Order of Police Department of Corrections Labor Committee does not deprive this Court of subject matter jurisdiction. Defendant next argues that this Court lacks subject matter jurisdiction over plaintiff’s claims because plaintiff failed to follow the grievance procedures outlined in the Collective Bargaining Agreement between the District of Columbia Department of Corrections and its union, the Fraternal Order of Police Department of Corrections Labor Committee (“Collective Bargaining Agreement”). 15 Ex. 3 to Def.’s Mot [Dkt. # 67-4]. This argument has some force since plaintiff has previously characterized many of the same DOC actions that are complained of here as actions taken in retaliation for union activities. See, e.g., Ex. P to Pl.’s Opp.; Durant v. District of Columbia Dept. of Corr., Case No. 07-U-43, Opinion Nos. 1286 & 08-U-57 (PERB May 30, 2012). But in this case, plaintiff has cast his concerns as arising out of Title VII. The Collective Bargaining Agreement provides that: Only an allegation that there has been a violation, misapplication, or misinterpretation of the terms of this Agreement or the applicable Compensation Agreement or disciplinary actions taken (written admonition, corrective or adverse action) shall constitute a grievance under provisions of this grievance procedure. Any other employee appeals or complaints shall be handled exclusively by the appropriate administrative agency. 15 As a preliminary matter, the Court notes that it need not decide whether defendant’s arguments that plaintiff has failed to exhaust the grievance procedures in either the Collective Bargaining Agreement or the Comprehensive Merit Personnel Act are jurisdictional or non- jurisdictional. Compare Munsell v. Dep’t of Agric., 509 F.3d 572, 580 (D.C. Cir. 2007), citing Avocados Plus, Inc. v. Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (finding that exhaustion requirements are not jurisdictional unless there is “sweeping and direct statutory language indicating that there is no federal jurisdiction prior to exhaustion”), with Johnson v. District of Columbia, 552 F.3d 806, 811 n.2 (noting that the exhaustion requirement under the District of Columbia’s Comprehensive Merit Personnel Act – which requires a plaintiff to follow either the grievance procedures set out in the act or those set out in an applicable collective bargaining agreement – is jurisdictional as applied by the D.C. Court of Appeals). 13 Ex. 3 to Def.’s Mot. at Art. 10 § 1. This provision does not expressly carve out charges of discrimination, but even defendant reads it as if it does: “[The Collective Bargaining Agreement] explicitly distinguishes discrimination charges from other forms of grievances, and states that discrimination charges are ‘not subject to the negotiated grievance procedure’ but must be presented ‘to the appropriate administrative agency having jurisdiction over the matter.” Def.’s Mem. at 13 n.5, citing Collective Bargaining Agreement, Art. 10, § 1. Since a claim alleging retaliation under Title VII is a type of discrimination claim, see Gomez-Perez v. Potter, 553 U.S. 474, 479–82 (2008) (finding in the context of the Age Discrimination in Employment Act of 1967 that retaliation based on a complaint of discrimination is a form of discrimination), defendant’s concession suggests that the grievance procedures in the Collective Bargaining Agreement do not apply to plaintiff’s claims in this case. Moreover, plaintiff’s claims do not appear to fall within the categories of allegations described in the operative paragraph of the Collective Bargaining Agreement. Plaintiff challenges various actions taken by his employer on the grounds that they were taken in retaliation for activity protected by Title VII. This is not an allegation of a violation, misapplication, or misinterpretation of the terms of any agreement, but rather an allegation of improper retaliation in violation of a federal statute. Nor is this a challenge to disciplinary actions. The alleged actions taken by defendant that plaintiff challenges – the termination of his job through an RIF, his placement on administrative leave pending termination, his placement in an isolated office, denials of promotions, and failure to inform him about vacancies – are undesirable, but there is no evidence that they were disciplinary in nature. 16 Accordingly, under 16 The only action challenged by plaintiff that is arguably “disciplinary” is the letter of admonition from plaintiff’s supervisor Wanda Patten. Ex. G to Pl.’s Opp.; see Pl.’s Opp. at 26. However, the Court need not address whether this part of plaintiff’s claim should be dismissed 14 article 1, section 10 of the Collective Bargaining Agreement, they should be handled exclusively by the appropriate administrative agency, and in this case they were submitted in the first instance to the EEOC. The cases that defendant cites are all distinguishable from the present case. Hughes v. CACI, Inc.-Commercial, 384 F. Supp. 2d 89, 97–98 (D.D.C. 2005), and Booker v. Robert Half International, Inc., 315 F. Supp. 2d 94, 97 (D.D.C. 2004), both stand for the proposition that where a valid binding contract between an employer and an employee sets out an alternative grievance procedure for a discrimination claim, that provision is not superseded by the EEO process. As the District suggests in its own footnote – and as explained above – the Collective Bargaining Agreement invoked here does not set out an alternative grievance procedure for a discrimination claim. Similarly, in Carson v. Sim, 778 F. Supp. 2d 85, 94 (D.D.C. 2011), the court held that the plaintiff was required to resolve a claim that his employer breached his employment contract, as codified in a collective bargaining agreement, through the grievance procedure established by the agreement. Although the court also dismissed the plaintiff’s Title VII claims, it did so for an entirely separate reason: the plaintiff had failed to exhaust his administrative remedies with the EEOC. 17 See id. at 98. And in Artis v. Greenspan, 158 F.3d 1301, 1306–08 (D.C. Cir. 1998), the court held that in order to fully exhaust their claims before bringing a class action, the plaintiffs were required to provide sufficient details during the administrative counseling process to allow the employer to right its alleged wrongs. None of these cases supports the defendant’s argument that the Collective Bargaining Agreement at issue for failure to exhaust the Collective Bargaining Agreement grievance procedures because it will grant summary judgment for defendant on other grounds. 17 The Court takes some issue with defendant’s characterization of Carson as “dismissing plaintiff’s claims under Title VII, Americans with Disabilities Act and common law claims for failing to exhaust remedies under the collective bargaining agreement.” Def.’s Mem. at 12. 15 here requires the use of the prescribed grievance procedure for the Title VII retaliation claims that plaintiff makes. So the case will not be disposed of on those grounds. IV. The District of Columbia Government Comprehensive Merit Personnel Act does not deprive this Court of subject matter jurisdiction. Defendant’s argument that the District of Columbia Government Comprehensive Merit Personnel Act (“CMPA”), D.C. Code §§ 1-601.01–1-607.08 (2001), preempts this Court’s jurisdiction over plaintiff’s retaliation claim is also flawed. Although the CMPA is the exclusive remedy for nearly all work-related complaints of District of Columbia public employees, see Robinson v. District of Columbia, 748 A.2d 409, 411 (D.C. 1997), it is not the remedy for discrimination complaints, such as those arising under Title VII. See King v. Kidd, 640 A.2d 656, 664 (D.C. 1993), quoting D.C. Personnel Regulations § 1632.1(o), 34 D.C. Reg. 1845, 1878 (1987) (explaining that the District of Columbia Personnel Regulation concerning “adverse actions” and “grievances” covered by the CMPA expressly excludes from employee grievance procedures “[a]n allegation of unlawful discrimination, or any matter within the jurisdiction of the D.C. Office of Human Rights.”). Defendant does not appear to disagree with that statement. Rather, it argues that plaintiff’s alleged protected activities “are not the type contemplated by Congress under Title VII.” Def.’s Mem. at 16. And defendant maintains that the protected activities that plaintiff alleges prompted a retaliatory response are more properly classified as union grievances, for which the CMPA is the exclusive remedy. Id. at 16–18. As the Court has already noted, this is certainly a fair characterization of the first several rounds of complaints filed by Mr. Durant. For some time, plaintiff expressly complained that he was the subject of retaliation and coercion due to protected collective bargaining activities. But the amended complaint before this Court, which followed charges lodged with the EEOC invoking Title VII, is styled as an action arising 16 under Title VII, and the Court must assess it under that statutory framework. And, even though the amended complaint challenges some of the same conduct that plaintiff previously labeled as an unfair labor practice, it is based on some other events as well. So the Court will not enter judgment for defendant on this basis either. This brings us to the merits of plaintiff’s claims. V. The termination of plaintiff’s employment is the only action that rises to the level of an adverse employment action. A. The legal framework for assessing the evidence Title VII retaliation claims are evaluated under the framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 792 (1973). Under the McDonnell Douglas framework, a plaintiff bears the burden of making a prima facie showing of retaliation. Id. Once that showing has been made, the burden shifts to the defendant to produce a “legitimate, nondiscriminatory reason” for its actions. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (internal quotation marks omitted). If the employer makes this showing, then “the burden- shifting framework disappears,” Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004), and the question before the court is “whether a reasonable jury could infer . . . retaliation from all the evidence.” Id. In order to make a prima facie showing of retaliation, plaintiff must show that (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse action. Jones, 557 F.3d at 677; see also Taylor v. Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009). At the summary judgment stage, however, if the employer produces a legitimate nondiscriminatory reason for its actions, “‘the district court need not – and should not – decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.’” Jones, 557 F.3d at 678, quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 17 2008). The central question becomes whether the plaintiff produced evidence sufficient for a reasonable jury to find that the employer’s stated reason for the adverse action was not the actual reason and that the employer actually retaliated against the plaintiff. See Brady, 520 F.3d at 495. In assessing this question, the court considers “all the evidence, which includes not only the prima facie case but also the evidence the plaintiff offers to attack the employer’s proffered explanation for its action and other evidence of retaliation.” Jones, 557 F.3d at 677 (internal quotation marks and citations omitted). B. The elements of an adverse employment action To prove a retaliation claim under Title VII, a plaintiff must show “materially adverse action” by his employer. Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). Materially adverse actions “encompass a broader sweep of actions than those in a pure discrimination claim,” id. at 1198 n.4, because they are “‘not limited to discriminatory actions that affect the terms and conditions of employment’ and may extend to harms that are not workplace-related or employment-related so long as ‘a reasonable employee would have found the challenged action materially adverse,’” id., quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 68 (2006). Thus, to be “materially adverse,” an action need only be of the type that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006). Defendant first argues that plaintiff has failed to make a showing that he suffered an adverse employment action that is actionable under Title VII because he has not demonstrated that he suffered lost wages as a result of any of defendant’s actions. Def.’s Mem. at 19–21. This 18 is an overly narrow construction of what constitutes a materially adverse action and does not comport with the standard described above. Defendant has also argued that “[a]ny assertion that Plaintiff’s duties and responsibilities changed so as to constitute an adverse employment action must be rejected.” Def.’s Mem. at 21. For the most part, the Court agrees. Despite the fact that plaintiff need not demonstrate lost wages per se in order to demonstrate that an action is materially adverse, the Court finds that many of the actions plaintiff cites are not materially adverse under the Burlington Northern standard. Plaintiff has identified the following allegedly adverse actions: 1. Plaintiff was placed on administrative leave with pay in June through August 2007 after the photocopy incident; and upon plaintiff’s return in August 2007, he was transferred to the Grimke Building instead of returning to the Warrant Squad office. Pl.’s Opp. at 26, 29. Since these actions occurred between June and August 2007, and the Court has already found that plaintiff is barred from claiming a Title VII violation for any action before October 2007, the Court need not address these allegations. 2. On May 6, 2008, plaintiff received a “letter of admonishment” based on the fact that his supervisor had been unable to contact him during non-duty hours. Pl.’s Opp. at 26, 29–30; Ex. G to Pl.’s Opp. Plaintiff does not allege that the letter of admonishment in any way affected the terms and conditions of his employment or caused him any harm that would dissuade a reasonable person from filing a complaint of discrimination. Rather, the letter simply warns that “future violations will result in corrective or adverse action.” Ex. G to Pl.’s Opp. at 1. In this circuit, evaluations and written warnings do not constitute materially adverse actions unless they have “tangible job consequences.” Baloch, 550 F.3d at 1199, citing Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir. 2005). But plaintiff does not offer any evidence showing that the admonition had any consequences at all, whether for his job responsibilities, advancement 19 opportunities, or anything else. Accordingly, this is not a sufficiently adverse action to form the basis of a retaliation claim under Title VII. 3. On May 19, 2008, plaintiff was not permitted to use a government vehicle. Pl.’s Opp. at 26. As evidence of this, plaintiff submits a memorandum that he wrote to his supervisor Wanda Patten, explaining that “[a]s my duties and responsibilities as a warrant squad criminal investigator involves [sic] address checks and or surveillance. [sic] I do not have any vehicle assigned to perform that and any of my other duties and responsibilities.” Ex. N to Pl.’s Opp. at 1. Although plaintiff claims in the memorandum that the lack of a vehicle interfered with his ability to perform his job, he has not submitted any evidence that his alleged inability to access a vehicle had any tangible consequences. For example, he does not show – or even allege – that he failed to complete any particular assignments because he could not access a vehicle, or that this resulted in negative performance reviews or deprived him of promotions. Cf. Baloch, 550 F.3d at 1199. Accordingly, the Court finds that plaintiff has not submitted sufficient evidence to show that this alleged action rises to the level of a materially adverse action. 4. On June 1, 2009, plaintiff was transferred back to the Warrant Squad Offices, but was placed in a separate office, isolated from the rest of the Warrant Squad. Pl.’s Opp. at 26. First, plaintiff has not pointed to any evidence that shows even that he was actually placed in a separate office, that he was isolated, or that his isolation affected his performance of his job. Rather, he relies entirely on conclusory, unsupported assertions in his opposition to the motion for summary judgment. Pl.’s Opp. at 26 (stating that the DOC “kept [him] isolated from the remaining members of the Warrant Squad” and that his “duties and responsibilities were severely limited”). Plaintiff cites no evidence to support these assertions and the Court is not required to scour the record for evidence on his behalf. See Fed. R. Civ. P. 56(c)(3) (“The court 20 need consider only the cited materials, but it may consider other materials in the record.”); see also Martinez v. Puerto Rico Fed. Affairs Admin., 813 F. Supp. 2d 84, 96 n.10 (D.D.C. 2011). But even if plaintiff had adduced some evidence of these changes to his conditions of employment, he has not come forward with any evidence that would show that the office transfer had tangible consequences that would dissuade a reasonable person from filing a complaint of discrimination. For example, there is no evidence that it resulted in bad performance reviews, a failure to be promoted, a reduction in salary, a reduction in job responsibility, or anything else. Since it is plaintiff’s burden at this stage to come forth with evidence showing that there is a genuine dispute of material fact, and plaintiff has not provided any evidence on which the Court could find that plaintiff’s placement in an isolated office in June 2009 constitutes a materially adverse employment action, the Court cannot find that plaintiff’s claim succeeds on that ground. See Tarpley v. Greene, 684 F.2d 1, 6 (D.C. Cir. 1982) (stating that under Federal Rule of Civil Procedure 56(e) and the local rules of this Court, a plaintiff “may not rest upon the mere allegations or denials of his pleadings . . . .”). 5. In 2010, the DOC suspended plaintiff’s arrest powers and authority as a Warrant Squad Criminal Investigator, subjected him to isolation and assignment to limited administrative duties, and denied him job upgrades and promotions. Pl.’s Opp. at 26. Again, plaintiff does not point to any evidence that would show that DOC engaged in activity that would dissuade a reasonable worker from bringing a charge of discrimination. In his opposition to the motion for summary judgment, plaintiff relies entirely on unsupported assertions about what happened and how it affected him. Pl.’s Opp. at 26–27. The Supreme Court has held that “reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff's 21 position, considering all the circumstances.’” Burlington N., 548 U.S. at 71, quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (some internal quotation marks omitted). Yet plaintiff cites no evidence in the record that would illuminate the circumstances or the consequences of these events. Accordingly, the Court cannot find that he has sustained his burden of showing that the circumstances of the transfer rise to the level of an adverse action. As to the alleged denial of job upgrades and promotions, the Court finds that plaintiff has not designated any facts showing that there is a genuine issue for trial, as the Celotex standard requires. Plaintiff has produced no evidence that he applied for any particular job or that his application was denied. Similarly, there is no evidence that he was denied a promotion or overlooked when others were being promoted. Accordingly, the Court cannot find that plaintiff has established a genuine dispute of material fact as to whether he suffered these allegedly materially adverse actions. 6. In 2010, plaintiff’s employment was terminated through an alleged RIF. Pl.’s Opp. at 26–29. This is the only allegation of an adverse employment action for which evidence has been presented that satisfies this key element of a Title VII case. Plaintiff provides the Court with the agency’s response to his appeal of the reduction in force before the District of Columbia Office of Employee Appeals. Moreover, the portions of plaintiff’s deposition that defendant submits contain plaintiff’s testimony about the termination of his employment. Ex. 1 to Def.’s Mot. at 192, 194–96. Termination of employment clearly constitutes a materially adverse action. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). 22 7. After receiving notice of the RIF and before his employment was terminated, plaintiff was escorted from his place of employment and put on administrative leave. Pl.’s Opp. at 26–27. Once again, plaintiff does not supply sufficient evidence to support this allegation, or to show that he experienced any adverse consequences as a result. He does not even allege – much less, provide evidence that shows – that the administrative leave period was unpaid. Moreover, although plaintiff asserts in his opposition to the motion for summary judgment that being escorted from his office was “humiliating and degrading,” Pl.’s Opp. at 27, he does not offer any evidence of negative consequences flowing from that event: he does not show whether his co- workers witnessed the event, whether the escort was forceful, or whether there were any other aspects of how his discharge was effected that would “dissuade a reasonable worker” from bringing a charge of discrimination. Compare Greer v. Paulson, 505 F.3d 1306, 1317–18 (D.C. Cir. 2007) (holding that suspension with back pay was materially adverse because plaintiff presented evidence of a demonstrable effect involving objectively tangible harm, which included personal bankruptcy, two real estate foreclosures, and negative marks on her employment record), with Harper v. Potter, 456 F. Supp. 2d 25, 29 (D.D.C. 2006) (holding seven-day suspension was not materially adverse because although it was disciplinary in nature, plaintiff was able to remain on the job and in pay status); see also Boykin v. England, No. 02-950, 2003 WL 21788953, at 5 (D.D.C. July 16, 2003) (notice of proposed removal is not materially adverse because it is essentially a precursor to a decision to remove). Accordingly, the Court finds that plaintiff has not raised a genuine dispute of material fact as to whether he suffered this alleged materially adverse action either. 23 8. DOC withheld job vacancy announcements from plaintiff and did not provide him with preferential placement opportunities. Pl.’s Opp. at 27. Yet again, this assertion is unsupported by evidence. As to the alleged withholding of vacancy announcements, plaintiff does not proffer the vacancy announcements or identify the opportunities that were available. And as to the allegation that he was denied preferential placements, he fails to identify any placements that were available or show that he was qualified for them. Rather, in his opposition to the motion for summary judgment, he simply lists several individuals who he alleges received employment opportunities in his stead. Pl.’s Opp. at 30–31. And the only piece of evidence he cites in support of these assertions is his own “first amendment to the unfair labor practice complaint” that he filed before the PERB. Ex. P to Pl.’s Opp. In other words, the only material plaintiff musters in opposition to the motion for summary judgment is simply a previous unsworn iteration of his own conclusory allegations, submitted to another forum. Defendant says: “plaintiff’s references to his previously filed complaints with the EEOC cannot be the basis for which triable issues can be created.” Def.’s Reply at 4. The Court observes at the outset that this document does little to advance plaintiff’s Title VII case because it specifically characterizes the complained-of hiring decisions as unfair labor practices that retaliated for plaintiff’s collective bargaining activities, and it references provisions in the Collective Bargaining Agreement that were violated by the DOC. If anything, it seems to support defendant’s position that at bottom, this case concerns matters that should be taken up under the Collective Bargaining Agreement or the CMPA. Plaintiff has not supplied the Court with an affidavit or declaration indicating that he has personal knowledge of the facts set out in the First Amendment to the PERB complaint. He has not submitted the job vacancy announcements in question or explained why he did not apply for 24 the jobs he complains were given to others. And, he did not advise the Court of any efforts he may have made during the discovery period in this case to obtain material that would have related to these claims. In ruling on a motion for summary judgment, the Court is required to draw all justifiable inferences in the nonmoving party’s favor, and it must accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255. But the filing of a summary judgment motion requires the nonmoving party to “designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, and the nonmoving party must establish more than “the mere existence of a scintilla of evidence.” Anderson, 477 U.S. at 252. 18 At this stage in the proceedings, plaintiff cannot expect the Court do all of the work for him. Accordingly, the Court finds that plaintiff has failed to designate specific facts showing there is a genuine issue for trial on any of the alleged adverse employment actions except for the termination of his employment. The remaining question, then, is whether plaintiff has come forward with sufficient evidence to create a triable issue on the question of whether DOC’s RIF was merely pretextual or whether it was retaliatory. VI. Plaintiff has failed to produce evidence sufficient for a reasonable jury to find that the RIF was mere pretext and that plaintiff’s job was actually terminated in retaliation for his participation in protected activity. Defendant argues that plaintiff has failed to establish any nexus between the termination of his employment and the allegedly protected activities in which he engaged. Def.’s Mem. at 18. The Court agrees. 18 In any event, even if the Court were to conclude – based on plaintiff’s unsworn statements to the PERB alone – that there are facts in the record to create a genuine dispute about whether the plaintiff was actually denied certain job opportunities, and whether those denials constituted adverse employment actions, plaintiff has not responded to the summary judgment motion by producing the evidence that would support his claim that those actions were retaliatory. 25 Defendant has produced a legitimate nondiscriminatory reason for its actions – an agency reduction in force. The agency’s response to plaintiff’s appeal of the RIF before the Office of Employee Appeals, which plaintiff submits in support of its case, explains that due to budgetary constraints, thirteen positions were subject to a reduction of force based on the programs whose functions would have the least negative impact on the agency’s ability to perform its mandated functions. Ex. K to Pl.’s Opp. at 1–2. As a result, the entire warrant squad was eliminated. Id. Therefore, the Court’s sole job at this stage is to determine whether the plaintiff produced evidence sufficient for a reasonable jury to find that the employer’s stated reason was not the actual reason for the adverse action and that the employer actually retaliated against the plaintiff. Brady, 520 F.3d at 495. Plaintiff relies on temporal proximity to show causation. He asserts that “within one month from the date [he] filed the present action with the Court [(January 6, 2010)], his arrest powers and Warrant Squad authority were suspended (February 5, 2010); he was placed in isolation from his colleagues and removed from resources necessary to carry out his job functions; he was denied job upgrades/promotions (April 2010); [and] he was terminated his [sic] employment through an alleged RIF . . . .” Pl.’s Opp. at 33–34. But the evidence that plaintiff has put forward does not reflect that everything took place within the span of a month. According to the chronology that plaintiff himself provides, he was notified of his termination four months after he filed the original complaint in this action, and the termination actually took place two months after that. Even at the prima facie stage, courts in this district generally require closer temporal proximity in order to establish causation in the absence of direct evidence. See Harris v. D.C. Water and Sewer Auth., -- F. Supp. 2d --, 2013 WL 518641, at 4 (D.D.C. Feb. 13, 2013) (summarizing the precedent to show that courts in this district have 26 rejected intervals of two and a half months, three months, five months, and ten months as establishing temporal proximity). Moreover, while mere temporal proximity might be sufficient to establish the causation prong of a prima facie case of retaliation, proximity alone is insufficient to prove that defendant’s legitimate non-retaliatory reasons are pretextual. Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011) (“Although an adverse action that occurs shortly after the protected activity can be part of a finding of retaliation, positive evidence beyond mere proximity is required to defeat the presumption that the proffered explanations are genuine[.]”) (citations and internal quotation marks omitted). Plaintiff has not provided any affirmative evidence that the RIF was pretextual. In fact, in his deposition, plaintiff admits that the entire warrant squad was abolished in the reduction in force, not just his position within the warrant squad. Durant Dep. at 195:8–10 (“Q: Well, let me ask you this: Was the warrant squad abolished? A: Yes it was – well, yes.”); Durant Dep. at 195:22–196:3 (“Q: [D]id the warrant squad itself, the warrant squad still exist after the RIF? A: No.”). Plaintiff contends that after DOC terminated the employees in the warrant squad, it hired correctional officers to perform the duties of the warrant squad. Durant Dep. at 195:20–21. Even if the Court accepts that statement as true, the fact that the department transferred the duties of the warrant squad employees to different employees in the department does not show that the RIF was pretext for retaliation against plaintiff for filing the complaint in this action. See Globus v. Skinner, 721 F. Supp. 329, 336 (D.D.C. 1989) (finding that the plaintiff’s showing that the agency did not take into account in its RIF calculations the fact that it would seek approval for certain new hires does not “discredit the reasons for the RIF, establish that they were pretextual, or prove that they were motivated even in part by a retaliatory motive.”). 27 Accordingly, since the Court finds that plaintiff has failed to put forth any evidence of a materially adverse action other than the termination of his employment, and he has failed to establish evidence that the reduction in force was pretext such that a reasonable jury could find that defendant’s stated reason was not the actual reason for the termination of his employment and that defendant actually retaliated against him, the Court will grant defendant’s motion for summary judgment as to the part of Count II that claims plaintiff suffered discrete acts of retaliation by his employer. VII. Plaintiff fails to show that a dispute of material fact exists as to whether defendant created a hostile work environment. The only remaining claim alleges that defendant subjected plaintiff to a hostile work environment in retaliation for his protected activities. To make out a hostile work environment claim, a plaintiff must demonstrate that the “workplace is permeated with discriminatory intimidation, ridicule, and insult” and that this behavior is “sufficiently severe or pervasive [as] to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (internal quotation marks omitted). To determine “whether an actionable hostile work environment claim exists, [courts] look to ‘all the circumstances,’ including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002), quoting Harris, 510 U.S. at 23; see also Baloch, 550 F.3d at 1201. This standard “ensure[s] that Title VII does not become a general civility code” that involves courts in policing “the ordinary tribulations of the workplace.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, (1998) (internal citation and quotation marks omitted). 28 Plaintiff spends four pages of his opposition to the motion for summary judgment arguing that a genuine dispute of material fact exists as to whether plaintiff’s work environment was hostile and as to whether the hostile work environment was linked to his protected activity. See Pl.’s Opp. at 36–40. However, in making this argument, not once does plaintiff cite to the record. Rather, he continues to make unsupported conclusory assertions about what happened to him. See, e.g., id. at 38 (“First, it is clear from the record in this case that Mr. Durant subjectively perceived a hostile working environment. He filed repeated claims for relief, and attempted to obtain assistance from various sources. He was routinely subjected to isolation away from his colleagues and the tools necessary for him to carry out his duties. He was continually subjected to threats to his employment, admonishments, suspensions of arrest powers/authority, and placed on involuntary leave . . . .”). 19 Accordingly, the Court finds that plaintiff has failed to put forth sufficient evidence that would create a genuine question as to whether defendant created a hostile work environment. See Fed. R. Civ. P. 56(c)(3). Moreover, the Court cannot find that plaintiff has established a sufficient causal link between the allegedly hostile work environment and his protected activity. Even if one assumes that all of the complaints to the EEO coordinator for DOC and to the EEOC that plaintiff has submitted as exhibits to his opposition are actually protected under Title VII, plaintiff has failed to adduce more than mere temporal proximity between the filing of those complaints and some of the allegedly hostile actions. And in opposing the motion for summary judgment on the hostile work environment claim, plaintiff simply refers the Court to the discussion of causation in the section of the opposition dealing with discrete retaliatory actions. As the Court has 19 Moreover, plaintiff cannot argue that he was relying on the “Statement of Facts” section of his opposition to provide the correct citations because that section does not cite to admissible evidence that would support his assertions either. 29 already discussed, temporal proximity alone is not enough to raise a genuine dispute of material fact over causation. Moreover, plaintiff has provided the Court as exhibits numerous previous complaints that he wrote, in which he attributed his treatment by DOC officials to retaliation for his collective bargaining activities, and in which he alleged that his environment became hostile for those reasons before he ever engaged in the particular activity that he asserts is protected by Title VII. This undermines his argument that the hostile work environment was motivated by retaliation for the EEOC complaints. A court in this district has noted that “opposition to an unlawful employment practice qualifies as protected activity even if it may have occurred outside of the EEO context.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 77 n.7 (D.D.C. 2007), quoting Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) (internal quotation marks omitted). However, the complaint must in some way allege discrimination made unlawful by Title VII. Williams v. Spencer, 883 F. Supp. 2d 165, 177 (D.D.C. 2012), citing Broderick, 437 F.3d at 1232; 42 U.S.C. § 2000e-3(a). Accordingly, the complaints and reports that plaintiff identifies as his “protected activities” must have in some way alleged discrimination on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. §§ 2000e-2, 2000e-3(a). Under that framework, the first protected act that appears in the record is the memorandum plaintiff sent to the DOC’s EEOC coordinator on October 17, 2007. Ex. E to Pl.’s Opp. at 1. Yet, plaintiff alleges that the hostility began in June 2007, when he was put on administrative leave. Pl.’s Opp. at 25–26, 37. So even if the Court were to find that plaintiff has identified sufficient evidence to show that he faced a hostile work environment, it cannot find that he has met his burden of showing that genuine issue of material fact exists about whether the 30 cause of the hostility was retaliation for his protected activity. See Lewis v. District of Columbia, 653 F. Supp. 2d 64, 79 (D.D.C. 2009) (“The fact that the allegedly retaliatory actions preceded the protected activity precludes a determination that the protected activity caused the defendant to retaliate against the plaintiff.”). CONCLUSION Accordingly, the Court will grant defendant’s motion for summary judgment in full. As a result, it will dismiss the pending motion to strike as moot. A separate order will issue. AMY BERMAN JACKSON United States District Judge DATE: March 25, 2013 31	{ "pile_set_name": "FreeLaw" }
363 So.2d 2 (1978) Nadio and Livio CHRISTIANI and Reserve Insurance Co., Appellants, v. John POPOVICH et al., Appellees. GOODINGS MILLION DOLLAR MIDWAY and Reserve Insurance Co., Appellants, v. John POPOVICH et al., Appellees. Nos. X-265, Z-113, X-266 and Z-112. District Court of Appeal of Florida, First District. August 10, 1978. Rehearing Denied October 27, 1978. 4 Harry E. Barr and Charles Timmel of Timmel, Campbell & Barr, Fort Walton Beach, for appellants. Roderic G. Magie of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P.A., Pensacola, for appellees Pensacola Interstate Fair, Inc. and United States Fidelity & Guaranty Co. G. Miles Davis of Beggs & Lane, Pensacola, for appellee Gulf Power Co. SMITH, Judge. John Popovich, a fairground concessionaire, sued appellants Nadio and Livio Christiani, Goodings Million Dollar Midway, Inc. ("Midway") and their insurer, as well as appellees Pensacola Interstate Fair, Inc. ("Fair"), its insurer, and Gulf Power Company for the wrongful death of Popovich's wife, Simone. She was electrocuted when power from Gulf Power's overhead highvoltage line arced to the nearby Pirate's Den, an amusement owned and built by the Christiani defendants, and thence to the Popovich trailer. Those structures were on property owned by defendant Fair, for whom defendant Midway provided and managed fair amusements and concessions, including the Christianis' Pirate's Den. Popovich alleged negligence by Midway and the Christiani defendants in placing the tall Pirate's Den dangerously near the power line; negligence by the landowner, Fair, in permitting that to be done; and negligence by Gulf Power in maintaining and operating its power line. The pleadings were settled and the case was tried before June 12, 1975, when the Uniform Contribution Among Tortfeasors Act took effect.[1] Chapter 75-108, Laws of Florida (1975), as amended, Section 768.31, Florida Statutes (1977). Certain of the defendants cross-claimed for indemnity against one another, each conceiving that its potential liability to plaintiff Popovich was for passive negligence only, and that the others were actively negligent. In November 1974 the court granted defendant Fair a summary judgment, finding no liability; and from that judgment timely appeals were taken by plaintiff Popovich (No. X-76) and by the indemnity cross-claimants, the Christianis and Midway (Nos. X-265 and X-266). At the December 1974 trial of plaintiff's claim against defendants the Christianis, Midway, and Gulf Power, the court directed a verdict on liability for defendant Gulf Power. The jury returned a substantial verdict for plaintiff against defendants the Christianis and Midway. On June 18, 1975, judgment was entered for plaintiff against them and for defendant Gulf Power against all parties. The Christianis and Midway appealed from the judgment against them (Nos. Z-112 and Z-113) and plaintiff Popovich appealed from the judgment exonerating Gulf Power (No. Z-120). While these appeals were pending, the judgment debtors satisfied plaintiff's judgment and obtained from him a purported assignment of the right to prosecute his appeals in Nos. X-76 and Z-120. On motion by appellees Fair and Gulf Power, showing that plaintiff's judgment had been satisfied, we held the assignment for naught and dismissed plaintiff's appeals which the Christianis and Midway had sought to carry on in their own right.[2] 5 Before us now are the consolidated appeals by the Christianis and Midway from the final summary judgment entered for defendant Fair and from the judgment entered on the directed verdict for defendant Gulf Power. Those appeals present the following issues: First, whether the Contribution Among Tortfeasors Act, Section 768.31, is applicable although it was not effective until June 12, 1975, several months after the summary judgment for Fair and after the trial which resulted, on June 18, 1975, in the entry of judgment for Gulf Power and for plaintiff against the remaining defendants. We hold that the Contribution Act is applicable. Second, whether the judgment defendants, the Christianis and Midway, may by appeals complain of asserted error in the judgments which exonerated codefendants Fair and Gulf Power of liability to plaintiff. We hold that they may. And third, whether there was error in the summary judgment for Fair and the directed verdict for Gulf Power. We hold that Fair did not demonstrate its nonliability to plaintiff by motion for summary judgment and that, on the evidence at trial, a jury might have found Gulf Power actionably negligent. Consequently, though the errors are harmless to plaintiff, who accepted full satisfaction of his judgment from appellants Midway and the Christianis, we reverse the judgments exonerating Fair and Gulf Power and remand for further proceedings against them on appellants' claims for contribution. I. The Contribution Among Joint Tort-feasors Act is by its terms applicable "to all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tortfeasors are involved and to cases thereafter filed." Section 768.31(7), Florida Statutes (1977). As stated above, the summary final judgment for Fair was entered November 21, 1974, and the judgment for Gulf Power and for plaintiff against appellants was entered June 18, 1975, after a December 1974 trial and verdict. Because the litigation affecting the responsibilities between appellants and Gulf Power was pending in the trial court and the appeals affecting appellants' claims against Fair were pending here when the Contribution Act became effective June 12, 1975, the Act is applicable to these appeals notwithstanding that contribution issues were not pleaded or otherwise raised when the case was pending before trial. Rader v. Variety Children's Hospital, 323 So.2d 564 (Fla. 1975), conformed to, 328 So.2d 506 (Fla. 3d DCA 1976), and 328 So.2d 507 (Fla. 3d DCA 1976); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 680 (Fla. 1977). See also Lincenberg v. Issen, 318 So.2d 386 (Fla. 1975); Shealy v. Clark Constr. Co. of Ocala, Inc., 323 So.2d 11 (Fla. 1st DCA 1975). Section 768.31(7) applies the Contribution Act to all "pending" cases in which the rights of contribution among the joint tortfeasors are "involved." The quoted language does not mean that the Act applies only when contribution rights were "involved" in the sense of having been raised by pleadings prior to June 12, 1975. But cf. Warn Industries v. Geist, 343 So.2d at 47, (noting that the contribution claimant had made a motion requesting accelerated application of the Act, denied by trial court order on May 15, 1975). To so hold would attribute determinative effect to pleadings which had no basis in the law before the Contribution Act was effective. It is sufficient that this case was pending on the critical date and that inchoate contribution rights were "involved" in the sense of being affected by the outcome. This is not a case comparable to Linder v. Combustion Engineering, Inc., 342 So.2d 474, 476 (Fla. 1977), in which the Supreme Court prescribed particular timetables for application of a change in the common law. This case is governed instead by the familiar rule, as stated in Linder, 342 So.2d at 475, that; In the absence of such a determination [of prospective application], the doctrine [of "strict liability"] would be applied at the appellate level even though the question 6 was not raised before the trial judge. We have held that on appellate review the issues must be resolved in accordance with the case law in effect at the time the appellate decision is rendered. The only pleaded issues between the defendants in the trial court were issues of indemnity, which we do not confuse with contribution. See, e.g., Home Indemnity Co. v. Edwards, 360 So.2d 1112 (Fla. 1st DCA 1978). Appellants have not urged that there was error in the trial court's rulings insofar as they dismissed appellants' indemnity claims. Yet application of Section 768.31 requires consideration of whether appellants' inchoate contribution claims were extinguished by the judgments now properly before us by timely appeals, and whether appellants may here and now complain of that effect. II. As long as Florida law refused its process to enforce contribution among joint tortfeasors, a defendant adjudged liable to an injured party was held not aggrieved by the same judgment's exoneration of a codefendant. Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353 (1940); Jackson v. Florida Weathermakers, Inc., 55 So.2d 575 (Fla. 1951). Denying appellate remedies to the judgment defendant, as against the exonerated codefendant, was consistent with the view that a judgment defendant is both immediately and ultimately responsible to satisfy plaintiff's judgment fully, and it is of no legitimate interest to him that a codefendant may have been improperly exonerated. In the only reported decision we have found directly addressing the issue since Section 768.31 became effective, the District Court of Appeal, Third District, held that the contribution statute does not change prior law in this respect; and that a judgment defendant may not appeal and assign error in the judgment's exoneration of a codefendant. North Shore Hospital v. Martin, 344 So.2d 256 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 677 (Fla. 1977). As North Shore noted, we suggested a contrary result by dicta in Liberty Mutual Ins. Co. v. Curtiss, 327 So.2d 82 (Fla. 1st DCA 1976), app. dism., 341 So.2d 291 (Fla. 1976). For reasons there stated, and not repeated here, we suggested that a judgment defendant is demonstrably aggrieved by the exoneration of a codefendant, and we approvingly cited Minnesota decisions at common law allowing a judgment defendant to complain on appeal of the exoneration of a codefendant. E.g., Bocchi v. Karnstedt, 238 Minn. 257, 56 N.W.2d 628 (1953). We now hold that a right to appeal is a necessary consequence of Florida's Contribution Act, which destroys the judgment defendant's inchoate contribution rights rights which may mature on payment of the judgment against an exonerated codefendant. Section 768.31(4)(f) provides: The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their rights to contribution. Our disagreement with North Store stems from recognition that, whether inchoate contribution claims are conventionally pleaded or not, Section 768.31(4)(f) renders a judgment for plaintiff against some but not all defendants binding on all defendants for contribution purposes. Liberty Mutual suggested by dicta that, irrespective of conventional res judicata criteria, a judgment exonerating an alleged tortfeasor of liability to plaintiff may even foreclose the inchoate contribution claim of a tortfeasor absent from that litigation, who is later sued separately and successfully by plaintiff. Florida's Act benefits a contribution claimant only when he has discharged a common liability shared in by another tortfeasor;[3]7 and there is great difficulty in supposing that an alleged joint tortfeasor, previously exonerated by a judgment, is discharged of liability by satisfaction of a later judgment against the contribution claimant. We need not here decide that issue or further discuss it except to point out again, as we did in Liberty Mutual, 327 So.2d at 87, that Section 768.31(4)(f) may require a different result from that in Anderson v. Gabrielson, 267 Minn. 176, 180, 126 N.W.2d 239, 242, n. 9 (1964). The Florida Act, by explicitly binding codefendants to the consequences of a judgment, may imply that absent tort-feasors are not so bound. The issue here is simpler. We are concerned with the direct effect, not with the reverse implications, of Section 768.31(4)(f). Unless the right to appeal an adverse judgment is to be denied defendants as a disfavored class, there are but two choices in fixing the effect of a judgment exonerating one defendant and holding another liable to plaintiff. Either the judgment must be held ineffectual to establish the contribution responsibilities between the defendants, so that they are free to litigate those issues later; or the judgment defendant must be allowed an appeal to test the correctness of the adjudication by which he lost his contribution claim against the exonerated defendant. Section 768.31(4)(f) forecloses the first choice. We therefore adopt the second. Even the most primitive notions of due process and equal protection of the law forbid denying judgment defendants as a class the right to appeal from judgments which adversely determine their substantial rights against exonerated codefendants. The only conceivable basis for such discriminatory treatment would be a lingering conviction that the law should deny its benefits to tortfeasors. See the analysis in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, 53 A.L.R.3d 175 (1972), cited and quoted approvingly in Lincenberg, supra, 318 So.2d at 389-90. That harsh and inequitable notion has been repudiated both at common law, see Lincenberg, and by the Contribution Act. If there were any doubt that judgment defendants in tort cases have now been welcomed into full citizenship, it is dispelled by realization that the ancient rule discriminated against tort-feasors, not against defendants as such. Florida's comparative negligence rule renders every party, plaintiff and defendant alike, a tortfeasor to the extent his fault contributed to the shared injury. Counterclaims against plaintiffs are now commonplace; and, in multi-party actions involving round-robin claims, counterclaims and cross-claims, it would be odd indeed to grant certain parties appeals on issues affecting contribution, while denying such appeals to others, because of party designations in the trial court. It would be stranger still to hold that a plaintiff may prosecute an appeal from a judgment exonerating one of several defendants on his claim, but that he cannot complain on the same ground of the same judgment which held plaintiff, but not the exonerated defendant, liable to another defendant who counterclaimed and crossclaimed against both as joint tort-feasors. North Shore, reaching a different conclusion, cited to decisions in Missouri, California, and New York, particularly May v. Bradford, 369 S.W.2d 225 (Mo. 1963), Guy F. Atkinson Co. v. Consani, 223 Cal. App.2d 342, 35 Cal. Rptr. 750 (1964), and Baidach v. Togut, 7 N.Y.2d 128, 196 N.Y.S.2d 67, 164 N.E.2d 373 (1959). We think there are significant differences between Florida's Contribution Act and the corresponding statutes of Missouri, California, and New York on which those decisions were based. In May, plaintiff was held to have voluntarily dismissed his claim at trial against the appellee defendant, so there was no judgment for the appellee defendant which might have aggrieved the appealing judgment defendant. More important, May interpreted the Missouri statute as requiring, as a condition to the creation of inchoate contribution rights, a joint 8 judgment against two or more defendants.[4] The California[5] and New York[6] statutes applicable in Consani and Baidach also required a joint judgment. Our so distinguishing those statutes and decisions may beg the question we address here, because a judgment defendant in Missouri, California or New York could reasonably contend he was aggrieved by the trial court's refusal to enter the necessary "joint judgment" against the codefendant and himself. It appears, however, that the courts in those jurisdictions did not deny appeals to those judgment defendants because they were not "aggrieved" in fact. Rather, those courts were concerned with construing a statute narrowly derogating prior common law, and they simply recognized that their legislatures had strictly limited contribution to cases resulting in a "joint judgment" against defendants. The Florida Contribution Act does not require a joint judgment against tort-feasors as a precedent condition to contribution rights. In Florida, joint liability is sufficient, as it now is by statute amendment in New York.[7] In Florida, therefore, there is no statutory impediment to the judgment defendant contending on timely appeal that the judgment wrongfully terminated liability on the part of the exonerated codefendant. We have found no New York decision now authorizing a judgment defendant to appeal from the exoneration of a codefendant, but New York practice now includes the potential for such relief. Lincoln v. Austic, 60 A.D.2d 487, 401 N.Y.S.2d 1020, 1021 (1978), not involving contribution issues, permitted appeal by a defendant who was exonerated by a special verdict finding that the alleged tortfeasor drove appellant's automobile with his consent but that the driver was not negligent. Another action was then pending against appellant, arising from the same incident. The court, foreseeing the possibility of collateral estoppel against appellant on the consent issue, held appellant aggrieved by and entitled to review of that finding in the judgment which exonerated him: When ... a specific finding at trial might prejudice a party in a future proceeding by way of collateral estoppel (see e.g., Israel v. Wood Dolson Co., Inc., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E.2d 97), it seems clear that a substantial and important right of said party has been adversely affected and that the interests of justice require that said party be permitted to appeal the adverse finding... . The most important distinction between Florida's Contribution Act and the statutes in effect when North Shore's Missouri, California, and New York decisions were rendered is that none of those statutes contained a specific provision, as does Florida's, rendering a judgment on plaintiff's claim against multiple defendants "binding as among such defendants in determining their right to contribution." Section 768.31(4)(f), Florida Statutes (1977). That is a distinctive feature of the Uniform Act from which Florida's was taken. Uniform Contribution Among Tortfeasors Act § 3(f) (1955 revision). 9 In states subscribing to this provision of the Uniform Act, courts have held that a judgment defendant may appeal from a judgment exonerating a codefendant. E.H. Koester Bakery Co. v. Poller, 187 Md. 324, 50 A.2d 234 (1946); Marr v. Nagel, 58 N.M. 479, 272 P.2d 681 (1954); Arkansas Louisiana Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W.2d 745 (1965); Ettin v. Ava Truck Leasing, Inc., 100 N.J. Super. 515, 242 A.2d 663 (1968), modified 53 N.J. 463, 251 A.2d 278 (1969). As the North Shore Court noted, Minnesota and West Virginia have the same rule although they do not subscribe to the Uniform Act. Hutcherson v. Slate, 105 W. Va. 184, 142 S.E. 444 (1928); Bocchi v. Karnstedt, supra. These cases reject the idea that a defendant loses nothing by a judgment in favor of a codefendant. In Marr, the New Mexico trial court granted a judgment for one defendant notwithstanding the verdict against him. The judgment defendant appealed. The New Mexico Supreme Court held Nagel "certainly became an aggrieved party at least to the extent that the trial court in discharging the co-defendant and joint tortfeasor ... thereby deprived him, Nagel, of a possible right of contribution from the co-defendant Cohn." 58 N.M. at 485, 272 P.2d at 685. In states which have adopted the Uniform Act, a defendant may cross-claim or file a third party complaint for contribution, thus raising issues on which to predicate an appeal from an adverse judgment. E.g., Ark.Stat.Ann. § 34-1007 (1962); Del. Code tit. 10, § 6306 (1975). Haw. Rev. Stat. § 663-17 (1976); Overton v. Tarkington, 249 N.C. 340, 106 S.E.2d 717 (1959); Markey v. Skog, 129 N.J. Super. 192, 322 A.2d 513 (1974); Board of Ed. v. Standhardt, 80 N.M. 543, 458 P.2d 795 (1969); Falciani v. Philadelphia Transp. Co., 189 F. Supp. 203 (E.D. Pa. 1960); New Amsterdam Cas. Co. v. Holmes, 435 F.2d 1232 (1st Cir.1970) (R.I.). New York now also allows cross-claims and third party claims for contribution. Kelly v. Long Island Light Co., 31 N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241 (1972). California does not, because contribution issues are not recognized as justiciable until a judgment defendant has paid more than his share of a joint judgment. General Electric Co. v. State ex rel. Dep't of Public Works, 32 Cal. App.3d 918, 108 Cal. Rptr. 543 (1973); Thornton v. Luce, 209 Cal. App.2d 542, 26 Cal. Rptr. 393 (1962). Consistently with the decisions in states employing the Uniform Act, and in contrast to California, Florida appellate courts have held third party claims for contribution allowable prior to entry of a plaintiff's judgment and have reversed dismissals of those claims. Lindsey v. Austin, 336 So.2d 486 (Fla. 3d DCA 1976); First Church of Christ Scientist v. City of St. Petersburg, 344 So.2d 1302 (Fla. 2d DCA 1977); Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976); Leesburg Hospital Ass'n, Inc. v. Carter, 321 So.2d 433 (Fla. 2d DCA 1975); Steak Enterprises, Inc. v. Claus, 345 So.2d 1075 (Fla. 4th DCA 1976). The North Shore court gave some but apparently not controlling emphasis to the fact that the appealing judgment defendants did not cross-claim for contribution against the appellee defendant whom the judgment exonerated.[8] We think the absence of a cross-claim is not determinative of the conclusive effect of a judgment exonerating a codefendant or of the judgment defendant's right to appeal. The Florida Act makes the judgment conclusive on contribution issues irrespective of the presence or absence of cross-claims, Section 768.31(4)(f), and provides for enforcement of contribution rights between judgment defendants "by motion upon notice to all parties to the action." Section 768.31(4)(b). If as North Shore suggests inchoate contribution claims are not justiciable by appeal until "liability has been established" by a judgment, or until one codefendant has paid more than his pro rata share of the common liability, 344 So.2d at 258, it would seem that such inchoate claims are equally unjusticiable *10 at trial, and that cross-claims are inappropriate before judgment. We hold that cross-claims are not inappropriate, but also that they are not essential to the entry of a conclusive appealable judgment. Appellants Midway and the Christianis are therefore entitled to appeal from the judgments which indebted them to plaintiff and exonerated Fair and Gulf Power. Their inchoate contribution claims were justiciable on appeal as a result of the judgments entered, and they are not made more so because appellants satisfied the Popovich judgment in July 1975. Payment of the judgment made appellants' contribution claims fully mature and enforceable, if found to be meritorious, but payment was unnecessary to perfect the appeal. We recognize that our decision, if correct, impacts trial strategies in the defense of multi-party tort cases. Codefendants must simultaneously attempt to deny liability to plaintiff and shift responsibility to each other. If in particular cases the trial court should consider it orderly or otherwise desirable to minimize the resulting conflict within the common defense of codefendants, a separate and subsequent trial on the degrees of negligence by the responsible defendants is possible. But plaintiff's verdict and judgment will identify the responsible defendants who remain to litigate their degrees of responsibility; and any judgment defendant aggrieved by that judgment's exoneration of another must timely appeal if his inchoate contribution claim is to be preserved. III. On the issues affecting appellants' contribution rights, we find that the trial court erred in directing a verdict for Gulf Power. Although the evidence was conflicting, a jury could have found that Gulf Power negligently overrode a circuit breaker and contributed to the fatal incident. The court also erred in granting summary judgment to Fair. The evidence showed that Fair had control over the placement of rides and structures in the midway. Whether Fair negligently allowed the Christianis to place their ride too close to the power line is an issue of fact which cannot be determined by summary judgment. The judgments for Fair and Gulf Power are REVERSED and the cause is REMANDED for further proceedings on appellants' contribution claims. McCORD, C.J., and MELVIN, J., concur. NOTES [1] The Act took effect upon becoming law on June 13, 1975, but it was made applicable to cases pending "at the time of its passage." Although "passage" of the committee substitute for S.B. 98 occurred in the House on May 28, Fla.H.R.Jour. 442 (1975), and in the Senate on May 30, Fla.S.Jour. 1018 (1975), Florida Statutes (1975) translated "passage" as June 12, 1975, the date the bill was signed by the Governor. Section 768.31(7). [2] The satisfaction of a judgment against one alleged joint tortfeasor terminates claimant's cause of action against another. E.g., Walker v. U-Haul Co., Inc., 300 So.2d 289 (Fla. 4th DCA 1974), cert. denied, 314 So.2d 588 (Fla. 1975). [3] Section 768.31(2)(b) provides: "The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability... ." The same theme is expressed in subsection (2)(d), providing that a tortfeasor settling with the claimant has no contribution right against another "whose liability for the injury or wrongful death is not extinguished by the settlement... ." See Liberty Mutual, 327 So.2d at 86-87. [4] Mo. Rev. Stat. § 537.060 (1969): "Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution... ." May stated, 369 S.W.2d at 228: "[T]he statutory right of contribution between joint tortfeasors does not come into existence until a joint judgment is obtained... ." [5] Cal.Civ.Proc.Code § 875(a) (Dearing): "Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided." [6] Former N.Y.Civ.Prac.Law (Consol.) § 1401 provided: "Where a money judgment has been recovered jointly against defendants in an action for a personal injury or for property damage, each defendant who has paid more than his pro rata share shall be entitled to contribution... ." [7] Sec. 1401, see n. 6, supra, was amended in 1974 to provide: "[T]wo or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought." [8] North Shore, 344 So.2d at 257: "The record reflects that no cross claims were filed by any of the defendants to the action and that the plaintiff did not take an appeal from the judgment in favor of [defendant] Dr. Martin."	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-2123 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Daniel Hess lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the District of South Dakota - Rapid City ____________ Submitted: April 13, 2018 Filed: July 19, 2018 [Unpublished] ____________ Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges. ____________ PER CURIAM. Daniel Hess pleaded guilty to assault with intent to commit murder, a violation of 18 U.S.C. §§ 113(a)(1), 1152, and 2, and assault resulting in serious bodily injury, a violation of 18 U.S.C. §§ 113(a)(6), 1152, and 2. His advisory sentencing range under the U.S. Sentencing Guidelines Manual (Guidelines) was 151 to 188 months’ imprisonment. The district court1 varied upward and sentenced Hess to 360 months’ imprisonment. Hess argues that his sentence is substantively unreasonable. We review the substantive reasonableness of a sentence under an abuse of discretion standard, “tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). If the district court “decides that an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. at 50. We may not apply a presumption of unreasonableness to a sentence outside the Guidelines range, but we may consider the extent of any deviation. Id. at 51. Our review of the substantive reasonableness of a variance is narrow and deferential, for we must give “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. We conclude that the district court’s justification for imposing a 360-month sentence was sufficiently compelling to support the upward variance. The court’s decision to vary upward was based largely on the brutality and depravity of Hess’s relevant conduct, as set forth in the factual basis of his plea agreement. According to the plea agreement, Pauline Little lived with her adult son, Donald Little, Jr., near Porcupine, South Dakota. In early October 2015, Pauline received more than $100,000 in proceeds from a life insurance policy. Hess and his wife, Phyllis Lucero, were acquainted with the Littles and knew about the insurance proceeds. Believing that $5,000 to $10,000 in cash was kept in the Pauline’s home, Hess, Lucero, and accomplice Seth Hernandez decided to rob them. 1 The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for the District of South Dakota. -2- On October 17, 2015, the three donned masks and broke into Pauline’s home. Hess and Hernandez went to Donald’s downstairs bedroom, where they assaulted him. Hess strangled Donald until he was unconscious. When Pauline heard Donald fighting “for dear life,” she left her bedroom and encountered a masked Lucero. The two women fought, with Lucero eventually overcoming Pauline and dragging her into a bedroom. Hess, Lucero, and Hernandez went into and out of Pauline’s home, as they searched for money and things of value. Pauline felt a powerful kick to her right ribs and heard Hess say, “She’s dead let’s go. Grab that shit, let’s get out of here.” The three then left in Pauline’s new pickup truck. Hess returned to Pauline’s home later that evening. He tied up Pauline and Donald and poured carpet cleaner on them, believing it would remove any fingerprints he may have left. Upon regaining consciousness, Donald freed himself from the duct tape and electrical cord that restrained him and went upstairs, where he discovered his mother on the couch, badly beaten and bound in duct tape. Upon being apprehended, Hess admitted that he intended to break into the Pauline’s home, assault Pauline and Donald, and steal Pauline’s cash. He also admitted that he stole and discarded a television and that he had burned his shoes in an attempt to destroy evidence. Pauline and Donald suffered significant head injuries, including brain bleeds, bruises, and lacerations. Pauline suffered broken ribs and bruising all over her body. The lacerations on her head required seventeen staples. Donald’s ears, abdomen, and arms were bruised. He suffered acute subdural hematoma, and his right orbital bone and right nasal bone were fractured. The district court described photographs of Pauline and Donald as horrific, with the victims “look[ing] like they should be in a funeral home.” -3- Donald was diagnosed with anxiety, depression, and post-traumatic stress disorder after the assault. He drank heavily and eventually sought inpatient alcohol treatment. Pauline succumbed to cancer approximately a year after the assault. Donald testified at sentencing that the beating destroyed his family. He explained that when he awoke “in the basement tied up, blood all over the place,” his only concern was for his mother, whom he found “laying there on the couch, face all cut up, just moaning.” Donald lives with that image of his mother, “bleeding from her forehead, her shirt ripped. You can see where they kicked her . . . and she managed to crawl by herself into the living room and on the couch.” Donald testified that Pauline gave up her will to live after the assault, despite his efforts to take care of her. The Littles no longer felt safe in their home and eventually moved in with Pauline’s sister. Donald testified that he regularly sees a psychiatrist to help him deal with the trauma. He explained that he suffered neck injuries during the assault that cause his arms and hands to go numb and that he had decided to forego the multiple surgeries that would be required to address the injuries. The nature and the circumstances of the offense weighed heavily in the district court’s decision to sentence Hess to 360 months’ imprisonment. The court found that Hess’s conduct was “highly intentional, planned behavior,” not the drug-induced behavior Hess claimed it to be. The district court described the circumstances of Hess’s “unmitigated and vicious attack on Mr. Little and his mother” as “extraordinarily severe” and “tantamount to torture.” The court found Hess’s actions upon his return to Pauline’s home especially troubling, noting that despite Pauline and Donald’s “terrible physical condition” and “life threatening injuries[,] . . . they were bound and [Hess] poured carpet cleaner on them.” Hess argues that the district court failed to consider mitigating aspects of his personal history and characteristics under 18 U.S.C. § 3553(a)(1). Specifically, Hess claims that the district court failed to consider that he had had a troubled childhood -4- that resulted in drug addiction, anger-management issues, and health problems, including three or four serious head injuries. Hess also argues that the court should have given weight to the fact that he has raised four biological children and four step- children, all of whom are living “positive, pro-social lives.” He argues that since his incarceration and his becoming sober, he has demonstrated good character and that his convictions were a violent aberration of an otherwise nonviolent history. The district court considered those mitigating factors, which were set forth in Hess’s presentence report, in his letter to the court, in letters written by those who support him, and in defense counsel’s argument at sentencing. The district court did not abuse its discretion in deciding that a significant upward variance was required to address the brutal nature and circumstances of the offense, as well as the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, and to afford adequate deterrence to criminal conduct. See United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011) (“The district court’s choice to assign relatively greater weight to the nature and circumstances of the offense than to the mitigating personal characteristics of the defendant is well within the ‘wide latitude [given] to individual district court judges in weighing relevant factors.’” (alteration in original) (quoting United States v. Foy, 617 F.3d 1029, 1037 (8th Cir. 2010))). The sentence is affirmed. ______________________________ -5-	{ "pile_set_name": "FreeLaw" }
335 N.W.2d 572 (1983) STATE of South Dakota, Plaintiff and Appellee, v. Ricky GRAYCEK, Defendant and Appellant. No. 13909. Supreme Court of South Dakota. Considered on Briefs May 23, 1983. Decided June 29, 1983. 573 Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief. Daniel R. Moen of McNeary & Moen, Aberdeen, for defendant and appellant. HENDERSON, Justice. This action involves a criminal appeal. Appellant Ricky Graycek (Graycek) was arrested on February 23, 1982, for grand theft. Subsequently, bond was set at $5,000.00 and Graycek's request for court-appointed counsel was denied. Graycek was unable to post bond and he appeared pro se in magistrate court on March 4 and 18, 1982. Graycek filed another application for court-appointed counsel on March 18, whereupon counsel was granted. A preliminary hearing was conducted on March 25, 1982, with informations for grand theft and habitual offender filed thereafter. A jury trial was held on July 13 and 14, 1982, culminating in a guilty verdict against Graycek on the grand theft charge. On July 14, 1982, Graycek was sentenced to 18 months in the State Penitentiary. Notice of appeal was filed on August 23, 1982. We affirm. Events of the evening of February 22, 1982, are the focus herein. At 10:15 p.m., Officer Douglas Nelson drove Graycek from the Refuge Lounge just outside of Webster, South Dakota, and dropped him off at 10:30 p.m. in an alley behind the Westwood Inn in Webster. At 11:15 p.m., Officer Nelson observed a 1965 red two-ton Chevrolet truck with a defective taillight. This vehicle failed to stop for a stop sign in Webster and Officer Nelson began pursuit. Although Officer Nelson operated his vehicle's siren and flashing lights, the truck failed to pull over. Officer Nelson pulled along side of the truck. Flashing a spotlight in the truck's cab, Officer Nelson recognized Graycek as the vehicle's operator. Suddenly, the truck swerved in front of Officer Nelson's vehicle and skidded to a halt. Graycek fled the scene on foot. Via an arrest warrant, Graycek was arrested at his apartment early in the morning of February 23, 1983. At trial, Graycek admitted he took the truck but contended he did not have the requisite intent and therefore the court lacked venue. The jury found Graycek 574 guilty and he was sentenced to 18 months in the State Penitentiary. There are two issues posed by this appeal: (1) Was proper venue established in Day County, South Dakota, and (2) Did the trial court properly credit Graycek for pretrial incarceration due to indigency? We now discuss these issues. Although he did not testify at trial, Mr. John J. Koenig, the owner of the truck in question, testified at Graycek's preliminary hearing that his son Jack Koenig had parked the truck in the parking lot of the Catholic church on the morning of February 22, 1982. The preliminary hearing court concluded: "There is no question in the evidence that the offense probably occurred in Day County, both by reference to the city limits of the City of Webster and other testimony concerning landmarks well known within the community." With this background, the parties entered into a stipulation, detailed below, and neither Mr. Koenig nor his son were called at trial. Graycek's defense was based entirely on his claimed intoxication removing the requisite criminal intent. At the close of the evidence and prior to closing argument, Graycek moved to dismiss or for judgment of acquittal due to a lack of jurisdiction claiming that no evidence had been secured as from where the truck was taken. On this venue issue, the trial court interpreted the stipulation between the parties as sufficient to show the truck was asportated from Day County, South Dakota. Thus, the case was submitted to the jury. The stipulation between the parties provided the truck was: (1) over $200.00 in value; (2) owned by a man from Webster, South Dakota; and (3) Graycek took the truck without permission. In addition to the stipulation, evidence at trial established: (1) Officer Nelson began pursuit of the truck in Webster, South Dakota; (2) Officer Nelson saw Graycek in Webster, South Dakota, 45 minutes prior to the pursuit; (3) the truck was stopped in Day County, South Dakota; and (4) Graycek was arrested in Day County, South Dakota. At the close of evidence, Graycek failed to object to the settlement of the jury instructions and did not offer a separate instruction on venue. Therefore, on appeal to this Court, we are unable to now consider any objections Graycek may have to the jury instructions. State v. Barr, 89 S.D. 280, 232 N.W.2d 257 (1975). Venue, not being an integral part of a criminal offense, does not affect the question of the guilt or innocence of the accused. State v. Rasch, 70 S.D. 517, 19 N.W.2d 339 (1945). When the venue to be established is that of a county in South Dakota, rather than statewide venue, proof by a preponderance of the evidence is sufficient. State v. Greene, 86 S.D. 177, 192 N.W.2d 712 (1971). An absence of direct proof of venue will not defeat a conviction where venue is properly inferable from the evidence. State v. Wood, 77 S.D. 120, 86 N.W.2d 530 (1957). A law enforcement officer's familiarity with county boundaries is competent evidence on the issue of venue. State v. Hemmenway, 80 S.D. 153, 120 N.W.2d 561 (1963). Courts may take judicial notice of which county towns and cities are located in. State v. Brewer, 266 N.W.2d 560 (S.D.1978). We hold, by a preponderance of the evidence, venue in Day County was properly inferable below. Graycek was in Day County, South Dakota, immediately prior to, during, and after the truck chase. We now treat the sentencing issue. At sentencing, the trial court informed Graycek that he would have been sentenced to 30 months in prison had it not been for Graycek's presentence incarceration. The trial court then proceeded to sentence Graycek to 18 months in prison without any credit therefrom for presentence incarceration. We have been called upon to judge the validity of this procedure. It is clear that in non-life sentence settings, credit must be given for all presentence custody resulting from indigency. Patino v. State, 331 N.W.2d 837 (S.D.1983); State v. Cody, 323 N.W.2d 863 (S.D.1982); State v. Lohnes, 266 N.W.2d 109 (S.D.1978). Graycek had indigent status from March 18, 1982, when his application for court-appointed counsel was approved. Thus, Graycek *575 was entitled to credit for presentence incarceration thereafter, which arose from his indigency. The trial court stated: So the Court would decide that an appropriate sentence for this type of thing would be two and a half years. However, since you have five months in the County Jail, and considering the smallness of the jails and what you've already gone through, I'm going to give you a year's credit against two and a half years. And rather than give you the two and a half-year sentence, I'm just going to make you understand that's what I intended to give you. And then I'm going to cut it to eighteen months in the State Penitentiary without any credit for the County Jail. In other words, you're getting credit by my reducing what I would have normally have given you if you had not been in jail. (Emphasis supplied.) We therefore hold that the trial court correctly took full cognizance of Graycek's presentence incarceration and provided him a liberal credit. Affirmed. All the Justices concur.	{ "pile_set_name": "FreeLaw" }
Case: 19-30601 Document: 00515386029 Page: 1 Date Filed: 04/17/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-30601 April 17, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FAYE ALICE BASS, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:19-CR-64-1 Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. PER CURIAM: * Faye Alice Bass appeals the sentence imposed following her guilty plea conviction for theft of government funds in violation of 18 U.S.C. § 641. She contends that the district court erred when it enhanced her sentence for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Bass argues that the enhancement did not apply to her false statements to non-law enforcement personnel employed by the Social Security Administration (SSA) and that her * 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: 19-30601 Document: 00515386029 Page: 2 Date Filed: 04/17/2020 No. 19-30601 false statements to the SSA special agents were insufficient to warrant the enhancement because there was no evidence that her misconduct significantly obstructed or impeded the investigation. We review the district court’s interpretation and application of the Guidelines de novo and its factual findings for clear error. United States v. Stubblefield, 942 F.3d 666, 668 (5th Cir. 2019). The district court’s determination that a defendant obstructed justice under § 3C1.1 is a factual finding that we review for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). “There is no clear error if the district court’s finding is plausible in light of the record as a whole.” Id. Bass does not dispute that her statements were materially false or that she willfully attempted to obstruct justice. Although she argues that our analysis is limited to her statements to the SSA special agents, her earlier interactions with SSA personnel may be considered because the record allows for a plausible finding that her conduct was intended to thwart the SSA’s active or future investigation into her theft of government funds. See Stubblefield, 942 F.3d at 669-70; United States v. Alexander, 602 F.3d 639, 641-42 & n.3 (5th Cir. 2010). Further, the fact that Bass’s false statements may have also formed the basis of her offense of conviction does not preclude their consideration. See § 3C1.1, comment. (n.7); United States v. Richardson, 713 F.3d 232, 237 (5th Cir. 2013). The record reflects that Bass’s repeated false statements caused the SSA to expend additional time and resources to disprove her assertion that she and her husband were separated and no longer lived together. Bass’s interaction with SSA personnel in 2014, together with her husband’s coached responses, were intended to throw off the SSA’s suspicions and delayed the SSA’s official investigation by an additional four years, resulting in a greater loss to the 2 Case: 19-30601 Document: 00515386029 Page: 3 Date Filed: 04/17/2020 No. 19-30601 government. In February 2018, the SSA assigned a technical expert to investigate Bass’s possible fraud. As a result of Bass’s false statements to the technical expert, the SSA had to take the additional investigative step of sending agents to interview Bass at her home. During this interview, Bass continued to lie and contradict her earlier statements. Although the SSA special agents may not have believed Bass, they were forced to expend additional time and resources questioning her neighbors in order to disprove her claims. In light of the foregoing, Bass cannot show that the district court’s determination that her repeated false statements significantly impeded the investigation was implausible in light of the record as a whole. See United States v. Brooks, 681 F.3d 678, 717 (5th Cir. 2012); United States v. Phipps, 319 F.3d 177, 191-92 (5th Cir. 2003). Accordingly, Bass has not shown that the district court clearly erred in applying the obstruction of justice enhancement. See Juarez-Duarte, 513 F.3d at 208. AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
978 F.2d 715 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Joe Allen ROBLES, Petitioner-Appellant,v.Warden CRIST, et al., Respondents-Appellees. No. 91-16781. United States Court of Appeals, Ninth Circuit. Submitted Nov. 4, 1992.Decided Nov. 6, 1992. Before SCHROEDER, FLETCHER and PREGERSON, Circuit Judges. 1 MEMORANDUM* 2 Joe Allen Robles, an Arizona state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action as frivolous under 28 U.S.C. § 1915(d). Robles alleges that prison officials violated his fourth amendment rights by strip searching him upon his return from work within the prison. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand. 3 We review the district court's section 1915(d) dismissal of an action prior to service of process for abuse of discretion. Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992). 4 An in forma pauperis complaint may be dismissed before service of process under section 1915(d) if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A complaint is frivolous if "it lacks an arguable basis either in law or in fact." Id. at 325. "In civil rights cases where the plaintiff appears pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). We have previously held that routine visual strip searches of prisoners when they leave and return to their cell blocks are permissible only if reasonable in the prison context. See Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir.1988). 5 In his complaint, Robles appears to allege that prisoners are being strip searched as punishment. Robles also appears to allege that the observation by prison guards of prisoners as they work and are searched violates the prisoners' right to privacy. Robles is apparently challenging the routine strip searches of prisoners returning to their cells from work on prison grounds. We cannot say that Robles' complaint lacks an arguable basis in law or fact. See Neitzke, 490 U.S. at 324. Accordingly, we remand the case to permit service of process on the defendants.1 6 REVERSED and REMANDED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Following a responsive pleading from the defendants, the district court may wish to consider appointing counsel to assist Robles in proceeding with this case	{ "pile_set_name": "FreeLaw" }
FOURTH DIVISION DILLARD, C. J., DOYLE, P. J., and MERCIER, J. NOTICE: Motions for reconsideration m us t be physically re ceived in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules October 19, 2018 In the Court of Appeals of Georgia A18A1212. BACON v. THE STATE. MERCIER, Judge. A jury found Sarah Bacon guilty of obstruction of a law enforcement officer (misdemeanor) and not guilty of simple battery. Bacon appeals, contending that the trial court erred by denying her motion for a directed verdict of acquittal on the obstruction charge. She argues that she could not be convicted of obstruction of a law enforcement officer because the officer, an off-duty municipal law enforcement officer, was working outside the municipality’s boundaries and thus was not engaged in the lawful discharge of his official duties when he attempted to arrest her. We agree and reverse. Viewed in the light most favorable to the verdict, Edenfield v. State, 293 Ga. 370, 371 (1) (744 SE2d 738) (2013), the evidence shows the following. C. R. was employed at an American Legion facility in Americus, in Sumter County, Georgia. On May 28, 2016, C. R. had a disagreement with Bacon, who was her co-worker, in the facility’s carport area. Officer J. B, who was a sworn police officer for the Plains Police Department and the Montezuma Police Department, was working security for the American Legion that evening. His work at the time did not involve the Plains or Montezuma police departments, and he was not a sworn officer with the Sumter County Sheriff’s Department or the City of Americus Police Department. Officer J. B. testified that when he exited the American Legion building and entered the facility’s carport area, he saw Bacon strike C. R. on the arm. Officer J. B. grabbed Bacon and told her she was under arrest, but Bacon “snatched away” from him. Officer J. B. told her again she was under arrest, and Bacon again pulled away from him. Bacon then “got into a defensive stance,” and Officer J. B. “bear hugged” Bacon, placed her against a car, handcuffed her and called for the Sumter County Sheriff’s Department to transport her to the sheriff’s office. Bacon’s cousin, J. R., testified that he witnessed part of the incident and that, when Officer J. B. was attempting to handcuff Bacon, the officer threatened to “throw [Bacon] on the ground”; J. R. implored the officer not to do so, and he did not. 2 Bacon was charged by accusation with obstruction of a law enforcement officer and simple battery.1 As to the obstruction of a law enforcement officer charge, the accusation alleged that Bacon: in Sumter County, . . . did knowingly and willfully obstruct [J. B.], a law enforcement officer with the Plains Police Department, in the lawful discharge of his official duties by snatching away from him several times, which made it hard for him to place her under arrest, in violation of the laws of the State of Georgia. The sole issue on appeal is whether the trial court erred by denying Bacon’s motion for a directed verdict of acquittal on the charge of obstruction of a law enforcement officer, when the officer was an off-duty municipal police officer working outside of his jurisdiction when he attempted to arrest her. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of 1 The accusation states that Bacon committed simple battery against “Sarah Bacon.” The arrest warrant affidavit names C. R. as the victim, and the evidence shows that the victim of that offense, if there was one, was C. R. In any event, Bacon was found not guilty of simple battery and our review does not involve the verdict as to that count. 3 law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict[.] Where the evidence demands a verdict of acquittal, the failure of a trial judge to so direct a verdict is reversible error. Howard v. State, 281 Ga. App. 797, 800 (3) (637 SE2d 448) (2006) (citations, punctuation and emphasis omitted). OCGA § 16-10-24 (a) (2015) provides in pertinent part: “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” “Consequently, as an essential element of a prosecution for this offense, the State must prove that the officer was in the lawful discharge of his official duties at the time of the obstruction.” Green v. State, 240 Ga. App. 774, 775 (1) (525 SE2d 154) (1999). A police officer is not discharging his lawful duties when he is making an unlawful arrest, and a person who resists an unlawful arrest does not hinder the officer in the lawful discharge of his official duties. Wagner v. State, 206 Ga. App. 180, 182-183 (424 SE2d 861) (1992) (reversing denial of motion for directed verdict of acquittal where defendant was charged with obstruction “by physically resisting a lawful arrest,” because State did 4 not show that the arrest being resisted was lawful). “[A] person has the right to resist an unlawful arrest.” Sidner v. State, 304 Ga. App. 373, 376 (3) (696 SE2d 398) (2010). OCGA § 40-13-30 provides: Officers of the Georgia State Patrol and any other officer of this state or of any county or municipality thereof having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this article, provided that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality unless such jurisdiction is given by local or other law. (Emphasis supplied.) Unless otherwise provided by law, “[n]o municipality may exercise any of the powers listed in subparagraph (a) of this Paragraph [e.g., police protection] or provide any service listed therein outside its own boundaries except by contract with the county or municipality affected.” Ga. Const. Art. IX, §II, Para. III (b). It is undisputed that Officer J. B. was an officer of an incorporated municipality (Plains, as charged, but also Montezuma, per trial testimony) and was off duty and beyond the corporate limits of the municipality when he attempted to arrest Bacon. The fact that he was off duty is not determinative because obstruction can be committed against a law enforcement officer who is off duty or working private 5 security. See Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009); Duncan v. State, 163 Ga. App. 148, 149 (1) (294 SE2d 365) (1982). However, Officer J. B. was an officer of an incorporated municipality, and he thus lacked power to make an arrest outside that municipality unless local or other law gave him such jurisdiction. See OCGA § 40-13-30. The State has not shown that any local or other law gave him such jurisdiction. The State concedes that “it may be true that as a municipal police office[r], outside of his jurisdiction, [Officer J. B.] did not have authority to arrest [Bacon],” but it asserts that: (1) because Officer J. B. witnessed a crime being committed, “he was . . . authorized as a private citizen to place [Bacon] into handcuffs and detain her until a local peace officer could assist him”; and (2) because law enforcement officers have a duty to maintain the peace 24 hours a day, regardless of whether they are on duty, municipal officers are authorized to perform their official duties even outside of their jurisdictions. 6 1. Citing OCGA § 17-4-60,2 the State contends that Officer J. B. was authorized as a private citizen to arrest Bacon outside of his jurisdiction because a crime was committed in his presence. But if he was acting as a private person effecting a citizen’s arrest, as opposed to acting as a law enforcement officer, he was without certain authority otherwise conferred only upon law enforcement officers. See generally Zilke v. State, 299 Ga. 232, 235-236 (787 SE2d 745) (2016). Nothing in the language of OCGA § 16-10-24 supports a conclusion that a person who resists an arrest by a private citizen commits the offense of obstruction of a law enforcement officer. In fact, the clear and unambiguous text of OCGA § 16-10-24 provides that obstruction is committed where a law enforcement officer is lawfully discharging his official duties. See generally Williams v. State, 299 Ga. 632, 633 (791 SE2d 55) (2016) (stating that, pursuant to the rules of statutory construction, if the statutory text is clear and unambiguous, we attribute to the statute its plain meaning). The State has not shown that OCGA § 16-10-24 applies where an off-duty municipal police officer is effecting a citizen’s arrest. 2 OCGA § 17-4-60 pertinently provides: “A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.” 7 2. The State asserts that “[t]here is no jurisdictional requirement to the general rule that a law enforcement officer has a duty to enforce the law and maintain the peace twenty-four hours a day[,]” and that “[t]his court has yet to set any jurisdictional limitation on this well-established rule.” Indeed, “[a] law enforcement officer has a full-time duty to maintain the peace.” In the Interest of M. M., 265 Ga. App. 381, 383 (1) (c) (593 SE2d 919) (2004) (footnote and punctuation omitted). However, OCGA § 40-13-30 specifically limits the arrest powers of municipal officers. Under the rules of statutory construction, “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” Williams, 299 Ga. at 634 (citations and punctuation omitted); see Mann v. State, 273 Ga. 366, 368 (1) (541 SE2d 645) (2001). And a criminal statute will be strictly construed against the State and in favor of the accused. State v. English, 276 Ga. 343, 349 (3) (578 SE2d 413) (2003). To meet its burden under OCGA § 40-13-30 of showing that a local or other law gave Officer J. B. arrest powers outside the municipality that employed him, the State relies upon the following cases, each of which involves obstruction of off-duty law enforcement officers who effected arrests to maintain the peace. See In the Interest of D. S., 295 Ga. App. 847, 848 (673 SE2d 321) (2009); In the Interest of M. 8 M., supra; Frayall v. State, 259 Ga. App. 286, 288 (2) (576 SE2d 654) (2003); Stryker, supra. The State’s reliance on those cases is misplaced, however, because none of the cited cases discusses OCGA § 40-13-30 and the authority of a municipal officer to make a lawful arrest outside the boundaries of the municipality. Although Zilke, supra, is not precisely on point because it involved the arrest powers of a campus police officer outside the geographical jurisdiction conferred by statute (OCGA § 20-3-72), we find the Supreme Court’s analysis in that case compelling. In Zilke, the Court recognized that “[p]ursuant to OCGA § 17-4-20 (a) (2) (A), a law enforcement officer may make a custodial arrest without a warrant if the offense is committed in such officer’s presence,” but, the Court reasoned, nothing in OCGA § 17-4-20 or OCGA § 17-4-23 (which pertinently permitted a law enforcement officer certain arrest powers when a motor vehicle operator committed a violation in his presence) “expands the statutorily-imposed jurisdiction of a campus police officer.” Id. at 235 (punctuation omitted). Notably, the Supreme Court in Zilke expressly disapproved cases holding that OCGA § 17-4-233 “authorizes a law 3 OCGA § 17-4-23 (a) pertinently provides that (1) a law enforcement officer may arrest a person by citation for motor vehicle violations provided the offense is committed in his or her presence, or (2) a law enforcement officer may arrest a person accused of a specified misdemeanor provided the offense was committed in the 9 enforcement officer, including a campus police officer, to make a custodial arrest outside the jurisdiction of the law enforcement agency by which he is employed.” Id. at 234-235 (footnotes omitted). Likewise, nothing in OCGA § 17-4-20 (a) (2) (A) – or any authority cited by the State – expands the statutorily-imposed jurisdiction of a municipal police officer. In fact, as set out above, Georgia’s Constitution expressly prohibits a municipality from exercising its police protection services outside its own boundaries except by contract with the affected county or municipality. Ga. Const. Art. IX, § II, Para. III (b). No such contract was shown here. In sum, municipal Officer J. B. had no power to arrest Bacon outside of the territorial limits of his jurisdiction; thus, he was not discharging his official duties when he tried to arrest her, and she could not be convicted of obstruction of an officer for resisting the arrest. See generally Ewumi v. State, 315 Ga. App. 656, 665 (2) (b) (727 SE2d 257) (2012) (suspect’s attempt to resist an unlawful arrest cannot form the basis for an obstruction conviction because officer was not engaged in the lawful discharge of his official duties). Inasmuch as the evidence demanded a verdict of acquittal, the officer’s presence. 10 trial court erred by denying Bacon’s motion. Thus, the conviction must be reversed. See generally Ewumi. Judgment reversed. Dillard, C. J., and Doyle, P. J., concur. 11	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1385 ARTHUR THACKER, Plaintiff - Appellant, versus BRADY SERVICES, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Paul Trevor Sharp, Magistrate Judge. (CA-03-1160-1) Submitted: September 27, 2005 Decided: September 29, 2005 Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Arthur Thacker, Appellant Pro Se. Kenneth Ralph Keller, CARRUTHERS & ROTH, PA, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Arthur Thacker appeals from the magistrate judge’s order* dismissing his action alleging employment discrimination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Thacker v. Brady Servs., Inc., No. CA-03-1160-1 (M.D.N.C. Mar. 2, 2005). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * The parties consented to the jurisdiction of the magistrate judge under 28 U.S.C. § 636(c) (2000). - 2 -	{ "pile_set_name": "FreeLaw" }
572 P.2d 763 (1977) Alvin E. MARTIN, and Alaska National Bank, Appellants, v. Florian MALDONADO, Appellee. Florian MALDONADO, Cross-Appellant, v. Alvin E. MARTIN and Alaska National Bank, Cross-Appellees. Nos. 3049, 3090. Supreme Court of Alaska. December 9, 1977. 765 Mary A. Nordale, Fairbanks, for appellants and cross-appellees. Allen McGrath, Graham & James, Anchorage, for appellee and cross-appellant. Before BOOCHEVER, C.J., and RABINOWITZ and CONNOR, JJ. OPINION RABINOWITZ, Justice. This appeal and cross-appeal arise from a dispute involving the breach of a contract to sell a laundry business. The superior court awarded Florian Maldonado damages plus interest, costs and attorney's fees. We affirm the judgment in all respects except for two portions of the damages awarded and the resultant adjustment of attorney's fees granted. In late 1967, Florian Maldonado and William Hagar entered into negotiations with Alvin Martin and Phyllis Martin to purchase the Martins' White Swan Laundry in Fairbanks. Maldonado is of Mexican descent and has difficulty reading and speaking English; he had been an employee at White Swan even before the Martins' acquisition of the laundry in 1960. Hagar had worked for Mr. Martin at another laundry in 1966 and began work with dry cleaning at White Swan in October 1967. On February 7, 1968, the parties entered into a written agreement which had been prepared for Martin by a local attorney, whereby the Martins, who were the sole shareholders of White Swan Laundry, Inc., agreed to sell all their stock to Maldonado and Hagar.[1] By 766 its terms the agreement was to be effective as of January 1, 1968. The document was read aloud to the parties and its various provisions were discussed before it was executed. Thereafter, Hagar and Maldonado encountered numerous difficulties in managing White Swan. Although business was growing in volume, insufficient cash flow hampered the laundry's operation. They also had personal problems working together. Martin later drafted a document entitled "Amendments to the Contract" which purported to extend the "option to purchase" until September 1, 1969, to give Martin greater control over the operations, and to create a "buy-out" feature should either Maldonado or Hagar want to leave the partnership. The agreement was signed by Martin, Hagar and Maldonado and given an effective date of November 1, 1968. Because of the White Swan's financial difficulties, Hagar and Maldonado were unable to pay Martin the interest payment for January 1969 as required by the agreement of January 1, 1968. Martin told both men that he would let the interest payments go for awhile. The difficulties surrounding White Swan's operation became so serious that Hagar sent Maldonado a letter on May 22, 1969, resigning his "position as manager and co-owner of White Swan Laundry." Five days later, Martin told Maldonado that he had decided to let Hagar have the business and would pay $6,000 to Maldonado. Maldonado subsequently sent Hagar a letter stating that Maldonado interpreted the May 22 letter as a termination of Hagar's interest in the laundry and that he was exercising his 90-day option to purchase Hagar's interest in the partnership for $6,650. Martin then sent Maldonado a letter dated June 4, 1969, demanding payment of $46,000 in cash by June 11, 1969, "in order to reconsider or consider a possible sale to Florian Maldonado." Martin stated: Due to conditions, I find myself in this position: Based on money owed (past due and payable) myself (Al Martin) by White Swan Laundry, I find it necessary to foreclose on contract dated 1-1-68 within seven days of the date of this letter. After the deadline had passed, Martin sent Maldonado another letter which contained the following: Due to your inability to conform to my demands in the letter to you dated June 4, 1969 (copy enclosed), White Swan has been formally and legally foreclosed upon as of June 11, 1969. I am sorry for this action. Maldonado filed a complaint against Hagar, Alvin Martin and Phyllis Martin. After numerous amendments and motions had been made, the only remaining defendant was Alvin Martin and the only issue to be litigated was Maldonado's breach of contract claim. Martin counterclaimed for approximately $12,000 on a theory which is not apparent on the face of the counterclaim. Martin's counterclaim was revised during trial and was increased to $35,400. After a nonjury trial, briefing and argument, the superior court entered judgment in favor of Maldonado for $72,354.82 in damages plus interest, costs and $7,500 in attorney's fees. This appeal and cross-appeal followed. Appellant Martin raises a variety of issues going to the meaning of the agreement, mistake regarding the document executed, breach of the contract, amount of damages awarded, and alleged damages owing to him in his counterclaim. Cross-appellant Maldonado contends that the superior court erred in calculating damages. Because these issues are so diverse, we will deal with them seriatim. Martin contends that the contract was ambiguous and that he "has a right to reform its language to conform to the parties' intentions," i.e., that the contract should be interpreted as an option contract rather than as a contract for purchase and sale. However, Maldonado was suing only 767 for damages; recovery would be the same whether the agreement is regarded as a contract of purchase and sale or an option contract. As Professor Simpson has noted: Since the damages for breach of the collateral contract to keep the offer open will in any case equal the damages for breach of the principal contract had it been consummated, where damages is the remedy chosen by the aggrieved party it can make no difference to him if the collateral contract is regarded as the only contract capable of enforcement.[2] In addition, the facts of the instant case permit this agreement to be interpreted only as a contract of purchase and sale.[3] This court has previously stated that it will apply an objective standard to contract interpretation,[4]i.e., the agreement is interpreted in accordance with the reasonable expectations of the parties.[5] To ascertain the parties' reasonable expectations, we look to the language of the agreement and to relevant extrinsic evidence.[6] Although the agreement at issue in the case at bar contains some rather unusual provisions, it would be tantamount to a complete rewrite on our part to change the existing document to a lease with option to purchase. Our review of the record has persuaded us that there is no evidentiary basis calling for such a total revision. The superior court was correct in holding that the parties could not have reasonably understood the agreement to be only a lease and option to buy.[7] 768 Also without merit is Martin's contention that the amendments of November 1, 1968, modified the original agreement, thus making it a lease with option to buy.[8] Even assuming sufficient consideration for the amendments,[9] their provisions contain nothing which would change any part of the original contract except its date. The basic "sale" character of the initial agreement remained unaffected.[10] Given the parties' confusion about the meaning of the word "option,"[11] we hold the effect of the amendment was to enlarge the time in which the down payment was to be made. Accordingly, we conclude that the superior court did not err in its treatment of the amendments. Martin contends that the superior court erred in holding that there was no mutual mistake. A mutual mistake is normally one that is common to all parties to the agreement and reformation is applied to conform the agreement to the parties' intentions.[12] Here the superior court accepted Maldonado's testimony that he believed the agreement was for the purchase and sale of stock in White Swan Laundry not for a lease with option to buy. Since our review of the entire record convinces us that the superior court's controlling findings on this issue were not clearly erroneous, we find no merit in this specification of error. Martin argues further that the agreement should be rescinded because of his unilateral mistake.[13] Relief grounded on unilateral mistake is appropriate when 769 enforcement of the contract would be unjust.[14] As stated by Professor Corbin: There is practically universal agreement that, if the material mistake of one party was caused by the other, either purposely or innocently, or was known to him, or was of such character and accompanied by such circumstances that he had reason to know of it, the mistaken party has a right to rescission.[15] (footnote omitted) Since the contract in this case was drafted at the request of Martin's accountant, Maldonado cannot be said to have "caused" the mistake. The superior court specifically found that Maldonado was not aware of any mistake on the part of the Martins. Thus, if Martin is to be granted rescission it must be because Maldonado should have known of the error. However, the superior court also found that Maldonado had no reason to suspect that the contract did not express the intent of Martin. Once again our reading of the record does not leave us with the conviction that either of these findings of fact is clearly erroneous. Thus, the court's decision to deny rescission must be upheld. Martin also argues that Maldonado was in material breach of the contract due to a variety of alleged failures.[16] Assuming without deciding that there was a material breach, the record adequately supports the superior court's finding that Martin told Maldonado and Hagar the interest payments could be "let go" for awhile and that Martin did not demand payment from Maldonado until he sent the letter of June 4, 1969, to Maldonado. Martin's actions constituted a waiver which excused Maldonado's non-performance at least until proper demand was made. The doctrines of election and waiver are firmly established in the law. Professor Williston has stated: The principle is general that wherever a contract not already fully performed on either side is continued in spite of known excuse, the defense thereupon is lost and the injured party is himself liable if he subsequently fails to perform, unless the right to retain the excuse is not only asserted but assented to.[17] (footnotes omitted) Martin could have asserted Maldonado's breaches had he made a proper demand. At the point he made such demand, Maldonado would have been put on notice that Martin now considered time to be of the essence and was no longer electing to continue the contract.[18] The notice to Maldonado, however, demanded payment of $46,000, even though the only amount which could have been legitimately demanded under the terms of the contract was the interest.[19] Thus, no proper demand for payment 770 was made; and the superior court's holding that Martin had waived Maldonado's breach must be affirmed. Appellant Martin additionally contends that the inability of Maldonado to perform, i.e., the insolvency of the corporation and Maldonado's alleged failure to offer evidence of his ability to perform in the future, entitled Martin to terminate the subject contract. Even if the rule sought by Martin were applied,[20] there has been no adequate showing of Maldonado's inability to perform. Maldonado proved to the satisfaction of the superior court that he could have cured the breach on proper demand. Business volume was increasing, and losses were decreasing.[21] In such circumstances, prospective inability to perform on Maldonado's part was not established.[22] Martin argues that the superior court's findings 32 and 55 are clearly erroneous and that conclusion of law 21(a) is incorrect. Finding 32 indicates that the Martins were paid $72,354.82 by the purchasers.[23] Finding 55 includes a statement that the cost of completing the contract was only $226,681.38.[24] Martin contends a larger amount 771 was due on the contract and a sum smaller than $72,254.82 had been paid. He also objects to Conclusion of Law 21(a) which indicates Maldonado's payment of $72,354.82.[25] Based on our reading of the entire record, we affirm Finding 55's conclusion that the cost of completing the contract exceeded the fair market value of White Swan. However, we think the cost of completion figure ($226,681.38) is too low because the superior court's calculation of the amount paid by Maldonado was too high; the reasons for our conclusion are set forth below. That error does not affect the correctness of Finding 55, and we conclude that Finding 55 was not clearly erroneous. The superior court's Findings 31 and 32 are in conflict in light of the evidence presented.[26] Finding 31 indicates that no lump sum payment was made to the Martins at the end of 1968. Finding 32 can be correct only if a sum representing profits was paid at the end of 1968 and was included in the $72,354.82 figure. Accordingly, Findings 31 and 32 are in conflict in light of the evidence presented. We hold that Finding 32 is clearly erroneous for reasons discussed below. Finding 31 and corrected Finding 32 require an adjusted calculation of the dollar amount appearing in Conclusion of Law 21(a). The superior court's finding that Maldonado and Hagar had paid $72,354.82 to Martin under the contract was based on figures shown in the books and records of the White Swan Laundry. However, Sharon Pendley, the company's bookkeeper testified that the figure was based on incorrect entries, i.e., that $20,704.82 the amount entered for the down payment based on net profit for 1968 should not have been entered.[27] Pendley explained that she had miscredited these amounts because she had misunderstood the contract of sale. Based on her revised reading of the contract, the following amounts should have been applied as reducing the contract indebtedness: Weekly payment of $350.00 312 Wendell St. rental ($100/month) Ft. Wainwright contract ($417/month) She also testified that Martin was paid a total of $21,800. She did not clarify what credited items comprised the difference between the $51,650 figure[28] and the $21,800 figure, except to say that she had credited the payments to the American Laundry Machinery Company and the Small Business Administration on long-term indebtedness to the Martin contract. Since the $20,704.82 entered as down payment representing net profit was never made, the superior court's award of damages insofar as it includes this sum is inaccurate and must therefore be modified. The superior court awarded $72,354.82 as the amount of "all moneys paid to the Martins under the contract." Among the items which apparently went into this figure were payments of long-term indebtedness which Maldonado and Hagar had 772 expressly assumed in the contract. We have concluded that on the facts appearing in this record the superior court's inclusion of a portion of such payments was correct. Except where specific contract provisions show that such payments should be considered part of the purchase price, long-term indebtedness of a closely held corporation is not a cost of performing the contract for purchase of its stock. This is because the contract for sale of stock in a closely held corporation may provide for a transfer of stock without specifying that payment of long-term indebtedness is part of the purchaser's obligation. In such situations the corporation remains liable for its obligations, but the debts are owed by the corporation because of its relationship with creditors rather than by the buyer because of the purchase agreement. Repayment of the indebtedness is then merely a cost of the overall operation. However, where the contract has specified that payment of such indebtedness is part of the contract price, a different situation exists; it is appropriate to include the payments as part of the buyer's cost of completing the contract. Since the agreement in the case at bar specifically required the buyers to repay long-term indebtedness as part of their performance, we have determined that the superior court properly considered such payments in calculating the amount paid by Maldonado under the contract. However, an increase in Martin's equity in White Swan was produced only by that portion of the required monthly payment on each debt which corresponded to reductions of principal. The other payment portions representing interest are as much an expense of doing business as any other incurred in operating White Swan Laundry. Such payments reflect the cost of the corporations' using long-term loans to generate income after Maldonado's purchase; during the same period, Maldonado received the benefit of White Swan's income derived in part from such loans. Accordingly, we conclude that only the amount paid on principal should be recoverable. On remand, it will be necessary for the superior court to calculate the portion of monthly payments attributable to principal. By way of summary, we conclude, based upon the superior court's findings of fact (omitting erroneous Finding 32), that the award of damages to Maldonado properly included the full book amount paid, less (1) the "net profit" figure and (2) the portion of payments on long term indebtedness representing interest. Thus, the superior court's award of damages should be corrected by subtracting from $51,650 those portions of payments made to the American Laundry Machinery Company and the Small Business Administration which correspond to interest on long-term indebtedness.[29] In light of our holding that the amount of damages must be redetermined, the superior court's reconsideration of attorney's fees is also necessary. In regard to the superior court's award of damages in general, Martin also argues that the amount of damages should be reduced by one-half, since the contract called for Maldonado and Hagar to "own all of the said stock jointly, share and share alike." We note that Hagar's letter of May 22, 1969, notified Maldonado that he "resign[ed] [his] position as manager and co-owner of White Swan Laundry." Hagar's letter of June 4, 1969, was an even clearer repudiation of the partnership.[30] The partnership had been terminated prior to the 773 time of the breach; Maldonado did not receive Martin's letter dated June 4, 1969, until June 5. Accordingly, the superior court was correct in awarding the full amount of damages to Maldonado. Martin counterclaimed for damages in the superior court based on a variety of items, including repairs to equipment ($18,000), corporate debts owed to Martin ($11,400), and damages for Maldonado's breach of the agreement ($6,000).[31] The general rule is that a shareholder has no personal or individual right of action against third persons for acts producing injury to the corporation and thereby making the stock less valuable, since the harm suffered by the individual shareholder is merely incidental to the wrong suffered by the corporation.[32] Martin recognizes this rule, but asserts that he falls within an exception because the injuries suffered were also personal ones arising out of a special duty owed to the shareholder by the wrongdoer.[33] We conclude that no error was committed in denying recovery on the counterclaim. With respect to the $11,400 of debts owed to Martin, the record adequately supports the superior court's conclusion that the money was owed to Martin solely by the corporation if it was owed at all. As to the $6,000 claim, Martin failed entirely to prove what constituted the claim. The claim for $18,000 in damages for repair of machinery at White Swan is also flawed. There is nothing in the relationship between Martin and Maldonado which would allow Martin to sue individually for this alleged corporate harm, i.e., no special duty was owed to Martin by Maldonado which would bring Martin within the exception noted previously.[34] Maldonado contends on cross-appeal that his damages should have been based upon the difference between the fair market value of the White Swan Laundry and the cost of complete performance; his first specification of error attacks the superior court's finding that the evidence failed to establish that the fair market value of White Swan Laundry exceeded the cost of complete performance. He argues that the fair market value of the laundry as determined by the parties on the date of sale was $407,136.31, less the assumption of long-term debt, for a total of $299,036.20. He also notes that the value of the laundry had increased because of increased production and a turn-around in the earning figures. Thus, he concludes, the court's finding that on the date of breach the laundry was essentially valueless is clearly erroneous; and, therefore, he should be entitled to a larger amount of damages than the amount awarded by the superior court. 774 The testimony adduced at trial on the issue of the fair market value of White Swan Laundry on the date of breach came primarily from two experts, Robert L. Murray, a certified public accountant for Maldonado, and Benjamin M. Perles, an economist for Martin. Murray derived a fair market value of $640,000 based on a combined cash flow and net income capitalization analysis. The court found that such a value was not believable and that it was based on insufficient data.[35] Perles considered several possible methods for valuing the business: capitalized earning power, good will or going concern value, market value, investment value, book value, cost less depreciation, reproduction costs and substitution costs. Since some of these methods did not fit the situation, not all were employed. Perles concluded that the laundry business lacked value under each separate method of analysis he applied. He concluded that "[b]y any reasonable economic standard, the firm must be considered valueless as of [the date of breach]." He qualified that statement by saying that it did have value to a person willing to gamble his or her time and money. The weight to be accorded an expert's opinion is within the province of the trier of fact.[36] The amount remaining to be paid to Martin under the contract was at least $226,000. Other than Murray's testimony, which was not considered persuasive, the only other testimony of value at the time of breach was an affidavit submitted early in the case by Martin (in opposition to appointment of a receiver) in which he stated "my wife and I have an interest in excess of $400,000 in the business." There was no evidence adduced at trial that the parties had negotiated the contract price. Perles testified that in his opinion the $407,000 contract price was excessive when the contract was executed. The business showed losses totalling over $89,000 in the preceding three years. In such circumstances, the agreed price can hardly be viewed as a reasonable approximation of White Swan's value. Where a buyer makes an exceptionally bad bargain, the market value at date of breach could easily be lower than the cost of performance even though business production had increased during the interim. Thus, we hold that the superior court's finding as to value was not clearly erroneous. Maldonado also contends that the court erred in calculating the amount of damages to be awarded as measured by his actual expenses of performance. He argues that an additional $30,800 should be added to account for the payments on long-term indebtedness. Maldonado has apparently overlooked Pendley's testimony that the $72,000 amount included payments for long-term indebtedness. We have already discussed the inclusion of the payments for long-term indebtedness and have approved a portion of this item as part of the damages properly recoverable by Maldonado. Maldonado also notes that the superior court did not award an amount for unpaid labor. As Professor Corbin has noted, such an amount is often awarded when damages are measured by the amount spent in part *775 performance.[37] Nevertheless, Maldonado offered no proof as to what such amount should be. He did not testify that his duties had changed greatly after the purchase of White Swan or that he was being paid less than the value of his services. We conclude that the court below did not commit error. The case is remanded to the superior court for entry of judgment in accordance with this opinion and for redetermination of attorney's fees. In all other respects, the superior court's judgment is Affirmed. BURKE and MATTHEWS, JJ., not participating. NOTES [1] The key provisions of the agreement were outlined by the superior court in its findings of fact: According to the express terms of the written agreement the MARTINS agreed to sell all of their shares of stock in the WHITE SWAN LAUNDRY (representing 100% ownership) to MALDONADO and HAGAR for a `total sales price of $407,136.31.' The `total sales price' included the amount of an obligation owed to the American Laundry Machinery Company ($63,100.00) and one owed to the Small Business Administration ($45,000.00). It is not clear from the evidence whether the amounts owed to the American Laundry Machinery Company and/or the Small Business Administration were corporate debts owed by the WHITE SWAN LAUNDRY or personal obligations owed by the MARTINS, either as principals or guarantors for credit extended to the corporation. Under the original contract of sale MALDONADO and HAGAR agreed to: (a) Assume and keep current the $1,553.00 monthly payments on the debt owed to the American Laundry Machinery Company. (b) Assume and keep current the $255.00 monthly payments on the debt owed to the Small Business Administration. (c) During 1968, make weekly payments of $350.00 to the MARTINS totalling $18,200.00. (d) During 1968, collect, for the MARTINS, monthly rental payments of $100.00 on a house located near the WHITE SWAN LAUNDRY at 312 Wendell Street, Fairbanks, Alaska. (e) During 1968, collect for the MARTINS, monthly payments of $417.00 derived from an obligation described as the `Fort Wainwright Contract.' (f) Make a lump sum payment, at the end of 1968, to the MARTINS, equal to the basic net profit of the corporation (WHITE SWAN) which was agreed to be the net profit before depreciation but including payments on the obligations to the American Laundry Machinery Company and the Small Business Administration. The obligations described in (c), (d), (e) and (f) of the foregoing paragraph were, according to the written contract, to `be considered as a down payment on the $299,036.20 portion of the total purchase price due Alvin and Phyllis Martin,' with the balance thereof to be paid as follows: Payments of $350.00 per week, commencing January 1, 1969, plus interest at 4% per annum on the unpaid balance to be computed and paid monthly. Such weekly payments were to continue until the obligation to the American Laundry Machinery Company, assumed by MALDONADO and HAGAR under the agreement, had been paid off at which time the assumed payments to the SBA would increase by $1,553.00 per month until that debt was likewise paid off. Thereafter, the sellers would be paid $1,553.00 per month until the total purchase price was satisfied. [2] L. Simpson, Contracts § 26, at 35 n. 33 (2d Ed. 1965). [3] Martin argues that the agreement was intended to create a lease with option to purchase. In this regard, the superior court found: The written agreement clearly contemplated a sale by the MARTINS of their interest in the WHITE SWAN LAUNDRY. The court finds it impossible to believe that the MARTINS or any other party to the written agreement understood such agreement to be only a lease and option to buy. All parties to the written agreement understood and intended it to be a contract for the sale of the MARTINS' interest in the WHITE SWAN LAUNDRY to MALDONADO and HAGAR. The written contract correctly states the agreement of the parties. If there was any mistake as to the meaning of the contract, to the effect that it contemplated a lease/option rather than a sale of their interest, such was a unilateral mistake on the part of the MARTINS. ..... Despite the use of the term `option' therein the court is not persuaded by such evidence or the testimony of any witness that the parties ever intended their agreement to be anything other than a contract of sale. The superior court concluded: The contract was not an option agreement. ..... The November 1968 amendment of the contract did not convert it to a lease and option to buy. Review of the record persuades us that the superior court's findings on this point were not clearly erroneous, and that its legal conclusions were correct. [4] National Bank of Alaska v. J.B.L. & K. of Alaska, Inc., 546 P.2d 579, 584-85 (Alaska 1976). [5] Stordahl v. Government Employees Ins. Co., 564 P.2d 63, 65 (Alaska 1977). [6] Id. at 66; Wessells v. State, 562 P.2d 1042, 1052, n. 39 (Alaska 1977). See Tsakres v. Owens, 561 P.2d 1218, 1223 (Alaska 1977) (concurring opinion of Boochever, C.J., joined by Rabinowitz, J.). [7] The superior court's findings of fact included the following: The terms and conditions of the written agreement are clear and unambiguous insofar as they relate to the character of the transaction agreed to by the parties. The written agreement clearly contemplated a sale by the MARTINS of their interest in the WHITE SWAN LAUNDRY. The court finds it impossible to believe that the MARTINS or any other party to the written agreement understood such agreement to be only a lease and option to buy. The superior court also found that the agreement expressed the intent of the parties. Thus, it is apparent that the trial court did not believe the testimony of the witnesses for Martin. A finding of fact is reversible only if "clearly erroneous," i.e., although there may be evidence to support it, the reviewing court is left with the definite and firm conviction on the entire record that a mistake has been committed. E.g., State v. Abbott, 498 P.2d 712, 727 (Alaska 1972); Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971). We have reviewed the entire record and believe there is adequate evidentiary support for the superior court's conclusion and are of the further view that this conclusion could have been based on the superior court's evaluation of the demeanor of the witnesses. Thus, we are not left with a definite and firm conviction that a mistake has been committed. [8] In paragraph 1 of the amendments it is stated: Option to purchase White Swan Laundry, Contract Dated 1/1/68, to be extended to 9/1/69. The superior court found as a matter of fact: Despite the use of the term `option' therein the court is not persuaded by such evidence or the testimony of any witness that the parties ever intended their agreement to be anything other than a contract of sale. The court held: The November 1968, amendment of the contract did not convert it to a lease and option to buy. [9] In Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 94 n. 19 (Alaska 1974), this court noted that consideration was required for an amendment or modification of a contract not for the sale of goods. As announced in Swindel v. Kelly, 499 P.2d 291, 296 n. 17 (Alaska 1972): The usual test for valuable or sufficient consideration is whether the promise involved a detriment incurred by the promise[e] or a benefit accruing to the promissor at his request. (citations omitted) [10] The terms of the original contract that are not changed by the modification or amendment continue and become a part of the substituted contract, except where inconsistent with the modification. See L. Simpson, Contracts § 97, at 193 (2d ed. 1965). [11] Mrs. Martin's interpretation would have created not a lease with option to buy but a lease with invitation to offer to purchase. Hagar explained that the January 1, 1968, document was an option because the word is used in the first full paragraph of page 2 with respect to the partnership survivorship buy-out provision. Hagar did not regard the word "option" in its legal connotation (irrevocable offer). He viewed the one year period as a trial period for Maldonado and him to prove themselves. [12] See, e.g., 13 W. Jaeger, Williston on Contracts §§ 1535, 1547 (3d ed. 1970). The Restatement of Contracts § 504 (1943) states, in part: [W]here both parties have an identical intention as to the terms to be embodied in a proposed written conveyance, assignment, contract or discharge, and a writing executed by them is materially at variance with that intention, either party can get a decree that the writing shall be reformed so that it shall express the intention of the parties, if innocent third persons will not be unfairly affected thereby. [13] Martin does not address the issue of damages had the agreement been rescinded. According to Professor Corbin, the parties should be restored to their original positions. 3 A. Corbin, Contracts § 607, at 662 (1960). In this case, that was essentially the measure of damages, since Maldonado was awarded only his expenses of performance. Thus, even if the court were to rule that the contract should be rescinded for unilateral mistake, the matter would not be reversed. [14] 3 A. Corbin, Contracts § 610, at 696 (1960). [15] Id. at 692. [16] Martin maintains: He [Maldonado] was five months behind in his interest payments, he failed to pay the first ten weekly payments, and failed to pay installments on long term indebtedness (SBA and American Laundry loans), he failed to maintain and keep operable the equipment in the laundry and he attempted to abandon the premises by stating he was going on a fiveweek vacation in peak season. [17] 5 W. Jaeger, Williston on Contracts § 688, at 300 (3d ed. 1961). [18] See, e.g., Dempsey v. Stauffer, 312 F.2d 360, 362-63 (3d Cir.1962); Lopez v. Bell, 207 Cal. App.2d 394, 24 Cal. Rptr. 626, 629 (1962); Denkman Lumber Co. v. Morgan, 219 Miss. 692, 69 So.2d 802, 810 (1954); Finn v. Glick, 42 N.J. Super. 514, 127 A.2d 204, 206-07 (1956). See also Dillard v. Ceaser, 206 Okl. 304, 243 P.2d 356, 358 (1952). [19] The superior court's Finding 38 listed the items within the $46,000 total demanded by Martin: Martin's costs for machinery rehabilitation $15,000.00 Martin's costs for service rendered by a Mr. Temlin 1,500.00 Martin's costs for a fire alarm system 1,500.00 Martin's costs for animal protection 1,000.00 Interest owed and past due 6,000.00 Moneys owed and past due to Coin King 1,500.00 Moneys owed Martin for sale of two Milnor machines 1,500.00 Moneys owed Martin for sale of three Speed Driers 900.00 Moneys owed Martin for sale of Water Softner 500.00 Moneys owed Martin for 250 cases of hangers 3,000.00 Six months principal payment in advance 9,100.00 Six months interest payment in advance 4,500.00 __________ TOTAL DEMAND $46,000.00 In Finding 42, the superior court further noted: On the date of MARTIN'S demand the amount of interest past due and owing under the contract was substantially less than the $6,000.00 amount demanded, being only $4,000.00. [20] Although we have rejected Martin's contention based upon his failure to show that Maldonado would have been unable to perform, we do not adopt the rule suggested by Martin. Professor Williston notes that a party may be excused from performing "[i]f it is clear that one party to a contract is going to be unable to perform... ." 11 W. Jaeger, Williston on Contracts § 1308, at 100 (3d ed. 1968) (footnote omitted). Martin did not cease performing; instead, he attempted to terminate the contract. Rather than approving a rule which allows termination when one party to an executory contract is insolvent and credit has been extended, we think the better rule would permit the other party to suspend performance until security or assurance is given. See L. Simpson, Contracts § 166, at 342 (2d ed. 1965). For example, in contracts for the sale of goods, a party who has reasonable grounds for believing that the other party will not be able to perform, may demand adequate assurances and suspend performance until assurances are given. U.C.C. § 2-609, AS 45.05.178. However, such a rule would not have benefitted Martin on the instant facts; except for placing the stock in escrow, he had no further contractual duties to perform. Northern Corp. v. Chugach Elec. Ass'n, 518 P.2d 76, modified on rehearing, 523 P.2d 1243 (Alaska 1974), cited by Martin in support of his "impossibility" argument, recognized the doctrine of "commercial impracticability," i.e., a party may be discharged from his or her duty to perform under the contract "if the costs of performance would be so disproportionate to that reasonably contemplated by the parties as to make the contract totally impractical in a commercial sense." 518 P.2d at 81. The situation in the case at bar does not resemble a case of commercial impracticality. [21] Martin did show that White Swan was insolvent in both the bankruptcy and accounting senses. However, Maldonado was the contracting party rather than White Swan; he was not shown to be insolvent. [22] As Professor Corbin has noted, proof of insolvency alone is not sufficient to establish prospective inability to perform. 6 A. Corbin, Contracts § 1261, at 38-39 (1962). [23] Finding 32 reads: Between January 1, 1968, and May 31, 1969, MALDONADO and HAGAR paid $72,354.82 to the MARTINS under the contract of sale. [24] Finding 55 reads: Assuming that MALDONADO'S cost of completing the contract was only $226,681.38 (and not $334,781.49 as it would have been if he owed a personal obligation to the MARTINS to pay off the $45,000.00 owed to the Small Business Administration and the $63,100.11 owed to the American Laundry Machinery Company) the proof fails to establish by a preponderance of the evidence that the fair market value exceeded that amount. Quite the contrary, the proof tends to establish that the cost of completing the contract far exceeded the fair market value of the WHITE SWAN LAUNDRY. [25] Conclusion of Law 21(a) states that Maldonado is entitled to an award of damages in the amount of $72,354.82. [26] Finding 31 reads: There was no lump sum payment made to the MARTINS at the end of 1968, of the basic net profits of the corporation, because there was no net profit. Finding 32 appears in note 23, supra. [27] The superior court found that the "down payment" was to consist of four separate items, one of which was to be the corporation's basic net profit for 1968 (i.e., net profit before depreciation including payments on obligations to the American Laundry Machinery Company and the Small Business Administration). See note 1, supra. Each testifying witness who had knowledge of the transactions beyond what was recorded in the books stated that the $20,704.82 had not been paid. The reason for it not being paid was that no net profit for 1968 remained when it was calculated according to the contract. The superior court also found that no net profit existed. [28] The $51,650 figure represents the difference between the $72,354 figure shown on the books to have been paid, and the $20,704 entered for the 1968 net profit which was not actually paid. [29] The $51,650 figure is derived in the following manner: Contract amount $299,036. Less: Book amount owing on contract 226,681.38 ___________ Book amount paid 72,354.82 Less: Net profit figure 20,704.82 ___________ $ 51,650.00 [30] In Finding of Fact 36, the superior court noted: On June 4, 1969, HAGAR wrote to MALDONADO indicating that he did not want to sell his equity in the WHITE SWAN but that his `resignation was tendered to disassociate [himself] with [MALDONADO];' HAGAR apparently abandoning his interest in the contract and the WHITE SWAN LAUNDRY. Hagar's letter of June 4, 1969, should not be confused with Martin's letter dated June 4, 1969. [31] The superior court denied any recovery on the counterclaim, finding (1) Martin failed to establish by a preponderance any facts showing a right of recovery; (2) Martin's expenditures, if made, were performed for the corporation without any agreement, express or implied that Maldonado would be personally liable; (3) the damage alleged was done to the corporation or to corporate property; and (4) Martin had not demonstrated a theory under which he was entitled to recover damages on his counterclaim. [32] E.g., Sutter v. General Petroleum Corp., 28 Cal.2d 525, 170 P.2d 898, 900-01 (1946); Weiss v. Northwest Acceptance Corp., 274 Or. 343, 546 P.2d 1065, 1069 (1976); Annot., 167 A.L.R. 279, 280 (1947). [33] The exception is recognized in, e.g., Schaffer v. Universal Rundle Corp., 397 F.2d 893, 896 (5th Cir.1968), and Sutter v. General Petroleum Corp., 28 Cal.2d 525, 170 P.2d 898, 901 (Cal. 1946). See also Annot., 167 A.L.R. 279, 285 (1947). [34] The rule against individual shareholder suits also applies where a single individual is the sole stockholder unless there is a violation of a duty owed directly to him. Schaffer v. Universal Rundle Corp., 397 F.2d 893, 896 (5th Cir.1968). We conclude that protection of White Swan's creditors demands application of the general rule. That is, any damage recovery should go directly to the corporation; a shareholder's derivative suit or a direct corporate suit would thus be required. [35] Murray testified that White Swan's intrinsic value on June 1, 1969, was $640,000. The superior court's Finding 50 indicates that Murray had valued the laundry at $646,000 as of June 4, 1964. Despite these discrepancies, the record and findings of fact demonstrate that the superior court assessed the expert testimony in relation to the date of breach and found that such a large estimated value was not believable. The $6,000 variation between Murray's testimony and Finding 50 could not have affected the superior court's additional finding that White Swan Laundry was essentially valueless on the date of breach. Finding 51 explains: Such evidence [i.e., Maldonado's evidence of value] was based on insufficient data to permit this court to rely on the opinion of plaintiff's expert; the court considers such evidence extremely unreliable and speculative in nature. [36] State v. Phillips, 470 P.2d 266, 272 & n. 18 (Alaska 1970). See Haisley v. Grant, 486 P.2d 367, 370 (Alaska 1971); see also Early v. United States, 474 F.2d 756, 758 (9th Cir.1973); Davis v. Chism, 513 P.2d 475, 485 (Alaska 1973). [37] 5 A. Corbin, Contracts § 1031 (1964).	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Williams, 2011-Ohio-4126.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 96244 STATE OF OHIO PLAINTIFF-APPELLEE vs. LARRY M. WILLIAMS DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-517939 BEFORE: Stewart, P.J., Celebrezze, J., and Sweeney, J. RELEASED AND JOURNALIZED: August 18, 2011 ATTORNEY FOR APPELLANT James R. Willis 323 W. Lakeside Avenue 420 Lakeside Place Cleveland, OH 44113-1009 ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: William Leland Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, P.J.: {¶ 1} Defendant-appellant, Larry Williams, appeals from his convictions for possession of drugs, drug trafficking with a schoolyard specification, tampering with evidence, and possession of criminal tools. Williams complains that: (1) his rights guaranteed by the federal and state constitutions were violated when the trial court denied his Batson objections, (2) the court erred when denying his motion to suppress, (3) insufficient evidence was offered by the state to support the schoolyard specification, and (4) the evidence was insufficient as a matter of law to support his convictions. {¶ 2} Vice detectives from the Cleveland Police Department’s Second District received a tip from a confidential reliable informant (“CRI”) that “Jose” was engaged in drug trafficking, and then organized and monitored a telephone call from the CRI to “Jose” to arrange a transaction for the sale of crack cocaine. The CRI and “Jose” agreed upon a rendezvous point. The officers ensured that the CRI was free of contraband, provided “buy” money, and staked out the prearranged meeting point. {¶ 3} A short time later, when Williams and co-defendant John Jones arrived at the agreed upon location by automobile, the CRI approached and subsequently entered the back seat of the vehicle. The vehicle, while under surveillance, circled the block. The CRI, after exiting the vehicle, used a prearranged signal to communicate to the detectives that the drug purchase had taken place. The CRI then provided the detectives the illegal narcotics and additionally informed them that front seat passenger “Jose” still possessed a sizable quantity of crack cocaine. {¶ 4} When Williams and Jones drove away from the area where the transaction occurred, the detectives followed. Police takedown units halted the vehicle several blocks away. Williams began flinging crack cocaine from the front passenger car window onto the street and over the edge of a bridge. Williams and Jones were taken into custody, and the ensuing search revealed “buy” money in their possession along with several cellular telephones. Additionally, numerous crack rocks were recovered adjacent to the vehicle and below the bridge, having a probable street value of around $2,000. {¶ 5} Williams first argues that the trial court deserted its responsibility as gatekeeper by not requiring the prosecutor to disprove the presumption of racial discrimination when he repetitively used peremptory strikes against black jurors, and this in turn resulted in a deprivation of his federal and state constitutional rights. He contends that the prosecutor offered no genuine race-neutral reasons for striking African-American jurors. {¶ 6} In order to establish purposeful discrimination in the exercise of peremptory challenges, a defendant must show that he is a member of a cognizable racial category, that the prosecutor has utilized peremptory challenges during jury selection to eliminate members of defendant’s race, and that the facts and other related circumstances raise a presumption of resolute prejudice. Batson v. Kentucky (1986), 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69. The defendant is permitted to rely on the belief that peremptory challenges are tantamount to a jury selection procedure that allows “those to discriminate who are of a mind to discriminate.” Avery v. Georgia (1953), 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244. {¶ 7} The trial court should take into account all relevant circumstances when deciding whether defendant has accomplished the necessary showing; if a prima facie showing has been made, the burden then shifts to the state to proffer an unbiased justification for challenging the affected jurors. Batson, 476 U.S. at 96-97. “[T]o rebut a prima facie case, the proponent of a strike must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Puckett v. Elam (1995), 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834, citing Batson, 476 U.S. at 98. The state cannot justify the exclusion of jurors on the supposition that they will be biased because they share the race of defendant, or “rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming his good faith in making individual selections.’” Batson, 476 U.S. at 98, citing Norris v. Alabama (1935), 294 U.S. 587, 598, 55 S.Ct. 579, 79 L.Ed. 1074. Nevertheless, “[u]nless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Puckett, 514 U.S. at 768, citing Hernandez v. New York (1991), 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395. “A trial court’s finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶61. {¶ 8} Here, Williams is a 26-year-old African-American male. The state issued seven peremptory challenges, and five of those challenges excluded African-American jurors from the panel. The state also excluded two Caucasians, and when jury selection was ultimately accomplished, five of the 12 jurors were African-American. Williams has satisfied the first two prongs of the above-noted test. The burden then shifted to the state to justify its peremptory strikes of the African-American jurors. {¶ 9} The state’s articulated reasons for excusing the five African-American jurors consisted of: one juror did not seem interested in the proceeding; a second juror did not take the proceeding seriously; another juror was employed at an establishment inundated by a high rate of crime; a fourth juror failed to remember that a family member was a former assistant county prosecutor; and lastly, the final juror was unemployed and difficult to understand. {¶ 10} In this instance, the state’s pronounced rationale in defense of its peremptory strikes are expressly unambiguous, facially race-neutral, void of inherent discriminatory intent, and at the very least, plausible. In fact, each of the above-noted reasons, if accurate, had an adverse effect on the ability of the prospective candidates to successfully perform as jurors. As such, the state has met its burden of asserting race neutral reasons. {¶ 11} Moreover, the trial court engaged in more than a perfunctory inquiry into the state’s motivation for exercising its challenges. The record indicates that during a discussion between the court and counsel on the record and out of the hearing of the jury, the court inquired with specificity as to the reasons for the state’s exercise of the related strikes. Therefore, the lower court’s denial of Williams’s Batson objections was proper and its finding of no discriminatory intent was not clearly erroneous. {¶ 12} Williams furthermore asserts that the trial court erred in denying his motion to suppress because no probable cause existed to stop the vehicle in which he was a passenger. He maintains that the evidence proffered by the state to prove that a drug-related sales transaction had occurred consisted only of bare assertions by the police detectives that a “phantom” CRI, protected by privilege, not produced, and unavailable to testify, informed them that a transaction had in fact transpired. Williams also notes that no traffic laws were violated, so a traffic stop could not serve as justification for the ensuing stop. As a result, he contends that the warrantless search, seizure, and arrest were unlawful and that all subsequent evidence and statements obtained were necessarily tainted fruit from the poisonous tree. {¶ 13} Warrantless searches and seizures are forbidden by the Fourth and Fourteenth Amendments to the U.S. Constitution and, as such, are unreasonable unless an exception is applicable. Katz v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. One departure, the automobile exception, allows police to carry out a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains contraband or other evidence that is subject to seizure, and exigent circumstances compel a search or seizure. Chambers v. Maroney (1970), 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The mobility of automobiles frequently results in the creation of exigent circumstances, and is the customary rationalization for this exception to the Fourth Amendment’s warrant obligation. California v. Carney (1985), 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406. {¶ 14} The Fourth Amendment permits a police officer to stop and detain an individual if the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal activity “may be afoot.” Terry v. Ohio (1968), 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889. In determining whether reasonable suspicion is present, courts must scrutinize the “‘totality of the circumstances’ of each case to determine whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu (2002), 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740, quoting United States v. Cortez (1981), 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621. {¶ 15} The analysis to determine if there is probable cause to substantiate an arrest is “whether at that moment the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [arrestee] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142. {¶ 16} In this case, the facts and circumstances supplying the requisite probable cause are considerable. The vice detectives orchestrated an investigation concerning the sale of illegal drugs, the target of which was Williams. The detectives then prearranged and monitored a telephone call from the CRI to Williams in order to coordinate the time, location, and quantity for the sale of crack cocaine. The officers observed Williams arrive at the arranged time and as a passenger in a blue Cadillac that was never out of the sight of the officers throughout the entire incident. The CRI entered the blue Cadillac and upon exiting conveyed to the authorities, via a preestablished gesture, that the drug buy had in fact taken place. The CRI told the police that Williams was in possession of a large quantity of crack cocaine. Exigent circumstances giving rise to the subsequent actions of police takedown units were created when the blue Cadillac utilized in the suspected drug transaction left the scene. {¶ 17} Williams notes that the trial court employed inaccurate language in denying his motion to suppress by frequently referring to the police takedown as a “traffic stop.” Nevertheless, the trial court properly denied the motion to suppress in spite of using the wrong terminology. As a result, Williams’s contentions are without merit since “a reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof.” Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172. {¶ 18} Based on these facts, we conclude that the officers presented reasonable and articulable facts to establish that criminal activity, in this instance an illegal drug buy, had taken place. In light of the totality of the circumstances, the facts at bar satisfy the applicable legal standard for probable cause to stop and search the Cadillac. Therefore, Williams’s arguments in support of suppressing the evidence are not persuasive. {¶ 19} Williams, in his third assignment of error, contends that the state offered insufficient evidence of his conviction for the school yard specification. He argues that simply passing by a school while in possession of illegal narcotics is inadequate to support the lower court’s ruling. {¶ 20} R.C. 2925.03(C)(3)(d) indicates that if a [drug-related] offense occurs within the vicinity of a school, it is elevated to a second degree felony. “R.C. 2925.01(P) defines ‘vicinity of a school’ as ‘on school premises, in a school building, or within one thousand feet of the boundaries of any school premises[.]’” State v. Collins, 8th Dist. No. 95422, 2011-Ohio-2660, ¶26. Several courts have decided that testimony alone, recounting the requisite distance and referencing the associated school by name, is sufficient evidence to sustain a school yard specification. State v. McDuffey, 3d Dist. No. 13-03-41, 2003-Ohio-6985; State v. Manley, 71 Ohio St.3d 342, 1994-Ohio-440, 643 N.E.2d 1107. {¶ 21} Here, trial testimony established the locations where Williams met the CRI and thereafter traveled while conducting the drug deal as being within 1,000 feet of the boundary of St. Ignatius High School. Therefore, Williams’s third assignment of error is overruled. {¶ 22} Williams, in his final assignment of error, insists that the trial court erred when it denied his Crim.R. 29 motion for acquittal because the evidence offered by the state was insufficient as a matter of law. {¶ 23} Crim.R. 29 provides, in pertinent part: “(A) The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.” When a defendant contests the legal sufficiency of the state’s evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Herring, 94 Ohio St.3d 246, 252, 2002-Ohio-796, 762 N.E.2d 940, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. {¶ 24} Williams continually points to discrepancies between the police reports and trial testimony, and disputes that the officers actually saw crack cocaine being thrown from the blue Cadillac due to distance and lighting deficiencies. He additionally mentions that there were no recovered containers used for packaging and distributing crack cocaine. The state conversely contends the evidence relied upon for conviction was straight forward and overwhelming. {¶ 25} R.C. 2925.11(A) provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance.” Drug trafficking encompasses activities including preparation of illegal drugs for shipment or distribution as well as shipping, transporting, or delivering a controlled substance. R.C. 2925.03(A)(2). The evidence in the record indicates that the quantity of crack cocaine recovered from in and around the car where Williams was a passenger weighed about 19 grams with a probable street value of $2,000. “Buy” money was found on Williams. Additionally, no crack pipes or similar drug paraphernalia associated with personal drug usage were recovered. Testimony established that this drug activity was “committed in the vicinity of a school,” and therefore, the evidence is sufficient to sustain a conviction pursuant to R.C. 2925.03(C)(2)(b). R.C. 2921.12(A)(1) prohibits persons from “alter[ing], destroy[ing], conceal[ing], or remov[ing] * any thing with the purpose to impair its * availability as evidence ***,” and trial testimony confirms that Williams attempted to discard crack cocaine by throwing it out of the window of the automobile. Finally, R.C. 2923.24 prohibits the use of any device or instrument for criminal purposes, and Williams violated this statute when he used his cellular telephone to arrange the drug buy with the CRI. {¶ 26} Viewing the evidence in a light most favorable to the state, as we must, a rational trier of fact could find all the essential elements of Williams’s crimes proven beyond a reasonable doubt. Williams’s fourth assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ___________________________________________ MELODY J. STEWART, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and JAMES J. SWEENEY, J., CONCUR	{ "pile_set_name": "FreeLaw" }
279 S.W.3d 265 (2009) STATE of Tennessee v. David Harold HANSON. No. E2006-00883-SC-R11-CD. Supreme Court of Tennessee, at Knoxville. September 3, 2008 Session. February 23, 2009. 267 J. Thomas Marshall, Jr., District Public Defender, Clinton, Tennessee, for the appellee, David Harold Hanson. Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; Dave Clark, District Attorney General; and Jan Hicks, Assistant District Attorney General, for the appellant, State of Tennessee. OPINION GARY R. WADE, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., WILLIAM M. BARKER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined. The defendant, charged with two counts of aggravated child abuse, was convicted only upon the second count. While upholding the propriety of the jury instructions, the Court of Criminal Appeals reversed, ruling that the state had failed to establish that the defendant had knowingly inflicted the injuries. We granted review in order to determine whether the evidence was sufficient to establish that the defendant acted knowingly and by nonaccidental means. Because the trial court provided adequate instructions and because the circumstantial evidence, as accredited by the jury, established the essential elements of the offense, the judgment of the Court of Criminal Appeals is reversed and the conviction and sentence is reinstated. Factual and Procedural Background On May 22, 2003, Amanda Silcox ("Silcox") gave birth to a daughter, S.H.,[1] who was fathered by her boyfriend, David Harold Hanson (the "Defendant"). The couple shared a residence in Oak Ridge. Less than two months later, on the evening of July 13, the Defendant and Silcox brought S.H. to the emergency room of Children's Hospital in Knoxville ("Children's Hospital"). At the time, S.H. exhibited significant swelling and discoloration in her right leg. After x-rays and an examination, S.H.'s leg was placed in a splint and she was released, and Silcox and the Defendant were instructed to follow-up 268 with their pediatrician. A series of examinations ensued, by both the pediatrician, Dr. C. Timothy Morris, and Children's Hospital. Dr. Morris, acting upon the request of a hospital physician, directed Silcox to Children's Hospital to obtain a full-body, skeletal survey x-ray of S.H. The survey indicated that S.H. suffered from not only two fractures above her swollen right ankle, but also thirteen other fractures, apparently incurred in at least two separate incidents. There were four "corner" fractures in her right leg and two "corner" fractures in her left leg, all of which appeared to have occurred within twenty-four to forty-eight hours of her first hospital visit. S.H. also had nine separate rib fractures, which appeared to be older injuries. On June 1, 2004, the Defendant was charged with two counts of aggravated child abuse under Tennessee Code Annotated section 39-15-402 (Supp.2002)[2] one count arising from the rib injuries ("Count I") and a second count arising from the leg injuries ("Count II"). Over the course of the four-day guilt phase of the Defendant's trial, the State established that the Defendant had physical custody of S.H. on July 13, 2003, the date she was first taken to the hospital for treatment. Other evidence presented by the State included the Defendant's out-of-court explanation of S.H.'s injuries and the testimony of five different physicians as to the nature and likely causes of S.H.'s injuries. The Defendant, who elected not to testify, offered no proof in rebuttal. The jury returned a unanimous verdict, acquitting the Defendant of Count I but convicting him of Count II. The trial court imposed a sentence of eighteen years. In his direct appeal to the Court of Criminal Appeals, the Defendant contended that the evidence presented at trial was insufficient to support his conviction. He also challenged the propriety of portions of the jury instructions. A majority of the Court of Criminal Appeals reversed and dismissed the conviction, holding that the evidence was insufficient to establish that the Defendant acted knowingly and by non-accidental means: Other than proof that the defendant fell on S.H. while walking on the stairs, the state did not present evidence at trial which would have allowed the jury to find that S.H.'s fractures were caused by the knowing conduct of the defendant. While we in no wise discount the fact that the state presented evidence that S.H. sustained injuries consistent with abuse, absent proof that the defendant knowingly treated S.H. in an abusive manner, the defendant's conviction cannot 269 stand. The statute requires that the act of treating a child in an abusive manner must be knowing conduct. State v. Hanson, No. E2006-00883-CCA-R3-CD, 2007 WL 2416103, at 8 (Tenn. Crim.App. Aug.27, 2007). The majority did, however, conclude "that sufficient medical evidence was presented at trial for the jury to find that S.H. experienced extreme physical pain as a result of the fractures to her legs and therefore suffered serious bodily injury." Id. at 9. Thus, had the requisite mens rea been satisfactorily established by the proof, our intermediate appellate court would have held that the injury qualified as serious enough to establish aggravated child abuse as opposed to the lesser offense of child abuse. Tenn.Code Ann. §§ 39-15-401 to 402. Judge Robert W. Wedemeyer dissented. While acknowledging that the State had no direct evidence of the Defendant's state of mind, he believed that the "surrounding circumstances" permitted the jury, as the finder of fact, to infer that the Defendant knowingly, rather than accidentally, inflicted the injuries on the child victim. Hanson, 2007 WL 2416103, at 13-14 (Wedemeyer, J., dissenting). Because the primary question for our review is whether the evidence offered at trial is sufficient to support the conviction of aggravated child abuse, we have provided a summary of the testimony of each witness. Testimony of Amanda Silcox Amanda Silcox testified that S.H. was born at the Fort Sanders Regional Medical Center ("Fort Sanders") in Knoxville approximately a year after she and the Defendant began living together in Oak Ridge. The Defendant worked intermittently at a Sonic restaurant, quitting and then returning to his job on multiple occasions over the term of his relationship with Silcox. During her pregnancy, Silcox also worked at Sonic, leaving her job only shortly before the birth of her child. During her stay at Fort Sanders, Silcox was provided with basic instructions for the care of her infant. She confirmed, for example, that both she and the Defendant knew to hold S.H. in such a way as to support her head and body. In early July, Silcox went back to work at Sonic. For the first few days, when both she and the Defendant were employed there, her mother cared for S.H. On the fourth day, however, the Defendant, without notifying Silcox of his intentions to do so, again quit his job. Thereafter, he undertook the duty of caring for S.H. during Silcox's absence. On July 13, 2003, the couple lived in a residential neighborhood less than five minutes from the Oak Ridge Methodist Medical Center ("Methodist"). Silcox drove the couple's car to work, leaving the Defendant home alone with S.H. and without transportation. When Silcox returned from work at approximately six or seven that evening, the Defendant hugged her and tearfully explained that he had fallen with S.H. while carrying some laundry up the staircase. The two decided to take S.H. to Children's Hospital, despite the close proximity of Methodist, explaining that they preferred a hospital specializing in children, not because they feared the Methodist health providers would contact Oak Ridge law enforcement. Silcox also implied that her family members had encountered difficulties with Methodist on prior occasions. When asked if she called ahead to Children's Hospital, Silcox replied that she did not have a telephone at the time. Silcox described S.H.'s right leg as "swollen and bluish-purple," and recalled that S.H. cried when a physician at Children's Hospital examined her. Doctors placed a splint on S.H.'s right leg, discharged 270 her, and instructed Silcox and the Defendant to follow up with their pediatrician, Dr. Morris, in two to three days.[3] Silcox saw Dr. Morris two days later. The Defendant was present. Although the swelling was reduced, S.H.'s right leg was still swollen and discolored. Dr. Morris directed the couple to immediately return to Children's Hospital for additional x-rays. There, the treating physicians authorized further x-rays and scheduled an appointment with orthopaedic surgeon Dr. Mark Turner for the following day. Dr. Turner ordered more x-rays and instructed Silcox to follow up with Dr. Morris. On July 24, 2003, eleven days after she first reported the leg injury, Silcox again took S.H. to see Dr. Morris, with whom she had already scheduled a routine two-month check up. After Dr. Morris removed S.H.'s splint and observed her foot, he directed Silcox to take S.H. back to Children's Hospital for a full-body, skeletal x-ray. Silcox complied, and, afterwards, S.H. was admitted to the hospital. On the same day, Silcox gave a written statement to Detective Ron Boucher of the Oak Ridge Police Department, who had initiated an investigation for possible child abuse. Her explanation of the events to Detective Boucher was as follows: David said he ... fell on the steps with [S.H.]. He said he went downstairs to get the laundry and took her with him. He then carried her in one arm and the basket in the other. He said he started up the stairs and tripped on the steps and fell face first and landed on top of her. He said when he fell her right leg bent back. He then took her on upstairs and fed and changed her. He said she acted fine and went to sleep. He also said that she slept for a while [and] then woke up and ... he then noticed the bruises on her leg. As a part of her statement to the police, Silcox claimed that she had never hurt S.H. and had never suspected the Defendant of any wrongdoing. In August of 2003, Silcox was again questioned by police, this time by Knoxville Police Department investigator Gary Anders. When asked at trial if she had informed Anders during his interrogation that the Defendant had tossed S.H. into the air, Silcox replied that she had no recollection of using those words. She did recall a prior occasion when the Defendant held S.H. in the air, but she contended that he did not throw her or let her go. When asked if she remembered telling the prosecution just prior to the trial that the Defendant had, in fact, "put her up in the air just a little bit and caught her," she admitted having made the statement, but explained that "what I meant was put her up in the air but didn't take his hands off of her and then just brought her back down." When pressed, Silcox replied, "I didn't actually mean it may have come out that way. I understand that." Silcox acknowledged during her testimony that she still lived with the Defendant and continued to be romantically involved with him. She stated that her purpose in testifying was to help him. Silcox admitted that after S.H. was hospitalized and then taken into Department of Children's Services custody, she understood that she had to make a choice between S.H. and the Defendant. She acknowledged that she had chosen to maintain her relationship with the Defendant. Testimony of Gary Anders Gary Anders, an investigator from the Knoxville Police Department, testified that 271 Silcox had made statements during his interview that contradicted her testimony at trial. He recalled that she had specifically informed him that "she saw [the Defendant]... throw [S.H.] up in the air [twice] and catch her on the way down, and he may have grabbed her too hard and possibly caused the impact [to the ribs]." Although he did take notes at the time, Anders admitted that he did not record the interview. He did not question Silcox about any possible causes of the leg injuries. Testimony of Detective Ron Boucher Detective Ron Boucher, who was alerted to S.H.'s situation eleven days after the first report of her injuries, traveled to Children's Hospital, where he took a photograph of her swollen and discolored right leg that was admitted as an exhibit at trial. After interviewing Silcox, he asked her to inform the Defendant that he wished to question him as well. On the following day, he questioned the Defendant at the Oak Ridge Police Department. The Defendant informed Detective Boucher that he was walking upstairs with a laundry basket in his right hand and S.H. in his left hand when he fell, landing on her. He acknowledged that none of his friends or family members caused S.H.'s injuries. When asked what could have caused the injuries other than those to the right leg, the Defendant did not answer. The interview was not recorded, and the Defendant declined the Detective's request to make a written statement. Several times after the initial interview, Detective Boucher went to the Defendant's residence to further investigate. Despite the fact that he went at different times during the day and "a couple" of the times a vehicle was at the residence, he never received an answer when he knocked at the door. Testimony of Dr. Sidney Roberts Dr. Sidney Roberts, a staff radiologist at Children's Hospital specializing in pediatrics, testified that he reviewed the initial x-rays of S.H.'s right ankle on the day following the first report of her injury. At that time, Dr. Roberts could not find any fractures on the ankle. When S.H. was brought back for additional x-rays two days after her first examination, Dr. Roberts examined S.H. and more x-rays of the right ankle were performed. Dr. Roberts described the ankle as "very swollen[, t]wo or three times the size of the opposite leg...." He indicated that the ankle was "quite both red and bruised looking." In the second x-rays, Dr. Roberts discovered "small fractures of the corner of the two bones in the lower leg." Dr. Roberts explained that the fractures were visible in the second x-rays because S.H.'s bones had begun to calcify as part of the natural healing process. After discovering the fractures, Dr. Roberts called Dr. Morris to inform him that the location and appearance of the fractures were "suspicious for child abuse or non-accidental injury." When Dr. Roberts read the medical history, he learned that the Defendant claimed to have "fallen down the steps with the child." It was his opinion, however, that the fractures were not consistent with a fall. He testified that the fractures were instead consistent only with "either twisting or a traction injury, pulling." He explained that a fall would typically be expected to "create a fracture of a long bone in the shaft." Dr. Roberts, who also reviewed the full-body, skeletal survey x-rays, taken eleven days after the report of the injury, and found additional corner fractures in the cartilage and bones below S.H.'s right knee, for a total of four distinct fractures in the right leg. He also observed two 272 corner fractures at the ankle in S.H.'s left leg, which were similar to the ankle fractures in her right leg. It was his opinion that all six leg fractures were the result of non-accidental child abuse, having occurred within "24-to-48 hours" of July 13. Dr. Roberts further explained that S.H.'s x-rays were not consistent with "brittle bone" disease, which would have rendered her especially susceptible to fractures, because the amount of calcium in S.H.'s bones was normal. He testified that S.H.'s bones did not show bowing or irregularity of the cartilage surfaces associated with such a condition. During cross-examination, Dr. Roberts conceded that it was at least possible for S.H.'s ankle to have been fractured if her leg had been twisted while she was fallen upon by an adult. He explained, however, that even if it was possible that such a fracture of one leg might result from twisting during a fall, he saw no possible way that "it could happen with both legs." He also conceded that it was possible, although unlikely, that the leg fractures could have been the result of someone dropping S.H. and catching her by both legs, but only "if it was a severe jerk." It was also his opinion that simply picking S.H. up by her legs would not have caused the fractures. He maintained, however, that such fractures could occur when an individual simultaneously "pulled both legs" with "enough force." Dr. Roberts also testified that the leg fractures could not have been caused by shaking and described them as particularly painful over a prolonged period of time. It was his opinion that the pain would be continuous and last "several days" and possibly "weeks." Dr. Roberts also opined that the rib fractures, which had occurred three to five weeks prior to the full body survey, were the result of "a squeezing motion with adult hands" of "considerable force." It was his belief that fractures of that nature would not arise from the normal handling of an infant. Testimony of Dr. Mark Turner Dr. Turner, the orthopaedic surgeon who saw S.H. at Children's Hospital three days after the first report of injury, did not initially see any fractures on either the x-rays taken earlier at Children's Hospital or his own x-rays. Because, however, the right leg was so swollen, he decided to treat it as if there had been a fracture. Two weeks later, after reviewing S.H.'s full-body, skeletal survey x-rays, Dr. Turner agreed with Dr. Roberts' diagnosis four fractures on the right leg, two on the left leg, and nine on the ribs. It was his opinion that the fractures were the consequence of "non-accidental trauma." Testimony of Dr. C. Timothy Morris Dr. Morris, S.H.'s pediatrician, had treated her several times before the first report of her injuries. He testified that when he saw her in his office two days after the leg injury, S.H. had a splint on her right foot. According to Dr. Morris, "the baby cried vociferously" at the least movement of her leg. Because the fracture or fractures may not have been visible in the initial x-ray, and because of S.H.'s "distinct, distinct pain reaction," Dr. Morris recalled instructing Silcox to take S.H. back to Children's Hospital for new x-rays. Dr. Morris stated that he saw S.H. again nine days later for a previously scheduled check-up, discovering that her right leg was more purple and brown than it had been the prior week. While S.H. still indicated pain in her leg, the pain response appeared to have lessened and some swelling had subsided. A series of Polaroid photographs of S.H.'s legs taken by Dr. Morris depicted the discoloration and swelling of the leg and were made exhibits 273 at trial. The left leg, which was also photographed, indicated neither discoloration nor readily identifiable swelling. Upon the recommendation of Dr. Roberts, Dr. Morris instructed Silcox to take S.H. to Children's Hospital for the full-body x-rays. Based on his examination, the results of the x-rays, and his consideration of the medical reports from Children's Hospital, Dr. Morris concluded that S.H. had been the victim of abuse. On cross-examination, he conceded that his definition of child abuse included negligent behavior, and acknowledged that there was a "gray zone" as to whether it would include accidental behavior. He also testified that the term "reasonable degree of medical certainty," as he applied it, meant "more probable than not." Testimony of Dr. Lori Nunley Dr. Lori Nunley, a pediatric emergency room physician at Children's Hospital, saw S.H. shortly after the full-body x-rays. She described S.H.'s "right lower leg [as] very swollen" and observed "pink, purple, purple-blue" bruising. There was also evidence of bruising on the sole of S.H.'s right foot, especially on her great toe, and S.H.'s left lower leg was tender to the touch. Dr. Nunley admitted that it was very difficult to measure pain in a two-month-old child. It was her opinion, however, that fractures of the type S.H. received would cause extreme pain with normal movement. After studying the x-rays, Dr. Nunley, like the other doctors, identified six leg fractures four on the right leg and two on the left leg and nine rib fractures. She testified that the leg fractures were corner or "bucket-handle" types, which "are considered to be exclusively [the result of] child abuse." It was her opinion that the fractures were caused by "extreme torque-ing action," "extreme rotation motion," or the result of S.H. being "flail[ed] back and forth violently...." Because the fractures occurred on both sides of the bone, it was her conclusion that the fractures would have to be the result of "a hard torque or a rapid flail" rather than, as Dr. Roberts had suggested as one possibility, a "yank[ing]" action. In partial contradiction of Dr. Roberts' testimony, Dr. Nunley opined that corner fractures could be the result of violent shaking, but she also pointed out that a subsequent evaluation by an ophthalmologist indicated an absence of retinal hemorrhages in S.H., which are typically associated with shaken infants. Dr. Nunley specifically observed that the fractures were not consistent with someone falling down when carrying the baby, even if the adult fell on top of the baby. She described the leg fractures as "absolutely not" the result of an adult lifting S.H.'s legs when changing her diaper. When asked if the fractures could have been caused by an adult picking S.H. up by her legs, Dr. Nunley replied that only "forceful twisting" accompanied by the lifting of the child could produce such a result. She stated that the pattern of fractures did not suggest brittle bone disease. Her diagnosis was that S.H. was physically abused. Dr. Nunley echoed Dr. Roberts' conclusion as to the cause of S.H.'s rib fractures, stating that an adult squeezing with "a lot of force" was "the only [plausible] explanation." Dr. Nunley found a small, fading bruise on S.H.'s chest, roughly "the size of a pinky fingernail"; however, she found no indication of pain from the chest. Testimony of Dr. Mary Campbell Dr. Mary Campbell, who holds board certifications in both pediatric emergency medicine and pediatrics, provides specialty consultations on child abuse at Children's 274 Hospital in addition to her duties providing pediatric and pediatric emergency care. She had previously testified on a number of occasions "generally two or three times a month" on pediatric medicine issues in litigation involving possible child abuse. Dr. Campbell saw S.H. on July 25 at the request of Dr. Nunley, some twelve days after the first report of her injury. When Dr. Campbell examined S.H., she found the same injuries noted by other doctors, specifically swelling and bruising of her lower right leg and a single bruise on her chest wall. Upon reviewing the medical history provided by Drs. Morris and Nunley, Dr. Campbell found no signs of other medical problems that might explain the injuries. She confirmed that there was no evidence or family history of "brittle bone" disease. It was Dr. Campbell's opinion that a fall of the nature described by the Defendant might have accounted for injuries to S.H.'s right foot and the lower portion of her right leg, but she stated that a fall of that nature would not account for the higher corner fractures near the knee. For a variety of reasons, Dr. Campbell concluded that S.H. suffered from "inflicted trauma." She pointed out that there were multiple fractures and also concluded that the fractures appeared to be the result of "a very impressive amount of force" enough that "[t]here was concern for dislocation of the foot." Dr. Campbell also concluded that a variety of other factors, such as the delay between the injury and the first medical treatment and the nature of the rib and "bucket-handle" corner fractures in the legs, supported her conclusion that S.H. had been abused. Dr. Campbell also testified that it was "very evident in every examiner's notes" that S.H. had pain in her right leg, and that the leg was "especially ... painful" over a period of one to two weeks. Additional Testimony and Evidence Pam Silcox, the mother of Amanda Silcox, testified that she took care of S.H. for the two or three days before the Defendant undertook that responsibility. She confirmed that S.H. was not involved in any kind of accident while under her care and testified that she first learned of S.H.'s injuries when her daughter, emotional and crying, telephoned her from the Children's Hospital emergency room on July 13, 2003. S.H.'s adoptive mother, who testified under the pseudonym "Mrs. Foster," testified that she and her husband took physical custody of S.H. after her release from Children's Hospital. She stated that S.H. would cry in a distinctive manner when her legs were handled during diaper changing. She described her cry as indicating pain, which was markedly distinguishable from her crying when she was hungry or tired. Dr. Roberts made a diagram of the fractures, indicating the location of each, and the diagram was marked as an exhibit. X-rays were also presented as evidence. Standard of Review "When considering a sufficiency of the evidence question on appeal, the State must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom." State v. Vasques, 221 S.W.3d 514, 521 (Tenn.2007). "The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact." State v. Campbell, 245 S.W.3d 331, 335 (Tenn.2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn.Crim.App.1978)). When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing 275 the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn.1992). "This standard is the same whether the conviction is based upon direct or circumstantial evidence." State v. Sutton, 166 S.W.3d 686, 689 (Tenn.2005); see also State v. Brown, 551 S.W.2d 329, 330 (Tenn.1977). In the absence of direct evidence, a criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958). If entirely circumstantial, the facts and circumstances must "be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971). "The jury decides the weight to be given to circumstantial evidence, and `[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.'" State v. Rice, 184 S.W.3d 646, 662 (Tenn.2006) (quoting Marable, 313 S.W.2d at 457 (citations omitted)).[4] The court may not substitute its inferences for those drawn by the trier of fact in circumstantial evidence cases. Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Analysis Sufficiency of Evidence of Knowledge and Lack of Accident The Defendant argues that the evidence was insufficient for any rational jury to conclude beyond a reasonable doubt that the Defendant inflicted S.H.'s leg injuries "knowingly, other than by accidental means." As of the date of S.H.'s injuries, Tennessee Code Annotated section 39-15-401(a) defined child abuse as follows: Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury ... commits a Class A misdemeanor; provided, however, that, if the abused ... child is six (6) years of age or less, the penalty is a Class D felony. 276 Child abuse may be aggravated when the abuse either "results in serious bodily injury to the child" or is accompanied by the use of a deadly weapon. Tenn.Code Ann. § 39-15-402(a)(1)-(2). Aggravated child abuse is either a Class A or B felony depending upon the age of the victim. Tenn.Code Ann. § 39-15-402(b). The term "knowing" refers to one of four culpable mental states mens rea adopted by the General Assembly for use throughout the state's criminal code. See Tenn.Code Ann. § 39-11-302 (1997); State v. Page, 81 S.W.3d 781, 786 (Tenn.Crim. App.2002) ("There are four culpable mental states in Tennessee: intentional, knowing, reckless and criminal negligence."). The General Assembly has defined "knowing" as follows: "Knowing" refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result. Tenn.Code Ann. § 39-11-302(b). This definition contemplates that the term "knowing" may be applied to three distinct types of statutorily-defined conduct or the actus reus: (1) the nature of the defendant's conduct, (2) the circumstances surrounding the defendant's conduct, and (3) the result of the defendant's conduct. See Page, 81 S.W.3d at 787. When applying statutory mens rea elements, we have acknowledged the distinction between "nature-of-conduct" and "result-of-conduct" offenses. Whereas a nature-of-conduct offense "seeks principally to proscribe the nature of the ... conduct, as opposed to the result that the defendant's conduct achieves," State v. Mateyko, 53 S.W.3d 666, 673 (Tenn.2001), "the mens rea required for [a result-of-conduct] offense accompanies only its resulting harm...." State v. Ely, 48 S.W.3d 710, 728 (Tenn.2001). "The focus is on whether the actor possessed the required culpability to effectuate the result that the legislature has specified. Generally, an offense may be classified as a result-of-conduct offense when the result of the conduct is the only element contained in the offense." State v. Ducker, 27 S.W.3d 889, 896 (Tenn.2000). In Ducker, we specifically addressed whether aggravated child abuse qualified as a nature-of-conduct or a result-of-conduct offense. Jennie Bain Ducker had left her two children, ages twenty-three months and twelve months, strapped into car seats and locked in her car for over eight hours on a late spring day. The children died of "systemic hyperthermia, a condition that results when a human body severely overheats and is unable to cool itself." Id. at 892. Ducker, indicted upon two counts of first degree murder but convicted of two counts of aggravated child abuse, appealed, arguing that the evidence was insufficient to show that she knew that her conduct would result in serious bodily injury to her children. We concluded that aggravated child abuse qualified as a nature-of-conduct offense: Accordingly, [Tennessee Code Annotated section 39-15-401] requires that the act of treating a child in an abusive manner or neglecting the child must be knowing conduct. For instance, the defendant must have knowingly left or abandoned her children in the car for more than eight hours. If the defendant had been unaware that her children were present in the car when she left her car parked in front of the hotel, the neglect of her children would have been accidental or unknowing.... 277 Once the knowing mens rea is established, the next inquiry under the plain language of the statute is simply whether the child sustained an injury or, in the case of child neglect, whether the child suffered an adverse effect to the child's health or welfare. The legislature has employed the phrases "so as to injure" and "so as to adversely affect" when defining the injury aspect of the child abuse statute. These phrases clearly indicate that if an injury results from knowing abuse or neglect, the actor has committed child abuse.... We, therefore, ... hold that the mens rea of "knowing" refers only to the conduct elements of treatment or neglect of a child under the child abuse statute and conclude that the child abuse offenses are not result-of-conduct offenses. Id. at 897. The phrase "other than by accidental means" in the statute modifies the actus reus of the crime, and does not alter the accepted meaning of "knowing." Id. Thus, because the record established "that [Ducker] knowingly parked her car, rolled up the windows, securely fastened the children in [their seats], locked the car and left them inside ... from approximately 3:45 a.m. to between 12 and 1 p.m.," we held that the evidence was sufficient to support the convictions, regardless of whether the defendant was aware that her conduct would have caused the hyperthermia. Id. By the application of our ruling in Ducker, the evidence in this instance must have been sufficient for a rational jury to have concluded, beyond a reasonable doubt (1) that the Defendant was "aware of the nature of the conduct," Tennessee Code Annotated § 39-11-302(b), when he treated S.H. "in such a manner as to inflict injury," Tennessee Code Annotated § 39-15-401(a); and (2) that, in so doing, he acted other than by accidental means.[5] Further, because the evidence was entirely circumstantial, the jury must have had a reasonable basis for the exclusion of "every other reasonable hypothesis save the guilt of the defendant." Crawford, 470 S.W.2d at 612. These facts present a close question. The bulk of the evidence consisted of medical testimony as to the timing, the likely causes, and the unusual nature of S.H.'s 278 injuries. Each physician described S.H. as having suffered from "non-accidental trauma," "non-accidental child abuse," "physical abuse," or "inflicted trauma." This medical testimony was corroborated by evidence that S.H. was in the custody and control of the Defendant at the time of the injuries to her right leg, the Defendant's evasive behavior during the course of the investigation, out-of-court statements by the Defendant that were inconsistent with the medical evidence, and the exclusion of Silcox, her mother, or anyone else as potential sources of the injuries. Under these circumstances, it is our assessment that the jury had the prerogative to infer that the Defendant acted knowingly, with an awareness of the nature of his conduct, rather than accidentally. The physician witnesses testified extensively about the injuries, particularly the six "corner" leg fractures, and the potential sources of those injuries all of which pointed to abuse. Every medical expert who addressed the issue expressed the view that the fractures were consistent with forceful twisting. While Drs. Roberts and Nunley disagreed as to whether flailing or jerking could have caused the injuries, there was no dispute as to the significance of the force required. Drs. Roberts, Nunley, and Campbell all testified that a fall on the stairway as described by the Defendant could not have caused four fractures to the right leg and two to the left. At a minimum, therefore, the evidence was sufficient for a rational jury to have concluded beyond a reasonable doubt that the fractures were the result of either a forceful twisting or the flailing or jerking of both legs, and that any twisting incident to a fall, the only other reasonable explanation, could not have been the cause of all six fractures. Of significance, of course, is that S.H. suffered injury while in the Defendant's exclusive custody. Although the Defendant claimed to Detective Boucher that he might have caused the harm to her right leg in the July 13 fall, as Drs. Roberts and Campbell conceded was possible, the uncontradicted medical evidence established that S.H. suffered not simply one twisting injury to her right leg, but a total of six fractures in both legs, within twenty-four to forty-eight hours of the claimed fall. This and other medical evidence served to refute the claim by the Defendant that all fractures were the result of an accidental fall. Moreover, the testimony of Dr. Roberts discounted the suggestion that the injuries might have been caused by dropping S.H. and catching her by both legs. He explained that "a severe jerk" must have accompanied any such dropping activity a possibility that a rational jury could have dismissed as exceedingly unlikely. Silcox's account of the Defendant's tossing of S.H. in the air and the manner in which he held S.H. provided nothing that could have suggested accidental twisting, flailing, or pulling of the nature or severity described by the physicians' testimony. Finally, the suggestion that the injuries were exacerbated by brittle bone disease or the result of diaper-changing were firmly rebuffed by the experts. Cf. In re Gaven R., 2007 WL 2198288, at 5-8 (declining to find that the State had proven abuse by clear and convincing evidence due to expert testimony that infant's fractures were caused by increased bone fragility). Thus, we conclude that a rational finder of fact could have excluded all possible sources of S.H.'s leg injuries other than the Defendant's knowing conduct.[6] 279 Sufficiency of Evidence of Serious Bodily Injury The Defendant next argues that the evidence was insufficient to support a finding of serious bodily injury, the element necessary to elevate the crimes from child abuse to aggravated child abuse. The Court of Criminal Appeals disagreed, and so do we. "Serious bodily injury" is defined as a bodily injury that involves any of the following: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty[.] Tenn.Code Ann. § 39-11-106(a)(34) (1997). The Defendant insists that no rational jury could have determined that S.H. suffered from "extreme physical pain" due to the four fractures in one leg and two in the other. The Defendant argues that the unique features of infant minds and skeletons, when combined with S.H.'s inability as a two-month-old infant to articulate the level of her pain, made it impossible for the jury to conclude beyond a reasonable doubt that the pain qualified as extreme. The medical testimony established that S.H. behaved in a manner consistent with pain in her right leg. The jury heard medical testimony confirming the severity of her injuries. Dr. Nunley described the pain for injuries of that nature as extreme and explained that older children with similar fractures experience an overwhelming degree of pain. Dr. Roberts compared the pain from the injuries to the continuous injection of a vaccine for an uninterrupted period of days or weeks. From this, a rational jury could have concluded that the pain was extreme, and thus that bodily injury qualified as serious. "Acquittal-First" Jury Instructions The Defendant argues that the trial court erred by employing "acquittal-first" jury instructions that forbid the jury from considering a lesser-included offense until it has reached a unanimous verdict of acquittal on any greater offenses. Specifically, the Defendant argues that the instructions are repugnant to the constitutional right to trial by jury, see Ely, 48 S.W.3d at 727, as well as illogical and unjustified by policy considerations. This Court recently held that acquittal-first instructions are permitted by the Tennessee Constitution. State v. Davis, 266 S.W.3d 896, 905 (Tenn.2008). Although we disagreed on the policy considerations raised to support an acquittal-first jury instruction as compared to the alternative "reasonable efforts" approach, compare Davis, 266 S.W.3d at 905-08 with id. at 910-16 (Wade, J., concurring), the acquittal-first instruction was confirmed as the prevailing practice. Jury Instructions on Knowledge and Accidental Means As his final issues, the Defendant argues that the trial court erred by rejecting his requests for two supplemental jury instructions intended to clarify the 280 meanings of the terms "knowing conduct" and "accidental means." In criminal cases, a defendant has a right to a correct and complete charge of the law. Garrison, 40 S.W.3d at 432 (Tenn.2000). Thus, the trial court has the duty to give a comprehensive instruction of the law as applicable to the facts in each case, State v. Thompson, 519 S.W.2d 789, 792 (Tenn.1975), including a definition of the elements of each offense. See Ducker, 27 S.W.3d at 899; State v. Cravens, 764 S.W.2d 754, 756 (Tenn.1989). The purpose of a special instruction is "to supply an omission or correct a mistake made in the general charge, to present a material question not treated in the general charge, or to limit, extend, eliminate, or more accurately define a proposition already submitted to the jury." State v. Cozart, 54 S.W.3d 242, 245 (Tenn.2001). The refusal to grant a special request for instruction is error only when the general charge does not fully and fairly state the applicable law. On appellate review, a jury instruction must be considered in its entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn.2004). The first of the Defendant's special requests was as follows: A defendant must "know" that his treatment of the child is abusive, even if it need not be proven that he "know" that his conduct will result in bodily injury or serious bodily injury. The state is required to prove beyond a reasonable doubt that the defendant knowingly treated the alleged victim in an abusive manner and knew his conduct was abusive. The trial court declined to grant this request and, instead, provided the jury with a definition of "knowingly" based upon the 2005 Tennessee Pattern Jury Instruction for aggravated child abuse and neglect, which provides, in relevant part, as follows: "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to the result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result. The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally. "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result. 7 T.P.I. Crim. 21.01 (9th ed.2005) (footnotes omitted). The trial court's instruction differed from the 2005 version's definition of "knowingly" in minor ways. For example, the trial court used the words "certain circumstances exist" whereas the 2005 Pattern Instructions suggested "the circumstances exist." The trial court also made a partial correction as to the "result-of-conduct" language in the instruction which dealt with "intentionally," explaining that the phrase "[o]r a result of the conduct" "needs to be marked out." As the annotations provide, the Pattern Instructions have been modified since this trial to reflect our holding in Ducker that aggravated child abuse is a nature-of-conduct offense. 7 T.P.I. Crim. 21.01(a) (12th ed.2008), at n. 5. The current version omits superfluous language regarding the application of "knowingly" to the result of a defendant's conduct: "Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the 281 nature of the conduct or that the circumstances exist. The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally. "Intentionally" means that a person acts intentionally with respect to the nature of the conduct when it is the person's conscious objective or desire to engage in the conduct. Id.; see also 7 T.P.I.Crim. 21.01(b) (12th ed.2008). While the current instruction reflects the better practice, the result-of-conduct terminology, while unnecessary, was not prejudicial; therefore, the trial judge's rejection of the special instruction and use of the 2005 version does not serve as a basis for a new trial. Read as a whole, see Leach, 148 S.W.3d at 58, the trial court's instruction on "knowingly" fully and fairly described the applicable law. Moreover, the special request by the Defendant would not have more accurately defined the applicable law. In our view, the language sought by the Defendant would have required the State to establish that he knew that his conduct met the statutory definition of child abuse, a requirement having no basis in law. Cf. Moore v. Lawrence County, 190 Tenn. 451, 230 S.W.2d 666, 668 (1950) ("[I]n criminal proceedings, `ignorance of the law excuses no man.'" (quoting Gibson's Suits in Chancery § 74 (1937 ed.)).). The Defendant further argues that the trial court erred by refusing to grant a lengthy special request purporting to define "accidental means." The requested language was taken from Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65, 69 (1961): An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Generally in most such cases this Court has repeatedly said that a compensable injury should be the result of something happening by accidental means though the act involving the accident was intentional. Accidental means ordinarily mean an effect which was not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing. It is produced by means which were neither designed nor calculated to cause it. It cannot be reasonably anticipated, it is unexpected, it is produced by unusual combinations of fortuitous circumstances and such an injury is an injury by accidental means. Although the Tennessee Pattern Instructions repeatedly mention "accidental means," they provide no definition of the term. See 7 T.P.I.Crim. 21.01(a)-(b); 7 T.P.I.Crim. 6.02 (12th ed.2008); 7 T.P.I.Crim. 6.09 (12th ed.2008); 7 T.P.I.Crim. 21.02(a) (12th ed.2008); 7 T.P.I.Crim. 21.02(b) (12th ed.2008); 7 T.P.I.Crim. 29.13(b) (12th ed.2008). While instructing the jury on the elements of aggravated child abuse, including the term "accidental means," the trial court provided the following charge: "Accidental means" means before the defendant can be convicted of the crime submitted to the jury[, t]he state must have proven beyond a reasonable doubt that the injuries of the child were brought about as the result of the criminal agency of the defendant; that is, that the injury of the child was due to the unlawful act of the defendant. If the injury was caused by accidental means by the defendant other than by a knowing child abuse, then you would not be justified in finding the defendant guilty. 282 If you find that the defendant's acts, if any, did not unlawfully cause the injuries of the child or if you, the Jury, have a reasonable doubt as to this proposition, you must find him not guilty. (emphasis added). The trial court further instructed the jury that the Defendant could have been found guilty only if he had acted other than by accidental means. This charge adequately described the applicable law. There are several reasons we so hold. Initially, "accidental" is a common term which jurors use and understand in their practical experience. "Where words and terms are in common use and are such as can be understood by persons of ordinary intelligence, it is not necessary, in the absence of anything in the charge to obscure their meaning, for the court to define or explain them." State v. Summers, 692 S.W.2d 439, 445 (Tenn.Crim.App.1985). We see no reason why the jurors would somehow be better equipped to ascertain the meaning of a "mishap" or "untoward event" than "accidental means," as suggested by the Defendant. Further, the proposed instruction from Brown Shoe Company refers to an intent to produce a resultdespite the fact that our ruling in Ducker plainly classified aggravated child abuse as a nature-of-conduct offense. Finally, any reference to a "compensable injury," as used in the Brown Shoe Company case, would likely have created confusion rather than serving to either supply an omission, correct a mistake, or more accurately define the term, as is essential for the grant of a special request. In short, the refusal to give the instruction was proper. Conclusion Once the trial court has discharged its "obligation ... to explain the law," McGowan v. State, 17 Tenn. (9 Yer.) 184, 195 (1836), the factual issues must be resolved by the trier of fact, and this Court should neither re-evaluate the weight nor re-assess the credibility of the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). In our view, the jury acted within its prerogative in this instance by rejecting the defense of accident and by concluding that the circumstantial evidence excluded every other reasonable hypothesis except for the guilt of the Defendant. Further, the trial court did not commit error by denying the special requests and by providing other instruction as to the defense of accident. The judgment of the Court of Criminal Appeals is, therefore, reversed, and the conviction and sentence for aggravated child abuse are reinstated. It appearing that the Defendant is indigent, the costs of this appeal are taxed to the State. NOTES [1] The infant victim was given a new name by her adoptive parents. She is no longer known by the name given her by Silcox and the Defendant. Nevertheless, we will refrain from using either her given or adoptive name in the text of this opinion. [2] Tennessee Code Annotated section 39-15-402 defines aggravated child abuse in relation to the definition of child abuse in Tennessee Code Annotated section 39-15-401 (Supp. 2002). Section 39-15-401(a) provides: Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury or neglects such a child so as to adversely affect the child's health and welfare commits a Class A misdemeanor; provided, however, that if the abused or neglected child is six (6) years of age or less, the penalty is a Class D felony. Tennessee Code Annotated section 39-15-402 provides, in relevant part: (a) A person commits the offense of aggravated child abuse or aggravated child neglect who commits the offense of child abuse or neglect as defined in § 39-15-401 and: (1) The act of abuse or neglect results in serious bodily injury to the child; or (2) A deadly weapon is used to accomplish the act of abuse. (b) A violation of this section is a Class B felony; provided, however, that, if the abused or neglected child is six (6) years of age or less, the penalty is a Class A felony. [3] Although x-rays were taken pursuant to this visit, the treating physicians were unable to identify any fractures to the ankle at that time. See discussion of physician witness testimony infra. [4] Years ago, Special Justice Erby Lee Jenkins wrote eloquently on behalf of this Court, admonishing the finder of fact to exercise caution in prosecutions based entirely upon circumstantial evidence: In order to convict on circumstantial evidence alone, the facts and circumstances must be so closely interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the defendant alone. A web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt. Mere suspicion and straws in the wind are not enough for circumstances take strange forms. Under our form of government and the administration of criminal justice, the defendant is clothed with a mantle of innocence and that presumption of innocence hovers over and protects him throughout the trial. Until this is overturned by strong proof of his guilt beyond a reasonable doubt, not an imaginary or captious doubt but an honest doubt engendered after a consideration of all the evidence so that the minds of the jurors cannot rest easy as to the certainty of guilt, he is entitled to an acquittal. Crawford, 470 S.W.2d at 613. [5] The Defendant argues, citing State v. Prater, 137 S.W.3d 25 (Tenn.Crim.App.2003), perm. app. denied (2004), that the State was required to show beyond a reasonable doubt that the Defendant knew his conduct was abusive. In Prater, the Court of Criminal Appeals considered a conviction for aggravated child abuse arising from a defendant's knowingly giving her child twice the prescribed dosage of a dangerous attention deficit disorder medication over a period of days. Id. at 27-31. Although the court upheld the conviction, it also held that sections 39-15-401 and -402 "require that a defendant know his or her conduct is abusive." Id. at 33. This formulation, the court explained, is necessary in order to distinguish between a defendant who knowingly gives a victim a dangerous overdose that results in harm, on one hand, from "the act of a parent to help a child with a medical condition" that causes an unexpected "severe adverse reaction" resulting in harm, on the other. Id. Similar concerns arise when a child suffers from an unidentified condition that renders his or her skeleton susceptible to injury from normal handling. See In re Gaven R., No. M2005-01868-COA-R3-CV, 2007 WL 2198288, at *5-8 (Tenn.Ct. App. July 23, 2007). The Defendant's reliance on Prater is not warranted. To say that the hypothetical defendant discussed in Prater was not aware "that ... her conduct [was] abusive" is merely another way of saying that the means by which she caused the child's injury were accidental. Prater should not, however, be read to create any requirement beyond those contained in the language of sections 39-15-401 and -402. Cf. discussion of proposed jury instructions infra (identifying confusion that might arise from a jury instruction requiring that the State show that a defendant knew his or her conduct was abusive). [6] "The law passed by a legislature cannot exist separate and apart from the juries that apply it." Heather K. Gerken, Second-Order Diversity, 118 Harv. L.Rev. 1099, 1129 (2005). Article I, section 6 of the Tennessee Constitution guarantees that all issues of fact in a criminal trial will be determined by twelve jurors properly instructed by the trial court. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); see also Grooms v. State, 221 Tenn. 243, 426 S.W.2d 176, 176-77 (1968). This guarantee assures that those accused by the State cannot be convicted except though "trials by the people themselves." Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1195 (1991) (quoting Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789)).	{ "pile_set_name": "FreeLaw" }
688 F.Supp. 37 (1988) Douglas G. HOUSLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF the TREASURY, et al., Defendants. Civ. A. No. 88-561. United States District Court, District of Columbia. July 12, 1988. 38 Douglas G. Housley, pro se. Patricia D. Carter, Asst. U.S. Atty., Washington, D.C., with Jay B. Stephens, U.S. Atty., Washington, D.C., John D. Bates, Asst. U.S. Atty., Washington, D.C., and Donna Bourdeau, Office of Legal Counsel, United States Secret Service, Department of the Treasury, Washington, D.C., for defendants. CHARLES R. RICHEY, District Judge. Plaintiff, an inmate incarcerated in the state penitentiary in Monroe, Washington, filed this Freedom of Information Act ("FOIA") case on March 1, 1988. By letter dated November 10, 1987, plaintiff requested from the Secret Service information relating to himself and the events surrounding the arrest of Ralph Y. Nizet (or Ninet). A total of 55 documents were located. The agency released a one-page document, with excisions, to plaintiff. All other material was withheld pursuant to FOIA Exemptions 5, 7(C), 7(D), and 7(F). Defendants filed a motion to dismiss on May 18, 1988. As grounds therefor, the agency claims that this Court lacks subject matter jurisdiction and that plaintiff has failed to state a claim upon which relief can be granted. This Court clearly has subject matter jurisdiction over this action. In addition, because the defendants have attached the affidavit of Stephen E. Garmon, Deputy Director of the United States Secret Service, to their Fed.R.Civ.P. 12(b)(6) motion, the Court will treat the motion to dismiss as one for summary judgment. After careful consideration of the papers in support of and in opposition to the motion, the Court determines that the agency has properly invoked the claimed exemptions. Therefore, the Court will grant the defendants' motion and dismiss this case with prejudice. The agency claimed Exemption 5 to withhold the opinions and impressions of evidence and the course of the criminal investigation of plaintiff and Mr. Nizet. See Garmon Affidavit at p. 6. Exemption 5 encompasses "inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). This exemption is to be broadly construed. See United States v. Weber Aircraft Corp., 465 U.S. 792, 800, 104 S.Ct. 1488, 1493, 79 L.Ed.2d 814 (1984). It has been invoked in this case to protect the deliberative processes of the Secret Service in the course of a criminal investigation. This privilege is well-recognized in the context of Exemption 5. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975); Russell v. 39 Department of the Air Force, 682 F.2d 1045, 1048 (D.C.Cir.1982). Plaintiff claims that the information it seeks, and for which Exemption 5 coverage is sought, was referred by the Secret Service to other, presumably law enforcement, agencies for the purpose of developing "investigative leads which were later used to derive testimony at the plaintiffs (sic) criminal trial." Plaintiff's Answer to Motion to Dismiss at 3. Plaintiff contends that the alleged link between the predecisional material developed by Secret Service agents for the purpose of developing an investigation and the actual testimony used to convict plaintiff requires disclosure of the material. Plaintiff further claims that there is a connection between this material and an alleged illegal use of electronic surveillance against him. Id. at 6. Therefore, according to plaintiff, because he can bring a civil suit against the agency for the alleged illegal surveillance, this material would necessarily be available to him in civil discovery. Id. Plaintiff's argument must fail. The material which plaintiff seeks apparently contains the impressions, opinions, and suggestions of Secret Service agents regarding an investigation of the plaintiff. This predecisional information was shared with other agencies who, according to plaintiff, may have used this information to develop investigative leads by means of, among other things, electronic surveillance. This kind of material represents a good example of the type of information that the deliberative process privilege, and Exemption 5, was meant to cover. Accordingly, the Court finds that the Secret Service has properly invoked Exemption 5 to withhold the impressions and opinions of Secret Service agents concerning a criminal investigation of plaintiff and Mr. Nizet. The agency has also invoked Exemptions 7(C), 7(D), and 7(F). As a threshold matter, the subsections of Exemption 7 only apply to "records or information compiled for law enforcement purposes." See FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 2059, 72 L.Ed.2d 376 (1982); King v. U.S. Department of Justice, 830 F.2d 210, 229 (D.C.Cir.1987) (citations omitted). The information that plaintiff seeks relates to "a criminal investigation into certain counterfeiting activity which investigative authority is conferred on the Secret Service by title 18, United States Code, section 3056." Garmon Affidavit at ¶ 14. Therefore, it is clear that this information was collected for law enforcement purposes. The Secret Service has claimed Exemption 7(C) to withhold the names and personal data of third parties interviewed by the Secret Service in connection with the investigation, those individuals who were under investigation in this matter, and federal and local law enforcement personnel. This exemption applies to law enforcement information that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). There is a public interest in non disclosure of this type of information to the extent that disclosure would impair the ability of the agency to gather information and conduct investigations. See, e.g., Miller v. Bell, 661 F.2d 623, 631 (7th Cir.1981), cert. denied sub nom. Miller v. Webster, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 484 (1982). The Secret Service is justifiably concerned that release of information about third parties who assisted in the investigation "could chill future cooperation ... and limit the [agency's] ability to perform its investigative function." Garmon Affidavit at p. 7. Thus, notwithstanding any privacy interests that these third parties may have, there is an identifiable public interest in withholding this information. Similarly, information concerning other individuals under investigation may be withheld because the mention of an individual's name in the context of a law enforcement investigation may carry a stigmatizing connotation. See, e.g., Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 862 (D.C.Cir.1981); Lesar v. U.S. Department of Justice, 636 F.2d 472, 488 (D.C.Cir. 1980); Garmon Affidavit at p. 8. The Court discerns no public interest in releasing *40 this information, and neither has plaintiff offered any justification. Finally, this exemption is routinely invoked to withhold the identities of law enforcement personnel. See Lesar, supra, 636 F.2d at 487; see also Stern v. FBI, 737 F.2d 84, 94 (D.C.Cir.1984). The agency sees two sources of damage if the names of law enforcement personnel connected with this investigation are released. First, agents might be harassed or subjected to counter surveillance. Garmon Affidavit at p. 8. Second, disclosure may well jeopardize the effectiveness of the agents in the course of their current investigations. Id. In addition, the agents' privacy interests, in this case, clearly outweigh any possible public interest in disclosure. The agency has invoked Exemption 7(D) to withhold information gathered from private citizens, provided by private corporations, or supplied by state and local law enforcement agencies and to protect the identities of confidential informants. See Garmon Affidavit at pp. 10-11. Exemption 7(D) applies, in part, to information that "could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation." 5 U.S.C. § 552(b)(7)(D). The Secret Service considers the information it received from private citizens and private corporations to be confidential. Garmon Affidavit at p. 10. This kind of information may be withheld pursuant to Exemption 7(D). See Shaw v. FBI, 749 F.2d 58, 62 (D.C.Cir.1984). To the extent that release of this information would reveal the identities of confidential sources, then this exemption has been properly invoked. See supra; Birch v. United States Postal Service, 803 F.2d 1206, 1212 (D.C. Cir.1986). Finally, the information supplied by state and local law enforcement agencies was provided with the understanding that it would remain confidential. Garmon Affidavit at p. 11. Therefore, Exemption 7(D) coverage is appropriate. See Lesar, supra, 636 F.2d at 491. Finally, the Secret Service has claimed Exemption 7(F) on the ground that disclosure of this information to plaintiff constitutes disclosure to the general public and that the agents involved in the investigation, as well as others who supplied information, may be subjected to retaliation. The Court finds that the agency's affidavit in support of this exemption is insufficient. However, since the agency claims that "[a]ll material in Secret Service files which was denied to the plaintiff ... for the reason that such information is exempt from disclosure under the provisions of" Exemptions 5, 7 (C), 7(D), and 7(F), the failure of its Exemption 7(F) claim has no impact on the Court's decision to grant the agency's motion to dismiss this action. Plaintiff has also moved for the production of a Vaughn index and for in camera inspection of the withheld documents. In light of the Court's decision on the merits, these motions are moot and must be denied. An Order in accordance with this Opinion shall be issued on even date herewith.	{ "pile_set_name": "FreeLaw" }
746 F.Supp. 1076 (1990) UNITED STATES of America, Plaintiff, v. John Manuel WILLIAMS and Eric Demitries Patt, Defendants. No. 89-NCR-89G. United States District Court, D. Utah, C.D. August 15, 1990. 1077 Richard D. Parry, U.S. Atty's. Office, Salt Lake City, Utah, for plaintiff. Harry Caston, Salt Lake City, Utah, for Williams. Donald C. Hughes, Ogden, Utah, for Patt. MEMORANDUM DECISION AND ORDER J. THOMAS GREENE, District Judge. Following a jury trial, on January 25, 1990, the defendants in the above entitled case were found guilty of the offense of distributing "crack" cocaine and of two counts of possession with the intent to distribute "crack" cocaine. Defendant Williams was represented by Harry Caston and defendant Patt was represented by Donald C. Hughes, Jr. Counsel for the government was Assistant United States Attorney Richard D. Parry. 1078 The initial pre-sentence reports filed by the U.S. Probation Office established a sentencing guideline range of 188 to 235 months for defendant Williams and a range of 151 to 188 months for defendant Patt. Both defendants moved the court for departure from their recommended sentences on the ground that their Constitutional rights to due process of law were violated by the manner in which they were singled out for federal prosecution as opposed to state prosecution, thereby becoming subject to minimum mandatory sentences and the federal sentencing guidelines.[1] The court has heard substantial oral argument on two different occasions regarding the due process issue, and the parties have submitted supplemental memoranda on this issue pursuant to a request from the court for further briefing. Being now fully advised, the court sets forth this Memorandum Decision and Order. BACKGROUND Defendants' due process challenge to their proposed sentences is primarily based on the way in which their cases came to be presented to the United States Attorney's office for federal prosecution.[2] Defendants were arrested in Ogden, Utah on December 9, 1989, through the efforts of local law enforcement officials who were part of the Weber/Morgan Narcotics Strike Force ("Strike Force"). The Strike Force is an intergovernmental law enforcement group involving funds and personnel from Morgan and Weber counties, municipalities within Weber and Morgan counties, and various agencies of the State of Utah and of the United States government, including the federal Drug Enforcement Administration ("DEA"). An "Interlocal Agreement" has been entered into by participating entities of the Weber/Morgan Narcotics Strike Force, which contains certain policies and procedures of the Strike Force. This agreement states that the Strike Force was created "for the purpose of investigating and prosecuting the illegal importation, manufacture, use, and sale of controlled substances under state, federal, and local laws." Strike Force Interlocal Agreement, p. 2. The Interlocal Agreement establishes the Strike Force with two governing boards: an Administrative Board, which acts "in an advisory capacity;" and an Executive Board, which is "vested with voting authority to govern and regulate the Strike Force." Id. No attorneys from the U.S. Attorney's office are members of either of the two Strike Force governing boards. Id. at 2-4. The Strike Force Interlocal Agreement is silent on the subject of how and on what basis cases are chosen to be referred to the U.S. Attorney's office for federal prosecution, and who is responsible for making this determination. The Interlocal Agreement requires that "[p]articipating jurisdictions shall refer all controlled substance investigations within their jurisdiction to the Strike Force. The Strike Force may decline any case for cause." Id. at 6. The Interlocal Agreement also provides that "[a]ll participants hereto agree that personnel contributed to the Strike Force shall follow Strike Force policy and procedures in case of conflict with their own policy and procedure. Otherwise, each officer shall be bound by his own department's 1079 policies while acting for the Strike Force." Id. at 9 (emphasis added). However, the agreement does not set forth any applicable policy or procedure or articulate on what basis cases are to be referred by the Strike Force to either state or federal prosecutors after an individual has been arrested. The decision by the Strike Force to refer the defendants to the United States Attorney's office for federal prosecution had far reaching consequences inasmuch as these young defendants[3] thereby became subject to mandatory sentences in excess of ten years under the federal sentencing scheme. If the Strike Force had instead chose to refer the defendants to the Weber County Attorney's office for prosecution in state court, and if they had been convicted of these same crimes in state court, the defendants would only face an indeterminate sentence of 1 to 15 years under Utah law,[4] but more likely would serve a sentence in accordance with the non-binding sentencing matrix promulgated by the Utah Board of Pardons and used by Utah district courts. The matrix used in state courts and applicable to these defendants was presented to the court. The matrix shows that if defendant Patt had been convicted in state court his recommended prison sentence likely would be eighteen months. Defendant Williams' recommended state sentence likely would be either eighteen or twenty one months, depending on his criminal history calculation. DISCUSSION I. No Express Strike Force Policy Exists Regarding Referral of Cases for Federal Prosecution Although federal law authorizes cooperation among federal, state and local agencies concerning traffic in controlled substances,[5] in the case of the Strike Force in question no federal prosecutor was a member of the governing board or had any part in the determination to refer the cases away from state prosecution over to federal prosecution. Law enforcement officials made the decision and exercised the discretion concerning referral for federal prosecution in this case. As previously discussed, the Strike Force Interlocal Agreement does not set forth any stated policy on the subject of how the Strike Force law enforcement officers are to select cases for referral to federal prosecutors. In this particular case, the defendants could have been referred to the U.S. Attorney's office for any number of reasons, some of which would have been clearly impermissible and others which would have been entirely appropriate. Counsel for defendants suggested that these defendants could have been singled out for federal prosecution and the attending penalties because they are black, or because they are from California, or even because somebody 1080 needed the statistics for a promotion.[6] On the other hand, the government argued that this was one of the largest crack cocaine arrests in Ogden and that the case could have been referred for federal prosecution to make an example of these defendants and hopefully to stop any trend of crack cocaine distribution in that area. II. Procedural Due Process Requires a Referral Policy Defendants contend that their procedural due process rights were violated in that the decision to refer their cases for federal prosecution as opposed to state prosecution directly impacted their potential sentences in a dramatic way; that the decision was not subject to public scrutiny and easily could have been made in an arbitrary and capricious manner inasmuch as such decisions are not governed by any written policy statement of the Strike Force; and that the decision was made by police officers, rather than by prosecutors in the exercise of prosecutorial discretion. The Supreme Court stated the following in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), regarding when procedural due process applies: Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss." The question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment. Id. at 481, 92 S.Ct. at 2600 (citations omitted). It is not an exaggeration that the decision by the Strike Force police officers to refer a defendant for federal or state prosecution is a substantial and indeed crucial factor in the ultimate sentence that the defendant will receive if convicted. The significance of this decision is magnified by the wide disparity between the mandatory drug crime sentences under federal law as opposed to less severe indeterminate sentences under state law for the same underlying conduct. As noted earlier, if these defendants had been convicted in state court they likely would have received a sentence of less than two years. However, because their cases were referred to the U.S. Attorney's office for federal prosecution, and the prosecutions were successful, defendants face a minimum mandatory sentence of ten years adjusted upwards to between 188 to 235 months for defendant Williams and between 151 to 188 months for defendant Patt due to the sentencing guidelines. Because of the significant impact of the Strike Force's decision to refer the defendants to federal prosecutors on the defendants' potential prison sentences, which involves liberty interests of the highest kind, the court finds that procedural due process protections are required. III. What Process is Due Having determined that due process applies to the Strike Force referral decision, it remains to be decided what process is due. In this regard, the Supreme Court in Morrissey stated: Once it is determined that due process applies, the question remains what process is due. It has been said so often by 1081 this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the governmental function involved as well as of the private interest that has been affected by governmental action." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (emphasis added). In order to determine what process is due, the governmental function involved in the Strike Force referral process must be analyzed. The "private interest that has been affected by governmental action," id., has already been identified. Traditionally the office of a prosecuting attorney, such as the U.S. Attorney's office, is afforded a wide array of discretion in matters such as whether to prosecute an individual whom police have arrested, what charges to file, and whether to offer a plea agreement. See generally United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); United States v. Thomas, 884 F.2d 540, 544 (10th Cir.1989). Similarly, law enforcement officials are afforded discretion in matters of investigation and arrest of criminal suspects. See, e.g., DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (due process not violated by county's failure to protect child against abuse by his father). The questioned practice in this case, however, does not fit within the discretionary provinces stated above. In this case, police officers, not prosecutors, within the Strike Force are exercising unfettered and unchecked discretion as to which cases to refer to one of two prosecuting entities the U.S. Attorney's office or the relevant County Attorney's Office. The court is unaware of any expressed policy or factors that the Strike Force considers when making this awesome determination. Of course, police officers in other contexts refer cases to a prosecutor's office. But, where an intergovernmental police agency such as the Weber/Morgan Narcotics Strike Force arrests a suspect, that police agency has to choose between two different prosecuting entities, and the consequences of that referral decision in terms of the suspect's ultimate potential sentence are staggering. Because of this direct impact on the defendants' potential sentences, the wide deference typically afforded to executive branch law enforcement practices is not appropriate to the Strike Force referral decision. Limiting the discretion of the Strike Force police with regard to the referral decision is especially warranted in light of the limited discretion that the court is afforded under the new federal sentencing scheme. In a 1962 Harvard Law Review article, Professor Sanford H. Kadish analyzed the exercise of police and court discretion in relation to the aims of our criminal justice system. The analysis is equally applicable today. He concluded thusly: In the police area the existence of discretion may be eliminated in particular situations, or at least substantially reduced, as for example by legislative revision, but in other situations there is no alternative to accepting its existence, given the uses we want to make of the criminal law. As for sentencing discretion, it is plain that the alternative to the existence of discretion is an unacceptable reversion to the strict classical view of a fixed statutory penalty for designated offenders. Few would doubt that this is a price too great to pay for the full extension of the rule of law. 1082 Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 Harv. L.Rev. 904, 929 (1962). Congress, through the minimum mandatory sentencing statutes and the sentencing guidelines, has severely curtailed the discretion of the court at sentencing, but no similar limitation has been placed on the exercise of discretion of police officers or prosecutors. This situation results in de facto sentencing by police and prosecutors. Other federal courts have been troubled by the combination of executive branch discretion and the new federal sentencing scheme. In United States v. Roberts, 726 F.Supp. 1359 (D.D.C.1989), modified, United States v. Holland, 729 F.Supp. 125 (D.D.C.1990) (H. Greene, J.), the court held the minimum mandatory statutes and the federal sentencing guidelines, unconstitutional on due process grounds, particularly as applied to the District of Columbia.[7] In Roberts, the court noted that the U.S. Attorney for the District of Columbia had the ability to exercise unchecked discretion regarding filing cases in the local court system or in federal court. Because of the grossly disparate penalties associated with this determination of forum, and other inequities, the court held that certain federal defendants' due process rights had been violated. The U.S. Attorney's office for the District of Utah does not presently have this choice of forum like its Washington, D.C. counterpart. However, defendants maintain that the discretion vested in Strike Force police officers is not only analogous to the discretion successfully challenged in Roberts, but that it presents a worse situation because it is being made by police officers instead of prosecutors.[8] Court imposed restrictions on the discretion of police officers is often justified in order to safeguard Fifth and Fourteenth Amendment rights to due process of law.[9]See, e.g. Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (due process requires persons in police custody to receive necessary medical attention); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Powell, J., concurring) (defense of entrapment could be analyzed under due process clause under certain circumstances); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957) (coercive tactics used by police to extract a confession violates due process); Benigni v. City of Hemet, 879 F.2d 473 (9th Cir.1988) (excessive and unreasonable police conduct can be basis for due process claim). In addition, courts have often determined that statutes and regulations violate constitutional due process rights if they are so vague as to give police and other governmental officials too much discretion in enforcement. See, e.g. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (loitering statute); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (flag desecration statute); Marcus v. Search Warrant of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961) (obscenity statute); Bence v. Breier, 501 F.2d 1185 (7th Cir. 1974), cert. denied, 419 U.S. 1121, 95 S.Ct. 804, 42 L.Ed.2d 821 (1975) (police discipline policy). The cases regarding unconstitutionally vague statutes do not directly apply to the instant case inasmuch as the defendants herein are not challenging the language of any particular statute or ordinance with which they have been charged. However, the due process concern in those cases is analogous to defendants' concerns in the instant case. If 21 U.S.C. section 873the code provision that authorizes the federal *1083 government to become part of entities such as the Weber/Morgan Strike Forcehad specified the basis that cases would be referred to federal prosecutors, then the due process problem in this case likely would not exist. The same can be said about the lack of any articulated policy in this regard within the Strike Force Interlocal Agreement. The actual reasons why the defendants in this case were selected for prosecution in the federal forum is not known, and probably never will be known. However, it is precisely because of the inability to measure the referral decision against an objective and constitutionally permissible standard that this court finds that the defendants' procedural due process rights have been violated. IV. Remedy for Lack of Referral Policy In this case, having no policy and no accountability whatsoever for the important referral decision by Strike Force police officers fosters an atmosphere where this decision can be based upon inappropriate and capricious factors, violative of these defendants' Constitutional rights to due process of law. In fashioning an appropriate remedy applicable to this particular situation, the court is sensitive to the respective provinces of the Executive and Judicial branches under our form of government. As the Supreme Court explained in United States v. Russell, 411 U.S. 423, 435, 93 S.Ct. 1637, 1644, 36 L.Ed.2d 366 (1973), "[t]he execution of the federal laws under our Constitution is confided primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations." Consistent with this broad remedial framework, the court concludes that in order to remedy the procedural due process violation in subsequent cases, the Strike Force must establish and follow a constitutionally permissible policy with regard to what cases it shall refer to the U.S. Attorney's office for federal prosecution. Articulation of the contours of this policy is not for this court to decide, but is left to the discretion of the Strike Force governing boards. However, until such written policy is promulgated, the court will continue to consider due process challenges to sentences of defendants who are referred for prosecution here by the Weber/Morgan Narcotics Strike Force. This decision has prospective application only, and therefore shall not be construed to affect similarly situated defendants whose cases were referred to the U.S. Attorney's office for the District of Utah by the Weber/Morgan Narcotics Strike Force before the entry date of this decision. Having concluded that defendants' due process rights were violated by the manner in which the Strike Force singled them out for federal prosecution, the court holds that the sentences to be imposed on defendants Williams and Patt will be imposed irrespective of the relevant federal minimum mandatory statutes, 21 U.S.C. section 841(b), and also irrespective of the federal sentencing guidelines issued pursuant thereto by the Federal Sentencing Commission. The state penalties and sentencing matrix for cocaine possession and distribution will be considered at sentencing as well as other pertinent information about the defendants. See 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); cf. United States v. Boshell, 728 F.Supp. 632 (E.D.Wash.1990). IT IS SO ORDERED. NOTES [1] Both defendants also argued that their recommended sentences violated the Eighth Amendment prohibition against cruel and unusual punishment. The court rejects departure from the defendants' recommended sentences on that basis in light of the recent Tenth Circuit decision in United States v. Colbert, 894 F.2d 373 (10th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 2601, 110 L.Ed.2d 281 (1990) (sentence of 264 months for conspiracy to distribute crack cocaine was not cruel and unusual punishment). See also Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (sentence of 20 years for possession of nine ounces of marijuana with intent to distribute was not cruel and unusual punishment). [2] Defendants urged several other due process theories in support of departure from their recommended sentences, including the argument that the minimum mandatory statutes and the sentencing guideline scheme causes a de facto displacement of control over sentencing from the judge to the prosecuting attorney. The court does not reach these alternative arguments in light of its decision today. [3] Defendant Patt is 19 years old and defendant Williams is 20 years old. [4] Distribution and possession with the intent to distribute cocaine is a second degree felony under Utah law. Utah Code Ann. § 58-37-8(1)(b)(i) (1990). Persons convicted of a second degree felony in Utah may be sentenced to prison for an indeterminate term "not less than one year nor more than 15 years." Id. at § 76-3-203(2). [5] Drug enforcement groups such as the Weber/Morgan Narcotics Strike Force are organized for the laudable purpose of coordinating drug interdiction efforts of federal, state and local governments. In fact, federal law specifically authorizes the United States Attorney General to enter into such cooperative arrangements: (a) The Attorney General shall cooperate with local, State, and Federal agencies concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, he is authorized to (1) arrange for the exchange of information between governmental officials concerning the use and abuse of controlled substances; (2) cooperate in the institution and prosecution of cases in the courts of the United States and before the licensing boards and courts of the several States. . . . . . 21 U.S.C.A. § 873 (1981 & Supp.1990) (emphasis added). The only guidance that this statute can be construed to provide relative to the issue of referring cases for federal as opposed to state prosecution is that the U.S. Attorney's office is to "cooperate" in this regard. The Utah code contains an almost identically worded statute directing state and local law enforcement officials to cooperate with federal officials. See Utah Code Ann. § 58-37-12 (1990). [6] Defendants also proffered the affidavit of Utah attorney Robert Echard to suggest another inappropriate reason why some drug defendants (though not the defendants in the instant case) are referred to federal authorities as opposed to state authorities. Mr. Echard's affidavit states that he represented an individual in state court on a charge of possession with intent to distribute crack cocaine. At a preliminary hearing in March 1990 held in Utah's Second Circuit Court in Ogden, the prosecuting attorney for the state told Mr. Echard that "it might be in the defendant's best interest to plead to the state charge so that federal charges would not be brought against him making the defendant subject to the potentially greater penalties." Affidavit of Robert Echard at ¶ 5. Using the threat of federal prosecution as a means of encouraging suspects to plead guilty to less severe state charges is an evil that could easily flow from the present lack of any objective factors or policy statement regarding what cases shall be referred to federal authorities. Cf. United States v. Saunders, 728 F.Supp. 3, 5 (D.D.C.1989) (J. Green, J.) (critical of U.S. Attorney's office in Washington, D.C. for "using its ability to prosecute in either the federal or District of Columbia courts as a threat to induce defendants to plead to charges brought in Superior Court."). [7] See also United States v. Saunders, 728 F.Supp. 3 (D.D.C.1989) (J. Green, J.); United States v. Boshell, 728 F.Supp. 632, 637-38 (E.D.Wash. 1990) (McNichols, J.). [8] In United States v. Thomas, 884 F.2d 540 (1989), the Tenth Circuit did reaffirm the exercise of prosecutorial discretion in connection with the sentencing guidelines against a claim of violation of due process of law. However, Thomas did not involve the rightful scope of police discretion in connection with the guidelines, or the more particular procedural due process question of how cases are to be referred to federal or state prosecutors. [9] The Fourteenth Amendment is also involved in this case inasmuch as state and local law enforcement officials were also responsible for the decision to refer the defendants' cases to the U.S. Attorney's office.	{ "pile_set_name": "FreeLaw" }
252 Md. 207 (1969) 249 A.2d 456 STATE OF MARYLAND v. SEDACCA [No. 9, September Term, 1968.] Court of Appeals of Maryland. Decided January 21, 1969. 208 The cause was argued before HAMMOND, C.J., and MARBURY, BARNES, FINAN and SINGLEY, JJ. Alfred J. O'Ferrall, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, David T. Mason, Assistant Attorney General, and Edwin H.W. Harlan, Jr., State's Attorney for Harford County, on the brief, for appellant. Cypert O. Whitfill, with whom were T. Carroll Brown and Stanley Getz on the brief, for appellee. BARNES, J., delivered the opinion of the Court. The appellee, Morris Sedacca, was convicted in the Circuit Court for Harford County (DYER, J.), without a jury, of transportation and possession of untaxed cigarettes in violation of Code (1957), Article 81, Section 455. Sedacca raised three defenses in the trial court, i.e., (1) that the statute was unconstitutional on its face, (2) that the statute was unconstitutional as applied to him in the pending case, and (3) that the search and seizure of the cigarettes on November 12, 1965 was an unreasonable and unconstitutional search and seizure so that the cigarettes as evidence against him should have been suppressed by the trial court for this reason. Judge Dyer, after taking substantial testimony and hearing the arguments of counsel for the accused and for the State, rendered a comprehensive and careful written opinion in which he resolved all of the three issues against Sedacca, so far as the violation of Section 455 was concerned, but rendered a verdict of not guilty for alleged violations of Sections 438 and 463 of Article 81. The trial court, on June 7, 1966, sentenced Sedacca to imprisonment for one year 209 in the Maryland House of Correction and to pay a fine of $500, but suspended the jail sentence upon Sedacca's good behavior and without supervision by the Maryland Department of Parole and Probation upon condition that the fine be paid within the week of sentence. Sedacca paid the fine together with $36 court costs to the Clerk of the Circuit Court for Harford County and the trial court, upon Sedacca's petition, ordered the clerk to deposit the $500 fine in a special account until the final decision of the case by this Court. On appeal to the Court of Special Appeals, the judgment of the trial court was reversed. The Court of Special Appeals was of the opinion that the search and seizure was unlawful and found it unnecessary to consider the two constitutional issues raised by Sedacca in regard to the statute, itself. We granted certiorari on March 12, 1968. As we disagree with the conclusion of the Court of Special Appeals in regard to the validity of the search and seizure in this case, it becomes necessary for us to consider the constitutional issues raised by Sedacca in regard to the statute and decided in the trial court. We will consider them in the order indicated and finally will consider the issue in regard to the validity of the search and seizure. Sedacca, a New York policeman, on the morning of November 12, 1965 purchased 858 cartons of cigarettes in North Carolina. He received from the seller a slip of paper having on it the date with the name of a service station, but with the name of the purchaser left blank, which indicated the following: "11 1/2 case King $ 1,290.30 1 1/2 " 25 Car. Reef 216.45 __________ Paid $ 1,500.75 (with the signature of the seller) 53 Car. King 99.11 ___________ $ 1,599.86 $ 1,500.75" On the back of the paper appears: "13 x 60 780 78 ______ 858" 210 Sedacca placed some of the cartons of cigarettes on the rear floor of his two-door 1964 Plymouth sedan, registered in his name in New York State, and the remaining cigarettes in the trunk of his car. The cigarettes on the rear floor of the car were between eight and twelve inches below the level of the windows. He covered the top of the pile of cigarette cartons in the rear of his car with a green chenille double bedspread, on top of which he placed a sweater. He hung his overcoat on a window peg. He testified that the bedspread completely covered the cigarettes top, sides, front and back. He then started back to New York. He stopped in Maryland at the Maryland House service area on the John F. Kennedy Memorial Highway, Interstate Route No. 95, at about 8:45 a.m. He first stopped at the Texaco Service Station, which is located to the south of the Maryland House itself, where he had his automobile serviced and filled with gasoline. Approximately ten minutes later, he proceeded to the adjoining parking lot, parked his car, and after checking the chenille bedspread to see that it completely covered the cigarettes in the rear seat area, he locked his automobile and entered the Maryland House to use the rest room and get a cup of coffee. Two state troopers, Trooper Landbeck and Trooper Shockley, had received information over their radios describing a particular automobile, northbound, which was possibly transporting untaxed cigarettes. The troopers observed an automobile on the parking lot at the Maryland House fitting the description they had received by radio and they also observed that the rear of this vehicle appeared to be heavily loaded. When Sedacca returned from the Maryland House to his automobile, the troopers decided that they would observe the car for any possible traffic violation. Sedacca, according to the troopers, proceeded from his parked position and ran through a stop sign in the service area. Sedacca denied that he failed to stop as required by the stop sign but this factual issue was resolved against Sedacca by the trial court. Sedacca was immediately pursued by the troopers and was stopped approximately one-eighth of a mile on the highway by Trooper Landbeck, who stopped his unmarked Maryland State Police car about five or six feet behind Sedacca's automobile. Trooper Landbeck got out of his automobile, and he and Sedacca met 211 near the rear of Sedacca's car. Sedacca inquired why he had been stopped and Trooper Landbeck told him that he had failed to stop for a stop sign upon leaving the parking lot. Sedacca testified that he stated: "I had stopped for the sign, but if he thought I didn't, well, I'm sorry, I apologize." Trooper Landbeck then asked for Sedacca's driver's license and registration card, which were produced, and asked what was Sedacca's occupation. Sedacca stated that he was a New York City police officer and asked if Trooper Landbeck "could grant me some consideration in view of the fact that I didn't believe I went through the stop sign, I believed I stopped, plus the fact that we were both policemen." Sedacca testified that Trooper Landbeck made no reply; Trooper Landbeck testified he stated: "I told him flat, no, I could not do that." Trooper Shockley then arrived and told Sedacca that he and Trooper Landbeck had seen him "run a stop sign." When asked by Trooper Shockley where he was coming from, Sedacca stated "Florida," although this was not correct. Sedacca stated that he did this because "I didn't want Corporal Shockley to become overly suspicious of what I was carrying." The troopers decided to check the serial number of the Plymouth against the registration card. Here again the testimony is conflicting, Trooper Landbeck stating that he asked Sedacca if he would mind if Landbeck checked the serial number and if he (Sedacca) would open the door. Trooper Landbeck stated further that Sedacca, himself, opened the door, but Sedacca denies this, stating that Trooper Landbeck opened the door. Trooper Shockley could not remember who opened the door and the trial court merely found that "the door was opened," but did not find by whom it was opened. In any event, the door was opened and Trooper Landbeck either squatted down on his toes or knelt down to observe the serial number which did match the serial number appearing on the registration card. It was necessary to get close to the serial number which appeared on the door post some 18 inches from the ground in order to see it. While in the squatting or kneeling position, Trooper Landbeck glanced at the material stored in the rear seat area and observed that the spread had slipped away from the bottom of the pile exposing an area approximately 10 inches by 10 inches of a cardboard carton on which 212 the word "Kool" was visible. Upon questioning, Sedacca admitted that he was carrying untaxed cigarettes (although Sedacca stated he "avoided an answer.") and he was then told that he was also charged with transporting untaxed cigarettes. Agents of the cigarette tax unit were notified and when they arrived at the scene some 30 to 45 minutes later. Sedacca told them that he was transporting untaxed cigarettes, that he did not have an invoice, and that he had additional cigarettes in the trunk of his automobile. Sedacca was taken to the office of the Sheriff of Harford County, an agent of the Comptroller's office swore to and obtained a warrant for Sedacca's arrest for violation of the three provisions of Article 81 already mentioned and the cigarettes were transferred from the Plymouth to the automobile of the agents. In regard to the traffic violation, Sedacca posted $13 as collateral which he later forfeited. The troopers conceded that they followed Sedacca's automobile to see whether or not there would be any violations of the traffic laws and also to see, if possible, what the contents of the rear portion of the car might be. The trial court found that "The Trooper who did the checking admitted to the additional motive that the opening of the car door might reveal the contents in the rear." (1) Sedacca contends that the provisions of Section 455 were too vague and indefinite to create a criminal offense of transporting untaxed cigarettes in interstate commerce without a proper invoice or delivery ticket, and therefore his conviction under such a vague and indefinite statute deprives him of due process of law as prohibited by Article 23, of the Declaration of Rights of the Maryland Constitution and the Fourteenth Amendment to the Constitution of the United States. We do not agree. Section 455, which was in force on November 12, 1965, provided in relevant part as follows: "Every person who shall transport cigarettes upon which a tax is imposed by this subtitle, not stamped as required by this subtitle upon the public highways, roads or streets of this State shall have in his actual possession invoices or delivery tickets for such cigarettes, 213 which shall show the true name and address of the consignor or seller, the true name of the consignee or purchaser, the quantity and brands of the cigarettes so transported. If the cigarettes are consigned to or purchased by any person in Maryland such purchaser or consignee must be a person who is authorized by the State Tobacco Tax Act to possess unstamped cigarettes in this State. In the absence of such invoices or delivery tickets, or, if the name or address of the consignee or purchaser is falsified or if the purchaser or consignee in this State is not authorized to possess unstamped cigarettes, the cigarettes so transported shall be subject to confiscation. * * * "Transportation of cigarettes from a point outside this State to a point in some other state will not be considered a violation of this section provided that the person so transporting such cigarettes has in his possession adequate invoices, bills of lading or delivery tickets which give the true name and true address of such out-of-State seller or consignor and such out-of-State purchaser or consignee." (Emphasis supplied.) As originally enacted by the Acts of 1958, Chapter 1, Section 455 (then Section 438) did not contain the italicized portions of the section. The italicized portions were added by the Acts of 1963, Chapter 344. By Section 431 (Section 414 of the original Act) there was "levied and imposed a tax to be paid and collected, as hereinafter provided, on all cigarettes used, possessed or held in the State of Maryland by any person for sale or use in the State of Maryland on or after July 1, 1957." (Emphasis supplied.) Section 432 (Section 415 in the original Act) enumerated the exemptions among which is that the tax shall not apply "to sales or uses which are not within the taxing power of this State under the Constitution of the United States." By Section 439 (Section 422 in the original Act), it is provided: "It shall be presumed that all cigarettes possessed or held in the State of Maryland after July 1, 1957 are subject to the tax herein levied and imposed unless 214 and until the contrary is established, and the burden of proof that such cigarettes are not taxable hereunder shall be upon the possessor thereof." (Emphasis supplied.) Then follow provisions for the affixing of stamps, various enforcement and licensing provisions, provisions in regard to the making and maintenance of records, provisions in regard to investigation by the Comptroller or his authorized agent and then come the provisions in regard to the transportation of cigarettes of which Section 455 is one. It will thus be seen that Section 455 is an important provision for the enforcement of the cigarette tax and taken together with the presumption established by Section 439, it applied to all unstamped cigarettes transported on the State's highways so that invoices or delivery tickets were required for all unstamped cigarettes whether or not they might be ultimately determined to be subject to exemption under the statute. It is the failure of the transporter of unstamped cigarettes to have in his actual possession the invoices or delivery tickets with the required information which is the crime established by Section 455. The words "upon which a tax is imposed by this subtitle" does not, in our opinion, make the criminal provision vague or indefinite because, as we have indicated, Section 439 presumptively imposes the tax on all cigarettes possessed or held in Maryland after July 1, 1957. It is in this statutory setting that the Act of 1963, Chapter 344 was passed which added the italicized portions of Section 455 to which reference has already been made. It is clear to us that the amendments of 1963 were intended to strengthen the existing provisions of Section 455. The first two amendments strengthened the enforcement provision by an additional requirement that the Maryland consignee or purchaser must be a person authorized by the statute to possess unstamped cigarettes in Maryland. The third amendment strengthened the original statutory provision by indicating that the transportation of cigarettes from outside of Maryland to a point in some other state would not be considered a violation if the transporter had in his possession adequate invoices, bills of lading or 215 delivery tickets which give the true name and true address of the out-of-state seller or consignor and the out-of-state purchaser or consignee. In short, the legislative intent was not to weaken or eliminate the requirement that the interstate transporters have adequate and accurate invoices and delivery tickets but was to require in addition, that such transporters have such invoices, delivery tickets and bills of lading giving the names and addresses of the out-of-state sellers or consignors and purchasers and consignees. It is clear to us that a person of common intelligence construing the statute would be adequately informed that if he is transporting unstamped cigarettes through Maryland, he must have the required documents or be guilty of the misdemeanor provided in the statute. Such persons would not be required to guess at its meaning or differ in regard to its application. See Cramp v. Board of Public Instruction, 368 U.S. 278, 286-87, 82 S.Ct. 275, 280-81, 7 L.Ed.2d 285, 292 (1961). Inasmuch as there is no doubt in regard to the scope of the statute, the question of a construction in favor of the taxpayer and against the State does not arise. See Comptroller of the Treasury v. M.E. Rockhill, Inc., 205 Md. 226, 234, 107 A.2d 93, 98 (1954). Sedacca contends that the title of the Laws of 1963, Chapter 344 did not indicate a legislative intent to create a substantive crime for the transporting of cigarettes in interstate commerce without the requisite documents. The title to the Act of 1963, Chapter 344 was as follows: "AN ACT to repeal and re-enact, with amendments, Sections 444 1/2, 453 and 455 of Article 81 of the Annotated Code of Maryland (1962 Supplement), title `Revenue and Taxes', sub-title `State Tobacco Tax Act', providing for the sealing of vending machines found in violation of the law and prescribing penalties for tampering with such seals, to make the provisions for assessments conform to the imposition of the tax and to make such assessments liens on the property of the taxpayer, and to provide that consignees of unstamped cigarettes in Maryland must be authorized 216 to receive the same, AND RELATING GENERALLY TO THE SALE AND USE OF SUCH CIGARETTES." As we have seen, however, the substantive crime was already in existence under the original provisions of the Acts of 1958. Chapter 1 and the addition of the second paragraph was a strengthening provision, not the creation of a new substantive crime. The title to the Acts of 1963, Chapter 344 is entirely consistent with the legislative intent as we have set it forth.[1] In our opinion, the provisions of Section 455 are constitutional on their face. (2) Sedacca, however, contends that even if Section 455 is constitutional on its face, it is unconstitutional so far as he is concerned, inasmuch as the proof in this case establishes that the cigarettes were in interstate commerce and the State of Maryland cannot constitutionally require carriers of goods in interstate commerce to possess designated documents. Sedacca correctly points out that Article 1, Section 8, Clause 3 of the Constitution of the United States gives the power to the Congress to regulate interstate and foreign commerce and that this power is supreme and plenary. It is a limitation upon the power of the States but the Supreme Court of the United States has never held that the States are without the power to impose any form of regulation of goods moving in interstate commerce. As Mr. Justice Frankfurter, for the Supreme Court, aptly stated in Freeman v. Hewit, 329 U.S. 249, 253, 67 S.Ct. 274, 277, 91 L.Ed. 265, 272 (1946): "But, in the necessary accommodation between local 217 needs and the overriding requirement of freedom for the national commerce, the incidence of a particular type of State action may throw the balance in support of the local need because interference with the national interest is remote or unsubstantial. A police regulation of local aspects of interstate commerce is a power often essential to a State in safeguarding vital local interests." The police regulation in Section 455 requiring the possession of the prescribed documents by interstate transporters of cigarettes was necessary for the safeguarding of the State's vital interest in preventing the diversion of cigarettes into illicit channels of trade in Maryland where the State would be unable to collect its tax. The police regulation is a reasonable one, is one with which honest and law abiding citizens can readily comply and is no impediment to the free flow of trade and commerce between the several States. Indeed, the Supreme Court has sustained a State regulation upon interstate transportation which is far more stringent than that imposed by Section 455. In Carter v. Commonwealth of Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605 (1944) the Supreme Court, independently of the Twenty-first Amendment, sustained an Act of the Commonwealth of Virginia which required a carrier transporting intoxicating liquor through the Commonwealth (1) to use the most direct route and have in its possession a bill of lading showing the route to be used; (2) post a bond in the penal sum of $1,000 conditioned upon lawful transportation through the Commonwealth; and (3) have in its possession a bill of lading showing the name of the true consignee and also showing that the consignee had a legal right to receive the intoxicating liquor at the stated destination. In view of the Supreme Court's decision in Carter, it appears unlikely that the Supreme Court would hold the milder regulation imposed by Section 455 to be an unreasonable State burden on interstate commerce. Sedacca further contends, however, that by the passage of the Act of October 19, 1949, and its amendments, 15 U.S.C. §§ 375-78, in regard to the collection of State cigarette taxes, Congress has preempted the field of State cigarette tax law enforcement 218 and the provisions of Section 455 are therefore ineffective and void. We do not agree with this contention. 15 U.S.C. § 376 requires any person selling or transferring for profit cigarettes in interstate commerce whereby such cigarettes are shipped into a state taxing the sale or use of cigarettes to other than a distributor licensed by, or located in the state, to file with the Tobacco Tax Act Administrator of the state (defined in § 375 (5) as the State official authorized to administer its cigarette tax law in the present case, the Comptroller), a statement setting forth his name, trade name, and addresses of places where his business is conducted. This section of the Federal Statute also requires the filing with the Tobacco Tax Administrator of the state a memorandum or a copy of the invoice covering each and every shipment of cigarettes made into the state, which in each case must indicate the name and address of the person to whom the shipment was made as well as the brand and the quantity thereof. The purpose of Congress in passing the Act of October 19, 1949 (the Jenkins State Cigarette Taxes Act) as stated in Senate Report No. 644 of the Senate Committee on Finance (which repeated in substance the House Report on the same bill) was as follows: "The purpose of this bill is to assist the States in collecting State-imposed sales and use taxes on cigarettes. THE NEED FOR THIS LEGISLATION "The avoidance of States sales and uses taxes on cigarettes by interstate shipments in States taxing cigarettes is depriving the States of large amounts of sorely needed revenue. It is believed that this revenue loss to the States amounts to approximately $40,000,000 annually. Moreover, it is the general opinion of the State tax administrators that the percentage of loss, as well as the aggregate loss, is steadily mounting throughout the 40 States that now impose cigarette taxes. This is particularly deplorable in view of the fact that many of the States earmark revenues from their cigarette taxes for such uses as payment of veterans' bonuses, public assistance, education, aid to the blind, 219 and the improvement of penal and charitable institutions. * * * "Accordingly, your committee believes that respect for the laws of the sovereign States will be furthered by the passage of this bill and that the public interest will be served by eliminating any inference that the Federal Government approves the circumventing of State laws." (Emphasis supplied.) (1949, U.S. Code Cong. Service, at 2158-60.) It is entirely clear that Congress did not attempt to preempt the field of state enforcement of its sales and use taxes on cigarettes; on the contrary, the declared purpose of the legislation and the provisions of the legislation indicate that the Federal legislation is intended to assist and supplement the enforcement of the state laws. The amendments to the original Federal Act by the Act of August 15, 1953 and the Act of August 9, 1955 in no way changed the purpose of the original Act; on the contrary, they further strengthened and extended the purpose of the original Act. See 1955, U.S. Congressional and Administrative News at 2883-85. It is clear that the provisions of the Federal statute do not purport to cover all of the aspects of the enforcement of the state cigarette tax laws, as, for example, the wholesale and retail dealers who sell or transfer for profit to others cigarettes in interstate commerce who will ultimately transfer them to other states without paying the state tax. As we have indicated, there was no intention on the part of the Congress to preempt the field of state enforcement; rather the congressional intent was to strengthen and effectuate state enforcement of the cigarette tax laws. See Consumer Mail Order Ass'n. v. McGrath, 94 F. Supp. 705 (D.D.C. 1950); aff'd., Mem., 340 U.S. 925, 71 S.Ct. 500, 95 L.Ed. 668 (1951); Neeld v. Giroux, 24 N.J. 224, 228-29, 131 A.2d 508, 511 (1957). 15 U.S.C. § 378 gives the United States District Courts jurisdiction to prevent and restrain violations of the Federal Act and § 377 provides that the violation of any provision of 220 the Federal Act is a misdemeanor with punishment of a fine of not more than $1000 and imprisonment for not more than 6 months, or both. These provisions have been held not to give the Federal Courts exclusive jurisdiction of enforcement and the power of enforcement also remains in the state courts. Angelica Co. v. Goodman, 52 Misc.2d 844, 276 N.Y.S.2d 766 (Sup. Ct. N.Y. County 1966). In our opinion, the provisions of Section 455 are not invalid as unreasonable restraints upon interstate commerce or as regulations in an interstate commerce regulatory area in which Congress has preempted the field. (3) We now come to the last question to be considered, i.e., whether or not the search and seizure of the cigarettes under the circumstances stated above was unconstitutional as conflicting with Sedacca's constitutional rights under the Fourth Amendment to the Constitution of the United States against an unreasonable search and seizure, under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Buettner v. State, 233 Md. 235, 196 A.2d 465 (1964). Judge (later Chief Judge) Prescott stated, for the Court, in Buettner: "It is true that Mapp extended to state criminal prosecutions the prohibition against the use by the State in a criminal proceeding of evidence obtained as the result of an illegal search and seizure. However, the Fourth Amendment, which is, of course, controlling does not proscribe all searches and seizures made without a search warrant, but it inhibits `unreasonable' searches. United States v. Rabinowitz, 339 U.S. 56; Givner v. State, 210 Md. 484, 124 A.2d 764." (233 Md. at 239, 196 A.2d at 467) In view of the fact the search and seizure of the untaxed cigarettes was made without a warrant, the question presented to us for decision on this point is whether or not the search and seizure was unreasonable. It is well established, as pointed out in the opinion of the Court of Special Appeals in this case, that an arrest may not 221 be used as a mere pretext to search for evidence. That court concluded from its examination of the circumstances, that the arrest of Sedacca "for the traffic violation was merely an excuse to search the car for evidence of another suspected crime" (2 Md. App. at 622, 236 A.2d at 313), and hence the search and seizure was unreasonable. We do not agree with this conclusion. The testimony and the findings of the trial court indicate to us that the arrest of Sedacca was a bona fide arrest for a traffic violation committed in the presence of the troopers. Code (1957), Article 66 1/2, Section 233 (b) requires the driver of a vehicle to come to a full stop in obedience to a stop sign. The violation of this section is made a misdemeanor and is punishable by a fine under Article 66 1/2, Section 235 (d). Sedacca, as a non-resident, was not entitled to have a summons issued for the offense (Article 66 1/2, Section 321) but was required to be taken to the nearest magistrate for a hearing or for the posting of bond. See Article 66 1/2, Section 320. In spite of Sedacca's somewhat half-hearted and apologetic denial that he failed to stop in obedience to the stop sign, the weight of the evidence supports the trial court's finding of fact that he did violate this provision of the Maryland law. Sedacca posted $13 collateral for the traffic violation and subsequently forfeited this collateral. The testimony does indicate that the troopers had a suspicion that Sedacca's automobile was carrying untaxed cigarettes and that they were hopeful that if and when a violation of the motor vehicle laws occurred in their presence, they might possibly obtain sufficient information as a result of the arrest of Sedacca for that crime and an investigation incident to that arrest, to discover what was being transported in the rear section of the heavily loaded vehicle. It was a legitimate part of the investigation incident to the apprehension of Sedacca for the bona fide traffic violation, to check the serial number of the vehicle against the serial number appearing on the registration card, as this might indicate whether or not the automobile was, prima facie, a stolen vehicle. The trial court found that the trooper "who did the checking admitted to the additional motive that the opening of the car might reveal the contents in the rear." (Emphasis supplied.) The trooper who checked the serial number on the 222 door had two motives, one to make a bona fide and routine check of the serial number, the other to ascertain if possible in the usual and normal course of that check of the serial number, what was contained in the rear portion of the vehicle. In our opinion, this was proper under the circumstances of the arrest for the violation of the motor vehicle law and the check of the serial number was not a "mere pretext" to discover what was contained in the rear portion of the Sedacca vehicle. Fortunately, the diligence of the troopers was rewarded by the fact, found by the trial court, that the word "Kool" appeared on the side of a large brown cardboard carton in the rear of the car, which indicated, prima facie, that Sedacca was indeed transporting untaxed cigarettes. This was confirmed by Sedacca upon questioning and later, upon the rather prompt arrival of the tax agents of the Comptroller's office (they arrived within 30 to 45 minutes), Sedacca admitted that he was carrying untaxed cigarettes and did not have the required invoice or bill of lading. The tax agents then arrested Sedacca, searched the vehicle and found the 858 cartons of untaxed cigarettes, which they confiscated. In Musgrove v. State, 1 Md. App. 540, 232 A.2d 272 (1967), a detective of the Prince George's County Police was assigned to investigate the theft of two motorcycles. From information he had received, he suspected that Musgrove, the appellant in that case, was connected with the theft of the motorcycles. After looking for Musgrove for approximately a month and one-half, he saw him driving a motorcycle out of a parking lot without stopping. The detective then issued a ticket to Musgrove and at the same time proceeded to check the serial number listed on Musgrove's registration card against the serial number on the motorcycle. The detective observed that the serial number was crudely stamped on the crank case and when he questioned Musgrove, it was admitted by Musgrove that he had altered the serial number. Musgrove was convicted of larceny of two motorcycles. The traffic violation, however, was dismissed when the arresting detective did not appear at the traffic hearing. On appeal to the Court of Special Appeals, Musgrove contended that the traffic violation was a mere pretext for the arresting officer to make a search and seizure which he otherwise was 223 without authority to make. The detective had admitted at the trial that the stopping of Musgrove for the traffic violation gave him an opportunity to inspect the motorcycle. In affirming Musgrove's conviction, the Court of Special Appeals aptly stated: "The United States Supreme Court, as well as a number of other courts, has stated that an arrest may not be used as a mere excuse or pretext to search for evidence. [Citing United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 and a number of Federal and state cases.] It is also well established, however, that an arrest for a misdemeanor being committed in the presence of a law enforcement officer authorizes a reasonable search of the arrestee's person and property under his control. Harris v. U.S., 331 U.S. 145; Stokes v. State, 1 Md. App. 253, 256; Braxton v. State, 234 Md. 1, 6; Jenkins v. State, 232 Md. 529, 535; Knotts v. State, 237 Md. 417, 421. "In this case the evidence is that the Appellant was stopped by the officer for a traffic violation committed in the officer's presence. It was the officer's right to insure that the registration card displayed to him by the Appellant indicated that he was properly in possession of the vehicle he was driving. When it became evident that the identity of the vehicle could not be established because of the obliterated serial number on the frame and the apparent tampering with the serial number on the crankcase, the officer was within his rights in requesting the Appellant to accompany him to police headquarters in order to make a proper identification of the vehicle. "The fact that the officer had been looking for the Appellant for a period of over a month as a result of his suspicion that the Appellant had stolen a motorcycle or that the legitimate stopping of the Appellant afforded him an opportunity to inspect the vehicle does not, in our opinion, alter the legality of his action in this case." (1 Md. App. at 546-47, 232 A.2d at 276.) See also our decisions in Braxton v. State, 234 Md. 1, 197 A. 224 2d 841 (1964) and Cornish v. State, 215 Md. 64, 137 A.2d 170 (1957), both of which involved bona fide arrests for traffic violations committed in the presence of the police officer, who, however, suspected that the accused was guilty of more formidable crimes. Judge (now Chief Judge) Hammond, for the Court, stated in Braxton: "Although a reasonable belief that appellant had committed a felony may not be availed of, it is our view that there may be reliance on the companion rule that a peace officer may make an arrest without a warrant for a misdemeanor which has been or is being committed in his presence, if he has reasonable grounds for belief that the person he arrests committed it. Price v. State, supra, and cases cited therein at p. 35 of 227 Md." (234 Md. at 5, 197 A.2d at 843.) In Brown v. State, 91 So.2d 175 (Fla. 1956), a deputy sheriff in Florida was on the lookout for Brown's automobile because of a tip he had received. He followed the vehicle and observed that it veered from side to side. After stopping the automobile, Brown admitted he had been drinking and when questioned about the jugs on the rear floor of the car, admitted that he was carrying intoxicating liquor. Brown was convicted of violating the Florida liquor laws and on appeal contended that the search and seizure was unconstitutional. In affirming his conviction, Mr. Justice Thornal, for the Supreme Court of Florida, stated: "A search pursuant to a lawful arrest is perfectly legal. Admittedly the officer in this instance had been `on the look-out' for appellant's automobile because of a `tip' from a beverage agent. However, this record clearly indicates that the appellant himself invited his arrest and subsequent search by his own conduct in the operation of the motor vehicle. We do not have here a nebulous or `flimsy' charge of violating traffic laws * ." (91 So.2d at 177.) The Federal cases also support our conclusion that the search and seizure in this case was not unreasonable. See Cook v. 225 United States, 346 F.2d 563 (10th Cir.1965); Hutcherson v. United States, 345 F.2d 964 (D.C. Cir.1965), cert. den. 382 U.S. 894 (1965); Welch v. United States, 361 F.2d 214 (10th Cir.1966), cert. den. 385 U.S. 876 (1966); Massey v. United States, 358 F.2d 782 (10th Cir.1966), cert. den. 385 U.S. 878 (1966). Even if it be assumed, for the argument, that Sedacca did not open the car door for Trooper Landbeck or even consent to the opening of the door, this would not, in our opinion, have made the checking of the serial number on the door post of the car illegal. As we have indicated, checking of the serial number is a normal and ordinary police procedure in motor vehicle investigations. This action would not be a search, per se, and even if it be deemed to be a search, it was not an unreasonable search. As Circuit Judge Duniway stated, for the United States Court of Appeals for the Ninth Circuit, in Cotton v. United States, 371 F.2d 385, 394 (9th Cir.1967): "[W]e are of the opinion that, when a policeman or a federal agent having jurisdiction has reasonable cause to believe that a car has been stolen, or has any other legitimate reason to identify a car, he may open a door to check the serial number, or open the hood to check the motor number, and that he need not obtain a warrant before doing so in a case where the car is already otherwise lawfully available to him." Trooper Landbeck, being lawfully in the position he was in, had the right to look toward the rear portion of the car and, inasmuch as the word "Kool" was plainly visible, to proceed as he did. As was stated in the per curiam opinion of the Supreme Court of the United States in Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, 1069 (1968): "The sole question for our consideration is whether the officer discovered the registration card by means of an illegal search. We hold that he did not. The admissibility of evidence found as a result of a search under the police regulation is not presented by this *226 case. The precise and detailed findings of the District Court, accepted by the Court of Appeals, were to the effect that the discovery of the card was not the result of a search of the car, but of a measure taken to protect the car while it was in police custody. Nothing in the Fourth Amendment requires the police to obtain a warrant in these narrow circumstances. "Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 U.S. 23, 42-43 (1963); United States v. Lee, 274 U.S. 559 (1927); Hester v. United States, 265 U.S. 57 (1924)." In our opinion, the search and seizure in this case was not unreasonable. Judgment of the Court of Special Appeals reversed and case remanded to the Circuit Court for Harford County for distribution to the proper officials of Harford County of the $500 fine presently held in a special account in accordance with the order of June 7, 1966 of the Circuit Court for Harford County, the appellee, Morris Sedacca, to pay the costs in this Court, in the Court of Special Appeals and in the Circuit Court for Harford County. NOTES [1] Section 455 was further clarified by the provisions of the Acts of 1966, Chapter 117 which eliminated the words "upon which a tax is imposed by this subtitle, not stamped as required by this subtitle," and substituted the words "not bearing Maryland cigarette stamps." This change was stated in the title of the Act "to clarify the provisions relating to transportation of cigarettes." By this same Act the offense was changed from a misdemeanor to a felony. In our opinion, this clarifying legislation did not change in any essential manner, the criminal provisions already set forth in Section 455.	{ "pile_set_name": "FreeLaw" }
962 F.2d 6 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Charles Sonny BOSTIC, Plaintiff-Appellant,v.NORTH CAROLINA DIVISION OF PRISON, Correctional Sections atOfficials Liable, Defendant-Appellee. No. 91-7332. United States Court of Appeals,Fourth Circuit. Submitted: January 8, 1992Decided: May 21, 1992 Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (MISC-91-261-5-BO) Charles Sonny Bostic, Appellant Pro Se. E.D.N.C. AFFIRMED. Before RUSSELL, WILKINSON, and WILKINS, Circuit Judges. OPINION PER CURIAM: 1 Charles Sonny Bostic appeals from the district court's order which denied him leave to file his 42 U.S.C. § 1983 (1988) complaint because he did not comply with the court's pre-filing review order. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Bostic v. North Carolina Division of Prisons, No. MISC-91-261-5-BO (E.D.N.C. Oct. 17, 1991). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED	{ "pile_set_name": "FreeLaw" }
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ No. 01-60835 Summary Calendar __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. KATIE FAIR BEASLEY Defendant - Appellant. __________________ No. 01-60836 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. DWAYNE BROWN Defendant - Appellant. __________________ No. 01-60837 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. BETTY BURNETT Defendant - Appellant. __________________ No. 01-60838 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. ORA CAIN Defendant - Appellant. __________________ No. 01-60839 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. MELISSA CARTER Defendant - Appellant. __________________ No. 01-60840 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. 2 ZINNIE MAE COLLINS Defendant - Appellant. __________________ No. 01-60841 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. JESSIE COLVIN Defendant - Appellant. __________________ No. 01-60842 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. MATTIE LEE CONNER Defendant - Appellant. __________________ No. 01-60843 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. J C DOSS 3 Defendant - Appellant. __________________ No. 01-60850 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. WILLIAM DAVIS Defendant - Appellant. __________________ No. 01-60851 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LEONARD CHARLES NAYLOR Defendant - Appellant. __________________ No. 01-60853 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LOUISE HARRELL Defendant - Appellant. 4 __________________ No. 01-60854 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. KAREN HARRIS Defendant - Appellant. __________________ No. 01-60855 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. MARGARET WATT HARRISON Defendant - Appellant. __________________ No. 01-60856 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. EDDIE HEARD; TORSHA HEARD Defendants - Appellants. __________________ 5 No. 01-60857 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. JACQUELINE HICKS-RANDLE Defendant - Appellant. __________________ No. 01-60858 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. EMMA HILL Defendant - Appellant. __________________ No. 01-60859 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LOUISE HOWARD Defendant - Appellant. __________________ No. 01-60860 6 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. BOBBY C JOHNSON; LARRY JOHNSON Defendants - Appellants. __________________ No. 01-60861 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. ARETHA CLARK JORDAN; JAMES M JORDAN Defendants - Appellants. __________________ No. 01-60862 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. KAREN BOYD MCFARLAND; JORDAN T MCFARLAND Defendants - Appellants. __________________ No. 01-60863 __________________ 7 AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. ROSIE MARTIN Defendant - Appellant. __________________ No. 01-60864 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. THALMUS R MORGAN Defendant - Appellant. __________________ No. 01-60866 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. KATHY MOSIER Defendant - Appellant. __________________ No. 01-60867 __________________ 8 AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. BOBBY NASH Defendant - Appellant. __________________ No. 01-60868 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. REBECCA NAYLOR Defendant - Appellant. __________________ No. 01-60869 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. UNDRA SAWYER Defendant - Appellant. __________________ No. 01-60870 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; 9 FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. DELOIS SLEDGE Defendant - Appellant. __________________ No. 01-60871 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LINDA FAYE SMITH Defendant - Appellant. __________________ No. 01-60872 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. PRESTON TALLIE Defendant - Appellant. __________________ No. 01-60873 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA 10 Plaintiffs - Appellees v. LEXIE TATE Defendant - Appellant. __________________ No. 01-60874 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LEROY WATT Defendant - Appellant. __________________ No. 01-60875 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LES WILBON Defendant - Appellant. __________________ No. 01-60876 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees 11 v. ARTHUR LEE WILLIAMS Defendant - Appellant. __________________ No. 01-60877 __________________ AMERICAN HERITAGE LIFE INSURANCE COMPANY; FIRST COLONIAL INSURANCE COMPANY OF FLORIDA Plaintiffs - Appellees v. LAKIESHA YOUNG Defendant - Appellant. ______________________________________________ Appeal from the United States District Court for the Northern District of Mississippi, Aberdeen 1:00-CV-375-D-A ______________________________________________ May 22, 2002 Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges. PER CURIAM:* Appellants Katie Beasley, Dwayne Brown, Betty Burnett, Ora Cain, Melissa Carter, Zinne Mae Collins, Jessie Colvin, Mattie Lee Conner, J.C. Doss, William Davis, Leonard Charles Naylor, Louise Harrell, Karen Harris, Margaret Watt Harrison, Eddie Heard, Torsha * 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. 12 Heard, Jacqueline Hicks-Randle, Emma Hill, Louise Howard, Bobby Johnson, Larry Johnson, Aretha Clark-Jordan, James Jordan, Rosie Martin, Karen Boyd McFarland, James McFarland, Thalmus Morgan, Kathy Mosier, Bobby Nash, Rebecca Naylor, Undra Sawyer, Deloise Sledge, Linda Faye Smith, Preston Tallie, Lexie Tate, Leroy Watt, Les Wilbon, Arthur Lee Williams and Lakiesha Young (collectively “Beasley”) filed suit against Appellees American Heritage Life Insurance Company and First Colonial Insurance Company in Mississippi state court (collectively “Heritage”). Heritage then filed the instant actions pursuant to 9 U.S.C. § 4, seeking to stay the state court proceedings and compel arbitration. In separate orders, the district courts for the Northern and Southern districts of Mississippi granted Heritage this relief. Beasley appeals and we affirm. DISCUSSION A. Jurisdiction “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims. It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking. This is the first principle of federal jurisdiction.” Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (citation omitted). As the party asserting federal jurisdiction, Beasely bears the burden of demonstrating that jurisdiction is proper. Id. 13 9 U.S.C. § 16(a)(3) provides jurisdiction over appeals from “final decision[s] with respect to an arbitration.” Interpreting 9 U.S.C. § 16(a)(3) in Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000), the Supreme Court held that Congress intended the term final decision in Section 16(a)(3) to have its ordinary meaning, to wit, “a decision that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.” Id. at 86. Here, the only issue before the district court was whether to compel arbitration. When it did so, there was nothing more for it to do but execute judgment. Heritage contends that the district court stayed the federal action and that therefore the order compelling arbitration was not final. See Randolph, 531 U.S. at 87 n.2 (“Had the District Court entered a stay instead of a dismissal in this case, that order would not be appealable.”).2 This factual contention is not supported by the record. Heritage did not request a stay of the federal proceedings and the district court order does not provide for one; because, unlike in Randolph, the federal action did not contain any substantive claims, there was nothing for the district courts to dismiss. Accordingly, we conclude that we have jurisdiction to hear this appeal. B. McCarran-Ferguson Act Beasely contends that section two of the Federal Arbitration 2 We express no opinion on the question whether the district court had discretion to enter such a stay. 14 Act (the “FAA”) has been reverse preempted. See 9 U.S.C. § 2 (“A written provision in any...contract...to settle by arbitration a controversy thereafter arising out of such contract...shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”). In so arguing, Beasely relies on the McCarran-Ferguson act and a declaration of the Commissioner of Insurance for the Mississippi Insurance Department, which indicates that it was the policy of the Mississippi Insurance Department to withhold its approval from insurance policies containing arbitration clauses.3 The district courts’ conclusions that the FAA, as applied to insurance contracts, has not been reverse preempted by the McCarran-Ferguson Act in Mississippi is a legal question we review de novo. See e.g., Moore v. Liberty Nat’l Life Ins. Co, 267 F.3d 1209, 1220 (11th Cir. 2001). “By its terms, the [McCarran-Ferguson Act] permits a state law to reverse pre-empt a federal statute only if: (1) the federal statute does not specifically relate to the ‘business of insurance,’ (2) the state law was enacted for the ‘purpose of regulating the business of insurance,’ and (3) the federal statute operates to ‘invalidate, impair, or supersede’ the state law. There is no question that the FAA does not relate specifically to the business of insurance. Thus, we need only 3 Apparently this is no longer the policy of the Commissioner of Insurance. 15 address the last two requirements.” Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 590 (5th Cir. 1998). The only enactments identified by Beasely in support of her contention that the FAA has been reverse-preempted are Miss. Code. Ann. § 83-53-294 and Miss. Code. Ann. § 83-53-15.5 Neither of these statutes address the propriety of arbitration clauses in insurance contracts, they are simply general statutes vesting regulatory authority over insurance in the Commissioner of Insurance. Clearly, the FAA does not directly impair either of these statutes. A conclusion that these general statutes reverse-preempted the FAA would be equivalent to a conclusion that all federal laws which could potentially indirectly affect the regulation of insurance have been preempted. Beasely provides no argument or authority 4 Section 83-53-29 provides: “The commissioner may, after notice and hearing, issue any rules and regulations that he deems necessary to effectuate the purposes of this chapter or to eliminate devices or plans designed to avoid or render ineffective the provisions of this chapter. The commissioner may require such information as is reasonably necessary for the enforcement of this chapter. All rules and regulations adopted and promulgated pursuant to this chapter shall be subject to the Mississippi Administrative Procedures Law.” 5 Section 83-53-29 provides, in pertinent part: “All policies, certificates of insurance, notices of proposed insurance, applications for insurance, endorsements and riders delivered or issued for delivery in this state, and the schedules of premium rates pertaining thereto, shall be filed with the commissioner for his approval prior to use. If after filing, the commissioner notifies the insurer that the form is disapproved, it is unlawful for the insurer to issue or use the form.” 16 supporting such a sweeping result. As noted above, Beasely appears to rely on a declaration from the Commissioner of Insurance, indicating that it was his policy to withhold his approval from insurance forms containing arbitration clauses. As an initial matter, it is undisputed that the arbitration clause at issue was not in an insurance contract, it was in a loan agreement. Nonetheless language in the McCarran- Ferguson Act evinces Congress’ unambiguous intent to accord reverse-preemptive effect solely to “enact[ed]” state law. Beasely has provided no argument or authority to the contrary. CONCLUSION In light of the foregoing analysis, we AFFIRM. 17	{ "pile_set_name": "FreeLaw" }
375 S.W.2d 447 (1964) Willie Clyde RIDLER, Appellant, v. The STATE of Texas, Appellee. No. 36441. Court of Criminal Appeals of Texas. January 22, 1964. Rehearing Denied March 4, 1964. 448 John Cutler, Houston, for appellant. Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State. MORRISON, Judge. The offense is aggravated assault on a peace officer; the punishment, two years. Officer Moore of the Houston Police Department testified that on the night in question while traveling in a patrol car, he observed a fight in progress in the street, that five or six males and one female were involved, that he dismounted and as he approached the group, "somebody hollered, `There is the police!', and they all fled with the exception of the defendant * * and as I approached him, he turned on me with a knife in his left hand and attempted to cut me, he did cut my shirt * * * above the belt line." The officer's uniform shirt was introduced in evidence without objection. He further testified that appellant was finally subdued and placed in jail. Appellant called Betty Jean Starks, who testified that she was appellant's commonlaw wife, but was not living with him at the time, that appellant came to her house on the day in question, got their son and left, but later returned without the child, and a fight between them ensued. She stated that appellant was armed with a knife during the fight inside the house, but that when they repaired to the street, where the fight continued, he had put the knife away. She stated that the officer came up to where they were fighting, grabbed appellant from behind, and said, "you have a knife on me", but stated that she saw no knife in appellant's hand at the time and did not see him cut the officer. Appellant testified that the fight arose over Betty Jean's refusal to go to a "beer joint" with him; he admitted that he had his knife open while they were fighting inside the house, but stated that he had placed it in his pocket still open when they went out into the street. He denied that he had the knife in his hand or that he cut the officer. He testified that he was treated brutally both at the scene of the arrest and at the police station. Officer Moore was recalled and denied that he applied any force toward appellant except that which was necessary to get the knife away from him and to place him in the patrol car. The jury resolved the conflict in the evidence against the appellant, and we find it sufficient to support the conviction. *449 Only two questions are presented by brief and in argument. Appellant first contends that error is reflected by the asking of the following question of Betty Jean: "That night you went to Judge W. C. Ragan, that night, and filed a charge on him." Appellant's objection and motion for mistrial were overruled, but the question was not answered in the jury's presence. After the perfection of the bills of exception in the jury's absence by which it was shown that the complaint against appellant growing out of his attack upon Betty Jean was still pending; the witness was shown a complaint and asked if it bore her signature and she replied in the affirmative. She was then asked if she had read the complaint before signing it, and she said she had not. The complaint identified by the witness does not appear in the record. Appellant insists that the questions set forth above constituted a violation of Article 732a Vernon's Ann.C.C.P., which prohibits proof (for the purpose of impeachment) of the pendency of a complaint which has not resulted in a final conviction. Appellant relies upon Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875; Kassner v. State, 161 Tex.Cr.R. 646, 279 S.W.2d 341, and Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267. An examination of each of these cases and the other cases annotated under said article indicates that the court has construed such statute to relate to indictments, information and complaints relating to offenses alleged to have been committed prior or subsequent to the case then on trial. Here appellant called Betty Jean as his own witness, and she testified that appellant was in the act of committing an assault upon her at the time Officer Moore arrived upon the scene. It is evident that it was the intent of the Legislature by enactment of Article 732a, supra, to exclude extraneous offenses for impeachment which had not resulted in a conviction. No injury to appellant could arise and the statute is not violated where accused calls a witness who testifies on direct examination concerning an offense committed by accused upon such witness, and the State then develops the fact that the witness charged accused in a court of law with the commission of the offense about which the witness had just testified. This is especially true in a case such as the one at bar where appellant admitted having hit the witness on the face and having bit her ear. In Lunsford v. State, 159 Tex.Cr.R. 82, 261 S.W.2d 591, we said, "Since the appellant first interrogated the witness on the matter, we see no error in permitting the State to fully cross-examine her concerning the same." Appellant objected to the court's charge on the grounds that it failed to instruct the jury on the defendant's right of imperfect self defense. Such question is not in the case because appellant and his witnesses denied that appellant struck or cut the officer at all. Finding no reversible error, the judgment is affirmed.	{ "pile_set_name": "FreeLaw" }
537 U.S. 995 JACOBSv.MCCAUGHTRY, WARDEN. No. 01-8204. Supreme Court of United States. October 21, 2002. 1 535 U.S. 995; Petitions for rehearing denied.	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas May 24, 2019 No. 04-19-00250-CR Jesus GAONA, Appellant v. The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR9347 Honorable Catherine Torres-Stahl, Judge Presiding ORDER Pursuant to a plea-bargain agreement, appellant pleaded guilty to possession of a controlled substance in an amount between 4 grams and 200 grams with the intent to deliver. The trial court assessed punishment at five years’ imprisonment with a $1,500.00 fine. On March 26, 2019, the trial court signed a certification of defendant’s right to appeal stating that this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). “In a plea bargain case ... a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.” Id. 25.2(a)(2). The clerk’s record, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. The clerk’s record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave its permission to appeal. See id. The trial court’s certification, therefore, appears to accurately reflect that this is a plea-bargain case and that appellant does not have a right to appeal. We must dismiss an appeal “if a certification that shows the defendant has the right of appeal has not been made part of the record.” Id. 25.2(d). This appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that appellant has the right to appeal is made part of the appellate record by June 24, 2019. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). We ORDER all appellate deadlines be suspended until further order of the court. _________________________________ Irene Rios, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 24th day of May, 2019. ___________________________________ KEITH E. HOTTLE, Clerk of Court	{ "pile_set_name": "FreeLaw" }
465 P.2d 573 (1970) STATE of Hawaii v. Alfred LEE also known as Alfred Samuel F.M. Moy. No. 4793. Supreme Court of Hawaii. February 12, 1970. 574 Francis T. De Mello, Honolulu, for appellant. John Campbell, Jr., Deputy Pros. Atty., Barry Chung, Pros. Atty., Honolulu, for respondent. Dennis C.H. Leong, H.K. Bruss Keppeler, Deputy Attys. Gen., Bert T. Kanbara, Atty. Gen., for amicus curiae. Before RICHARDSON, C.J., MARUMOTO, ABE and LEVINSON, JJ., and M. DOI, Circuit Judge, for KOBAYASHI, J., disqualified. RICHARDSON, Chief Justice. Appellant was cited on May 15, 1968, for failing to wear a safety helmet as required by HRS § 286-81(1) (A): "No person shall: (1) Operate a motorcycle or motor scooter on any highway in the State unless he and any passenger he carries on the motorcycle or motor scooter wears (A) a safety helmet securely fastened with a chin strap * ." Appellant was convicted. 575 He appeals from a judgment sustaining the constitutionality of the statute. "The term `police power' connotes the time-tested conceptional limit of public encroachment upon private interests. * * * The classic statement of the rule in Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1964) (1894), is still valid today: `To justify the state in [thus] * * * interposing its authority in behalf of the public, it must appear First, that the interests of the public [generally, as distinguished from those of a particular class] * * * require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.'" Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962). Appellant argues that the first precondition required by the due process clause of the U.S. Constitution to the exercise of the police power by the legislature enumerated above, namely, "it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference" has not been met. He contends that other members of the public at large are not affected in a deleterious manner, if indeed at all, by the conduct regulated by this statute; that the only realistic effect of the statute is to compel motorcyclists to take precautionary measures so that they will not harm themselves; that harm to self or harm to a particular class is not within the public interest and is outside the scope of the police power to legislate in the public interest. The State argues that decreasing fatalities and injuries from motorcycle accidents does impinge directly on the public interests in three respects: (1) economic impact: (a) lessens burden on public agencies such as hospitals, medical and ambulance facilities; (b) reduces addition to the public assistance roles of disabled motorcyclists and their dependents or survivors; (2) "flying missile theory": loose stones on the highway or fallen objects may strike the motorcyclist on the head, thus causing him to lose control and become a menace to other vehicles on the highway; (3) the increase in fatalities and serious injuries is so alarming, so widespread and of such grave dimension that it threatens the very fabric of society. The legislature has clearly stated its purpose. "Deaths of persons and injuries to them and damage to property with the other losses suffered on account of highway traffic accidents are of grave concern to the State and its citizens as well as to the federal government. The legislature finds and declares that it is in the public interest that the State initiate, coordinate and accelerate every available means to decrease the fatalities, injuries, damages and losses resulting from highway traffic accidents." S.L.H. 1967, c. 214, § 1. It is true that courts often attribute to statutes the constitutionally permissible objectives which the statute might plausibly be construed to reflect, rather than that purpose which the statute in fact, or most probably, reflects. See, e.g., Two Guys from Harrison-Allentown, Inc., v. McGinley, 366 U.S. 582, 81 S.Ct. 1135; 6 L.Ed.2d 551 (1961); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). However, where the legislature has clearly stated its purpose, we are reluctant to attribute other purposes, unless the facts underlying such other purposes are clearly and convincingly shown. In this case the legislature has not alluded to either "economic impact" or the "flying missile theory", there was no evidence introduced by the State to substantiate either argument, and the claimed facts are not susceptible to judicial notice. Thus we are squarely faced with the issue whether the legislature may constitutionally regulate the conduct of an individual so as to require him to protect himself from physical injury and/or death; that is, whether physical harm to self is a proper subject of public interest and thus subject to the police power of the legislature. 576 This case raises a question that goes to the very heart of the nexus between the individual and the state: where does the public interest begin? This is particularly difficult where the purpose of the statute is beneficent, as Justice Brandeis pointed out in his dissent in Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572-573, 72 L.Ed. 944 (1928): "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest danger to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." It is contended that the increase in fatalities and serious injuries largely to people under 25 due to motorcycle accidents is so alarming, so widespread and of such grave dimension that it threatens the very fabric of society. It would seem a necessary implication of such contention that when the physical harm to a group of people due to their own recklessness or imprudence becomes sufficiently widespread the public interest generally is affected. Unfortunately, the State merely asserts this proposition without offering statistical evidence to document the degree and extent of the claimed epidemic of motorcycle injuries and fatalities. However, there is statistical evidence available which is properly susceptible of judicial notice. The Secretary of Transportation's report, "National Uniform Standards for State Highway Safety Programs", H.R. Doc. No. 138, 90th Cong., 1st Sess. (1967), which set up the motorcycle safety helmet as a minimum standard to which state highway safety programs must conform, contained the following background information: "Deaths and injuries from motorcycle accidents doubled between 1963 and 1965. This fact is particularly alarming when it is understood that most of those killed and injured were young people under the age of 25. Motorcycle registrations have jumped from 574,080 in 1960 to 1,914,700 in 1966. By 1970 the annual increase is expected to reach 1 million per year. Motorcycle safety takes on grave dimensions in view of the fact that since 1960 the rate of motorcycle fatalities has increased at about the same rate as the number of motorcycles [i.e., almost 3 ½ times in 6 years]." The New York Department of Motor Vehicles' statistics: "A summary of the Department statistics indicates that 89.2% of the motorcycle accidents result in injury or death and that almost all fatalities occurring as a result of such accidents involve head injuries. Most of these fatalities could have been avoided, or the severity lessened, by the use of a proper helmet." N.Y. Session Laws, pp. 2961, 2962 (McKinney 1966). Michigan State Police data: "Michigan State Police datum 1962-1966 (Exhibit A) shows a mortality rate of 11.5 for 10,000 registrations of motorcycles, as compared with 5.2 per 10,000 for all vehicles in the same period." American Motorcycle Ass'n v. Davids, 11 Mich. App. 351, 158 N.W.2d 72, 75 n. 9 (1968). However, this figure is not reflective of the total statewide picture since " * * accidents which occurred in cities over 25,000 population [were] not included in this summary." Brief for Defendants and Appellees in American Motorcycle Ass'n v. Davids, supra. In our opinion these statistics fairly show that motorcycle accidents are significantly more dangerous than motor vehicle accidents; that there is an enormous increase in motorcycle registrations; that there is a corresponding enormous increase in the number of deaths and injuries due to motorcycle accidents. The question is whether the accelerating rate of deaths and injuries due to motorcycle accidents coupled with the increase in motorcycle registrations has reached such proportions and the class of motorcycle users has become so large and widespread that the continued viability of our society requires that 577 they protect themselves from physical injury or death in short, is the public interest generally affected? We hold that it is. We wish to make it clear that this holding is limited to this case. We start from the proposition that where an individual's conduct, or a class of individuals' conduct, does not directly harm others the public interest is not affected and is not properly the subject of the police power of the legislature. However, where the legislature has determined that the conduct of a particular class of people recklessly affects their physical well-being and that the consequent physical injury and death is so widespread as to be of grave concern to the public and where the incidence and severity of the physical harm has been statistically demonstrated to the satisfaction of the court, then the conduct of that class of people affects the public interest and is properly within the scope of the police power. Of course, where the conduct sought to be regulated is in furtherance of a specific constitutional right, a different situation arises. Having determined "that the interests of the public generally, as distinguished from those of a particular class" is involved, we move on to consider whether "the means are reasonably necessary for the accomplishment of the purpose." Appellant has not referred us to any arguments refuting the reasonableness of the regulation in light of its purpose. Nor has appellant pointed the way to less drastic or less burdensome means by which substantial head injuries to motorcyclists may be prevented. The burden imposed is directly and immediately related to the evil sought to be controlled. The legislation is not broadly prohibitive; a narrower means to protect motorcyclists could hardly be conceived. Appellant also contends that the standard "safety helmet" in the statute is indefinite and subject, by the terms of the regulations, to amendment without notice. We find "safety helmet" to be an adequate standard by which the legislature, the courts, and the public may ascertain the reasonableness of the rules promulgated by the Coordinator. The term is one likely of general ordinary understanding upon which reasonable men may agree. We find "safeguards" by which administrative actions may be reviewed. We find in the history and purpose of the statute a policy sufficient to test regulations adopted by the Coordinator. The rule-making power of the Coordinator, like that of other administrative bodies, if exercised beyond the scope of authority or in contravention of a governing statute, a constitutional provision, or a rule-making procedure, may be challenged by any interested party in the courts without first applying to the agency. HRS § 91-7. Since the approval of owners' helmets under the regulations may not be withdrawn at any time except after a definite period set for re-inspection, the regulations give warning sufficient to satisfy due process. We hold that HRS § 286-81(1) (A) and the regulations promulgated pursuant to it are within the proper exercise of police power. Judgment affirmed. M. DOI, Circuit Judge (concurring). I concur. However, I believe that the purpose of HRS § 286-81(1) (A) is not narrowly confined to protection of an individual from his own folly. In its preamble, the act expresses concern over "deaths of persons and injuries to them and damage to property with other losses suffered on account of highway traffic accidents." This is sufficiently broad to embrace repercussions beyond the immediate interest of the individual alone. A direct beneficiary of the statute's protective thrust may be the individual cyclist, but the scope of its salutary results is not confined to him. Whether by relieving further strain on emergency services or overcrowded medical facilities subsidized by government or by preventing excessive 578 liability, criminal as well as civil, on the part of other users of the highways, all by means of guarding against the significantly increased hazards of serious injury or death to the unhelmeted cyclists in this day of heavy and highspeed traffic, there are real and practical ramifications of substantial interest to others which are well within the ambit of public purpose as distinguished from private concern. Regulating the use of public highways in the interest of safety is a valid state object, the power with respect thereto being "broad and pervasive", "exceptional" in scope, and carrying "a strong presumption of validity when challenged in court." Bibb v. Navajo Freight Lines, 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003. Appellant fails in his challenge in this case. ABE, Justice (dissenting). As stated by the majority of the court, the issue of this case is whether the legislature may constitutionally regulate the conduct of a person for his own safety. I disagree with the majority opinion and I would hold the provision of HRS § 286-81(1) (A) requiring appellant, a motorcyclist, to wear a helmet for his own safety unconstitutional. Courts in other jurisdictions have declared similar laws to be unconstitutional. People v. Fries, 42 Ill.2d 446, 250 N.E.2d 149 (1969); American Motorcycle Ass'n.v. Davids, 11 Mich. App. 351, 158 N.W.2d 72 (1969). I do not question that our legislature, recognizing the special hazards faced by motorcyclists, enacted the statute to prevent the death and injuries of our people resulting from motorcycle mishaps. Nor do I question the beneficent intent of our legislature in enacting the statute because apparently the legislation was enacted to protect immature and reckless, or careless, or foolhardy youngsters and adults, who are unwilling to protect themselves. The general law is that a state has inherent authority under its police power to provide for the needs of the public. Nebbia v. New York, 291 U.S. 502, 524, 54 S.Ct. 505, 78 L.Ed. 940 (1934). No court has and can, I believe, provide a precise definition or standard as to the scope of police power. However, it is the generally recognized doctrine that a state may enact reasonable laws to preserve the public order, safety, health and morals. Nebbia v. New York, supra; Borden Co. v. McCrory, 169 F. Supp. 197 (E.D.La. 1959); Pacific Meat Co. v. Otagaki, 47 Haw. 652, 394 P.2d 618 (1964); State v. Gordon, 143 Conn. 698, 125 A.2d 477 (1956). The United States Supreme Court in Goldblatt v. Hempstead, 369 U.S. 590 (1962) at page 594, 82 S.Ct. 987, at p. 990, 8 L.Ed.2d 130 quotes the rule from Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 38 L.Ed. 385 (1894): "To justify the state in * * * interposing its authority in behalf of the public, it must appear First, that the interests of the public * * * require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." The majority holds that "where the legislature has determined that the conduct of a particular class of people recklessly affects their physical well being and that the consequent physical injury and death is so widespread as to be of grave concern to the public and where the incidence and severity of the physical harm has been statistically demonstrated to the satisfaction of the court, then the conduct of that class of people affects the public interest and is properly within the scope of the police power." In its decision, Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780 (1898), Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908), and West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) are not cited as authority; however, it would appear that the majority of the court is depending on those cases for its proposition. 579 The cases above cited upheld the constitutionality of statutes fixing maximum hours of labor in certain industries as a reasonable exercise of the police power to preserve public health. I would distinguish those cases from the case before us. I agree with the majority that the safety helmet requirement is aimed at preventing a further increase in the toll highway accidents have taken of the state's citizens based on the legislative finding that highway travel presents a special hazard for motorcyclists. However, no matter how beneficent or humane the purpose of the statute, it cannot be upheld unless it is a legitimate exercise of its police power for the public order, safety, health, morals or welfare. I believe our State Constitution specifically recognizes one's right to be let alone. Article I, § 2 provides: "All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possession of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities." There is no question that an individual has a fundamental constitutional right to be let alone liberty to do as he pleases but, of course, subject to reasonable restriction under the police power. Here, one's right to be let alone on a public highway is being infringed in that a motorcyclist is required to wear a safety helmet on pain of criminal punishment for his failure to do so. I believe that the statute in question should not be upheld as a reasonable exercise of police power although the purpose is laudable because the act is essentially a personal safety measure. It is true that the United States Supreme Court has held that a state may legislate for miners[1] in terms of maximum hours of work and wearing apparel in the exercise of its police power for the "general welfare" or "best interest." This concept should not be extended to uphold the constitutionality of HRS § 286-81 (1) (A). It appears that the majority, in upholding the constitutionality of the statute, is adopting the concept that an individual's liberty the right to be let alone may be abridged or infringed by legislative act which may be deemed for the "best interest" of that individual. I believe this principle or concept that a state may determine what is in one of its citizen's "best interest" and may compel him to follow that course of action under pain of criminal punishment, unreasonably infringes upon one's fundamental liberty. My opinion is that a state may only legislate where the "general welfare" is affected, that is, where others are harmed or likely to be harmed. I believe the right of liberty the right to be let alone gives one the right to determine for himself what is for his "best interest," even though many scholars have argued that there is " * * a general decline in the belief that individuals know their own interests best, and * * * an increased awareness of a great range of factors which diminish the significance to be attached to an apparently free choice or * * * consent."[2] Now, the majority having upheld the statute, it would appear that our legislature along the same reasoning could require drivers and passengers in motor vehicles to wear seat belts and shoulder straps, under pain of criminal punishment for their failure to do so. Also, it could require individuals who may use public streets and highways at nights to wear certain clothing manufactured from materials having reflectory 580 characteristics for their personal safety. Then why can't the legislature enact criminal legislation prohibiting the smoking of cigarettes or other tobacco products, or restricting or regulating foods to be consumed, for example, non-fattening food products to prevent obesity? Are we ready to forfeit our individual liberty to a point where legislative discretion is to be the only bar to the determination as to what one may or may not do under the definition of "best interest"? I submit that once a step is taken that the protection of an individual from himself is within the legitimate exercise of the police power, there is no limit to this power and a state can entirely regulate one's life and his way of living. As I have stated, the statute is beneficent and humane, without doubt, and even eminently sensible and wise; nonetheless, I believe it is unconstitutional because it attempts to infringe upon and stifle fundamental personal liberties for one's own safety and is not concerned with the preservation of public order, safety, health and morals, or for the public welfare. Then, the fact that the general public considers it foolhardy to ride a motorcycle without a safety helmet, that reason alone should not be used as a criterion for defining the non-use of a helmet a criminal offense. As stated by Justice Barham in his dissent in Everhardt v. City of New Orleans, 253 La. 285, 300, 217 So.2d 400, 405 (1968): "Although laws have been validly enacted to protect the legally incompetent from their own acts, some of the persons who disregard the most elementary forms of self-preservation are, unfortunately, not legal incompetents, but only fools; and ` * * a fool must follow his natural bent (Even as you and I!)'" NOTES [1] Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780 (1898). [2] Hart, Law, Liberty and Morality, pp. 32-33, 1963 (Reprinted 1965).	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17-2614 PAULA EMERSON, Plaintiff-Appellant, v. THOMAS J. DART, Sheriff of Cook County, Illinois; COOK COUNTY, ILLINOIS; WILLIAM ZURELLA; and DAVID GROCHOWSKI; Defendants-Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 5898 — Milton I. Shadur, Judge. ____________________ ARGUED MAY 30, 2018 — DECIDED AUGUST 14, 2018 ____________________ Before WOOD, Chief Judge, and SYKES and HAMILTON, Circuit Judges. SYKES, Circuit Judge. Paula Emerson is a correctional oﬃcer on leave from the Cook County Department of Cor- rections. She alleges that two County employees unlawfully discriminated against her during her tenure at one of the 2 No. 17-2614 County’s detention facilities. While litigation was underway, Emerson took to Facebook to threaten potential witnesses with legal action if they testiﬁed against her. The district judge sanctioned Emerson for the threat and eventually entered summary judgment for the defendants. We aﬃrm. I. Background The Cook County Department of Corrections hired Emerson as a correctional oﬃcer in April 2005. Years later she transferred to what the parties call “Division 9,” a county-run detention unit that houses maximum-security inmates. Emerson had several duties while there. Primarily she monitored the inmates’ activities and accompanied them to meals and other events. She also cleaned cells, common areas, and restroom facilities on occasion. Emerson’s tenure at the division was tumultuous, to say the least. She frequently butted heads with her colleagues and twice ﬁled formal personnel grievances. The ﬁrst, in 2009, accused two division employees—identiﬁed only as Lieutenant Young and Oﬃcer Heilemann—of racial and sexual harassment. The second, in 2012, alleged that Lieu- tenant David Grochowski improperly changed Emerson’s shift assignments. The record shows that both claims failed: the 2009 grievance was dismissed in 2011, and nothing came of the 2012 complaint. That’s not the end of the story. Emerson claims Grochowski and Sergeant William Zurella, another division supervisor, retaliated against her for ﬁling the grievances. Grochowski allegedly continued to reassign Emerson’s shifts, made malicious comments about her to other employ- ees, and twice assigned her to work alongside Heilemann, a No. 17-2614 3 target of her 2009 complaint. As to Zurella, Emerson claims he failed to assist her while she was supervising a group of inmates in early September 2012. These incidents prompted Emerson to take a leave of absence; she was on paid medical leave from September 2012 until March 2014, and she has remained on unpaid leave ever since. Emerson sued Grochowski, Zurella, Thomas Dart (he is the Cook County Sheriﬀ and had no personal involvement, so we mention him no further), and Cook County. She alleges retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The litigation proceed- ed to discovery, and Emerson came to resent the County’s eﬀorts to gather evidence and rebut her case. So she took matters into her own hands. Posting to a Facebook group shared by more than 1,600 employees of the Department of Corrections, Emerson threatened to sue anyone who testiﬁed against her. She wrote: To my fellow oﬃcers! DON’T GET IN A FIGHT THAT IS NOT, I REPEAT THAT IS NOT YOURS. I’VE JUST RECEIVED THE NAMES OF SOME PEOPLE THAT THE COUNTY IS ATTEMPTING TO USE AS WITNESSES, (1) IS A SGT, (2) OFFICERS, (1) OPR INVESTIGATOR, on the job 18mths, this ﬁght is from 2009 & I’ve been oﬀ since 2012, sooooo do the math. Yes, I will deﬁnitely put your name out there in due time 😊😊. This is a PSA for those of you still believing that being a liar, brown noser will get you something. MESSING WITH ME WILL GET YOU YOUR OWN CERTIFIED MAIL. SO GLAD THAT 4 No. 17-2614 THE ARROGANCE OF THIS EMPLOYER HAS THEM BELIEVING THEIR OWN 💩💩 In response the County moved for sanctions against Emerson, and the district judge granted the motion. He ordered Emerson to pay the County just under $17,000 as compensation for the time it spent opposing her misconduct. Discovery continued without further drama, and soon the defendants moved for summary judgment. The judge granted that motion as well. He ﬁrst concluded that Emerson’s 2012 grievance didn’t qualify as protected activity under Title VII because it did not allege that Grochowski targeted her because of her race, sex, or other protected characteristic. As to the 2009 grievance, the judge deter- mined that Emerson’s claim lacked a key piece of evidence. She had no proof that Grochowski and Zurella ever knew of the grievance, so she couldn’t establish that they harbored the retaliatory motive necessary for a Title VII retaliation claim. II. Discussion Emerson challenges both the summary judgment and the award of sanctions. We review the ﬁrst de novo, Valenti v. Lawson, 889 F.3d 427, 429 (7th Cir. 2018), and the second for abuse of discretion, Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009). A. Title VII Claim To state a retaliation claim under Title VII, “the plaintiﬀ must prove that he engaged in protected activity and suﬀered an adverse employment action, and that there is a causal link between the two.” Lord v. High Voltage Software, No. 17-2614 5 Inc., 839 F.3d 556, 563 (7th Cir. 2016). Emerson falls far short of establishing this prima facie case. She ﬁrst argues that both of her personnel grievances qualify as “protected activity” under Title VII. That’s only half right. “Although ﬁling an oﬃcial complaint with an employer may constitute statutorily protected activity under Title VII, the complaint must indicate [that] the discrimina- tion occurred because of sex, race, national origin, or some other protected class.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). The 2009 grievance includes these kinds of allegations, but the 2012 claim does not. In fact, Emerson admits her second grievance did not “claim that what happened to [her] was due to race, color, national origin, sex, or religion.” So if Emerson has a Title VII retalia- tion claim, it must rest on the 2009 grievance alone. That presents a second obstacle: Grochowski’s and Zurella’s alleged misdeeds count as retaliation only if they had actual knowledge of the 2009 grievance. Nagle v. Village of Calumet Park, 554 F.3d 1106, 1122 (7th Cir. 2009). Emerson has no evidence that they did. Grochowski and Zurella weren’t named in the grievance, Emerson admits she never spoke to either of them about it, and Zurella started working at Division 9 more than two years after Emerson ﬁled her claim. On this record no reasonable jury could conclude that Grochowski or Zurella retaliated against Emerson because of the 2009 complaint. Emerson has one argument in reply. She asks us to im- pute actual knowledge to Grochowski because he twice assigned her to work with Heilemann, a target of her 2009 grievance. That’s not enough to defeat summary judgment. While we draw “reasonable inferences” in Emerson’s favor, 6 No. 17-2614 Mills v. Health Care Serv. Corp., 171 F.3d 450, 459 (7th Cir. 1999) (emphasis added), ﬁnding retaliatory intent on this fact alone would be unvarnished “speculation,” Consolino v. Towne, 872 F.3d 825, 830 (7th Cir. 2017). Emerson’s assertion is a mere guess among the many reasons Grochowski could have assigned her to work alongside Heilemann. And given the other evidence, a mundane explanation stands head and shoulders above the rest: Grochowski had no knowledge of Emerson’s 2012 grievance, so he thought little of scheduling her to work with Heilemann when operational need arose. B. Motion for Sanctions District courts have broad authority to “manage their own aﬀairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962). “Sanctions meted out pursuant to the court’s inherent power are appropriate where the oﬀender has willfully abused the judicial process or otherwise conducted litigation in bad faith.” Salmeron, 579 F.3d at 793. The district judge reasonably concluded that Emerson’s Facebook post merited sanctions under these standards. She targeted and publicly threatened potential witnesses if they spoke out. Emerson’s arguments to the contrary border on prepos- terous. She ﬁrst claims that her pledge to serve “certiﬁed mail” on those who “mess” with her is ambiguous. We see no ambiguity, and neither did Emerson’s intended targets. The County introduced evidence that at least one witness felt threatened by the post and agreed to testify only by declaration under seal. Next, Emerson argues that her Facebook post “can be read fairly as an open call to the union members to testify truthfully” because she threatened only “liars” with legal action. That’s nonsensical. Emerson’s No. 17-2614 7 post was a bald eﬀort to “keep witnesses from testifying,” United States v. Rand, 482 F.3d 943, 950 (7th Cir. 2007), and we have long held that “witness tampering is among the most grave abuses of the judicial process,” Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 782 (7th Cir. 2016). Finally, Emerson challenges the amount of the sanctions award even if it is otherwise proper. This argument has nothing to it. The County submitted a detailed report of the time spent litigating the sanctions issue, and it also sub- mitted an aﬃdavit in support of a proposed hourly rate. The judge calculated the sanction by multiplying these together. See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011) (noting a “strong presumption” that this lodestar calculation method “yields a reasonable attorneys’ fee award”). Emerson does not oﬀer a shred of evidence or argument to explain why this was improper. It is her burden to do so, and we will not rescue her on appeal. See Soler v. Waite, 989 F.2d 251, 253 (7th Cir. 1993) (“The appellant bears the burden of proving the abuse of discretion.”). AFFIRMED.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF IOWA No. 16-1345 Filed January 10, 2018 MICHAEL C. RYAN AND RYAN DATA EXCHANGE, LTD., d/b/a RYDEX, LTD., Plaintiffs-Appellees, vs. BELIN MCCORMICK, P.C., Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Glenn E. Pille (summary judgment) and Donna L. Paulsen (trial), Judges. A law firm appeals a declaratory judgment concerning the extent of its attorney-client relationship with plaintiffs. DECISION VACATED. Mark McCormick and Matthew C. McDermott of Belin McCormick, P.C., Des Moines, for appellant. Kenneth R. Munro of Munro Law Office, P.C., Des Moines, for appellees. Heard by Vogel, P.J., and Tabor and Bower, JJ. 2 BOWER, Judge. Belin McCormick, P.C.,1 a law firm, appeals a declaratory judgment concerning the extent of its attorney-client relationship with Michael Ryan and Ryan Data Exchange, Ltd., doing business as Rydex, Ltd.2 We find the district court improperly determined Rydex and Seneca Distribution, L.C. were involved in a joint venture. We find there is no longer a justiciable controversy concerning the nature, scope, and extent of the attorney-client relationship between Belin and Rydex. We vacate the decision of the district court. I. Background Facts & Proceedings Christopher Risewick and his company, Seneca Distribution, L.C. were long-time clients of Belin.3 Beginning in 1999, Seneca began investing in Rydex, which held patents concerning a wireless fluid delivery control system. Belin performed legal work pertaining to the relationship between Seneca and Rydex. The relationship between Seneca and Rydex later led to litigation between them and with other parties. This case involves just one piece in the larger picture of litigation involving Seneca and Rydex. On May 8, 2015, Rydex filed a declaratory judgment action against Belin, asking for a determination of whether they had an attorney-client relationship, and requesting Belin turn over all documents regarding its legal representation of Rydex. The petition states: WHEREFORE, the Plaintiffs request that the Court enters an Order declaring that Belin McCormick PC had an attorney client 1 We will refer to Belin McCormick, P.C., as Belin. 2 For purposes of brevity, we will generally refer to Ryan and Ryan Data Exchange, Ltd. together as Rydex. 3 We will refer to Risewick and Seneca Distribution, L.C., together as Seneca. 3 relationship with Michael Ryan and Rydex and that Michael Ryan and Rydex are immediately entitled to a full copy of their file, including but not limited to, any and all documents, emails, pleadings, correspondence, discovery, billings, electronically stored data, and any other item of any kind relating to the inventions and U.S. patents that were the subject of the attorney client relationship. Belin admitted it had an attorney-client relationship with Rydex where Rydex’s interests aligned with those of Seneca, but stated the relationship did not encompass the scope Rydex claimed. Belin claimed it did not perform any legal services for Rydex after May 2002. Nonetheless, Belin gave Rydex copies of its work associated with the relationship between Seneca and Rydex from January 2000 through January 2006. Rydex filed a motion for partial summary judgment and Belin also filed a motion for summary judgment. The district court denied the motions, stating, “The scope, extent, and nature of the attorney–client relationship must be determined by the fact-finder and will dictate whether Belin must produce additional documents to Plaintiffs.” A trial was held on April 27 and 28, 2016. In a post-trial brief, Rydex stated: Rydex seeks information beyond this time frame from Belin, and Belin states that Rydex is not entitled to this information as it is outside of the time Belin represented Rydex, and is protected by attorney-client privilege. The determination of whether or not Rydex is entitled to this information requires a finding by this Court that Belin was in violation of disciplinary rules or rules of professional conduct. As noted by the Court at the beginning of this proceeding, that is beyond the scope of this Declaratory Judgment Hearing, and the Court cannot and will not render such an opinion. It is something that needs to be decided on a case-by- case basis in other pending litigation. 4 The district court entered a ruling finding there was a joint venture between Seneca and Rydex and Belin acted as counsel for this joint venture. The court found Belin had an attorney-client relationship with Rydex from June 2001 to June 23, 2006. The court found the scope of the relationship included several specific areas.4 Belin filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), stating it had already given Ryan all of the documents for the period from January 2000 through January 2006, and based on Rydex’s posttrial brief, it was no longer claiming documents outside that time period in this case. Belin claimed the case no longer constituted a justiciable controversy, as Ryan had already received all of the relief to which it was entitled. The district court modified its ruling to provide the last date Belin provided legal services to Rydex was January 23, 2006, and denied the rule 1.904(2) motion in all other respects. Belin now appeals the district court’s decision. II. Standard of Review “The court's review of a declaratory judgment action depends upon how the action was tried to the district court.” Van Sloun v. Agans Bros., 778 N.W.2d 174, 178 (Iowa 2010). “To determine the proper standard of review, we consider the ‘pleadings, relief sought, and nature of the case [to] determine whether a 4 These areas were: (1) Rydex’s assets, (including [its patents]), (2) the business relationship between Seneca Corporation, Chris Risewick and the Plaintiffs Michael Ryan and Rydex, Ltd. . . . (3) the business or financial operations of Rydex and Michael Ryan related to the above patents or wireless fluid delivery control systems, (4) enforcing, licensing, protecting the patents and any legal actions or infringement actions related to the above patents, (5) manufacturing, developing, marketing related to the patents or any wireless fluid delivery control system, and (6) inventions of patents related to the above patents or development of further products related to wireless fluid delivery control systems. 5 declaratory judgment action is legal or equitable.’” Id. (quoting Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006)). The parties agree this case was tried at law. Therefore, our review is for the correction of errors at law. See Iowa R. App. P. 6.907. “Under this standard of review, the trial court’s findings carry the force of a special verdict and are binding if supported by substantial evidence.” Van Sloun, 778 N.W.2d at 179. We are not bound by the trial court’s legal conclusions. Id. III. Joint Venture Belin claims the district court erred by finding Seneca and Rydex were involved in a joint venture, and Belin provided legal services for this joint venture. We find there are two problems with the district court’s ruling on this issue. First, in a declaratory judgment action, “the issues decided by the district court should be limited to those directly or impliedly raised by the pleadings or litigated with the consent of the parties.” Stew-Mc Dev., Inc. v. Fischer, 770 N.W.2d 839, 848 (Iowa 2009). “Declaratory judgment actions are subject to the same rules of pleading and proof as other actions.” Smith v. Bitter, 319 N.W.2d 196, 201 (Iowa 1982). Rydex filed a petition requesting a declaratory judgment concerning whether Belin had an attorney-client relationship with Rydex and requesting copies of all documents “that were the subject of the attorney-client relationship.” In the ruling on the motions for summary judgment, the district court stated: Determining the legal effect or enforceability of the demand note or forbearance agreement, or the settlement including the costs of Seneca’s legal representation, is not before this Court. Nor must or should this Court weigh in on questions before other courts or regarding pending or hypothetical litigation between other parties. 6 The present suit is between Rydex and Belin McCormick regarding the scope, nature, extent of their attorney–client relationship. Furthermore, after the trial, the district court noted there was other pending litigation between Rydex and Seneca, and related litigation pending with other parties. The court stated, “The focus of this Court is the very narrow issue presented in this case, that is the extent, scope, and nature of any attorney-client relationship.” Despite this statement, the court found, “The arrangement between Seneca on the one hand and Ryan and Rydex on the other was a joint venture.” We find the district court erred by characterizing the relationship between Seneca and Rydex as a joint venture. This part of the court’s ruling goes beyond the very narrow issue presented in the petition for declaratory judgment for a determination of the relationship between Belin and Rydex. We conclude no determination should have been made in this case about the relationship between Seneca and Rydex because this issue is beyond the scope of the issues presented in the petition for a declaratory judgment. See Stew-Mc Dev., 770 N.W.2d at 848. The second problem with the ruling there was a joint venture between Seneca and Rydex is the ruling could affect the legal rights of Seneca, although it was not a party to the proceeding. A joint venture is a relationship, similar to a partnership.5 Peoples Tr. & Sav. Bank v. Sec. Sav. Bank, 815 N.W.2d 744, 756 5 A joint venture has been defined “as an association of two or more persons to carry out a single business enterprise for profit; also as a common undertaking in which two or more combine their property, money, efforts, skill or knowledge.” Brewer v. Cent. Constr. Co., 43 N.W.2d 131, 136 (Iowa 1950)). Additionally, it “is characterized by a 7 (Iowa 2012). “In a joint venture, as in a partnership, fiduciary relations are created between the parties entered into the enterprise.” Goss v. Lanin, 152 N.W. 43, 45 (Iowa 1915); see also Greenberg v. Alter Co., 124 N.W.2d 438, 440 (Iowa 1963) (“There is no question but joint venturers like partners owe the duty of finest loyalty and such loyalty continues throughout the life of the venture and its dissolution.”). In some instances, a declaratory judgment can be binding on a third party. See Opheim v. Am. Interins. Exch., 430 N.W.2d 118, 121 (Iowa 1988) (finding requisites of issue preclusion had been satisfied and the third-party had a community of interest and adequate representation by another party). These concerns do not arise when all of the parties with an interest to protect are made a party to the declaratory judgment action. See Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 541 (Iowa 1997); see also Iowa R. Civ. P. 1.234(2) (providing a party is indispensable if “the party’s interest would necessarily be inequitably affected by a judgment rendered between those before the court”). While Belin had provided legal representation to Seneca for many years, in the present case Belin was representing itself. Seneca may very well have an independent interest in litigating the nature of its relationship with Rydex. Because it was not a party, however, no witnesses appeared on its behalf at the trial to address the issue of whether it had agreed to enter into a joint venture with Rydex.6 We conclude it was improper for the court’s ruling to address joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits and a duty to share the losses.” Id. 6 “[A] joint venture can exist only by the voluntary agreement of the parties to it.” Farm Bureau Serv. Co. v. Bavender, 217 N.W.2d 560, 563 (Iowa 1974). 8 issues which potentially could affect Seneca’s legal rights. We vacate the district court’s decision on the issue of whether there was a joint venture because it is outside the scope of the issues presented in the petition for a declaratory judgment. IV. Nature, Scope, and Extent of Attorney-Client Relationship We turn to the issues raised by the petition for declaratory judgment. The petition for declaratory judgment requested an order stating Belin and Rydex had an attorney-client relationship and asked to have Belin give Rydex all of the documents “that were the subject of the attorney-client relationship.” Belin admitted there was an attorney-client relationship and gave Rydex all of the documents in its possession relating to Rydex covering the period from January 2000 to January 2006. The ruling on the motions for summary judgment explained the narrow issue presented in the case, “The scope, extent, and nature of the attorney–client relationship must be determined by the fact-finder and will dictate whether Belin must produce additional documents to Plaintiffs.” In its posttrial brief, Rydex stated it was seeking information beyond the time period of January 2000 to January 2006, but recognized it could not obtain those documents in the current action. It stated the question of whether it would receive additional documents would “be decided on a case-by-case basis in other pending litigation.” The issue of whether there remained a justiciable controversy was not addressed in the district court’s ruling after the trial. Belin raised the issue in its rule 1.904(2) motion. Rydex responded there were two issues before the court— (1) the scope, extent and nature of the attorney-client relationship, and (2) the 9 issue regarding the documents. The district court found there was a justiciable controversy between the parties. “A case is moot if it no longer presents a justiciable controversy because the issues involved are academic or nonexistent.” Homan v. Branstad, 864 N.W.2d 321, 328 (Iowa 2015). “Our test is whether an opinion would be of force and effect with regard to the underlying controversy.” Id. Even if a case is moot, it may still be decided if it involves an issue of public importance and the issue is likely to recur. Id. at 330. If a case is moot and the public importance exception does not apply, the case should be dismissed. Id. at 332-33. We find the petition for declaratory judgment sought a ruling as to whether Belin and Rydex had an attorney-client relationship and requested Belin be required to give Rydex all of the documents “that were the subject of the attorney-client relationship.” In denying the motions for summary judgment, the district court found the scope, extent, and nature of the attorney-client relationship was relevant to determine whether Belin would be required to produce additional documents to Rydex. Thus, at the trial, the issue to be determined was whether Rydex was entitled to documents beyond those it had already received. In its post-trial brief, however, Rydex stated it was not seeking any additional documents in this proceeding. We conclude Rydex’s statement it was not requesting Belin turn over any additional documents within the scope of this declaratory judgment action made the issue of the nature, scope, and extent of the attorney-client relationship between Belin and Rydex moot, as the determination of the nature, scope, and extent of the relationship was relevant only as to whether Belin would be required 10 to turn over additional documents. Once Rydex stated it was not seeking any other documents, issues concerning whether the relationship ended in 2002 rather than 2006, or whether certain subjects were included in the relationship or not, ceased to matter because all of the documents in Belin’s possession relating to Rydex were turned over. We find there is no longer a justiciable controversy concerning the nature, scope, and extent of the attorney-client relationship between Belin and Rydex. When a case is moot it should be dismissed. Auto Owners, 887 N.W.2d at 602. We conclude the issue concerning the nature, scope, and extent of the attorney-client relationship became moot when Rydex filed its posttrial brief, which was before the district court entered its ruling on June 9, 2016. We vacate the district court’s ruling on this issue. DECISION VACATED.	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Rosebrook, 2017-Ohio-9261.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO STATE OF OHIO, : OPINION Plaintiff-Appellee, : CASE NO. 2016-G-0099 - vs - : JOSEPH ROSEBROOK, : Defendant-Appellant. : Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 C 000116. Judgment: Affirmed. James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-Appellee). Donald Gallick, 190 North Union Street, #102, Akron, OH 44304 (For Defendant- Appellant). THOMAS R. WRIGHT, J. {¶1} Appellant, Joseph Rosebrook, appeals his convictions for aggravated murder and kidnapping with a firearm specification after he hired another to kill Daniel Carl Ott. We affirm. {¶2} In 2006, Rosebrook was already incarcerated for the attempted aggravated murder of Curtis Frazier. Daniel Carl Ott was supposed to kill Frazier, but he never did. Instead, Ott went to the authorities, recorded his conversations with Rosebrook, and agreed to testify against him. Ott’s cooperation with the police resulted in Rosebrook’s indictment and 2006 conviction. {¶3} While incarcerated, Rosebrook hatched a plan to have his snitch killed, and he arranged for Chad South, a fellow inmate who was soon to be released, to kill Ott. Upon South’s release, he broke into the home of the wrong Daniel Ott and killed him. {¶4} Following a prolonged investigation, Rosebrook was indicted and charged in 2015 with conspiracy to commit the aggravated murder of Daniel E. Ott, two counts of aggravated murder, two counts of kidnapping, and multiple specifications including a firearm specification. {¶5} A jury found Rosebrook guilty of all charges and following merger of several offenses, he was sentenced to life in prison without parole for aggravated murder in violation of R.C. 2903.01(A) consecutive to ten years for kidnapping Ott’s girlfriend, in violation of R.C. 2905.01(A)(2), consecutive to three years for the gun specification under R.C. 2941.145(A). {¶6} Rosebrook raises four assigned errors. His first argument asserts: {¶7} “The trial court erred in denying multiple requests for a mistrial as appellant’s constitutional rights to a fair trial, under the confrontation clause, and to due process were violated.” {¶8} This assigned error raises four sub-issues. First, Rosebrook challenges testimony regarding his prior convictions. He also takes issue with the impeachment of his ex-sister-in-law’s testimony via her prior inconsistent statement to detectives. Third, 2 he asserts that the cumulative effect of these errors warrants a mistrial. Finally, Rosebrook argues he was denied due process via the denial of access to transcripts from his codefendant’s trial. {¶9} A trial court is entitled to broad discretion in considering a motion for a mistrial, and our standard of review is whether the trial court abused its discretion. State v. Love, 7th Dist. Mahoning No. 02 CA 245, 2006-Ohio-1762, 2006 WL 890994, ¶95, citing State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990) paragraph one of the syllabus. The decision to grant a mistrial “is an extreme remedy only warranted in circumstances where a fair trial is no longer possible and it is required to meet the ends of justice.” State v. Bigsby, 7th Dist. Mahoning No. 12 MA 74, 2013-Ohio-5641, 2013 WL 6797395, ¶58, citing State v. Jones, 83 Ohio App.3d 723, 615 N.E.2d 713 (2d Dist.1990). A mistrial will only be granted when the substantial rights of a party are adversely affected. State v. Lukens, 66 Ohio App.3d 794, 809, 586 N.E.2d 1099 (10th Dist.1990). {¶10} Rosebrook first asserts a mistrial was warranted in light of the introduction of testimony as to his other criminal offenses and resulting prejudice. {¶11} “In Ohio, the general rule is that ‘the introduction of evidence tending to show that a defendant has committed another crime wholly independent of the offense for which he is on trial is prohibited.’” State v. Breedlove, 26 Ohio St.2d 178, 183, 271 N.E.2d 238 (1971), citing State v. Hector, 19 Ohio St.2d 167, 249 N.E.2d 912 (1969), paragraph one of the syllabus. Exceptions exist, however, including those in Evid.R. 404(B), which states: 3 {¶12} “Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.” {¶13} As for evidence of Rosebrook’s prior convictions, the state offered evidence of Rosewood’s criminal past to establish his motive to have Ott killed. Early on in the case, the state informed the court and defense counsel of its intent to use Rosewood’s prior criminal record to show his reason for having Ott killed. Rosewood opposed the introduction of this evidence, and the issue was argued the first day of trial, outside the jury’s presence. The issue again arose during Detective Keogh’s testimony, and the trial court issued its limiting instruction permitting the testimony following a hearing, stating: {¶14} “I am going to allow it for that limited purpose, that is, to show why the Detective investigated as he did and his actions. I am going to limit it to the prior record connected with this offense, and I will give a limiting instruction to the effect of that evidence at the appropriate time that the defense asks. And I will say that the evidence was received only for a limited purpose. It was not received, and you may not consider it, to prove the character of the Defendant in order to show that he acted in conformity with that character. 4 {¶15} “If you find that the evidence of the other wrongs or acts is true and that you believe that the Defendant committed them, you may consider that only for the purposes of deciding whether it proves a motive, intent or purpose or plan to commit the offense charged in this trial.” {¶16} Rosebrook argues he was prejudiced via Detective Keough’s testimony that he was in prison based on auto theft charges. As the state contends, defense counsel had already informed the jury in its opening statements that Rosebrook was in prison at the time the murder occurred. And the court sustained the objection to any testimony regarding Rosebrook’s auto theft charges. Thereafter and during a recess out of the jury’s presence, the trial court denied the request for a mistrial and advised the parties that it would allow limited testimony that Rosebrook was in prison for the attempted murder of Curtis Frazier because it supplies the necessary motive under Evid.R. 404(B). {¶17} Keough testified, under objection, about the connection between Rosebrook, Curtis Frazier, and Daniel Carl Ott, stating that they were involved in a “chop shop” in Logan County. “Upon the arrest of those individuals, Curtis Frazier had agreed to testify against Joe Rosebrook. And the information we received is that a hit had been placed on Curtis Frazier by Joe Rosebrook. And he wanted Daniel Carl Ott to do it. {¶18} “Daniel Carl Ott decided not to, and instead, went to the authorities and then wore a wire when the details of the hit were discussed. {¶19} “And that led to the conviction of Joe Rosebrook on the attempted murder charge.” 5 {¶20} The trial court repeatedly cautioned the jury to limit its consideration of this testimony as to Rosebrook’s motive here, not to show that he is a bad man who acted in conformity with his bad character. Thus, there was no abuse of discretion since this testimony was permissible under Evid.R. 404(B). {¶21} Rosebrook also asserts that Keough’s testimony during which he relayed what an Ohio State Highway Patrolman told him was inadmissible hearsay. Keough testified what the patrolman told him in order to explain why Keough began looking into Rosebrook as a suspect. Keough explained that the patrolman was working as an investigator for the National Insurance Crime Bureau and had been investigating a different Daniel Ott, who was a career auto thief. The patrolman told Keough he should look into this different Daniel Ott to see if there was a connection. {¶22} The trial court concluded that this testimony was not hearsay because it was not offered for the truth of the matter asserted, but instead to explain why Keough took certain actions during his investigation. Evid.R.801(C) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” {¶23} “Evidence offered to explain an officer's conduct during an investigation is not hearsay and the statements are not offered to prove the truth of the matter asserted. State v. Lynn (2000), 137 Ohio App.3d 402, 406, 738 N.E.2d 868.” State v. Neal, 2d Dist. Champaign Nos. 2000-CA-16 and 2000-CA-18, 2002-Ohio-6786, ¶ 48 (Sept. 30, 1993); State v. Wilks, 2d Dist. Montgomery No. 13654, 1993 WL 386246, 4. Here Keough relayed the patrolman’s statements to him to show why Keough began 6 investigating Rosebrook via the possibility that this was a case of mistaken identity, not for the truth of the matter asserted. Thus, we find no error. {¶24} Next Rosebrook challenges the state’s impeachment of his ex-sister-in- law, Pamela Rosebrook. The trial court allowed the state to use her prior inconsistent statement to impeach her credibility under Evid.R. 607(A). The prosecutor initially asked Pamela questions consistent with the summary of her statement to detectives, and she said the summary was “all wrong” and that she did not tell them “half of this crap.” {¶25} Thus, pursuant to Evid.R. 607(A), the court was going to allow the state to play the audio recording of her conversation with detectives the next day. But when her testimony began, she invoked her Fifth Amendment right not to testify. Contrary to Rosebrook’s assertion, the trial court did not hold Pamela in contempt. Instead, upon Pamela’s invocation of her right not to testify, the court, outside the presence of the jury, appointed her counsel to help her avoid a contempt charge and then recessed the trial for the day. {¶26} After consulting with an attorney and being granted immunity for her testimony, Pamela was again called to testify. The state was permitted to play portions of her recorded interview with detectives when she testified contrary to her prior statements. She confirmed that it was her voice in the recordings, and that she told detectives that her ex-husband Jeff handled some of Joe’s money while he was in prison, and that Joe “might” have had hundreds of thousands of dollars. {¶27} Pursuant to Evid.R. 607(A), the court’s decision to allow the state to play the audio recording of her conversation with detectives was permissible. The state 7 established it was surprised by her testimony to the contrary and that it was affirmatively damaged since the state was unaware that Pamela was going to change her story from her statements made to detectives a month prior. State v. O’Brien, 5th Dist. Licking No. 2004CA00034, 2004-Ohio-7275, ¶18. {¶28} Furthermore, the court issued a limiting instruction to the jury, stating that the use of Pamela’s prior statements was “for impeachment purposes. It relates to the credibility of the witness, and you may consider it for that purpose only. It is not offered for, nor may you consider it, to prove the acts or elements of the charged offenses.” Thus, because the trial court allowed the testimony consistent with Evid.R. 607(A), we find no error. {¶29} Next Rosebrook argues that the cumulative effect of the errors at trial denied him a fair trial. Although a conviction can be reversed because the cumulative effect of legal errors throughout the trial results in a deprivation of the right to a fair trial, the doctrine is inapplicable absent multiple instances of harmless error. State v. Boynton, 8th Dist. Cuyahoga No. 93598, 20100-Ohio-4248, ¶60, quoting State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Because we find none of Rosebrook’s sub-arguments meritorious, there is no cumulative error. {¶30} Finally, Rosebrook argues he was improperly denied access to transcripts from his co-defendant’s case, and had his trial counsel had access, he would have been better able to prepare for trial. However, Rosebrook’s counsel did have access to the transcripts of Chad South’s trial at the state’s expense pursuant to the trial court’s July 15, 2016 order. Thus, this argument lacks merit. 8 {¶31} Based on the foregoing, Rosebrook’s first assigned error lacks merit in its entirety. {¶32} Rosebrook’s second assigned error alleges: {¶33} “Appellant suffered from plain error and ineffective assistance of counsel when the state repeatedly used inadmissible prior bad act evidence to show propensity violating the right to a fair trial and due process.” {¶34} In order to succeed on an ineffective assistance of counsel claim, an appellant must establish his counsel erred and resulting prejudice. {¶35} “Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) {¶36} “To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. {¶37} Rosebrook claims his trial counsel erred in allowing the admission of his prior bad acts. In particular, he argues counsel should have objected to Detective Keough’s testimony that Rosebrook was already serving time in prison for attempted murder and that this reference constitutes plain error. As stated, Keough testified, 9 under objection, about the connection between Rosebrook, Curtis Frazier, and Daniel Carl Ott and Rosebrook’s reason for wanting Daniel Carl Ott killed. {¶38} Rosebrook also continues to assert that his prior offense of conspiracy to commit the aggravated murder of Curtis Frazier should not have been admitted in light of the resulting prejudice. As explained under Rosebrook’s first assigned error, however, the trial court allowed the testimony pursuant Evid.R. 404(B) with the requisite limiting instructions to the jury. {¶39} As stated previously, defense counsel pointed out in openings statements that Rosebrook was in prison at the time of the offense, and half of the witnesses were inmates either during the trial or knew Rosebrook while serving prison time with him. And in light of the nature of the offense, which arose because the intended victim “snitched” on Rosebrook for another offense, the references to Rosebrook’s prior offense were permissible. {¶40} Accordingly, Rosebrook was not denied effective assistance of trial counsel because even assuming his counsel erred, Rosebrook cannot establish prejudicial harm as a result. Accordingly, his second assigned error lacks merit. {¶41} We address Rosebrook’s third and fourth assigned errors collectively, which assert: {¶42} “The trial court erred by denying the Criminal Rule 29 motion because the state provided insufficient evidence that appellant participated in any criminal act. {¶43} “The convictions are against the manifest weight of the evidence because they are based on hearsay and the testimony of witnesses who have admitted to providing false testimony.” 10 {¶44} “A challenge to the sufficiency of the evidence supporting a conviction requires that we consider ‘whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will not ‘disturb a verdict on appeal on sufficiency grounds unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”’ Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). {¶45} “In contrast, a manifest-weight challenge ‘concerns “the inclination of the greater amount of credible evidence * * to support one side of the issue rather than the other.”’ (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990). A manifest-weight challenge requires us to consider the entire record, including the credibility of the witnesses, the weight of the evidence, and any reasonable inferences, and determine whether ‘“the [panel] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”’ Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); accord R.C. 2953.02.” State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74-75, reconsideration granted in part, 147 Ohio St.3d 1438, 2016-Ohio-7677, 63 N.E.3d 157. {¶46} A finding that a conviction is supported by the manifest weight of the evidence, necessarily includes a finding that the conviction is supported by sufficient 11 evidence. State v. Brady, 7th Dist. Mahoning No. 13 MA 88, 2014-Ohio-5721, ¶26; State v. McGowan, 7th Dist. Jefferson No. 14JE37, 2016-Ohio-48, ¶4. {¶47} A conviction is “the combined occurrence of a finding of guilty and the imposition of a sentence.” State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001, 2014- Ohio-4304, ¶17, citing, State v. Henderson, 58 Ohio St.2d 171, 178, 389 N.E.2d 494 (1979). {¶48} Here, the jury found Rosebrook guilty of multiple offenses, but the court only imposed sentences on two and a gun specification. The others merged for sentencing. Thus, we only address the weight and sufficiency of Rosewood’s aggravated murder conviction, in violation of R.C. 2903.01(A), and his kidnapping of Mary Ann Ricker offense in violation of R.C. 2905.01(A)(2) and the gun specification under R.C. 2941.145(A). Payne, supra. {¶49} Rosebrook was indicted and charged with murder for hire or being complicit in the aggravated murder of Ott. A charge of complicity may be stated in terms of the principal offense. R.C. 2923.03(F); State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶32. Rosebrook was on notice that evidence was going to be presented that he was complicit in the aggravated murder of Ott via his soliciting, hiring, and conspiring with South to kill Daniel Carl Ott. {¶50} Under the theory of accomplice liability, anyone who is an accomplice to a crime shall be prosecuted and punished as if she were a principal offender. R.C. 2923.03(F). An accomplice is a person “acting with the kind of culpability required for the commission of an offense,” and can act by soliciting and procuring another to 12 commit the offense or via conspiring with another to commit the crime. R.C. 2923.03(A)(1) and (3). {¶51} Rosebrook was convicted of aggravated murder in violation of R.C. 2903.01(A), which prohibits a person from “purposely, and with prior calculation and design, caus[ing] the death of another * * .” {¶52} He was also convicted of kidnapping Mary Ann Ricker in violation of R.C. 2905.01(A)(2) and with a gun specification pursuant to R.C. 2941.145(A). {¶53} R.C. 2905.01(A)(2) states in part, {¶54} “(A) No person, by force, threat, or deception, * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: {¶55} “* * * {¶56} “(2) To facilitate the commission of any felony or flight thereafter * * *.” {¶57} R.C. 2941.145(A) provides for a three-year prison term if the offender had a firearm on or about the person or under his control while committing the offense and displayed the firearm, brandished the firearm, or used it to facilitate the offense. {¶58} Here, each of appellant’s convictions is supported by sufficient evidence and is not against the manifest weight of the evidence. {¶59} Mary Ann Ricker was Daniel E. Ott’s live-in girlfriend. She testified that she and Daniel E. Ott were sleeping when she heard her dog, which woke her. She then heard footsteps and saw a person dressed in dark clothing with a shotgun inside their home. The man ordered her and Ott to roll onto their stomachs, which they did. 13 The intruder asked Ott what his name was and tied Ott up with tape. Ricker could hear the sound of the tape. {¶60} Ricker then recalls Ott standing up and running toward the intruder, who shot him in the chest. Ricker heard the shot being fired. She then got up and saw a Ford Taurus backing out of their driveway. Ricker grabbed a towel and held it to Ott’s wound until the police arrived. Ott died later that day from his gunshot wound. Ricker had no idea who had killed Ott. {¶61} Sergeant Graley with the Geauga County Sheriff’s Department was the first officer at the home. He found Ott with duct tape on his wrists and Ricker hysterical and covered with blood. {¶62} Retired Detective Joseph Keough from the Geauga County Sheriff’s Department recalled that upon investigating Daniel E. Ott’s death, nothing made sense and that eventually he looked into Rosebrook upon the suggestion of an Ohio State Highway Patrolman that he investigate another Daniel Ott, Daniel Carl Ott. {¶63} Keough testified that Rosebrook, Curtis Frazier, and Daniel Carl Ott were involved in a “chop shop” in Logan County and Frazier had agreed to testify against the others. Rosebrook hired Daniel Carl Ott to murder Frazier, but Ott decided not to follow through with the plan, but went to the police instead and eventually testified against Rosebrook. {¶64} Upon investigating a possible connection with the murder of Daniel E. Ott, Keough monitored Rosebrook’s recorded prison phone calls and heard references to conversations that were not in his other recorded prison calls. Thus, Keough believed 14 that Rosebrook had access to a cellular telephone. The investigation into Daniel E. Ott’s murder eventually stalled, and Keough retired. {¶65} Clarence Scott was an inmate at the Northeast Ohio Correctional institution at the same time as Rosebrook. Scott was Curt Frazier’s son-in-law. He recalls Rosebrook befriending him and sharing his list of people he wanted dead. Daniel Carl Ott was at the top of his list because Ott had snitched on him and “wired up” on Rosebrook. He asked Scott if he knew anyone who would be interested in “doing some dirt.” Rosebrook spoke about paying someone $10,000 before and $10,000 after. Rosebrook told Scott that his brother Jeff handled his money. Scott heard Rosebrook mention this offer around fellow inmates Chad South and Steve Clemens. {¶66} Sometime later and while still in prison, Scott saw on the news that a Daniel Ott was shot. Chad South had already been released from prison before Scott saw that Ott was killed. {¶67} Rosebrook argues that Clarence Scott’s testimony is incredible because he admitted to submitting a false affidavit in exchange for cigarettes. This evidence was before the jury for it to consider and weigh Scott’s credibility. {¶68} Curt Frazier testified that he had bought and sold stolen car parts with Rosebrook. He testified that Rosebrook went to prison for conspiring with Daniel Carl Ott to have him killed, but Ott wore a wire and assisted authorities in prosecuting Rosebrook. {¶69} Frazier was relaying information his son-in-law, Scott, told him while in prison with Rosebrook to a Detective John Stout, who later got charged with crimes and is no longer a detective. 15 {¶70} Keith Levan, a retired Logan County Detective, explained that he had asked Curt Frazier, who was in jail at the time, to help him obtain information from Rosebrook via his son-in-law about a matter unrelated to the murder of Daniel Carl Ott. {¶71} Detective Juanita Vetter also testified for the state. She explained that the Geauga County Sheriff’s office interviewed 50-70 people while investigating this murder and that all leads had come up empty until Keough looked up the victim in a police database and noticed that another investigator had recently searched Ott’s name. The detectives then considered that they were investigating a murder based on mistaken identity. Vetter advised that Daniel Carl Ott was a professional car thief who was much older than the victim, Daniel E. Ott. {¶72} Vetter met with Clarence Scott, who told her that Rosebrook had been recruiting inmates to kill a snitch. Scott also advised her that Rosebrook had a cell phone in prison. Upon tracing certain phone calls between the phone Rosebrook had in prison, Vetter determined that his phone was used to call a phone in the name of Bonnie Rothen, who lived with Chad Smith and his girlfriend at the time of the murder. Rosebrook eventually got in trouble for having a cellular phone in prison. {¶73} Another inmate told Vetter that South did not want to kill Ott, but that he had to since he charged at him. {¶74} Rosebrook’s ex-sister-in-law, Pamela Rosebrook, testified that she was married to Rosebrook’s brother Jeff for 39 years. Jeff handled some of Joe’s money while he was in prison. {¶75} As previously stated, Pamela’s testimony was inconsistent with her statement to detectives. She was given a copy of her summary of her audio statement 16 and said it was “all wrong.” She denied ever saying Joe Rosebrook was dangerous and that she was afraid of him. She also denied telling them that Jeff was in charge of Joe’s money while he was in prison or that Jeff was holding hundreds of thousands of dollars of Joe’s money. {¶76} The next day she was again asked about her statements to the detectives and she invoked her Fifth Amendment right not to answer. She was eventually granted immunity with regard to her testimony. {¶77} Her testimony about the recordings is in evidence following the trial court’s determination that she was impeached via her prior inconsistent testimony. Upon being confronted with the prior recordings of her statements to detectives, Pamela testified that she told detectives that Jeff “may” have had hundreds of thousands of dollars in envelopes and that he kept a ledger of the money in the envelopes. She agreed that Jeff was in control of some of Joe’s money while he was in prison, but that she really did not know how much money Jeff handled for Joe and that she was not afraid of him, because she hardly ever saw him. {¶78} Bonnie Rothen explained that she knew Chad South because she was friends with his girlfriend, Kathy Baker. Rothen lived with Baker and her children when South was released from prison. He moved in as well and would often borrow her cell phone. {¶79} Edward Penwell, another inmate, who was serving a life sentence for murder, testified and explained that for a time he was incarcerated with Rosebrook. Rosebrook told him he wanted his snitch killed, but at the time of trial, Penwell could not remember the snitch’s name. 17 {¶80} Penwell introduced Rosebrook to Chad South and Timmy Minehart. South was getting out of prison soon and “wanted to get back on his feet.” Rosebrook told them he wanted the snitch killed and that Chad and Timmy were supposed to work together and get $10,000 each in cash from Rosebrook’s brother consisting of $10,000 before and $10,000 after he was dead. The group discussed the hit three or four times, and Penwell told South how to avoid getting caught. {¶81} Rosebrook claims that Penwell’s testimony is speculative because he said he remembered Rosebrook saying he wanted to kill somebody, but he could not remember who he wanted dead. Although Penwell did not know or recall the name of the snitch, he nevertheless recounted that Rosebrook sought to have his snitch killed and that the conversations Penwell relayed at trial had happened years before his trial testimony. {¶82} Rosebrook also argues that Keough improperly speculated in his testimony that Rosebrook had access to a cell phone in prison. However, Vetter confirmed that Rosebrook was charged with having a cell phone in prison, that the phone was used to call Rosebrook’s friends and family, and that his voice was heard on the recordings. {¶83} Rosebrook also takes issue with the lack of evidence showing that any money was exchanged between him and South. However, the actual exchange of money or payment was not required to establish that Rosebrook solicited or conspired with South to kill Daniel Carl Ott. To the contrary, the evidence shows that Rosebrook conspired with Chad South to “purposely, and with prior calculation and design,” cause the death of his snitch, Daniel Carl Ott. Pursuant to their conspiracy, South entered the 18 home of Daniel E. Ott, tied him up with duct tape, and ordered Ott and Ricker onto their stomachs while holding a shotgun. South then shot and killed Daniel E. Ott when Ott charged at him. {¶84} Based on the foregoing, Rosebrook’s convictions for aggravated murder and kidnapping with a firearm specification are not against the manifest weight of the evidence, and are likewise supported by sufficient evidence to establish the essential elements of the crimes. Accordingly, his third and fourth assignments of error lack merit. {¶85} The trial court’s judgment is affirmed. TIMOTHY P. CANNON, J., COLLEEN MARY O’TOOLE, J., concur. 19	{ "pile_set_name": "FreeLaw" }
74 F.3d 1234NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee,v.Tracy Lee CHARLTON, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Trini Louis CHARLTON, Defendant-Appellant. Nos. 95-5052, 95-5053. United States Court of Appeals, Fourth Circuit. Submitted Nov. 15, 1995.Jan. 8, 1996. Nils E. Gerber, WRIGHT, PARRISH, NEWTON & RABIL, Winston-Salem, North Carolina; Gerald E. Rush, Salisbury, North Carolina, for Appellants. Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assistant United States Attorney, Timika Shafeek, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Before WILKINS and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit Judge. OPINION PER CURIAM: 1 The Appellants, Tracy and Trini Charlton, appeal their convictions of bank robbery,1 bank robbery with a dangerous weapon,2 and carrying and using a firearm during the bank robbery.3 The Appellants contend that the evidence was insufficient to support their convictions and that a proper foundation was not laid for a witness's opinion testimony. Finding no reversible error, we affirm the convictions and sentences. 2 We review a denial of a motion for acquittal under a sufficiency of the evidence standard.4 To sustain a conviction the evidence, when viewed in the light most favorable to the government, must be sufficient for a rational jury to have found the essential elements of the crime beyond a reasonable doubt.5 All reasonable inferences from the facts proven to those sought to be established may be made.6 3 The government presented substantial evidence that the Appellants robbed a bank. Both Trini and Tracy gave similar confessions to investigators admitting responsibility for the bank robbery. A car driven by Tracy matched the description of the vehicle observed leaving the scene of the crime, and clothes matching those described by witnesses, and verified by the bank surveillance photographs as worn by the robbers, were found in the car. Further, bills matching the serial numbers of the money taken in the bank robbery were recovered from Trini's automobile. 4 The Appellants also challenge the sufficiency of the evidence that they used a firearm in the commission of their crime. Several witnesses testified that the bank robbers used a sawed-off shotgun and pistol in connection with the crime. Bank surveillance photographs corroborated the witnesses' descriptions of the weapons. Further, the Appellants, in their confessions, admitted to using a sawed-off shotgun and a BB gun that looked like a .45 caliber pistol. From the evidence presented, we find there was sufficient evidence for a rational trier of fact to convict the Appellants on all charges. 5 Finally, the Appellants assert that the district court erred by allowing a witness to testify that Tracy called her on the telephone and asked her not to testify. The contention is without merit. The witness was familiar with the Appellants and had conversations with both of them. It was reasonable for the court to conclude that she recognized Tracy's voice. Moreover, the court's evidentiary rulings are entitled to substantial deference.7 6 We therefore affirm the Appellants' convictions and sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 1 18 U.S.C. Sec. 2113(a) (1988) 2 18 U.S.C. Sec. 2113(d) (1988) 3 18 U.S.C. Sec. 924(c)(1) (1988) 4 FED. R. CRIM. P. 29; United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.), cert. denied, --- U.S. ---- 60 U.S.L.W. 3879 (U.S.1992) 5 United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.1993); see Glasser v. United States, 315 U.S. 60, 80 (1942) 6 United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982) 7 United States v. Russell, 971 F.2d 1098, 1104 (4th Cir.1992), cert. denied, --- U.S. ---, 61 U.S.L.W. 3479 (U.S.1993)	{ "pile_set_name": "FreeLaw" }
645 F.3d 178 (2011) INTERNATIONAL STRATEGIES GROUP, LTD., Plaintiff-Appellant, v. Peter S. NESS, Defendant-Appellee. Docket No. 10-1581-cv. United States Court of Appeals, Second Circuit. Argued: April 8, 2011. Decided: July 15, 2011. 179 Kathleen C. Stone, Boston, MA, for Plaintiff-Appellant. Robert C.E. Laney, (Claire E. Ryan, on the brief), Ryan Ryan Deluca LLP, Stamford, CT, for Defendant-Appellee. Before: JACOBS, Chief Judge, CABRANES, Circuit Judge, KRAVITZ, District Judge.[] 180 DENNIS JACOBS, Chief Judge. Plaintiff International Strategies Group, Ltd. ("ISG") appeals from a March 31, 2010 judgment of the United States District Court for the District of Connecticut (Chatigny, J.), granting Defendant Peter Ness's motion to dismiss as untimely ISG's complaint, which alleges breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, and conspiracy to commit those three offenses. ISG's claims arose from the loss of a $4 million investment it made with Ness's employer, Corporation of the BankHouse ("Bank-House"). The district court ruled that tolling of the untimely claims, on the basis of Ness's continuing concealment, was unwarranted. We affirm on the ground that this lawsuit, commenced in April 2004, arises from an injury suffered no later than June 2000, and is therefore barred by the applicable statute of repose, Conn. Gen.Stat. § 52-577. BACKGROUND We recount only the facts that bear upon the issues necessary to decide the appeal, and assume (as we must) that all plausible allegations in ISG's first amended complaint are true. Where appropriate, we take judicial notice of filings from ISG's related lawsuits. See Scherer v. Equitable Life Assurance Soc'y of the U.S., 347 F.3d 394, 402 (2d Cir.2003). The defendant, Peter S. Ness, was the Vice President of Corporate Finance at BankHouse, as well as an in-house counsel and the head of the Greenwich office. Ness was one of a core group of senior executives for entities controlled by James F. Pomeroy, II. BankHouse, and several other Pomeroy-controlled entities, purported to offer a sophisticated investment opportunity but was in essence a Ponzi scheme. Around April 1998, Pomeroy enticed ISG to invest $4 million with BankHouse by promising guaranteed profits of $2 million every twelve days for three months,[1] with an express covenant that invested funds would not be depleted. Although Pomeroy assured ISG that profits were accruing as expected, ISG's funds were soon depleted through various unauthorized transfers. BankHouse prolonged the scheme by tantalizing ISG with some or all of its notional profitsin the form of a $9 million promissory note. Around October 1998, Ness and Pomeroy proposed that ISG forgo the payment by note and instead participate in another investment opportunity. ISG knew nothing about this proposed investment,[2] but agreed nevertheless. BankHouse then transferred $19 million of its clients' money to a foreign 181 entity, Swan Trust, which included any remnant of ISG's investment. The funds that BankHouse transferred to Swan Trust were swiftly distributed (unlawfully) to third-party bank accounts. BankHouse concealed the depletion from ISG for a time: In January 1999, Ness sent a memorandum informing Chris Barber, a Managing Director of ISG, that funds invested with Swan Trust were expected to yield profits of 200% to 300%, which would be disbursed to BankHouse by the end of the month.[3] At some point prior to June 2000, however, ISG learned that Swan Trust had dissipated the funds. (ISG's filings reflect an unimportant inconsistency on the timing.[4]) The complaint alleges that BankHouse undertook (or pretended to undertake) efforts to recover the funds from Swan Trust, as a ploy to dissuade ISG from bringing a claim. As part of the deception, ISG cites two memoranda that Ness co-wrote to it in October 1999 ("the October 1999 Memoranda"), which optimistically described the recovery efforts conducted by BankHouse's attorneys and its "recovery specialists," but stressed the need for confidentiality. See Pl.'s Opp. to Def.'s Mot. to Dis. Exs. F, G. ISG was lulled: Although the memoranda suggested an imminent recovery, ISG waited for months while the recovery efforts unfolded. Approximately nine months later, ISG (and other investors) accepted Bank-House's suggestion to grant a power of attorney to BankHouse's outside counsel, A. John Pappalardo, to act on its behalf in the recovery efforts. Efforts by Pappalardo continued from mid-2000 through the fall of 2001, during which time (as ISG alleges generally) BankHouse and "its employees and agents" deceived ISG by insisting "that they were doing everything feasible to recover the funds" and that independent action would "interfere with [BankHouse's] ability to recover on behalf of the investors." First Am. Compl. ¶ 43. On August 15, 2001, nearly two years after the October 1999 Memoranda he co-drafted, Ness faxed a single-page, handwritten note (the "August 2001 Fax") to Chris Barber of ISG, in evident response to an inquiry by ISG: Chris Discussed your letter with Jim [Pomeroy] Will get letter to you ASAP from me (with John [Pappalardo] OK) or from John We are proceeding with first steps of litigation Peter Pl.'s Opp. to Def.'s Mot. to Dis. Ex. H. ISG claims that it first realized that the recovery efforts were futile (or perhaps fictitious) after the promises in this fax went unfulfilled. After a few more months, ISG hired its own counsel to recover its funds through 182 litigation. Several additional months later, on March 22, 2002, ISG commenced a suit against BankHouse, Pomeroy, and various other Pomeroy-controlled entities to recover its investment funds.[5] Ness was not named a defendant or mentioned in the complaint. The defendants answered, but later ceased to defend. After more than two years of litigation, ISG won a default judgment of over $10 million in damages and penalties.[6] ISG's inability to collect on its judgment triggered additional lawsuits. This suit was filed on April 27, 2004 in the United States District Court for the District of Connecticut. Three days later, a nearly identical suit was filed in the United States District Court for the District of Massachusetts against Stephen Heffernan, the Chief Financial Officer of BankHouse, alleging (among other claims) the same six causes of action as alleged in this suit.[7] Ness was not mentioned in the complaint. The suit against Heffernan was dismissed as untimely.[8] While this suit (against Ness) and the suit against Heffernan were pending, ISG began suing third parties involved in the transactions. In May and June 2004, ISG sued two banks involved in the transfers.[9] In September 2004, ISG sued Pappalardo and his current and prior law firms, claiming malpractice in connection with the power of attorney it granted him.[10] Pappalardo and the firms prevailed on summary judgment: Each claim was held either meritless (because no attorney-client relationship was formed) or untimely.[11] After the other suits had concluded, the district court in this case granted Ness's motion to dismiss the action as untimely, ruling that the limitations period began to run by June 2000 and that tolling was unwarranted. DISCUSSION We review de novo a district court's dismissal of an action under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009). To avoid dismissal, ISG's allegations "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 183 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Assuming all "well-pleaded factual allegations" to be true and drawing all reasonable inferences in ISG's favor, we "determine whether [the allegations] plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). I Tort actions under Connecticut law are (with exceptions not relevant here) subject to the three-year statute of repose that "begins with the date of the act or omission complained of, not the date when the plaintiff first discovers an injury." Piteo v. Gottier, 112 Conn.App. 441, 445, 963 A.2d 83 (App.Ct.2009) (internal quotation marks omitted); see Conn. Gen.Stat. § 52-577; Barrett v. Montesano, 269 Conn. 787, 794, 849 A.2d 839 (2004) (noting that Conn. Gen.Stat. § 52-577 is among the statutes that the Connecticut Supreme Court has referred to as "statutes of limitations" even though they "technically function more like statutes of repose"). ISG's funds were unlawfully dissipated by June 2000, the point by which ISG concedes knowledge of the dissipation in the present complaint. See First Am. Compl. ¶ 36. The present suit was filed on April 27, 2004, nearly four years later. ISG argues that its claims are nevertheless timely, because Ness's actions amounted to a "continuing course of conduct" through August 2001, thereby "allowing [it] to commence [its] lawsuit at a later date."[12]Sherwood v. Danbury Hosp., 252 Conn. 193, 203, 746 A.2d 730 (2000) (internal quotation marks omitted). At the threshold, Ness argues that a course of conduct cannot toll the repose period beyond the plaintiff's discovery of the injury. See, e.g., Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (App. Ct.2004). The cases he cites interpret a different statute of limitations (Conn. Gen. Stat. § 52-584), one that contains a separate two-year limitation triggered when an injury is "first sustained or discovered." However, at least one Connecticut trial court has indicated that this proposition from Rosato is nevertheless equally applicable to § 52-577, and the knowledge of the injury may well deny a plaintiff (with a claim subject to that provision) the benefit of the continuous course of conduct doctrine. See Coss v. Stewart, Civ. No. 08-5007541-S, 2010 WL 1050534, at 6 n. 1 (Conn.Super.Ct. Feb. 11, 2010), aff'd, 126 Conn.App. 30, 10 A.3d 539 (App.Ct.2011). It is possible that the wording in Rosato may signify only that the separate two-year limitation will already have begun running at that point. But we need not resolve the issue, because even if the continuous course of conduct doctrine were available for the period following the discovery of the actionable harm, ISG has not plausibly alleged facts warranting its application. "To support a finding of a `continuing course of conduct' . . . there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto." Fichera v. Mine Hill Corp., 207 Conn. 204, 209, 541 A.2d 472 (1988). A plaintiff can show a "duty that remained in existence" by establishing: (A) "a special relationship 184 between the parties giving rise to such a continuing duty," or (B) "some later wrongful conduct of a defendant related to the prior act." Id. at 209-10, 541 A.2d 472. A ISG's conclusory claim that Bank-House's "superior knowledge, skill and expertise" and acceptance of ISG's funds created a fiduciary bond with Ness is not a plausible allegation of a "special relationship between the parties" giving rise to a continuing duty. Id. at 210, 541 A.2d 472; see First Am. Compl. ¶ 14. The Connecticut Supreme Court recognizes that "not all business relationships implicate the duty of a fiduciary," and that "certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). Because the present suit is against Ness in his personal capacity, the inquiry must focus on ISG's dealings with Ness rather than its dealings with other BankHouse agents, or with the firm itself. ISG does not allege that Ness had any role in the solicitation of ISG's investment, First Am. Compl. ¶ 13, or that he presented himself as an investment manager. ISG merely claims that "from time to time" Ness "held himself out as having experience and expertise in financial and investment matters." First Am. Compl. ¶ 4. Nor does ISG claim that Ness offered to perform a key role in its investing relationship with BankHouse or that he purported to have superior knowledge about investments made by BankHouse or ISG. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57, 717 A.2d 724 (1998). Absent a representation that Ness had "superior knowledge, skill or expertise" or that he "sought the plaintiff's special trust," there can be no breach of fiduciary duty under Connecticut law. Id. Whether or not BankHouse owed a fiduciary duty to ISG, Ness's fiduciary dutiesif anyran to BankHouse by virtue of his officership. See First Am. Compl. ¶ 11. B ISG has also not plausibly alleged that tolling is warranted on account of "some later wrongful conduct . . . related to the prior act" by Ness. Fichera, 207 Conn. at 210, 541 A.2d 472. Conclusory allegations are made about BankHouse and its "employees and agents," but the only alleged misrepresentations attributed to Ness after 1999 are stray remarks from the August 2001 Fax, most notably that "We are proceeding with first steps of litigation." (Ness's failure to inform ISG of the repose period cannot establish a course of conduct because, as discussed above, Ness had no special relationship with ISG.) A single-page, handwritten fax sent twenty months after any other alleged misrepresentation by Ness does not plausibly link up to form a continuous course of conduct. If a plaintiff's miscellaneous, discontinuous interactions with a defendant over an extended period of time alone justified tolling, it "would render the repose part of [a] statute of limitations a nullity," Nieves v. Cirmo, 67 Conn.App. 576, 587, 787 A.2d 650 (App.Ct.2002), and "would, in effect, allow the plaintiff to acquiesce in the defendant's conduct for as long as convenient to the plaintiff, contrary to one of the purposes of statutes of limitations, which is to prevent the unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution," Rivera v. Fairbank Management Properties, Inc., 45 Conn.Supp. 154, 160, 703 A.2d 808 (1997) (internal quotation marks omitted). 185 Moreover, Ness's fax was not unprompted: It was apparently in response to an inquiry by ISG. App. at 164 (reflecting Ness's assurance that he "[d]iscussed [ISG's] letter with Jim [Pomeroy]"). A plaintiff does not have a unilateral option to extend the repose period of its claims merely by making an inquiry that can be expected to elicit a reply. Cf. Sanborn v. Greenwald, 39 Conn.App. 289, 297, 664 A.2d 803 (App.Ct.1995) ("A plaintiff should not be allowed to keep a legal malpractice action alive after the lawyer-client relationship has ended by telephoning the attorney every three years to obtain verification that something the attorney had drafted previously would not cause the plaintiff harm."). II ISG argues that even if its claims were untimely, Ness should be equitably estopped from asserting a repose defense because he discouraged ISG from pursuing its remedies. Ness cites our dicta concerning the unavailability of equitable tolling under Conn. Gen.Stat. § 52-577 as establishing a "well-settled" principle that equitable estoppel is inapplicable as well. Ness Br. at 11; Gerena v. Korb, 617 F.3d 197, 206 (2d Cir.2010). But that argument ignores the differences between equitable tolling and equitable estoppel. See Bennett v. United States Lines, 64 F.3d 62, 65-66 (2d Cir.1995). In any event, a recent Connecticut Appellate Court case indicates that equitable estoppel may be available under § 52-577. See Coss v. Steward, 126 Conn.App. 30, 41-45, 10 A.3d 539 (App.Ct.2011). Equitable estoppel in Connecticut has two elements: (1) "the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief"; and (2) "the other party must change its position in reliance on those facts, thereby incurring some injury." Connecticut Nat'l Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995) (internal quotation marks omitted). "[A] person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Id. at 367, 659 A.2d 172 (internal quotation marks omitted). ISG has not plausibly alleged that it exercised due diligence or changed its position based on Ness's representations. The August 2001 Fax was vague, cursory, informal, and otherwise without indicia of reliability. A diligent party would not have depended on it, at least not without demanding reliable confirmation. Moreover, the (at least) twenty-month gap between the fax and Ness's previous alleged misrepresentations defeat any claim that ISG relied upon Ness for periodic status updates to assess whether to forbear bringing suit. (To the contrary, ISG was relying on Pappalardo to execute its recovery efforts through the power of attorney it granted him.) Under Connecticut law, ISG's knowledge by June 2000 that its funds were dissipated necessarily informed it that Ness's earlier representations were untrue. First Am. Compl. ¶¶ 29, 32, 36. ISG's credulous faith in Ness's subsequent assurances fell well short of diligence;[14] there is "no reason to encourage investors 186 who suspect something amiss to rely solely on their [advisor's] advice and to refrain from seeking outside advice." Piteo v. Gottier, 112 Conn.App. 441, 449, 963 A.2d 83 (App.Ct.2009). ISG "cannot seek the safe harbor of equitable estoppel due to [its] own failure to recognize that [it] w[as] required to pursue [its] action." Celentano v. Oaks Condo. Ass'n, 265 Conn. 579, 615, 830 A.2d 164 (2003). For the foregoing reasons, the judgment of the district court is affirmed. NOTES [*] The Honorable Mark R. Kravitz, of the United States District Court for the District of Connecticut, sitting by designation. [1] See App. at 68 (Funds Management Agreement). Although ISG did not attach the Funds Management Agreement to its complaint or its opposition to Ness's motion to dismiss, it "reli[ed] on the terms and effect of [the agreement] in drafting the complaint" by alleging that the investment created fiduciary duties, see Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); it also filed the agreement in its suit against BankHouse, see Barber Aff. Ex. A, Int'l Strategies Grp., Ltd. v. Corp. of the BankHouse, Inc., No. 02-cv-10532 (D.Mass. May 15, 2002). The agreement may therefore be considered in this appeal. [2] ISG's pleadings are inconsistent as to whether it knew that funds would be transferred to another entity. Compare First Am. Compl. ¶ 25 ("[ISG] agreed to allow what it believed to be an augmented investment amount to be transferred to another entity, Swan Trust, for further investment."), with Pl.'s Opp. to Def.'s Mot. to Dis. at 6 ("At the time, ISG had no knowledge of Swan Trust. . . ."). [3] This and subsequent communications from Ness are properly considered because they were referenced (either specifically or as a course of conduct) in the complaint and were attached by ISG to its opposition to Ness's motion to dismiss. First Am. Compl. ¶ 29; Pl.'s Opp. to Def.'s Mot. to Dis. Ex. E; cf. Chambers, 282 F.3d at 153. [4] ISG's complaint concedes knowledge of the dissipation only as of June 2000. First Am. Compl. ¶ 36. Its opposition to Ness's motion to dismiss, however, admits knowledge since August 1999. Pl.'s Opp. to Def.'s Mot. to Dis. at 10; see also Complaint ¶ 90, Int'l Strategies Grp., Ltd. v. Corp. of the BankHouse, Inc., No. 02-cv-10532 (D.Mass. Mar. 22, 2002). The discrepancy is unimportant because the result is the same even if the June 2000 date is used. [5] See Complaint, Int'l Strategies Grp., Ltd. v. Corp. of the BankHouse, Inc., No. 02-cv-10532 (D.Mass. Mar. 22, 2002). [6] See Amended Judgment, Int'l Strategies Grp., Ltd. v. Corp. of the BankHouse, Inc., No. 02-cv-10532 (D. Mass. June 3, 2004). [7] See Complaint, Int'l Strategies Grp., Ltd. v. Heffernan, No. 04-10863 (D.Mass. Apr. 30, 2004). [8] See Memorandum of Decision, Int'l Strategies Grp., Ltd. v. Heffernan, No. 04-10863 (D.Mass. July 30, 2004), ECF No. 11; App. at 60-63. The court ruled that the repose period began in 1999, when ISG knew all the facts giving rise to its claim (after BankHouse and its CEO represented to ISG that its funds were about to be returned); under Massachusetts law, ISG's knowledge that its funds were dissipated precluded tolling. [9] See Complaint, Int'l Strategies Grp., Ltd. v. ABN AMRO Bank N.V., No. XX-XXXXXX (Sup. Ct. N.Y. County May 27, 2004); Complaint, Int'l Strategies Grp., Ltd. v. ABN AMRO Bank N.V., No. XX-XXXXXX (Sup.Ct.N.Y. County June 7, 2004). Ness is mentioned in only one paragraph in each complaint (concerning the $9 million promissory note). The cases, which were consolidated, have apparently been dismissed pursuant to a stipulated order. [10] See Complaint, Int'l Strategies Grp., Ltd. v. Greenberg Traurig, LLP, No. 04-cv-12000 (D.Mass. Sept. 16, 2004). Ness was mentioned once in the complaint, in connection with the August 2001 Fax. [11] See Int'l Strategies Grp., Ltd. v. Greenberg Traurig, LLP, 482 F.3d 1 (1st Cir.2007), aff'g on other grounds No. 04-cv-12000, 2006 WL 229034, 2006 U.S. Dist. LEXIS 3401 (D.Mass. Jan. 30, 2006). [12] To the extent that ISG argues that Ness's actions from 1999 to 2001 give rise to separate causes of action for misrepresentation and breach of fiduciary duty, it is duplicative of the "continuing course of conduct" argument. In any event, ISG did not raise this argument before the district court, and "[i]n general, a federal appellate court does not consider an issue not passed upon below." See Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir.2001) (internal quotation marks omitted). [14] ISG argues that the district court improperly found facts concerning (inter alia) ISG's sophistication, and prematurely required it to prove due diligence. Since the record supports no plausible inference of due diligence (without regard to ISG's level of sophistication), these arguments need not be reached.	{ "pile_set_name": "FreeLaw" }
753 S.W.2d 127 (1988) David MASSEY, Individually, and John Craig, Individually, and Massey-Craig Motors, Inc., Plaintiffs-Appellees, v. Loy G. HARDCASTLE, Jr., and Robert E. Bond and Gilford Thornton and Ed Bond Motors, Inc., Defendants-Appellants. Court of Appeals of Tennessee, Middle Section, at Nashville. March 9, 1988. Petition to Rehear Denied May 23, 1988. 128 Jerry Wallace, Pulaski, Lee England, Lawrenceburg, for plaintiffs-appellees. W.C. Keaton, Keaton, Turner & Spitzer, Hohenwald, for defendants-appellants. Petition to Rehear Denied by Supreme Court May 23, 1988. OPINION TODD, Presiding Judge. This is a suit for damages for breach of a sales contract. The Trial Court, sitting without a jury, awarded plaintiffs $228,725 damages, and defendants have appealed. David Massey, John Craig and Massey Craig Motors, Inc., sued Loy G. Hardcastle, Jr., Robert E. Bond, Gilford Thornton and Ed Bond Motors, Inc., for breach of contract. The Trial Court rendered judgment in favor of the plaintiffs and against Loy G. Hardcastle, Jr., Robert E. Bond and Gilford Thornton, and dismissed plaintiffs' suit against Ed Bond Motors, Inc. The counterclaim of the defendants was dismissed. Appellants have presented fourteen issues for review, of which the first four assert the statute of frauds. David Massey and John Craig were the only stockholders in Massey-Craig Motors, Inc., a franchised Chrysler, Dodge, Plymouth automobile dealer at Lawrenceburg, Tennessee. Part of the real estate used by the corporation was owned by the stockholders and rented to the corporation. Other land used by the corporation was leased from others. On January 8, 1986, using a form furnished by Chrysler, Mr. Estep, a representative of Chrysler Credit Corporation, caused Massey-Craig Motors, Inc., to write a letter to Chrysler Corporation stating: Please take notice that the undersigned elects to terminate and does hereby terminate in accordance with the terms thereof, effective thirty (30) days from delivery hereof to you, any and all agreements that the undersigned has at any time entered into with you, relating to the purchase and sale of Chrysler Corporation motor vehicles, if and to the extent now in effect, including, without prejudice to the generality thereof, a certain Massey-Craig Motors, Inc. Direct Dealer Agreement currently in effect between you and the undersigned. Said letter bears the signatures of the plaintiffs Massey and Craig. Mr. Estep sent a copy of the letter to Chrysler Credit Corporation, but the original of the letter was not mailed to Chrysler Corp. until several weeks later. On the same date, (Jan. 8, 1986), Chrysler Credit cancelled the line of credit of Massey-Craig Motors, Inc., and Mr. Estep notified Chrysler Corp. offices of the cancellation, thereby preventing further shipments of vehicles to Massey-Craig Motors, Inc. From October, 1985 to January 1986, defendant Gil Thornton, discussed with John Craig the purchase of Massey-Craig Motors, Inc. 129 On January 24, 1986, defendants, Bond, Thornton and Hardcastle, met with plaintiffs Massey and Craig and the Chrysler representative, Estep. At this meeting was produced the document upon which this suit is based. It is composed of two sheets of paper, one yellow and one white. On the face of the yellow sheet, defendant, Mr. Hardcastle, wrote the following: 1-24-86 4:35 p.m. 1986 Massey-Craig Mtrs. 2122 N. Locust Ave. Lawrenceburg, TN Buy-sell agreement between Massey-Craig (seller) and Bond Motors Inc. (buyer): Buyer agrees to purchase assets of seller as follows: A. Purchase new car inventory at Chrysler invoice. B. Purchase Chrysler parts at book value. C. Purchase additional random parts at $7,000.* D. Seller agrees to transfer all rights to its' franchise with C-P-D to buyer. At the close of this purchase, the seller will transfer its tenantcy to the buyer for occupancy and use of premises for ongoing business activities of the buyer. s/ G. Thornton Exceptions If transaction of real estate continues for through Feb., Bond Mtrs. would pay Massey-Craig approx. $5,700. 480,000 40,000 check _______ 440,000 ASAP On the reverse side of the yellow sheet, Massey wrote the following: 1. Junk in back and salvage vhs 2. Trk Bodies & wood storage Blgs in rear and whats inside. 3. Personal items. 4. Boltons computer 5. Big typewriter Following the above quoted matter, Mr. Hardcastle wrote the following: 10% Deposit Thereafter, appear the following signatures: Loy G. Hardcastle Robert E. Bond David Massey John W. Craig witness: W.H. Estep The white sheet of paper contains the following: 1. Junk and salvage veh's in rear of bldg. 2. Trk bodies and wood Bldg. & contents. 3. Personal items. 4. Sharp Financial Computer 5. Royal 410 typewriter. 6. M-C office supplies in small bldg. 6 offices. 7. Small safe. 8. Cash & deals in process. Mr. Massey describes this information as: just another list of exceptions, the things that Craig-Massey was to keep. On the same date, January 24, 1986, Mr. Hardcastle gave Massey-Craig Motors, Inc., a check for $40,000.00 for "escrow deposit on dealership until all the details of the buy-sell was actually consummated and the corporation and Chrysler Credit had approved the franchise and the line of credit." It was clearly understood that this check was purely symbolic, for there were no funds on deposit out of which it might be honored. At the time of the signing of the agreement on January 24, 1986, the defendants were unaware of the letter terminating the franchise, the existence of a lien for $16,000 delinquent state sales taxes, or $16,000 delinquent interest on floor plan security installments covering new cars on hand. On the night of January 24, 1986, defendants learned of the two $16,000 liens, and the parties met and discussed the sales tax lien and the indebtedness to Chrysler of $16,000. Mr. Thornton reduced the amount of defendants' offer to $408,000, but no agreement was reached. 130 Plaintiffs were quite upset that defendants should arbitrarily attempt to reduce the sales price from $480,000 to $408,000, but it appears that plaintiffs misunderstood the significance of the reduction. It appears from the document quoted above that the intended sale price of $480,000 was to be reduced to $440,000 by the ultimate cashing of the $40,000 check. When plaintiffs requested "up-front money" of $32,000 to satisfy the two $16,000 claims, defendants conceived that the advancement of such a sum would further reduce the net sales price from $440,000 to $408,000. Nevertheless, because of the misunderstanding or disagreement, the $32,000 "upfront money" was never advanced by defendants. On the following day, January 25, 1986, plaintiffs informed Mr. Thornton that the interest and sales tax had been taken care of. At that time, said debts had not been satisfied. On the same date, January 25, 1986, defendants assumed control of the premises of Massey-Craig Motors, Inc., under the name Bond Motor Company and continued to engage in business on said premises until February 18, 1986, at which time defendants abandoned said premises. On March 6, 1986, Bond Motors, Inc., wrote to plaintiffs as follows: March 6, 1986 Mr. David Massey Mr. John Craig c/o Massey-Craig Motors, Inc. N. Locust Lawrenceburg, TN Gentlemen: Since our request for evidence has not been received that your obligation to the Tennessee Department of Revenue for the December Sales Tax has been met along with other problems with the Dealership, we wish to break off our tentative negotiations for the assets discussed from Massey-Craig Motors, Inc. Sincerely, /s/ Loy G. Hardcastle, Jr., Sec. Loy G. Hardcastle, Jr., Sec. Bond Motors, Inc. Thereafter, Bond Motors, Inc., received evidence that the sales tax was paid on February 12, 1986. On March 14, 1986, the captioned plaintiffs sued the captioned defendants alleging in Count 1: At all times mentioned herein the plaintiffs owned and still own in fee simple absolute certain property situated in Lawrence County, Tennessee, and more particularly described as follows: (describing by metes and bounds) By written contract dated the 24th day of January, 1986, the plaintiffs agreed to sell to the defendants and the defendants agreed to buy from the plaintiffs the above described real property for and in the sum of Four Hundred and Eighty Thousand Dollars, ($480,000.00), and included in this conveyance was the majority of the business belonging to the plaintiffs. A copy of the written agreement entered into by the parties is attached hereto and marked Exhibit No. 1, and by reference made a part hereof. That the consideration for the execution of said contract was a check for the sum of Forty Thousand Dollars, ($40,000.00) which check cannot be negotiated for Insufficient Funds, a copy of which is attached hereto, marked Exhibit No. 2, and by reference made a part hereof. As previously described, the contemplated sale between these parties was not only of the real estate but of the Chrysler Dealership located at the plaintiffs' place of business in Lawrenceburg, Tennessee, the sale included the new car inventory, the parts and the plaintiffs' franchise to their Chrysler Dealership. In furtherance of this agreement, the defendant and/or their agents and servants took possession of the plaintiffs' place of business on the 25th day of January, 1986, began to operate the business of a new car dealership and particularly, a Chrysler Dealership, on the plaintiffs' premises. The plaintiffs through the month of February, 1986, made repeated efforts to close and consummate the original agreement between these parties and the defendants have continuously 131 refused to proceed any further with the closing of the agreement with the payment of the purchase price and have intentionally repudiated the contract. At all times herein mentioned, the plaintiffs have been ready, willing and able to perform the contract by conveying to the defendants good title to said property. On February 18, 1986, the defendants abandoned the premises and intentionally closed an ongoing business which intentional closing severely damaged the plaintiffs. Count I prays: That the Court enter judgment in favor of the plaintiffs compelling the defendants to perform said contract by paying to the plaintiffs the sum of Four Hundred and Eighty Thousand Dollars, ($480,000), the purchase price of said real property with interest thereon at the legal and lawful rate of interest prescribed in the State of Tennessee for prejudgment. Count II of the complaint states: The defendants in furtherance of said contract took possession of the plaintiffs' premises on January 25, 1986, and remained in possession of said premises until February 18, 1986. By reason of the result of that possession, the plaintiffs have suffered incidental damages for the intentional and unwarranted repudiation of the original contract and those incidental damages include an accounting for inventory owned by the plaintiffs that were sold by the defendants and their agents, for rent, for utilities including electric, water and telephone and accounting to the plaintiffs for motor vehicles owned by the plaintiffs that were sold by the defendants and/or their servants and agents, and in addition, the plaintiffs had on hand a new car inventory with an outstanding balance due to Chrysler Credit Corporation, which new car inventory stood as security for that creditor's floor plan, the amount due of Three Hundred and Thirty One Thousand, Eight Hundred and Sixty Seven Dollars and Forty Two Cents, ($331,867.42), the plaintiffs have been forced to sale that inventory for Three Hundred and Twenty Thousand, Nine Hundred and Forty Five Dollars and Thirty Five Cents, ($320,945.35), or at a discount of Ten Thousand, Nine Hundred and Twenty Two Dollars and Seven Cents, ($10,922.07). PREMISES CONSIDERED, THE PLAINTIFFS PRAY: 1. The Court enter judgment against the defendants for and in the sum of Fifty Thousand Dollars, ($50,000.00), as compensatory damages in this cause. Count III alleges willful misconduct and prays for judgment for $500,000. The answer of defendants state: It is admitted by the defendants that a written "buy-sell agreement" was entered into by the plaintiffs and the defendants on or about the 24th day of January, 1986. It is denied that the majority of the consideration for the sale was in order to buy the real property described above. The sale was to include the business of the plaintiffs as well as the interest in the franchise with Chrysler Credit Corporation, and other considerations then believed to be owned by plaintiffs and inventory then believed by defendants to be owned by plaintiffs because of plaintiffs averments to that effect. ... . ... the plaintiffs through the month of February, 1986, made repeated efforts to close and consummate the original agreement between the parties, but would state in the contrary that the plaintiffs continued to attempt to renegotiate the contract entered into by them after discovery by the defendants that they did not, in actuality, own the majority of the dealership which they were attempting to sell to the defendants. ... . Defendant would not (sic) adopt as affirmative defenses that the plaintiffs attempted to fraudulently induce the defendants to purchase the property which plaintiffs did not own. Further, at the 132 time of the agreement, it was impossible for the plaintiffs to perform the contract and remained impossible for them to perform the contract throughout the period of time alleged in the complaint. Further, the complaint fails to state a claim upon which relief can be granted. By cross claim defendants alleged: That at the time of the agreement between the parties the plaintiffs did not hold the interest which they claimed to hold in the dealership in Lawrenceburg, Lawrence County, Tennessee and attempted to fraudulently induce the defendants to enter into a purchase agreement with them for an exorbitant price for what the plaintiffs did not, in actuality, hold title. That upon the discovery of the facts alleged in paragraph II, above, the plaintiffs attempted to renegotiate the agreement between the parties with defendants and, in order to, pay off certain debts which were the cause of the lack of good title to the property attempted to be conveyed, requested additional capital be advanced prior to the closing of any sale. Because of the fraud of plaintiffs, defendants/counterplaintiffs were forced to run at their own expense the dealership in Lawrenceburg, Lawrence County, Tennessee and because of said attempt were caused the loss of money, time and property in the amount of $10,000.00 Without record permission of the Trial Court, on June 13, 1986, plaintiffs filed an amended complaint identical to Count I of the original complaint and omitting Count II. On April 10, 1987, without record permission of the Trial Court, defendants filed an amended answer containing the following: 6.... . They further admit that in order for the dealership to continue its operations, Bond Motors, Inc., took over the management of same in January of 1986. Bond Motors, Inc., managed the operations of the business for a period of days and until defendants became aware of certain facts relative to liens and encumbrances that existed on the business and the fact that plaintiffs had executed a termination letter of their dealership with Chrysler Corporation. They deny that they refused to negotiate toward resolving the aforementioned problems that had come to the attention of the defendants. They admit that they refused to proceed any further with negotiations when it came apparent that the problems could not be solved on a reasonable basis. 7. They admit Bond Motors, Inc., ceased to manage the business on or about February 18, 1986, and did leave the premises. They deny the remaining allegations of Paragraph VII of the amended complaint. 8. Defendants deny that plaintiffs, David Massey and John Craig, have been legally authorized to institute this action on behalf of Massey-Craig Motors, Inc. (T.R.C.P., Rule 9.01) ... . 10. Defendants deny that they took exclusive possession of the premises; rather they shared possession with plaintiff... . Defendants plead the following affirmative defenses: a. It was impossible for the plaintiffs to carry out the terms of the alleged contract because its rights to its franchise with Chrysler-Plymouth Dodge had been terminated by plaintiffs on January 8, 1986, and all the other items of property were encumbered so that it could not sell and deliver unencumbered title of these items to Ed Bond Motors, Inc. b. The alleged contract was, as shown by plaintiffs' Exhibit No. 1, to be a contract with Massey-Craig Motors, Inc. as seller. Therefore, the complaint fails to state a claim upon which any relief can be granted to the plaintiffs, David Massey and John Craig. c. There was no meeting of the minds of the parties to the alleged contract. Plaintiffs continued to try to negotiate an agreement, but wanted to modify their original proposition by asking for front-end money, etc. so that no agreement was ever reached. 133 d. The paper writing was incomplete as is clearly shown by reference to the allegations of the amended complaint. Most of the items alleged in the complaint are not in the paper writing. e. The alleged contract is so ambiguous and uncertain that it cannot be reasonably construed. f. The intentions of the parties to the alleged cannot be ascertained from an examination within the alleged contract's four corners. g. The plaintiffs breached the terms of the alleged contract in that the title to the goods involved in the transaction was not good. The goods were subject to a tax lien of the State of Tennessee. There was a lien in favor of Chrysler Credit. There was a deed of trust on the real estate which was outstanding to secure an indebtedness due Commerce Union Bank. Most, if not all of these liens and indebtednesses were unknown to the defendants. The foregoing constituted a breach of the implied warranty as is set out and stated in T.C.A. § 42-2-312, 725. h. Therefore, plaintiffs could not deliver good title to the alleged purchaser of the items alleged to be a part of the contract free from any security interest or other lien or encumbrance of which the alleged purchaser had no knowledge at the time the paper writing was executed. (T.C.A. 47-2-312) i. The alleged contract was for the sale of goods of a value in excess of $500 and there being no sufficient writing same was unenforceable by reason of the statute of frauds. (T.C.A. 47-2-201) j. The alleged contract was for the sale of personal property in an amount or value in excess of $5,000 and the subject matter not being reasonably identified, the alleged contract was unenforceable by reason of the statute of frauds. (T.C.A. 47-1-206) k. As the alleged contract included the sale of land and same did not include a sufficient description of the land, this action is barred by the statute of frauds. (T.C.A. 29-2-101(4)). l. As the alleged contract was not signed by the party to be charged Ed Bond Motors, Inc., or some other person by it thereunto lawfully authorized this action is barred by the statute of frauds.. (T.C.A. 29-2-101(5)). The Trial Court filed no finding of facts or memorandum opinion. However, the Trial Judge stated orally from the bench: The Court: ... I have determined that this particular instrument that was the basis of this lawsuit, as meager as it is, I feel like that it's adequate to take this matter out of the Statute of Frauds. That being the case with the real estate, the $5000.00 personal property and the $500.00 property, the Statutes that refer to those amounts. Now, we've got to bear in mind, I think, that in this particular situation, we had 3 men, there are 3 defendants in this case, and they've all been in the automobile business for some length of time, I believe Mr. Bond stated that he never had been a dealer, but had been in the business for quite some length of time, and Mr. Thornton has interest in three different Chrysler-Dodge-Plymouth businesses, and Mr. Hardcastle, as I understand it, is a dealer, and this contract, the main part, was written by Mr. Hardcastle, and I think Mr. Thornton more or less dictated it, and in that the contract refers to the address of the property, it refers to the real estate, in that it states that if transaction of real estate continued for through February, Bond would pay Massey-Craig approximately $5700.00 So I think, reading the entire paper writing, that it could be concluded, or I've concluded, that the proof is adequate to show that it was the intention of the parties for Massey-Craig to sell this as a going business, the real estate, inventory, parts, equipment and the whole thing for the sum of $480,000.00 Now, I think, too, this matter of equitable estoppel has been argued, even though I'm finding that this paper writing is sufficient, I'm finding also that this would be a matter of equitable estoppel for these reasons: The plaintiffs in this case were in the process, and had 134 been for some time, of going out of business. They had sold various cars to dealers and they had even contacted part of the defendants in this case, to sell cars that they had on hand, and they were in the process of going out of business, and they had this discussion with, I believe, Mr. Thornton, a few days before January 24, of '86, and on that day, that is, January 24, 1986, when Mr. Thornton, Mr. Hardcastle and Mr. Bond were all here, and they discussed this matter, I gathered from the proof at that time that Mr. Massey and Mr. Craig had figured out a way, with the sale of this property, to get out of this business, deliver clear title to the Thornton-Hardcastle-Bond people, and whatever they couldn't pay off, just make some arrangements, I think this is evidenced from the fact that some few days after this, they paid the sales tax. They asked to use part of this $40,000.00, that wouldn't work, so they made arrangements for that. The testimony of Mr. Eastep (sic) showed that they had made arrangements in such a manner with the Chrysler Credit Corporation, that by using their used cars, which they were going to keep, and they were clear with Chrysler, that was my understanding of the proof. So I feel like, and I'm satisfied from the proof, that they had made arrangements with this particular contract to not get completely out of debt, but in order to be able to get rid of this business and go on about their business in such a manner so that they could handle it. When this agreement was entered into on the 24th, I believe the proof showed that it was the very next day, that the defendants, and by "defendants" I'm referring to Mr. Bond, Mr. Hardcastle and Mr. Thornton, all three of them had signed this agreement, and whatever their other agreement might have been among themselves, I don't think they're material to this matter, but nevertheless, they began to operate, I believe, the very next day, as Bond Motors, Inc., there was not, in fact, a Bond Motors, Inc., they did not apply for a Charter until some few days after that, but they began to do business as Bond Motors, Inc., advertised in the paper, put the sign up in front of the building, and did some business. This went on for a period of some 25 days. Then the original agreement of $480,000.00 broke down, and probably it was just a mistake of judgment, I don't feel like that under these circumstances with the defendants being in the Chrysler-Plymouth-Dodge business, and being familiar with franchises, I don't feel like that they could have just arbitrarily said, "Well, now, you can't give us a clear title, so we're not going to do this". From what I've heard, I feel like that, as I've said, that the plaintiffs had the matter worked out in such a manner as to deliver what they had contracted to deliver, to the defendants, free and clear of any encumbrances against the property, just like the some $75-or-$85,000.00 that's been testified about here, I feel like that that would not have been a lien against this property, and that other matters, with their used car business, could have been handled in such a manner so as to have delivered this particular property to the defendants free and clear of any encumbrances. These folks were right in the middle of liquidating at this period, but by entering into this agreement, by so-called Bond Motors moving right in and starting to advertise, it put them in a little peculiar position, or you might say a big peculiar position, as far as trying to go on with what they had been doing, in other words, they now had it liquidated, closed out, with the agreement that they had with the defendants, they didn't do anything else, as far as trying to sell cars or anything else to get this matter, they had it done. But after the some 25 days, the defendants walked off from this business, took their I guess what cars they brought down from their other dealerships, and there the plaintiffs were left. I feel, for that reason, that equitable estoppel would apply in this case, so then we come down to the matter of damages, and we've only heard from the plaintiffs, really, as far as damages are concerned, and I feel that in this particular situation, 135 the amount of damages should be the first take the contract price of $480,000.00, take away the amount that the land and the portable building brought, $224,500.00, take away the $15,000.00 that they obtained from the parts and the equipment... . I do feel like, under the circumstances, where the defendants moved in, moved other vehicles in, actually used the plaintiffs' valuable piece of property for this period of time, that they should pay at least the rent that this corporation was paying to the plaintiffs, I'm going to set the rent at $6000.00, $3000.00 for a 2-months period. They used it a month, there's nothing in the record to indicate that they said anything to anybody when they picked up and left, I think $6000.00 would be proper for that. ... . I was doing, Mr. England, I was taking $480,000.00 and I was taking away the $244,500.00 taking away the $15,000.00; and then I was adding the $6000.00 for two months' rent and the wholesale interest charges for those 25 days, that the defendants had possession of these automobiles and the premises. The final judgment reads in pertinent part as follows: The Court upon the pleadings in this cause, the entire record, the examination of witnesses in open Court, and Exhibits to their testimony, finds the issues in this case in favor of the plaintiffs and against the defendants, and therefore, accordingly, IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED, and the plaintiffs are here and now awarded as compensatory damages the sum of Two Hundred and Twenty Thousand, Five Hundred Dollars, ($220,500.00). IT IS FURTHER ORDERED ADJUDGED AND DECREED, and the plaintiffs are awarded as incidental special damages, the sum of Six Thousand Dollars, ($6,000.00), and Twenty Seven Hundred and Twenty Five Dollars, ($2,725.00). IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the counter-complaint in this cause, filed by the defendants, is dismissed, this judgment is against Loy G. Hardcastle, Jr., Robert E. Bond and Gilford Thornton, jointly and severally. All of the captioned defendants appealed. They have presented fourteen issues, of which the first is: 1. Whether this action is barred by the statute of frauds (T.C.A. § 29-2-101(4)) because the paperwriting contains no description of the real estate to be sold. T.C.A. § 29-2-101(4) provides in pertinent part as follows: No action shall be brought: ... upon any contact for the sale of lands ... unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized. Plaintiffs insist that the principal property involved in the agreement sued upon was a tract of real estate described in the complaint. In order to be enforceable, the contract must conform to § 29-2-101(4). Plaintiffs assert first that the real estate is described in the contract as "2122 N. Locust Ave., Lawrenceburg, Tennessee", which, it is alleged, is sufficient. This Court does not agree. If the document can be said to have any identifiable form, the first page thereof appears to be in the form of a letter addressed to "Massey-Craig Mtrs" at the address, "2122 N. Locust Ave., Lawrenceburg, Tn". The mailing address, or actual address of one of the parties is not a designation of the description of real estate to be bought or sold. This is especially true in the present case, where, on the face of the instrument, the words, your land, land, or real estate do not occur. The nearest so such a designation are "tenancy" coupled with the word "premises." If the reverse side of the instrument should be regarded as part and parcel of the front side, the only reference to real 136 estate is "If the transaction of real estate continues ..." This Court is of the opinion that the document does not conform to the requirements of § 29-2-101(4) for an enforceable contract for sale of realty. In Rogers v. Roop, 19 Tenn. App. 579, 92 S.W.2d 423 (1936), there was a deed which described the property as the lot, a parcel of ground, situated in Knoxville, Tennessee, known and described under house Nos. 1209 and 1211, Western Avenue. 19 Tenn. App. at 581 [92 S.W.2d 423]. This Court held that a description by street and number stating the city in which located is sufficient to satisfy the statute of frauds. The present document does not purport to describe real estate, indeed, its references to real estate are vague in the extreme. There is a reference to "transfer its tenancy ... for occupancy and use of premises", and "transaction of real estate". This more nearly resembles an assignment of a lease than a sale; and this conforms to the facts of the case, ownership by Massey and Craig and tenancy by the corporation. In Brown v. Mays, 34 Tenn. App. 632, 241 S.W.2d 871 (1951), there was a suit upon notes given for rent under a lease. One of the defenses was that the lease was invalid, thereby preventing a valid consideration. The lease described the property as: located in the city of Nashville, or suburbs, and fronting 50 feet on Hillsboro Road at 2211 Hillsboro Street, and being the property of said A.J. and Claire Brown, a brick store newly erected. 34 Tenn. App. at 635, 241 S.W.2d 871 This Court held the description to be sufficient. The present description does not name the owners of the property or refer to its improvement. It therefore does not come within the holding of Brown v. Mays. In Kirshner v. Feigenbaum, 180 Tenn. 476, 176 S.W.2d 806 (1944) there was a suit by a lessor to recover possession of office space leased to the defendant. The leased premises were described as: Office space in the Exchange Building located at 311 Church Street, and being Office No. 209, and storage space in basement... . 180 Tenn. at 478. The Supreme Court held that the name of the district, town, county, state or nation is not required where the writing is sufficiently specific to enable identification of the land. The Court observed that even though there might be Exchange Buildings in other cities, the possibility that any such building might be an office building with basement storage space located on Church Street at Number 311, and having an office number 209 was too remote to raise a reasonable doubt as to the identity of the property leased. No such identifying peculiarity is found in the present document. The document does not identify the property to be sold as "Massey-Craig Motors, 2122 North Locust Avenue, Lawrenceburg, Tennessee" as insisted by plaintiffs. Such description is the location of Massey-Craig Motors which was not owned by that corporation, but by the individual stockholders of Massey-Craig Motors. If, as found by the Chancellor, the document expressed an intention to sell (and buy) Massey-Craig Motors as a going business, including the real estate leased by and used by it, then there were two parcels involved in the sale: the parcel leased from Massey and Craig and the parcel leased from others. There is no insistence or admission that the second parcel was included in the transaction. In Baliles v. Cities Service Co., Tenn. 1979, 578 S.W.2d 621, suit was brought for specific performance of a contract to sell property described as lots 99 and 100 in Cherokee Hills for residential purposes. 578 S.W.2d at 622. The Supreme Court held the description to be inadequate, but enforced the contract under the doctrine of estoppel where sellers had placed the buyer in possession, permitted him to construct improvements thereon and aided him in securing a loan for this purpose. 137 In Gorbics v. Close, Tenn. App. 1986, 722 S.W.2d 672, an action was brought to enforce a contract to sell land described as: a one acre tract of land on the northwest corner of my land... . 722 S.W.2d at 673. This Court held the description fatally deficient and refused enforcement even though plaintiffs had placed a trailer home in the vicinity and had made certain improvements, the value of which was less than the value of the occupancy. The document in the present case simply does not set out an agreement for the sale of a particular tract of land, and is therefore unenforceable. Appellant's second issue is as follows: 2. Whether this action is barred by the statute of frauds (T.C.A. § 29-2-101) because the paperwriting was not signed by the buyer named in the writing, Bond Motors, Inc., nor by its authorized agent. The phrase "signed by the party to be charged therewith" means the owner of the land. Evidence of acceptance of the contract upon the part of the purchaser may be in parol as at common law. Patterson v. Davis, 28 Tenn. App. 571, 192 S.W.2d 227 (1945), and authorities cited therein. It may be argued with considerable logic that it is grossly inconsistent to require the signature of the seller to validate a sale of real estate but to enforce the same agreement against the buyer who signed no written memorandum. No authority has been found wherein a buyer was forced to specifically perform or pay damages without his signature. All authorities examined involved an effort by the buyer to force the seller to specifically perform. Nevertheless, the Legislature has declared the policy of the State in words which the Supreme Court has held to mean that only the seller's signature is necessary for a valid contract to sell land. Any change in the law or its interpretation must come from the Legislature or the Supreme Court. Until then, it appears that prospective buyers of land should beware of any oral discussion of a written offer to sell real estate. No viable merit is found in appellants' second issue. Appellant's third issue is as follows: 3. Whether this action is barred by the statute of frauds (T.C.A. § 47-1-206) because the alleged contract was for the sale of personal property valued in excess of $5,000.00, which was not reasonably identified in the writing. T.C.A. § 47-1-206(1) provides: Except in the cases described in subsection (2) of this section, a contract for the sale of personal property is not enforceable by way of action or defense beyond five thousand dollars ($5,000) in amount or value of remedy unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by his authorized agent. The exception of subsection 2 is for sales of goods of a price of $500.00 as provided in § 47-2-201 and security interests. Plaintiffs insist that the document quoted above conforms to subsection (1) if § 47-1-206. The sales prices are stated variously in the instrument. On the first page, the prices are: New car inventory at invoice Parts at book value Random parts $7,000 C P.D. Franchise No price On the reverse side of the first page, the stated prices are: "Continued real estate transaction" $5,700 Thereafter, the following figures appear without identification: 480,000 40,000 check _______ 440,000 ASAP The committee comment under § 47-1-206 states: ... troubling abuses are avoided when the dollar limit is exceeded by requiring that the subject matter be reasonably identified in a signed writing which indicates 138 that a contract for sale has been made at a defined or stated price. It is clear from the record that the document in question purports to evidence a sale of personal property of value in excess of $5,000.00 and that it is not signed by the defendant, Ed Bond Motors, Inc. As to this defendant, the defense of § 47-1-206 is most certainly good. As to the remaining defendants, neither the subject matter nor the price thereof is reasonably identified, so that the document does not pass muster under § 47-1-206 as to the remaining defendants. Appellants' third issue is found to have merit. Appellant's fourth issue is as follows: 4. Whether this action is barred by the statute of frauds (T.C.A. § 47-2-201) because the alleged contract was for the sale of goods of a value in excess of $500, which goods were not reasonably identified in the writing. T.C.A. § 47-2-201(1) provides: Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. To the extent that the subject contract deals with the sale of goods of price $500.00 or more, the defense of Ed Bond Motors, Inc., is good because its signature does not appear on the subject document. As to the other defendants, the paper writing is not sufficient to indicate that contract for sale has been made between the parties. There is merit to appellants' fourth issue. Appellants' fifth issue is as follows: Whether the defendants are equitably estopped from relying on the statute of frauds. This Court cannot agree with the oral finding of the Trial Court that the defendants were estopped to plead the statute of frauds by entering the premises occupied by Massey-Craig Motors and, to some degree exercising management and/or control over the conduct of business on the premises. The record explains fully the reasons for this action and the reasons for abandoning the premises. The basic cause of this controversy was the failure of plaintiffs to fully disclose to defendants the precarious state of the affairs of Massey-Craig Motors, including: 1. Prior cancellation of Chrysler Franchise. 2. Existing encumbrances on assets. 3. Cancellation of Chrysler line of credit. 4. True title of the real estate. If estoppel is applicable to this case at all, it is estoppel against plaintiffs for their failure to disclose information pertinent to the property which they attempted to sell. Where defendants did occupy the premises and use or sell some of the services or property of plaintiffs, defendants should be accountable to plaintiffs for the reasonable value of the services or property so used or sold. This, however, does not support estoppel as to pleading the statute of frauds in defense of a suit for specific performance or damages for breach of contract. Plaintiffs cite Evans v. Belmont Land Co., 92 Tenn. 348, 21 S.W. 670 (1893). In that case, the Supreme Court held that the facts of the case did not support equitable estoppel in plaintiffs' favor. Moreover, the Court said: This remedy is always so applied as to promote justice. It is available only for protection, and it cannot be used as a weapon of assault. It accomplishes that which ought to be done between man and man, and is not permitted to go beyond 139 that. [Dickerson v. Colgrove] 100 U.S. [(10 Otto)] [578, 25 L.Ed. 618] [1879]. 92 Tenn. at 284, 285, 21 S.W.2d 670. Appellants' fifth issue is meritorious. Appellant's sixth issue is as follows: Whether it is impossible for the plaintiffs to perform the alleged contract because they had terminated their franchise with Chrysler-Plymouth-Dodge and encumbered the property to be conveyed. Although it is insisted by plaintiffs that the Chrysler franchise was not cancelled by Chrysler until April 9, a copy of the cancellation by Massey-Craig was in the possession of Chrysler Credit at all times after January 8, 1986, and Chrysler Corporation had been notified by Chrysler credit to stop shipping cars to Massey-Craig. Massey-Craig had no legal or moral right to attempt to sell a franchise under the circumstances. A buyer may be discharged if there is a breach of the contract in some substantial particular which goes to the essence of the contract and renders the seller incapable of performance as intended. German American Monogram Mfrs. v. Johnson, 133 Tenn. 571, 182 S.W. 595 (1916). Appellants' sixth issue has merit. Appellants' seventh and eighth issues are as follows: 7. Whether the Court erred in awarding judgment against the individual defendants when the writing on which the action was based was between Massey-Craig Motors, Inc., as seller, and Bond Motors, Inc., a corporation, as buyer. 8. Whether the complaint failed to state a claim upon which any relief could be granted to the plaintiffs against the individual defendants. No merit is found in these issues. T.C.A. § 48-1-1405, Thompson and Green Machinery Inc., v. Music City Lumber Company, Tenn. App. 1984, 683 S.W.2d 340. Appellant's ninth and eleventh issues are as follows: 9. Whether the paperwriting is so lacking in terms which plaintiffs allege were part of the contract and is so ambiguous and uncertain and incapable of reasonable construction that it will not support a recovery against the defendants. 11. Whether there was a contract between the parties. This Court finds the document relied upon to be so devoid of specificity and meaning as to be no contract at all. It is possible that the parties had in their separate minds the nature of an agreement, but there is no evidence that their mental concept of the agreement was even orally agreed between then, much less expressed in a written contract. The terms of a contract must be sufficiently definite to be enforced. V.L. Nicholson Co. v. Transcon Inv. & Financial Ltd., Inc., Tenn. 1980, 595 S.W.2d 474; Price v. Mercury Supply Co., Tenn. App. 1984, 682 S.W.2d 924, Forest Inc. of Knoxville v. Guaranty Mortgage Co., Inc., Tenn. App. 1975, 534 S.W.2d 853. Appellants' ninth and eleventh issues are meritorious. Appellants' tenth issue is: Whether Massey-Craig Motors, Inc., authorized the sale or execution of the paperwriting. No authority is cited that the two sole stockholders of a corporation cannot make a binding contract for the corporation. No such authority is known to this Court. No merit is found in the tenth issue. Appellants' 12th and 13th issues are as follows: 12. Whether plaintiffs breached the alleged contract and the implied warranties set out in T.C.A. § 47-2-312 and § 47-2-725 by failing to disclose the sales tax lien, Chrysler credit lien and deed of trust. 13. Whether plaintiffs violated T.C.A. § 47-2-312, requiring them to convey the property, free from any security interest, lien or encumbrance of which the purchaser had no knowledge at the time the paperwriting was executed. *140 As already indicated, the failure of plaintiffs to make appropriate disclosure of the infirmities in the title of the seller to the various items to be sold was sufficient to repel them from enforcing their contract. See T.C.A. §§ 47-2-312(1) and 47-2-725(2). Moreover, before a seller can claim specific performance (recovery of purchase price) or damages for refusal of performance, the seller must show a satisfactory tender of that which was to be purchased. In the present case this would include: (1) a tender of a deed conveying good title to the real estate; (2) a tender of proper documents for the transfer of a viable franchise for selling Chrysler products; (3) tender of a conveyance of all the personal property involved free of encumbrance. None of these prerequisites are shown. The 12th and 13th issues are meritorious. Appellant's 14th and last issue is as follows: 14. Whether the Court erred in setting the amount of the compensatory damages without regard to the fair market value of the property. If damages be due a seller for failure of the buyer to accept performance, the measure of damages is the difference between the contract price and the fair market value of the property at the time of the breach. Yarbrough v. Stiles, Tenn. 1986, 717 S.W.2d 886; Turner v. Benson, Tenn. 1984, 672 S.W.2d 752. The record shows the fair market value of the realty on the "date of breach" to be $375,000. The record shows that, "at the time of breach" the office equipment was worth $10,000 and the parts were worth $34,000. There is no evidence of the value of other items "at the time of breach", however, on January 22, 1986, Mr. Massey gave Mr. Thornton a statement that the used car moveable building was worth $10,000 and the shop equipment was worth $20,000. The foregoing figures total $449,000. The 14th issue is meritorious. This Court is satisfied that the alleged contract is unenforceable as a matter of law for the various reasons set out above. This Court is also satisfied that the $10,000 counterclaim should be disallowed and that this portion of the judgment should be affirmed. The judgment of the Trial Court dismissing the counterclaim is affirmed. In all other respects, said judgment is reversed and the suit of plaintiffs is dismissed. All costs, including costs of this appeal are taxed against plaintiffs. The cause is remanded for any further necessary procedures. Affirmed in part, reversed in part and remanded. LEWIS and CANTRELL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
543 U.S. 1110 BIRKYv.UNITED STATES. No. 04-6484. Supreme Court of United States. January 24, 2005. 1 C. A. 9th Cir. Reported below: 101 Fed. Appx. 701; Motions of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, ante, p. 220.	{ "pile_set_name": "FreeLaw" }
Third District Court of Appeal State of Florida Opinion filed March 13, 2019. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D17-2609 Lower Tribunal No. 14-4084 ________________ Yosvani Gonzalez and Yenisleidy Perez, Appellants, vs. Citizens Property Insurance Corporation, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Antonio Marin, Judge. Giasi Law, P.A., and Melissa A. Giasi (Tampa), for appellants. Cole, Scott & Kissane, P.A., and Kathryn L. Ender, Scott A. Cole, Mark D. Tinker, and Aram P. Megerian (Tampa); Hinshaw & Culbertson LLP, and Maureen G. Pearcy, for appellee. Before LOGUE and MILLER, JJ., and SUAREZ, Senior Judge. LOGUE, J. Yosvani Gonzalez and Yenisleidy Perez (the “Homeowners’) appeal from a final summary judgment entered in favor of Citizens Property Insurance Corporation (“Citizens”). While the affidavits filed by Citizens met its burden as the movant for summary judgment, the affidavits filed by the Homeowners did not satisfy their burden as the opponents. Accordingly, we affirm. Facts The Homeowners sued Citizens, their property insurance carrier, for water damage to the interior of their home due to a leak in their roof. In their complaint, they alleged the roof leak was created by a wind storm event which occurred on or around July 17, 2013. The over-arching issue in the lawsuit was whether the leak in the roof was due to a wind storm event (covered by their policy) or normal wear and tear (not covered by their policy). Citizens moved for summary judgment asserting that the leak was caused by normal wear and tear of a roof beyond its useful life and no genuine issue of fact existed in this regard. Citizens grounded its motion on two affidavits based on two separate inspections of the damaged roof. One inspection was conducted two days after the loss occurred and the other nine months after the loss occurred. Both inspections took place before the roof was replaced. The claims adjuster and roofing contractor who conducted the inspections found no evidence of wind damage. Both attributed the roof leak to wear and tear due to age. The roofing 2 contractor indicated that the roof was twenty-one years old and beyond its useful life. He described in detail cracks in the roof membrane and the loss of the seal on the roof which he attributed to normal age-related deterioration of the roof.1 1The roofing contractor hired by Citizens, who testified to having 45 years of experience, averred in his affidavit: 11. Upon physical inspection of the flat front roof, I found that the membrane is well worn, there are cracks to the membrane, a topical sealer that has been applied, and some of the cracks extend completely through the top membrane. Edges of the roof membrane are no longer sealed to the metal drip edge allowing water leakage. 12. The previously mentioned conditions on this flat front roof are consistent with normal wear and tear and the mentioned repairs are considered only a temporary fix for any issues since topical sealants will deteriorate from exposure to the sun’s UV Rays. 13. Upon inspection of the back flat roof, I observed it is in a similar condition as the front flat roof, but it does have a different membrane used as the cap sheet. There are similar cracks in the cap sheet, a topical sealant has been applied along the laps of the material, and the edges of the roof system are no longer sealed to the metal drip edge. 14. The conditions mentioned regarding the back flat roof are considered as normal wear and tear of the system as it ages. 15. The roof leak claimed in this matter . . . is the direct result of normal wear and tear of the roof system and the leak is not through a wind storm intrusion. 3 To oppose the summary judgment, the Homeowners filed two affidavits by Al Brizuela, a registered engineer. The first affidavit is entirely conclusory. In it, Mr. Brizuela does little more than announce “the roof leak was the result of a one- time wind event on or about 7/17/2013” and broadly disagree with the opinion of the roofing contractor: “[t]his opinion by [the roofing contractor] is not backed by any scientific evidence and there is no evidence to support the application of these allegations to the subject house or roof.” Significantly, Mr. Brizuela had not inspected the property at the time he signed his first affidavit and he gives no basis for his opinion. Mr. Brizuela then submitted a second affidavit based on an inspection. In it and the attached “Proof of Loss Evaluation and Assessment Report,” Mr. Brizuela opined that “openings [in the roof] were created by strong wind and rain events that took place between June 29th and July 3rd, 2013.” (Emphases omitted). His opinion in this regard was based first upon his “eye witness account” in which “[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge.” He did not describe what the damage to the roof looked like. He admits, moreover, that his inspection of the roof occurred one year after the Homeowner had entirely replaced the damaged roof. He did not explain how he was able to observe “damages to the roof” when the damaged roof had been replaced one year earlier. 2 4 Secondly, he finds that the roof was subject to “high winds between June 29th and July 3rd, 2013 when winds up to 60 mph were recorded near the property.” In particular, he opined that the subject property experienced 60-mph winds because Miami-Opa Locka Airport, which is located more than three miles from the subject property, recorded wind “gusts” of 60 miles per hour of unknown duration on June 29, 2013. Significantly, the claimed date of loss was two weeks later on or about July 17, 2013. Moreover, Mr. Brizuela admitted “Predicting wind at other locations, wind speed from a particular direction at a particular time, with an acceptable degree of accuracy is currently highly inaccurate.” Analysis This Court reviews a trial court’s ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence 2Although he expressly states the roof was replaced (“the roof was replaced before we inspected”), he also states “[w]e would recommend the replacement of the roofing system if the homeowner has not done it yet.” 5 to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non- moving party still could not prevail at trial as a matter of law.” Moradiellos v. Gerelco Traffic Controls, Inc., 176 So. 3d 329, 334–35 (Fla. 3d DCA 2015). A court considering summary judgment must avoid two extremes. On the one hand, “a motion for summary judgment is not a trial by affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact.” Perez–Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA 2017). On the other hand, a “party should not be put to the expense of going through a trial, where the only possible result will be a directed verdict.” Perez- Rios v. Graham Cos., 183 So. 3d 478, 479 (Fla. 3d DCA 2016) (quoting Martin Petroleum Corp. v. Amerada Hess Corp., 769 So. 2d 1105, 1108 (Fla. 4th DCA 2000)). We hold that the two affidavits submitted by Citizens were sufficient to meet its burden as movant for summary judgment. It therefore became the burden of the Homeowners, as the parties opposing the motion, either to (1) file an affidavit indicating they needed additional time to take identified discovery, pursuant to 6 subsection (f) of the rule; or (2) file “summary judgment evidence on which the adverse party relies,” pursuant to subsection (c) of the summary judgment rule. Fla. R. Civ. P. 1.510. The Homeowners chose the second option and filed affidavits in opposition. In this situation, the law of Florida shifts the burden to present evidence from the movant to the party opposing summary judgment: If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result - that is, evidence sufficient to generate an issue on a material fact. When analyzed in this fashion the summary judgment motion may be categorized as a “pre-trial motion for a directed verdict.” At least it has most of the attributes of a directed verdict motion. The initial burden, therefore, is upon the movant. When he tenders evidence sufficient to support his motion, then the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. The movant, however, does not initially carry the burden of exhausting the evidence pro and con, or even examining all of his opponent’s witnesses. To fulfill his burden he must offer sufficient admissible evidence to support his claim of the non-existence of a genuine issue. If he fails to do this his motion is lost. If he succeeds, then the opposing party must demonstrate the existence of such an issue either by countervailing facts or justifiable inferences from the facts presented. If he fails in this, he must suffer a summary judgment against him. Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782-83 (Fla. 1965) (citations omitted).3 7 In this regard, the Rule requires that “opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e). In short, the affidavits opposing summary judgment must identify “admissible evidence that creates a genuine issue of material fact.” Panzera v. O’Neal, 198 So. 3d 663, 665 (Fla. 2d DCA 2015) (citing Rooker v. Ford Motor Co., 100 So. 3d 1229, 1231 (Fla. 2d DCA 2012)). The purpose of this requirement is “to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.” Alvarez v. Fla. Ins. Guar. Ass’n, Inc., 661 So. 2d 1230, 1232 (Fla. 3d DCA 1995) (quoting Pawlik v. Barnett Bank of Columbia Cty., 528 So. 2d 965, 966 (Fla. 1st DCA 1988)). The focus is on whether the affidavits show evidence of a nature that would be admissible at trial; if so, any questions regarding relative credibility or weight of that evidence compared to other evidence cannot be resolved on summary judgment but must be left for the trier of fact. Hernandez v. United Auto. Ins. Co., 3Harvey Building has been continuously cited for over sixty years and remains the black letter law today. See, e.g., The Fla. Bar v. Mogil, 763 So. 2d 303, 307 (Fla. 2000) (citing Harvey Building with approval); Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979) (same); Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383, 389 (Fla. 2d DCA 2018) (same); Cong. Park Office Condos II, LLC v. First-Citizens Bank & Tr. Co., 105 So. 3d 602, 610 (Fla. 4th DCA 2013) (same); Juarez v. New Branch Corp., 67 So. 3d 1159, 1160 (Fla. 3d DCA 2011) (same); Cassady v. Moore, 737 So. 2d 1174, 1178 (Fla. 1st DCA 1999) (same); Magma Trading Corp. v. Lintz, 727 So. 2d 377, 378 (Fla. 5th DCA 1999) (same). 8 730 So. 2d 344, 345 (Fla. 3d DCA 1999) (“In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence.”). Thus, for example, an affidavit averring a pilot had sometimes in the past allowed other persons in a plane to pilot aircrafts did not create an issue of fact as to whether the pilot was allowing another person to pilot the aircraft during a particular fatal crash: “[i]t is well established that affidavits, such as those presented by plaintiff, which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment.” Morgan v. Cont’l Cas. Co., 382 So. 2d 351, 353 (Fla. 3d DCA 1980) (citing Food Fair Stores, Inc. v. Trusell, 131 So. 2d 730 (Fla. 1961)). Similarly, an affidavit that summarily states a property was used for certain purposes without providing any supporting details and the basis for such knowledge does not “set forth such facts as would be admissible in evidence” and therefore cannot be used to defeat summary judgment. Stolzenberg v. Forte Towers S., Inc., 430 So. 2d 558, 559 (Fla. 3d DCA 1983) (quotation omitted). See, e.g., Pino v. Lopez, 361 So. 2d 192, 193 (Fla. 3d DCA 1978) (Plaintiff’s affidavit in opposition to the motion for summary judgment was insufficient as a matter of law because it alleged conclusions of law without supporting facts.). 9 Along the same lines, the principle that “no weight may be accorded [to] an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning,” Div. of Admin. v. Samter, 393 So. 2d 1142, 1145 (Fla. 3d DCA 1981), applies with equal force in the context of summary judgment motions. See, e.g., Panzera, 198 So. 3d at 665 (purely speculative opinion testimony is not admissible evidence and cannot be relied on to create a material issue of fact to defeat summary judgment). Here, the Homeowners’ expert’s opinion that the leak in the roof on July 17, 2013, was created “by strong wind and rain events that took place between June 29th and July 3rd, 2013” was based on his inspection of the subject roof. But he inspected the “damage” a year after the damaged roof was replaced. Nevertheless he asserted that during his inspection, “[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge.” Unless there somehow occurred a suspension of the general laws of physics and common human experience, one cannot normally observe “damages to the roof” after the damaged roof was replaced. De La Osa v. Wells Fargo Bank, N.A., 208 So. 3d 259, 264 (Fla. 3d DCA 2016) (en banc) (“A judge is not required to check his or her common sense in the robing room.”). If there were some unusual and abnormal circumstances which would allow such observation, it was incumbent upon the expert to identify those 10 matters. Absent a description of the physical appearance of the wind damage or other explanation, Mr. Brizuela’s expert opinion rests, at best, on conjecture and surmise. It lacks the required “discernible, factually-based chain of underlying reasoning” necessary for an expert opinion to be admissible in evidence. See, e.g., Samter, 393 So. 2d at 1145. Similarly, the Homeowners’ expert admits that using the wind speed from one location to determine the wind speed at a different location “is currently highly inaccurate.” Yet he proceeded to do precisely what he said could not be done accurately. He hypothesized that wind gusts recorded more than three miles from the subject property two weeks before the loss prove that sustained winds at the subject property were the cause of a loss occurring two weeks later. Setting aside the discrepancy in the dates, this basis of his opinion also fails. An expert opinion that relies upon information that the expert himself testifies is untrustworthy does not qualify as “the product of reliable principles and methods” under the statute governing expert opinions. Alvarez v. All Star Boxing, Inc., 258 So. 3d 508, 513 (Fla. 3d DCA 2018). For these reasons, the trial court was correct. The Homeowners’ affidavits opposing summary judgment did not create a genuine issue of material fact to defeat Citizens’ summary judgment motion. Accordingly, summary judgment was properly granted. 11 MILLER, J., concurs. Yosvani Gonzalez & Yenisleidy Perez v. Citizens Property Ins. Corp. Case No. 3D17-2609 12 SUAREZ, Senior Judge (dissenting). I respectfully dissent. The issue on appeal is one that trial courts face every day and have for years. The issue is whether competing expert affidavits create an issue of fact such that summary judgment cannot be entered. The trial court determined that the Homeowner’s expert affidavit did not create a material issue of fact and granted summary judgment. To arrive at its decision, the trial court impermissibly entered the province of the jury by making findings of fact, weighing the competing evidence presented in the two affidavits and making determinations as to the credibility of the experts and the evidence presented. These are all issues for the finder of fact to determine at trial. They are not issues to be determined by the trial court at the summary judgment phase. I would, therefore, reverse the summary judgment and remand for further proceedings in the trial court. It is undisputed that the Homeowners own property located in Hialeah, Florida and purchased a homeowners’ insurance policy through Citizens, which was effective from June 3, 2013 through June 3, 2014. 4 At the summary judgment 4 The policy at issue provides: COVERAGE A – DWELLING and COVERAGE B – OTHER STRUCTURES We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. 13 phase it was undisputed that there was water damage to the interior of the home caused by a leak in the roof. The entire issue in the case is whether, as Citizens argues, the leak was caused by wear and tear to the roof and, therefore, not a covered loss under the policy or, as the Homeowners argue, was caused by a physical loss to the roof that allowed water to enter and would, arguably, be covered by the policy. On appeal, the Homeowners argue that the trial court erred in granting summary judgment in favor of Citizens. Specifically, the Homeowners assert that the evidence before the trial court showed that there was a genuine issue of material fact as to the cause of the loss, and that the trial court improperly weighed the evidence and assessed the credibility of the expert witnesses. I agree on both points. “A trial court may enter a summary judgment when (1) there are no genuine issues of material fact, and (2) the moving party is entitled to judgment as a matter .... We do not insure, however, for loss: .... 2. Caused by: .... h. Rain, snow, sleet, sand or dust to the interior of a building unless a covered peril first damages the building causing an opening in a roof or wall and the rain, snow, sleet, sand or dust enters through this opening. i. Any of the following: (1) Wear and tear, marring, deterioration; 14 of law,” Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So. 3d 789,790 (Fla. 3d DCA 2010). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991). Significantly, in considering a motion for summary judgment, a trial court is not permitted to weigh material conflicting evidence or adjudge the credibility of the witnesses. Garcia v. First Cmty. Ins. Co., 241 So. 3d 254, 257 (Fla. 3d DCA 2018). But that is exactly what the trial court did. Based upon my review of the record and affidavits filed in this case, I would find that there are genuine issues of material fact as to the cause of water damage to the Homeowners’ property that preclude the entry of summary judgment. In its amended motion for summary judgment, Citizens argued that “the leakage and seepage [that entered the property] is due to the wear and tear, marring, and deterioration of the roof” rather than a covered peril. Citizens relied upon Brown’s affidavit, in which he concluded that the “[t]he roof leak claimed in this matter . . . is the direct result of normal wear and tear of the roof system and the leak is not through a wind storm intrusion.” In their memorandum of law in opposition to Citizens’ amended motion for summary judgment, homeowners relied upon Brizuela’s second affidavit in support of their assertion that the roof leak was 15 caused by a covered peril, i.e., exterior roof openings caused by “wind uplift.” Specifically, homeowners relied upon Brizuela’s statement in his affidavit that moisture entered the property through openings “created by strong wind and rain events that took place between June 29th and July 3rd, 2013. The strength of the winds during this period ranged from 34 up to 60 mph. These damages were observed inside the property when in a 2-day period more than 4 inches of rain fell on the property.” The conflicting affidavits of Brown and Brizuela establish a genuine issue of material fact regarding the cause of loss. As a result, no summary judgment should have been entered. See id. at 258; Charles E. Burkett & Assocs., Inc. v. Vick, 546 So. 2d 1190, 1191 (Fla. 5th DCA 1989) (holding that conflicting affidavits created a genuine issue of material fact and that summary judgment should not have been entered). The trial court impermissibly weighed the evidence and assessed the credibility of witnesses in granting Citizens’ amended motion for summary judgment. In announcing its ruling, the trial court stated that it was “adopt[ing] and incorporate[ing] by reference” Citizens’ argument that Brizuela’s affidavit and report did not create a genuine issue of material fact as they were based upon an inspection conducted four years after the loss. Indeed, during the hearing, the trial court stated that “[m]y position is that why didn’t [homeowners’] inspection take place sooner like [Citizens’] did, two days after the event and then nine months 16 after.” The trial court further stated that an opinion based upon an inspection conducted two days or nine months after the alleged damage “has a higher degree of accuracy, at least for this court,” than one that occurs four years later. Any issues as to the credibility and accuracy of Brizuela’s opinion due to the timing of his inspection, however, are for the trier of fact, not the trial court in a summary judgment proceeding. Garcia, 241 So. 3d at 258 (“The consideration of the timing of Brizuela’s inspection of the property in relation to that of [insurer’s] engineer, however, goes to the credibility and weight of Brizuela’s opinion regarding the cause of loss. It is well-established that issues of credibility and weight of the evidence are not appropriate in a summary judgment determination.”); see also Hernandez v. United Auto. Ins. Co., 730 So. 2d 344, 346 (Fla. 3d DCA 1999) (stating that witness credibility “was a matter within the province of the trier of fact and not the court on a motion for summary judgment”); Juno Indus., Inc. v. Heery Int’l, 646 So. 2d 818, 822 (Fla. 5th DCA 1994) (“The trial court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding.”). In the opinion, the majority determines factual issues, weighs the conflicting evidence and determines credibility of the witnesses. Again, these are issues for 17 the trier of fact and not for the summary judgment phase. In referring to the Homeowner’s affidavit, the majority opinion states: Here, the Homeowners’ expert’s opinion that the leak in the roof on July 17, 2013, was created “by strong wind and rain events that took place between June 29th and July 3rd, 2013” was based on his inspection of the subject roof. But he inspected the “damage” a year after the damaged roof was replaced. Nevertheless he asserted that during his inspection, “[t]he damages to the roof were observed in areas more vulnerable to wind gusts such as the intersection of the flat roof and inclined roof and along the roof ridge.” Unless there somehow occurred a suspension of the general laws of physics and common human experience, one cannot normally observe “damages to the roof” after the damaged roof was replaced. . . . If there were some unusual and abnormal circumstances which would allow such observation, it was incumbent upon the expert to identify those matters. Absent a description of the physical appearance of the wind damage or other explanation, Mr. Brizuela’s expert opinion rests, at best, on conjecture and surmise. It lacks the required “discernible, factually-based chain of underlying reasoning” necessary for an expert opinion to be admissible in evidence. The majority then goes on to state: Similarly, the Homeowners’ expert admits that using the wind speed from one location to determine the wind speed at a different location “is currently highly inaccurate.” Yet he proceeded to do precisely what he said could not be done accurately. He hypothesized that wind gusts recorded more than three miles from the subject property two weeks before the loss prove that sustained winds at the subject property were the cause of a loss occurring two weeks later. Setting aside the discrepancy in the dates, this basis of his opinion also fails. An expert opinion that relies upon information that the expert himself testifies is untrustworthy does not qualify as “the product of reliable principles and methods” under the statute governing expert opinions.” 18 These are the types of arguments an attorney would make to the finder of fact in the hope of convincing the finder of fact that in weighing the conflicting expert evidence (one expert opines the water damage is due to wear and tear and the other expert opines it is due to uplift caused by wind), the expert’s opinion based on these facts is not as reliable as the opposing opinion based on the facts presented by the opposing expert. In other words, the majority, as did the trial court, is looking at these facts and is determining that these facts are not reliable and do not support the expert’s opinion and, therefore, the expert is also not credible. Again, the weighing of conflicting evidence and the determination of the credibility of the witness are issues to be determined by the trier of fact and are not, as has been done here and by the trial court, issues to be determined at the summary judgment stage. For these reasons I would reverse and remand for further proceedings. 19	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION JUN 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUZ MARIA GUZMAN-SORIA; et al., No. 16-70701 Petitioners, Agency Nos. A201-204-109 A208-120-696 v. A208-120-697 WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 17, 2019 Seattle, Washington Before: KLEINFELD and FRIEDLAND, Circuit Judges, and PAULEY,** District Judge. Luz Maria Guzman-Soria and her children Vanessa Soto-Guzman and Angel Soto-Guzman petition for review of the decision of the Board of Immigration Appeals (“BIA”), denying their applications for asylum, withholding of removal, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William H. Pauley III, United States District Judge for the Southern District of New York, sitting by designation. and relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition. The petitioners have not demonstrated that Mexican society recognizes those who say something useful to police in apprehending suspects as a distinct “particular social group.” We assume for purposes of this decision only that the “particular social group” of informants in Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir. 2013) (en banc), encompasses the petitioners’ proposed social group, if there is evidence of the distinctiveness of those groups in the country at issue. Even assuming that Henriquez-Rivas extends to those who do not testify in court, the administrative record, including the news clippings to which the petitioners direct our attention, does not compel a conclusion contrary to the BIA’s. Substantial evidence in the record as a whole supports the BIA’s finding that the petitioners failed to establish that Mexican society recognizes their proffered particular social group and thus supports the denials of asylum and withholding of removal. See also Ali v. Holder, 637 F.3d 1025, 1029 n.2 (9th Cir. 2011) (“An application for asylum is automatically considered a simultaneous request for withholding of removal.” (citing 8 C.F.R. § 1208.3(b))); cf. Henriquez- Rivas, 707 F.3d at 1092 (explaining that the BIA had failed to consider “significant 2 evidence” of the recognition in Salvadoran society of the particular social group at issue such as the enactment of a “special witness protection law”). Petitioners have not argued in their brief to this court that they are entitled to Convention relief, so those claims which were made before the BIA, are waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996). PETITION DENIED. 3	{ "pile_set_name": "FreeLaw" }
November 17, 1958 Honorable Bill Allcorn, Commissioner General Land Office Austin 14, Texas Opinion No. WW 540 Re: Whether the primary terms of oil and gas leases covering tracts in the Gulf of Mexico beyond three geographic miles are suspended because of pending litigation under the provisions of Art. 54211, VCS (Acts 1941, 47th Leg., p. 1405, ch. 637, sec. 1, as amended Acts 1951 52nd Leg., p. 750, ch. 406, sec. 1) and related questions. Dear Mr. Commissioner: You have requested an official opinion regarding the questions, mentioned in the above caption, which are set out in full in the body of this opinion. In your request vou ” . mentioned ~~~ the nendencv of lltina- tion in the Supreme Cc)urt of the United States 1n;olving - ownership "beyond three geographical miles" in the Gulf of Mexico. The case to which you refer is styled United States of America, Plaintiff v. States of Louisiana, Texas, Mississippi, Alabama and Florida, Defendants, No. 11 Original, ‘C)ctober Term, 1957 (now No. 10 Original, October Term, 1958.) Prior to June 24, 1957 the State of Texas filed an amicus curiae brief in a case brought by the United States again&Louisiana involving ownership of submerged lands off the Louisiana coast. The reason for the filing of the amicus brief by Texas was that it appeared from assertions made in the briefs of Louisiana and the United States concerning Texas' submerged lands that the rights of Texas might be adversely affected in a case to which Texas was not a party. The United States Supreme Court by its order of June 24, 1957 (as amended by order October 22, 1957) declared that the issues involved in the Louisiana case were so related to Hon. Bill Allcorn, page 2 (w 540) the interests of Texas that the court allowed Texas sixty days within which to intervene, and, if it failed to do so, the order permitted the United States sixty days thereafter within which to add Texas as a party. Texas did not intervene. The United States filed an amended complaint November 7, 7~957by which Texas, Mississippi, Alabama and Florida were added as parties defendant. (This date has been confirmed by letter of the Clerk of the Supreme Court dated November 6, 1958.) We deem it of importance to advise you of some of the relevant portions contained in the Amended Complaint against Texas, Despite the wording of the Congressional Submerged Lands Act, 67 Statutes atlarge 29, (1953) the United States in its Amended Complaint averred that when Texas became a mem- ber of the Union its,boundaries did not extend into the Gulf "more than three geographic miles from the ordinary low-water mark or from the outer limits of the inland waters, and the Congress...has never approved a boun- dary for said State extending into the Gulf...more than three geographic'miles from the ordinary low- water mark or from the outer limits of inland waters." The United States alleged that Texas claims some right, title and interest in the "lands, minerals and other things' seaward of that line. The complaint averred that the United States "is now entitled to exclusive possession of and full dominion and power over the lands,.mLnerals and other things underlying the Gulf of Mexico, lying more than three geographic miles seaward from the ordinary low-water mark and from the outer limit of inland waters on the coast of Texas, extending seaward to the edge of the con- tinental shelf, and is entitled to an accounting forall sums of money derived therefrom by the State of Texas after June 5, 1950, which are pro- perly owing to the United States under the decree entered by this Court on December 11, 1950, in the case of United States v. Texas, 340 U.S. 900." We feel that the rather detailed recitalsabove given is essential to an understanding of our answers to your ques- tions. In your opinfon request you quote Article 54211, V.C.S., but only in part. Article 542li wasenacted in 1941, but it was amended in 1951. We will quote the entire act, the under- scored portion representing the language of the amendment incorporated into the actiin 1951. Ron. Bill Allcorn, page 3 (ww-540) "The running of the primary term of any oil, gas or mineral lease heretofore or hereafter issued by the Commissioner of the General Land Office, which lease has been, is, or which may hereafter become involved in litigation relating to the validity of such lease or to the authority of the Commissioner of the General Land Office to lease the land covered thereby, shall be suspended, and all obligations Imposed by such leases shall be set at rest during the period of such litigation. After the rendition of final judgment in any such litigation, the running of the primary term of such leases shall commence again and continue for the remainder of the period specified in such leases, and all obligations and duties im- posed thereby shall again be operative provided such litigation has been instituted at least six (6) months prior to the expiration of the primary term of any such Your questions will be answered in the sequence in which you propound them: (1) ' Are leases beyond the three'geographical mile line suspended under the provisions of the above statute?" After the enactment of the 1941 act original mandamus proceedings were brought in the Texas Supreme Court prior to December, 1950 by Ohio Oil Co., et al v. Giles, Commissioner of the General Land Office, and others, (235 S W.2d 630) t comae1 refund to the relator oil companies of the amounts iaid as delay rentals under mineral leases covering submerged lands in the Gulf issued by the State to Relators on the basis that there was then pending in the United States Supreme Court an action by the United States against Texas to recover the sub- merged lands, and that by the terms of Art. 54211 of 1941 all obligations were suspended. (see 239 U.S. 707; 340 U.S. 900) The Supreme Court of Texas held that the annual delay rentals under such m~ineralleases were "obligations" within the meaning of Article 5421i (of 1941) and that the requirement iion.Bill Allcorn, page :I. (l,,:;'-$c ; t:ogay delay rentals was suspended du~ringthe lft~lgation Iietweenthe United States and the State of Texas. The Texas Attorney General urged the !,ropositionthat If the annual r:?ntalswere "obligations!',and if Article 542li (of 1941) !:a6interpreted as releasln;;or suspending them, that Article 542li fir 19417 was in vioiation 0; Article 3, Section 55 of the Texas Con?%itution. The court held: "Since the part of the act relating to leases eg&d& rior to the enactment of Article 5421i 1 is not Involved in this case, it is not necessary to consider and construe that part of the act. When we consider th::part of the act involved ir?this case and constrv;:'It!.nthe light OF the many decisions in this Stati:iiipoint, we find that ;.tis constitutional..,..<, :,,I-, further hold that the provi- &ions of t'hcact involved hiirodo not violate Article I Section 55, of the Constitution of Texas. Art i- z.I cle'5421i relieves the lesseos of the obifgation to pay delay rentals during the suspended period..." The Texas Suprer.:~c Court ::znt,toned that the Relators ::zL'L' not partj.esto the Un-',tzdStatzs Supreme Court case, and stated that after leave to fil.2zandamus had been granted, and before the Supreme Court of Texas handed down its opinion, a had b can ren(j.r?p& ?j.naljud:,?r.ent by the Uni.tedStates Supreme 'our% adverse to Texas. The Texas ::l!preme Court stated: '-T;>e eff.zctof that jud~~.:~it's that the Comrris- si.onerof the Genera!.il:ar:d C!X 7~cehad no authori.ty 3as;es in question." to exmxte the oi;.and ;;;a:: The Texas Su:,rc~~s::ourt r;;used to decide the question as to when the suit in t!l<? TJnitcd:;tatesSupreme Court had _ , i.e. ;-her] been commenced tilt- ::i:zpr:nsLon took effect. (See 235 S.W. 2d i>.,r;(j m;;i') After the advers,:ti.::: :~s:on in the Texas case the Con- ;;i-eSsenacted tile;j,;l'orr,eiv;;~ ;.3il;J,s Act , supra, the purpose of :{'fl ii: h , as to the Gulf Coactcr!~Xates, was to restore to such s.tatesproprietary rights .i~: ~3 u'cjrj e~2;; $2 d lands in the Gulf out to setihiardboundaries of ti?crespect:ve states as they existed prior to or at the time such statc.cbecame members of the Ur! n , 01,as tllejyetofo;y: i.c a~l;:);yj.;~:d 3y f:ong:ress.Tncidentally, ',;I,? ;I?;2lublj.c of Texas r'ij;~.!~.:. its ciaritimeboundaries at three :.i~,:yi.n:? JLcx3.gues seaward I';,: ,- ,t December 19, 1835, (I Laws Rep. .;, y;;, 'i$:;:. :;t<oremeCourt upheld the and the Uri;ted:Itati:s giaantof proprietary right::In the submerged lands under the Suhmcrged Lands Act in Alab&?a v. Texas (347 U.S. 272). . - lion.Bill Allcorn, page 5 (NW-5&o) In our opinion the amendment to Article 54211 V.C.S. in 1951 substantially alters the situation in some respects from that posed before the Texas State Supreme Court in 1950. It is true that the primary term of the leases is suspended as provided in the amended statute, and, though the amended statute carries forward the language "all obligations imposed by such leases shall be set at rest durinf the period of such litigation," yet, the amendment provides that the lessees shall pay all annual delay rentals and any royalties which accrue during the period of litigation the same as during any other period of the extended primary term' and it provides that the rentals shall be held in suspense and returned to the lessees in the event the State is unsuccessful in any such litigation. Thus, under the amendment, the obligation of the State's lessees to pay delay rentals and royalties continues during such litigation. The answer to your first question, then, is: (1) Leases beyond three geographFc miles seaward from the low-water mark and from the outer limits of the inland waters on the Coast of Texas are not fully suspended in the sense in wh'ichyou stated your questions; (2) Lessees holding such leases must continue to pay all annual delay rentals and any royalties which accrue during the period of litigation, "such ren- tals" to be 'hcl.d in suspense: (3) The primary terms of such leases are suspended during the perLod of such litigation, and after the rendition of final judgment, if such judgment is favorable to Texas, the running of the primary terms shall commence again and continue for the remainder of the period specified in such leases, and the obligations and duties imnosed there by shall again be operative provided such lrtigation was instituted at least six months prior to the expira- tion of the primary te-rm,and (4) Ln vietv Giles of the holding and language of 0hS.oGil Co. (235 s.:;'.2d 630) the statutory SLISPenSiOn V. of obligations is constitutional as against the con- tention that the Act (Apt. 9211) is violative of Section :, ArtiC3.C yj of the Texas Constitution, -itshou1.dbe 17nrnein mind that Art. 54211 as thou.rrh e,menzeddoes not reli.evelessees of their obligation to pay royalties and delay rentals. . Your second question was: (2) "If your answer to question number 1 is in the affir- mative, what is the exact date of the beginning of the period during which the primary terms of those leases are suspended?" We have explained that the United States Supreme Court by its order of June 24, 1957 (as amended) allowed Texas sixty days within which to intervene, and,,if it failed to do so, allowed the United States sixty days thereafter within which to add Texas as a party. By that order Texas was not compelled to intervene, and it is our opinion that intervention was not sropcr because the Congress of the United States had not given tts consent to a suit against the UnLted States. As to that oortion of the order allowing the United States sixty days %ereafter within which to add Texas as a party, it is our opinion that there was then no pending suit against Texas because the United States, in its discretion, could have chosen not to sue Texas, (the President having stated Texas owned her submerged lands) even though it might have elected to sue other Gulf Coastal States, and therefore there was no ";itigati.on"pending, within the wording of Particle54211 (as amended), until a suit was actually filed against Texas. We therefore answer that the '"exactdate of the begin- ning of the period during which the primary terms' of the ?;easesin question were suspc:ndedis November 7, 1957, the ~.!ate Texas was made a past:;d?fmdant by the filing of the Amended Complaint by the 3r:itedStates. YOUS third questioi \~,'%I. 2: 1 is in the affirma- I-" "If your answer to question nI&inber \3: tive, then as to lease:;where the three geographical mile line cuts acso::slands covered thereby, is c-he r>Jnningof the pri.maryterms of those leases suspended as to all cf the land coy.-ercd by that lease or only as to that part of tho land covered by the lease which is seaward of the three geographical mila line?" An over-literal or "yper-technical construction of the act might cause one on :?i.rst impression to think either (a) "'hat,except as to ?o::al.ty %d rental obligations, since :. P:?Ttj.l:?> <>iY the IEa:i~!j:;zf !‘::(:%ed :"ylitig+t%on, the remaining r>bligationsas 'cc, 'c!:l<! +::I!-"..r'r? .L~.:isi? are suspended, or, (b) e<,J)ce the ~:~~-.t~t/.~ -p:i:;eIc not affected there j.sno suspension as to any part of Lt. . i - Hon. 7-;11Allcorn, page 7 (ww-540) It is our opin'lonthat either of such constructions i:ouldbe unreasonable; would result in an absurdity and would thwart the legislative intent, It is elementary t&t there 1's but one fundamental rule of construction as to statutes and that is that the legislative intent must govern (39 Tex. Jur. /%atu.te$, Sec. 87, p. 160) and that the object of con- struction is to enforce, and not thwart legislative intent (39 Tex. Jur.,&%atute$,Sec. 90, p. 1671. Therefore, our answer is: where a portion of the leas,?1i-s m0r.ethan three geographic miles seaward from the ordinary lo;w-watermark or fxonl the outer limit of inland ;,ratel~>s , and a portion of the lease lies landward of that line, the oh1igatj.on.z of the I.esseesunder,Article 321i are not suspended as to that portion of the submerged lands lying landward of that l-inebecause the United States has not sued for recovery of lands within that area, and there is no "liti- gation pending which affects that portion of the leases executed by the Statz. To hold that all or none of the obli- gations of the entire lease are suspended would be an unreason- able construction of Article $211. The Courts, in construing statutes, WI11 nat impute to the legislature an intention to create an unreasonable result. See 39 Tex. Jur. (Statutes) Sections 118, 119, and cases there cited. Under / ArtI~cle$21;, WY::, (Acts 1941, 47th Leg., p. 14crj5,c‘n.97, sec. 1, as amended Acts 1951, 52nd Leg., p. sec. 1 ) 1eS )::? 750, c:1.I!!,.>, S from the state holding oil, gas :j and ml~leralleases underlying the Gulf of Mexico lying more than t'hre2ge0graph~i.c miles seaward from the ordinary low- v;a';eymarl:and from the outer limit of inland waters on the Coast of Texas must continlieto pay all annual delay rentals and any royalties which accrue during the period of litiga- tion involved in United States v. Louisiana, Texas, et al, No . 13 OrigInal, October Term, 195?.. The primary terms of such leases are suspended during such litigation. After rendition of final JucQgmdnt,if the judgment is favorable to Texas, the running of the primary terms shall commence and coritinuzfor the remainder of the period specified in the respective leases, and the other obligations and duties im- posed thereby shall again be operative provided the litigation, above mzntloned, was instituted at least six (6) months prior to the expiration of the primary term. Because of the holding of th:?Te;:asSuprer~ii Court in OhLo Oil Co. v. Giles, supra, ';;lestat;:torysuspension under Article 54211 as amended is constitutional as against the contention that theAct violates ,cact',on;;,Article 55, Texas Constitution, but the lessees . . Hon. Bill Allcorn, page 8 ('m-540) must continue to pay rentals and royalties. The date the period of suspension commences is November 7, 1957. If a portion of a lease lies more than three geographic miles seaward from the ordinary low-water mark or from outer limits of inland waters, and a portion lies landward of that line, the obligations of lessee, under Article 54211, are not suspended as to the portion lying landward of the line, but are suspended as to the portion lying seaward of the line, except, that the lessee must continue to pay annual delay rentals and royalties on the seaward portion. Very truly yours, WILL WILSON Attor@y General of Texas N. Ludlum First Assistant Attorney General JNL/grb APPROVED: ~~I'N'ONCOMMITTEE - . ?. Blackburn, Chairman L. P. Lollar J. C. Davis, Jr, John Reeves .'John Webster James Rogers RWIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert	{ "pile_set_name": "FreeLaw" }
816 F.2d 1207 22 Fed. R. Evid. Serv. 1437 UNITED STATES of America, Plaintiff-Appellee,v.Marshall Ray MARKS, John D. Taylor, William J. Campbell, andThomas E. Pals, Defendants-Appellants. Nos. 85-2325, 85-2326, 85-2327, 85-2339. United States Court of Appeals,Seventh Circuit. Argued Jan. 23, 1987.Decided April 16, 1987. Thomas J. Fahey, Danville, Ill., R. Corydon Finch, Anna, Ill., Ronald R. Eckiss, Marion, Ill., Harris, Lambert & Wilson, for defendants appellants. Michael C. Carr, Asst. U.S. Atty., Benton, Ill., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee. Before CUMMINGS and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. POSNER, Circuit Judge. 1 The four defendants whose appeals we have consolidated were charged, along with others, with conspiring to distribute a large amount of marijuana between 1981 and 1984. The jury convicted them, and the judge sentenced each to six years in prison. The kingpin of the conspiracy was Jack Hrvatin. The appellants were cogs in the operation, and their minor role provides the principal theme of their appeals. 2 We begin with Marks, who is alleged to have acted as a courier of drugs and money for Hrvatin and who raises three issues requiring discussion. The first is whether there was sufficient evidence to justify the jury's finding him guilty beyond a reasonable doubt. The only direct evidence against him was the testimony of Ernest and Nancy Poland, conspirators who turned state's evidence. The weaknesses in this evidence are threefold. First, the Polands had a strong incentive to give testimony supporting the government's case, since the more defendants they could put in the government's bag the more lenient the treatment they could expect from the government. Second, Ernest Poland was an extraordinarily heavy user of drugs, and whether for this or other reasons had an extremely poor memory. Third, while the evidence showed that Marks had been involved in drug dealings with Hrvatin and the Polands for a considerable period beginning in 1974, there was virtually no evidence except the Polands' word that he had continued dealing with them in the period covered by the indictment. 3 These weaknesses, whether singly or together, are not fatal. Frequently the principal witnesses in drug cases are turncoat former associates of the defendants, and their credibility is for the jury to determine. While Ernest Poland had an abnormally poor memory, there is no indication that Nancy Poland did. Her testimony alone was enough to convict Marks. She was unequivocal in placing Marks' courier work within the period covered by the indictment. 4 Next, Marks objects to the admission of the evidence of his dealings with Hrvatin and the Polands before that period. There is always a danger of smearing a defendant with evidence of crimes that--maybe because the government couldn't prove his guilt of them beyond a reasonable doubt--he is not formally charged with. If, however, the other crimes are relevant to those he is charged with, are established by clear and convincing evidence that is not unduly prejudicial, and are not just being used to show that the defendant has a propensity to commit crimes, evidence of their commission is admissible in the district judge's discretion. See, e.g., United States v. Beasley, 809 F.2d 1273, 1277-78 (7th Cir.1987); United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984); Fed.R.Evid. 403, 404(b). These conditions are satisfied here. The history of Marks' dealings with Hrvatin and the Polands explained why Hrvatin was willing to entrust Marks with large quantities of drugs and cash even though Marks lived in Marseilles (near Peoria), which is 300 miles north of Carbondale, where Hrvatin lived. Marks had moved to Marseilles two years before the period covered by the indictment. The history also explained how the Polands had come to meet Marks, and undermined his testimony that he was only slightly acquainted with them. Moreover, evidence about the history was necessary just to make the Polands' testimony intelligible to the jury, which would wonder how the Polands had found themselves engaged in drug dealings with him. The government could not have elicited a coherent story from the Polands without asking them where and when and in what circumstances they had met Marks, and the answers to these questions would inevitably bring out the history of Marks' criminal involvement with the Hrvatin group. The evidence of that involvement was as strong as the evidence of Marks' guilt during the period covered by the indictment, so the requirement that the evidence of the other crimes be clear and convincing was satisfied. And the evidence was not unduly prejudicial, for almost Marks' entire defense was that he had indeed been involved in drug dealing with Hrvatin at an earlier time but had quit before the period covered by the indictment and that the Polands in their testimony had mixed up the two periods. 5 The only troublesome part of this evidence is the testimony by Wayne Danis concerning his purchases of marijuana from Marks in the 1970s, for there was no evidence that Danis was part of the Hrvatin group. His evidence thus was not part of the essential background to Marks' dealings with the Hrvatin group in the period covered by the indictment. And it was dramatic evidence--a description of giant bales of marijuana, and of large quantities of cash stashed in a freezer. But it was not completely irrelevant. In the course of describing his dealings with Marks, Danis testified that he had seen Marks at Hrvatin's liquor store during the period covered by the indictment, and also that Marks had moved to Marseilles to service Hrvatin's customers in the Peoria area. This was not only background to the Polands' testimony about Marks' involvement with the Hrvatin group during the period covered by the indictment (explaining how Marks could be part of a conspiracy with Hrvatin while living 300 miles away); it was evidence that Marks had continued working for Hrvatin during this period. Marks had gone to Marseilles as Hrvatin's agent two years before and might well have still been his agent two years later, as the Polands testified. We do not think the probative value of this evidence, slight as it was, was so clearly outweighed by its prejudicial effect as to warrant our reversing the district judge's evidentiary ruling. For the incremental prejudicial effect was not great, since extensive other evidence of Marks' marijuana dealings in the 1970s had been (we have just held) properly admitted. 6 Third, Marks (joined by the other defendants) complains about the district judge's handling of the "302's." These are FBI interview reports. In cross-examining the Polands and other prosecution witnesses, the defendants' lawyers would read something from a piece of paper (the 302) and ask the witness whether he had made that "statement." The judge required the lawyer to show the 302 to the witness and ask the witness whether he adopted the statement in it. The defendants complain that their lawyers should not have been required to do this. 7 No longer, when a lawyer asks a witness whether he made a certain statement, written or not, is the lawyer required (as he was at common law, see Note of Advisory Committee to Fed.R.Evid. 613(a)) to show the statement or disclose its contents to the witness, though he must upon request show it to opposing counsel. Fed.R.Evid. 613(a). If the witness answers "no," the lawyer can then try to prove that the witness indeed made the statement, but the witness must at that point be given an opportunity to explain or deny it, i.e., to rebut the cross-examiner's proof. Fed.R.Evid. 613(b). In this case, however, the prosecution was concerned that the jury, seeing Marks' lawyer reading from a written report of some sort, would infer that if the witness denied having made the statement read by the lawyer, the witness must be lying, though in fact the FBI agent who had made the report might have gotten the witness's story down wrong and might have failed to ask the witness to read and sign the statement. The judge responded to this concern by telling the defense lawyer to show the report to the witness. If the witness denied that the statement attributed to him in the report was his statement, the lawyer could then call to the stand the FBI agent who had written the report, in an effort to establish that the witness was lying in denying having made the statement. The assertion made by all three of the defendants' lawyers at the oral argument of the appeals that the judge forbade them to call the agents as witnesses does not appear in their briefs and is not supported by the record. 8 If defense counsel had been reading from a transcript of a previous trial or deposition, there would have been no justification for the district judge's procedure. But since a statement appearing in an interview report could easily be garbled, yet seem authoritative when read from a paper that the jury would infer was an official FBI document, the judge was reasonable in insisting that the witness be allowed to examine his purported statement before being impeached by it. If the witness denied it was his statement, the matter could then be resolved by calling the FBI agent who had compiled the report. We do not think Rule 613(a) was intended to take away the district judge's discretion to manage the trial in a way designed to promote accuracy and fairness; and while it would be wrong for a judge to say, "In my court we apply the common law rule, not Rule 613(a)," he is entitled to conclude that in particular circumstances the older approach should be used in order to avoid confusing witnesses and jurors. See United States v. Nacrelli, 468 F.Supp. 241, 253-54 (E.D.Pa.1979), aff'd without opinion, 614 F.2d 771 (3d Cir.1980). On one occasion it turned out that counsel was trying to impeach Mrs. Poland's testimony by reading from her husband's 302; and there were like occasions on which the procedure followed by the district judge protected the jury from being confused. The judge's ad hoc recurrence to the common law was not reversible error per se. The procedure did not impede the cross-examination of the prosecution's witnesses (except insofar as defense counsel may have wanted to confuse them and the jury) or cause any other prejudice to the defendants. 9 Defendant Pals was another courier for Hrvatin; in addition he stored marijuana for the conspiracy in his home. He too complains about the sufficiency of the evidence, but his complaint is weaker than Marks' because the Polands' testimony against Pals was corroborated by telephone company records showing a number of calls between the Polands and him during the period covered by the indictment. We are not impressed by the argument, rejected in many cases, see, e.g., United States v. Lewis, 759 F.2d 1316, 1343-44 (8th Cir.1985); United States v. Weisz, 718 F.2d 413, 432 n. 116 (!) (D.C.Cir.1983); United States v. Atchley, 699 F.2d 1055, 1058-59 (11th Cir.1983); United States v. Polizzi, 500 F.2d 856, 905-06 (9th Cir.1974); United States v. Novick, 124 F.2d 107, 110 (2d Cir.1941), that such records are inadmissible because all they show is the time and place of the calls--they do not reveal the name of the caller or of the person called, or the subject of the conversation. The question is not whether the phone records have great probative weight but whether they have any weight, in which event the district court had broad discretion, see Fed.R.Evid. 403, not abused here, to admit them. They have some weight. Communication is not a sufficient condition of conspiracy but it is a necessary condition; and while it is possible that in a call from Pals' home to the Polands' home the parties were the Polands' and Pals' teenage daughters rather than their fathers, the evidence of repeated telephone communications between Pals' home and that of Hrvatin's admitted coconspirators increases the likelihood that Pals himself was a member of the conspiracy. Evidence that increases the likelihood of a fact sought to be proved is probative of that fact, by definition. Of course by itself the evidence would have no value, because it is not yet a crime to be acquainted with a drug dealer; but the probative value of evidence often depends on its being part of a mosaic. The Polands testified that Pals was part of the conspiracy; the telephone records provided some, though perhaps only slight, corroboration of this testimony. 10 We come to the remaining minor cogs, Taylor and Campbell. The evidence against them was indirect, because the Polands had no dealings with them; but it was strong enough. The evidence against Taylor included telephone company records showing many calls between his phone, Hrvatin's, and that of Sidney Hall (another member of the conspiracy during the period covered by the indictment), and an incident in a bar where both he and Campbell threatened a government witness during the trial. The telephone evidence is more powerful than in the case of Pals, because it links Taylor to two conspirators, and the likelihood that such a linkage was purely social is reduced. Taylor's counsel argues that threatening a witness is not tantamount to an acknowledgment of guilt--indeed, if one were innocent, one's wrath against the witness might be greater than if one were guilty: it might be righteous indignation against a perjurer. But against this it can be argued that a person has more to gain from threatening a truthful than a lying witness, because the former is inherently more credible; so maybe the temptation to threaten the truthful witness is greater, after all. In any event, evidence of threats against a prosecution witness has long been admissible "as an indication of [the defendant's] consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit." 2 Wigmore, Evidence Sec. 278(2) (Chadbourn ed. 1979). See, e.g., United States v. Flick, 516 F.2d 489, 495 (7th Cir.1975); United States v. Rosa, 705 F.2d 1375, 1377-78 (1st Cir.1983). The rule is too well settled to be disturbed on the flimsy grounds advanced by Taylor. Evidence that a witness was threatened was therefore some evidence linking Taylor to the conspiracy, like the phone calls; was not unduly prejudicial; and is a type of evidence that is well within the jury's capacity to evaluate in the light of common experience. 11 In addition to the evidence of the threat and the phone calls, there was testimony that Taylor had sold marijuana (during the period covered by the indictment) obtained from "Sidney" in Carbondale. Carbondale was the hub of the Hrvatin group's operation, and Sidney Hall was a worker in Hrvatin's marijuana operation, as well the owner of a phone from which calls were made to Taylor's phone. So "Sidney" must have been Sidney Hall, and one who buys from a conspirator for resale is a member of the conspiracy if he knows at least its general aims, see, e.g., United States v. Andrus, 775 F.2d 825, 853-54 (7th Cir.1985); the telephone link-ups with Hrvatin suggest that Taylor did. There was also testimony that Hall and Hrvatin discussed Taylor and that Taylor talked about Sidney's going to a warehouse to get marijuana. There was enough evidence to convict Taylor. 12 As for Campbell, there was evidence that he sold marijuana obtained from Taylor and from "Sidney," and this evidence, by tying Campbell to Taylor and to Hall, likewise tied him to Hrvatin, their source and the kingpin of the conspiracy. More important, Campbell, unlike Taylor, said when threatening the witness that if the witness told the jury everything the witness knew, he (Campbell) would be in the soup. This was an implicit admission of his involvement in the conspiracy. 13 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS HERBERT EVANS, Appellant, v. THE STATE OF TEXAS, Appellee. ' ' ' ' ' ' No. 08-12-00274-CR Appeal from 409th District Court of El Paso County, Texas (TC # 20110D03481) MEMORANDUM OPINION Herbert Evans is attempting to appeal his convictions of possession of child pornography with intent to promote (Count I) and possession of child pornography (Counts II through XXIV). We dismiss the appeal for want of jurisdiction. A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). The trial court imposed sentence in open court on Counts I through XXIV on December 20, 2011. Appellant did not file a motion for new trial. Therefore, his notice of appeal was due to be filed on January 19, 2012, thirty days after the date sentence was imposed in open court. See Tex.R.App.P. 26.2(a)(1). Appellant did not file his notice of appeal until August 23, 2012. Consequently, he failed to perfect this appeal. We dismiss the appeal for want of jurisdiction. November 14, 2012 _______________________________________________ ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Antcliff, JJ. (Do Not Publish)	{ "pile_set_name": "FreeLaw" }
867 A.2d 187 (2005) David E. CLAWSON, Petitioner Below, Appellant, v. STATE of Delaware, Respondent Below, Appellee. No. 203,2004. Supreme Court of Delaware. Submitted: November 17, 2004. Decided: January 27, 2005. Eric G. Mooney, Esq., Georgetown, Delaware, attorney for Appellant. Kim Ayvazian, Esq., Department of Justice, Georgetown, Delaware, for Appellee. Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices. 188 RIDGELY, Justice. David E. Clawson appeals from his convictions for driving under the influence 189 under 21 Del. C. §§ 4177(a)(1) and (a)(5).[1] Clawson challenges the admission of the intoxilyzer test result into evidence and advances a bright line rule that the operator of the intoxilyzer machine must complete the twenty minute observation period required by the manufacturer before inserting the intoxilyzer card into the machine. We have concluded that the test result was inadmissible in this case because there was insufficient evidence in the record to meet the foundation requirement that Clawson was observed for an uninterrupted twenty minute period prior to the testing of his blood alcohol content. Testing commenced upon the officer inserting the intoxilyzer card into the machine. Accordingly, we reverse Clawson's conviction under 21 Del. C. § 4177(a)(5). We also reverse Clawson's conviction under 21 Del. C. § 4177(a)(1) because the admission of the test result was not harmless beyond a reasonable doubt as to the companion charge of driving under the influence. This case is therefore remanded for a new trial. I. On the night of his arrest, Clawson was found buckled in the driver's seat of a parked vehicle on the shoulder of Delaware Route 26 by the Delaware State Police. The lights of the vehicle were on and the keys were in the ignition. Corporal Tom Smith of the Delaware State Police determined that Clawson looked intoxicated based on his observations of Clawson's flush face, bloodshot and glassy eyes, and lethargic motions. Delaware State Police Trooper Patrick Wenk arrived shortly thereafter and was briefed by Corporal Smith. Upon approaching the driver side of Clawson's vehicle, Trooper Wenk immediately smelled an odor of alcohol emitting from Clawson's breath and person. He also made similar observations to those of Corporal Smith regarding Clawson's intoxicated appearance. Trooper Wenk testified that Clawson admitted that he had consumed six or seven Margaritas that evening but denied that he was the driver of the vehicle.[2] Trooper Wenk administered field sobriety tests which Clawson failed. Trooper Wenk then took Clawson into custody and transported him to Troop 4 for an intoxilyzer test. At Troop 4, the Intoxilyzer 5000 was used to test Clawson's blood alcohol content. The machine measured Clawson's blood alcohol content at .159. At the trial, Trooper Wenk testified about the mandatory twenty minute observation period. He testified that he began the twenty minute observation of Clawson 190 at 11:32 p.m. At this point in the trial, defense counsel requested voir dire of Trooper Wenk outside the presence of the jury. He told the trial judge that there was only a nineteen minute observation period because the intoxilyzer card indicated that the test began at 11:51 p.m. The trial judge, however, allowed the State to continue to examine Trooper Wenk and permitted Clawson to raise an objection on cross before the intoxilyzer test result was introduced. Continuing with his direct examination, Trooper Wenk then testified that the actual time Clawson blew into the machine was 11:54 p.m., twenty-two minutes after the observation period began. Trooper Wenk also testified that he inserted the intoxilyzer card into the machine and completed three internal calibration tests of the machine at 11:51 p.m. Trooper Wenk then explained: And what most likely happened, looking at my notes now, when I saw it was not quite the time, if you recall, I mentioned the twenty minute period, at [11:32 p.m.] I guess is 19 [minutes] from [11:51 p.m.], so I waited several minutes thereafter to give myself a definite 20-minute observation period. Before he actually blew into the machine, I waited an additional three minutes. It looks like at [11:54 p.m.], three minutes later putting me at 22 minutes, he actually blew into the machine. On cross-examination, Trooper Wenk reiterated that he started the observation period at 11:32 p.m., and that he inserted the intoxilyzer card into the machine and completed three internal calibration tests of the machine at 11:51 p.m. However, Trooper Wenk changed his prior testimony given on direct examination that Clawson blew into the machine at 11:54 p.m. Trooper Wenk said that the machine's reading merely came out at 11:54 p.m., and that he was uncertain when Clawson actually blew into the machine. The trial judge called for a sidebar, at which time defense counsel presented three cases to support his objection to the admission of the test result.[3] The trial judge then ruled that the twenty minute observation period was not a foundation issue to be raised at trial but was required to be raised in either a motion to suppress or a motion in limine. He found that Clawson's objection came too late because it was not raised in a motion to suppress or by a motion in limine. He alternatively chose not to follow the precedents of the Superior Court and Court of Common Pleas that were advocated by Clawson and thereby created a split of authority within the Superior Court on the requirements for admission of an intoxilyzer test into evidence. The jury returned a guilty verdict on the charge of driving a vehicle while under the influence of alcohol under 21 Del. C. §§ 4177(a)(1) and (a)(5). The trial judge fined Clawson $2,000 and sentenced him to five years imprisonment at Level V incarceration followed by six months of Level III supervision. 191 II. This case presents us with two issues. The first is whether compliance with the twenty minute observation period is an issue that must be raised before trial either in a motion to suppress or a motion in limine, or is an evidentiary foundation issue which cannot be waived by a failure to file a pretrial motion. The second is whether the State must establish an uninterrupted twenty minute observation period before beginning the intoxilyzer test, as required by the machine's manufacturer, in order to provide an adequate evidentiary foundation for the admission of the test result into evidence. A. Clawson objected at trial to admitting the intoxilyzer test result on the ground that the State established only a nineteen minute observation period, which deviated from the manufacturer's mandated twenty minute observation period. The trial judge admitted the intoxilyzer test result over Clawson's objection, first finding Clawson's objection untimely, and then, alternatively rejecting the objection on the merits. In reaching his first conclusion, the trial judge reasoned that Clawson was aware of the intoxilyzer card through discovery, had copies of the three cases supporting his position, and in fact prepared an argument advancing a bright line rule regarding the twenty minute observation period prior to trial. The State argued and the trial judge agreed that Clawson was attempting to "ambush" the State by filing an untimely motion to suppress. This Court has not previously addressed whether the twenty minute observation period for the admission of the intoxilyzer test result is an evidentiary foundation question or an issue that must be raised before trial. Because this is an issue of first impression, we look to analogous cases issued by this Court and elsewhere for guidance. This Court has held that the admissibility of intoxilyzer test results center on the State providing an adequate evidentiary foundation for the test result's admission.[4] We also find persuasive People v. DeMarasse,[5] a decision issued by the New York Court of Appeals. In DeMarasse, defense counsel objected to the admission of a breath test result from an Intoxilyzer 5000.[6] In reinstating the defendant's conviction for driving with a blood alcohol content greater than .10, the New York Court of Appeals focused on what constituted a proper foundation for the admissibility of the breath score.[7] Consistent with these authorities, we hold that objections concerning the twenty minute observation period are evidentiary foundation issues which may be raised either by a pretrial motion or by an objection at trial.[8] We therefore disagree with 192 the trial judge's conclusion that the defense waived any objection to admission of the test results. Clawson made a timely objection to the admissibility of the intoxilyzer test result at trial. Accordingly, we review a trial court's ruling admitting the evidence of an intoxilyzer test result over a defendant's objection under an abuse of discretion standard.[9] B. Clawson requests that this Court embrace the bright line rule adopted in other Delaware cases but not by the trial court here. In Holland, the Superior Court first established a bright line rule for the twenty minute observation period in holding that a "failure to demonstrate that there was a period of twenty minutes when [a] defendant [is] observed by the officer is a failure by the officer to follow the procedure required in the manufacturer's instructions."[10] In Subrick, the Court of Common Pleas held that the twenty minute observation period established in Holland must be completed prior to inserting the intoxilyzer card, which begins testing.[11] The Court of Common Pleas was concerned that "once the testing procedure begins the officer is focused on the machine rather than on the defendant who is before him" if the officer inserts the intoxilyzer card before the twenty minute observation period is completed.[12] Finally, in Morales, the Superior Court adopted the rationale of Subrick and held that the machine's operator is to wait twenty minutes prior to starting the test by inserting the intoxilyzer card into the machine.[13] We find the rationale of these cases and the benefit of the clear guidance they give to be persuasive. We hold that in order for the result of the intoxilyzer test to be admitted, the State must lay an adequate evidentiary foundation showing that there was an uninterrupted twenty minute observation of the defendant prior to testing. We further hold that testing commences when the officer inserts the intoxilyzer card into the machine. This is not a burdensome requirement given the purpose behind the twenty minute observation period and the significant consequence of admitting a test result into evidence. When the Intoxilyzer 5000 was determined to be scientifically acceptable in determining blood alcohol content, part of the process for making the test results reliable was compliance with the manufacturer's protocol for the twenty minute observation period. The purpose of this requirement is to eliminate the effect of residual alcohol or other contaminates within the mouth cavity that could affect the reliability of the test's results. We now apply our holding to the record before us. The evidence in the present record shows that Trooper Wenk started the observation period at 11:32 p.m., and that he inserted the intoxilyzer 193 card into the machine at 11:51 p.m. The record does not show that Trooper Wenk or any other police officer actually observed Clawson for an uninterrupted twenty minute period before inserting the intoxilyzer card into the machine. In the absence of this evidence, we must conclude that admitting the intoxilyzer test result constituted an abuse of discretion. III. Because the intoxilyzer test result was inadmissible in this case, Clawson's conviction under 21 Del. C. § 4177(a)(5) must be reversed. Although Clawson's separate conviction under 21 Del. C. § 4177(a)(1) did not require a test result, the admission of a test result that was not in compliance with the manufacturer's requirements jeopardized the fairness of his trial on that separate charge. Accordingly, we REVERSE Clawson's convictions under 21 Del. C. §§ 4177(a)(1) and (a)(5), and we REMAND this matter for a new trial. NOTES [1] Del. Code Ann. tit. 21, § 4177(a)(1) and (a)(5) (2004). These sections state: (a) No person shall drive a vehicle: (1) When the person is under the influence of alcohol ... or (5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's alcohol concentration at the time of driving, if the person's alcohol concentration is, within 4 hours after the time of driving.08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving. [2] Clawson later explained at trial that the vehicle was pulled over onto the shoulder of the road after he instructed the actual driver to do so. Clawson added that the driver left and he moved into the driver's seat to sleep and for protection. He explained that he began drinking around 4:15 p.m. (which was more than 7 hours before the test) and that he consumed a total of five to seven Margaritas during the course of that afternoon and evening. [3] The cases submitted by Clawson to the trial judge were as follows: Holland v. Voshell, C.A. No. 86A-AP2 (Del.Super.Ct. Sept. 3, 1986) (refusing even a de minimus departure from the manufacturer's requirement of a twenty minute observation period prior to beginning the test); State v. Subrick, Cr.A. No. 93-12-0496 (Del.Com.Pl. Feb. 8, 1994) (holding that the intoxilyzer test begins upon the insertion of the intoxilyzer card into the machine and that the State failed to establish by a preponderance of the evidence that it complied with the twenty minute observation period); State v. Morales, Cr.A. No. S95-06-0396-0399 (Del.Super.Ct. Oct. 25, 1995) (embracing the holding that insertion of the intoxilyzer card begins the test). [4] See McConnell v. State, No. 293, 1993, 1994 WL 43751, at 1, 1994 Del. LEXIS 63, at 3 (Del. Feb. 3, 1994) (focusing on whether there was an adequate evidentiary foundation establishing that the intoxilyzer test result is accurate). Cf. Best v. State, 328 A.2d 141 (Del.1974) (concluding that a foundational prerequisite to introduce the result of an intoxilyzer test into evidence is for the State Chemist to certify that the machine is working accurately before and after testing the breath of the defendant). [5] 85 N.Y.2d 842, 623 N.Y.S.2d 845, 647 N.E.2d 1353 (1995). [6] Id. at 845, 647 N.E.2d at 1354. [7] Id. [8] See, e.g., Dawson v. State, 581 A.2d 1078, 1085-88 (Del.1990), rev'd on other grounds, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), enforced, 608 A.2d 1201, 1206 n. 3 (Del.1992) (concluding that the trial judge did not abuse his direction in deciding not to rule on the defendant's motion in limine to exclude evidence relating to the Aryan Brotherhood until the penalty phase of the defendant's initial proceeding); Hatcher v. State, 337 A.2d 30, 32 (Del.1975) (providing that the voluntary nature of a statement under Del. Code Ann. tit. 11, § 3507 (2004) may be determined at trial). [9] Goodwin v. State, No. 111, 1991, 1992 WL 53432, at 1, 1992 Del. LEXIS 90, at 3 (Del. Feb. 27, 1992) (citing Gray v. State, 441 A.2d 209, 222 (Del.1981)). [10] Holland v. Voshell, C.A. No. 86A-AP2, slip op. at 1 (Del.Super.Ct. Sept. 3, 1986). [11] State v. Subrick, Cr.A. No. 93-12-0496, slip op. at 3 (Del.Com.Pl. Feb. 8, 1994). [12] Id. [13] State v. Morales, Cr.A. No. S95-06-0396-0399, slip op. at 1-2 (Del.Super.Ct. Oct. 25, 1995).	{ "pile_set_name": "FreeLaw" }
169 F.2d 193 (1948) RAILWAY EXPRESS AGENCY, Inc. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. RAILWAY EXPRESS AGENCY, Inc. No. 186, Docket 20793. Circuit Court of Appeals. Second Circuit. July 19, 1948. 194 Floyd F. Toomey, of Washington, D. C. (Ellsworth C. Alvord and John P. Lipscomb, Jr., both of Washington, D. C., on the brief), for petitioner, Railway Express Agency, Inc. Abbott M. Sellers, Sp. Asst. to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., and Sewall Key and A. F. Prescott, Sp. Assts. to Atty. Gen., on the brief), for respondent, Commissioner of Internal Revenue. Before L. HAND, SWAN, and CLARK, Circuit Judges. CLARK, Circuit Judge. These petitions for review, one brought by Railway Express Agency, Incorporated, and the other by the Commissioner of Internal Revenue, involve income and excess profits taxes for the years 1937 and 1938. Deficiencies in these taxes were originally determined by the Commissioner, but the Tax Court in a reasoned opinion, 8 T.C. 991, redetermined them at a lower figure, finding deficiencies in the income taxes of $49,384.08 and $39,509.44, and in the excess profits taxes of $47,579.28 and $28,356.05 for the years in question. The action by the Commissioner was taken in consequence of his ruling that the Agency in its returns had deducted excess amounts for depreciation, but the Agency after notice of the deficiency assessments then concluded that it had been in error in returning its income as a taxpayer and that in fact it was a mere agent for the railroads it served. Its petition for review hence brings before us the adverse decision of the Tax Court on this issue; since the parties are now agreed as to the amount by which the depreciation deductions, if material, shall be reduced, the original point of division has become submerged in the broader question as to the status, taxwise, of this corporation. The Commissioner's petition is directed to that part of the decision of the Tax Court which allows the Agency credit for undistributed profits in computing the surtax thereon for the year 1937 on the ground that distribution is prohibited by contract within the meaning of § 26(c) (1) of the Revenue Act of 1936, 26 U.S.C.A.Int.Rev.Acts, page 836. The facts, most of which were stipulated, are set forth in detail in judge Disney's opinion, 8 T.C. 991, and we shall repeat here only those most material. The organization of this corporation by the railroads of the country took place in 1928 and 1929. Prior to that time a nationwide express service had been performed under uniform contracts with the railroads by the American Railway Express Company, an independent company formed as a result of the suggestion of the Federal Director General of Railroads in World War I for the organization of a single express service in place of the several theretofore existing. The uniform contracts with this company were to expire on February 28, 1929. During the period of operation under 195 the contracts a committee of the Association of Railway Executives the Uniform Express Contract Committee represented the common interests of the railroads and prepared a detailed plan for the carrying on of the express business after the termination of these contractual relations. The plan as ultimately adopted provided for the organization of a new express company by the 86 named railroads which carried approximately 98 per cent of the gross express business on all railroads. The petitioner Railway Express Agency, Incorporated, is the product of this plan and was organized in Delaware pursuant thereto. It had an authorized capital stock of 1,000 shares without par value. The certificate of incorporation placed certain restrictions on the transfer of its stock which was allotted to these 86 railroads, on the basis of the express business done by them in the past, at a price of $100 a share. Subsequently, by reason of various changes, such as mergers and consolidations of some of its stockholders, the number of stockholders by September, 1938, had been reduced to 70 railroad companies, a number which has since remained constant. The Agency has operated its express business under separate identical contracts with substantially all of the railroad companies in the United States. During the tax years in controversy over 400 railroads, including those which were stockholders, were parties with the Agency to such Express Operations Agreements. These agreements are effective to February 28, 1954. Each designated the Agency as the exclusive agent of the railroad for the conduct of the express transportation business and for the collection and disbursement and division of all revenue collected under the agreement. The Agency was, however, authorized to file tariffs and other rules and regulations with the Interstate Commerce Commission on its own behalf or on behalf of the railroads. Moreover, as between the Agency and the railroads, the former was liable for loss to its own property and for injury to its own employees and agents. Nothing in the agreement limited the right of the Agency to appoint and exercise control over its employees. Provision was made for the arbitration of disputes on request, resort to such arbitration being a condition precedent to any further action. The terms of the agreements fixed the amounts payable to the contracting railroads as, in short, gross revenue less expenses. The agreements contemplated that all income and expenses, as defined therein, including depreciation, should be taken into account in arriving at the amount distributable to the railroads, each of which was to receive a proportionate share according to the amount of express business it had handled on its line. The allowed deductions were particularized. Thus the Agency was authorized to deduct from the moneys received by it certain items that were designated net income items, including appropriations from "net income" for investment in physical property. So, too, certain "surplus" items could be deducted; and comprehended within that category was "surplus set aside for investment in physical property." In order to obtain funds for the purchase of the property of the American Railway Express Company the Agency had issued $32,000,000 of 5 per cent bonds under a trust indenture, wherein the Guaranty Trust Company of New York was trustee; and these bonds were sold to underwriters, who sold them to the public. The rights of the Agency under the Express Operations Agreements were pledged in the trust indenture as security for the payment of the bonds and interest thereon, as to which the Agency was solely liable. The indenture further provided that the Agency would not mortgage or pledge its rights under the agreements except in subordination to the lien of the instrument. The indenture made all indebtedness of the Agency subordinate to the bonds issued or to be issued thereunder. It contained an agreement on the part of the Agency not to modify the agreements with the railroads without the written consent of the trustee, as well as provisions for semiannual payments out of the rail transportation revenue into a sinking fund and, in case of default by the obligor, for operation or sale of the property for the benefit of the bondholders. 196 During 1937 and 1938, in determining rail transportation revenue, the Agency deducted from its income those charges and items of expense which were provided for in its agreements with the railroads. Included therein were deductions for depreciations of $2,308,642.09 and $2,136,209.41 respectively, computed in the manner and at the rates as ordered by the Interstate Commerce Commission. The balance it distributed among the railroads with which it had agreements. These depreciation allowances were claimed as deductions in its returns for 1937 and 1938 and were the occasion for the deficiency assessments referred to above. As now stipulated by the parties, the correct disallowance from each item is $383,994.07 and $259,305.31 respectively. In 1945 the Interstate Commerce Commission granted the Agency permission, retroactively to January 1, 1937, to account for depreciation charges on the basis found by the Bureau of Internal Revenue; but the Agency has as yet taken no action upon this permission in view of the pendency of these proceedings. On this appeal the Agency takes the position that it is a creature of the railroads and, as such, acts as their agent in conducting, under uniform contracts, an express transportation business over their lines. It asserts that it was not the beneficial owner of any of the amounts it received, including those which it did not in fact distribute to the railroads during the years in issue. The argument is made that under the Express Operations Agreements it was accountable to the railroads for all its revenues, and, accordingly, that the income attributable to it by reason of the disallowance of deductions for depreciation is taxable to the railroads. As opposed to this, the Commissioner argues that the Agency had a real surplus by at least the amount of depreciation charged in excess of the amounts actually sustained, and that it should be regarded like other corporations and subject to income tax liability therefor. In the recently decided case of C. I. R. v. National Carbide Corporation, 2 Cir., 167 F.2d 304, this court held squarely to the contrary of the position taken by the Agency. There certain orders of the Tax Court, en banc, were reversed, and it was held that a wholly owned subsidiary of a parent corporation should be treated for purposes of income taxation as a separate taxable person. It mattered not that the parent adopted the corporate form to deal with third persons because it found it more convenient to do so. Indeed, whatever the reasons, they were business reasons, "and the corporations it used were `corporations' within any interpretation of the law. That is enough; it must accept the consequences of that choice; and it is not material that it retained the direction of their affairs down to the minutest detail, that it provided them with their assets, that it stood back of their liabilities and took all their profits." 167 F.2d at page 307. So, too, it should be noted that there the subsidiaries were employed by the parent company as its agents. Applying the principles stated in that case to the situation before us, it is clear that the Agency was properly taxed. It had issued $32,000,000 in bonds to acquire the extensive properties of the American Railway Express Company. It was engaged in a nationwide business of enormous proportions. Even if it were true that the railroads ultimately would be the only losers or gainers, that alone would not be decisive in determining its tax liability. For the parent company is usually the ultimate beneficiary, the subsidiary a means to further its ends. But, as the National Carbide case, supra, shows, if the corporate device is used for business advantages, there is no just ground for protest when it results in tax liability. See also Moline Properties, Inc. v. C. I. R., 319 U. S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499, and the other cases there cited and discussed. As a matter of fact this case seems yet more clearly against this taxpayer than did that, as the Tax Court demonstrated in its opinion below. For that court's decision in the National Carbide case, 8 T.C. 594, had not been reversed by us at the time Judge Disney wrote herein. And so he pointed out that the taxpayer here was no mere department of another organization such as were the subsidiaries of the parent company in the National Carbide case. He then went on to point out with 197 painstaking care the indicia demonstrating that the Agency was not a mere creature of the railroads as it had contended. No purpose will be served in repeating his reasoning in full; we shall refer only to some of the salient factors which lead to this conclusion. Thus the Agency, and not the railroads, was liable for loss to its own property or the property that was carried. So, too, it was liable for the injury to its own employees and agents. Nothing in the agreements limited its right to appoint and exercise control over its employees and agents. Numerous provisions of the agreements provided for the settlement of disputes between it and the contracting parties. Arbitration was a condition precedent to further action. Seemingly the only further action contemplated was a resort to the courts with the Agency as a definite party. Again, the property used by the Agency in carrying out its activities was owned by it, and the contracting railroads had no interest therein. The Agency had issued $32,000,000 of bonds, and only it was liable thereon. Its default empowered the trustee to take possession of the properties and operate them to pay off the bonds. So the agreements gave the Agency the right to treat accounts for the investment in physical property and for "surplus set aside for investment in physical property" as expense deductions. These provisions would enable the Agency, if it so decided, to increase its physical properties out of funds which would otherwise be distributable to the contracting railroads. Moreover, most of the bond issue had been expended upon property and such property belonged solely to the Agency, which was the obligor of the bonds. It follows that the depreciation items were deducted by the Agency for its own benefit as the owner of depreciating property. To the extent that the depreciation exceeded that allowed for tax purposes it represented income of the Agency upon which the latter was liable for taxes. We conclude, therefore, that the Tax Court was amply justified in upholding deficiency assessments against the Agency. This disposes of the taxpayer's petition for review. Upon the Commissioner's petition, we must determine whether, for 1937, the Agency was entitled to the credit granted by § 26(c) (1) of the Revenue Act of 1936 in computing its surtax imposed by § 14 of that Act, 26 U.S.C.A.Int.Rev.Acts, page 823 upon undistributed net income. Sec. 26(c) (1) allows a credit of any sums which cannot be distributed as dividends "without violating a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the payment of dividends." The Agency contends, and the Tax Court agreed, that the Express Operations Agreements constituted contracts prohibiting the payment of dividends. In support of this it argues that the agreements carefully detailed the allowable deductions and expressly excluded a deduction for dividend appropriations of income. Furthermore, it says that under the system of accounting imposed on it by the terms of the agreements there was no income at the end of each year out of which transfer to surplus could be made. The argument continues that it cannot deduct dividend appropriations from income and that, since it must account to the railroads for all its income, then the prohibition is all-inclusive. Finally, it urges that the intention of the railroads was clear and to the effect that no dividends should be paid the stockholders. There is a considerable equity in the Agency's contention and the view taken below, since it does seem the intent of the railroads made doubly clear by the later course of conduct that dividends should not be paid. Had the parties been able to forecast the future statutory provision, they would undoubtedly have drawn their agreements to reap the benefit of it. But the statutory grant of credit is clear and precise in its limitations; and, in common with other courts, we have construed it strictly according to its terms and required a definite showing that the prohibition was expressly stated in an executed contract. Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 61 S.Ct. 109, 85 L.Ed. 29; Helvering v. Ohio Leather Co., 317 U.S. 102, 63 S.Ct. 103, 87 L.Ed. 113; Bates Valve Bag Corporation v. Higgins, 2 Cir., 198 157 F.2d 886; Van Ameringen-Haebler, Inc., v. Helvering, 2 Cir., 132 F.2d 855; Buffalo Slag Co. v. C. I. R., 2 Cir., 131 F. 2d 625; Metal Specialty Co. v. C. I. R., 6 Cir., 128 F.2d 259. Here that requirement is wanting. The terms of the agreements were detailed. The Agency had to account to the railroads for the entire gross revenues accruing under the contract, though certain charges and items of expense might be deducted. These allowable deductions, set forth in another document incorporated by reference, appeared in five specified categories, the last of which is entitled "Other Deductions." This enumerates several items, but specifically excepts therefrom "Dividend Appropriations of Income." The first of the five categories allows deductions for operating expenses, including depreciation, and the income here in issue was deducted under that provision. There is no contention that the deduction when made in any way offended its terms. As far as the Express Operations Agreement is concerned, the deduction is proper. It was not made for the purpose of paying dividends, and accordingly the exception specified is not relevant. For only if an attempt were made to deduct a sum for that purpose would there be any question of a breach of the agreement. Only then would the stated exception come into play. We come then to this, that the provision relied upon by the Agency is one that does not prohibit the payment of dividends, but merely forbids the deduction of dividend appropriations in the accounting made by the Agency to the railroads. So long as the deductions taken are properly allowable, the railroads have no just cause of complaint. For they are entitled only to the balance remaining after the allowed deductions are taken from the listed items of gross revenue. Here the railroads, by the terms of the agreements, allowed the Agency to take depreciation deductions in excess of what was actually needed or allowed for tax purposes. By so doing the Agency gained a windfall to that extent. As far as the agreements themselves were concerned, there is nothing preventing the Agency from using this in the payment of dividends or for any other purpose it deems proper. Hence arguments of hardship, or what the parties intended, will not suffice. The taxpayer claiming the credit must show that he comes within its exact terms. This taxpayer cannot make such a showing and is not entitled to the statutory credit. The Commissioner's petition for review must therefore be sustained, and the tax for the year 1937 increased as he contends. Accordingly the decision of the Tax Court is affirmed so far as it is attacked by the petition of Railway Express Agency, Incorporated, but is reversed upon the petition of the Commissioner of Internal Revenue. L. HAND, Circuit Judge (dissenting in part). Article V, § 4(i), of the Express Operations Agreement provides that, in stating its accounts with the railroads, the Agency may include among its credits the deductions of "Caption IV" except item 329. This refers to a document of the Interstate Commerce Commission, issued in 1914, long before the Agency was created; and "Caption IV" was in five sections, of which item 329 was dividends "declared payable." Therefore, Article V, § 4(i), means that, if the Agency paid a dividend to the roads, which were its only shareholders, it could not deduct it in accounting with them, but would have to pay it to them again. As my brothers say, the Agreement required the Agency to pay over all its net income to the roads; but, so strict has been the interpretation of the section, and so specific are its terms, that I should agree that more was necessary to bring the case within the exemption than our conclusion that net income must have been meant to exclude dividends; some provision was necessary which "expressly deals with the payment of dividends," and any such payment must "violate" that provision. I cannot see how we can avoid concluding that Article V, § 4(i), "expressly deals with the payment of dividends"; certainly it must be enough that by reference it expressly excludes item 329 of "Caption IV." Hence the question becomes whether any "payment of dividends" would "violate" Article V, § 4(i), after "Caption IV" 199 less item 329 has been read into it. It is true that verbally it is not Article V, § 4(i), which such a payment would "violate," but the general requirement that the Agency must pay over all net income. However, in order to learn what that income is, we must have recourse to Article V, § 4(i), expanded as I have just said. To say therefore that such a payment would not "violate" the provision which "expressly deals with the payment of dividends" seems to me to be nothing less than to refuse to allow the Express Operations Agreement to be read as a whole, after all has been incorporated into it that by reference it has incorporated. I do not believe that the section meant to deny to taxpayers such a fundamental canon of documentary interpretation.	{ "pile_set_name": "FreeLaw" }
633 F.2d 203 Fuh Tung Chenv.Immigration and Naturalization Service 80-4001 UNITED STATES COURT OF APPEALS Second Circuit 5/8/80 1 I.N.S. AFFIRMED	{ "pile_set_name": "FreeLaw" }
445 So.2d 561 (1984) Robert B. FRENCH, Jr. v. STEEL, INC. 82-940. Supreme Court of Alabama. January 27, 1984. 562 Robert B. French, Jr., Fort Payne, pro se. Lee Clyde Traylor, Fort Payne, for appellee. PER CURIAM. This case is an attempted appeal from an order which is nonappealable. Therefore, we dismiss. The case arose out of a judgment rendered in Louisiana against appellant French and other defendants in the Louisiana case. The successful plaintiff in that case recorded the judgment in the Probate Court of DeKalb County. The original defendants filed this suit in DeKalb County to expunge the judgment from the records in the office of the Judge of Probate. The plaintiff/judgment holder in the Louisiana case filed an answer and a counterclaim which sought enforcement of the Louisiana judgment. This case was assigned to Judge W.G. Hawkins. Judge Hawkins recused himself after hearing the case, and Retired Judge David R. Archer was assigned to complete the matter. On November 5, 1980, Judge Archer entered an order denying the relief sought by the original defendants in the Louisiana case. He amended this order on November 26, 1980, by awarding the original Louisiana plaintiff a judgment of $30,812.27 against those original defendants. Judge Archer had before him at the time he entered this judgment a duly authenticated copy of the pleadings and orders entered in the Louisiana case. These documents show that French, a defendant in those proceedings, appeared in Louisiana and litigated the issue of jurisdiction in personam in that forum. Therefore, it was apparent and uncontradicted that his defense to the counterclaim in this proceeding was res judicata and constituted a collateral attack on the Louisiana judgment, forbidden by the full faith and credit clause of the Constitution of the United States. Thus, Judge Archer's judgment of November 26, 1980, awarding $30,812.27 in the counterclaim based upon the Louisiana judgment, was correct and final. Thereafter on December 4, 1980, French moved the court for a new trial or rehearing. The other original defendants filed a motion for new trial on December 12, 1980. On January 19, 1981, the motions for new trial were heard, and the court ordered that the cause be taken under consideration within the next sixty days and that the 563 parties file all legal briefs and exhibits with the court within thirty days. The motions for new trial were overruled as a matter of law by operation of A.R.Civ.P. 59.1 ninety days after December 12, 1980, i.e., March 12, 1981.[] On April 7, 1981, Judge Archer entered an order purporting to amend, vacate, and void his order and judgment of November 26, 1980. This order was void, because the court had no jurisdiction to enter it. Steel, Inc., appellee in this present case and plaintiff in the original Louisiana suit, filed a motion on May 1, 1981, to vacate the April 7, 1981, order of the court. On April 28, 1982, Judge Hobdy G. Rains was appointed to handle this motion, because Judge Archer had moved out of the State of Alabama. Judge Rains entered an order on January 20, 1983, holding that the court had lost jurisdiction of the cause prior to the entry of Judge Archer's order on April 7, 1981, and that the April 7, 1981, order was of no force and effect; he held that the court was without jurisdiction on April 7, 1981, to make and enter any additional orders which would alter, modify, or set aside the judgment theretofore entered in the cause. He held that Judge Archer's original order, in favor of the defendant (Steel, Inc.), dated November 5, 1980, and amended on November 26, 1980, was a valid order, and that the order entered by Judge Archer on April 7, 1981, was void, and that April 7 order was held for naught. We agree with Judge Rains. Under A.R.Civ.P. 59.1, no post-trial motion shall remain pending in the trial court for more than ninety days unless it is with the express consent of all parties, which consent shall appear of record, or unless it is extended by the proper appellate court. The rule also states that a failure to rule on such a motion within the ninety-day period shall constitute a denial of the motion as of the end of the ninety-day period. The court's order of January 19, 1981, did not act to extend the time period set out in A.R.Civ.P. 59.1, and on the expiration of the ninety-day period, the motions for new trial were denied, as a matter of law, and with this denial the jurisdiction of the trial court lapsed, and the time for appeal began to run. This appeal was filed on June 24, 1983. In his affidavit accompanying this appeal, Judge Archer states that his order of January 19, 1981, was an attempt to grant a motion to reconsider. Rule 4, A.R. A.P., provides that a motion under Rule 59, A.R.Civ.P., will toll the running of the forty-two days for appeal. Rule 59.1, A.R. Civ.P., provides that a motion under Rule 59 for a new trial must be ruled on within ninety days or else it is automatically denied. But the ruling that Rule 59.1 requires to be entered within ninety days is one which (1) denies the motion, or (2) grants the motion. Rule 59.1 does not anticipate, and cannot accommodate, an order within the ninety days by which the judge states an agreement to reconsider the judgment and to decide later whether to grant a new trial. Therefore, Judge Archer's original order, that of November 5, 1980, as amended November 26, 1980, is the valid and final judgment in this case. It is from that judgment that an appeal should have been taken. No appeal was taken from that judgment, and the time for filing such an appeal has lapsed. No post-trial motions other than the motions for new trial were filed. Therefore, when those motions for new trial were overruled by the operation of Rule 59.1, A.R.Civ.P., the court, as Judge Rains noted, lost jurisdiction. His observation, correct as it is, is not an appealable order. 564 Therefore, the appeal is due to be, and it hereby is, dismissed. APPEAL DISMISSED. TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur. NOTES [*] We are not called upon in this case to determine whether the filing of the second motion for new trial on December 12, 1980, started a new ninety-day period for the pendency of French's motion that had been filed eight days earlier. Under the facts of this case, French's appeal would be untimely even assuming the time for ruling on it had begun to run anew upon the filing of the other defendants' motion. Cf., Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426 (Ala.1983), and Ex parte Cleveland Consolidated, Inc., 435 So.2d 1285 (Ala.1983).	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § JUAN ARELLANO, § No. 08-18-00097-CR Appellant, § Appeal from the v. § Criminal District Court No. 1 THE STATE OF TEXAS, § of El Paso County, Texas State. § (TC# 20150D05071) § ORDER The Court GRANTS Angie Morales’ request for an extension of time within which to file the Reporter’s Record until January 17, 2019. NO FURTHER REQUESTS FOR EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WILL BE CONSIDERED BY THIS COURT. It is further ORDERED that Angie Morales, Official Court Reporter for Criminal District Court No. 1 for El Paso County, Texas, prepare the Reporter’s Record and forward the same to this Court on or before January 17, 2019. IT IS SO ORDERED this 4th day of December, 2018. PER CURIAM Before McClure, C.J., Rodriguez and Palafox, JJ.	{ "pile_set_name": "FreeLaw" }
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) DEE DEE CHAVERS, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1911 (ESH) ) ERIC K. SHINSEKI, ) Secretary, ) U.S. Department of Veterans Affairs, ) ) Defendant. ) __________________________________________) MEMORANDUM OPINION Plaintiff Dee Dee Chavers is an employee of the United States Department of Veterans Affairs (“VA” or “the agency”). She claims that her employer discriminated against her on the basis of her disability, discriminated against her by subjecting her to a hostile work environment based on her gender, and retaliated against her for complaining about that discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq. Defendant has moved for judgment on the pleadings or, in the alternative, summary judgment on all of plaintiff’s claims. Having considered defendant’s motion, the record herein, and for the reasons set forth below, the Court will grant the motion. BACKGROUND At all times relevant to this case, plaintiff was employed as a Program Specialist in Nursing Education at the Veterans Affairs Medical Center (“VAMC”) in Washington, D.C. (Pl.’s Opp’n (“Opp’n”) to Def.’s Mot. to Dismiss and Mot. for J. on the Pleadings or in the Alternative, Mot. for Summ. J. (“Mot.”), Statement of Genuine Issues and Affirmative Statement 1 of Material Facts (“Pl.’s SMF”) at 1 ¶ 1.) During the relevant period, plaintiff was a thirty percent or greater compensable service-connected disabled veteran. (Mem. in Supp. of Mot. (“Mem.”) at 29; Compl. ¶ 7.) She asserts that she suffers from a variety of medical conditions, including some that cause “chronic pain in her back and legs,” that substantially limit walking, standing, and sitting. (Pl.’s SMF at 10 ¶¶ 31-32.) I. THE ALLEGED HARASSMENT In 2004, plaintiff’s work area was moved to the VAMC’s basement, putting her in the vicinity of the Building and Trades Unit (“BTU”) of the VAMC’s Facilities Management Service (“FMS”). (Pl.’s SMF at 1-2 ¶¶ 2, 4.) One of the carpenters working in the BTU was Albert Rogers, whom plaintiff described as a “very friendly” and “very jolly” “350-pound muscular guy with a loud voice” who “made it a point to know as many people as possible” and “would cheerfully greet” people he saw by “smil[ing] and speak[ing]” to them “whether he knew [them] or not . . . .” (Def.’s Mot. to Dismiss and Mot. for J. on the Pleadings or in the Alternative, Mot. for Summ. J. (“Mot.”), Ex. 1 (Chavers Dep., Oct. 29, 2008) (“Chavers Dep.”1) at 45:5-11, 55:4-8, 67:11-18.) Plaintiff had several work-related interactions with Rogers via telephone and electronic work order, and following her 2004 relocation to the VAMC basement, she also encountered him briefly in the hallway on several occasions. (Pl.’s SMF at 2 ¶¶ 3-4.) On two or three of those occasions, Rogers offered to “‘take [plaintiff] out to lunch’” (Chavers Dep. at 43:19-25 (quoting Rogers), 48:2-5), but plaintiff declined, at which point Rogers would, in plaintiff’s words, “latch onto the next person.” (Chavers Dep. at 43:19-25; see also Pl.’s SMF at 2 ¶ 4.) On a separate occasion, plaintiff told her supervisor, Dr. Suzanne McNicholas, that Rogers had made 1 Defendant also submitted additional excerpts from this deposition as Exhibit 1 to his reply. (See Def.’s Reply in Supp. of Mot. (“Reply”), Ex. 1.) 2 comments to a nurse that the nurse had found “inappropriate.” (Opp’n, Decl. of Dee Dee Chavers (“Chavers Decl.”) ¶ 34).) At approximately 1:00 p.m. on June 7, 2005, plaintiff was exiting the nursing education and research classroom and locking the door behind her when she encountered Rogers in the “brightly lit” hallway where “a lot of people” were present. (Pl.’s SMF at 2 ¶ 5; Chavers Dep. at 54:4-55:1, 61:11-13.) Rogers was standing in front her, hunched over his red steel tool cart, blocking her exit with the cart. (Pl.’s SMF at 2 ¶ 6; Chavers Dep. at 51:7-11.) Rogers told her that he would not move until she gave him a kiss. (Pl.’s SMF at 2 ¶ 6.) When plaintiff asked him to move the cart, Rogers replied, “Not until you give me a kiss for the work that I’ve done.” (Id. at 2 ¶ 7.) Plaintiff then attempted to move Rogers and the cart by pushing against them for “probably a few seconds” with the right side of her body, straining her arm in the process. (Chavers Dep. at 57:13-15; Pl.’s SMF at 2 ¶ 8.) Plaintiff did not call out for help. (See Chavers Dep. at 61:18-62:4.) Raymond Doster, a medical records supervisor, came over after noticing plaintiff and Rogers and told Rogers to leave plaintiff alone, at which point Rogers left. (Pl.’s SMF at 2 ¶ 9; Chavers Dep. at 59:6-8.) The entire incident lasted “[p]robably over a minute.” (Chavers Dep. at 56:14-20.) Immediately following the incident, plaintiff returned to her office and “cried for about an hour.” (Chavers Dep. at 59:12-15.) Feeling pain throughout the right side of her body, plaintiff took the stairs up one floor to the occupational health unit, but because it was too crowded, she left without checking in or being evaluated and returned to her office. (See id. at 59:15-60:21.) Feeling unable to focus, she left the office shortly before she was scheduled to get off of work at 3:00 p.m. (Id. at 60:22-24.) Within a day or two of the Rogers incident, Doster related what he had observed to Larry 3 Osborne, the BTU supervisor. (Pl.’s SMF at 6-7 ¶ 20.) On June 9, 2005, Osborne orally instructed Rogers not to go near plaintiff’s office. (Def.’s Statement of Material Facts as to Which There Is No Genuine Issue (“Def.’s SMF”) ¶ 21.)2 Plaintiff did not talk about the Rogers incident with anyone, not even friends or family, until one week later. (Chavers Dep. at 64:18- 25.) On June 13, 2005, she reported the incident to Carol Mather, a specialist in the agency’s Equal Employment Opportunity (“EEO”) office. (See Mot., Ex. 7 (Carol Mather EEO Aff., Jan. 19, 2006) (“Mather Aff.”) ¶ 5.) The EEO office began an investigation into the Rogers incident, and Mather learned that two other female employees reported incidents with Rogers after plaintiff’s incident. (Id. ¶¶ 15-17; Mot., Ex. 6 (Carol Mather Dep., Aug. 2, 2006) at 8:17-19; see also Chavers Dep. at 68:21-69:17.) On June 14, 2005, plaintiff reported the incident to the VA Police Service and McNicholas, her immediate supervisor. (See Chavers Dep. at 64:18-25; Pl.’s SMF at 3 ¶ 11, 7 ¶ 22; Mot., Ex. 15 (McNicholas Dep., Aug. 2, 2006) (“McNicholas Dep.”) at 14:2-18.) Plaintiff requested that Rogers be restricted to certain areas of the building, that he not be permitted to interact with her, and that a panic button be installed in her office. (Chavers Dep. at 74:4-11.) On June 15 or 16, McNicholas spoke with David King of the EEO office and later spoke with Osborne, telling him that she wanted Rogers to have no further contact with plaintiff. (McNicholas Dep. at 14:12-15:12, 19:2-3; Mather Aff. ¶ 18.) McNicholas also advised 2 Plaintiff states that she “has insufficient information to admit or deny” this fact (Pl.’s SMF at 7 ¶ 21), which defendant supports with Osborne’s deposition testimony. (See Mot., Ex. 5 (Larry Osborne Dep., Aug. 6, 2006) at 22-23.) Local Civil Rule 7 requires that plaintiff “set[] forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated . . . .” Local Civ. R. 7(h). Because plaintiff has failed to dispute defendant’s assertion, the Court accepts it as true. See Potter v. District of Columbia, 558 F.3d 542, 548 (D.C. Cir. 2009) (“Under Rule 7(h) of the district court’s local rules, the moving party must submit a statement of material facts as to which it asserts there is no genuine issue, and the district court may accept these facts as true if the opposing party does not dispute them.” (citations omitted)). 4 plaintiff’s second-level supervisor, Geraldine Feaster, about the Rogers incident. (See McNicholas Dep. at 23:21-24:6.) On June 20, 2005, McNicholas and Osborne met with Rogers to discuss the incident, and McNicholas told Rogers that he was to avoid contact with plaintiff; the next day, Rogers went on unpaid leave. (McNicholas Dep. at 19; Mot., Ex. 16 (Osborne Mem.) at 1-2; see Mot., Ex. 24 (June 20, 2005 Rogers Mem.) (“Rogers Mem.”).) On July 1, Rogers took early retirement and the EEO investigation was finalized. (See Rogers Mem.; Mather Aff. ¶¶ 23, 30; Chavers Dep. at 69:6-9.) Despite Rogers’ retirement, plaintiff still requested the installation of a panic button due to her desire to “feel safe in [her] environment,” because the VAMC basement was connected to an open garage which, she believed, Rogers or “[a]ny vagrant” could enter “at any point in time.” (Chavers Dep. at 74:16-22.) However, plaintiff never saw Rogers after the June 7, 2005 incident, and her only basis for believing that Rogers would return was “the fear that he [in]flicted” upon her. (Id. at 74:23-75:3, 75:17-18.) The panic button that plaintiff had requested was installed in February 2006. (Chavers Decl. ¶ 39.) On September 14, 2005, plaintiff filed a formal complaint of discrimination regarding the Rogers incident. (Compl. ¶ 34.) Defendant does not challenge plaintiff’s exhaustion of her administrative remedies with respect to this claim. II. THE NON-SELECTIONS A. Vacancy Announcement NEU-05-90 (August 2005) On or about August 23, 2005, plaintiff was not selected for the position of Administrative Office in the Neurology Service, which had been advertised in vacancy announcement NEU-05- 90. (Chavers Dep. at 130:1-5; Chavers Decl. ¶ 56.) On August 25, she emailed Keith Manning and two other individuals to inquire why she was not selected; to assert that her experience and 5 education “extend[ed] far beyond” that of the selected individual; to seek specific information about the selection process; and to request reconsideration. (Mot., Ex. 22 (“Chavers-Manning Emails”) at 1.) Manning responded that plaintiff was “qualified, referred[,] but not selected for the position,” and advised her to contact the Neurology Service if she wished to inquire why she was not selected. (Id.) On September 1, plaintiff responded to thank Manning and stated that she would talk to Dr. Pincus, the selecting official. (See id.; Chavers Dep. at 118.) That same day, plaintiff received an email notification of the non-selection. (See Mot., Ex. 18 (“Kruger- Deal Emails”) at 2.) B. Vacancy Announcement HRMS-05-165 (September 2005) On or about September 30, 2005, plaintiff was not selected for the position of Human Resources Specialist, which had been advertised in vacancy announcement HRMS-05-165. (Chavers Decl ¶ 58.) Plaintiff asserts that did not receive a notice of this non-selection until “after Thanksgiving 2005.” (Kruger-Deal Emails at 1.) C. Vacancy Announcement OSP-05-221A (March 2006) On or about March 9, 2006, plaintiff was not selected for the position of Program Specialist, which had been advertised in vacancy announcement OSP-05-221A. (Chavers Decl. ¶ 59.) Plaintiff asserts that she did not receive the non-selection notice until “late May 2006.” (Kruger-Deal Emails at 1.) D. Vacancy Announcement DEN-06-45 (August 2006) On or about August 7, 2006, plaintiff learned that she had not been selected for the position of Administrative Officer in the Dental Service, which had been advertised in vacancy announcement DEN-06-45. (Chavers Decl ¶ 61.) The selecting official was Dr. Glenn Haggan, chief of the VAMC’s Dental Service, who was aided in making the decision by assistant chief 6 Dr. Don Denucci. (Pl.’s SMF at 11 ¶ 35; Chavers Decl. ¶¶ 62-64; Mot., Ex. 2 (Dee Dee Chavers EEO Aff., July 18, 2007) (“Chavers Aff.”) ¶ 9.) The selected candidate was Angela Johnson, a non-veteran, who at the time worked at the VAMC in Richmond, Virginia. (Chavers Aff. ¶¶ 13- 14.) E. Vacancy Announcement NURS-06-64 (September 2006) On or about September 11, 2006, plaintiff was not selected for the position of Staff Assistant in the Nursing Service, which had been advertised in vacancy announcement NURS- 06-64. (Chavers Decl. ¶¶ 80, 82.) Feaster, who was the Chief Nurse Executive, was the selecting official, and the selected candidate was Michelle Newman. (Id. ¶¶ 81, 83.) F. Plaintiff’s EEO Filings On September 25, 2006, plaintiff first contacted an EEO counselor at the agency’s Office of Resolution Management (“ORM”) regarding the non-selections. (Pl.’s SMF at 9 ¶ 28; see Mot., Ex. 19 (“EEO Counselor’s Report”) at 1.) During informal EEO counseling, plaintiff only addressed her claims for the fourth and fifth non-selections. (Pl.’s SMF at 9 ¶ 28; see EEO Counselor’s Report at 3.) On October 25, she was informed that if she were to file a formal EEO complaint of discrimination, any claim not discussed with ORM might not be accepted for formal complaint processing. (Pl.’s SMF at 9 ¶ 28.) On November 13, plaintiff filed a formal EEO complaint alleging retaliation and disability discrimination for all five non-selections. (Id.; see Mot., Ex. 20 (EEO Compl., Nov. 13, 2006) at 1.) On December 27, 2006, ORM requested that plaintiff provide (1) the dates and announcement numbers for the first three non-selections, which had not previously been discussed with an EEO counselor, and (2) plaintiff’s reasons for failing to raise those three claims with the EEO office within 45 days of the non-selections’ effective dates, as required by 7 29 C.F.R. § 1614.105(a). (See Mot., Ex. 21 (Jan. 19, 2007 Partial Acceptance of EEO Complaint) (“ORM Decision”) at 2.) On January 10, 2007, plaintiff submitted the requested information and asserted that she did not comply with the 45-day time limit for the first non- selection because she was coping with trauma from what she characterized as her “sexual assault” by Rogers, and because she was not informed about the September 2005 and March 2006 non-selections until approximately 60 days after they occurred. (See id.) ORM declined to accept those justifications for extending the time limit and, accordingly, dismissed plaintiff’s claims for the first three non-selections. (Id.) However, ORM concluded that plaintiff timely pursued her claims based on the August 2006 and September 2006 non-selections and accepted those for further processing. (ORM Decision at 3.) Defendant does not dispute that plaintiff properly exhausted those non-selection claims. Plaintiff filed the instant action on October 23, 2007. ANALYSIS I. LEGAL STANDARDS A. Standard of Review Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “A dispute about a material fact is not ‘genuine’ unless ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled to summary judgment against “a party who fails to make a showing sufficient to establish the 8 existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255; see also Wash. Post. Co. v. U.S. Dep’t of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The non-moving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. If the non-movant fails to point to “affirmative evidence” showing a genuine issue for trial, Anderson, 477 U.S. at 257, or “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal citations omitted). “While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at 3 (D.D.C. Mar. 31, 1998), aff’d No. 99-5126, 1999 WL 825425, at 1 (D.C. Cir. Sept. 27, 1999) (internal citation omitted). B. Title VII and Rehabilitation Act Under Title VII of the Civil Rights Act of 1964, it is an “unlawful employment practice” for employers “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is also unlawful to retaliate against an employee because he “has opposed any practice made an unlawful employment practice” by 9 Title VII or because she “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. Id. § 2000e-3(a). Similarly, the Rehabilitation Act prohibits federal agencies from engaging in employment discrimination against disabled individuals. See 29 U.S.C. § 794(a). The Act employs the same standards to define discrimination as those employed in cases arising under the Americans with Disabilities Act of 1990 (“ADA”). See id. § 794(d); see also Breen v. Dep’t of Transp., 282 F.3d 839, 841 (D.C. Cir. 2002) (applying ADA employment discrimination standards to Rehabilitation Act claim). Traditionally, courts have examined Title VII and Rehabilitation Act claims for discrimination under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, where an employer has asserted legitimate, non- discriminatory reasons for the actions being challenged by the plaintiff, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non- discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin? Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). This principle applies equally to claims of retaliation under Title VII and disability discrimination. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009); Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). A plaintiff has the burden of persuasion to show that a defendant’s proffered non- discriminatory reason for the challenged action is a pretext. Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). A plaintiff can carry this burden by showing that a non-discriminatory reason offered by a defendant is false, Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008), or otherwise “presenting enough evidence to allow a 10 reasonable trier of fact to conclude that the employer’s proffered explanation is unworthy of credence.” Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008) (internal quotation marks omitted). Where “the employer’s stated belief about the underlying facts is reasonable in light of the evidence, however, there ordinarily is no basis for permitting a jury to conclude that the employer is lying about the underlying facts,” and summary judgment is appropriate. Brady, 520 F.3d at 495; see also Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 27-28 (D.C. Cir. 1997) (“[I]f [a plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to conclude that [the defendant’s] proffered reason was a pretext for discrimination, summary judgment must be entered against [the plaintiff].”) II. COUNT 1: HOSTILE WORK ENVIRONMENT Plaintiff contends that she was “subjected to physically threatening conduct sufficient to qualify as hostile workplace harassment” during the incident where Rogers “block[ed] her path with his heavy duty steel work cart” and “demanded that she give him a kiss.” (Opp’n at 21.) She argues that “[a]lthough this particular incident occurred only one time, it was sufficient to create a hostile environment.” (Id.) The Court disagrees, for the Rogers incident does not rise to the level of severity necessary to be actionable on its own under Title VII. To sustain a hostile work environment claim, “a plaintiff must show that [her] employer subjected [her] to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (citations omitted). This standard is designed to be “sufficiently demanding” so that “Title VII does not become a ‘general civility’ code.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner 11 Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). “‘[C]onduct must be extreme to amount to a change in the terms and conditions of employment,’” George v. Leavitt, 407 F.3d 405, 416 (D.C. Cir. 2005) (quoting Faragher, 524 U.S. at 788) (emphasis added), and “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787. “While a single, unsolicited physical advance or comment may be inappropriate, such conduct does not automatically amount to a Title VII violation.” Fowler v. District of Columbia, 404 F. Supp. 2d 206, 211 (D.D.C. 2005). Rather, such “‘isolated incidents’” must be “‘extremely serious’” in order to “‘amount to [a] discriminatory change[] in the terms and conditions of employment.’” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (rejecting sexual harassment claim based on single incident) (quoting Faragher, 524 U.S. at 788). For example, in the cases cited by plaintiff, other courts have held that isolated incidents of violent physical contact can rise to the level of altering employment conditions. See Smith v. Sheahan, 189 F. 3d 529, 531-33 (11th Cir. 1999) (co-worker “called [plaintiff ] a ‘bitch,’ threatened to ‘fuck [her] up,’ pinned her against a wall, and twisted her wrist severely enough to damage her ligaments, draw blood, and eventually require surgical correction”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067, 1072 (10th Cir. 1998) (restaurant customer grabbed plaintiff by her hair and then grabbed her breast and placed his mouth on it); Redman v. Lima City Sch. Dist. Bd. of Educ., 889 F. Supp. 288, 291-93 (N.D. Ohio 1995) (co-worker engaged in “physical assault” by forcing plaintiff into workplace basement, forcing her against wall, and fondling and rubbing against her in a sexual manner until she vomited).3 3 The remaining case cited by plaintiff is distinguishable because it appears to have 12 By contrast, Rogers did not act violently during the June 7, 2005 incident. Nor did he initiate any physical contact with plaintiff or engage in lewd sexual commentary. Rather, for about one minute in a “brightly lit” “busy hallway” where other people were present (Chavers Dep. at 54:4-55:1), Rogers blocked plaintiff’s exit path from a classroom with a steel cart, told her he would not move until she gave him a kiss, but did not put his hands on plaintiff, even when she attempted to physically move him away. (See Pl.’s SMF at 2-3 ¶¶ 5-10; Chavers Dep. at 73:4-16.) Other than obstructing plaintiff’s path, Rogers took no physical action against her. (See Chavers Dep. at 73:17-20.) Notwithstanding plaintiff’s subjective feelings about the event, such conduct is far less extreme than isolated incidents of nonconsensual physical contact that this Court and others have found to be insufficiently severe to sustain a hostile work environment claim. See, e.g., Fowler, 404 F. Supp. 2d at 211 (plaintiff’s colleague allegedly had “‘announced’ during a faculty meeting that he was ‘turned on by the dress that a teacher was wearing’ and then ‘squeezed the teacher’s thigh’” (quoting plaintiff’s comments)), aff’d, 210 F. App’x 4, 5 (D.C. Cir. 2006); Tatum v. Hyatt Corp., 918 F. Supp. 5, 6-7 (D.D.C. 1994) (co-worker wrapped his arms around plaintiff’s neck and body, rubbed against plaintiff as if to simulate sexual intercourse, made comments about her physical attractiveness, and placed a piece of ice in her skirt pocket); Paul v. Northrop Grumman Ship Sys., 309 F. App’x 825, 826 (5th Cir. 2009) (co-worker confronted plaintiff for “approximately a minute and a half” and made contact with her breasts, hips, and buttocks “in the presence of another supervisor who did not intervene”); Meriwether v. actually involved multiple incidents, as well as nonconsensual intimate contact. See Barrett v. Omaha Nat’l Bank, 584 F. Supp. 22, 24-25, 29-30 (D. Neb. 1983) (rejecting harassment claim on respondeat superior grounds but finding that co-worker’s activities during business trip, “taken in their totality,” sustained prima facie showing of sexual harassment, where conduct included sexual comments and touching plaintiff’s crotch, thighs, and breast while traveling to and attending conference), aff’d, 726 F.2d 424 (8th Cir. 1984). 13 Caraustar Packaging Co., 326 F.3d 990, 992-93 (8th Cir. 2003) (co-worker forcefully grabbed plaintiff’s buttock near her upper thigh and later joked about the incident); Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 528, 534-35 (7th Cir. 1993) (supervisor put his hand on plaintiff’s leg and kissed her until she pushed him away, and in later incident, lurched at plaintiff and tried to grab her). Based on this case authority, the Court concludes that Rogers’ alleged conduct was similarly “deplorable but not so severe or persistent as to constitute a change in terms and conditions of employment.” Williams v. Verizon Wash., DC, Inc., 266 F. Supp. 2d 107, 124 (D.D.C. 2003) (rejecting sexual harassment claim based on incident where plaintiff’s co-worker “repeatedly told [her] ‘you know you want me’ and tried to get her agreement to meet him in a hotel room”). Therefore, the Court grants summary judgment as to Count 1. III. COUNTS 2 AND 3: NON-SELECTION Plaintiff alleges that defendant discriminated against her on the basis of her disability (Count 2) and retaliated against her for complaining about sexual harassment (Count 3) by declining to select her for five positions within the agency. With respect to the non-selections for vacancy announcements NEU-05-90, HRMS 05-165, and OSP-05-221A, plaintiff concedes that she did not administratively pursue her claims within the time limit imposed by regulation, and the Court rejects her arguments for applying the doctrine of equitable tolling. With respect to the non-selections for vacancy announcements DEN-06-45 and NURS-06-64, defendant contends that the selected individuals were the more qualified applicants. Even assuming without deciding that plaintiff qualifies as “disabled” under the Rehabilitation Act,4 the Court 4 The Court notes that the D.C. Circuit has recently clarified that the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008), which went into effect on January 1, 2009, does not have retroactive effect. See Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009). Therefore, contrary to plaintiff’s argument (see Opp’n at 33-34), the Act would not govern the determination of whether plaintiff is “disabled” for the purposes of her 14 finds that plaintiff has failed to “produce sufficient evidence that [her] employer’s asserted legitimate non-discriminatory reason[s] . . . [were] not the actual reason[s] and that [plaintiff] suffered discrimination on an impermissible ground.”5 Baloch, 550 F.3d at 1197. A. Failure to Exhaust Exhaustion under the Rehabilitation Act is a jurisdictional requirement. The Act “limits judicial review to employees ‘aggrieved by the final disposition’ of their administrative ‘complaint,’ thereby mandating administrative exhaustion.” Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006) (quoting 29 U.S.C. § 794a(a)(1)). Where there is “no administrative complaint and thus no final disposition of one,” id., courts must dismiss the disability claim for lack of subject matter jurisdiction. See, e.g., Rand v. Geithner, 609 F. Supp. 2d 97, 100 (D.D.C. 2009). By contrast, exhaustion under Title VII is mandatory but not jurisdictional, see Douglas v. Donovan, 559 F.3d 549, 556 n. 4 (D.C. Cir. 2009), and non-exhaustion must be raised as an affirmative defense. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Federal employees who believe that they have been the victim of disability discrimination or retaliation must contact an EEO counselor with forty-five days of the allegedly discriminatory act (or its effective date, in the case of a personnel action). 29 C.F.R. § 1614.105(a)(1); see also id. § 1614.103(a) (defining “retaliation” complaints as “discrimination” complaints for purposes of contacting EEO counselor). The positions advertised in vacancy announcements NEU-05-90, HRMS 05-165, and OSP-05-221A were filled, respectively, on August 23, 2005; September 30, 2005; and March 9, 2006. (See Chavers Dep. at 130:1-5; Compl. ¶ 39-40.) Yet plaintiff’s first contact with an EEO counselor regarding any of her non-selection claims did not occur until discrimination claim. 5 The Court’s conclusion that plaintiff has failed to cast doubt upon her employer’s reasons is equally applicable to her claims under the Rehabilitation Act and Title VII. 15 September 25, 2006, over a year after the first non-selection and over six months after the third one. Because ORM rejected as untimely her attempt to file an administrative complaint regarding her first three non-selections, there was “no administrative complaint and thus no final disposition of one” for those three claims. Spinelli, 446 F.3d at 162. Plaintiff argues that the Court should equitably toll the time limit for exhausting her first three non-selection claims because she “was dealing with the trauma of Mr. Rogers’ sexual assault,” and she “was not aware that [d]efendant was retaliating and discriminating against her until she was able to observe a pattern of retaliation and discrimination based on [d]efendant’s continued failure to select her for promotion . . . .” (Opp’n at 25-26.) The doctrine of equitable tolling is not applicable to jurisdictional deadlines such as those imposed by the Rehabilitation Act’s exhaustion requirements. See Slinger Drainage, Inc. v. E.P.A., 237 F.3d 681, 682 (D.C. Cir. 2001) (noting Supreme Court’s comment that mandatory and jurisdictional time limits “‘are not subject to equitable tolling’” (quoting Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405 (1995)). And although the doctrine can be applied to Title VII’s non-jurisdictional exhaustion deadlines, plaintiff’s case does not merit its application. “[C]ourts should exercise their equitable power to toll the statute of limitations ‘only in extraordinary and carefully circumscribed instances.’” Belton v. Shinseki, 637 F. Supp. 2d 20, 24 (D.D.C. 2009) (quoting Mondy v. Sec’y of Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). In Title VII cases, equitable tolling of a statute of limitations can be appropriate where a party “make[s] diligent but technically defective efforts to act within a limitations period,” was “misled about the running of a limitations period,” or “neither knew nor had reason to know about the limit.” Bowden, 106 F.3d at 438. Courts consider “a plaintiff’s intelligence and familiarity with the process” when determining whether equity counsels in favor of excusing a failure to exhaust. 16 Broom v. Caldera, 129 F. Supp. 2d 25, 29 (D.D.C. 2001). Here, there is no evidence that plaintiff was unaware of the exhaustion time limit or that defendant prevented her from contacting an EEO counselor. See Hayes v. Chao, 592 F. Supp. 2d 51, 57 (D.D.C. 2008); see also Mondy, 845 F.2d at 1057. In addition, the record shows that even before any deadline had passed for the non-selections at issue, plaintiff was familiar with the process of filing administrative grievances. She reported the Rogers incident to the EEO office on June 14, 2005, spoke with an ORM representative about the incident on August 10, and filed a formal discrimination complaint on September 14. (See Compl. ¶¶ 33-34; Reply, Ex. 3 (EEO Compl., Sept. 14, 2005) ¶ 13.) She was also familiar with filing a non-selection complaint, having done so in 2004 to seek “feedback” on why she was not selected for several positions. (See Chavers Dep. at 101-02.) Finally, plaintiff’s argument that she was too traumatized by the June 2005 Rogers incident to comply with EEO procedures following the August 2005 non- selection is undermined by the fact that (1) she was contemporaneously complying with EEO procedures for the Rogers incident, and (2) she had no difficulty emailing Keith Manning on August 25 to inquire why she was not selected for the NEU-05-90 position and to challenge the selected candidate’s qualifications as inferior to her own. (Compare Chavers Dep. at 130-31 and Chavers-Manning Emails at 1 with Chavers Dep. at 128:8-24 (reading her prior explanation in Kruger-Deal emails that she did not timely exhaust her administrative complaint because “[her] life as [she] knew it was totally disrupted”).) Nothing in the record suggests that following her second and third non-selections, plaintiff could not have exercised similar diligence in pursuing an EEO complaint or investigating and challenging the qualifications of the individuals selected 17 for the HRMS 05-165 and OSP-05-221A positions.6 The Court therefore concludes that the facts underlying plaintiff’s explanations “do[] not constitute the type of ‘extraordinary’ circumstance[s] that merit[] equitable tolling of the forty-five day limit.” Belton, 637 F. Supp. 2d at 24. Count 2 will be dismissed for lack of subject matter jurisdiction to the extent that it is based on the non-selections for vacancy announcements NEU-05-90, HRMS 05-165, and OSP- 05-221A. See Spinelli, 446 F.3d at 161-62; Rand, 609 F. Supp. 2d at 100. Summary judgment will be granted on Count 3 to the extent that it is based on those same non-selections. B. Vacancy Announcement DEN-06-45 It is undisputed that for the Dental Service’s Administrative Officer position advertised in vacancy announcement DEN-06-45, Haggan interviewed eleven people, asked them the same questions, and reviewed applications with three characteristics in mind (with particular emphasis on the first): “(1) the ability to act independently, (2) experience in supervising other employees, and (3) overall knowledge of the VA and how it operated.” (Def.’s SMF ¶¶ 37, 39.)7 It is also 6 There is no merit to plaintiff’s argument that equitable tolling is appropriate because the non-selections were part of a “pattern and practice of discrimination” that constituted a “continuing violation,” such that she could not have known to pursue the claims until the supposed pattern of retaliation became obvious. (Opp’n at 26.) This argument is unpersuasive as a matter of both law and fact. First, not only are “pattern-or-practice claims . . . generally brought by a class rather than an individual plaintiff,” but “‘[c]ourts have been wary of plaintiffs transforming what would otherwise be claims of discrete discrimination into a pattern and practice claim to avoid the statute of limitations . . . .” Hayes, 592 F. Supp. 2d at 56 (quoting Major v. Plumbers Local Union No. 5, 370 F. Supp. 2d 118, 127 (D.D.C. 2005)). This is because denials of transfers and failures to promote or hire are “[d]iscrete acts” that are “easy to identify,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), and “a plaintiff must satisfy the filing requirements for each discrete act of discrimination.” Hayes, 592 F. Supp. 2d at 56; accord Morgan, 536 U.S. at 114. Second, plaintiff’s argument is undermined by the evidence, because her first non-selection in August 2005 was already sufficient, standing alone, to “raise[] many concerns” in her mind since she perceived herself as being more qualified than the applicant. (Chavers-Manning Emails at 1.) 7 Plaintiff denies that Haggan considered these characteristics (see Pl.’s SMF at 12 ¶ 39), 18 undisputed that plaintiff and Angela Johnson were among the top-ranked applicants. (Id. ¶ 38.)8 Haggan ultimately selected Angela Johnson over plaintiff because Johnson gave a “superior” response to a hypothetical “Fee Basis Scenario” designed to gauge applicants’ ability to act independently in the workplace, and because she satisfied Haggan’s other two criteria since she was already supervising over thirty employees at the Richmond VAMC and had previously worked in the D.C. VAMC’s director’s office. (See id. ¶¶ 40-42; Mot., Ex. 3 (Glenn Haggan Dep., Nov. 3, 2008) (“Haggan Dep.”) at 16-22, 31-32.)9 “[An] employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, “[i]n order to justify an inference of discrimination,” the “qualifications gap” between candidates “must be great enough to be inherently indicative of discrimination.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). No such qualifications gap exists here. Plaintiff does not dispute that Johnson had experience as a supervisor within the VA system (see Pl.’s SMF at 13-14 ¶ 42; see also supra note 7), nor does plaintiff assert that her own but this denial does not comply with Local Civil Rule 7 because it is not supported by a citation to record evidence. See Local Civ. R. 7(h) (requiring non-moving party’s statement of factual issues to “include references to the parts of the record relied on to support the statement”). As such, plaintiff has not raised any genuine issue with respect to this factual assertion by defendant. See Adesalu v. Copps, 606 F. Supp. 2d 97, 103 & n. 4 (D.D.C. 2009) (declining, in Title VII case, to recognize plaintiff’s denial of defendant’s asserted material fact where he failed to comply with Rule 7’s requirement that denials must be supported by citation to record evidence). 8 Plaintiff denies this (see Pl.’s SMF at 12 ¶ 38), but the denial is unsupported by any record citation, and plaintiff admits elsewhere that Haggan stated that she was one of the top- ranked candidates. (See Chavers Decl. ¶ 67.) The denial therefore fails to create a genuine factual dispute. See supra note 7. 9 Plaintiff denies these were Haggan’s reasons (see Pl.’s SMF at 13-14 ¶¶ 41-42), but the denial is unsupported by any record citation, and plaintiff admits that Haggan claimed that he selected Johnson because of her response to the Fee Basis Scenario. (See Chavers Decl. ¶ 68.) The denial therefore fails to create a genuine factual dispute. See supra note 7. 19 “overall knowledge of the VA and how it operated” was significantly superior to Johnson’s. (See Pl.’s SMF at 12 ¶ 39.) Rather, she argues that she was more qualified than Johnson because she possessed credentials that Johnson lacked, including a college degree, and greater supervisory experience from her time in the military. (See Opp’n at 27.) She also suggests Johnson’s response to the Fee Basis Scenario was not superior to her own, because Johnson’s response was inconsistent with VA handbook regulations. (Id. at 13; Pl.’s SMF at 13 ¶ 41.). Plaintiff’s contentions are beside the point. They are based only upon “her own self- perception of her credentials, which is irrelevant for purposes of establishing discriminatory or retaliatory conduct.” Talavera v. Fore, No. 07-CV-720, 2009 WL 2731275, at *15 (D.D.C. Aug. 31, 2009) (Bates, J.); accord Waterhouse v. District of Columbia, 124 F. Supp. 2d 1, 7 (D.D.C. 2000) (“‘[P]laintiff’s perception of h[er]self, and of h[er] work performance, is not relevant.’” (quoting Smith v. Chamber of Commerce of the U.S., 645 F. Supp. 604, 608 (D.D.C. 1986)), aff’d, 298 F.3d 989, 995 (D.C. Cir. 2000). “It is the perception of the decisionmaker which is relevant,” Smith, 645 F. Supp. at 608, and Haggan concluded that Johnson’s experiences and interview best reflected the characteristics he sought. “Selecting a pool of qualified candidates based upon their written credentials and then making a final selection based upon personal interviews is an obviously reasonable method of hiring a professional employee.” Fischbach v. Dist. of Columbia Dep’t of Corr., 86 F.3d 1180, 1183-84 (D.C. Cir. 1996). Because Haggan “had the benefit of [his] prior determination” that plaintiff and Johnson were already among the most qualified applicants, and because his hypothetical question “concerned the way in which the applicant would approach the job[,] [t]here is nothing the least bit fishy about the interviewer[’s] giving slightly less emphasis to the applicants’ credentials” – assuming arguendo that Haggan did so – “than to the manner in which each candidate proposed to do the job . . . .” 20 Id. at 1184 (footnote omitted). Plaintiff has provided no evidence to cast doubt on defendant’s assertion that Haggan believed Johnson had sufficient experience as a supervisor and familiarity with the VA system. And because Haggan concluded that Johnson’s response to his hypothetical was “[e]xactly” what he would “expect [his] assistant to do” in that situation (Haggan Dep. at 22:15-22), it is irrelevant that plaintiff believes that Haggan should have preferred her response.10 “Once the employer has articulated a non-discriminatory explanation for its action, as did the [agency] here, the issue is not ‘the correctness or desirability of the reasons offered but whether the employer honestly believes in the reasons it offers.’” Fischbach, 86 F.3d at 1183 (quoting McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) (brackets and ellipses omitted). In other words, a district court judge does not sit as a “‘super-personnel department that reexamines an entity’s business decisions.’” Id. (quoting Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986); accord Adeyemi, 525 F.3d at 1227. Because Haggan’s “stated belief[s] about the underlying facts” regarding his decision to select Johnston for Dental Service position are reasonable “in light of the evidence,” Brady, 520 F.3d at 495, and because plaintiff has failed to cast doubt upon the proffered reason for her non- selection,11 the Court grants summary judgment as to Counts 2 and 3 to the extent they are based 10 It is also irrelevant whether plaintiff’s response was more consistent with the VA handbook than Johnson’s. The cited regulation does not, on its face, establish that Johnson’s response was objectively inferior to plaintiff’s (see Opp’n, Ex. 14 (VA Handbook 1130.01) ¶ 13(a)), so it is not the Court’s place to second-guess Haggan’s preference for one response over the other. 11 The Court rejects plaintiff’s suggestion that discrimination should be inferred from defendant’s failure to comply with certain reporting and notice regulations governing situations where an agency overlooks a candidate with “veterans[’] preference status to select a non- veteran non-preference candidate with inferior qualifications.” (Opp’n at 28.) As discussed, there is no evidence that Johnson possessed inferior qualifications. In addition, any failure to comply with reporting requirements is not “significantly probative” of discrimination, Anderson, 21 on this non-selection. C. Vacancy Announcement NURS-06-64 As the chief of the Nursing Service, Feaster decided that the person who would fill the NURS-06-64 vacancy “would work directly with [her] as [her] executive assistant.” (Mot., Ex. 4 (Geraldine Feaster Dep., Oct .23, 2008) (“Feaster Dep.”) at 9:8-10.) That individual would serve as her “right-hand person[] to manage all of the business of the office,” so Feaster “decided that “it was important for [her] to make [the selection] decision” directly instead of through an interview panel. (Id. at 9:10-14.) It is undisputed that Feaster interviewed three people: plaintiff, Michelle Newman, and another individual who held the same position in the Baltimore VA Medical Center. (Pl.’s SMF at 15 ¶ 46.) In addition, it is undisputed that Feaster selected ten questions from a group of performance-based questions and posed these questions to each candidate. (See id. at 15 ¶ 48; see also supra note 1.) 477 U.S. at 249, because both Haggan and Feaster believed that no such reporting was required. (See Haggan Dep. at 24:12-25:3; Feaster Dep. at 30:4-16.) Indeed, case law suggests that plaintiff’s veteran status may have been irrelevant to her application because “veterans’ preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency.” Glenn v. U.S. Postal Serv., 939 F.2d 1516, 1523 (11th Cir. 1991); accord Brown v. Dep’t of Veterans Affairs, 247 F.3d 1222, 1224 (Fed. Cir. 2001) (“[V]eterans are not accorded any preference under the [Veterans’ Preference Act] when seeking promotion or intra-agency transfers.”). Plaintiff also failed to discredit Haggan’s deposition testimony that at the time he selected Johnson, he was unaware that plaintiff had filed an EEO complaint regarding the Rogers incident. (See Haggan Dep. at 33:18-22.) Plaintiff admits that she has no “independent knowledge” or “independent information” that would establish whether Haggan was aware of her EEO activity during the summer of 2005. (See Chavers Dep. at 132:8-15.) All she offers is speculation, based on her time working in the VAMC director’s office for several months in 2004, that because “it was common practice for the EEO Specialist or Manager to brief the [VAMC] Director concerning EEO complaints filed by employees” and for “[t]he Director to then brief[] the service chiefs,” and because Haggan was a service chief, that Haggan “would have attended meetings where EEO complaints were discussed.” (See Opp’n at 30.) Plaintiff’s speculation about what might have happened a year after she stopped working in the Director’s office is not evidence that would permit a reasonable jury could to conclude that Haggan lied in his deposition. 22 Feaster explained that she “thought [Newman] would be a good fit for [her],” and that “in fact, [Newman] was [a good fit].” (Feaster Dep. at 21:12-14.) From Feaster’s perspective, even though plaintiff and Newman had “similar experiences” and both had “excellent [office] skills,” Newman’s experiences, qualifications, and references “made her a better candidate.” (Id. at 22:9-17.) Newman had previously managed a legal office as an executive secretary, and she was familiar with computer programs that Feaster felt she needed in her own office. (See Def.’s SMF ¶¶ 49-51; Feaster Dep. at 20-22, 24-27.)12 Newman came with “superb” recommendations, and Feaster was “very impressed” with “[h]ow she had managed her career” in her previous position. (Feaster Dep. at 21:7-12.) Feaster believed that Newman’s prior experience working for three attorneys more closely matched what she wanted in a staff assistant, namely someone who “would fit well” in and “manage the flow” of Feaster’s “very busy office, [with] lots of documents coming in . . . .” (Id. at 26:21-27:6; see also id. at 20-21.) As with the Dental Service vacancy, plaintiff does not dispute the fact of Newman’s specific credentials or experiences. Rather, she argues that she was more qualified than Newman because she possessed credentials and experience that Newman lacked, including an undergraduate degree, supervisory experience from her time in the military, and experience from a five-month temporary detail to the Staff Assistant position under Feaster’s predecessor. (See Opp’n at 27-28; Chavers Decl. ¶ 84; Chavers Aff. ¶ 30.) For the reasons already discussed, plaintiff’s disagreement with Feaster’s ultimate assessment of her qualifications is insufficient to cast doubt upon the defendant’s proffered reasons for the non-selection. See supra Section III.B 12 Plaintiff denies the fact of Newman’s qualifications and recommendations (see Pl.’s SMF at 15 ¶¶ 50-51), but the denial is unsupported by any record citation and therefore fails to create a genuine factual dispute. See supra note 7. 23 & note 11.13 Accordingly, summary judgment is granted as to Counts 2 and 3 to the extent they are based on this non-selection. CONCLUSION For the foregoing reasons, the Court grants defendant’s motion. Plaintiff’s claims under Count 2 with respect to vacancy announcements NEU-05-90, HRMS 05-165, and OSP-05-221A are dismissed for lack of subject matter jurisdiction. Summary judgment is granted as to all other claims. A separate Order will accompany this Memorandum Opinion. /s/ ELLEN SEGAL HUVELLE United States District Judge Date: November 5, 2009 13 Plaintiff also contends that her qualifications were demonstrably superior because Feaster asked plaintiff to train Newman since the latter was not familiar with certain Nursing Service “management systems.” (See Opp’n at 28; Chavers Dep. at 146:5-7.) This does not undercut Feaster’s stated rationale that she perceived Newman as being better able “to manage the flow” of that office. (See Feaster Dep. at 26:21-27:6.) In addition, for the reasons already discussed, see supra note 11, plaintiff also fails to provide evidence from which a reasonable jury could infer that Feaster knew of plaintiff’s prior EEO activity when she selected Newman. While there is evidence that McNicholas told Feaster about Rogers’ “behavior” (see McNicholas Dep. at 23:21-24:3), there is no evidence that Feaster ever learned that plaintiff filed an EEO complaint about that behavior. 24	{ "pile_set_name": "FreeLaw" }
489 F.Supp.2d 516 (2007) Frances Jean BERTRAND, Plaintiff v. The CHILDREN'S HOME, Defendant. Civil No. AMD 05-2873. United States District Court, D. Maryland. May 17, 2007. 517 Neil R. Lebowitz, Law Office of Neil R. Lebowitz LLC, Columbia, MD, for Plaintiff. John M. Singleton, Jennifer L. Stair, Singleton Gendler and Terrasa, Owings Mills, MD, for Defendant. MEMORANDUM OPINION and ORDER DAVIS, District Judge. Plaintiff, Frances Jean Bertrand, has brought two lawsuits against her former employer, The Children's Home, Inc. (TCH), a social services organization, arising out of her employment as a secretary. In this case, filed in 2005, she asserts a claim for violation of the overtime pay provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(2), and related Maryland wage laws, to recover unpaid overtime wages, liquidated damages, attorney's fees, and costs. In the recently-filed case, number AMD 07-504, she has asserted numerous discrimination claims. Now before the court is defendant's motion for summary judgment in the overtime pay case. The motion has been fully briefed and no hearing is needed. For the reasons set forth herein, I shall deny the motion for summary judgment and stay this case, pending the completion of discovery in respect to the newly-filed discrimination case, with an eye to trying both cases on a consolidated basis. I. Of course, the facts shall be viewed in the light most favorable to plaintiff as the nonmovant. Plaintiff worked for TCH from 1982 until 2005, holding a variety of positions, all of which involved secretarial duties of one sort or another. When she began, plaintiff was a nonexempt "social services secretary." In 1985, plaintiffs title became "administrative secretary." Later, her title became "executive secretary;" during her tenure as "executive secretary" she worked as an assistant to the executive director and exercised some supervisory responsibility over one or more others. Until 1992, defendant designated plaintiff as a non-exempt employee under the FLSA, and thus, indisputably, she was entitled to be paid overtime compensation. In 1992, TCH designated plaintiff as exempt 518 under the FLSA and Maryland's wage laws, and thereafter, overtime compensation was not payable to plaintiff. At that time, Bertrand signed an employment agreement in which she acknowledged her exempt status. Plaintiff returned to a non-exempt status effective January 31, 2005. In connection with her 1992 change in status, plaintiffs rate of pay, $11.1786 per hour, did not change. Nor did the change in status from non-exempt to exempt have a great impact on plaintiff because before 2001, plaintiff was a part-time employee. Plaintiff became a full-time employee after Andre Cooper became CEO in 2002. Plaintiff claims that, in 2002, she began working overtime hours. Upon inquiring about her exempt status, plaintiff was told she was exempt because she "supervised the receptionist." Plaintiff asserts that she did not have this supervisory role, which she says was a minor part of her duties in any event, until more than eight years after the company first designated her as exempt: there was no receptionist position until then. Defendant's policy does not require exempt employees to record daily hours worked but only whether they were present on a particular day, recording eight hours regardless of the actual hours worked. Plaintiff adhered to this policy; thus, she has no detailed accounting of her actual hours after 1992. Non-exempt employees were required to use an automated time and attendance system to register in at the beginning of their shift and out at the close of their shift. Plaintiffs employment formally terminated on June 1, 2005. On October 21, 2005, plaintiff brought this action, seeking unpaid overtime for the period October 21, 2002, to January 29, 2005. II. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if, when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Laura Campbell Trust v. John Hancock Life Ins. Co., 411 F.Supp.2d 606, 609 (D.Md.2006). A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). The facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most 519 favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, cannot rely upon unsupported speculation and it has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). III. Defendants in FLSA cases have the burden to "prove by clear and convincing evidence that an employee qualifies for exemption." Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir.1993). In making this showing, "[t]he employer has the burden of establishing by affirmative evidence all the necessary requirements of the exemption." Dalheim v. KDFW-TV, 706 F.Supp. 493, 501 (N.D.Tex.1988), aff'd, 918 F.2d 1220 (5th Cir.1990); Clark v. J.M. Benson Co., 789 F.2d 282, 285-86 (4th Cir.1986). Exemptions from the FLSA's overtime pay requirements are "narrowly construed." Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 450 (4th Cir.2004)(citing Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)); Shockley, 997 F.2d at 24 ("Courts construe exemptions to the FLSA narrowly `in order to further Congress' goal of providing broad federal employee protection.'" (citation omitted)). Defendant contends that plaintiff's status as an exempt employee is consonant with the requirements established in controlling federal regulations, see 29 C.F.R. 541.200(a), et seq., and that I should so conclude as a matter of law. Plaintiff argues, to the contrary, that drawing all reasonable inferences in her favor as the non-movant, and bearing in mind defendant's burden of proof ("clear and convincing evidence"), defendant has failed to establish her exempt status as a matter of law. In particular, plaintiff argues that she did not work in an administrative capacity as contemplated under the FLSA, but that her work was essentially the same as the other, admittedly non-exempt, secretaries working for TCH. I agree with plaintiff that this issue is properly a jury question. "Department of Labor regulations define what constitutes employment in an executive or administrative capacity." Shockley, 997 F.2d at 21. Under the regulations, to show that an employee is exempt as an administrative employee, an employer must show that its employee is one who is "(1) Compensated on a salary or fee basis at a rate of not less than $ 455 per week . . ., exclusive of board, lodging or other facilities; (2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance." 29 C.F.R. § 541.200(a). Plaintiff concedes that defendant has satisfied the first element of its affirmative defense. The dispute here is over the final two elements of the affirmative defense. As to the second element, although it is clear that Bertrand's work was non-manual, office work, the issue presented is whether it was "directly related to the management or general business operations" of TCH. To meet this standard, defendant must show that plaintiff engaged in activities such as "running the business itself or determining its overall course," not just in the "day to day carrying out" of business affairs. Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir.2002) (citation omitted). The Fourth Circuit has observed "that bookkeepers, 520 secretaries, and clerks of various kinds hold the run-of-the-mine positions in any ordinary business and are not performing work directly related to management policies or general business operations." Clark, 789 F.2d at 286-87 (quoting 29 C.F.R. § 541.205(c)(1)). The regulations emphasize the type of work, rather than any label or job title. Here, although particular items of evidence in the record concerning Bertrand's duties support one or the other of the parties' arguments, a reasonable jury could easily conclude that Bertrand's work was essentially and predominantly clerical in nature, and not administrative or managerial. Indeed, Bertrand's former boss described her duties, in part, as "providing secretarial support across various departments" including scheduling and dealing with vendors. Likewise, plaintiff described at length in her deposition her secretarial duties, which included ordering supplies, taking minutes at company meetings, completing forms, and, under supervision, distributing petty cash.[1] In sum, although the services plaintiff provided to TCH were valuable and important to its operations, defendant's showing here does not establish as a matter of law, bearing in mind the burden of proof here of clear and convincing evidence, that plaintiffs duties "directly related to the management or general business operations of the employer" Similarly, as to the third element of the affirmative defense, while it is clear that some of plaintiffs duties entailed the exercise of "discretion and independent judgment," e.g., meeting with office equipment dealers and evaluating their prices, a jury could reasonably find that those duties were not her primary duties. See Clark, 789 F.2d at 286 (noting that "primary duty" means "the major part or over 50 percent" of the employee's time). Moreover, a reasonable juror could find that as to those of her duties classified as among her primary duties, the exercise of discretion and independent judgment in the performance of such duties was not in "respect to matters of significance."[2] Accordingly, 521 defendant has not established that it is entitled to summary judgment on the affirmative defense that Bertrand was an exempt, i.e., an administrative, employee. IV. Defendant raises an interesting issue regarding Bertrand's enjoyment, over many years, apparently, of the benefits of an exempt employee and whether that should preclude her overtime claim. Most compelling of this evidence is proof that Bertrand worked flexible hours, taking longer lunches and working less than full days, and such. Nonetheless, (apart from the fact that defendant did not plead estoppel as an affirmative defense) it is inappropriate to conclude here that defendant has established this defense (assuming it is properly a part of this case) as a matter of law.[3] V. Defendant also seeks a determination that Bertrand's proof of damages is too speculative to be presented to a jury. 522 To be sure, "an employee suing an employer under the Fair Labor Standards Act for . . . unpaid overtime compensation has the burden of proving that the employee performed the work for which the employee was not properly compensated." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). I agree that Bertrand's proof of damages seems thin, at best, but considering the facts in the light most favorable to her, she has projected sufficient evidence to get to the jury as to some amount.[4] Accordingly, summary judgment in favor of defendant is not warranted on the ground that plaintiff will be unable to prove any damages. VI. Finally, defendant contends that a two year period of limitations, rather than a three year period, is applicable in this case, because it did not act willfully or in reckless disregard of its obligations under the FLSA.[5] I readily agree with defendant that there is substantial evidence that it did not act willfully. Nevertheless, in light of the fact that defendant designated Bertrand as exempt even while she was a part-time employee (without a change in her rate of pay), and that it was only over a period of several years of full-time employment that her job responsibilities grew to include some supervision and a more frequent and expansive measure of discretion in the performance of her tasks, and drawing all inferences in favor of plaintiff, the question of willfulness is best determined by a jury. Cf. Glunt v. GES Exposition Servs., 123 F.Supp.2d 847, 861 (D.Md.2000) ("In general, issues of fact bearing on the application of a statute of limitations are submitted, as are other issues of fact, for determination by the jury." (citations omitted)); Soto v. McLean, 20 F.Supp.2d 901, 913 (E.D.N.C.1998)("[W]illfulness for purposes of 29 U.S.C. § 255(a) is properly a factual question to be put before the jury, granting summary judgment for defendants on this issue would be inappropriate"). VII. For the reasons set forth above, defendant's motion for summary judgment is DENIED, and this case is STAYED pending *523 completion of discovery in case number AMD 07-504. NOTES [1] Defendant points to Bertrand's job description, which gave her "authority to delegate assignments" and authority to oversee the receptionist, as evidence that she worked in an administrative capacity. Defendant also argues that plaintiff agreed to this job description. Whether this is so (and Bertrand contends she merely confirmed that it was in fact the description of the job she held) may or may not be viewed by a jury as probative, but the job description is not the most important consideration Bertrand's actual duties are. See Cooke v. General Dynamics Corp., 993 F.Supp. 56, 61 (D.Conn.1997) ("Whether an employee is exempt is determined by the employee's actual work activities, not by the employer's characterization of those activities through a job title or job description.") (citation omitted); see also Bennett, 225 F.Supp.2d at 218 (same). Even assuming the job description is highly probative, many (if not most) of the duties described may nonetheless be viewed as clerical duties that are quite common for secretaries and not essentially managerial. The description includes duties such as having "authority from the executive director to delegate assignments to be completed," "overseeing all work completed by the receptionist, and direct[ing] her in order of priorities," and "maintain[ing] special events." Simply speaking, the existence of a hierarchy among clerical staff does not mandate the conclusion that Bertrand's work was directly related to "management or general business operations." [2] Some of Bertrand's duties required her to seek permission from her superiors. For example, when giving petty cash, she was required to seek permission unless a supervisor was making the request. Furthermore, supervision duties do not automatically justify assignment of the employee to an exempt status. See 29 C.F.R. 541.207(e)(1); see also West v. Anne Arundel County, Md., 137 F.3d 752, 764 (4th Cir.1998); Stricker v. Eastern Off Road Equip., Inc., 935 F.Supp. 650, 656 (D.Md.1996). Defendant also cites plaintiff's practice of photocopying all cash received by TCH, a practice that has now been discontinued. Certainly, a responsibility for handling an employer's currency could be viewed as "of significance," but photocopying certainly is not. Other examples of plaintiff's duties include giving employees supplies, fixing office equipment, and helping with the postage meter. [3] Defendant argues that Bertrand acknowledged her new status, and that when she later inquired about her status, she was told why she was not paid overtime, and she elected to stay in her position. These conversations and events are of little guidance here, however, as a juror could conclude on this record that Bertrand's status was changed by the defendant unilaterally. There is no compelling evidence that she had a choice in the matter. Manifestly, the mere fact that she continued in her position and signed a new agreement does not nullify her entitlement to overtime if she is non-exempt. Rogers v. Savings First Mortgage, LLC, 362 F.Supp.2d 624, 629 (D.Md.2005)(noting that there is a "nonwaivable nature of an individual employee's right to a minimum wage and to overtime pay under [FLSA]" and "`FLSA rights' cannot be abridged by contract or otherwise waived because this would nullify the purposes of the statute and thwart the legislative policies it was designed to effectuate.") (quoting Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (citation omitted)); see also Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 167, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945) ("[E]mployees are not to be deprived of the benefits of the Act simply because they are well paid or because they are represented by strong bargaining agents."); Dunlop v. Gray-Goto, Inc., 528 F.2d 792, 794-95 (10th Cir. 1976) ("[P]rivate agreement or understanding between the parties cannot circumvent the overtime pay requirements of the Act"); Abendschein v. Montgomery County, 984 F.Supp. 356, 359-60 (D.Md.1997) ("FLSA rights are nonwaivable, and `cannot be abridged by contract.'"). In its Reply Memorandum, TCH cites to Garofolo v. Donald B. Heslep Associates, Inc., 405 F.3d 194 (4th Cir.2005), for the proposition that when the parties agree, the overtime rate can be included in the salary of the employee. But here, there is, at best, equivocal evidence that the parties "agreed." While Bertrand signed an employment contract describing her as exempt, the record could be interpreted by a reasonable juror as indicating that Bertrand had to agree to a change in status or lose her job. This is hardly the type of agreement contemplated by the FLSA. Second, there is no clear evidence that "overtime pay" was included in Bertrand's salary. Certainly, her salary remained the same upon the 1992 change in her status. While it may have increased in the years since, and while she may have been paid a premium for certain duties such as attending meetings of the Board of Trustees, there is no evidence that any raise was based on her exempt status. Cf. Adams v. Dept. of Juvenile Justice, 143 F.3d 61, 68 (2nd Cir.1998)("if the annual salary was properly intended by the parties to account for both a regular rate and an overtime rate, the contemplated arrangement is in compliance with the FLSA"). [4] Bertrand, who did not keep a record of her actual hours (because she was designated as exempt), makes a seemingly doubtful estimate that she worked more than 12 hours overtime per week, on average. On the other hand, defendant has produced substantial evidence, including e-mails and other documents, as well as certain admissions by Bertrand, that many of Bertrand's claimed hours cannot be substantiated. TCH also contends that any extra hours Bertrand worked were not at its request or demand. But common experience tells us that often, when long hours are worked, those hours are not always explicitly requested, but rather, that they are expected to be given to the work if necessary to complete the work. If Bertrand worked overtime, the only reasonable reason to do so, without compensation, would be if she felt it was required. In any event, Bertrand claims that she was told she had to work as long "as it took to get things done." The credibility of this assertion is for the jury. [5] Bertrand bears the burden to establish a willful violation. EEOC v. O'Grady, 857 F.2d 383, 388 (7th Cir.1988). In order to prove a willful violation, she must show that TCH must have known that, or "showed reckless disregard" that, its conduct was prohibited by the FLSA. McLaughlin v. Richland Shoe Company, 486 U.S. 128, 130, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). Mere negligence is not enough. See id. at 133, 108 S.Ct. 1677. Bertrand never requested overtime compensation when she worked at TCH; thus, she was never refused overtime. Nevertheless, even if she had been refused, there is evidence on TCH's side that it was proper to designate Bertrand as exempt. That evidence is for a jury to weigh and assess.	{ "pile_set_name": "FreeLaw" }
788 S.W.2d 158 (1990) Gonzalo R. GALLEGOS, Appellant, v. Jean F. GALLEGOS, Appellee. No. 04-89-00312-CV. Court of Appeals of Texas, San Antonio. March 28, 1990. Humberto G. Garcia, San Antonio, for appellant. William Dale Gillam, Universal City, for appellee. Before BUTTS, CHAPA and PEEPLES, JJ. OPINION CHAPA, Justice. This is an appeal from a final decree of divorce. Appellant, Gonzalo R. Gallegos, filed this action seeking a divorce from the appellee, Jean F. Gallegos. The parties reached an agreement as to the division of their estate, except as to the division of appellant's military retirement pay. The trial judge accepted the agreement, made the agreement part of his decree, and divided the retirement pay. The issues before us are: 1. whether the trial court erred in ordering an award to appellee of an interest in that portion of appellant's military retirement pay which was subjected to a partial defeasance for V.A. Disability benefits; and 159 2. whether the trial court erred in awarding to appellee an interest in that portion of appellant's military retirement pay which was subjected to a partial defeasance because of appellant's Civil Service employment. The court awarded appellee an interest in appellant's entire military retirement pay, which allegedly included a portion which had been subjected to partial defeasance for Veterans Military Disability Pay under 38 U.S.C. § 3105 (Supp.1989), and a partial defeasance because of appellant's Civil Service employment under the Dual Compensation Act, 5 U.S.C. § 5532 (1980 & Supp. 1989). No request for findings of fact and conclusions of law was made. Furthermore, no statement of facts was brought forth.[] However, appellant timely filed a motion for new trial seeking a reconsideration of the court's decision. The court overruled the motion. Appellant appeals only that part of the decision awarding the interest in appellant's military retirement pay. At the time of the hearing of the case, appellant had a gross retirement pay entitlement of $2,386 per month. This was reduced by $335 per month because appellant was receiving $335 per month as V.A. Disability pay. Retired Pay Operations further reduced appellant's entitlement by $704.74 per month because of his civil service employment. As a result, appellant's adjusted entitlement was $1,346.26 per month. Appellant contended that appellee should have been awarded a community interest in appellant's retirement pay on only that portion that remained following the reduction. The trial court's decree, however, clearly indicates that the trial judge divided the entire amount of $2,386. The court found that the community had a 43% interest in appellant's gross military retirement benefits ($2,386) and awarded one-half of the community interest in those benefits to appellee. The court specifically awarded the appellee a 21.5% interest in appellant's gross retirement benefits. The judgment provides, in relevant part: The parties have consented to the terms of this decree and stipulated it is a contract except as to the provision concerning [appellee's] interest in [appellant's] military retirement benefits which provision was ordered by the court. * * * * * * Provisions Dealing With Division of Military Retirement Benefits This cause was called for further hearing on March 30, 1989 at which time the parties appeared in person and by attorneys of record and announced ready. The parties advised the Court of their stipulation of facts necessary for the proper consideration by the court of the pertinent issues concerning the parties' respective interest in [appellant's] military retirement benefits. The parties stipulated to the following pertinent facts: . . . . . 5. At the time of the hearing of this cause, [appellant] had a G.R.P.E. (Gross Retirement Pay Entitlement) of $2,386.00 per month. 6. At the time of the hearing of this cause, [appellant] was receiving V.A. Retirement Disability benefits in the amount of $335.00. 7. A copy of a retirement pay stub is attached hereto as Exhibit A & made a part of this decree as if fully set forth herein. 8. At the time of the hearing of the cause, [appellant] was employed by U.S. Government Civil Service of Fort Sam Houston, Texas. * * * * * * The Court finds that [appellant's] gross monthly retirement pay from which [appellee's] interest must be determined is $2,386.00. The Court further finds that the community interest in the monthly retirement benefit is forty-three percent (43%). The Court further finds that the forty-three percent (43%) community interest is now equal to a monthly retirement benefit of $1,025.98 and 160 that [appellee's] present monthly share is $512.99.... IT IS ORDERED AND DECREED that [appellee] shall have judgment against and recover from [appellant] twenty-one and one-half percent (21.5%) of the gross present and future military retirement pay received each month by [appellant] ... In his first point of error, appellant contends that the trial court erred in awarding appellee an interest in that portion of appellant's military retirement pay which was subject to a partial defeasance for V.A. Disability benefits. The issue raised in appellant's first point of error has recently been decided in Mansell v. Mansell, ___ U.S. ___, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989). In Mansell, the United States Supreme Court determined whether state courts "may treat, as property divisible upon divorce, military retirement pay waived by the retiree in order to receive veterans' disability benefits." Mansell, 109 S.Ct. at 2025. The Court held that the Uniformed Services Former Spouses' Protection Act (the "Act")[1] did not restore authority to the States to determine all types of military retirement pay. The Court concluded that the Act "specifically defines the term `disposable retired or retainer pay' to exclude, inter alia, military retirement pay waived in order to receive veterans' disability payments." Mansell, 109 S.Ct. at 2026. As a result, the Court concludes, the Act only granted state courts discretion to divide disposable retired pay; "they have not been granted the authority to treat total retired pay as community property." Id.; see 10 U.S.C. § 1408(a)(4)(B) (1983 & 1989 Supp.). Here, the appellant received V.A. Disability benefits and waived a like portion of his retirement pay. Following the holding of Mansell, we hold that state courts do not have the power to treat military retirement pay that has been waived in order to receive V.A. Disability benefits as property divisible upon divorce. See Berry v. Berry, 780 S.W.2d 846, 850-51 (Tex.App.Dallas 1989[2]) (also holding that the Act does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive V.A. Disability benefits). As a result, that portion of appellant's retirement benefit, which was waived by the appellant in order to receive V.A. Disability benefits, was not divisible by the court and doing so was error. Appellant's first point of error is sustained. In his second point of error, appellant contends that the trial court erred in awarding appellee an interest in that portion of appellant's military retirement pay which was subjected to a partial defeasance because of appellant's Civil Service employment. As indicated in Mansell, supra, the Act did not restore authority to the States to determine questions of divisibility as to all types of military retirement pay. The Act only granted state courts discretion to divide "disposable retired or retainer pay." Mansell, 109 S.Ct. at 2026; See 10 U.S.C. § 1408(a)(4)(B) (1983). 10 U.S.C. 1408(c)(1) (1983) provides: Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. Id. (emphasis added). 10 U.S.C. § 1408(a)(4) (1983) defines disposable retired or retainer pay as follows: (4) "Disposable retired or retainer pay" means the total monthly retired or retainer pay to which a member is entitled less amounts which ... (B) are required by law to be and are deducted from the retired or retainer pay of such member, including fines and forfeitures ordered by courts-martial, Federal employment taxes, and amounts 161 waived in order to receive compensation under title 5 or title 38 ... (emphasis added). The appellant contends, and we agree, that Section 5532 of Title 5 U.S.C. requires the reduction of a retired officer's retired pay in order for him to receive the full pay of his Civil Service position. As with military retirement benefits, the Act specifically defines the term "disposable retired or retainer pay" to include "amounts waived in order to receive compensation under Title 5...." Following Mansell, therefore, we hold that the court was without authority to divide that portion of appellant's retirement pay that was reduced in order for him to receive the full pay of his Civil Service position, as the amount waived in order to receive compensation under 5 U.S.C. § 5532 must first be deducted to determine the "disposable retired or retainer pay." Only after such deductions are made may the court determine what portion of appellant's retirement pay is community property. Nevertheless, appellee contends that in order to claim the statutory deductions, appellant must overcome the presumption that his entire military retirement benefits are community property, that the deductions were not required by law and did not represent compensation paid by statute in the absence of a statement of facts, that there was evidence to support the trial court findings in the absence of a statement of facts, and that the trial court pursued the theory that the net proceeds were divisible, but that appellee was entitled to a greater community share. Generally, presumptions are in favor of the judgment where there is no statement of facts. However, the record here includes a judgment, an attached pay stub, and findings of fact within the judgment that clearly disclose by simple mathematics that the trial court improperly divided the gross retirement benefits as part of the community estate: 1. The parties stipulated and the court found that the appellant had a gross retirement pay entitlement of $2,386 per month. 2. The parties stipulated that the appellant was receiving V.A. Retirement Disability benefits in the amount of $335 per month. 3. The parties stipulated that the appellant was employed by the U.S. Government Civil Service. 4. A copy of the appellant's retirement pay stub was made a part of the decree and reflected a gross pay amount of $2,386 with a reduction of $335 for "VA" and a deduction of $704.74 for "DUAL." 5. The court found that the community interest in the monthly retirement benefits was 43% and that the community interest was equal to $1,025.98. 6. The court awarded the appellee 21.5% of the "gross present and future military retirement pay received" by the appellant, which it determined was equal to $512.99. Because the court improperly included and divided property not subject to division as part of the community estate, we must reverse. In this context, the Texas Supreme Court in Jacobs v. Jacobs, 687 S.W.2d 731 (Tex.1985), held: The Texas Family Code requires the trial court to `order a division of the estate of the parties in a manner that the court deems just and right, having due regard of the rights of each party....' Tex.Fam.Code Ann. § 3.63 (Vernon Supp. 1985). The trial court has wide discretion in dividing the `estate of the parties,' but must confine itself to the community property; the only property subject to division under section 3.63. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). Whether the trial court abuses its discretion in dividing the property ... or commits reversible error in defining what property is properly a part of the community estate and therefore subject to division, as in the present case, the principle to be applied is the same. Once reversible error affecting the `just and right' division of the community estate is found, the court of appeals must remand 162 the entire community estate for a new division. Id. at 733. Following Jacobs, we must reverse and remand to the trial court for a new division of the community estate. The judgment of the trial court is reversed and the cause is remanded for a new division of the community estate. BUTTS, Justice. This court is addressing a question of family law which apparently has not been considered as yet by our courts. The question is whether the civil service salary paid to a military retiree at the time of the divorce must be deducted from the gross military retirement pay in order to determine what is "disposable" pay. There is no doubt now, after Mansell v. Mansell, ___ U.S.___, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), that veterans disability benefits must be deducted from the gross retirement pay. With that holding Texas courts have no problem. See, e.g., Ex parte Burson, 615 S.W.2d 192 (Tex.1981); Ex parte Johnson, 591 S.W.2d 453 (Tex.1979). Thus, there is no question that the disability benefits from the V.A. must be excluded at the time of the division. In the event that the present petitioner, as recipient of the benefits, is reevaluated at any time as not eligible for those benefits, then the court with continuing jurisdiction should entertain a motion to modify the determination of "disposable" pay. See 10 U.S.C. § 1408(c)(1) (1982). The Mansell decision precludes the states from treating as community property the portion of retirement pay which has been waived to receive veterans disability benefits. The court specifically referred to the definition of disposable pay found in § 1408(a)(4)(B): (4) `Disposable retired or retainer pay' means the total monthly retired or retainer pay to which a member is entitled... less amounts which (B) are required by law to be and are deducted from the retired or retainer pay of such member, ... Federal employment taxes, and amounts waived in order to receive compensation under title 5 or title 38.... * * * * * 10 U.S.C. § 1408(a)(4)(B) (1982). While this procedure bestows on some military retirees the control of what becomes "disposable" pay for purposes of division of community property, it nevertheless follows as a corollary of Mansell. Civil service employment and pay is governed by title 5 of the United States Code. Therefore, I reluctantly concur, pointing out at the same time, that any change in the status of "waived" military retirement pay should be brought to the attention of the trial court by motion to modify. Moreover, when the community estate is divided again on retrial, nothing in this opinion prevents the trial court from considering the size of the parties' separate estates and any differences in their earning capacities, including the disability income and civil service income at issue in this appeal, in making a just and right division. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). NOTES [*] NOTE. In fact, the making of a record was waivedsee Final Decree of Divorce at TR. 13). [1] 10 U.S.C. § 1408 (1986 & 1989 Supp.). [2] Two applications for writ of error were filed. C-9458 (Jan. 23, 1990) was denied; C-9839 (Jan. 18, 1990) pending.	{ "pile_set_name": "FreeLaw" }
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED DEFOREST KELLY, Appellant, v. Case No. 5D16-1159 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed August 19, 2016 3.850 Appeal from the Circuit Court for Brevard County, Charles J. Roberts, Judge. Deforest Kelly, Milton, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee. EDWARDS, J. Deforest Kelly appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. In the motion, Appellant argued that he was prejudiced by ineffective assistance of counsel because his defense attorney failed to obtain certified copies of prior convictions that would have permitted impeachment of the State’s key witness, Kent, and which may have otherwise assisted his defense. We reverse and remand for further proceedings. Appellant was charged with kidnapping and robbing Kent. Appellant denied the charges and claimed that Kent was a drug dealer who attempted to rob him. According to Appellant, witness credibility was crucial given the lack of physical evidence and the two very different factual scenarios described by Appellant and Kent. Claims of ineffective assistance of counsel must meet the two prongs of the Strickland test: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). The second prong is met only when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Failure to impeach a key witness may amount to ineffective assistance of counsel, warranting relief. Tyler v. State, 793 So. 2d 137, 144 (Fla. 2d DCA 2001). This is especially true in cases involving credibility contests, as the relative credibility of the witnesses becomes central to the trial. In Burch v. State, 977 So. 2d 778 (Fla. 5th DCA 2008), a case where the defendant and the alleged victim provided markedly different versions of the events, this court reversed a summary denial of a rule 3.850 motion with directions for the trial court to conduct an evidentiary hearing regarding counsel’s failure 2 to impeach the victim about a single prior conviction for stealing beer and steak. Burch, 977 So. 2d at 779-80 (Fla. 5th DCA 2008); see also Head v. State, 35 So. 3d 1008, 1008 (Fla. 5th DCA 2010) (holding that defendant satisfied the prejudice prong of the Strickland test where the trial amounted to a credibility contest between defendant and the victim). Appellant claims that defense counsel knew from deposition testimony and investigation that Kent had seven felony convictions, including one for robbery, two for possession of cocaine, and one for trafficking in cocaine.1 At trial, Kent only admitted to three or four convictions and there was no discussion of their nature. It is well settled that proper impeachment using prior felony convictions, when the witness does not admit the number of convictions, requires introduction of certified copies of the judgments of those convictions. Peoples v. State, 576 So. 2d 783, 789 (Fla. 5th DCA 1991). Placing the certified copies in evidence would necessarily reveal the nature of the crimes for which Kent was convicted. Cummings v. State, 412 So. 2d 436, 438 (Fla. 4th DCA 1982). “[W]hen a witness's prior conviction record is entered into evidence, [counsel] may inquire into the number and nature of the witness's felonies.” Wilcox v. State, 143 So. 3d 359, 374 (Fla. 2014). Because counsel improperly attempted to impeach Kent by using documents from the clerk of court’s website in place of certified copies, Appellant correctly argues that defense counsel did not conduct proper impeachment regarding the number and nature of Kent’s prior convictions. In the case at hand, the postconviction court essentially concluded that the jury would not have been influenced by proof that Kent had twice as many felony convictions 1Where no evidentiary hearing is held on a rule 3.850 motion, this court must accept Appellant’s factual allegations to the extent they are not refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). 3 as Kent admitted having, even though one was for robbery and three were drug-related convictions. The records attached to the summary denial do not support that conclusion. The lower court did not explain how it could accurately predict what impact admissible, but unpresented, evidence might have on the jury’s decision. See Fletcher v. State, 177 So. 3d 1010, 1014 (Fla. 5th DCA 2015) ("[T]he trial court erred in concluding that there was no reasonable probability that the [witness testimony] would have changed the outcome of the trial . . . because, in reaching this conclusion, the trial court was essentially substituting its own conclusions for possible conclusions that could have been reached by the jury."). The postconviction court also determined that the jury was sufficiently informed that Kent was a drug dealer because Appellant’s counsel questioned Kent about being a dealer. Kent, however, vehemently denied the accusation. Had Kent been impeached by introduction of the certified copies of the convictions, the jury would have received evidence, other than Appellant’s self-serving statements, regarding whether Kent was a drug dealer. We find that the documents attached to the order of summary denial do not conclusively refute Appellant’s claim that he was prejudiced by ineffective assistance of counsel. We remand for the lower court to either attach records conclusively refuting Appellant’s claim or to conduct an evidentiary hearing. REVERSED AND REMANDED. LAWSON, C.J. and PALMER, JJ., concur. 4	{ "pile_set_name": "FreeLaw" }
722 F.2d 738 Rocque (Franklin)v.Lee (Mr. Raymond) NO. 83-1468 United States Court of Appeals,Fourth circuit. OCT 19, 1983 1 Appeal From: E.D.Va. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
111 F.Supp.2d 602 (2000) Alexis M. HERMAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. LOCAL 1695, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO, Defendant. No. CIV. A. 99-1860. United States District Court, E.D. Pennsylvania. August 16, 2000. 603 Anthony G. O'Malley, Jr., Philadelphia, PA, for Plaintiff. 604 William T. Josen, Philadelphia, PA, for Defendant. MEMORANDUM LOWELL A. REED, Jr., Senior District Judge. The plaintiff in this action, Secretary of the United States Department of Labor Alexis M. Herman ("Secretary"), alleges that defendant Local No. 1695 of the United Automobile, Aerospace & Agricultural Implement Workers of America ("Local") violated Title IV of the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 481, et seq., ("Title IV") during two elections held in May 1998 and March 1999. The Secretary seeks a court order voiding those elections and directing a new election to be held under her supervision, pursuant to 29 U.S.C. § 482(c). Both parties have filed motions for summary judgment. For the following reasons, the motion of the Secretary will be granted and the motion of the Local will be denied. I. BACKGROUND There is no dispute about the facts in this case. On March 5, 1998, the Local held elections for various union posts. The contest for the office of Financial Secretary-Treasurer, which the Secretary challenges in this action, resulted in the election of Barbara Peterson over incumbent Audrey Evans by a vote of 676 to 654. Two candidates for other offices protested the election to the International Union of the United Automobile, Aerospace & Agricultural Implement Workers of America ("International"). When the International failed to respond to the protest for 90 days, the two candidates filed a formal complaint with the Secretary of the United States Department of Labor ("DOL").[1] As is her duty under Title IV of LMRDA, the Secretary of Labor commenced an investigation into the complaint. See 29 U.S.C. § 482(b). The investigation was conducted by the district director of the DOL's Office of Labor-Management Standards, Debra J. Hall, and concluded on November 3, 1998. Hall informed the leadership of the Local and International of the following preliminary findings: 1. Local 1695 failed to provide Robert Leiss and Kenneth Hurd, bona fide candidates in the May 5, 1998 election, the right to inspect the membership list once within 30 days prior to the election in violation of Section 401(c) of the LMRDA. 2. Local 1695 funds were used to promote the candidacy of certain candidates in that the union equipment, i.e. telephones, were used by retirees to campaign for incumbent officers in violation of Section 401(g) of the LMRDA. 3. Local 1695 failed to maintain election records (ballots) for at least one year in violation of Section 401(e) of the LMRDA. (Defendant's Exh. B, Letter of Debra J. Hall, District Director of Office of Labor-Management Standards, Nov. 3, 1998). Subsequent discussions among Hall, and representatives of the International and the Local led to a settlement agreement that was memorialized in a letter written by the president of the International and acknowledged in a subsequent letter from the DOL. (Plaintiffs Exh. 2, Letter from Steven Yokich, President, International Union, United Automobile, Aerospace & Agricultural Workers of America, Dec. 21, 1998; Defendant's Exh. C, Letter of Debra J. Hall, District Director of Office of Labor-Management 605 Standards, Dec. 29, 1998). Under the voluntary settlement agreement, the International and Local acknowledged that the May 5, 1998, election was invalid, and requested that the Secretary of Labor supervise a new election of all union officers, "in accordance with Title IV of the LMRDA and, insofar as lawful and practicable, in conformity with the Bylaws and the UAW Local 1695 and the UAW International Constitution." (Plaintiff's Exh. 2, Letter from Steven Yokich, President, International Union, United Automobile, Aerospace & Agricultural Workers of America, Dec. 21, 1998). The letter from the International included language specifying "the right of the Secretary of Labor to continue said investigation and to initiate any legal proceedings based on violations of Title IV is to be reserved until April 13, 1999." (Id.). Furthermore, the letter contained a clause addressing interpretive disputes: The UAW further agrees that any dispute arising during the course of the supervised election, as to the legality or practicability of any election procedure and concerning all decisions as to the interpretation or application of Title IV or the LMRDA, shall be decided by the representative of the Secretary of Labor and shall be final. (Id.). The rerun of the Local election was slated for March 9, 1999. A dispute arose during the preparations for the supervised, rerun election. Soon after the May 1998 election, the Local conducted an audit of its finances, and discovered that Audrey Evans, who held the position of Financial Secretary-Treasurer and failed in her bid for re-election in May 1998, was severely delinquent in her payment of union dues. The auditor informed Evans of his discovery by letter on October 7, 1998, and the current Financial Secretary-Treasurer Barbara Peterson, who had defeated Evans in the May 1998 election, informed Evans that her delinquency prevented her from, among other things, voting in any election or holding union office. (Plaintiffs Exh. 5, Letter from Barbara Peterson, Financial Secretary-Treasurer, UAW Local 1695, Oct. 19, 1998). The complete findings of the audit were reported to the officers and members of the Local on November 5, 1998. Included on the second page of that report was the auditor's finding that Audrey Evans was a delinquent member "not entitled to received strike insurance benefits in the event of a strike, attend union meetings, vote in an Union election or serve the Union in any capacity." (Plaintiffs Exh. D, Report of Audit of UAW Local 1695, Nov. 6, 1998, Exh. 1 to Deposition of David Shell III, Auditor). Evans was the only Local union member found to be delinquent. (Id.). At a pre-election conference conducted on February 2, 1999, DOL representative Debra Hall raised the issue of Audrey Evans' dues delinquency and its impact on the election for Financial Secretary-Treasurer. Because Evans was not a member in good standing due to her failure to pay dues, she could not hold any office, even if elected. Hall argued that the nominations for Financial Secretary-Treasurer should be reopened to select a viable candidate to run in opposition to Barbara Peterson. Eunice Stokes, assistant to the president of the International, responded that there were no flaws in the nominations process for the May 1998 election, and therefore the nominations were closed and could not be reopened. A disagreement ensued, and "it was decided that the UAW International and the Department [of Labor] agreed to disagree, deferred the issue to the Secretary of Labor and agreed to address the issue at a later date." (Defendant's Exh. D, Pre Election Conference Summary, Feb. 2, 1999, at 2). Subsequent discussions bore no fruit; the union refused to abide by the Secretary's insistence that nominations be reopened and a new election take place without Evans on the ballot.[2] 606 The election went ahead on March 9, 1999, despite the objections of the Secretary of Labor, despite the fact that Evans was known to be no longer a member in good standing eligible to hold office, and despite Evans' insistence that she be removed from the ballot.[3] Barbara Peterson was re-elected over Audrey Evans by a tally of 881-662. On April 13, 1999, the Secretary of Labor commenced this action, alleging that the Local had violated the provisions of Title IV of LMRDA, 29 U.S.C. § 481(e),[4] and the terms of the December 21, 1998 voluntary settlement agreement by allowing Evans to remain on the ballot for the March 1999 rerun despite her lack of good standing. The Secretary seeks to void both the May 1998 election and the March 1999 rerun election solely as to the office of Financial Secretary-Treasurer; to reopen nominations for that position under the supervision of the Secretary of Labor; and to have the Court enforce the terms of the December 1999 settlement agreement. II. ANALYSIS In deciding a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, "the test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.1999) (citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994)). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, "summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 250, 106 S.Ct. 2505. On a motion for summary judgment, the facts should be reviewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, and must produce more than a "mere scintilla" of evidence to demonstrate a genuine issue 607 of material fact and avoid summary judgment. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992). A. Title IV of the Labor Management Reporting and Disclosure Act Among the seven sections of LMRDA, Title IV plays the unique role of preserving "free and democratic elections" in labor unions. Wirtz v. Glass Bottle Blowers Ass'n Local 153, 389 U.S. 463, 470, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968).[5] To that end, Congress granted the Secretary of Labor the exclusive power to enforce the terms of Title IV. See Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousmen & Packers Local 82 v. Crowley, 467 U.S. 526, 549, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984). In Calhoon v. Harvey, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964), the Supreme Court described the Secretary's Title IV enforcement role in this way: Title IV sets up a statutory scheme governing the election of union officers ... and attempting to guarantee fair union elections in which all the members are allowed to participate.... It is apparent that Congress decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest.... Reliance on the discretion of the Secretary is in harmony with the general congressional policy to allow unions great latitude in resolving their own internal controversies, and, where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts. Id. at 140, 85 S.Ct. 292. The Secretary's broad, discretionary enforcement authority under Title IV is triggered when a union member who has exhausted her claim at the union level timely files a complaint with the Secretary. See 29 U.S.C. § 482(a). The Secretary then investigates the claim and, if she finds probable cause to believe that Title IV has been violated, may file suit in a district court. See 29 U.S.C. § 482(b). If a court finds that a violation of Title IV took place, and that that violation "may have affected the outcome of an election," the court must void the election and order a new election to be held under the supervision of the Secretary of Labor. See 29 U.S.C. § 482(c). B. Status of the Case and Burden of Proof The first issue I must address is the procedural posture of this case, as it determines which party bears the burden of proof and what that burden is.[6] This case has not followed the usual trajectory of a Title IV case; the Court did not become involved after the first election and order a new election supervised by the Secretary of Labor as is typical under § 482(c). Instead, the parties entered into an agreement which required a new election to be held under the supervision of the Secretary.[7] 608 What was the effect of that settlement agreement? I conclude that the voluntary settlement was akin to a court order directing the Secretary to supervise a union election after concluding that a violation had taken place. The settlement's impact on the election process was identical to a Court order pursuant to § 482(c); it required a new election to be held under the supervision of the Secretary of Labor. Furthermore, the settlement agreement closely tracked the language of the Title IV language addressing court-ordered elections, 29 U.S.C. § 482(c), requiring "a new election under the supervision of the Secretary ... and insofar as lawful and practicable, in conformity with the Bylaws of UAW Local 1685 and the UAW International Constitution." (Plaintiffs Exh. 2, Letter from Steven Yokich, President, International Union, United Automobile, Aerospace & Agricultural Workers of America, Dec. 21, 1998).[8] Thus, I conclude the March 1999 election was virtually the same as a court-ordered rerun election, supervised by the Secretary of Labor. Courts routinely issue orders for such elections under Title IV, and the law is clear on the matter. Title IV provides that upon the completion of a court-ordered election supervised by the Secretary, the Secretary shall "promptly certify to the court the names of the persons elected, and the court shall enter a decree declaring such persons to be officers of the labor organization." 29 U.S.C. § 482(c). However, "[t]he Secretary has an obligation to refuse to certify a supervised election when it is apparent that the election was conducted in violation of the law." See Martin v. International Brotherhood of Teamsters, Local 996, No. 89-241, 1991 WL 346365, 1991 U.S. Dist. LEXIS 21627, at 5 (D.Ha. Aug. 12, 1991) (citing Brennan v. Sindicato Empleados De Equipo Pesado, 370 F.Supp. 872, 880 (D.P.R. 1974)). That is essentially where this case now stands: the Secretary refuses to certify the results of an election that was to be held under her supervision. Because Title IV relies on the "special knowledge and discretion of the Secretary for the determination of both the probable violation and the probable effect, ... the reviewing court is not authorized to substitute its judgment for the decision of the Secretary...." Dunlop v. Bachowski, 421 U.S. 560, 571, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). Thus, the Secretary's determination as to whether or not to certify an election that was to be supervised by her is subject to only an arbitrary and capricious standard of review, and will only be overturned if "manifestly arbitrary or irrational." Brock v. Metro. Dist. Council, 653 F.Supp. 289, 296 (E.D.Pa.1986) (citing Brennan v. United Auto., Aerospace & Agricultural Implement Workers Local 551, 486 F.2d 6, 8 (7th Cir.1973)); Martin v. Int'l Org. of Masters, Mates and Pilots, 786 F.Supp. 1230, 1236 (D.Md.1992); see 609 also Dunlop, 421 U.S. at 571, 95 S.Ct. 1851; but see Donovan v. International Brotherhood of Teamsters, etc., Local 299, 515 F.Supp. 1274, 1286 (E.D.Mich.1981) (holding that when refusing to certify an election he supervised, the secretary must do more than show that his decision was not arbitrary and capricious, and instead must prove that there were in fact violations that may have affected the outcome of the supervised election).[9] C. The Secretary's Interpretation Thus, the question before me today is whether it was arbitrary or irrational for the Secretary to conclude that a violation of Title IV and the UAW International Constitution took place that may have affected the outcome of the March 1999 election the Local. After a thorough review of the record and consideration of the arguments of both parties, I conclude that the Secretary's determination was neither arbitrary nor capricious; to the contrary, it was rational and reasonable. The representative of the Secretary, Debra Hall, interpreted the UAW International Constitution, Article 16, § 8,[10] which provides that a dues delinquency effects an automatic removal of a union member's good standing, and Article 38, § 3, which provides that a union member must be in good standing to be eligible for a union member,[11] to prohibit a union member delinquent in her dues from running for or holding union office. Because there was no question that Audrey Evans had not paid her dues, Hall concluded that Evans was ineligible to hold office, and asked that Evans' name be removed from the ballot and nominations for the position of Financial Secretary/Treasurer be reopened. The International and the Local refused, arguing on the basis of Article 38, § 2 of the UAW International Constitution, that once the nominations process was closed, the names of the nominees must appear on the ballot unless something was amiss with the nominations process, and that Evans could only have been rendered ineligible to hold office through the procedures set forth in Article 48, § 5 of the UAW International Constitution. Because no one knew of Audrey Evans' dues delinquency at the time of her nomination for the May 1998 election, the International and Local contended, she was properly nominated and therefore required to appear on the ballot, despite the fact that she was later discovered to be ineligible to hold office. Despite the objections of the Secretary's representative, the Local and the International did not reopen nominations and held the election with Evans on the ballot. I conclude that the interpretation of the Secretary is not unreasonable or irrational. The UAW International Constitution provides that a union member is "automatic[ally]" no longer in good standing when she becomes delinquent on her dues, and that a member must be in good standing to hold union office. There is no dispute that Audrey Evans was delinquent on her dues, and therefore she was no longer a member in good standing and therefore ineligible to hold office. The Secretary could reasonably have determined that to hold an election where one 610 of the two candidates was ineligible for the office would deprive union members of a meaningful opportunity to elect a union officer and essentially render the election a sham. The Secretary also could have reasonably concluded that the UAW International Constitution provision requiring validly nominated individuals to appear on the ballot did not account for a circumstance in which one of the nominated parties was ineligible to hold office.[12] The reasonableness of this view is supported by two district court cases in which courts held it to be a violation of Title IV to allow an ineligible person to remain on a ballot. See Herman v. American Postal Workers Union, 995 F.Supp. 1 (D.D.C. 1997) (invalidating election in which a union member who was a convicted criminal, and therefore ineligible for union office, remained on the ballot); DeArment v. Laborer's Int'l Union Local 563, 751 F.Supp. 1364 (D.Minn.1990) (holding that Title IV was violated when a dead candidate was left on ballot).[13] Thus, I conclude as a matter of law that neither the Secretary's view that Title IV and the UAW International Constitution would be violated by the conduct of an election involving an ineligible candidate (such as Audrey Evans), nor her consequent demand that the nominations for Financial Secretary-Treasurer be reopened, was arbitrary. Likewise, I conclude that the Secretary's determination that keeping Audrey Evans on the ballot may have affected the outcome of the election was neither arbitrary nor capricious. Once the Secretary makes out a prima facie case of a violation of Title IV (and I conclude she has) the burden shifts to the union to show that the violation had no effect on the outcome of the election. See Wirtz v. Hotel, Motel & Club Employees Union Local 6, 391 U.S. 492, 506-07, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968). The union has made no effort to show that its refusal to reopen nominations for the office of Financial Secretary-Treasurer, and its decision to hold the election despite the fact that one of the two candidates was known to be ineligible to hold office, had no effect on the March 1999 election's outcome. Though it is not her burden, the Secretary has produced evidence that others would have vied for the position of Financial Secretary-Treasurer had Audrey Evans not run. (Plaintiff's Exh. 13, 14, and 15, Affidavits of Ruth Ann Donchez, Emily Whiteman, and Jean Agudio). Thus, I conclude that the Secretary has shown that the outcome of the March 1999 election may have been affected by a violation if Title IV.[14] 611 D. Exhaustion Defendant argues that the Secretary may not bring this suit because the violation she challenges was not exhausted as required by Title IV, 29 U.S.C. § 482. Invoking the Supreme Court's holdings in Wirtz v. Laborer's Int'l Union, 389 U.S. 477, 88 S.Ct. 639, 19 L.Ed.2d 716 (1968) and Hodgson v. United Steelworkers of America, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), defendant contends that the Secretary may prosecute violations only after they are first raised to the union by the complaining union member and the union is given an opportunity to remedy the violation.[15] The Secretary may not, argues the defendant, challenge any violation she discovers during her investigation of the violations raised in the complaint of the union member. Because is clear that the violation the Secretary is attempting to prosecute is wholly unrelated to the matters raised in the complaint that triggered the Secretary's investigation, see supra text, at 2, thus, defendant concludes, the Secretary is acting beyond the scope of her authority in bringing this suit. However interesting defendant's argument may be, it is inapposite in the face of the settlement agreement and the procedural posture of this case. The Secretary is not asserting a basic violation of Title IV; as noted above, the Secretary is attempting to enforce a voluntary settlement agreement and refusing to certify an election she was required to supervise on the ground that the election contained irregularities and the union refused to defer to her supervisory authority. Thus, the question is not whether the violation alleged by the Secretary was exhausted; the *612 case is well beyond that stage. Rather, the question is whether the Secretary's determination that the election took place in a manner in consistent with Title IV and the settlement agreement, and the Secretary's refusal to validate the election on those grounds, were arbitrary and capricious. For the reasons discussed above, I have concluded that the Secretary's position is neither arbitrary nor irrational; accordingly, defendant's exhaustion contentions are without merit. III. CONCLUSION There are no factual issues remaining in this case. The parties do not dispute the factual record; they simply disagree over the law. I have concluded as a matter of law that the Secretary's determination that the March 1999 election the union agreed that she would supervise was carried out in a manner inconsistent with Title IV of LMRDA was neither arbitrary nor capricious. Therefore, the Secretary is entitled to judgment as a matter of law, and the motion of the Secretary for summary judgment will be granted. For the same reasons, the motion of the Local for summary judgment will be denied. The Secretary asks this Court to declare the May 1998 and March 1999 elections void and to direct the union to hold a new election for the position of Financial Secretary-Treasurer under the supervision of the Secretary. I believe it is unnecessary to void the March 1998 election, because the International and Local already have conceded that violations took place that nullified the election and warranted a rerun. Therefore, I will declare only the March 1999 election void and will order the Local to reopen nominations for the position of Financial Secretary-Treasurer and hold new elections for that position under the supervision of the Secretary of Labor. NOTES [1] Under the exhaustion requirements of Title IV, a member of a labor organization may file a complaint with the Secretary of Labor after invoking available union remedies "without obtaining a final decision within three calendar months after their invocation." 29 U.S.C. § 482(a)(2). There is no dispute that the candidates heard nothing from the union for more than 90 days after filing their complaint, and thus the claim was properly exhausted under § 482. [2] On March 5, 1999, approximately six months after the audit revealed the delinquency of Evans' dues, the president of the International was notified by an inter-office memorandum that Evans had falsified union records to make it appear that she had paid up on her dues, when in fact, for six years, she had paid little or nothing in the way of dues. (Plaintiff's Exh. 8, Letter from Ruben Burks, International Secretary/Treasurer, Mar. 5, 1999). The memorandum recommended initiation of procedures to prevent her from seeking or holding office in the future. Three days after the election, International president Stephen P. Yokich informed Evans that she was under investigation for financial misconduct. (Plaintiff's Exh. 9, Letter of Stephen P. Yokich, Mar. 12, 1999). On March 23, 1999, the International president declared Evans ineligible to hold or seek any position in the Local Union. (Plaintiff's Exh. 10, Letter of Stephen P. Yokich, Mar. 23, 1999). [3] A month before the election took place, Evans informed the Department of Labor and the International that she had no desire to appear on the ballot in the rerun election. (Plaintiff's Exh. 6, Letter of Audrey Evans, Feb. 9, 1999). [4] 29 U.S.C. § 481(e) reads, in pertinent part, "In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office.... The election shall be conducted in accordance with the constitutional and bylaws of such organization insofar as they are not inconsistent with the provisions of this subchapter." [5] In its hearings leading up to the passage of LMRDA, Congress found "from recent investigations in the labor and management fields, that there have been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct" at such a level that supplemental legislation was necessary to preserve the "necessary protection of the rights and interests of employees and the public generally as they related to the activities of labor organizations...." 29 U.S.C. § 401(b). [6] Surprisingly, neither party addressed the critical threshold question of the burden of proof in their briefs. [7] The parties offer divergent perspectives on where this case now stands. The Secretary considers this case to be akin to a breach of contract case, in that the Local and the International violated the settlement agreement by refusing to abide by the determination of the Secretary's representative that the nominations for Financial-Secretary/Treasure should have been reopened and the election should not have been held with Audrey Evans on the ballot. The union argues that the case is a basic Title IV case brought in the first instance by the Secretary for a violation discovered as a result of a union member's complaint. Neither perspective is particularly accurate or helpful. The Secretary has not asserted a breach of contract claim (there is no such thing under Title IV); she has asserted a claim under the Title IV enforcement authority vested in her by 29 U.S.C. § 482. The union's argument is equally misguided; to interpret this case as a basic Title IV case would be to ignore the decisive effect of the settlement agreement. I believe the perspective that is most consistent with Title IV, and that provides the Court with the most guidance as to the burden of proof and the appropriate analysis, is the one spelled out in the text: that this case is at the post-election certification stage of a typical Title IV case, and the Secretary has refused to certify a supervised election. From this perspective, we are on familiar ground, as numerous other courts have addressed the proper approach to such circumstances pursuant to 29 U.S.C. § 482(c). [8] The nearly identical language from § 482(c) reads, "the court shall ... direct the conduct of a new election under supervision of the Secretary and, so far as lawful and practicable, in conformity with the constitution and bylaws of the labor organization." [9] The burden in this case thus differs, both with respect to the level of the burden, from a typical Title IV case brought in the first instance, under which the Secretary bears the burden of proving by a preponderance of the evidence that a violation of 29 U.S.C. § 481 took place. See 29 U.S.C. § 482(c); Wirtz v. Hotel, Motel & Club Employees Union Local 6, 391 U.S. 492, 506-07, 88 S.Ct. 1743, 20 L.Ed.2d 763 (1968). [10] Art. 16, § 8 of the UAW International Constitution provides: Any member who has not paid her/his dues during the calendar month in which they are due shall automatically become delinquent except as otherwise provided in this Article. In order to regain good standing membership, s/he must fully reinstate her/himself in Accordance with Section 9 of this Article. [11] Art. 38, § 3 of the UAW International Constitution requires, among other things, that a member be in good standing to be eligible to hold union office. [12] The Local also argued to the Secretary, and argues to this Court, that Evans could only have been rendered ineligible for office through the union procedure set forth in Article 48, § 5. Article 48 is aimed at financial misconduct and misuse of union funds, and establishes procedures by which such violations of the union trust may be remedied, including the reimbursement of funds and suspension from union office or candidacy. Article 48, however, does not address the delinquency of dues payments, and it cannot be read to be the exclusive recourse when a member dues balance is in arrears. As discussed above, Article 16, § 8 and Article 38, § 3, directly address the issue of dues delinquency and appear to provide a remedy; the automatic ineligibility of a union member. Thus, it is reasonable not to view Article 48 as the exclusive remedy for dues delinquency. In fact, it would be reasonable to interpret Article 48 not to apply to a dues deficit at all. I conclude that the Secretary's decision that Article 48, § 5, was not the sole means by which Evans could have been rendered ineligible to hold office was neither arbitrary nor capricious. [13] If the Secretary determined that the election was being held in a manner inconsistent with the constitution and the bylaws of the Local, then she would have no choice but to conclude that the election was being held in violation of Title IV. See 29 U.S.C. § 481(e). Moreover, the Secretary could reasonably conclude that under the language of § 481(e), only members in "good standing" are eligible for election. See id. [14] The Secretary's interpretation is entitled to even greater deference in this case than in a typical Title IV election certification situation, because both parties agreed that interpretive controversies would be decided by the Secretary's representative. (Plaintiff's Exh. 2, Letter from Steven Yokich, President, International Union, United Automobile, Aerospace & Agricultural Workers of America, Dec. 21, 1998). The Local and the representative of the Secretary had a dispute over whether it was legal or practicable to conduct an election in which one of two candidates was indisputably ineligible to hold union office. Though the Local was required to defer to the judgment of the Secretary's representative as to the dispute, the Local did not defer; rather, it held an election under circumstances that the Secretary's representative deemed a violation of the UAW International Constitution and Title IV. The Local's protestations that the Secretary and this Court, should defer to the Local's interpretation of their constitution and bylaws are completely without merit in the face of the agreement that requires the Local to defer to the Secretary's representative. [15] In Wirtz, the Court held that the Secretary of Labor had the authority to prosecute unexhausted Title IV violations identical to those raised in the complaint with the union that took place at times other than those specified in the complaint. In Hodgson, the Court held that the Secretary did not have the power to challenge unexhausted violations that were "wholly unrelated" to those alleged in the complaint before the union when the complaining union member knew of the violation but did not report it to the union. This case involves a factual circumstance unlike that in Wirtz or Hodgson, and thus presents a question not answered by the narrow holdings of those cases: may the Secretary challenge any unexhausted violation dissimilar to those raised before the union and not known to a complaining union member? The Secretary argues that Wirtz and Hodgson stand for the proposition that the Secretary may prosecute any violation of Title IV she uncovers, so long as that violation was not known to the complaining union member. I am not certain this is true. The Secretary's interpretation would have the effect of reading the exhaustion requirement out of the statute. See Hodgson, 403 U.S. at 340, 91 S.Ct. 1841 ("Exhaustion would be accomplished given any sort of protest within the union, no matter how remote the complaint made there from the alleged violation later litigated."). I fail to see why an unexhausted violation that was unknown to the complaining union member should be any more worthy of prosecution by the Secretary than an unexhausted claim of which the complaining union member knew. Whether the violation is known or unknown to that union member, it has not been presented to the union and the union has had no opportunity to remedy the violation prior to the Secretary's involvement. Unless an unexhausted violation is sufficiently similar to those raised in the union member's complaint to give the union notice, as in Wirtz, it seems to me that the union should be provided with notice and an opportunity to remedy the violation prior to an the commencement of an investigation and civil action by the Secretary.	{ "pile_set_name": "FreeLaw" }
83 So.3d 712 (2012) CARRAZANA v. TUCKER. No. 1D10-6418. District Court of Appeal of Florida, First District. March 5, 2012. DECISION WITHOUT PUBLISHED OPINION Affirmed.	{ "pile_set_name": "FreeLaw" }
224 S.C. 74 (1953) 77 S.E.2d 354 STATE v. CORN. 16778 Supreme Court of South Carolina. September 10, 1953. 75 76 Messrs. Theodore & Alexander, of Columbia, for Appellant. Mr. Robert W. Hemphill, Solicitor, of Chester, for Respondent. 77 Sept. 10, 1953. TAYLOR, Justice. This appeal arises out of appellant's motion for a new trial on after discovered evidence which was refused. The appellant, Nathan T. Corn, was first tried and convicted on December 6, 1948, of the crime of murdering George C. Beam, Jr., and sentenced to die in the electric chair. He successfully appealed to this Court and because of certain errors was granted a new trial. 215 S.C. 166, 54 S.E. (2d) 559. In November, 1949, he was again put on trial which resulted in a verdict of "guilty with recommendation to mercy" and was sentenced to imprisonment in the South Carolina State Penitentiary for life. At both trials he was represented by able and experienced counsel. In May, 1952, appellant, through counsel other than that which represented him during the trials, served notice of motion upon the Honorable Robert W. Hemphill, Esquire, Solicitor, that he would move before the Honorable Joseph R. Moss, Judge of the Sixth Judicial Circuit, for a new trial on newly or after discovered evidence. The matter was heard by Judge Moss on July 11, 1952, solely upon affidavits presented by attorneys. In the course of the hearing, defendant's counsel requested and was granted ten days additional time to file other affidavits with respondent being permitted to file counter affidavits. Both sides availed themselves fully 78 of the opportunity and numerous affidavits were filed. This was in line with the decision of this Court in State v. Jones, 89 S.C. 41, 71 S.E. 291. Subsequently, on August 20, 1952, Judge Moss filed his order refusing the motion for a new trial and it is from this order that the Defendant now appeals. The first question for determination is whether or not at the hearing of the motion for a new trial on newly or after discovered evidence the Court erred in refusing to permit the defendant to be present in person at the hearing, in violation of the Sixth Amendment to the Constitution of the United States which provides that one charged with a crime is entitled "to be confronted with the witnesses against him" and Article 1, Section 18, of the South Carolina Constitution of 1895, which embodies a similar provision. The notice served by appellant was to the effect that such motion would be based upon the affidavits attached thereto and such other evidence produced at the hearing. The record does not disclose that there was contemplated either by appellant or his counsel that the motion would be heard on anything other than affidavits. In appellant's affidavit he asked only to be present in person but did not ask to be heard, on the other hand, he purported to know nothing about the alleged confession. Appellant's affidavit submitted with the original motion made no request to be present and there was no contention that there was any new or other evidence that appellant could submit if he were present; and at no time was any request made by appellant to be heard in person on the motion, the statement being: "your deponent is informed and believes that he is entitled to be present in person at such hearing on July 11, 1952, and that your deponent, as the accused, and moving party, has a right under the Constitution of the United States and the Constitution of the State of South Carolina of 1895 to be present at such hearing." What transpired at this hearing could under no circumstances be termed a trial or part of a trial. No indictment was proffered and no testimony taken 79 by examination or cross-examination, no jury selected, charged or sworn, and of course, by no stretch of the imagination could the proceeding be termed a portion of the trial at which he was sentenced, State v. Haines, 36 S.C. 504, 15 S.E. 555; State v. Atkinson, 40 S.C. 363, 18 S.E. 1021; State v. Farne, 190 S.C. 75, 1 S.E. (2d) 912. The following statement from State v. Suber, 89 S.C. 100, 71 S.E. 466, 468, affords some light on this subject: "Mr. Greenleaf in his admirable work on the Law of Evidence in volume 1, page 1620, subd. 4, observed: `Does the hearsay rule i. e., as involving the right of cross-examination, and incidentally of confrontation, of witnesses require that in criminal cases (where the constitution secures the right, and therefore overrides any statutes regulating views), the defendant should be present at a view? The requirement of confrontation implies merely, that the party shall have the opportunity of cross-examining witnesses, but merely the inspection of the thing itself, which is the subject of the controversy; so that the constitutional principle cannot properly apply to render improper a view at which the accused is not present. This is the result reached by the better judicial opinion; but there are courts which take the contrary view.' "The principles we deduce from the authorities are (1) that in a constitutional sense, the viewing of the premises by the jury is not the taking of testimony; (2) that the prisoner is not thereby deprived of the right to confront or cross-examine any witness in the case; and (3) that it cannot reasonably be supposed that the prisoner's rights would in any respect be prejudiced by the absence of the judge, if the jury merely inspected the locality. Of course, if the orders of the presiding judge are disobeyed to the prejudice of the defendant, the court would take such steps as would be deemed necessary to protect his rights." The foregoing is supported by State v. Faires, 125 S.C. 281, 118 S.E. 620, 621, wherein this Court said: 80 "Neither is defendant's personal presence at the hearing of such motions essential within the meaning of the common-law rule, which affords to a defendant charged with a felony the right to be personally present at his trial. * * * As the trial, in the sense contemplated, must have necessarily, been terminated when a motion for new trial or in arrest of judgment is made * * , so the trial of the issues joined between the defendant and the state which is the trial sought to be changed as to venue or continued by these motions has not commenced and is necessarily still pending when the motions are made. * * "He was deprived by his absence of no right, either technical or substantial, * * ." Analogous is the case of Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 335, 78 L.Ed. 674, 90 A.L.R. 575, in denying the accused's demand that he be present at the viewing of the scene by the jury: "A fertile source of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form, though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence. A defendant in a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel. Powell v. Alabama, [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527], supra, and cross examine his accusers, Dowdell v. United States [221 U.S. 325, 31 S.Ct. 590, 55 L. 5d. 753], supra; Com. v. Slavski [245 Mass. 405, 140 N.E. 465, 29 A.L. R. 281], supra. Cf. Felts v. Murphy, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689. Let the words `evidence' and `trial' be extended but a little, and the privilege will apply to stages of the cause at which the function of counsel is mechanical or formal and at which a scene and not a witness is to deliver up its message." 81 Applying the foregoing principles to the question at bar, it would seem that (1) this was not a trial and no part of a trial; (2) there is no affidavit of the defendant or request of defendant to be heard in person; (3) that the affidavit of defendant himself stated that he knew nothing of the claimed confession about which this motion revolved; (4) there was neither notice of, nor effort to, cross-examine any witness, no notice of request for, or effort to examine or cross-examine any of the persons whose affidavits were submitted pursuant to the original notice of motion. It, therefore, is the conclusion of this Court that the presence of defendant was neither necessary nor material and that the fact that he was not present deprived him of no substantial or constitutional right. In an appeal from an order denying a motion for a new trial, it is settled by numerous cases that this Court may not nicely weigh the testimony upon which such a motion is based; that power rests in the Circuit Court, for it has at hand the instrumentalities with which to exercise the power, and that Court's settled judgment ought not to be impeached except for errors of law, or for an abuse of its discretion. State v. Griffin, 100 S.C. 331, 84 S.E. 876. The hearing Judge, being bound by the foregoing principle of law, was required to look into the nature of the motion and the character of the evidence to support it. This motion originally revolved around a typewritten statement on each page of which appeared the signature of W.J. Corn, the deceased father of the appellant, Nathan T. Corn. The uncontradicted facts appeared to be that on May 20, 1952, one of appellant's present attorneys not the one who represented him at the other two trials, his mother, Mary Corn, one Harry E. Crump and J.L. Lingerfelt, appeared at the office of the Honorable Robert Hemphill, Solicitor, and presented him with an envelope on which was written in longhand, "give this to a good lawyer and have him check 82 everything good the inclosed statement is the true facts in this case wrote and signed by me W.J. Corn." Inside of this envelope was another envelope, designated No. 2, on which were the signatures of W.J. Corn, Rev. Harry Erskine Crump, J.L. Lingerfelt and C.A. Bush and enclosed in this envelope was the following two page typewritten statement which, at the request of Mrs. Corn, the Solicitor opened and read and then passed to appellant's attorney: "I have a owful burdon i have carred every sence the death of George Beam. I could not tell no one not even my good wife, but I am soon to go out to meet a Just God, I cant meet him with this on my heart, I cant die with out making this confession, its always been a mystry who killed George Beam. well I am the Man. on satarday night of June (5 1948 George Beam: come into my place, that was my filling station on the charlet hieway and was so drunk he could harly walk he demanded of me to let him have some money i said george you owe me so much i just cant let you have any more untell you pay me that you owe me. he then cursed me with an-Oth and said if you dont let me have it i will kill you and take it all out of the cash drower and what you have two, I told him to get out of my place he turneb and started out and as he went out he said I'll get you old man; he went out and got in a car that was waiting on him in frunt of my place some man was driving the car as he drove off i seen it had a North Carolina tag on the car thay went back toward Rock Hill i was so mad I grabed this German Luger Pistol the oficers took from my home I got in the red pick up truck and took off after them i followed them to the Bulk Plant I parked out side the gate untell I seen george get out of the car and went in at the ofice door this car drove off I drove the truck on in side and up to the plat-form of the Bulk-plant. I went in at the sliding door george was coming from thefrunt ofice I said here's the old man and i am redy to have it out and as he started by me i grabed him 83 by the colar and said you are going to pay me now. we are going to settle up once and for all. he said i dont owe you any thing and i wont pay you any thing that made me so darn mad knowing he owed me as much as he did i had got up the coldest nights ever come and let him in and he would just want to get a little money. then he turned toward the sliding door he cursed me againfor a sunof a-bitch and i said George if you dont pay me now you will never live to pay no one. that is when (I W.J. Corn) shot george beam in the back and "/s/ W.J. Corn ___________ W.J. Corn "Killed him with this German Luger Piston I crated the body in the bulkplant i hurred fast as possible i was afraid his friend in the N.C. car would come back after George i loded the crate on the red truck by rolling it over untell i could get it in the truck i then cleaned up all the blood all of the floor with some old waste and rags as i new it would haft to be cleaned up at once or it might not come up, so i got it all cleaned up i throad the waste and every i had used in the truck i then took off at all the red truck would make to Crowders Creak. i drove across the bridge and turned around and drove back up on the bridge and as close as possible to the edge of that railing on the bridge i stopped i rolled the crate over one time and it hit the edge of the truck. then i rolled it one more time and it lay on the railing of the bridge. i droped it in the water and i got away from there soon as i could i went back to my filling station on the charlett hie-way but did not open up any more that night but i drove the truck around to the back of my house and cleaned the truck and burnt all of that waste and rags i had used to clean up the blood with so as that if my wife did go to put any thing in the trash can she would not find-them. on sunday morning of June (6-1948 i went back to the bulk-plant to see if i had left 84 one stain for i did not want any Innonce person Involved in this criam. Nathan T. Corn my son is Innocent of this crime I am sarry for all the truble i have coused; But God has delivered my soul and i will soon go out to meet my maker; "/s/ W.J. Corn ___________ W.J. Corn "I am the man that shot and killed George Beam on June (5-1948 with the German luger pistol No. S.H.2025-410. "I Swear that the above statement was wrote by me and the facts contained there in are true in this case. "/s/ W.J. Corn ___________ W.J. Corn "This was Rot.12,1951" According to the affidavits of Mary Corn, Harry Crump, J.L. Lingerfelt, and one Bush none of them had ever seen the typewritten statement. Crump, Lingerleft and Bush (whose names appeared on envelope No. 2) said they had signed the envelope approximately three weeks before W.J. Corn died at the request of Mary Corn and that there was nothing in the envelope at the time. Crump and Lingerfelt stated that when they signed their names on the envelope they were of the opinion that W.J. Corn was making provisions for the care of Mrs. Corn after his death as he stated that "he had the papers in order and Mrs. Corn would be taken care of." Subsequent to the handing of these two envelopes to the Solicitor, the matter was taken up with Deputy Sheriff Allison and Lt. Fred Wolfe who proceeded to contact S.C. Penitentiary officials, Capt. Ashemore and Officers Dawkins and Thompson. Appellant's cell was searched and the following letter in an envelope postmarked May 25, 1952, Rock Hill, S.C. was found: 85 "226 Columbia Ave Rock Hill, S.C. May 25-1952 "Mr. Nathan T. Corn 1515 Gist Street Columbia, South Carolina "Dear son, this lonly sabith after noon i will try to write you a few lines in answer to your i received friday glad to hear from you and that you was well. I injoyed the visit with you yestarday but yet it was sad of course we had to talk about loosing poor dady. but son he is at rest and is out of his suffering but Oh how lonly and sad am I in this old dard world senly alone. Son Juney and his wife stayed with me last night and thay have just left and gone home and i am alone, gess sis will be over some time this after noon. Nathan i intended to come down this morning but i was not able to make the trip and harrison promised me he would go and as usel grace was gone down in the contry to her mother's and harrison and boby was alone and thay sleep untell it was two late to make the trip down there. but nathan i have talked to him and i dont think you have any thing to werry about. he had kinly got settled sence he went back to work last week. so he is all right i just come plain and told him what i new and all i new. so he was kinly got recknised. and Nathan i went to see Mr Kale yestarday and i told him what you said and he told me he was going over to see you yestarday eving and would have a long talk with you/ but i never got to see any of the papers you ask me to see he said they had not been sent to him yet but he was looking for then in the mail yestarday he ask me if i ever stayed up and keep the filling station open at night when you and Dady was away i told him No that you or dady would never let me stay open at night with out one of you was there. Oh he ask me a few question but i could gladly answer every one, so i was told that i would get a copy of every thing the first of the week. so i hope i do i just cant understand. 86 well son i have just been out to the Cemetery and looked at dady's grave. i am sarry son i did not bring the pictures in with me yestarday for you to see. I had then madee for you. i have two of dady in the castet and one with the castet closed and of the flowers and son he just looks as if he was redy to speak to me i would not take any thing for then. i just thought that it would be the only way you would ever have of knowing how your Dady was put away. but son when you see it you will know i put him away nice people have spoke of how nice i put him away. but that was the last thing i could do for him. it cost me && 760.21 but i dont mind it i only had five hundred inshurence on him but i will get it all payed. I am going back to work to marrow Monday night if any one wants to call me thay will haft to call me after four in the after noon, or at seven thirty in the morning befrew i go to bed. well son gess i will stop as i must write Roy a few lines, so keep your head up and if you ever did try to prayer do son Prayer for your mother, so answer soon and Lots of love from Mother God bless you son, "fron Mary Corn" At the first hearing in York on July 11, and subsequently during the time allotted for additional affidavits there was no affidavit denying the authenticity of this letter. It further appears that there was no denial that the statement was signed by W.J. Corn or that the letter was written by Mary Corn to Nathan Corn at the State Penitentiary. During the hearing, the Court's attention was invited to numerous similarities and peculiarities contained in the statement and the letter when compared. These similarities appear as follows: 1. The use of small "i" in both documents. 2. The lack of use of capital letters when spelling days of the week in both. 3. The comparison yestarday in the letter and Satarday in the statement showing the use of "a" in the second syllable of each. 87 4. The spelling of the word "until" as "untell" in the letter from Mrs. Corn and written untell in the statement. 5. The spelling of the word "sorry" as "sarry" in the letter of Mrs. Corn and the spelling of the same word as "sarry" in the statement. 6. The use of the word "two" for "too" in the letter and in the statement. 7. The use of the word "new" for "knew" in the Mary Corn letter and in the statement. 8. In the statement between lines 5 and 6 there is typed in "June (5 1948 George Beam," indicating the statement was copied from a prepared proof. 9. The lack of punctuation between sentences in both the letter and the statement. 10. The fact that most sentences in both letter and statement begin with "i". 11. The use of the dash () in the date on the letter and the inserted date on the statement. 12. The use of the spelling "sence" in the letter and in the statement for the word "since". 13. The use of the spelling "redy" for ready in both letter and statement. 14. The use of the spelling "thay" for they in both letter and statement. 15. The way anything is spelled "any thing" with spaced words, instead of one word, in both letter and statement. 16. The use of the expression "haft" for have to in both letter and statement. 17. The use of the word "dont" without apostrophe as punctuation for don't in the letter and statement. 18. The use of capital I for the number "I" (one) in both the letter and the statement. The foregoing is evident from a comparison of the statement and the letter heretofore referred to but also introduced into the record were some "slips" in the handwriting of W.J. Corn that show that he spelled George "gorg" and pickup "pickaup" and "pickop" while in the statement or 88 alleged confession George and pickup are both spelled correctly. Considering all of the foregoing along with the actions of Mary Corn in the face of her statement that she knew nothing of the contents of the envelope and the fact that W. J. Corn sat beside his son and heard him sentenced to be executed and later at the second trial heard him sentenced to life imprisonment for something which it is now contended he himself did together with the fact that he died approximately three weeks after he purportedly wrote this confession from the effects of a malignancy, one is faced with a set of circumstances that must be viewed with the greatest suspicion, State v. Mathis, 174 S.C. 344, 177 S. E. 318. The normal reaction of a parent is to shield the child where possible and it is not unreasonable to suspect this as being the motive behind the alleged confession here. W.J. Corn and his wife both knew he was dying and beyond the reach of the law. The Circuit Judge found as a fact that this statement or purported confession was the handiwork of Mary Corn and there is certainly an abundance of evidence to this effect. The hearing Judge is the determiner of the facts in such matters and unless his findings are influenced or controlled by error of law or unless his conclusions are so illogical and unreasonable as to amount to an abuse of discretion his findings are binding upon this Court, and we are of the opinion that there is ample evidence to sustain his findings and there is no abuse of discretion or error of law here that would warrant this Court in setting aside the order appealed from. Judge Moss in his order went into the matter of whether or not the W.J. Corn statement would be admissible at another trial should one be ordered and his findings are excepted to and made a part of this appeal; however, in our view it is not necessary to pass upon this question for the purpose of determining this appeal. 89 We are of the opinion that all exceptions should be dismissed, the order appealed from affirmed and it is so ordered. BAKER, C.J., and FISHBURNE, STUKES and OXNER, JJ., concur.	{ "pile_set_name": "FreeLaw" }
376 B.R. 795 (2007) EDUCATIONAL CREDIT MANAGEMENT CORPORATION and The Education Resources Institute, Inc., Appellants, v. Michael E.A.S. YOUNG, Appellee. No. 4:06-cv-327. United States District Court, E.D. Texas, Sherman Division. September 28, 2007. 796 797 Donald Wayne Cothern, Attorney at Law, Tyler, TX, Troy Alan Gunderman, St Paul, MN, for Appellants. Robert M. Nicoud, Jr., Olson Nicoud Birne & Gueek, Dallas, TX, for Appellee. Mark A. Weisbart, Dallas, TX, Trustee. MEMORANDUM OPINION AND ORDER OF REMAND SCHELL, District Judge. This matter is before the court on the appeal of Educational Credit Management Corporation ("ECMC") and The Education Resources Institute ("TERI") (collectively "Appellants") of the bankruptcy court's order of June 27, 2006. In that order, the court granted Michael Young ("Debtor") a partial discharge of outstanding Student loans held by Appellants. Because the court disagrees with the bankruptcy court's application of the Brunner test, the court is of the opinion that the order of the bankruptcy court should be REVERSED, and the matter should be REMANDED to the bankruptcy court. I. BACKGROUND Debtor seeks discharge of nearly $235,000 borrowed to finance his legal education. Appellants are the current holders of the loans and seek to avoid having the obligations discharged. Debtor began law school in the Fall of 1990 at Southern Methodist University ("SMU"), paying his expenses with student loans. (Appellant's Br. 4.) After the first semester, Debtor was ranked near the very bottom of his class, prompting him to forego taking classes in the Spring. (Appellee's Br. 2.) Debtor resumed his studies in the Fall of 1991 and graduated from SMU in August of 1993. (Id.) Because he sat out for a semester, Debtor was not ranked with his classmates, but he estimates that he would have graduated "basically in the middle of the class." (Trial Tr. 95.) During law school, Debtor worked for a family law firm, but his experience there did not culminate in an offer of full-time employment. (Appellant's Br. 4.) During his final year of law school, Debtor submitted numerous applications in search of a permanent job. Debtor then applied to, and was accepted for, the LL.M. program at Georgetown University. The associated expenses were also financed with student loans. (Appellee's Br. 2.) Debtor believed that the program would enhance his prospects for employment. While at Georgetown, Debtor clerked for a law firm, but a full-time offer did not ensue. (Appellant's Br. 4.) In May of 1994, Debtor became a member of the Pennsylvania bar. (Id. at 5.) Just before his loans became due, Debtor consolidated the loans that he could and sought forbearances and alternate repayment options on the others. Mem. Op. 5. Debtor found a job in January 798 of 1995 as an attorney with Cerullo, Datte, and Wallbillich, a law firm in Pottsville, Pennsylvania. Id. At Cerullo, Debtor performed transactional work for a local mineral exploration company, the business generated by which constituted the vast majority of the firm's work. Id. In 1995, Debtor began to repay his student loans. He continued to make payments on the loans until the Spring of 1997 when he was terminated from the law firm for disputing a questionable fee-splitting arrangement between the firm and a nonlawyer. Id. Debtor thereafter unsuccessfully attempted to start a solo practice. Debtor got married and had a child in 1995. In July of 1998, Debtor filed for divorce from his wife. Id. The proceedings proved to be costly, time-consuming and bitter. Id. Debtor's devotion of a substantial amount of resources to the divorce proceeding contributed further to his unsuccessful law practice. In 2000, Debtor moved back to Dallas. Debtor's now-twelve year-old child has lived exclusively with Debtor since 2003. (Trial Tr. 69.) Upon his return to Texas, Debtor diligently sought work in the Dallas area. (Id. at 60-61.) After doing some temporary work as a result of his searches, Debtor accepted a temporary position with LexisNexis ("Lexis") in July of 2001 at a starting salary of $30,000 per year. Mem. Op. 6. Debtor was hired to work on a project indexing cases in Lexis' database to facilitate more effective searching. Though the engagement was temporary, Debtor was still employed with Lexis when this appeal was filed in August of 2006. The project and Debtor's employment were scheduled to conclude in the first quarter of 2007. Id. at 7. Debtor writes summaries of cases published in the Lexis database. He also identifies the issues discussed in cases so that they can be properly categorized for more efficient search in the Lexis database. Additionally, Debtor reviews and edits case summaries submitted by other attorneys. These functions are all carried out from home using company software. Id. Debtor has received high praise from his superiors, even winning an award for employee of the year in 2003 in his 500-person department. (Appellant's Br. 6.) Debtor has applied for permanent positions with Lexis, but he has no guarantee of continued employment. Mem. Op. 7. Beginning in October of 2001, Debtor began making $50 monthly payments on his outstanding student loans. Id. at 7. At various times, Debtor made efforts to renegotiate his debts but was rebuffed each time. One example of Debtor's negotiation attempts took place shortly after, he began working at Lexis. On August 9, 2001, Debtor sent a letter to TERI indicating that he would like to negotiate new terms in lieu of seeking a discharge under the bankruptcy laws. The idea of a discharge in bankruptcy was generated out of Debtor's research on means of escaping the pressure created by his debts. (Trial Tr. 141-42.) Debtor current salary is $46,000. Mem. Op. at 6. Debtor's current net monthly income, including child support from Debtor's ex-wife, is $3,574.56. The bankruptcy court found Debtor's current reasonably necessary expenses to be $3,259 before loan payments. Id. at 8. Appellants challenge several of Debtor's expenses as not reasonably necessary, including monthly contributions of $220.56 to Debtor's 401(k) account, $650 per month for food, and $114 for telephone service. As mentioned at the outset, Debtor owes approximately $235,000 in student loans and interest. Id. at 13. II. LEGAL STANDARD This court has jurisdiction to hear appeals from "final judgments, orders, 799 and decrees" of a bankruptcy court. 28 U.S.C. § 158(a)(1) (2006). The court reviews legal conclusions of the bankruptcy court de novo. United States Dep't. of Educ. v. Gerhardt (In re Gerhardt), 348 F.3d 89, 91 (5th Cir.2003). The findings of fact made by the bankruptcy court will not be disturbed unless found by the district court to be clearly erroneous. FED. R. BANK. P. 8013. A decision to discharge student loan debts under 11 U.S.C. § 727 (2006) is reviewed de novo. In re Gerhardt, 348 F.3d at 91. III. DISCUSSION AND ANALYSIS Debtor seeks to have the outstanding debt cancelled under 11 U.S.C. § 727 which allows certain debts to be discharged in bankruptcy. Among the debts to which Section 727 is inapplicable are those enumerated in Section 523. 11 U.S.C. § 727(b) (2006). Section 523(a)(8) provides that a debt arising out of education loans may not be discharged unless failure to do so would create an "undue hardship" on the debtor. 11 U.S.C. § 523(a)(8) (2006). While "undue hardship" has never been given a precise definition, the Fifth Circuit Court of Appeals evaluates whether an undue hardship exists under the three-factor analysis first enumerated by the Second Circuit Court of Appeals. In re Gerhardt, 348 F.3d at 91. Under the analysis, an undue hardship does not exist, and consequently a discharge cannot be obtained, unless the debtor can show (1) that the debtor cannot maintain, based on current income and expenses, a `minimal' standard of living for [him]self and [his] dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. Id. (quoting Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2nd Cir.1987)). Debtor is unable to establish the third factor of the inquiry. As such, the bankruptcy court's partial discharge of the loan debt was in error. This court, however, is not inclined to disturb the bankruptcy court's analysis of the other two factors. In order to establish that he has made a good faith effort to repay his loans, Debtor must demonstrate that he has made "efforts to obtain employment, maximize income, and minimize expenses." Educ. Credit Mgmt. Corp. v. Frushour (In re Frushour), 433 F.3d 393, 402 (4th Cir. 2005) (quoting In re O'Hearn, 339 F.3d 559, 564 (7th Cir.2003)). These factors, once demonstrated, help to establish that the debtor's problems are crafted by forces outside of his control. In re Frushour, 433 F.3d at 402. The debtor's efforts to seek out mechanisms to reduce the onerous burden of his debts, such as loan consolidations, are illustrative, though not dispositive, on the issue of good faith. Id.; Educ. Credit Mgmt. Corp v. Pratt (In re Pratt), 375 B.R. 753, 762 (S.D.Tex.2007). Debtor has failed to minimize his expenses. Debtor's monthly 401(k) contribution of $220 is incompatible with the undue hardship standard Congress chose to apply to discharges of student loans. In In re Speer, the court faced a similar issue. In that case, the debtor was a thirty-four year old male with a thirteen year old daughter. Speer v. Educ. Credit Mgmt. Corp. (In re Speer), 272 B.R. 186, 188-89 (Bankr.W.D.Tex.2001). Among the debtor's expenses was a $140 monthly contribution to a retirement plan. Id. at 194. The court concluded that repayment of 800 student loans "would certainly take priority over saving for retirement under a standard of undue hardship." Id. (internal quotation marks omitted); see also, e.g., Pobiner v. Educ. Credit Mgmt. Corp. (In re Pobiner), 309 B.R. 405, 417 (Bankr. E.D.N.Y.2004) (characterizing monthly 401(k) contributions as among the debtor's "luxuries"). While saving money for one's retirement is certainly wise, Congress, through its demanding standard, has chosen to give priority to the repayment of student loan debts. Debtor also has failed to minimize his expenditures with regard to food. Debtor spends approximately $650 each month on food for his son and himself. Contributing to Debtor's food expenses is his penchant for eating out. Among the restaurants Debtor frequented were Pei Wei, California Pizza Kitchen, Chipotle Mexican Grill, and Luna de Noche. While Debtor characterized such outings as less expensive than preparing one's own meals, common experience dictates otherwise. In In re Salyer, the court examined the Salyers' monthly food expenses. Salyer v. Sallie Mae Serv'g. Corp. (In re Salyer), 348 B.R. 66, 71 (Bankr.M.D.La.2006). The court described outings at McDonald's, Subway, Sonic, and Burger King as among the debtors'"significant discretionary expenditures." Id. Many of the restaurants chosen by the instant debtor are generally more expensive than those in Salyer. As such, Debtor's monthly food expenses indicate a failure to minimize expenses consistent with a showing of good faith under the Brunner analysis. Appellants vigorously argue that Debtor has failed to maximize his income because he has yet to obtain his law license in the State of Texas. They argue that his law license will make him more marketable. Appellants, in this vein, argue that Debtor should expect to earn $117,000 per year, the median salary for a Texas attorney in 2005. Appellants' dollar figure, however, may be a little too optimistic and may overlook the realities of the legal hiring marketplace. Debtor's experience in the legal field is minimal. He worked for two years at a law firm, in Pennsylvania that primarily serviced a single client. He also attempted to open his own practice, but was unable to devote the necessary effort to its success because of his divorce proceedings. Since then, he has worked for several years for Lexis summarizing cases. While he has always received high praise for his work at Lexis, the experience gained there does not translate neatly into the practice of law. He has never had to advocate a position, distinguish cases, draft legally-binding documents, develop and retain clients, or negotiate on behalf of a client while employed at Lexis. Debtor is over a decade removed from law school, and his grades were insufficient to secure well-paid employment then. It strains the court to conclude in any way other than that Debtor faces difficult prospects in the highly competitive legal job market. Nevertheless, securing his license to practice law in the State of Texas should assist the Debtor in maximizing his income. While the Debtor has demonstrated a willingness to find the best possible work since graduating from law school, a lawyer without a law license, in all likelihood, will not be able to maximize his income as long as he remains in the legal field. The court finds, therefore, that Debtor has not maximized his income. Debtor has shown mixed levels of enthusiasm regarding the payment of his loans. Debtor made payments while employed in Pennsylvania. Debtor also made voluntary payments of $50 a month from October of 2001 until April of 2004. In addition, Debtor approached his creditors on several occasions, offering' to renegotiate 801 the terms of the loans. Debtor also consolidated his loans and sought forbearances and deferments. However, Debtor's offers of repayment were not made in good faith. Appellants state that each of the offers to renegotiate included repayment of principal only, payment of ten per cent of Debtor's income determined by Debtor to be disposable, and that the lenders withdraw negative remarks on Debtor's credit reports. Debtor has not disputed these contentions, and the court finds therefore that the offers made by Debtor were not made in good faith. Moreover, Debtor began researching bankruptcy discharge of his debts as early as August of 2001, but apparently never researched federal programs designed to help those in positions similar to Debtor. (Trial Tr. 142.) His posture, therefore, was not of a debtor acting in good faith to repay the money he borrowed. Rather, Debtor took the stance that a bankruptcy discharge was preferable to repayment. Even cursory research on the issue would have provided Debtor with information on the William D. Ford Direct Loan Program. A widely known federal program, its contours are outlined in the Code of Federal Regulations, and it allows troubled debtors to repay as much of their student loans as their income allows. See generally 34 C.F.R. § 685.100, et. seq. (2006). While Debtor certainly was entitled to pursue a discharge in bankruptcy, his reticence to consider other options indicates a lack of good faith. Additionally, as Debtor's annual salary at Lexis increased from $30,000 to $46,000, Debtor continued to make the same $50 monthly payments. That Debtor did not increase his payments is further evidence of his lack of earnestness in reimbursing his lenders. When considering these facts alongside Debtor's failure to maximize his income and minimize his expenses, the court is compelled to conclude that Debtor has failed to establish the third element of the Brunner analysis. As such, the bankruptcy court's conclusion that repayment of his student loans would constitute an undue hardship was in error. The final issue for discussion is that of the bankruptcy court's exercise of its equitable powers under 11 U.S.C. § 105(a). The bankruptcy court found Debtor to have established the three prongs of Brunner and then granted a partial discharge of the debts under Section 105(a). While the court agrees that a proper finding of undue hardship would allow the bankruptcy court to exercise its powers of equity, this court's finding that Debtor failed to establish all three Brunner factors necessitates a brief comment as to such application. Though the Fifth Circuit Court of Appeals has not weighed in on the issue, the other circuit courts that have done so have all agreed that a finding of undue hardship necessarily precedes the bankruptcy court's exercise of its equitable powers. Saxman v. Educ. Credit Mgmt. Corp. (In re Saxman), 325 F.3d 1168, 1175 (9th Cir.2003); Hemar Ins. Corp. of America v. Cox (In re Cox), 338 F.3d 1238, 1243 (11th Cir.2003); Miller v. Pa. Higher Educ. Assistance Agency (In re Miller), 377 F.3d 616, 623 (6th Cir.2004); Alderete v. Educ. Credit Mgmt. Corp. (In re Alderete), 412 F.3d 1200, 1207 (10th Cir.2005). While the bankruptcy court has broad equitable powers, it must exercise those powers "only within the confines of the Bankruptcy Code." Southmark Corp. v. Grosz (In re Southmark Corp.), 49 F.3d 1111, 1116 (5th Cir.1995). Allowing a partial discharge in the absence of a finding of undue hardship pursuant to Section 523(a)(8) would be contrary to that tenet. As the Ninth Circuit Court of Appeals stated in In re Saxman, allowing a partial *802 discharge without first finding the debt to have created an undue hardship "ha[s] the very real potential to eviscerate the statutorily-based undue hard-ship provision." In re Saxman, 325 F.3d at 1174. Expansion of the rights of a debtor to have his student loan debts discharged in bankruptcy is a matter better left to Congress than to the equity of the courts. See In re Cox, 338 F.3d at 1243. IV. CONCLUSION Debtor has failed to establish an undue hardship as that standard has been interpreted by the Fifth Circuit Court of Appeals. In re Gerhardt, 348 F.3d at 91. As such, the discharge of his student loan debts, whether in whole or in part, was improper. The bankruptcy court's ruling that Debtor satisfied the third prong of the Brunner test is REVERSED, and the matter is hereby REMANDED to the bankruptcy court for proceedings consistent with this opinion. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
6 Md. App. 366 (1969) 251 A.2d 252 ROBERT G. McLEAN v. STATE OF MARYLAND. No. 262, September Term, 1968. Court of Special Appeals of Maryland. Decided March 18, 1969. The cause was argued before MURPHY, C.J., and ANDERSON MORTON, ORTH, and THOMPSON, JJ. Robert W. Baker for appellant. Henry J. Frankel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Robert S. Fertitta and Hilary D. Caplan, Assistant State's Attorneys for Baltimore City, on the brief, for appellee. PER CURIAM: The appellant, Robert G. McLean, was convicted of forgery in the Criminal Court of Baltimore by Judge E. McMaster Duer, sitting without a jury. He was sentenced to three years under the jurisdiction of the Department of Correction. Two questions are presented in this appeal: 1. Whether the appellant was denied effective assistance of counsel? 2. Whether there was sufficient evidence to convict? The item which is involved in the instant case is a check of Swindell Plate & Window Glass Company, No. 2664, dated 368 September 14, 1967, payable to the order of Daniel L. Bower for the sum of $97.50, drawn on the Equitable Trust Company, signed Charles F. Godfrey, and endorsed Daniel Lee Bower. At trial Margaret Schaefer testified that she was employed by the Hecht Company as a cashier on September 15, 1967. She stated that on that date the appellant presented to her the subject check to be cashed. The check was already endorsed, she did not see the appellant endorse the check, and she did not know who had endorsed it. When she asked the appellant for identification he gave her a Maryland operator's license. Emily Libertini testified that she was employed as a credit manager by the Hecht Company at the time in question. She stated that she received the check from the cashier and that she asked the appellant to step into her office, which he did. The appellant identified himself to Mrs. Libertini with an operator's license in the name of Daniel Lee Bower. She then asked the appellant to walk with her to the personnel office. During the walk to the personnel office the appellant broke away from her and ran. Mrs. Libertini also stated that the check was never actually negotiated. Eugene Brown, employed by the Hecht Company in the security department, stated that he was on his way to the credit department in response to a call from Mrs. Libertini when he saw the appellant leave Mrs. Libertini and run. Mr. Brown apprehended the appellant in the store's parking lot. William C. Walsh testified that he was employed by the Swindell Plate Glass Company on September 11, 1967. On that date the Glass Company had been robbed of approximately 382 blank payroll checks. He stated that the checks when stolen had nothing written on them by the Glass Company. He identified the subject check as one of the checks stolen on September 11, 1967. The appellant testified he was the person who ran from Mr. Brown but denied that he knew the check was stolen, denied that he forged the check, and denied that he had anything to do with obtaining money by fraudulent checks from anyone. With respect to the question raised concerning the effective assistance of counsel, the point was not tried and decided below and is not properly before us. Maryland Rule 1085. We have 369 consistently refused to consider the question of the competency of trial counsel under such circumstances for reasons set forth in Harris v. State, 2 Md. App. 408 (1967). The evidence adduced at trial seems clearly to show that the instrument was false and that it was presented to the Hecht Company cashier for the purpose of obtaining money from them by fraud. This, by itself, would constitute an uttering of the forged instrument. Beard v. State, 4 Md. App. 685, 689 (1968). The Court of Appeals has stated in Wesbecker v. State, 240 Md. 41, 45 (1965), that a showing that the defendant possessed and uttered a forged instrument establishes a prima facie case of guilt of forgery by the possessor. In addition to the evidence of possession and uttering, there was also evidence showing that the appellant tried to flee from Mrs. Libertini and Mr. Brown. It is well established that flight from the scene of a crime is an important factor that may be considered in determining guilt. Anderson v. State, 3 Md. App. 362, 370 (1968); Williams v. State, 3 Md. App. 58, 60 (1968). Although this flight was not, strictly speaking, a flight from the scene of the crime, the forgery apparently having been made at a place other than the Hecht store, the reasoning on which the statements in Anderson and Williams are based is apposite. Those cases quote approvingly the general statement from Wigmore, Evidence § 276 (3d ed. 1940), as follows: "Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. * * * It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself." In our estimation, under the circumstances of this case, the appellant's flight may be used by the trial court as additional evidence of appellant's guilt of forgery. In non-jury trials the weight of the evidence and the credibility of the witnesses rests within the determination of the trial court. Brown v. State, 4 Md. App. 261, 268 (1968). The trial court, in performing its duty of judging the credibility of *370 witnesses, may disbelieve the exculpatory statements made by the defendant. Brown v. State, supra at 269. This Court cannot reverse a judgment of the lower court unless it is shown that there was no legally sufficient evidence, or proper inferences therefrom, from which that court could find the accused guilty beyond a reasonable doubt. Brown v. State, supra at 269. From the facts of this case the trial court could have drawn the inference of guilt beyond a reasonable doubt; and we cannot say that the lower court was clearly erroneous. Maryland Rule 1086. Judgment affirmed.	{ "pile_set_name": "FreeLaw" }
681 F.Supp. 151 (1987) Denise RUBEL and Ivan Rubel, Plaintiffs, v. ELI LILLY AND COMPANY, Defendant. No. 86 Civ. 3834 (JMC). United States District Court, S.D. New York. October 9, 1987. 152 Paul H. Blaustein, Hopgood, Calimafde, Kalil, Blaustein & Judlowe, New York City, for plaintiffs. Sanford N. Berland, Law Offices of Russel H. Beatie, Jr., New York City, for defendant. MEMORANDUM AND ORDER CANNELLA, District Judge: Plaintiffs' motion for partial summary judgment is granted. Fed.R.Civ.P. 56(a), (d). BACKGROUND Plaintiffs Denise Rubel and Ivan Rubel, a married couple, are residents of New York. Denise Rubel was born to Julia and George Horowitz on January 23, 1953. Defendant, Eli Lilly and Company ["Lilly"], is a corporation organized and existing under the laws of Indiana, and does not have a principal place of business in New York. Lilly is a major American pharmaceutical manufacturer which manufactured and supplied Diethylstilbestrol ["DES"]. Allegedly, Julia Horowitz, while pregnant with Denise in 1952, daily ingested one 25 mg. pill of DES purportedly manufactured by Lilly. Plaintiffs claim that the DES ingested by Julia Horowitz injured Denise Rubel in utero, ultimately causing gross tissue and organ abnormality of the cervix and vagina, infertility and consequential physical and emotional distress. Plaintiff does not claim to suffer from cancer or a cancerous condition, nor does she claim that her ailments will become cancerous. DES is a synthetic estrogen drug that was routinely prescribed between 1947 and 1971 to prevent accidents, such as miscarriages, in pregnancies. Although DES was approved for use in the United States as early as 1941, it was not until 1947 that the Food and Drug Administration (FDA) approved DES for use by pregnant women. In 1971, it was first reported that ingestion of DES by pregnant women could cause vaginal cancer and other abnormalities in the reproductive tracts of their daughters. FDA approval of the drug for treating problem pregnancies was withdrawn. It is estimated that several million women were treated with DES between 1947 and 1971. Plaintiffs move for partial summary judgment on its claim that Lilly was negligent in marketing DES without adequate testing.[1] Their motion is based on the doctrine 153 of collateral estoppel. Defendant opposes the motion. DISCUSSION A. Choice of Law As federal jurisdiction over this action is based on the diversity of citizenship between the parties, the Court must apply New York's choice of law rules to determine which state's substantive law will be applied to the dispute. See Klaxon v. Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In recent years, the New York courts have held that "the law of the jurisdiction having the greatest interest in the litigation will be applied." Miller v. Miller, 22 N.Y.2d 12, 15-16, 290 N.Y.S.2d 734, 737, 237 N.E.2d 877, 879 (1968); see Schering Corp. v. Home Ins. Co., 544 F.Supp. 613, 618 (E.D.N.Y.1982), rev'd on other grounds, 712 F.2d 4 (2d Cir.1983). In the instant case, plaintiffs are New York residents, New York is the place of the alleged injuries and the place where the allegedly tortious conduct occurred. In addition, plaintiffs argue that New York law predominates and defendant does not dispute that contention. For all of the foregoing reasons, the law of New York shall control the disposition of this motion. B. Collateral Estoppel Under the doctrine of collateral estoppel, or issue preclusion, a party may preclude an adversary from relitigating an issue, whether of fact or of law, which has previously been decided against that adversary in a proceeding in which he had a fair opportunity to fully litigate that issue. See Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49, 423 N.E.2d 807 (1981); Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S. 2d 955, 246 N.E.2d 725 (1969). Collateral estoppel is a doctrine founded on the notion that "it is not fair to permit a party to relitigate an issue that has already been decided against it." Kaufman, 65 N.Y.2d at 455, 492 N.Y.S.2d at 588, 482 N.E.2d at 68. When properly utilized, it serves to protect the public's interest in minimizing litigation. Id. It is left to the discretion of the trial court to determine whether the use of collateral estoppel is appropriate in a particular case. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). It is well settled under New York law that before collateral estoppel may be invoked to prevent a party from relitigating an issue, the party seeking to invoke the doctrine must prove that there exists an identity of issue between the issue which has been decided in the prior action and the issue which is decisive of the present action. If this burden is met, collateral estoppel may still be denied if the party contesting its use can prove that he did not have a full and fair opportunity to litigate the decision now said to be controlling. Gilberg, 53 N.Y.2d at 291, 441 N.Y.S.2d at 50, 423 N.E.2d at 808; Schwartz, 24 N.Y.2d at 71, 298 N.Y.S.2d at 960, 246 N.E.2d at 729; see Koch v. Consol. Edison Co., 62 N.Y.2d 548, 554-55, 479 N.Y.S.2d 163, 165-66, 468 N.E.2d 1, 3-4, cert. denied, 469 U.S. 1210, 105 S.Ct. 1177, 84 L.Ed.2d 326 (1985); Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 500-01, 478 N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984). Lilly was found to have been negligent in that it failed to adequately test DES for detrimental side effects before it distributed the drug for use by pregnant women. See Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982). The Court of Appeals has given that holding collateral estoppel effect. Kaufman v. Eli Lilly and Company, 65 N.Y.2d 449, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985). Lilly does not contest that the findings in Bichler concerning adequate testing were fully and fairly litigated, or that those determinations were essential to the judgment in that case. Rather, Lilly's 154 challenge to the use of collateral estoppel in this case rests on two grounds. First, Lilly argues that the plaintiffs have failed to meet their burden of proof as to identity of issue because Denise Rubel's alleged injuries are not a medical parallel of those suffered by the plaintiffs in Bichler and Kaufman. Second, Lilly argues that the use of collateral estoppel is inappropriate because of the existence of other state decisions regarding Lilly's negligence which are purportedly inconsistent with Bichler. 1. Inconsistent Verdicts The Court turns first to Lilly's contention that none of the Bichler jury's findings should be given preclusive effect because of the existence of verdicts favorable to Lilly in other DES cases. Lilly asserts that, because it has won favorable verdicts in cases where the injuries alleged were similar to Denise Rubel's injuries, those verdicts are inconsistent with Bichler. First, it should be noted that this argument was raised and rejected in Kaufman, 65 N.Y.2d at 458-59, 492 N.Y.S.2d at 590, 482 N.E.2d at 69. It is only "adjudications on the same issue inconsistent with the one to be given preclusive effect" that are a factor to be used in determining whether collateral estoppel should be applied. Id. (emphasis added). The Court of Appeals, when faced with the same cases defendant relies on here, found no inconsistency with Bichler as two different legal theories were involved. Id. The Bichler jury found that Lilly had negligently marketed DES without adequate testing beforehand. The legal theory at issue in the cases relied on by Lilly was whether it had been negligent in failing to warn of the risks associated with DES. Defendant has made no showing that the type of injury alleged in those cases was a factor in obtaining those favorable verdicts. Thus, contrary to defendant's claims, those cases provide no basis to warrant allowing Lilly to relitigate the question of whether it failed to adequately test DES. 2. Identity of Issues Lilly next argues that, because Denise Rubel does not allege the same cancerous condition that was involved in Bichler and Kaufman, identity of issues between the instant case and those cases is lacking. In Bichler, the plaintiff was a young woman who developed cervical and vaginal cancer at the age of 17. She brought suit against Lilly and other pharmaceutical companies alleging that her mother's ingestion of DES, while pregnant with her, caused her injuries. Her theory was that DES had been marketed without adequate testing as to its safety. In addition to a general verdict for plaintiff, the jury answered seven special interrogatories in her favor as a basis of imposing liability on Lilly.[2] In Kaufman, the plaintiff was another young woman who developed cervical cancer at the age of 18. She brought suit against Lilly based on the same theories as Bichler. At Special Term, plaintiff was granted partial summary judgment, thus estopping Lilly from relitigating the issues 155 decided by the Bichler jury. Kaufman v. Eli Lilly & Co., 116 Misc.2d 351, 455 N.Y. S.2d 329 (Sup.Ct.N.Y.Co.1982). With the exception of one of the jury's findings, not relevant to this discussion, summary judgment was upheld on appeal. See Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 492 N.Y.S.2d 584, 482 N.E.2d 63 (1985). The other findings of the Bichler jury that Lilly and other DES manufacturers negligently marketed the drug for use in preventing miscarriages without first performing laboratory tests were given collateral estoppel effect. Id. Lilly has since been collaterally estopped from relitigating the issue of negligent testing. See Schaeffer v. Eli Lilly & Co., 113 A.D.2d 827, 493 N.Y.S.2d 501 (2d Dep't 1985); Helmrich v. Lilly, No. 86 Civ. 14386, slip. op. (Sup.Ct. Onondaga Co. July 18, 1987). Defendant contends that because these cases, and indeed the Bichler jury findings themselves, specifically involved cancer, Kaufman only extends Bichler's findings to cases involving the same cancerous injury. It is defendant's position that as plaintiff does not allege a cancerous condition, Kaufman does not apply, and defendant should not be estopped from relitigating the issue of whether it was negligent in failing to adequately test DES before marketing it. The cases defendant relies on to support this line of reasoning are not controlling as they were all decided on procedural grounds. The disparity in injuries between the cases relied on by defendant, and Bichler, was not a determinative issue in the disposition of those summary judgment motions. See, e.g., Wetherill v. Univ. of Chicago, 548 F.Supp. 66 (N.D.Ill.1982); Dawson v. Eli Lilly & Co., 543 F.Supp. 1330 (D.D.C.1982); Hadden v. Eli Lilly & Co., No. L-5484-76 (N.J.Sup.Ct. Sept. 22, 1986) (bench ruling of Van Sciver, J.); Price v. Univ. of Chicago, No. 77 Civ. 3112, slip. op. (N.D.Ill. Feb. 16, 1983). More importantly, only two of the cases cited by defendant were decided by New York courts. In Sardell v. Eli Lilly & Co., the plaintiff's summary judgment motion was denied as the court found plaintiff's motion papers "contained no pleadings and the court [would not] speculate whether the claims in this action are identical to and rest upon the findings in Bichler." Sardell v. Eli Lilly & Co., No. 182868/77, slip. op. at 2 (Sup.Ct. Kings Co. Oct. 15, 1982). The subsequent favorable verdict won by Lilly in that case was based not on whether it had adequately tested DES, but rather, on the jury's finding that Lilly had adequately warned the medical community of the risks involved in the use of DES. In Rizzo v. Eli Lilly & Co., the court did not set forth its reasoning for granting Lilly summary judgment. Rizzo v. Eli Lilly & Co., No. 6043/83, slip. op. (Sup.Ct.Monroe Co. Nov. 16, 1984). It is, however, of no slight significance that both Sardell and Rizzo were decided before Bichler was given collateral estoppel effect in Kaufman and again in Schaeffer. This Court is bound by New York law as set forth in Kaufman. While it is true that the Bichler jury's findings specifically dealt with cancer, and the subsequent cases all involved a cancerous injury, the Court is not persuaded that Kaufman does not apply in this case. In Bichler, there was testimony that the state of scientific knowledge in the early 1950s was such that it was well known that substances ingested by a pregnant woman would pass through the placenta to the fetus. There was further testimony that it was well known that tests on mice were available which would have demonstrated within six months the danger of cancer developing in a fetus exposed to DES. The jury accepted this testimony and concluded that a reasonably prudent drug manufacturer would not have marketed DES for use in preventing miscarriages. Lilly, however, asks this Court to find that, because Denise Rubel suffers a less serious injury than cancer, Lilly should be allowed to relitigate the question of adequate testing. The Court finds this argument devoid of merit. Denise Rubel, like the plaintiff in Bichler, claims to have suffered an injury to her reproductive tract as a consequence of prenatal exposure to DES. Denise Rubel, like the plaintiff in Bichler, claims that she would not have 156 been so exposed had defendant Lilly adequately tested DES. The jury in Bichler found that Lilly had been negligent in failing to test DES, as such tests would have revealed the drug's carcinogenic effects on the prenatally exposed offspring of DES users. Lilly's negligence in failing to test for possible carcinogenic side effects, the most serious threat to a woman's reproductive tract, must logically include a failure to test for less serious threats to a woman's reproductive tract. In fact, it was undisputed in Bichler that no testing of any type was performed to determine DES's possible detrimental effects on a developing fetus. Lilly can not now claim a lack of negligence in its testing of DES solely on the grounds that the injury involved is less severe. The Court finds therefore that there is sufficient identity of issue to preclude Lilly from relitigating the question of adequate testing. Nor, as defendant asserts, would using collateral estoppel on the issue of adequate testing deprive defendant of its right to a jury trial on the issue of proximate cause. In order to invoke the use of collateral estoppel, it is only required that "the issue given preclusive effect be dispositive of the particular issue sought to be precluded, not of ultimate liability with regard to all issues in the case." Perez v. N.Y.C. Housing Authority, 114 Misc.2d 1055, 452 N.Y.S.2d 510, 513 (N.Y.C.Civ.Ct. 1982) (quoting Shanley v. Callanan Indus. Inc., 54 N.Y.2d 52, 444 N.Y.S.2d 585, 429 N.E.2d 104 (1984)). Lilly was found negligent in that it failed to adequately test DES before marketing it. In Kaufman, that finding was given collateral estoppel effect. The Court of Appeals noted that "the only issues Lilly [may] be precluded from relitigating ... relate solely to the facts underlying its negligence in testing." Kaufman, 65 N.Y.2d at 457, 492 N.Y.S.2d at 589, 482 N.E.2d at 68. "Proximate cause ... was not and could not have been decided by the Bichler jury." Schaeffer, 113 A.D.2d at 829, 493 N.Y.S.2d at 503. The only issue that plaintiffs seek to have Lilly estopped from relitigating is whether Lilly was negligent in its testing of DES and they have specifically deleted the issue of proximate cause from their motion. Defendant will still be allowed to litigate Denise Rubel's claim that her injuries were caused by her mother's ingestion of DES. A recent long line of cases concerning Consolidated Edison's ["Con. Ed."] liability in the 1977 blackout supports the view that the use of issue preclusion is appropriate, notwithstanding the existence of different injuries. In Food Pageant, Inc. v. Consol. Edison Co., Inc., 54 N.Y.2d 167, 445 N.Y. S.2d 60, 429 N.E.2d 738 (1981), the New York Court of Appeals affirmed a jury's finding that Con. Ed. had been grossly negligent in causing the blackout. Damages were awarded to the plaintiff grocery store for food spoilage and loss of business. Id. The finding of gross negligence was later given collateral estoppel effect in an action brought against Con. Ed. by New York City for damages due to looting, rioting, overtime pay and lost revenues, as a result of the blackout. Koch v. Consol. Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163, 468 N.E.2d 1 (1984). The Court of Appeals did not even address the question of the disparity of the injuries involved in each case. Id. Indeed the Court's ruling followed a number of lower court decisions giving Food Pageant collateral estoppel effect in varied personal injury actions, despite the fact that each case involved different issues of claimed injury, intervening and superseding proximate cause, mitigation of damages and privity of contract. See, e.g., Shaid v. Consol. Edison Co. of New York, Inc., 95 A.D.2d 610, 467 N.Y.S. 2d 843 (2nd Dept.1983); Goldstein v. Consol. Edison Co. of New York, Inc., 93 A.D.2d 589, 462 N.Y.S.2d 646 (1st Dep't 1983); Longo v. New York City Educ. Fund, 121 Misc.2d 830, 469 N.Y.S.2d 303 (Sup.Ct.N.Y.Co.1983). In Koch, the Court of Appeals found that "Con Edison had a full and fair opportunity to litigate the issue of gross negligence, the forum and applicable procedures were the same, the burden of persuasion was the same, and Con Edison, explicitly then recognizing the potential preclusive effects of an adverse determination in that case, had every incentive to defend that action 157 fully and vigorously." 62 N.Y.2d at 558, 479 N.Y.S.2d at 168, 468 N.E.2d at 6. Lilly has had the same opportunity to litigate fully the issue of whether it adequately tested DES before it marketed it for use in pregnant women. See Bichler, 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182. Lilly has also vigorously litigated against the use of collateral estoppel. See Kaufman, 65 N.Y.2d 449, 492 N.Y.S.2d 584, 482 N.E.2d 63; Schaeffer, 113 A.D.2d 827, 493 N.Y.S.2d 501. Accordingly, Lilly cannot claim unfair prejudice if plaintiffs are allowed the use of offensive collateral estoppel in this case. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Public policy also mandates the use of issue preclusion in this case. The policy foundation underlying the doctrine of collateral estoppel is the conservation of the courts' and the litigants' resources and the need for efficiency and consistency in the dispensation of justice. See Read v. Sacco, 49 A.D.2d 471, 375 N.Y.S.2d 371 (2d Dep't 1975). Nowhere is that need more apparent than here. Over 100,000 women in New York alone have been affected by DES and it is estimated that there will be over 1,000 individual and class action lawsuits against manufacturers of DES. See Bichler, 55 N.Y.2d at 577, 450 N.Y.S.2d at 778, 436 N.E.2d at 184. Under New York law, Lilly has been found to be negligent in failing to adequately test DES before marketing it and estopped to deny its negligence in subsequent cases. The Court will not allow Lilly to jump from forum to forum in the hopes of finding a verdict favorable to it on the issue of its negligence. It will, however, still be up to the jury to decide if that negligence leads to liability in this case. CONCLUSION For the reasons stated, plaintiffs' motion for partial summary judgment on the issue of Lilly's negligence in failing to adequately test DES prior to marketing it for use by pregnant women is granted. Fed.R.Civ.P. 56(a), (d). SO ORDERED. NOTES [1] Plaintiffs also have pending, under Fed.R. Civ.P. 37(a), a motion to compel defendant to answer plaintiff's first set of interrogatories, produce documents and make admissions. Defendant opposes this motion. Both parties have requested an extension of time for completion of discovery. These matters have been referred to Magistrate Nina Gershon for disposition, consistent with this Memorandum and Order. [2] The interrogatories and the jury's answers to them were as follows: (1) Was DES reasonably safe in the treatment of accidents of pregnancies when it was ingested by plaintiff's mother in 1953? (NO) (2) Was DES a proximate cause of plaintiff's cancer? (YES) (3) In 1953 when plaintiff's mother ingested DES, should the defendant, as a reasonably prudent drug manufacturer, have foreseen that DES might cause cancer in the offspring of pregnant women who took it? (YES) (4) Foreseeing that DES might cause cancer in the offspring of pregnant women who took it, would a reasonably prudent drug manufacturer test it on pregnant mice before marketing it? (YES) (5) If DES had been tested on pregnant mice, would the tests have shown that DES causes cancer in their offspring? (YES) (6) Would a reasonably prudent drug manufacturer have marketed DES for use in treating accidents of pregnancy at the time it was ingested by the plaintiff's mother if it had known that DES causes cancer in the offspring of pregnant mice? (NO) (7) Did defendant and the other drug manufacturers act in concert with each other in the testing and marketing of DES for use in treating accidents of pregnancy? (YES) Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 587 n. 10, 450 N.Y.S.2d 776, 783-84 n. 10, 436 N.E.2d 182, 189-90 n. 10 (1982).	{ "pile_set_name": "FreeLaw" }
178 Ariz. 341 (1994) 873 P.2d 679 ARIZONA PUBLIC SERVICE COMPANY, Petitioner, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Division of Occupational Safety and Health of the Industrial Commission of Arizona, Respondent Party in Interest. No. 1 CA-IC 92-0217. Court of Appeals of Arizona, Division 1, Department A. March 29, 1994. 342 Snell & Wilmer by Charles P. Keller, Phoenix, for petitioner. Anita Valainis, Chief Counsel, Industrial Com'n of Ariz., Phoenix, for respondent. Division of Occupational Safety and Health by Laura L. McGrory and Ronald M. Andersen, Phoenix, for respondent party in interest. OPINION CLABORNE, Judge. This case arises from a citation issued by the Division of Occupational Safety and Health ("the Division") against Arizona Public Service ("APS") for a serious violation. APS brings this Special Action from the decision of the Occupational Safety and Health Review Board ("the Review Board") finding APS liable for the citation. Facts and Procedural History The parties stipulated to the following facts for purposes of the motion to the Administrative Law Judge ("the ALJ") and the appeal to the Review Board. Charles Beecroft Trenching Company ("Beecroft") and APS entered into a contract under which Beecroft was to perform construction and electrical services for APS. Beecroft's responsibilities under the contract were to replace and install a new electrical conduit in an energized switching cabinet. While performing work pursuant to the contract, Randy Mead of Beecroft touched an energized line inside the switching cabinet and was killed. APS had created and controlled the hazard to which Mead was exposed. At the time of the accident, only Beecroft employees were present at the job-site except for an APS inspector who was there to assure the job was performed satisfactorily. Following an inspection and investigation by the Industrial Commission, Beecroft and APS were cited for serious violations.[1] The citation issued against APS was for a violation of 29 CFR 1926.950(d)(1)(c)(V). The Division also imposed a $3,500 fine against APS. The parties waived formal hearing before the ALJ and submitted the issues to the ALJ on the above-stipulated facts. The issue submitted to the ALJ was "whether ... [APS] was properly cited by the [Division] for the exposure of a Beecroft employee to a hazard under the multi-employer worksite theory when APS created and controlled the hazard, but only two employers were on site (APS and Beecroft), and no employee of APS had access to or exposure to the hazard." The ALJ issued his Findings and Conclusions and Order, ruling that APS was properly cited for exposing Mead to the hazard under the multi-employer worksite theory. APS timely appealed to the Review Board. Following oral argument, the Review Board issued its Decision and Order concluding that: APS has failed to sustain its burden of proving that Beecroft was an independent contractor. Therefore, APS' liability must be determined based on the multi-employer worksite rule. Because two different employers were on site, the multi-employer worksite rule applies. Because APS has admitted that it created and controlled the hazard, and that an employee of Beecroft was fatally injured on the worksite, 343 APS is liable for the citation. The decision of the [ALJ] is affirmed.[2] APS now seeks special action review of the Review Board's decision pursuant to Ariz. Rev. Stat. Ann. ("A.R.S.") section 23-423(I) (1983). Discussion The following issues are raised for our review: 1. Whether APS can be cited for the exposure of a Beecroft employee to a hazard it created and controlled under the multi-employer worksite theory. 2. Is it within the Division's discretion to issue a citation against APS when the issuance of the citation does not comply with the Division's Field Operations Manual Provisions? 1. Standard of Review We review the Review Board's findings of fact and conclusions of law based on its de novo review of the record. Division of Occupational Safety & Health v. Ball, Ball & Brosamer, Inc., 172 Ariz. 372, 373, 837 P.2d 174, 175 (App. 1992); A.R.S. § 23-423(I). We will hold the Review Board's findings of fact to be conclusive where they are supported by substantial evidence. McAfee-Guthrie, Inc. v. Division of Occupational Safety & Health, 128 Ariz. 508, 510, 627 P.2d 239, 241 (App. 1981). Administrative adjudications of the Review Board are given great weight and we will not set aside its decision unless arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. Marshall v. Cities Serv. Oil Co., 577 F.2d 126, 131 (10th Cir.1978); Marshall v. Knutson Constr. Co., 566 F.2d 596, 600 (8th Cir.1977). 2. Multi-employer Worksite Theory We begin with an examination of the creation and development of the multi-employer worksite theory, and then apply it to the facts of this case. Generally, an employer is held responsible for the exposure or access to hazardous conditions it creates or controls only to its own employees. See A.R.S. § 23-403(A) (Supp. 1993). The intent behind the statute is to "assure so far as possible every working man, woman and child in the state safe and healthful working conditions." Laws 1972, ch. 136, § 1; Arizona Div. of Occupational Safety & Health v. Superior Court, 176 Ariz. 557, 863 P.2d 276, 281 (App. 1993). However, an exception has been developed to multi-employer worksites whereby the employer responsible for the hazard may be cited regardless of whether it is the employers' employees who are exposed or the employees of another employer. See Benjamin W. Mintz, OSHA: History, Law, and Policy, The Bureau of National Affairs, Inc. (1984) 479-81. This theory was first recognized by the Court of Appeals for the Second Circuit in Brennan v. OSHRC and Underhill Constr. Corp., 513 F.2d 1032 (2d Cir.1975).[3] The court in Brennan said that where an employer is in control of an area, and responsible for its maintenance, we hold that to prove a violation of OSHA, [the Division] need only show that a hazard has been committed and that the area of the hazard was accessible to the employees of the cited employer or those of other employers engaged in a common undertaking.[4]Id. at 1038. The multi-employer worksite theory was revisited and a comprehensive view on citations 344 for violations was articulated in Anning-Johnson Co., 4 OSHC 1193 (Rev. Comm'n 1976) and Grossman Steel & Aluminum Corp., 4 OSHC 1185 (Rev. Comm'n 1975). Those cases held that each employer at a construction site is responsible for assuming that its conduct does not create hazards to any employees at the site; and, because of the supervisory nature of a general contractor and its ability to obtain abatement of hazards, the general contractor is responsible for violations it reasonably could have been expected to prevent or abate by reason of its position. Anning Johnson Co. at 1198-99; Grossman Steel at 1188. Both cases went on to say that each employer is expected "to make a reasonable effort to detect violations of standards not created by it but to which its employees have access and, when it detects such violations, to exert reasonable efforts to have them abated or take such other steps as the circumstances may dictate to protect its employees." Grossman Steel at 1189. Thus, the general rule we are left with is that an employer commits a violation if it fails to comply with a safety or health standard and its own employees or those of another are exposed to the resulting hazard. See Plains Coop. Oil Mill, Inc., 11 OSHC 1370-73 (Rev. Comm'n 1983); Harvey Workover, Inc., 7 OSHC 1687, 1688-89 (Rev. Comm'n 1979). These rules were formulated to "assure that all employees on [a multi-employer worksite] receive the protection intended by the [OSHA] standards." See Gelco Builders, Inc., 6 OSHC 1104, 1106 (Rev. Comm'n 1977) (citations omitted). APS claims that the multi-employer worksite rule does not apply here because Beecroft was an independent contractor. We recognize that the multi-employer worksite cases have been historically limited to the contractor/subcontractor relationship. The reasoning behind the development of the multi-employer worksite theory was that the general contractor had control over the worksite and therefore the ability to abate the hazards. See Knutson Constr. Co., 566 F.2d at 599 ("[g]eneral contractors normally have the responsibility and the means to assure that other contractors fulfill their obligations with respect to employee safety where those obligations affect the construction worksite"); Perini Corp., 6 OSHC 1609, 1610 (Rev. Comm'n 1978) ("general contractor is responsible for violations it could prevent or abate by reason of its supervisory authority over the entire site"); Grossman Steel at 1188 ("the general contractor normally has responsibility to assure that the other contractors fulfill their obligations with respect to employee safety which affect the entire site"). Thus, the broad remedial purpose of protection from industrial injury for which the Occupational Safety and Health Act was enacted could be achieved. See generally Cities Serv. Oil Co., 577 F.2d at 130. The multi-employer worksite theory has not been extended to cover the owner-contractee/independent contractor situation. Farrell Roofing & Sheet Metal Co., Inc., 10 OSHC 1430, 1431 (Rev. Comm'n 1982). An employer often relies on an independent contractor's expertise to perform the work correctly since the contractor has greater expertise than the employer. Fry's Tank Serv., Inc. and Cities Serv. Oil Co., 4 OSHC 1515, 1518 (Rev. Comm'n 1976), aff'd, Marshall v. Cities Serv. Oil Co., 577 F.2d 126 (10th Cir.1978). Unlike the contractor/subcontractor relationship, the hiring employer does not always have control over the worksite in an independent contractor situation. The hiring employer is not responsible for hazards created by the independent contractor unless it has reason to foresee that the independent contractor might perform the work in an unsafe manner. Id. Hence, an independent contractor does not qualify as an employer's employee for purposes of the Occupational Safety and Health Act where the hiring employer does not have control over the worksite or has not created and controlled the hazard. See generally Harvey Workover, Inc., 7 OSHC at 1688-89.[5] 345 We find it significant that APS stipulated to the fact that it created and controlled the hazard to which Beecroft's employee, Mead, was exposed. Also, specific criteria must be shown before APS can establish that Beecroft was an independent contractor. Id. at 1689. The Review Board ruled that APS did not meet its burden of proving that Beecroft was an independent contractor. The only facts upon which APS attempted to establish the existence of an owner-contractee/independent contractor relationship was the existence of the contract. This fact alone does not establish an owner-contractee/independent contractor relationship. See Griffin & Brand of McAllen, Inc., 6 OSHC 1702, 1703 (Rev. Comm'n 1978). Factors such as "(1) whom do the workers consider their employer; (2) who pays the workers' wages; and (3) who has the responsibility to control the workers" are considered by the Division in determining the relationship of the parties involved. Griffin, 6 OSHC at 1703. APS has not shown any of these factors. We therefore conclude that the record does not support the conclusion that Beecroft was an independent contractor. We now apply the multi-employer worksite theory to the facts here. 3. Can APS be cited? The Division bears the burden of showing four elements in order to establish that APS is in serious violation of A.R.S. section 23-403. See generally Harvey Workover, Inc., 7 OSHC at 1688. Those elements are: (1) the existence of conditions that did not comply with a standard; (2) the injured worker had exposure or access to the noncomplying condition; (3) employer knowledge of the noncomplying condition; and, (4) a substantial probability that the employee exposed would die or suffer serious physical harm. Id. at 1688-90. In the multi-employer worksite situation, the "employer that creates or controls noncomplying conditions is held responsible if employees of other employers are exposed or have access to the conditions." Id. at 1689. APS stipulated to the fact that it created and controlled the hazard to which Mead was exposed. If an employer controls the hazard in an area where the violation is committed, and the area is accessible to its employees or those of another engaged in a common undertaking, then that employer may be cited for a violation. Underhill Constr. Co., 513 F.2d at 1038. Thus, the Division properly cited APS for the violation since it was responsible under the multi-employer worksite theory. Allowing APS to escape liability for creating and controlling the hazard would defeat the purposes of the Act. The Review Board did not abuse its discretion in finding APS liable for the citation. 4. Field Operations Manual Provisions APS lastly contends that the citation should be deleted since the Division failed to follow its own Field Operations Manual ("FOM") in issuing the citation. Because of the institution of the multi-employer worksite theory, the Division can cite multiple employers. See generally Anning-Johnson Co. at 1198-99. We agree with the Review Board when it stated: Because the purpose of the Act is to insure in as many ways as possible that working conditions will at all times be safe, it appears obvious that two employers may be cited for the same violation. This policy of citing both employers will encourage initial compliance, as well as subsequent remedial compliance. Even if the FOM indicates that the Division could have cited Beecroft only, it certainly was within the Division's discretion and its power to cite APS as well. In light of the multi-employer worksite present in this case, we find that it was clearly within the Division's discretion to cite APS since it was admittedly the one that created and controlled the hazard. For the reasons set forth above, we affirm. WEISBERG, P.J., and GARBARINO, J., concur. NOTES [1] Beecroft was cited for violations of 29 CFR 1926.21(b)(2) and 29 CFR Part 1926.950(d)(1)(c)(V). Beecroft did not contest the citation. [2] One Review Board member held in a dissenting opinion that the citation against APS should be vacated since "the plain meaning of `multi' is more than two." [3] Arizona has adopted the Federal Occupational Safety and Health Standards, Code of Federal Regulations, Title 29, Part 1926 commonly known as "OSHA." See A.R.S. § 23-410 (Supp. 1993); A.C.R.R. R4-13-601 (1991). We, therefore, find the federal case law interpreting those regulations persuasive. See Arizona Civil Rights Div. v. Hughes Air Corp., 139 Ariz. 309, 312, 678 P.2d 494, 497 (App. 1984). [4] "[T]o endorse a policy whereby several different employers on a common construction site would be responsible for eliminating the hazardous condition by literal compliance with the applicable standard ... [would be] economically wasteful, undesirable in that it might necessitate litigation between the parties to affix liability, and in some cases impractical." Anning-Johnson Co. at 1197. [5] The multi-employer worksite theory has been extended to general industry situations and includes any worksite with multiple employers. Harvey Workover, Inc. at 1689; see also Beatty Equip. Leasing, Inc., 4 OSHC 1211 (Rev. Comm'n 1976) ("Respondent's status as a materialman does not warrant the application of a rule different from that applied to subcontractors.").	{ "pile_set_name": "FreeLaw" }
2014 IL App (2d) 121253 No. 2-12-1253 Opinion filed June 11, 2014 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court JESSICA A. MURRAY, ) of McHenry County. ) Petitioner and Plaintiff-Appellee ) and Cross-Appellant, ) ) and ) No. 03-DV-1080 ) JEFFREY C. MURRAY, ) ) Respondent ) ) Honorable (McHenry County Conservation District, ) Gerald M. Zopp, Defendant-Appellant and Cross-Appellee). ) Judge, Presiding. ______________________________________________________________________________ PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion. OPINION ¶1 As part of a marriage dissolution judgment, the trial court ordered respondent, Jeffrey C. Murray, to pay child support to petitioner, Jessica A. Murray. To facilitate the payments, the court ordered Jeffrey’s employer, the McHenry County conservation district (Conservation District), to withhold and forward the payments from Jeffrey’s paychecks pursuant to the Income Withholding for Support Act (Withholding Act) (750 ILCS 28/1 et seq. (West 2010)). The Conservation District’s payroll vendor failed to process the child support payments for five of Jeffrey’s paychecks. Jessica filed a complaint against the Conservation District, seeking a 2014 IL App (2d) 121253 $1,086.90 arrearage as well as a statutory penalty that ultimately grew to $407,700. See 750 ILCS 28/35(a) (West 2010) ($100-per-day penalty for each violation). ¶2 The Conservation District moved for dismissal, arguing that the statutory penalty is tantamount to a punitive award, which is barred by section 2-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-102 (West 2012)). The trial court denied the motion without comment. ¶3 The Conservation District paid the arrearage to stop the accrual of the statutory penalty. Following a bench trial, the court entered judgment for Jessica on the statutory penalty claim, but capped the award at $50,000 based on a recent amendment to section 35 of the Withholding Act that limits such penalties to $10,000 per violation. ¶4 The Conservation District appeals the penalty, arguing that (1) it is punitive, and therefore section 2-102 of the Tort Immunity Act confers immunity; (2) the evidence shows that the Conservation District did not “knowingly” fail to process the child support under section 35 of the Withholding Act, because the Conservation District did not learn of the nonpayment until Jessica filed suit; and (3) even if the Conservation District knowingly failed to correct the processing errors after Jessica filed suit, no penalty is owed, because such penalty was stayed by an order entered in a separate action that has since been dismissed. Jessica cross-appeals, arguing that the court erred in capping the penalty at $10,000 per violation. We hold that, although the Conservation District is subject to the requirements of section 35 of the Withholding Act, section 2-102 of the Tort Immunity Act confers immunity from the $100-per- day penalty because the penalty is “punitive.” We reverse. ¶5 I. BACKGROUND ¶6 A. Child Support Processing Errors -2- 2014 IL App (2d) 121253 ¶7 Although the matter proceeded to a bench trial, most of the facts are undisputed. On April 16, 2004, the trial court entered a judgment for dissolution of marriage and an order directing Jeffrey’s employer to withhold a portion of his income for child support. At the time, Jeffrey was an employee of the Conservation District. ¶8 In May 2004, the Conservation District received notice of the withholding order entered in the marriage dissolution case. The Conservation District was ordered to deduct $217.38 from each of Jeffrey’s biweekly (i.e., every other week) paychecks and pay that amount to the Illinois State Disbursement Unit (SDU), which would forward that amount to Jessica to satisfy Jeffrey’s child support obligation. In 2004, the Conservation District outsourced its payroll functions to Advantage Payroll Services. Beginning on January 1, 2005, Ceridian replaced Advantage as the Conservation District’s payroll vendor. ¶9 The Conservation District provided each payroll vendor with information to be entered into the vendor’s system. Each vendor then administered all payroll functions for the Conservation District, including preparing and electronically signing paychecks and calculating and deducting amounts from an employee’s pay for taxes, union dues, health insurance premiums, child support, wage garnishments, and other obligations paid directly from the employee’s paycheck. ¶ 10 The Conservation District paid Jeffrey by direct deposit into his checking account. For more than three years, the child support payments were deducted from his paycheck, transferred to the SDU, and then directly deposited by the SDU into Jessica’s checking account at McHenry State Bank. ¶ 11 In five instances, however, Ceridian failed to process Jeffrey’s child support payments. The errors corresponded with Jeffrey’s paychecks on August 31, 2007, February 29, 2008, -3- 2014 IL App (2d) 121253 January 30, 2009, July 31, 2009, and December 30, 2009. Each time, the child support payment was paid by direct deposit into Jeffrey’s account rather than to the SDU, and Jessica did not receive a payment. Each error occurred when three paychecks were issued within a month. During those months, Ceridian’s system processed the child support payments for the first two pay periods but not the third. ¶ 12 On January 1, 2010, Auto Data Processing (ADP) replaced Ceridian as the Conservation District’s payroll vendor. ADP processed the first paychecks on January 15, 2010. The Conservation District audited the first payroll period, to confirm that ADP had handled the checks properly, and discovered that a child support payment had not been deducted from Jeffrey’s paycheck. On January 21, 2010, the Conservation District sent a check to the SDU for the missed payment. The Conservation District was reimbursed from Jeffrey’s next paycheck on January 29, 2010. ¶ 13 B. Withholding Act ¶ 14 On August 2, 2010, Jessica filed a complaint against the Conservation District in the marriage dissolution proceeding, seeking payment of $1,086.90 in past-due child support. Jessica also asserted a claim for a penalty under section 35 of the Withholding Act.1 750 ILCS 1 Earlier, on June 7, 2010, Jessica filed a separate action for the arrearage and penalty in case No. 10-LA-209 in the law division of the circuit court. On July 12, 2010, the court granted the Conservation District a temporary stay on the accrual of a penalty. Then, on August 3, 2010, the day after Jessica filed her complaint in the dissolution proceeding, the court granted the Conservation District a permanent stay, granted Jessica’s motion to voluntarily dismiss the action, and entered a written finding under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that the order was immediately appealable. No appeal was taken from the order. -4- 2014 IL App (2d) 121253 28/35 (West 2010). The Conservation District was served with a motion to add it as a necessary party in the dissolution proceeding, and the Conservation District filed an appearance. ¶ 15 Section 35(a) of the Withholding Act sets forth the obligations of employers, like the Conservation District, that have been served with an income-withholding notice. The parties correctly agree that the Conservation District owed a duty to process Jeffrey’s “income” under section 35. See 750 ILCS 28/15(d) (West 2010) (“ ‘Income’ means any form of periodic payment to an individual, regardless of source, * made by any person, private entity, federal or state government, any unit of local government, school district or any entity created by Public Act .”). The version of section 35(a) that was in effect when Jessica filed her claim states in relevant part as follows: “It shall be the duty of any payor who has been served with an income withholding notice to deduct and pay over income as provided in this Section. The payor shall deduct the amount designated in the income withholding notice, beginning no later than the next payment of income which is payable or creditable to the obligor that occurs 14 days following the date the income withholding notice was mailed . The payor shall pay the amount withheld to the State Disbursement Unit within 7 business days after the date the amount would (but for the duty to withhold income) have been paid or credited to the obligor. If the payor knowingly fails to withhold the amount designated in the income withholding notice or to pay any amount withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor, then the payor shall pay a penalty of $100 for each day that the amount designated in the income withholding notice (whether or not withheld by the payor) is not paid to the State Disbursement Unit after the period of 7 business days has expired. The -5- 2014 IL App (2d) 121253 failure of a payor, on more than one occasion, to pay amounts withheld to the State Disbursement Unit within 7 business days after the date the amount would have been paid or credited to the obligor creates a presumption that the payor knowingly failed to pay over the amounts. This penalty may be collected in a civil action which may be brought against the payor in favor of the obligee or public office. * For purposes of this Act, a withheld amount shall be considered paid by a payor on the date it is mailed by the payor *.” (Emphases added.) 750 ILCS 28/35(a) (West 2010). ¶ 16 The $100-per-day penalty is assessed for each violation of the Withholding Act. “ ‘A separate violation occurs each time an employer knowingly fails to remit an amount that it has withheld from an employee’s paycheck.’ ” In re Marriage of Miller, 227 Ill. 2d 185, 194 (2007) (quoting Grams v. Autozone, Inc., 319 Ill. App. 3d 567, 571 (2001)). ¶ 17 On November 10, 2010, the Conservation District filed a combined motion to dismiss the complaint under section 2-615 and section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619, 2-619.1 (West 2012)). The Conservation District argued that the complaint must be dismissed because (1) section 2-102 of the Tort Immunity Act is affirmative matter defeating the penalty claim (see 745 ILCS 10/2-102 (West 2012); 735 ILCS 5/2-619(a)(9) (West 2012)); (2) the complaint is time-barred by section 8-101 of the Tort Immunity Act (see 745 ILCS 10/8-101 (West 2012); 735 ILCS 5/2-619(a)(5) (West 2012)); (3) the Conservation District did not “knowingly” fail to process the payments (see 750 ILCS 28/35(a) (West 2010); 735 ILCS 5/2-619(a)(9) (West 2012)); (4) the Withholding Act is unconstitutional as applied to the Conservation District (see 735 ILCS 5/2-615 (West 2012)); and (5) laches bars the claim (see 735 ILCS 5/2-619(a)(9) (West 2012)). On March 7, 2011, the trial court denied the motion without comment, and the matter proceeded to a bench trial on mostly stipulated facts. -6- 2014 IL App (2d) 121253 ¶ 18 C. Trial Court’s Ruling ¶ 19 On October 16, 2012, the trial court entered a judgment for Jessica on her penalty claim based on the Conservation District’s failure to process the five child support payments of $217.38 each. The court noted that the Conservation District already had paid the SDU $1,086.90 to satisfy the arrearage, but the court did not enter judgment regarding that payment. ¶ 20 The court continued as follows. Jeffrey was paid biweekly. By failing to withhold and remit child support from his paycheck on August 31, 2007, the Conservation District was subject to a penalty at the rate of $100 per day. When the Conservation District also failed to withhold and remit the support payment from his paycheck on February 29, 2008, and the first payment was still outstanding, the Conservation District was subject to two $100 penalties for each day that both payments remained outstanding. Because the Conservation District failed to process five support payments, corresponding with Jeffrey’s paychecks on August 31, 2007, February 29, 2008, January 30, 2009, July 31, 2009, and December 30, 2009, the Conservation District was subject to multiple $100 penalties until the arrearage was paid. ¶ 21 On February 25, 2011, the Conservation District paid the SDU $1,086.90, which was equal to the five missing child support payments, after the trial court denied a stay on the accrual of the penalty. The trial court ruled that the Conservation District’s payment terminated the accrual of an additional penalty and would not constitute a judicial admission of any allegations in the complaint. ¶ 22 Counting the number of days from each violation to February 25, 2011, when the Conservation District paid the arrearage, the court calculated the five penalty periods as follows: (1) 1,266 days, (2) 1,084 days, (3) 748 days, (4) 565 days, and (5) 414 days. This explains how the Conservation District accumulated 4,077 penalties in less than 2½ years and why Jessica -7- 2014 IL App (2d) 121253 argues that she is entitled to a judgment in the amount of $407,700. See Miller, 227 Ill. 2d at 194. ¶ 23 The court found that the Conservation District knew of its obligation to withhold the sum of $217.38 from each of Jeffrey’s paychecks and remit the payments to the SDU within seven business days of the date the funds would have been paid to Jeffrey but for the withholding obligation. The court also found that the Conservation District was aware of the penalties that would apply for noncompliance with the withholding order. The Conservation District admitted receipt of the notice to withhold, and its action in withholding and remitting child support to the SDU sufficiently established the receipt without a further finding by the court. ¶ 24 As to the five processing errors, the court found that the Conservation District, knowing of its obligation to withhold and remit child support, did not audit its payroll vendors to ensure compliance with the law until January 2010. As such, the Conservation District knowingly failed to withhold Jeffrey’s child support payments and relied on third parties to do so without confirming that the vendors were acting properly on the Conservation District’s behalf. The court determined that the five errors created a statutory presumption of the Conservation District’s knowing failure to process the payments and that the Conservation District failed to rebut that presumption. ¶ 25 Emphasizing that the Conservation District owed a duty to audit the withholding and remittance of child support, the court found that the information or knowledge was in the Conservation District’s total control even though it passed the responsibility to a third party. At the very least, the Conservation District had knowledge of an error when it audited ADP in January 2010, but the Conservation District took no remedial action until served with a summons and complaint. -8- 2014 IL App (2d) 121253 ¶ 26 The court found that, as early as July 6, 2010, when the Conservation District was served with a complaint in case No. 10-LA-209, the Conservation District had notice of the five processing errors. However, the Conservation District failed to correct the processing errors until February 25, 2011. ¶ 27 The court held that the Conservation District’s failure to pay the delinquent amounts after receipt of the complaint in case No. 10-LA-209, coupled with the lack of any audit, proves that it knowingly failed to comply with the withholding order. The court agreed with Jessica that any purported stay issued in case No. 10-LA-209 ran contrary to the statute and, being a temporary order, terminated upon the dismissal of that action. Therefore, the court concluded, the stay had no effect on the accrual of the penalty. ¶ 28 The court further held that the penalty of section 35 of the Withholding Act does not violate the Conservation District’s due process rights and that the doctrine of laches does not bar Jessica’s claim. Finally, the statute of limitations did not run on the first two missed payments, because they remained outstanding and continued to accrue penalty days, preventing the limitations period from commencing. The Conservation District learned of the processing problem no later than during the audit of ADP in January 2010. The court also ruled that “[t]he discovery rule should apply to this case to prevent the statute of limitations from accruing because [Jessica] was not aware of the missed payments until January 2010 and could not determine the missed payments as she did not have the factual information from which to determine the missed payments until March 2010.” ¶ 29 The court concluded that, although Jessica is entitled to the maximum statutory penalty for all five missed payments, section 35, as amended, capped the penalty at $10,000 for each -9- 2014 IL App (2d) 121253 violation and created new duties. Accordingly, the court granted Jessica a judgment of $50,000. The Conservation District appeals, and Jessica cross-appeals. ¶ 30 II. ANALYSIS ¶ 31 A. Tort Immunity Act ¶ 32 The Conservation District filed a combined motion to dismiss Jessica’s complaint, pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619, 2-619.1 (West 2012)). On appeal, the Conservation District argues that Jessica’s penalty claim must be dismissed under section 2-619(a)(9) of the Code because section 2-102 of the Tort Immunity Act (745 ILCS 10/2-102 (West 2012)) immunizes the Conservation District from the penalty prescribed for failing to process child support payments according to section 35 of the Withholding Act. ¶ 33 Section 2-619(a)(9) of the Code provides that an action may be dismissed when “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2012). A ruling on a section 2-619 motion must “ ‘interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.’ ” Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003) (quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). However, conclusions of law or fact unsupported by specific factual allegations are not to be taken as true. Collins v. Bartlett Park District, 2013 IL App (2d) 130006, ¶ 52. ¶ 34 A ruling on a motion to dismiss pursuant to section 2-619(a)(9) is reviewed de novo. Van Meter, 207 Ill. 2d at 368. In reviewing a ruling on a motion to dismiss under section 2-619(a)(9), the relevant inquiry is “ ‘whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter - 10 - 2014 IL App (2d) 121253 of law.’ ” Sandholm v. Kuecker, 2012 IL 111443, ¶ 55 (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993)). ¶ 35 Jessica argues that, because there is no dispute that the Conservation District breached its duties under the Withholding Act, we would improperly “tinker” with the statute by granting immunity. Jessica conflates the principles of statutory duties and immunity. ¶ 36 The purpose of the Tort Immunity Act is to protect local public entities and public employees from liability arising from the operation of government. By providing immunity, the legislature sought to prevent public funds from being diverted from their intended purpose to the payment of damages claims. The Tort Immunity Act grants only immunities and defenses; it does not create duties. Rather, the Tort Immunity Act merely codifies existing common-law duties, to which the delineated immunities apply. Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475, 479 (2002); Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001). Therefore, whether a local public entity owed a duty and whether that entity enjoyed immunity are separate issues. Once a court determines that a duty exists, it then addresses whether the Tort Immunity Act applies. Arteman, 198 Ill. 2d at 480; Village of Bloomingdale, 196 Ill. 2d at 490. ¶ 37 In resolving whether section 2-102 of the Tort Immunity Act confers immunity from the penalty provision of section 35 of the Withholding Act, we note that the cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent. Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 6 (2004). Our analysis begins with the statutory language, which is the best indication of the legislature’s intent. Metzger v. DaRosa, 209 Ill. 2d 30, 34-35 (2004). The language must be afforded its plain, ordinary, and popularly understood meaning. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003). - 11 - 2014 IL App (2d) 121253 When the language is unambiguous, the statute must be applied as written without resort to other aids of construction. Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 10 (2001). ¶ 38 Neither Jessica nor the Conservation District argues that section 35 or section 2-102 is ambiguous. Moreover, the Conservation District concedes that section 35 created a duty to process Jeffrey’s child support payments according to the withholding order. Section 35 provides that, when a payor knowingly fails to follow a withholding order, the payor shall pay a penalty of $100 for each day that the amount is not paid. 750 ILCS 28/35 (West 2010). ¶ 39 However, section 2-102 provides in relevant part that “[n]otwithstanding any other provision of law, a local public entity is not liable to pay punitive or exemplary damages in any action brought directly or indirectly against it by the injured party or a third party.” (Emphases added.) 745 ILCS 10/2-102 (West 2012). Section 2-102 immunizes against “punitive or exemplary damages” assessed against agencies like the Conservation District, because counties are local public entities under the Tort Immunity Act. See 745 ILCS 10/1-206 (West 2012). ¶ 40 We reject Jessica’s claim that, because her penalty claim was not brought in tort, the Tort Immunity Act does not apply. Section 2-101 excludes certain claims from immunity under the Tort Immunity Act: “Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this Act affects the liability, if any, of a local public entity or public employee, based on: a). Contract; b). Operation as a common carrier; and this Act does not apply to any entity organized under or subject to the ‘Metropolitan Transit Authority Act’, approved April 12, 1945, as amended; - 12 - 2014 IL App (2d) 121253 c). The ‘Workers’ Compensation Act’, approved July 9, 1951, as heretofore or hereafter amended; d). The ‘Workers’ Occupational Diseases Act’, approved July 9, 1951, as heretofore or hereafter amended; e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as heretofore or hereafter amended[; and] f). The ‘Illinois Uniform Conviction Information Act’, enacted by the 85th General Assembly, as heretofore or hereafter amended.” 745 ILCS 10/2-101 (West 2012). ¶ 41 Neither general actions for statutory penalties nor claims under the Withholding Act are explicitly excluded from immunity pursuant to section 2-101 of the Tort Immunity Act. Furthermore, section 8-101 of the Tort Immunity Act, which establishes the statute of limitations for civil actions against local governments, includes “any action, whether based upon the common law or statutes or Constitution of this State.” 745 ILCS 10/8-101 (West 2012). The plain and ordinary meaning of the language used in sections 2-101, 2-102, and 8-101 suggests that a claim for a statutory penalty under the Withholding Act is not excluded from immunity conferred by the Tort Immunity Act. ¶ 42 In Raintree Homes, Inc. v. Village of Long Grove, 335 Ill. App. 3d 317, 320 (2002), this court stated that “the Tort Immunity Act * applies only to actions in tort.” However, the matter advanced to the supreme court, which stated that “we do not adopt or approve of the appellate court’s reasoning that the Tort Immunity Act categorically excludes actions that do not sound in tort.” Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004). - 13 - 2014 IL App (2d) 121253 ¶ 43 Furthermore, in Village of Bloomingdale, the supreme court applied the Tort Immunity Act to a nontort claim based in quasi-contract. A land developer filed a rezoning petition and paid the required fee, and later it filed a counterclaim against the village for breaching its duty to process the petition in good faith. Village of Bloomingdale, 196 Ill. 2d at 500. The developer labeled its claim “quasi-contract[ual]” to avail itself of the tort immunity exclusion of section 2- 101(a), which states that the Tort Immunity Act does not affect liability based on contract. Village of Bloomingdale, 196 Ill. 2d at 500. The supreme court ruled that the developer’s “quasi- contract” claim was not excluded under section 2-101 and that the village was immune from liability under section 2-104. Village of Bloomingdale, 196 Ill. 2d at 500-01. By considering the application of section 2-104 to the quasi-contractual claim, the supreme court demonstrated that tort immunity potentially applies to nontort claims that are not excluded by section 2-101 of the Tort Immunity Act. Village of Bloomingdale, 196 Ill. 2d at 501. Consistent with Village of Bloomingdale, we consider the application of section 2-102 to Jessica’s claim for a penalty under the Withholding Act, because her claim is not excluded under section 2-101 of the Tort Immunity Act. As in Village of Bloomingdale, this matter is a civil action for damages brought against a governmental entity that allegedly breached its duty according to a legislative enactment. ¶ 44 Relying on Paulson v. County of De Kalb, 268 Ill. App. 3d 78, 80 (1994), the Conservation District argues that the penalty prescribed by section 35 of the Withholding Act qualifies as “ ‘punitive or exemplary damages’ ” under section 2-102 of the Tort Immunity Act. In Paulson, the plaintiff sued a county-run nursing home and sought to treble the damages pursuant to section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602 (West 1994)). The county claimed that section 3-602 was a punitive-damages provision that did not apply, because - 14 - 2014 IL App (2d) 121253 section 2-102 of the Tort Immunity Act (745 ILCS 10/2-102 (West 1994)) prohibited the assessment of punitive damages against a governmental entity. ¶ 45 Explaining that “[p]unitive damages are not awarded as compensation but instead serve to punish the offender and to deter that party and others from committing similar acts of wrongdoing,” this court concluded that two-thirds of the treble damages awarded pursuant to section 3-602 of the Nursing Home Care Act are considered “punitive” for purposes of immunity under section 2-102. Paulson, 268 Ill. App. 3d at 80. We held that, although section 3-602 of the Nursing Home Care Act was enacted primarily to encourage private enforcement of the statute and to compensate residents for violations of their rights, section 3-602 is punitive because “ ‘[t]he obvious purpose of allowing plaintiffs to recover three times their actual damages, apart from encouraging utilization of the remedy, is to punish violators and to discourage future violations.’ ” Paulson, 268 Ill. App. 3d at 80 (quoting Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 361 (1986)). Because “ ‘ “actual damages” ’ are intended to make the plaintiff whole, any multiplication of the amount of actual damages serves to increase the award beyond the merely compensatory. *** ‘ “The remedy provided is not solely civil; two thirds of the recovery is not remedial and inevitably presupposes a punitive purpose.” ’ ” Paulson, 268 Ill. App. 3d at 81 (quoting People ex rel. Fahner v. Climatemp, Inc., 101 Ill. App. 3d 1077, 1080 (1981), quoting Lyons v. Westinghouse Electric Corp., 222 F.2d 184, 189 (2d Cir. 1955)). ¶ 46 The plaintiff in Paulson argued that, for purposes of section 2-102 of the Tort Immunity Act, treble damages bear no similarity to punitive damages, which, unlike treble damages, can be much higher, are generally jury questions, and are based in part upon the net worth of the defendant. Paulson, 268 Ill. App. 3d at 81. We disagreed, emphasizing that “there is no - 15 - 2014 IL App (2d) 121253 ignoring that two-thirds of the recovery that section 3-602 authorizes cannot be characterized as merely compensatory.” Paulson, 268 Ill. App. 3d at 81. “Although treble damages are not identical in all respects to traditional common-law punitive damages, their overall character is punitive.” Paulson, 268 Ill. App. 3d at 81. Based on the distinction between compensatory and punitive damages, this court concluded that two-thirds of the statutory treble damages constituted punitive damages and that therefore the county-run nursing home had immunity from that portion of the award. ¶ 47 Like the treble damages provision of section 3-602 of the Nursing Home Care Act, the overall character of the penalty provision of section 35 of the Withholding Act is punitive. Apart from encouraging utilization of the remedy for an employer’s failure to follow a withholding order, the obvious purpose of allowing plaintiffs like Jessica to recover $100 per day for each knowing violation of section 35 is to punish violators like the Conservation District and to discourage future violations. See Paulson, 268 Ill. App. 3d at 80. Actual damages recoverable under section 35 are intended to make the plaintiff whole, but the $100-per-day penalty serves to increase the award beyond the merely compensatory. 750 ILCS 28/35 (West 2010) (“This penalty may be collected in a civil action which may be brought against the payor in favor of the obligee or public office.”). The penalty provision of section 35 is not remedial and presupposes a punitive purpose. See Paulson, 268 Ill. App. 3d at 81 (citing Fahner, 101 Ill. App. 3d at 1080). ¶ 48 Section 2-102 of the Tort Immunity Act and section 35 of the Withholding Act can be read together harmoniously. Section 2-102 contains the prefatory phrase “notwithstanding any other provision of law,” which was intended to clarify the relationship between the Tort Immunity Act, which prohibits the assessment of punitive damages against a local public entity, and all other statutory or common-law actions that allow the assessment of punitive damages in - 16 - 2014 IL App (2d) 121253 certain circumstances. Paulson, 268 Ill. App. 3d at 82. The general regulatory provisions of section 35 apply to local public entities, affording an obligee a cause of action to recover an arrearage when the employer fails to perform according to the withholding order. Here, even though the punitive penalty provision does not apply, section 35 imposed on the Conservation District a duty to withhold and forward Jeffrey’s child support payments, giving Jessica a cause of action to recover those payments when the Conservation District failed to do so. See 750 ILCS 28/35 (West 2010). ¶ 49 If the legislature had intended to deny governmental entities immunity for claims brought under section 35 of the Withholding Act, it could have explicitly stated so. We will not read such a limitation into section 2-102 of the Tort Immunity Act or disregard the phrase “notwithstanding any other provision of law” contained therein. See Shields v. Judges’ Retirement System of Illinois, 204 Ill. 2d 488, 497 (2003) (it is the dominion of the legislature to enact laws and the courts to construe them, and we can neither restrict nor enlarge the meaning of an unambiguous statute); Paulson, 268 Ill. App. 3d at 82-83. ¶ 50 Further, denying the Conservation District immunity from a penalty under section 35 of the Withholding Act would contravene the well-established policy of section 2-102 of the Tort Immunity Act by holding taxpayers responsible for the agency’s violation of the law. See Paulson, 268 Ill. App. 3d at 83. Requiring local public entities to compensate persons such as Jessica for the injuries they have sustained serves a salutary purpose, but it is unsound public policy to punish local taxpayers for the misconduct of employees over whom the taxpayers have no control. Paulson, 268 Ill. App. 3d at 83. Imposing any damages award greater than that required to compensate Jessica would serve primarily to punish local taxpayers. - 17 - 2014 IL App (2d) 121253 ¶ 51 Jessica cites In re Marriage of Chen, 354 Ill. App. 3d 1004 (2004), for the proposition that the penalty prescribed by section 35 of the Withholding Act is not “punitive” for purposes of immunity. In Chen, an employer who was subject to a $90,600 penalty under section 35 argued that the penalty was grossly excessive and violated its due process rights. The employer urged this court to resolve its due process claim by looking to the punitive damages cases decided by the United States Supreme Court and applying the criteria identified in BMW of North America, Inc. v. Gore, 517 U.S. 559, 574-585 (1996), and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 418 (2003). This court declined to do so: “Because this case involves a statutory penalty rather than an award of punitive damages, we decline to resolve [the employer’s] due process claim based on the above [Gore] criteria. Simply stated, the concerns over the imprecise manner in which punitive damages systems are administered are not present here. Unlike the inherent uncertainty associated with punitive damages, section 35 of the [Withholding] Act provides employers with exact notice of the $100-per-day penalty they will face for failing to comply with a support order. Indeed, employers receive personal notice of their duties to withhold and pay over income, as well as the penalty for failing to do so, through service of the income withholding order.” Chen, 354 Ill. App. 3d at 1022. ¶ 52 Thus, the Chen court distinguished common-law punitive damages, which are uncertain, from the section 35 penalty, where “employers receive personal notice of their duties to withhold and pay over income, as well as the penalty for failing to do so, through service of the income withholding order.” Chen, 354 Ill. App. 3d at 1022. While “punitive damages pose an acute danger of arbitrary deprivation of property, and jury instructions typically afford the jury wide discretion in choosing amounts,” section 35 sets the penalty at $100 per day, putting the - 18 - 2014 IL App (2d) 121253 employer in control of the extent of the fine. The Chen court relied on this distinction solely as support for holding that the due process scrutiny afforded common-law punitive damages awards does not apply to section 35 penalties. ¶ 53 Common-law punitive damages are uncertain while the penalty prescribed by section 35 is definite, but contrary to Jessica’s assertion, their relative predictability does not render the former punitive and the latter compensatory for purposes of section 2-102 of the Tort Immunity Act. The overall character of both is punitive. Chen does not compel this court to deviate from the rationale of Paulson. ¶ 54 The Paulson court held that section 2-102 of the Tort Immunity Act excludes two-thirds of a treble damages award prescribed by section 3-602 of the Nursing Home Care Act. Consistent with Paulson, we hold that section 2-102 affords the Conservation District immunity from the $100-per-day penalty provision that otherwise might have applied to the five violations of section 35 of the Withholding Act. ¶ 55 We determine that section 2-102 confers immunity from the penalty prescribed by section 35 of the Withholding Act. Our holding obviates the need to address the Conservation District’s remaining arguments, that it did not “knowingly” fail to perform according to section 35 and that, even if it did, any potential penalty stopped accruing after the stay order was entered in case No. 10-LA-209. We also need not consider Jessica’s cross-appeal, in which she argues that the court erred in capping the penalty at $10,000 per violation. ¶ 56 III. CONCLUSION ¶ 57 For the preceding reasons, we reverse the judgment imposing a $50,000 penalty on the Conservation District for the five violations of section 35 of the Withholding Act. The parties do - 19 - 2014 IL App (2d) 121253 not dispute that the Conservation District paid $1,086.90 on February 25, 2011, to remedy its failure to perform under the withholding order. ¶ 58 Reversed. - 20 -	{ "pile_set_name": "FreeLaw" }
352 F.2d 232 Ralph W. TAYLOR, Appellant,v.UNITED STATES MARSHAL FOR the EASTERN DISTRICT OF OKLAHOMA, Appellee. No. 8158. United States Court of Appeals Tenth Circuit. October 1, 1965. Malcolm E. MacDougall, Denver, Colo., for appellant. E. C. Nelson, Asst. U. S. Atty. (Bruce Green, U. S. Atty., on brief), for appellee. Before PHILLIPS, BREITENSTEIN and SETH, Circuit Judges. PHILLIPS, Circuit Judge. 1 This is an appeal by Taylor from an order dismissing his application for a writ of habeas corpus. 2 Taylor was sentenced to imprisonment for a term of six years on a conviction for a federal offense by the United States District Court for the Eastern District of Missouri. On July 3, 1963, he was released from the United States Penitentiary at Leavenworth, Kansas, in accordance with 18 U.S.C.A. § 4163.1 3 Section 4163, supra, in part here pertinent, reads: 4 "Except as hereinafter provided a prisoner shall be released at the expiration of his term of sentence less the time deducted for good conduct. A certificate of such deduction shall be entered on the commitment by the warden or keeper. * * " 5 18 U.S.C.A. § 4164,2 in part here pertinent, reads: 6 "A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days."3 7 The Act of June 25, 1910, 36 Stat. 820, 18 U.S.C.A. § 717 provided: 8 "If the warden of the prison or penitentiary from which said prisoner was paroled or said board of parole or any member thereof shall have reliable information that the prisoner had violated his parole, then said warden, at any time within the term or terms of the prisoner's sentence, may issue his warrant to any officer hereinafter authorized to execute the same, for the retaking of such prisoner." 9 Section 3 of the Act of May 13, 1930, 46 Stat. 272, 18 U.S.C.A. § 723c, in part here material, provided: 10 "SEC. 3. The said board, or any member thereof, shall hereafter have the exclusive authority to issue warrants for the retaking of any United States prisoner who has violated his parole. * " 11 Section 4205 of Title 18 U.S.C.A. (United States Code, Crimes and Criminal Procedure) consolidated § 723c, supra, with that part of § 717, supra, which provided the time within which parole violation warrants might issue. The remaining portions of § 717, supra, were regarded as obsolete. Such § 4205 reads: 12 "A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve. June 25, 1948, c. 645, 62 Stat. 854." 13 Section 4207, 18 U.S.C.A., 62 Stat. 855, provides: 14 "A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. 15 "The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof. 16 "If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced." Sections 4205 and 4207, supra, became effective September 1, 1948. 17 On September 30, 1963, a member of the United States Board of Parole prepared and signed a warrant for Taylor's arrest for violation of the conditions of his release. On October 26, 1963, Taylor was arrested in Tulsa, Oklahoma, by a state officer on a charge of burglary of parking meters. On December 12, 1963, on his plea of guilty to an information charging such burglary, he was sentenced to imprisonment for a term of two years in the Oklahoma State Penitentiary. He was released from state custody on March 6, 1965, and taken into custody under the parole violator's warrant referred to above, by the United States Marshal for the Eastern District of Oklahoma, who returned him to Leavenworth on March 28, 1963. His parole was revoked for violation of the conditions of his release, and he is now incarcerated in the United States Penitentiary at Leavenworth, Kansas. 18 Taylor set up two grounds for the writ: One, that he had fully served his federal sentence; and two, that the parole violator's warrant was not issued within the maximum term of the federal sentence. 19 When a federal prisoner is conditionally released as on parole under § 4163, supra, he remains while on parole under federal custody and control. While parole is an amelioration of punishment, it is in legal effect imprisonment, and if during the period of his parole, a parolee is arrested, charged and convicted of a state offense and is confined under a sentence for such offense in a state penal institution, his status during state custody is like that of an escaped prisoner, and during the time of such state custody he ceases to be under federal legal custody and control.4 And during the time he is in state custody, the running of his federal sentence and the period of his parole is interrupted and suspended and the jurisdiction of the Board of Parole under his federal sentence is also suspended.5 20 The suspension of the jurisdiction of the Parole Board during state custody does not mean that its jurisdiction is lost. It is merely temporarily suspended and may be resumed again when state custody has terminated.6 21 Even if the running of the maximum term for which Taylor was sentenced had not been interrupted during the time he was incarcerated in the state penitentiary, such maximum term would not have terminated until May 14, 1965, 681 days after he was released as on parole, which date was subsequent to March 6, 1965, the date the Marshal received the parole violator's warrant and took Taylor into custody thereunder. Counsel for Taylor contends, however, that the maximum term for which Taylor was sentenced ended November 15, 1964. He arrives at that result by equating the maximum term of his sentence with his period of parole, which under § 4164, supra, is "until the expiration of the maximum term * * for which he was sentenced less one hundred and eighty days." Counsel's contention is not well founded. First, the deduction of the 180 days fixes the term of parole, not the remainder of the maximum term of the sentence and if the parolee violates the conditions of his parole during the term thereof, he may be required to serve all or any part of the term for which he was sentenced, undiminished by the time he was on parole. 22 Moreover, Taylor was not in the legal custody or subject to the control of the federal authorities during the period he was in state custody, and during such period he was not serving the remainder of his sentence by parole custody and the running of his sentence was suspended. 23 We therefore hold that Taylor had not fully served his sentence and that the warrant was issued and executed within the maximum term for which Taylor was sentenced. 24 Affirmed. Notes: 1 18 U.S.C.A. § 4163, as amended by the Act of September 19, 1962, 76 Stat. 552 2 18 U.S.C.A. § 4164, as amended by the Act of June 29, 1951, 65 Stat. 98 3 The purpose of the 180-day deduction from the maximum term or terms in § 4164, supra, and the reasons therefor were stated in the Senate Report on the bill, as follows: "Prior to the passage of the act of June 29, 1932, c. 310, section 4, 47 Statute 381, which is now section 4164 of title 18, United States Code, a Federal prisoner was released unconditionally after he had served the term or terms for which he had been sentenced, less the commutation of time for good conduct. Section 4164 (the act of June 29, 1932) presently provides that a Federal prisoner who has served his sentence, less good time deductions, shall be treated upon release as if he were released on parole, and shall be subject to all provisions of law relating to the parole of Federal prisoners until the expiration of the maximum term or terms for which he was sentenced. "The purpose of this bill (S. 1366) is to amend section 4164 so as to provide that a prisoner who has served his sentence, less good time deductions, shall be released unconditionally if there remain less than 180 days to serve under the maximum term or terms of his sentence; and, if there remains a greater period to serve, the prisoner shall be treated upon release as if he were released upon parole until the expiration of the maximum term or terms for which he was sentenced, less 180 days. "The Department of Justice is put to considerable expense and trouble in returning to custody the relatively minor number of conditional releasees who violate the terms of their release under section 4164, and who have short unexpired terms to serve. According to advice received from the Attorney General, in those cases in which the prisoners have less than 180 days remaining to be served the disadvantages outweigh the advantages of returning such violators to custody. This advice is predicated on the basis that a releasee who violates the conditions of his release by committing a serious offense can be tried for that offense, and if a violation simply consists of some minor act which would not amount to a criminal offense if committed by a person not in the situation of a parolee, such act does not warrant the expense and inconvenience involved in returning him to custody for a short period of time. In this connection it may be noted that prisoners released in accordance with the provisions of section 4164 have actually served their full sentence, less good time deductions as provided by law." U.S. Code Congressional and Administrative Service, 82nd Congress, 1st Session, 1951, pp. 1544, 1545. 4 Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247; Letellier v. Taylor, 10 Cir., 348 F.2d 893 5 Anderson v. Corall, 263 U.S. 193, 195-197, 44 S.Ct. 43; Taylor v. Simpson, 10 Cir., 292 F.2d 698, 701; Neal v. Hunter, 10 Cir., 172 F.2d 660, 662; Evans v. Hunter, 10 Cir., 162 F.2d 800, 802; See also, Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 6 Stubblefield v. Taylor, 10 Cir., 293 F.2d 271, 272; Myers v. Hunter, 10 Cir., 199 F.2d 662; Gould v. Sanford, 5 Cir., 167 F.2d 877, 878, and cases cited in Note 6, supra	{ "pile_set_name": "FreeLaw" }
20 Cal.App.4th 876 (1993) 24 Cal. Rptr.2d 892 TERRI FRIEDMAN, Plaintiff and Respondent, v. ELLIOTT FRIEDMAN, Defendant and Appellant. Docket No. A058865. Court of Appeals of California, First District, Division Four. November 30, 1993. 879 COUNSEL Lawrence A. Gibbs for Defendant and Appellant. Bernard N. Wolf for Plaintiff and Respondent. OPINION ANDERSON, P.J. Elliott Friedman (appellant), defendant in a "Marvin" action (Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal. Rptr. 815, 557 P.2d 106] [Marvin I]), appeals from an order awarding temporary spousal support pending trial to Terri Friedman (respondent), plaintiff in that action. We reverse. I. BACKGROUND A. Procedural History On January 13, 1992, respondent filed a complaint, seeking damages and various forms of equitable relief from appellant, following termination of a relationship in which the two had cohabited for twenty-one years. On April 21, 1992, respondent filed a motion, requesting "temporary support" pending trial. The motion was supported by a lengthy declaration by respondent, 880 chronicling the history of her relationship with appellant. Appellant filed opposition to the motion, including a declaration which contradicted a number of facts set forth in respondent's declaration. The trial court conducted a two-day evidentiary hearing, rendering its decision shortly thereafter. In its "Statement of Decision on Motion for Temporary Support" the court noted that respondent's motion presented a "compelling" case for an award of (temporary) support "based on an implied contract...." The court found that the evidence presented was insufficient to support a finding of an express agreement to provide support but that it was adequate to support a finding of an "implied" agreement. Specifically, the court found that there was an implied contract between the parties "that if they separated, [respondent] would be supported by [appellant] in the same manner as if they had been legally married." After finding an implied contract for support, the court examined the question of "whether it is appropriate to make the highly unusual provision for damages to be paid pending trial." The court found that trial could be years in the future, leaving respondent "in poor health living off her dwindling personal assets." The court found that such an award was proper because there were no other adequate remedies, respondent would suffer irreparable injury (if the award were not made) and respondent had a "reasonable probability of success at trial on the merits." Finally, the court awarded $1,426 per month in temporary support, based on Alameda County spousal support guidelines. Apparently in response to appellant's request, the court issued a "Further Statement of Decision." This statement expanded the court's earlier findings on the issues of irreparable harm and inadequacy of legal remedies. On the question of irreparable harm, the court found that "injunctive relief" was required because respondent was totally physically disabled and had only modest liquid savings to use to "support her daily needs and to maintain her mortgage, insurance and real property tax payments...." On the question of the inadequacy of monetary damages the court reiterated that trial might be years in the future. A formal "Order for Temporary Support" was then entered which ordered appellant to pay the sum of $1,426 per month, beginning April 21, 1992, until the time of trial or further order of the court. Shortly thereafter appellant filed a motion to dissolve injunction and, in the alternative, to fix the amount of security for undertaking. During the course of that hearing, the court noted that its original order, indeed, had been framed as an injunctive order. However, the court ultimately "changed 881 [its] mind" and denied "appellant's motion to dissolve injunction and to require security" because the earlier order was not an injunctive order but rather, an "order to pay money...." B. Factual Background The evidence presented at the original hearing on the motion for temporary support consisted of the declarations of the parties filed in support of and in opposition to the motion, as well as testimony from appellant and respondent. The evidence presented very few factual conflicts. (1) History of Relationship Respondent and appellant began living together in 1967, when respondent was 25 years old. Respondent had a child from a previous marriage when she and appellant began their cohabitation. Respondent and appellant did not believe that a license for marriage was necessary to bond together in a lifetime commitment. Thus, they vowed to be husband and wife and to strive to be partners in all respects "without any sanction by the State." In 1971 respondent and appellant purchased land in Alaska in partnership with several other individuals; title to their portion referred to them as "Husband and Wife." Over a period of two years, they built a home on their property. Appellant worked as an investigator the entire time they were in Alaska. Respondent initially worked as a waitress; however, her principal work was in contributing to appellant's career, building up and maintaining the property, and caring for their first child, who was born in 1974. Along the way they also acquired an interest in some commercial property, the deed to which listed respondent as "Terri Friedman." When they decided to leave Alaska that property was sold. In 1978 or 1979 respondent and appellant moved back to the Bay Area; appellant began attending law school in 1979. Their plans for respondent to complete her college education fell through in part due to illness of their second child, who was born in 1981. Also in 1981 they purchased and fixed up a home in Berkeley; they apparently sold that home and purchased a new home in Kensington in 1986. After law school appellant became a practicing attorney and entered into a small partnership; respondent assisted in designing and decorating his office. When that partnership dissolved appellant continued in practice and did well economically. Respondent involved herself in upgrading and maintaining their homes, cooking, cleaning, entertaining and caring for their children. 882 In the mid-1980's respondent was experiencing back trouble; ultimately, she was diagnosed as having a herniated disc which required surgery. Respondent is currently disabled; her ability to walk is extremely limited, and she must wear a back brace at all times, except when she is asleep. In 1982 respondent and appellant planned to be formally married. However, appellant was prevented by a storm from returning to the Bay Area on the day of the wedding; so, no formal wedding ceremony ever took place. (2) Evidence Pertaining to Financial Affairs and Support Respondent's declaration contained no references to discussions or agreements between the parties about their financial obligations to each other, apart from noting the manner in which they took title to property together. Appellant's declaration stated that he and respondent had no discussions about their financial obligations to each other. Moreover, according to appellant, they never discussed what would happen if they separated, and the issue of support never arose. Appellant did not contest respondent's ownership of a one-half interest in their real property in Alaska and California.[1] However, he denied any further agreements to pool their other accumulations while they were together. At the hearing on the motion for temporary support, respondent testified that she and appellant had an understanding and had had conversations dealing with "financial, economic equality" and sharing of property. She further testified that they understood and appellant had said that all the property they were involved in was "equal in ownership...." Very little testimony was offered by appellant on the issue of support. Appellant testified that he and respondent never discussed the concept of support after separation. He stated, "That was not part of our life. It was not part of what we were doing.... [W]hen we split up, we split up." He also testified that he did nothing he was aware of to lead respondent to believe he would provide support for her if they separated. Respondent's testimony on the issue of support was also limited. She testified that appellant did agree (expressly) at one time to support her if their relationship ended. She stated that, although she never expected that she and appellant would separate, they did discuss the subject on one or two occasions, and appellant said not to worry about support. 883 II. DISCUSSION A. Appellant's Contentions Appellant first contends that the trial court erred in issuing a pretrial "order to pay money." He then argues that, if the order to pay money is considered to be, in reality, a preliminary injunction, it was granted in error because (a) respondent has an adequate remedy at law; (b) insufficient evidence was presented that respondent would suffer irreparable harm; and (c) respondent failed to demonstrate that she has a reasonable probability of success on the merits. Finally, appellant argues that the trial court erred in making its support award retroactive to the date on which respondent's motion for temporary support was filed. Because we agree with appellant's first two arguments, we do not reach the third. B. Discussion (1) The Trial Court's "Order to Pay Money" Was Made Without Authority In Marvin I, supra, 18 Cal.3d 660, 681, the Supreme Court determined that the Family Law Act was not intended by the Legislature to delineate the property rights of nonmarital partners. However, the court also determined (a) that the courts should enforce contracts between nonmarital partners and (b) that in the absence of an express contract, the courts should look to the conduct of the parties to determine whether or not that conduct demonstrates "an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties." (Id. at p. 665.) The Marvin court also held that, in the absence of an express agreement, the courts may look to a variety of remedies to protect the parties' expectations. Among those remedies, the court suggested that principles of constructive trust, resulting trust or quantum meruit might be employed by the courts. (Marvin I, supra, 18 Cal.3d at p. 684.) In footnote 25, the court noted that the remedies suggested were not exclusive and that "additional equitable remedies [may evolve] to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate ... in light of the factual setting in which they arise." (Ibid.) The court made one other finding and reserved a decision on one other question which bear on the case before us. In footnote 24, the court stated: "we do not hold that plaintiff and defendant were `married,' nor do we extend to plaintiff the rights which the Family Law Act grants valid or 884 putative spouses...." (Marvin I, supra, 18 Cal.3d at p. 684.) However, in footnote 26, the court stated: "We do not pass on the question whether, in the absence of an express or implied contractual obligation, a party to a nonmarital relationship is entitled to support payments from the other party after the relationship terminates." (Id. at p. 685.) Our analysis of the trial court's "order to pay money" is guided by the Supreme Court's pronouncements in Marvin. However, that analysis is complicated by the difficulty we face in understanding exactly what type of order was entered below. The trial court's statement of decision makes it clear that the court found that there was an "implied" agreement between appellant and respondent. However, the statement of decision does not reflect what specific conduct of the parties led to its conclusion that such an implied agreement existed. (Marvin I, supra, 18 Cal.3d at p. 678, fn. 16.) Moreover, the statement of decision fails to set forth the terms of the implied agreement with regard to support. Specifically, the statement of decision does not make findings on such questions as (a) the amount of support one party impliedly agreed to provide to the other, following termination of the relationship; (b) how long such support would last; and (c) most significantly, whether or not such support should be paid from the moment the relationship terminated and before any other rights of the parties were determined by a court of law.[2] We first address the questions of whether or not the trial court's order is supportable as an "order to pay money" or an award of "temporary spousal support" in the absence of an express agreement to make such payments. (a) California Law Does Not Give a Trial Court the Power to Issue "Orders to Pay Money" (1) Appellant correctly points out that there are no provisional remedies available to litigants in civil contract actions apart from those set forth in titles 6.5 (Attachment) and 7 (Other Provisional Remedies in Civil Actions), of part II of the Code of Civil Procedure; those remedies include attachment, claim and delivery, injunction, and deposit in court. (6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, §§ 1-2, pp. 15-16.) Appellant also points out that, apart from the provisions dealing with an injunction, none of the provisional remedies even arguably applies to the order issued by the trial court herein. (Ibid.) Respondent does not reply directly to appellant's point about the trial court's order potentially passing muster only in the form of a preliminary 885 injunction. Instead, respondent first argues that an award of temporary support may take injunctive form. Respondent then argues that appellant is estopped under principles of promissory estoppel and equitable estoppel to deny his legal responsibilities to support respondent. Finally, she argues that the court has "inherent equity powers" to make an award of temporary spousal support. As to promissory estoppel, respondent refers to the Restatement of Contracts section 90, subdivision (1), which states that: "[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." Respondent argues that she relied on appellant's commitment "which included the promise of support in the event of a separation." However, that claim is unsupported by the record; no evidence was presented through respondent's declaration or at the hearings that she, in fact, relied on any promise by appellant regarding support after termination of their relationship. Moreover, no evidence was introduced or argument made that respondent acted or forbore from any action based on any promise allegedly made by appellant. Respondent's "equitable estoppel" argument is based on Evidence Code section 623, which states that "[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." Respondent argues that appellant's signing of joint tax returns for the state and federal governments constitutes a representation that he was married and that, accordingly, he should not be permitted to deny the legal responsibilities which would otherwise flow from that representation (presumably, an obligation to provide temporary spousal support). Respondent's argument fails for at least two reasons. First, no evidence was presented and no argument made by respondent that the litigation in question (respondent's Marvin action) arose out of appellant's conduct (signing joint tax returns). Moreover, in order for estoppel principles to apply, the party invoking estoppel (respondent) must be ignorant of the true facts. (11 Witkin, Summary of Cal. Law (9th ed. 1990) Equity, § 177, pp. 858-860.) No such showing can be made here. The evidence was uncontroverted that respondent knew at all times that she was not married to appellant. In sum, we conclude that an amorphous "order to pay money" is not a cognizable provisional remedy under California law and that appellant is not 886 estopped from asserting that the trial court exceeded its authority in making such an order. (b) The Trial Court Lacks "Inherent Equity Power" to Award (Spousal) Support Pending Trial (2) Our analysis of whether or not the trial court had "inherent equity powers" to make an award of temporary support begins with footnotes 24, 25, and 26 in Marvin I, supra, 18 Cal.3d at pages 684-685. Footnote 25 seemingly invites lower courts to fashion equitable remedies to protect the expectations of the parties in a nonmarital relationship. Footnote 26 specifically leaves open the question of whether or not an award of spousal support may be made in the absence of an express or implied contractual obligation. Finally, footnote 24 makes it clear that, even if such an award may be proper under some circumstance(s), it cannot be based on the support provisions of the Family Law Act. We note, preliminarily, that although courts of equity have broad powers, they may not create totally new substantive rights under the guise of doing equity. (Marvin v. Marvin (1981) 122 Cal. App.3d 871, 876 [176 Cal. Rptr. 555] (Marvin II).) In Marvin II, the Second District (Div. Three) reversed the trial court's award of $104,000 for "rehabilitation." In making that judgment, the Court of Appeal noted that there was nothing in the trial court's findings to suggest that such an award was warranted "to protect the expectations of both parties." (Id. at p. 876, italics in original.) The court went on to note that the trial court's findings that plaintiff needed the award and that defendant had the ability to respond to the need was not enough; as a "nonconsensual" award, it required support by "some recognized underlying obligation in law or equity." (Ibid.) We agree with the court in Marvin II. Under Marvin I, an award of temporary spousal support cannot be justified as a substantive right under the Family Law Act. Under the facts of this case, the only potential equitable remedy which could justify an award of temporary spousal support was an injunction. To the extent that the trial court's order was intended to constitute an award of such support under other "inherent equitable principles," the court exceeded its authority.[3] 887 (2) The Trial Court's Order Cannot Pass Muster as a Preliminary Injunction (3a) Our next task is to analyze the trial court's order as a preliminary injunction. Since the effect of the order was to change the status quo by ordering appellant to pay money, pending trial on the merits, we subject it to close scrutiny. (Board of Supervisors v. McMahon (1990) 219 Cal. App.3d 286, 295-296 [268 Cal. Rptr. 219].) (a) The Evidence Was Insufficient to Support a Finding of an Implied Agreement to Provide Temporary Spousal Support The trial court's statement of decision begins with a discussion of footnotes 25 and 26 in Marvin I; it then proceeds to describe the evidence introduced by the parties regarding the length and conduct of their relationship, emphasizing the testimony pertaining to their filing tax returns as husband and wife and taking title to real property as husband and wife. The court then discusses respondent's testimony pertaining to appellant's alleged assurances that he would "always support" her. However, the court specifically found that the evidence pertaining to an express agreement to provide support was "[not] enough." Finally, the court found that there was an implied agreement to provide support "in the same manner as if [the parties] had been legally married." It appears that the court then ordered appellant to pay temporary support (either in the form of a preliminary injunction, an award of specific performance, or some other unidentified form of relief) based on its finding that the parties' conduct somehow proved the existence of that implied agreement. Accordingly, we first examine the evidence pertaining to the parties' conduct to determine whether or not substantial evidence supported the trial court's finding. (4) An implied contract "`... in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being the mere mode of proof by which they are to be respectively established.'" (Silva v. Providence Hospital of Oakland (1939) 14 Cal.2d 762, 773 [97 P.2d 798].) It is thus an actual agreement between the parties, "the existence and terms of which are manifested by conduct." (Civ. Code, § 1621.) Although an implied in fact contract may be inferred from the "conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise." (Division of Labor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal. App.3d 268, 275 [137 Cal. Rptr. 855].) 888 (3b) The record before us discloses no conduct on the part of the parties from which it can be implied that the parties (particularly appellant) intended to promise that respondent would be supported as if she and appellant had actually been married if the relationship ended. In fact, the record discloses that the parties specifically chose to live together "without any sanction by the State." It is true that the parties took title to certain real property together, as husband and wife. That fact may impact on the parties' rights in that property now that the relationship has ended. However, the record discloses no conduct from which it can be concluded that the parties agreed they would be bound by state laws (sanction) pertaining to temporary spousal support from the termination of the relationship until establishment of contractual rights at trial.[4] The net effect of the trial court's findings regarding support is to resurrect common law marriages in California. That institution was abolished by the Legislature in 1895, a fact emphasized by the court in Marvin I, supra, 18 Cal.3d at page 684, footnote 24. Our reasoning is consonant with that of the Fourth District (Div. One) in Schafer v. Superior Court (1986) 180 Cal. App.3d 305 [225 Cal. Rptr. 513]. In Schafer, the Fourth District issued a writ of mandate ordering the trial court to vacate an ex parte order shortening time for deposition and hearing on order to show cause why respondent, plaintiff in a Marvin action, should not be awarded temporary support; Schafer ordered the case heard according to the procedural rules applicable to civil litigants generally and not according to family law rules and procedures. After reviewing the decision in Marvin I, the Schafer court discussed the fact that the only two appellate cases since Marvin I to consider trial court orders granting support to nonmarital partners on implied contract theories (including the court in Marvin II) reversed the trial court's orders. (Schafer v. Superior Court, supra, 180 Cal. App.3d at p. 310.) The Schafer court also noted that legal principles governing issuance of preliminary injunctions are relevant to a request for support pending trial. (Id. at p. 311.) 889 (b) Injunctive Relief Was Improper Due to Respondent's Inability to Prove That Damages Failed to Provide an Adequate Remedy and That She Would Be Irreparably Harmed If Injunctive Relief Were Denied (5) In its original statement of decision and its further statement of decision, the trial court awarded relief based on its finding that respondent would be irreparably harmed if temporary support were not awarded because she is physically disabled and has modest liquid savings which would not be adequate to support her daily needs and to maintain her mortgage, insurance and property tax payments. The court also found that damages would be inadequate because trial may be years in the future. The trial court's findings reflect its understanding that the relief accorded respondent was supportable only in the form of a preliminary injunction. Moreover, they reflect the court's understanding that showings of irreparable injury and inadequacy of damages are required for such extraordinary relief. (Schafer v. Superior Court, supra, 180 Cal. App.3d at p. 311.) However, the trial court confused respondent's perceived needs for cash in the near term with the concepts of irreparable injury and inadequacy of damages. First, it is absolutely clear that respondent has an adequate remedy under the law. The Supreme Court has determined that nonmarital partners have the same contractual rights as any other unmarried persons, including the right to sue for breach of contract. (Marvin I, supra, 18 Cal.3d at pp. 682-685.) That is precisely what respondent has done: she has sued for breach of contract; the relief requested includes a prayer for an award of spousal support, based on express and implied agreements between the parties. An award of damages (spousal support) constitutes an adequate legal remedy, precluding issuance of an injunction. (Morrison v. Land (1915) 169 Cal. 580, 586, 589-590 [147 P. 259].) The trial court's findings on irreparable harm were presumably based on respondent's income and expense declarations, her declaration in support of her motion for an award of temporary support, and her testimony at the hearing in support of the motion which reflected that her savings had dwindled from $95,000 to $59,000 by the time of the hearing and that those savings constituted her only means for making mortgage payments and meeting her other monthly expenses. Even if we accept respondent's showing at face value, it still fell far short of establishing that she would be irreparably harmed by a failure to award temporary support. At best, the record reflected that respondent had a need and that appellant was able to meet it; such a showing is not enough to 890 justify such an award. (Schafer v. Superior Court, supra, 180 Cal. App.3d at p. 311.) Marvin I makes it clear that unmarried cohabitants have the same contract rights as other civil litigants; however, nonmarital cohabitation does not confer any special privilege over and above those of other civil litigants. (Schafer v. Superior Court, supra, 180 Cal. App.3d at pp. 309-310.) Case law has made it clear that mere monetary loss does not constitute irreparable harm in the context of proposed injunctive relief unless there is some showing that one against whom injunctive relief is sought is insolvent or otherwise unable to respond in damages. (West Coast Constr. Co. v. Oceano Sanitary Dist. (1971) 17 Cal. App.3d 693, 700 [95 Cal. Rptr. 169].) Here, there was no evidence presented that appellant was insolvent or otherwise unable to respond in damages. In fact, the opposite is true because respondent's motion for temporary support was predicated not just on her needs, but also on appellant's ability to meet those needs. In sum, the effect of the trial court's order was to give respondent relief to which other, noncohabiting contracting parties would not have been entitled. An award of such relief constitutes an abuse of discretion. III. CONCLUSION We share the trial court's concern with the economic situation confronted by respondent, and we regret that there is no basis upon which her short-term needs can be met under existing law. Justice Mosk's lament (concerning another law) also applies to the situation we face here: "As a judge, I am bound by the law as I find it to be and not as I might fervently wish it to be." (In re Anderson (1968) 69 Cal.2d 613, 635 [73 Cal. Rptr. 21, 447 P.2d 117].) Marvin I was decided in 1976. Since that time the Legislature has not seen fit to extend spousal rights under the Family Law Act to unmarried cohabitants. Nor has the Legislature acted to expand the provisional remedies available to unmarried cohabitants beyond those available to other litigants. Respondent's remedy, if any, lies with that branch of government. Accordingly, we reverse and remand to the trial court to vacate its order granting temporary support to respondent. Respondent is to bear the costs of appeal. Perley, J., concurred. POCHE, J. I dissent. From our lofty perch my colleagues perceive a very different reality than I do. They fault the trial judge for awarding to a now disabled woman interim support from her partner in a 21-year relationship 891 during which the couple lived as a family and raised 3 children. The majority instead tell her she has no more recourse than a buyer of widgets faced with breach of a sale contract by its supplier. Their advice to her: Stand in line; we'll offer you a trial someday. Judge Duncan was candid and direct: "If ever there is to be an award of support based on an implied contract in a Marvin case, it is difficult to imagine a scenario more compelling than [the one] presented herein." On the basis of the uncontradicted evidence summarized below, I concur fully in Judge Duncan's assessment. The majority gloss over significant details of the parties' 21 years of life together. Plaintiff and defendant began living together in 1967, forming a family which included her seven-year-old son by a previous marriage. In 1971, at defendant's insistence, they moved to Alaska. Once in Alaska they set about homesteading, and built a cabin some 12 miles from the nearest town. When defendant left for a job as an investigator in Anchorage, some 200 miles away, plaintiff, then 5 months pregnant remained at the remote cabin in the company of her son. During the winter months defendant worked in Anchorage. Much of the physical burden of homesteading was literally borne by plaintiff. "During these months, the inside of our cabin was so cold that standing water would freeze. We had no indoor plumbing, and water was hand carried in 5 gallon containers from a frozen stream nearby." Plaintiff kept the home fires burning by splitting wood "and breaking up large blocks of coal with a sledge hammer." She used a sled or a wheelbarrow to bring in clean laundry and food. Summer months were filled with the heavy labor of constructing improvements to the cabin or the homestead. "In the early fall of each year I would do the harvesting, filleting of Salmon, butchering, packaging, canning and freezing of our foods in large volume." Defendant by his declaration characterizes their Alaskan experience as "without any of the comforts of modern life." He, however, emphasizes the communal endeavor: "We grew our own food, built our own cabin, had no modern utilities, and scraped a living from the land as best we could." After seven years defendant decided he wished to return to the Bay Area to attend law school. Although plaintiff was reluctant to leave the now developed homestead, she did so on the understanding that she too would return to school. While defendant attended law school plaintiff renovated and decorated a "fixer-upper" home that they purchased from their Alaskan savings. The couple had a second child whose poor health precluded plaintiff from returning to college. Defendant completed law school and went into 892 practice. Plaintiff began to suffer from back problems which were diagnosed as a herniated disc which required surgery and seven months of recovery in bed. The couple purchased a larger home in 1986. In the following year plaintiff again required back surgery, which once again entailed lengthy recuperation. Defendant and plaintiff separated in 1988. As of April 1992 plaintiff described her physical condition as: "I wear a hard fiberglass back brace all the time except for sleeping. I cannot walk more than one short block, sit for more than 45 minutes a day or drive for more than 20 minutes. I need two periods during the day to lay [sic] down and hired help to run my household." During the course of the relationship the parties raised their own two children and plaintiff's son. They consistently held themselves out as husband and wife to the Internal Revenue Service, to their insurers, their bankers, and in numerous real estate transactions. Judge Duncan made his finding of an implied contract to support expressly in reliance upon Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal. Rptr. 815, 557 P.2d 106]. Marvin emphatically rejected the notion that it was inappropriate for courts "to apply principles of implied contract" or to "extend equitable remedies" to unmarried partners. (Id. at p. 682.) The decision then directed trial courts to look at the conduct of the parties to see if it demonstrated an implied contract. (Id. at p. 684.) Having set out various theories of remedial aid, the opinion then noted: "Our opinion does not preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate; the suitability of such remedies may be determined in later cases in light of the factual setting in which they arise." (Id. at p. 684, fn. 25, italics added.) That is precisely what the trial court did here. Judge Duncan was fully aware of the novelty of what he was being asked to do: "The court finds that `what the parties were doing' was maintaining a marriage relationship with everything except a license and ceremony and that there was an implied contract between them that if they separated, plaintiff would be supported by defendant in the same manner as if they had been legally married....[1] "Finding there is a contract for support, the question remains whether it is appropriate to make the highly unusual provision for damages to be paid 893 pending trial. Such a trial may be years away. In the interim, plaintiff is left in poor health living off her dwindling personal assets." "Totally physically disabled and with only modest liquid savings, plaintiff faces irreparable harm in being [un]able to support her daily needs and to maintain her mortgage, insurance and real property tax payments unless she receives injunctive relief forthwith." "Preliminary relief is appropriate only in the absence of other adequate remedies, irreparable injury and the reasonable probability of success at trial on the merits. The court finds those conditions exist here." The majority does not challenge Judge Duncan's conclusion that plaintiff was confronting irreparable injury if left unaided. Nor does the majority dispute his estimation that plaintiff was likely to prevail on the merits at trial. This would ordinarily be more than enough to uphold the preliminary injunction. (See, e.g., King v. Meese (1987) 43 Cal.3d 1217, 1226-1228 [240 Cal. Rptr. 829, 743 P.2d 889]; Nutro Products, Inc. v. Cole Grain Co. (1992) 3 Cal. App.4th 860, 865 [5 Cal. Rptr.2d 41].) The majority, however, chooses to fault Judge Duncan's determination that plaintiff had no other adequate remedy. It is generally true that equity will not act where there is an adequate legal remedy, and that the legal remedy of damages is ordinarily deemed adequate to redress a breach of contract. But the very authority cited by the majority for these principles admits not only that the legal remedy must be "full and adequate and does complete justice" but also that damages are sometimes inadequate to compensate for a breached contract. (Morrison v. Land (1915) 169 Cal. 580, 586-587 [147 P. 259].) A more comprehensive formulation of the principles is this: "The mere fact that there may be a remedy at law does not oust the jurisdiction of a court of equity. To have this effect, the remedy must also be speedy, adequate, and efficacious to the end in view. [Citation.] It must reach the whole mischief and secure the whole right of the party in a perfect manner at the present time and not in the future. Otherwise, equity will interfere and give such relief and aid as the exigencies of the case may require." (Quist v. Empire Water Co. (1928) 204 Cal. 646, 653 [269 P. 533].) The majority further fail to appreciate how adequacy is decided. "The question whether or not a given remedy at law is adequate is in the first instance a question of fact for the trial court and even where the evidence is unconflicting, if opposing inferences may be reasonably drawn therefrom, it still remains a question of fact in the first instance. The finding and conclusion of the trial court thereon will not be disturbed upon appeal, therefore, unless it is shown that the evidence is legally insufficient to support the same." (People v. Stafford Packing Co. (1924) 193 Cal. 719, 728 894 [227 P. 485]; accord, People v. Monterey Fish Products Co. (1925) 195 Cal. 548, 564 [234 P. 398, 38 A.L.R. 1186].) The evidence supports Judge Duncan viewing the situation in this light: There was an implied contract for support. In the face of defendant's refusal to honor that agreement, plaintiff was forced to seek judicial redress. Ultimate vindication, in the form of a money judgment, was years in the future. In the meantime plaintiff "is left in poor health living off her dwindling assets." Clearly, plaintiff was deemed to face the very real prospect of insolvency or considerably straightened circumstances while awaiting trial, with little or no chance of compensating employment. In the circumstances there is ample basis for the trial court's conclusion that a lump sum money judgment awarded sometime in the not so near future was not a "speedy" remedy, was not a remedy that would secure plaintiff's "whole right [to support] in a perfect manner at the present time," and thus was not adequate. The majority concludes that the trial court wandered into legal error in equating plaintiff's need to spend her liquid assets with irreparable harm, absent a showing that defendant was insolvent or would be unable to respond to a judgment for damages. (Maj. opn., ante, at p. 890.) In short the majority dismisses plaintiff's injury as "mere monetary loss." Plaintiff is severely disabled and unable to work. How in good conscience can we postulate such a legal fiction in the face of the reality that she will be forced to liquidate what assets she has as she awaits some far off day when our overloaded judicial system finally accords her a trial on her contract claim? To quote Mr. Bumble, "If the law supposes that ... the law is a ass a idiot." (Dickens, Oliver Twist, ch. 51, p. 489.) The evidence fully supports the trial court's finding that the parties did have an implied contract whereby defendant agreed to support plaintiff in the event they separated. Uncontradicted evidence shows that defendant voluntarily paid approximately $190,000 in monthly support payments to plaintiff following their separation, and that these payments were still being made at the time the order for support was made. As an implied contract is one identified by conduct (Civ. Code, § 1621), this alone constitutes substantial evidence in support of the trial court's finding. There is also the matter of the "situation or mutual relation of the parties" from which an implied contract may be inferred. (Division of Labor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal. App.3d 268, 275 [137 Cal. Rptr. 855].) The evidence on this score goes beyond abundant to become overwhelming. In light of these circumstances, the trial court was fully justified in concluding that the parties were "maintaining a marriage relationship" in all 895 respects except that of legal sanction. As this court has recently noted, the duty of support is inherent to the marital relationship. (Borelli v. Brusseau (1993) 12 Cal. App.4th 647 [16 Cal. Rptr.2d 16]; see Civ. Code, §§ 242, 5100, 5132.) It is therefore no great jurisprudential leap to conclude that parties who treat themselves as married may have made provision for this duty of support should they separate. Defendant's postseparation payments of $190,000 put considerable flesh on the bones of the inference of an implied contract derived from the "situation or mutual relation of the parties." (Division of Labor Law Enforcement v. Transpacific Transportation Co., supra, 69 Cal. App.3d 268, 275.) The majority speak of the trial court exceeding its jurisdiction by "creat[ing a] totally new substantive right[] under the guise of doing equity." (Maj. opn., ante, at p. 886.) The only "right" involved here is the right to support based directly and solely on the parties' agreement. The trial court was thus not creating a right, but only an equitable remedy to preserve that right. (Cf. Camp v. Board of Supervisors (1981) 123 Cal. App.3d 334, 355-356 [176 Cal. Rptr. 620].) Granted, the remedy it did award is probably unprecedented, but that is not to say, as do the majority, that it is illegitimate. In my view Judge Duncan was following the explicit guidelines set forth by the Supreme Court in Marvin v. Marvin: fashioning an additional equitable remedy to protect the expectations of the parties to a nonmarital relationship in a situation where existing remedies were inadequate. Far from being illegitimate, the remedy was suggested by the California Supreme Court. The majority take great umbrage at the notion that any principles of the Family Law Act be applied to nonmarital partners. Apparently they adopt the position that a trial court may not use the magic language of "temporary support," nor base its relief upon the county guidelines used in dissolutions. Such literal mindedness has no place in the law of equity. Judge Duncan specifically described the problem before him. He noted that the parties had "not probed income and expense issues." "If this were a family law case (it is not), temporary spousal support per Alameda County guidelines would be $1426 per month. In her apparently disabled situation, such awards would not come close to meeting the budget plaintiff has filed with the court.... Given the court's conclusion that the parties have agreed to be treated as a married couple, the guideline amount will be ordered." This sounds like equity to me. Indeed it sounds like injunctive relief measured by the only available legal standard in a situation where the parties had failed to offer an alternative measure of damages. There is nothing mysterious about the order or suspect about its rationale. 896 If 21 years of living together in a mutually supportive family relationship, of taking title to property and otherwise conducting one's financial affairs as if one were married is insufficient evidence of an implied contract to conduct oneself as married with all the moral and legal obligations to the other spouse that such a relationship entails, then I simply cannot imagine any relationship which the majority would find sufficient. The result reached by the majority may be, in the eyes of some, good law; it is lousy justice. A petition for a rehearing was denied December 27, 1993. NOTES [1] Appellant also does not challenge the award of child support in the sum of $937 per month, made in a separate proceeding. [2] Our analysis of the evidence supporting the finding of an implied agreement is found in part II.B.(2) of this opinion. [3] We note that the question of whether or not a court may award spousal support to a party in a nonmarital relationship in the absence of an express or implied contractual obligation (the question left open by the Supreme Court in fn. 26 in Marvin I) is not before us. Here, the trial court specifically based its order on its finding that the parties had an implied agreement to provide support after termination of the relationship. Our opinion is limited to an analysis of whether or not that finding is supported by substantial evidence and whether or not the court's order is a proper one based on that finding. [4] Our dissenting colleague argues that the fact that appellant voluntarily paid money to respondent in varying amounts over a period of four years after the relationship ended constitutes evidence that there was an implied contract under which appellant was obligated to pay (temporary) support. We note, preliminarily, that the trial court did not rely on that fact in support of its finding that there was an implied contract under which temporary support payments were required. Furthermore, we believe that reliance on posttermination conduct to establish the existence of such a contract would constitute poor public policy: if making posttermination payments constitute evidence of a contractual obligation to make payments, those who might otherwise voluntarily provide financial assistance to another in need would be discouraged from doing so. [1] Even Justice Clark, author of the concurring and dissenting opinion in Marvin, would approve a support award here; "[w]hen the parties to a meretricious relationship show by express or implied in fact agreement they intend to create mutual obligations, the courts should enforce the agreement." (Marvin v. Marvin, supra, 18 Cal.3d 660, 686.)	{ "pile_set_name": "FreeLaw" }
991 F.2d 292 71 A.F.T.R.2d 93-1493, 93-1 USTC P 50,278 Jess KRAFT and Barbara Kraft, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 92-1552. United States Court of Appeals,Sixth Circuit. Argued March 5, 1993.Decided and Filed April 7, 1993. Richard A. Shapack (argued and briefed), Michael L. Geller (briefed), Shapack, McCullough & Kanter, Bloomfield Hills, MI, for plaintiffs-appellants. Gary R. Allen, Acting Chief (briefed), Joan I. Oppenheimer (argued), Ann Belanger Durney, U.S. Dept. of Justice, Appellate Section Tax Div., Washington, DC, for defendant-appellee. Before: MERRITT, Chief Judge; NELSON, Circuit Judge; and CONTIE, Senior Circuit Judge. CONTIE, Senior Circuit Judge. 1 Jess and Barbara Kraft appeal the summary judgment dismissal of their 26 U.S.C. § 1341 claim for an income tax refund. For the following reasons, we affirm the district court's summary judgment dismissal. I. 2 Plaintiff-appellant Jess Kraft ("Kraft"), a licensed physician, practiced podiatry at Joel H. Haber, D.P.M., and Jess Kraft, D.P.M., P.C., a Michigan professional corporation ("the Corporation"), from December, 1973 through September, 1985. Kraft, at all relevant times, was an employee, officer, director, and 50% shareholder of the Corporation. The Corporation was not a Subchapter S corporation. 3 From 1981 through 1984, the Corporation billed Blue Cross/Blue Shield of Michigan ("Blue Cross") approximately $2,245,000 for medical services performed by the Corporation. Once received, the Corporation included Blue Cross' payments in its gross income. The Corporation, in turn, paid Kraft wages for the fiscal years ending August 31, 1980 ($231,000), August 31, 1981 ($235,000), August 31, 1982 ($210,000), and August 31, 1983 ($249,000), which Kraft reported on the joint federal income tax returns he filed with his wife, plaintiff-appellant Barbara Kraft. 4 In September, 1984, a federal grand jury returned a 34-count Indictment charging Kraft with illegal distribution of controlled substances and mail fraud. Specifically, the Indictment alleged that Kraft performed unnecessary foot and toe surgeries on drug dealers and users by promising them Dilaudid, Percodan, and Demerol prescriptions. According to the Indictment, Kraft then submitted the bogus claims to Blue Cross which resulted in the wrongful payment of $84,160 to Kraft, though Blue Cross claims that Kraft actually defrauded it of $680,000, and Kraft claims that he "improperly billed" Blue Cross for only $19. 5 On or about April 3, 1985, the United States filed a one-count Information charging Kraft with mail fraud: 6 That beginning in or about January of 1981, and continuing up to in or about November, 1983, Dr. Jess Kraft, D.P.M., defendant herein, devised and intended to devise a scheme and artifice to defraud Blue Cross/Blue Shield of Michigan and to obtain money through the use of false, fictitious and fraudulent pretenses and representations in the manner and means as follows: 7 1. At all times pertinent to this information, Jess Kraft, D.P.M., was a licensed podiatrist and operated two facilities doing business as Dr. Joel Haber, D.P.M., and Dr. Jess Kraft, D.P.M., P.C. 8 2. It was a further part of the scheme and artifice that Dr. Kraft, D.P.M., billed and caused to be billed Blue Cross/Blue Shield of Michigan for services purportedly rendered to persons insured by Blue Cross/Blue Shield of Michigan, when in truth, and as the defendant Dr. Jess Kraft, D.P.M., well knew, the services had been performed on different persons not insured by Blue Cross/Blue Shield of Michigan. 9 That on or about August 13, 1983, in the Eastern District of Michigan, Southern Division, Jess Kraft, D.P.M., defendant herein, in furtherance of the aforesaid scheme and artifice to defraud and to obtain money by false and fraudulent representations, did cause to be placed in an authorized depository for mail, to be sent and delivered by the United States Postal Service, Blue Cross/Blue Shield of Michigan check number 008978836, in violation of Section 1341, Title 18, United States Code. 10 Information at 1-2. 11 On April 3, 1985, Kraft and the prosecutor executed a Rule 11 Plea Agreement ("Plea Agreement") whereby Kraft agreed to plead guilty to Count Eleven of the Indictment ("Distribution and Aiding and Abetting in the Distribution of Dilaudid") and Count One of the Information ("Mail Fraud"). In return, the government agreed: to dismiss the remaining counts in the Indictment; to not seek forfeiture of Kraft's medical license; to limit Kraft's sentence to 15 years for Count Eleven of the Indictment, and 5 years for Count One of the Information, to run concurrently. The Plea Agreement also provided that "Dr. Kraft agrees to pay Blue Cross/Blue Shield of Michigan $160,000 restitution prior to sentencing pursuant to the Victim-Witness Protection Act of 1982." Rule 11 Plea Agreement at 2. On September 13, 1985, the district court sentenced Kraft to seven years imprisonment, and fined him $26,000. 12 On December 20, 1986, the Krafts filed Form 1040X ("Amended U.S. Individual Income Tax Return") with the Internal Revenue Service ("IRS") seeking a $78,688 tax refund for the 1985 tax year pursuant to Internal Revenue Code § 1341 (26 U.S.C. § 1341) which provides (in relevant part): 13 § 1341. Computation of tax where taxpayer restores substantial amount held under claim of right. 14 (a) General rule.--If-- 15 (1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item; 16 (2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and 17 (3) the amount of such deduction exceeds $3,000, 18 then the tax imposed by this chapter for the taxable year shall be the lesser of the following: 19 (4) the tax for the taxable year computed with such deduction; or 20 (5) an amount equal to-- 21 (A) the tax for the taxable year computed without such deduction, minus 22 (B) the decrease in tax under this chapter (or the corresponding provisions of prior revenue laws) for the prior taxable year (or years) which would result solely from the exclusion of such item (or portion thereof) from gross income for such prior taxable year (or years). 23 26 U.S.C. § 1341 (1988). The IRS denied the Krafts' claim: 24 The claim of right has been disallowed since taxpayer knew at the time of filing the claim with Blue Cross and Blue Shield that he was not entitled to receive payment from the insurance company since wrong names were given to the company. Although the revenue ruling and court cases cited [above] deal mainly with embezzled funds, the facts clearly point that funds gained by wrongful or illegal means do not benefit from Section 1341 since the recipient knowingly accepted monies under false pretenses. Since the taxpayer submitted claims under false and fictitious individuals, he was aware that he had no "right" to the monies.Another factor in considering Dr. Kraft's case is the inclusion of the defrauded monies in income. 25 The payments went to the corporation of the doctor's which he shared with another doctor. The funds were reported by the corporation and the taxpayer drew his salary from it. The possibility remains to exist that the corporation paid taxes on this money, the taxpayer received this money in his salary and the other doctor received this in his salary. There is no audit trail of these monies to determine who the recipient of the monies is. 26 Section 165(c)(2) does allow a deduction as a non-business loss [the] restitution [of] illegally or wrongfully obtained monies, not a business loss. Only business losses qualify under Section 172 to be carried back as a net operating loss. Since the taxpayers' payment of the $160,000 would qualify as a non-business loss and not a business loss if allowed, the taxpayer is not entitled to claim a net operating loss back to 1981, 1982 and 1983 for the payback of funds to Blue Cross and Blue Shield. 27 Internal Revenue Service Form 886-A at 2-3. 28 The Krafts filed a second Form 1040X for 1985 seeking a $37,550.77 "ordinary and necessary trade or business expense" deduction, pursuant to 26 U.S.C. § 162(a), for legal fees paid defending against the criminal charges. The Internal Revenue Service denied this claim as well. 29 On November 27, 1990, the Krafts filed a Complaint against the United States in district court seeking a $91,301 income tax refund. Following cross-motions for summary judgment, the district court granted summary judgment to the United States with respect to Krafts' 26 U.S.C. § 1341 claim ($78,688), and granted summary judgment to the Krafts with respect to their 26 U.S.C. § 162(a) "ordinary and necessary trade or business expense" claim ($12,613): 30 26 U.S.C. § 1341 provides a special method for computing tax liability in circumstances where a taxpayer received an amount of income under a claim of right, included that sum as income, and in a subsequent taxable year was required to restore that amount because it was established that the taxpayer did not in fact have an unrestricted right to such amount. For purposes of § 1341, income included under a claim of right means income included as part of gross income because it appeared from facts then available that the taxpayer had an unrestricted right to such income. The test for the application of § 1341 is whether the obligation to repay arose from the same circumstances, terms and conditions of the transaction whereby the amount was included in income. It is clear that plaintiff Kraft's obligation to pay the $160,000 resulted from an obligation contained in a plea agreement. 31 Moreover, we find that 26 U.S.C. § 1341 does not support plaintiffs' claim to a deduction for the $160,000 because plaintiffs never made a claim of right to the money received from Blue Cross, a condition required under § 1341. Although Blue Cross made payments in Jess Kraft's name, he immediately deposited the funds directly to his professional corporation. The corporation reported the Blue Cross payments as taxable income. Plaintiff elected to receive his taxable income from the professional corporation which co-mingled the Blue Cross payments with funds from other sources. Plaintiff never included the Blue Cross payments in his gross income. In other words, plaintiffs fail to meet the requirements for a deduction under § 1341 because plaintiffs' obligation to make restitution to Blue Cross did not arise out of the same circumstances, terms and conditions of his receipt of taxable income from the corporation. 32 However, plaintiffs' attorney fees incurred in the 1985 criminal action are deductible under 26 U.S.C. § 162(a). Attorney fees are deductible under § 162(a) if they relate to the conduct of the taxpayer's business and the criminal charges are based upon the taxpayer's business activities. Plaintiff was faced with a criminal indictment related to his business as a podiatrist. He had a constitutional right to defend himself by hiring legal counsel which resulted in the accumulation of attorney fees in the amount of $37,550.77. Such fees are deductible under 26 U.S.C. § 162(a). 33 District Court's March 2, 1992 Order at 3-4 (citations omitted). 34 The Krafts timely filed a notice of appeal challenging the district court's 26 U.S.C. § 1341 "claim of right" determination. The United States has not appealed the district court's 26 U.S.C. § 162(a) determination. II. Summary Judgment 35 Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A district court's grant of summary judgment is reviewed de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). In its review, this court must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). 36 The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Id. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); 60 Ivy St. Corp., 822 F.2d at 1435. 37 "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 be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the nonmoving party. 60 Ivy St. Corp., 822 F.2d at 1435. If the disputed evidence "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). Dr. Kraft's Claim Under 26 U.S.C. § 1341 38 On appeal, the appellants maintain that they are entitled to recompute their 1985 tax liability pursuant to 26 U.S.C. § 1341: 39 The facts facing the district court on appellants' motion for summary judgment fell squarely within the ambit [of] Section 1341. Appellants had received, under a claim of right, certain dollars, namely the $160,000 which Kraft later disgorged in restitution to Blue Cross. The amounts received by Kraft were included in appellants' tax returns as income for the relevant years and the appropriate taxes were paid on those amounts. At all times, appellants believed, and it appeared that, they had an unrestricted right to the money. Subsequently, Kraft was required to restore the $160,000 of claimed (and previously taxed) income to Blue Cross in the form of a restitution payment of amounts Blue Cross claimed he did not have an unrestricted right to retain. This is a prime example of the scenario which Internal Revenue Code section 1341 is designed to encompass. 40 .... 41 [T]he test applied to determine the applicability of Section 1341 is (i) whether the taxpayer had a subjective belief that he had an unrestricted right to the funds when they were received, and (ii) that the taxpayer establishes that he did not have an unrestricted right to the funds in the year of repayment. It is a simple straightforward test. 42 .... 43 [T]he payment to Blue Cross clearly arose from the same circumstances, terms and conditions as the original receipt and inclusion of the income. Kraft initially received the monies from Blue Cross as a result of surgical and non-surgical procedures performed on patients covered by Blue Cross. Kraft billed Blue Cross for these procedures. Blue Cross paid Kraft on these claims, which money was then funnelled through Kraft's professional corporation and then repaid to Kraft in the form of salary. Blue Cross subsequently claimed that the monies paid to Kraft were paid under fraudulent conditions. As a result, [Dr. Kraft] agreed to repay $160,000 to Blue Cross. The repayment arose directly from the same services for which Kraft was initially paid. As such, Kraft clearly satisfies this aspect of the IRC § 1341 test. 44 Judge DeMascio erroneously found that because the funds were deposited by Kraft directly into the corporation where they were allegedly commingled with other funds of the corporation ... prior to disbursing to Kraft in the form of salary, that Kraft did not have a claim of right to those funds. Judge DeMascio then asserts that the corporation reported the money as income, not Kraft. However, this overlooks the true substance of the transaction and accepts the appellee's "form over substance" argument. In reality, when Kraft reported the salary received from his professional corporation as income, and filed tax returns, he was, in actuality, reporting the money received from Blue Cross. 45 Appellants' Brief at 8-15 (citations omitted). 46 In response, the United States argues: that Dr. Kraft's restitution payment did not arise from the same circumstances, terms and conditions as Kraft's original receipt of income; that Kraft may not disregard the tax disadvantages of the corporate entity; that funds obtained by fraud are not obtained under a "claim of right"; and, that Kraft may not deduct the $160,000 payment under any other provision of the Internal Revenue Code (a prerequisite to applying 26 U.S.C. § 1341). Specifically, the United States maintains: 47 The restitution payment did not arise from the same circumstances, terms, and conditions as Kraft's original receipt of income. The item originally included in income was Kraft's salary from the Corporation. There has been no contention that Kraft's salary was paid in error, and Kraft has never had any obligation to return any portion of it for the years in issue. Nor has he done so. The $160,000 payment was not a return of "items" included on taxpayers' return and was not computed with reference to Kraft's salary, but was a payment to Blue Cross made as part of a plea agreement "in settlement and restitution of any and all civil claims of Blue Cross against Kraft and the Corporation." Kraft never received any funds directly from Blue Cross. It was the Corporation which did so and included these payments in its income. Thus, it is clear that taxpayers do not qualify for § 1341 treatment. 48 Taxpayers contend that although the Blue Cross funds, in form, were paid to the Corporation, in substance, they were received by Kraft, albeit in the form of salary payments, and that this Court should ignore the form and look at the substance. But it is settled that when a taxpayer has chosen to incorporate to do business, he must accept the tax disadvantages and cannot disregard the corporate entity even where there is only one shareholder. 49 .... 50 Section 1341 is inapplicable even if the corporate entity can be disregarded because funds obtained by fraud are not obtained under a claim of right. Section 1341, by its terms, applies only where it "appeared that the taxpayer had an unrestricted right to such item" of income. The courts have repeatedly held that § 1341 has no application where a taxpayer has embezzled or otherwise knowingly misappropriated funds which he is later required to return because it could not have "appeared" that the taxpayer had an unrestricted right to the money so obtained.... The appearance of an unrestricted right to an item depends on objective facts and circumstances, not on a taxpayer's subjective belief. 51 It is undisputed that some, if not all, of the $160,000 payment was initially obtained by fraud.... Section 1341 is inapplicable to the extent that Kraft obtained money fraudulently from Blue Cross since it could not have appeared to him that he had an unrestricted right to the money so obtained. 52 .... 53 It is settled that for § 1341 to apply, the taxpayer must be entitled under some other provision of the Internal Revenue Code to a deduction for the payment in that year. [T]he courts have uniformly held that losses arising from repayment occasioned by fraudulent activity are not deductible under § 165(c)(1).... [F]raudulently obtaining funds from Blue Cross is no more the proper function of the trade or business of being a podiatrist than is embezzlement the proper function of the trade or business of being a salaried employee or a legitimate securities trader. Thus, the restitution payments are not deductible under § 165(c)(1). 54 Appellee's Brief at 15-23 (citations omitted). 55 In Bailey v. Commissioner, 756 F.2d 44 (6th Cir.1985), this court denied 26 U.S.C. § 1341 tax relief to a taxpayer ordered to pay a $1,036,000 fine (later deemed a restitution to settle a civil action) for violating the terms of a consent decree. Though the Krafts attempt to distinguish Bailey, we see no reason to depart from its holding. 56 "Before invoking § 1341, the taxpayer must be entitled under some provision of the Internal Revenue Code to a deduction for the restoration payment in that year." Bailey v. Commissioner, 756 F.2d at 46 (citations omitted). Though the Krafts argue that "all amounts paid by Dr. Kraft in restitution to Blue Cross are deductible," Appellants' Reply Brief at 17-18, under 26 U.S.C. § 165(c)(1) ("losses incurred in a trade or business") because "[t]he repayment was directly related to Kraft's actions as a podiatrist," Appellants' Reply Brief at 18, losses arising from the repayment of fraudulently obtained funds are not deductible under 26 U.S.C. § 165(c)(1). See Mannette v. Commissioner, 69 T.C. 990, 1978 WL 3337 (1978) (the repayment of embezzled funds is not deductible under section 165(c)(1) as a "trade or business" loss). Though the repayment of embezzled funds may be deductible under section 165(c)(2) ("losses incurred in any transaction entered into for profit, though not connected with a trade or business"), the deductibility of nonbusiness losses under section 165(c)(2) is limited to the amount of gross income not derived from the trade or business. Because the Krafts reported no nonbusiness income in 1985, 26 U.S.C. § 165(c)(2) offers them no benefit. 57 Though the Krafts maintain that they can demonstrate an "entitlement to a deduction of the restitution payment under 26 U.S.C. § 162(a) as an ordinary and necessary expense paid or incurred in carrying on any trade or business," Appellants' Reply Brief at 18, their ability to do so hinges on the applicability of 26 U.S.C. § 162(f) ("Fines and penalties") which provides that "[n]o deduction shall be allowed under subsection (a) for any fine or similar penalty paid to a government for the violation of any law." Compare Stephens v. Commissioner, 905 F.2d 667, 671 (2d Cir.1990) ("taxpayers who repay embezzled funds are ordinarily entitled to a deduction in the year in which the funds are repaid" if the restitution is primarily a remedial measure to compensate another party, not "a fine or similar penalty") with Bailey v. Commissioner, 756 F.2d at 47 ("the characterization of a payment for purposes of § 162(f) turns on the origin of the liability giving rise to it"). 58 Dr. Kraft agreed "to pay Blue Cross/Blue Shield of Michigan $160,000 restitution prior to sentencing pursuant to the Victim-Witness Protection Act of 1982." Rule 11 Plea Agreement at 2. Though the Krafts maintain that this payment does not constitute a penalty, Sixth Circuit precedent establishes that Dr. Kraft's restitution payment arose out of criminal proceedings thereby constituting a non-deductible penalty. See Bailey v. Commissioner, 756 F.2d at 47 ("Bailey, therefore, forfeited the $1,036,000 as punishment for his violations of the Federal Trade Commission Act, and the payment was thus a fine imposed for purposes of enforcing the law and as punishment for a violation thereof."). 59 Moreover, the Krafts are precluded from invoking 26 U.S.C. § 1341 because Dr. Kraft paid $160,000 to Blue Cross as part of his Plea Agreement (relating to mail fraud and drug trafficking charges) which did not result from the same "circumstances, terms and conditions" as his salary from the Corporation. 60 It is unclear whether Blue Cross remitted its payments directly to the Corporation or to Dr. Kraft individually. Compare Appellants' Brief at 2 ("Payment for services rendered to Blue Cross was generally made by Blue Cross directly to doctors Haber and Kraft, individually, and they then deposited those monies into the Corporation.") with Appellee's Brief at 16 ("Kraft never received any funds directly from Blue Cross. It was the Corporation which did so and included these payments in its income.") and Indictment at 28-29 (Blue Cross remitted its payments to "Kraft PC Jess DPM"). We need not resolve this conflict, however, because the Blue Cross payments were deposited, at some point in time, in the Corporation's bank accounts where they were commingled with other funds and used to pay the Corporation's expenses, including the doctors' salaries. Dr. Kraft did not report the Blue Cross payments on his individual income tax returns; he reported his salary from the Corporation. 61 The Sixth Circuit previously summarized this rationale: 62 Taxpayer is precluded from invoking § 1341 for another reason. [T]he taxpayer's obligation to repay must arise out of the specific "circumstances, terms and conditions" of the transaction whereby the amount was originally included in his income. The $1,036,000 Bailey paid in 1977 was a civil penalty imposed under 15 U.S.C. § 45 for his multiple violations of an FTC consent order. The payment, therefore, arose from the fact that Bailey violated the consent order, and not from the "circumstances, terms and conditions" of his original receipt of salary and dividend payments from Bestline. Indeed, the amount of the penalty was not computed with reference to the amount of his salary, dividends, and bonuses, and bears no relationship to those amounts. 63 Bailey v. Commissioner, 756 F.2d at 47 (citations omitted). Indeed, we may fairly infer from this language this court's unwillingness to abandon the separate identities of a corporation and its owner-employee. 64 Furthermore, 26 U.S.C. § 1341 does not apply to a taxpayer who has embezzled or otherwise knowingly misappropriated funds which he is later required to return because the taxpayer never had an unrestricted right to the money so obtained. See McKinney v. United States, 574 F.2d 1240, 1243 (5th Cir.1978) ("When the item was embezzled funds, it is clear that it could not appear to the taxpayer that he had any right to the funds, much less an unrestricted right to them. This contention is consistent with the applicable regulations.") (emphasis in original), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). 65 Jess and Barbara Kraft failed to set forth a genuine issue of material fact relevant to their 26 U.S.C. § 1341 claim. Accordingly, the district court properly granted the United States' motion for summary judgment. III. 66 We AFFIRM the district court's summary judgment dismissal of the Krafts' 26 U.S.C. § 1341 claim for the aforementioned reasons. 67 MERRITT, Chief Judge, concurring. 68 I concur basically in the reasons stated in Judge Contie's opinion for denying the Krafts' petition for a refund. I find the most clearly reasoned and persuasive case on this subject to be Perez v. United States, 553 F.Supp. 558 (M.D.Fla.1982). There the president of a corporation who pled guilty to mail fraud and as a condition of parole was required to make restitution for kickbacks was not allowed a loss deduction for the amounts paid in satisfaction of the restitution requirement. That case appears to be directly in point. In a clear opinion by Judge Krentzman, the court reviewed the legislative history and development of § 1341. It shows that Congress enacted this section in order to overrule the case of United States v. Lewis 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560 (1951). It also shows that in enacting § 1341 Congress did not intend to overrule the "claim of right" doctrine. The court concluded "that Congress could not have intended to extend 1341 to embezzlers, for their income was not even taxable in 1954." 553 F.Supp. at 561. Thus for the reasons stated in Judge Contie's opinion and for the reasons stated in the Perez opinion, I would affirm the judgment of the District Court. 69 DAVID A. NELSON, Circuit Judge, concurring. 70 I have no problem with my colleagues' analysis if there is no genuine issue as to the fact--asserted by the government and denied by the taxpayers--that Dr. Kraft defrauded Blue Cross of at least $160,000. I consider it unnecessary to decide whether there is any genuine issue as to the amount of the fraud, however, because I do not believe that the Krafts come within the terms of 26 U.S.C. § 1341 in any event. 71 For a taxpayer to take advantage of § 1341, he must show, among other things, (1) that "an item" was included in a prior year's gross income because of an apparent unrestricted right to the item, and (2) that it was subsequently established that the taxpayer did not have an unrestricted right to "such item" or a portion thereof. 26 U.S.C. §§ 1341(a)(1) and (a)(2). Both sections clearly speak of the same "item." 72 The "item" included in the Krafts' gross income for the prior year at issue here was not a fee received from Blue Cross; it was, rather, a salary item received by Dr. Kraft from his corporation. It has not been established that Dr. Kraft had no unrestricted right to his salary as far as the corporation is concerned, and there is no contention that Dr. Kraft ever remitted any part of his salary to the corporation. It was Dr. Kraft's decision to use his corporation as a source of income, and on the facts of this case I can see no justification for piercing the corporate veil and pretending that there was never any corporation in the picture. I would affirm the judgment of the district court on that basis.	{ "pile_set_name": "FreeLaw" }
Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 2-6-2006 Dong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-4473 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Dong v. Atty Gen USA" (2006). 2006 Decisions. Paper 1638. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1638 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 04-4473 __________ ZENG CHENG DONG, Petitioner v. ALBERTO GONZALES * , ATTORNEY GENERAL OF THE UNITED STATES, Respondent. ____________________________________ On Petition For Review from a Final Order of The Board of Immigration Appeals AGENGY NO. A70-892-643 ____________________________________ Submitted Pursuant to LAR 34.1(a) January 9, 2006 * Attorney General Alberto Gonzales has been substituted for former Attorney General John Ashcroft, one of the original respondents in this case, pursuant to Fed. R. App. P. 43(c). ____________________________________ Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE , Senior District Court Judge (Filed: February 6, 2006) ____________________________________ OPINION OF THE COURT ____________________________________ DEBEVOISE, Senior District Judge Zeng Cheng Dong petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his claims for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) presiding over Dong’s case denied these claims based on her determination that Dong was not credible. The BIA affirmed the decision without opinion. Because the IJ’s credibility determination is supported by substantial evidence, we will deny the petition. I. Background and Procedural History There are many inconsistencies in Dong’s recital of the events forming the basis of his claims as they are set forth in his 1-589 asylum application form, his affidavit that Honorable Dickinson R. Debevoise, Senior District Judge for the District of New Jersey, sitting by designation. 2 accompanied the 1-589 Form and his testimony. A starting point is the account Dong gave in his testimony on direct examination before the IJ who conducted the March 10, 2000 merits hearing.1 As recited in that testimony: Dong was born in 1956 in Fuzhou Province in the People’s Republic of China. His wife was born in 1957 in Fujian Province. They began living together in December 1977, but their marriage was not registered until November, 1980 because they had been underage. Before that date they had had a boy, and at the time of registration the wife was told that she would have to have an IUD inserted. Because Dong and his wife wanted more children, they had the IUD removed by a private doctor. Thereafter the wife became pregnant with a second child, a development they discovered in February 1982. The second child was born on December 28, 1982. Someone reported the birth to officials of the government. Officers came to Dong’s home and told his wife she would have to go for a sterilization procedure. They used a rope to tie her hands, put her in a car and took her to a hospital for the sterilization. Before the procedure began, the wife asked if she could use the restroom. She proceeded to the restroom and when so doing she escaped undetected from the hospital. She ran to the village of Niantong where she continued to live while Dong worked in the construction business in Fuzhou City. A third child was born to the couple in February 1 Immigration Judge Malloy, who issued the decision in this case, did not conduct the March 10, 2000 merits hearing; rather she relied upon a transcript. Judge Malloy conducted an adjourned session of the hearing held on April 1, 2002 at which the asylum officer testified. 3 1984 in the village of Niantong. On May 4, 1984 Dong and his wife returned to his hometown. The following day officials came to his home and took his wife away for a successful sterilization. He and his wife were fined 2000 yuan; he could not register the child in the household registration book because it was an excessive birth, and for the same reason they had to pay higher fees for school. Dong arrived in the United States on August 20, 1992 via Mexico. Asked why he waited until 1992 and why he chose the United States, Dong responded because of the lifestyle and financial reasons and that it was very difficult to survive in China. On June 17, 1993 Dong filed an asylum application in which he claimed to have been mistreated in China on account of his political opinion. The details set forth in this application differed substantially from the account Dong gave on his direct examination, including the statement that after the official learned of the third birth they forced him to undergo sterilization. His basis for relief was the government’s family planning policy. On January 14, 1997 an asylum officer interviewed Dong. He stated that he feared persecution in China on account of his religion and because he opposed the government’s family planning policy. In his asylum application he denied that he had ever been arrested, but he informed the asylum officer that he had been arrested and detained for three days because of his participation in religious gatherings. When the asylum officer asked Dong about his asylum application, Dong acknowledged that it had been read to 4 him and that it was truthful. He explained the absence of a reference to religious persecution as a failure on the part of the travel agent to include it. On January 15, 1997 the INS placed Dong in deportation proceedings, charging him with entering the United States without inspection. He admitted the allegations, conceded his deportability and announced his intention to seek asylum, withholding of deportation, and CAT protection. He was the only witness to testify at his March 10, 2000 merits hearing, at which he testified as described above. His testimony, including that which was developed on cross-examination, varied considerably from his statements to the asylum officer. Dong disavowed certain of his statements to the asylum officer and attributed some discrepancies to possible interpreter mistakes. The asylum officer was called to testify at an adjourned April 1, 2002 hearing. She testified that she questioned Dong about his asylum application and that he made no substantive changes in it and affirmed that its contents were true. She further testified that she found Dong not credible and his story contradictory and confusing. Dong failed to file a corrective affidavit in spite of several opportunities to do so. On October 21, 2002, the IJ denied Dong’s asylum, withholding of removal and CAT applications. Her opinion included a comprehensive summary of Dong’s testimony on direct and cross-examination, detailing his attempts to explain the numerous inconsistencies in the accounts he had given in his asylum application and supporting affidavit, in his statement to the asylum officer and in his hearing testimony. The IJ 5 observed that “the court has before it three versions of respondent’s claim for asylum” (A. 39). The account recited in the affidavit submitted with Dong’s application and at various proceedings that followed constituted one version. However, the IJ did not give much weight to it because it “does seem to be lacking in details and does have a glaring error where it states that respondent was sterilized and that error was pointed out by respondent’s attorney at the first master calendar.” (A. 41-42). The IJ relied on the other two versions of Dong’s claims, his courtroom testimony and the testimony provided at the asylum interview. She noted a series of contradictions and inconsistencies between these two versions. “For example, [ ]stating that he left in 1982 for the family planning reasons and then stating that he left because of the religious crackdown. It was interesting to see respondent’s attempts to reconcile both of the inconsistent answers. And this was repeated over and over again throughout the respondent’s testimony.” (A. 45). The IJ found that Dong failed to produce documents to show that his wife had been sterilized or that an IUD was inserted, finding that the x-rays Dong submitted were not shown to portray his wife. The IJ noted that Dong “also failed to submit any evidence that he is a member of the Christian church, that he attends church, that he holds any particular religious beliefs” (A. 46), concluding “[t]here is nothing in his application or any documents submitted that would demonstrate that respondent would be persecuted for any religious reasons.” (A. 47). 6 Based on the lack of corroborative evidence and because of the numerous inconsistencies in Dong’s testimony, the IJ held that Dong had not established that he had suffered past persecution or that he would suffer future persecution on account of any of the five enumerated grounds and that, therefore, he had failed to establish his eligibility for asylum. It followed that Dong had also failed to establish his eligibility for withholding of deportation to the People’s Republic of China. Finally, the IJ held that Dong had failed to establish that he would be tortured for any reason should he return to that country and thus had failed to establish his eligibility for relief under the CAT. Dong petitions for review of the BIA’s order affirming without opinion the IJ’s decision. II. Jurisdiction and Standard of Review Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a petition for review from a final order of the BIA. When the BIA affirms an IJ without opinion, “we review the IJ’s opinion and scrutinize its reasoning.” Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004) (internal quotation marks and citation omitted). In asylum cases, we must uphold the agency’s factual findings if they are supported by substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296 (3d Cir. 2004). That is, the denial of asylum “can be reversed only if the evidence presented by [the Petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Abdille v. Ashcroft, 242 F.3d 477, 7 483-84 (3d Cir. 2001) (“[T]he [agency]’s finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.”). Denials of applications for withholding of deportation are also reviewed under the substantial evidence test. Melendez v. United States Dept. of Justice, 926 F.2d 211, 218 (2d Cir. 1991). Adverse credibility determinations, like other factual findings in immigration proceedings, are reviewed under the substantial evidence standard. Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003). III. Discussion The Attorney General and his delegates may grant asylum to any alien who qualifies as a refugee under the Immigration & Nationality Act (“INA”). 8 U.S.C. § 1158(b)(1). A refugee is an alien who is “unable or unwilling” to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42(A). “Aliens have the burden of supporting their asylum claims through credible testimony.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). “Testimony, by itself, is sufficient to meet this burden, if ‘credible.’” Id. (quoting 8 C.F.R. §208.13(a)). To establish eligibility for asylum, an applicant must demonstrate past persecution by substantial evidence or a well-founded fear of persecution that is both subjectively and objectively reasonable. Lukwago v. Ashcroft, 329 F.3d 157, 177 (3d Cir. 2003). 8 Withholding of deportation is available under INA section 241(b)(3), 8 U.S.C. § 1231(b)(3). That section provides that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in such country on account of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” § 1231(b)(3); see also INS v. Stevic, 467 U.S. 407, 411 (1984). In order to be eligible for that relief, an alien must demonstrate “a clear probability” of persecution, i.e., a showing that it is “more likely than not” he will be persecuted upon return to his home country. INS v. Cardoza- Fonseca, 480 U.S. 421, 429, 448 (1987); Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001); 8 C.F.R. § 208.16(b)(2001). Because this standard is more stringent than the “well-founded fear” of persecution standard required for asylum, it follows that an alien who fails to demonstrate eligibility for asylum also fails to satisfy the more stringent requirements of withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). Dong’s principal ground for asylum is past persecution and a well-founded fear of persecution on account of his opposition to his country’s family planning policies, culminating in the sterilization of his wife. He relies on §601(a) of the September 30, 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, enacted as Division C of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act of 1997, Pub. L. No. 104-208, 110 Stat. 3009-689 (1996) (“IIRIRA”). Section 601(a) of the IIRIRA provides: 9 For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion. Sitting en banc, the BIA applied this provision to circumstances remarkably similar to those which prevail in the instant case. Matter of C-Y-Z, BIA Interim Decision 3319 (June 4, 1997). The petitioner, a citizen of the People’s Republic of China, was married in China in 1986 and was the father of three children, the last a son born in 1991. He and his wife were opposed to China’s family planning requirements. After the birth of his first child, his wife was forced to obtain an IUD. The device was removed and when the wife became pregnant again she was ordered to undergo an abortion. She hid until she delivered a third child, after which she was sterilized against her will. Petitioner left China eighteen months later, arrived in the United States in 1993 and applied for asylum. Reversing an IJ decision that did not make an adverse credibility finding but denied asylum, the BIA majority opinion held as follows: i) citing its prior decision in Matter of X-P-T, BIA Interim Decision 3299 (Dec. 3, 1996), an alien who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for resistance to a coercive population control program, has suffered past persecution on account of political opinion and qualifies as a refugee within the amended 10 definition of that term under § 101(a)(42) of the Act; ii) the spouse of a woman who has been forced to undergo an abortion or sterilization procedure can thereby establish past persecution; iii) a spouse having adequately established that he suffered past persecution is entitled to the regulatory presumption that he has a well-founded fear of future persecution under 8 C.F.R. § 208.13(b)(1); iv) the alien who has thus established past persecution does not have the additional burden of proving a well-founded fear of future persecution by evidence that the involuntary sterilization was carried out in such a way as to amount to an “atrocious form” of persecution; rather “[t]he regulatory presumption may be rebutted only by a showing, by a preponderance of the evidence, that since the time the persecution occurred, conditions in the applicant’s country have changed to such an extent that the applicant no longer has a well-founded fear of persecution if he returned to his home country.” The BIA concluded that the applicant had demonstrated eligibility for asylum and withholding of deportation. The majority opinion in In re C-Y-Z was accompanied by a concurring opinion, a concurring and dissenting opinion, and a dissenting opinion. Our court has not expressed an opinion about certain of the BIA’s holdings. Nevertheless, assuming In re C-Y-Z governs the instant case, the IJ’s credibility finding precludes applying In re C-Y-Z to Dong. Finding Dong’s testimony unbelievable, the IJ did not credit his account, or accounts, of his wife’s subjection to an IUD or forced sterilization. Without credible evidence that the wife was subjected to those procedures, there is no basis for Dong’s 11 claim of asylum, withholding of deportation or relief under the CAT. Dong challenges the IJ’s credibility determination, arguing that any inconsistencies in his testimony were minor or constituted minor omissions relating to unimportant facts. As such, Dong contends, they will not support an adverse credibility finding. Alvarado- Carillo v. INS, 251 F.3d 44, 56 (2d Cir. 2001); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996). We have reviewed this proceeding in which Dong provided information. The glaring inconsistencies and contradictions provide substantial evidence to support the IJ’s finding that Dong was not credible. These inconsistencies and contradictions appeared not only in his accounts of the events relating to the birth of three children, they also appeared in his belated claim that he was persecuted for his religious beliefs. The documentary evidence fails to remedy the failure of proof. IV. Conclusion There was sufficient evidence to support the IJ’s adverse credibility finding, and consequently Dong has failed to produce sufficient credible evidence to establish either past persecution or an objectively reasonable, well - founded fear of future persecution in China. Dong does not seriously even argue in his petition that there are substantial grounds for believing that, were he returned to China, he would be in danger of being subjected to torture.2 We find no error in the BIA’s affirming the IJ’s decision. 2 We note that the record discloses that Dong’s wife and three children continue to reside in China, apparently without difficulty, and that all three children attend school and have been 12 Consequently we will dismiss the petition. registered in the household registry since 1985. 13	{ "pile_set_name": "FreeLaw" }
12/05/2017 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON September 6, 2017 Session STATE OF TENNESSEE v. COYNICK BOSWELL Appeal from the Criminal Court for Shelby County No. 14-00658 James C. Beasley, Jr., Judge ___________________________________ No. W2016-02591-CCA-R3-CD ___________________________________ Following a jury trial, the defendant, Coynick Boswell, was convicted of the first-degree murder of the victim, Kadrian Woods. On appeal the defendant challenges the sufficiency of the evidence to support his conviction for premeditated murder and his request for and instruction on self-defense. Having thoroughly reviewed the record and although the evidence is sufficient to sustain the jury’s verdict, we conclude that the trial court erred when it failed to instruct the jury as to self-defense. Accordingly, we reverse the judgment of the trial court and remand the matter for a new trial. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case Remanded J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J., and NORMA MCGEE OGLE, J., joined. Michael R. Working, Memphis, Tennessee, for the appellant, Coynick Boswell. Herbert H. Slatery III, Attorney General and Reporter; David H Findley, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Colin Campbell, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Factual Background 1. Overview The defendant was convicted by a jury of first-degree murder on October 26, 2016. This case arises out of an altercation at the Eden Point Apartments in Memphis, Tennessee on August 23, 2013. The defendant confronted the victim on the stairway of the apartment complex. The defendant, armed with a handgun, accused the unarmed victim of giving him counterfeit money. The confrontation escalated, and the defendant discharged his weapon several times. The victim was struck twice, once in the upper back and once in the abdomen. The wound in his back caused critical internal injuries from which he later died. The defendant fled the scene but was later arrested. The defendant’s trial focused primarily on the testimony of three witnesses to the confrontation. First, Brandon Sails testified that the victim had just left his apartment before encountering the defendant on the stairway. Secondly, Wardell Thomas explained he accompanied the defendant to Eden Point Apartments. Finally, Carlos Daniel, the victim’s cousin, testified he was with the victim when they both left Mr. Sails’ apartment. Only Mr. Thomas and Mr. Daniel were witnesses to the entire altercation, while Mr. Sails saw most of the fight through his window and open door. All three witnesses positively identified the defendant in a photo line-up and at trial as the shooter. At the conclusion of the trial, the defendant requested an instruction on self- defense. The trial court denied the request. The jury was instructed on first-degree murder as well as the lesser included offenses of voluntary manslaughter, reckless homicide, and criminally negligent homicide. The jury found the defendant guilty of first-degree murder. The defendant moved for a new trial, which was denied. The defendant now appeals challenging the failure to instruct the jury to consider self-defense and arguing there is insufficient evidence to sustain the jury’s verdict. 2. Witness Testimony The State’s proof consisted of testimony from the victim’s mother, the responding officers, the three witnesses from the scene, and the testimony and report from the medical examiner. The victim’s mother testified that her son was twenty-three years old at the time of the shooting. The first officer on the scene, Officer Matthew Dyess, testified that by the time he responded, the altercation had ended and his main role was securing the scene for the other officers who were arriving. The State called each of the three eyewitnesses to testify to their recollection of the events. A. Brandon Sails Mr. Sails testified that on the night of the shooting, the victim was in Mr. Sails’ apartment “for maybe fifteen to twenty minutes.” Mr. Daniel arrived about a half-hour before the victim. Mr. Sails testified that the victim and Mr. Daniel left the apartment together and that he could view them through the open blinds in the living room window and through his open door. Mr. Sails noted that the victim was not armed when he left the apartment. As the victim was leaving, Mr. Sails saw two men ascending the stairs -2- towards Mr. Daniel and the victim, one of whom he recognized as Mr. Thomas. Mr. Sails saw Mr. Thomas and Mr. Daniel shake hands and then immediately heard two gunshots. He then heard the victim shout, “What’s up with you bro?” Mr. Sails testified he heard nothing spoken between the parties prior to hearing the shots. Mr. Sails stated he saw the defendant gesture to something at his side during the confrontation. The following exchange took place between Mr. Sails and the State when he was asked about the gesture: State: Prior to that gesture, did you see [the victim] use any violence against the person that made that gesture? Mr. Sails: I saw [the victim] charge the person who made the gesture as intent to not let him get whatever it was that he gestured at his waist side for. Sate: Prior to that charge, did you see [the victim] use any violence against that person? Mr. Sails: It was -- it looked like in defense. Because the way [the victim] said, What’s up with you, Bro, it was a scared intent, like he had been shocked or something. State: I guess my question is: Did you see him -- did you ever see -- prior to the gesture, and you just testified that [the victim] is moving towards this person as he’s making the gesture, did you see [the victim] punch this person prior to him going towards him? Mr. Sails: No, sir. State: Okay. Did you see [the victim] push [the defendant]? Did you see [the victim] injure [the defendant] or anything like that? Mr. Sails: No, sir. State: Which happened first, the gesture towards the hip or [the victim] coming at this person? Mr. Sails: The gesture at the hip. State: Happened first? -3- Mr. Sails: Yes, sir. Through the window, Mr. Sails saw the victim and the defendant “wrestling,” at which point Mr. Sails retreated further back into his apartment. Mr. Sails then heard one last shot, after which he made his way back to the door and looked outside his apartment. When he looked out of his apartment, Mr. Sails saw the victim lying on the ground and wounded. Mr. Sails testified he later identified the defendant in a photo line-up as the shooter. Upon cross-examination, Mr. Sails testified that while the defendant and the victim were wrestling, their hands were interlocked. At this point, the victim had the defendant pressed against the rail. According to Mr. Sails, had the victim pushed the defendant over the rail the defendant would have fallen two stories “to the bottom.” Mr. Sails clarified that the defendant was not in a “back-bend tilt” over the rail, but only a semi-tilt. After seeing the defendant pressed against the rail, Mr. Sails testified he heard one last shot before everyone involved in the incident “ran off.” Mr. Sails confirmed on redirect examination that he heard four shots before seeing the defendant and the victim wrestling by the rail prior to the final shot. B. Wardell Thomas Mr. Thomas testified that he and the defendant arrived at the Eden Point Apartments in the early evening on August 23, 2013. Mr. Thomas knew the defendant was armed when they left for the apartments. He stated they normally keep guns on themselves for protection. The defendant had the gun tucked into the waist of his pants, under his shirt. Mr. Thomas stated that as he and the defendant climbed the steps to Mr. Sails’ apartment, they encountered the victim and Mr. Daniel leaving the apartment. The victim asked if they wanted to gamble, but the defendant refused because the victim had given him forty dollars in counterfeit money three weeks prior. The situation then escalated when the victim pulled up his pants and the defendant did the same, showing he was armed with a revolver. The victim asked, “You got a gun?” The defendant replied, “I just want my money.” Mr. Thomas saw the victim start towards the defendant. The defendant put up his hands and said “you ain’t got to walk up on me like that.” Mr. Thomas testified the victim saw and “went for the gun,” but “[the defendant] got it from him.” According to Mr. Thomas, the defendant had control of the weapon. At that point, the gun “went off”, and Thomas ran down the steps and away from the fight. Mr. Thomas testified he heard four or five more shots after he fled the scene. -4- Mr. Thomas admitted his initial statement to police differed from his courtroom testimony. After the incident, Mr. Thomas initially stated, “[the victim] pulled his pants up at him, then [the defendant] tried to defend himself by pushing him off. Then [the defendant] was reaching for his gun while [the victim] was trying to rush him. Then the gun went off . . . .” Contrastingly at trial, Mr. Thomas stated “[the victim] must have seen the gun” and gone for it. Mr. Thomas confirmed he heard the defendant say to the victim “You got me [fked] up” at the beginning of the confrontation. When asked what that phrase meant, Mr. Thomas clarified that it meant the defendant was accusing the victim of having cheated him. On redirect, Mr. Thomas confirmed the defendant reached for his gun while the victim was advancing on him. After the shooting, Mr. Thomas spoke to the defendant on the phone. During the conversation, the defendant was “paranoid” and wanted to get his and Mr. Thomas’ “stories straight.” C. Carlos Daniel Mr. Daniel testified he arrived at Mr. Sails’ apartment in the afternoon on August 23, 2013, and the victim arrived as it was “getting dark.” Mr. Daniel stated he and the victim left Mr. Sails’ apartment shortly after the victim’s arrival. As he opened the door, Mr. Thomas was just outside. As the victim began to leave, Mr. Daniel saw the defendant coming up the steps. Daniel heard the defendant say: “You got me [fcked] up.” Mr. Daniel testified that when he heard this statement, he had just stepped off the landing outside the apartment, and the victim was behind him on the landing at the top of the steps. The defendant continued up the steps passing Daniel and shouting at the victim, “you got me [fcked] up, you got me [fcked] up.” Mr. Daniel testified the defendant accused the victim of passing him counterfeit money. When the victim attempted to walk past the defendant on the steps, the defendant “bumped” him back up a step. Mr. Daniel testified the victim then pulled up his pants, and the defendant almost instantly drew and fired his weapon. Mr. Daniel stated the bullet ricocheted, and the defendant was attempting to raise his weapon but could not because the defendant and the victim were wrestling for control of the gun. Mr. Daniel clarified that it was the victim who grabbed the defendant “when the gun came up” because the defendant “tried to shoot [the victim] with the gun.” Mr. Daniel testified that after the defendant and victim began wrestling with each other the fight continued up the stairs towards the railing. Mr. Daniel stated that during the fight the gun went off “five or six” times. Mr. Daniel testified that when the fight reached the railing on the balcony, the victim slipped and fell to the ground. Mr. Daniel stated that while the victim was attempting to stand back up, the defendant fired the weapon into the victim’s back at close range. Mr. Daniel retreated into Mr. Sails’ -5- apartment after the first shots and watched the fight from the open door of the apartment. Mr. Daniel testified that Mr. Thomas and the defendant fled after the last shot. Mr. Daniel confirmed that he later identified the defendant in a photo line-up as the shooter. On cross-examination, Mr. Daniel explained that as the fight began both the victim and the defendant “bumped” each other. Mr. Daniel saw the victim pull up his pants as he tried to get past the defendant, and at that point, the defendant pulled his weapon and began firing. Mr. Daniel stated that when the first shot was fired only the defendant’s hand was on the weapon. When asked repeatedly if the victim ever had his hand on the weapon, Mr. Daniel confirmed that throughout the entire fight, only the defendant had control of the weapon. Mr. Daniel testified that towards the conclusion of the fight the defendant had overpowered the victim, who had slipped down against the railing, and that is when the defendant shot the victim in the back. When questioned about why his testimony was different than Mr. Sails’ account, Mr. Daniel explained: “[Mr. Sails] didn’t see everything I saw. I saw everything. I was out there when everything went on. He was in the house. They was still in the house with the music on and playing the game.” Mr. Daniel stated he never saw the defendant being pushed over the railing. 3. Medical Examiner’s Testimony and Jury Instruction The State called Dr. Karen Chancellor, the chief medical examiner for Shelby County, as its last witness. Dr. Chancellor, an expert in the field of forensic pathology, testified to her findings after conducting the victim’s autopsy. She explained the manner of death was due to multiple gunshot wounds. Dr. Chancellor noted the victim suffered two gunshot wounds which she labeled “Number 1” and “Number 2.” She clarified that the numbering of the wounds was only organizational, not indicative of which was inflicted first. Based on her examination, it was not possible to determine the order in which the wounds were inflicted. Dr. Chancellor testified to the details of gunshot “Number 1” stating “gunshot wound number one [was] on the right side of the upper back, it fractured a posterior part of a right rib to enter the chest cavity. It went through the right lung, the liver, the inferior vena cava and the pancreas.” She testified that the wound caused severe internal bleeding and, absent immediate medical care, would have caused unconsciousness in under a minute and death within a few minutes. Dr. Chancellor stated that based on the stippling around the wound, gunshot “Number 1” was inflicted from “two to three feet” from the victim’s back. She stated this was only an estimate because the victim’s shirt was not available for examination, and it was possible the gun could have been closer. Dr. Chancellor testified that the gun -6- would be firing downward towards the victim, but absent more information it would not be possible to determine the exact position of the gun and the victim. Dr. Chancellor testified that gunshot “Number 2” entered the front of the body “just beneath the rib cage.” Her examination determined gunshot “Number 2” entered “the abdomen . . . [and] caused injury of the transverse colon. It perforated the small intestine multiple times. It went through the urinary bladder, entered the left buttock, and lodges in the medial aspect of the muscular tissues of the left thigh.” Dr. Chancellor noted this wound could potentially have been fatal, but not immediately, and a victim could have survived this wound. Dr. Chancellor stated the entry wound for gunshot “Number 2” was inflicted from about “one to six inches” from the victim’s body. When asked on cross-examination about the range of the gun from the body, Dr. Chancellor testified that without additional information it would be impossible to determine an exact number within the given range. She stated the powder stippling indicated the gunshots could have been inflicted from slightly further away, but it was more likely to have been closer. The State rested after Dr. Chancellor’s testimony. After the defendant rested, the defendant moved the trial court to charge the jury with a self-defense instruction. The trial court denied the motion stating there was not enough evidence to support self- defense. The trial court noted the testimony indicated “that from the beginning . . . the defendant was the more aggressive” party. The jury returned a verdict of guilty on the charge of first-degree murder. Analysis The defendant appeals his verdict to this Court challenging the sufficiency of the evidence supporting first-degree murder and the trial court’s failure to instruct the jury on self-defense. The defendant argues the State failed to provide sufficient evidence to support premeditation. The State argues there is sufficient evidence to support the jury’s finding of premeditation. The defendant also claims the trial court should have instructed the jury on self-defense arguing the defendant shot the victim to avoid being thrown from the balcony. The State argues that the defendant’s initial aggression and escalation of the altercation does not entitle him to a self-defense instruction. Upon our thorough review of the record, we agree with the defendant and reverse the judgment the trial court. 1. Jury Instruction for Self-Defense The Tennessee Supreme Court has established that “sufficient evidence to fairly raise a general defense ‘is less than that required to establish a proposition by a -7- preponderance of the evidence.’” State v. Self, No. E2014-02466-CCA-R3-CD, 2016 WL 4542412, at 59 (Tenn. Crim. App. Aug. 29, 2016), perm. app. denied (Jan. 19, 2017), cert. denied, 137 S. Ct. 2224 (2017) (quoting State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013)). The trial court must consider the evidence in the light most favorable to the defendant and draw all reasonable inferences in the defendant’s favor. Id. If the evidence at trial fairly raises a general defense, the trial court is required to provide the jury with the appropriate instruction. Id. The trial court’s determination of whether to give or withhold a jury instruction is a mixed question of law and fact that this Court reviews de novo without a presumption of correctness. Id. Relevant to the issue here, Tennessee Code Annotated section 39-11-611(b) explains that a person acts in self-defense when the person: is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if: (A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury. (B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and (C) The belief of danger is founded upon reasonable grounds. Tenn. Code. Ann. § 39-11-611(b)(2)(A)-(C). Additionally, the threat or use of force against another is not justified “if the person using force provoked the other individual’s use or attempted use of unlawful force unless, “[t]he person using force abandons the encounter or clearly communicates to the other the intent to do so; and the other person nevertheless continues or attempts to use unlawful force against the person.” Tenn. Code Ann. § 39-11-611(e)(2)(A-B). After reviewing the record, we are persuaded that self-defense was “fairly raised” in this case. While two of the three eyewitnesses, Mr. Daniel and Mr. Sails, testified that the defendant was the primary aggressor, reaching for his gun, which caused the victim to react in self-defense, Mr. Thomas’ testimony seems to call their assessment into question. Specifically, on cross-examination, Mr. Thomas testified that the victim “pulled his pants up as in with aggression” and started “coming towards [the defendant].” In turn, the defendant reacted by “[throwing] his hands up like, Hold up.” The victim then, either because he knew the defendant had a gun or because he saw the gun in the defendant’s waist band, reached for the defendant’s gun. Despite being questioned on re-direct examination about his testimony differing from his initial statement to police, Mr. Thomas consistently testified that the victim “rushed” the defendant and reached for the defendant’s waistband and gun. -8- Based on the differences between the eyewitness accounts of Mr. Thomas, Mr. Sails, and Mr. Daniel, this case presented a question of fact as to whether the defendant or the victim was the primary aggressor. Mr. Sails’ and Mr. Daniel’s testimony painted a picture that the defendant pulled a gun on the victim, and the victim responded in self- defense. However, viewed in a light most favorable to the defendant, Mr. Thomas’ testimony seems to suggest that the victim was the primary aggressor, reaching for the defendant’s gun which caused the defendant to act in self-defense. Resolution of that issue was one the jury should have determined after having been properly instructed on the law of self-defense prior to determining whether the defendant is guilty or not guilty. When the proof “tends to show” self-defense, it is error to fail to give the instruction. Souey v. State, 81 Tenn. 472 (1884). Because the jury was not given the benefit of the instruction and denied the opportunity to evaluate the merit of the claim, we must reverse the convictions and order a new trial. 2. Sufficiency of the Evidence to Support First-Degree Murder. When the sufficiency of the evidence is challenged, the relevant question for the reviewing court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our Supreme Court has stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. -9- Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Guilt may be found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for sufficiency of the evidence “‘is the same whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial evidence and the inferences to be drawn from this evidence and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence, shall not reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id. At trial, the State was required to prove beyond a reasonable doubt that the defendant intentionally and with premeditation killed the victim. Tenn. Code Ann. § 39- 13-202(a)(1). “‘Intentional’ refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39- 11-302(a). A premediated act is one done after the exercise of reflection and judgment, and the intent to kill must have been formed prior to the act. Tenn. Code Ann. § 39-13- 202(d). “It is not necessary that the purpose to kill preexist in the mind of the accused for any definite period of time.” Id. To be capable of premeditation, however, the accused must have been sufficiently free from excitement and passion. Id. The existence of premeditation is a question of fact for the jury to determine based on a consideration of all of the evidence. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000). Premeditation may be inferred from the circumstantial evidence surrounding the crime, including the manner and circumstances of the killing. See State v. Pike, 978 S.W.2d 904, 914 (Tenn. 1998); State v. Addison, 973 S.W.2d 260, 265 (Tenn. Crim. App. 1997). - 10 - The State provided the following proof to support a finding of first-degree murder. The State presented testimony from three eyewitnesses who identified the defendant as the shooter. This testimony was supplemented by the fact that, shortly after the crime, each eyewitness identified the defendant in a photo lineup. The State provided further testimony that the defendant fired at least two shots, one into the defendant’s back. Additionally, the State provided the report of the medical examiner which stated the gunshots caused the victim’s death. Based on our review of the proof presented, the evidence is sufficient to establish that the defendant intentionally killed the victim. The defendant, however, argues the State failed to meet its burden establishing premeditation. The Tennessee Supreme Court has further explained premeditation as follows: The elements of premeditation and deliberation are questions for the jury which may be established by proof of the circumstances surrounding the killing. There are several factors which tend to support the existence of these elements which include: the use of a deadly weapon upon an unarmed victim; the particularly cruelty of the killing; declarations by the defendant of an intent to kill; evidence of procurement of a weapon; preparations before the killing for concealment of the crime; and calmness immediately after the killing. State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997) (internal citations omitted). However, State v. Bland does not include an exhaustive list of factors for consideration when finding premeditation. State v. Adams, 405 S.W.3d 641, 663 (Tenn. 2013). A conclusion the killing was premeditated may also be supported by the nature of the killing or evidence establishing a motive. Id. Likewise, lack of provocation by the victim, failure to render aid, and destruction or secretion of evidence may also support an inference of premeditation. State v. Larkin, 443 S.W.3d 751, 815-16 (Tenn. Crim. App. 2013) (internal citations omitted). Finally, the firing of multiple shots can allow a jury to infer premeditation. State v. Halake, 102 S.W.3d 661, 669 (Tenn. Crim. App. 2001) (“Additionally, in the instant case the victim was shot multiple times, which although not indicative of premeditation when considered by itself, can be considered as evidence of premeditation in addition to other proof of premeditation.”) The defendant argues there are insufficient facts to support the circumstances outlined in Bland. The defendant argues only the preexisting dispute between the defendant and the victim over the counterfeit forty dollars points to potential premeditation. The defendant further argues the decision to be armed when he and Mr. Thomas traveled to Eden Point Apartments was based on personal security, not premeditation, given the dangerous nature of the neighborhood. The defendant notes he - 11 - made no declaration of intent to kill the victim and the encounter at the Eden Point Apartments occurred by chance. Finally, the defendant argues he shot the victim to prevent the victim from throwing him from the balcony. Upon our review of the record, the State satisfied its burden establishing premeditation. The State provided testimony that the victim hiked his pants, displaying to the defendant he was not armed. See Bland, 958 S.W.2d at 660. Additionally, the State presented eyewitness testimony that the defendant did not render aid and fled immediately after the final shot was fired. See Larkin, 443 S.W.3d at 815-16. The jury heard facts that indicate the defendant fired at least four shots during the altercation with the victim. See Halake, 102 S.W.3d at 669. Additionally, Mr. Daniel testified the defendant shot the victim in the back after he had stumbled during the fight. Cf. State v. Daniels, No. M2015-01939-CCA-R3-CD, 2017 WL 1032743, at 8 (Tenn. Crim. App. Mar. 16, 2017) (citing Bland, 958 S.W.2d at 660) (explaining that a shot from behind is sufficient to support a finding of premeditation). These facts, in concert with the defendant’s concession of the preexisting dispute between the defendant and victim, are sufficient to support a jury’s determination of premeditation. The defendant, therefore, is not entitled to relief on this issue. Conclusion Based on the foregoing authorities and reasoning, the judgment of the trial court is reversed and the matter is remanded for a new trial. ____________________________________ J. ROSS DYER, JUDGE - 12 -	{ "pile_set_name": "FreeLaw" }
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 11-4163 ___________ ZHANG LAN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A073-476-676) Immigration Judge: Honorable Annie S. Garcy ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) June 1, 2012 Before: SMITH, HARDIMAN AND ROTH, Circuit Judges (Opinion filed: June 1, 2012) ___________ OPINION ___________ PER CURIAM Zhang Lan petitions for review of the Board of Immigration Appeals’ (“BIA”) decision upholding the order of the Immigration Judge (“IJ”) denying Zhang’s motion to reopen her immigration proceedings. For the reasons that follow, we will deny the petition for review. I Zhang Lan (“Zhang”), a citizen of China, entered the United States in 1994 using a false passport. Following an interview conducted by an immigration officer upon her arrival, Zhang received a Notice to Applicant for Admission (“Form I-122”) charging her with having arrived without a valid immigrant visa. The Form I-122 informed Zhang that she would be sent a notice indicating the date and location of her immigration court hearing. A few days later, a Notice of Hearing was sent to the address listed on Zhang’s Form I-122, informing her that she was scheduled for a deportation hearing in February 1995. The address to which that notice was sent was an apartment in Brooklyn, New York, and the Postal Service returned the Notice of Hearing to the immigration court marked “Attempted, Not Known.” Zhang did not report for the February 1995 hearing, and the IJ ultimately ordered her excluded in absentia in June 1995. Zhang did not appeal that determination to the BIA. In April 2000, Zhang, through counsel, filed a motion to reopen alleging that she never properly received notice of the deportation hearing. According to Zhang, she was in the company of other aliens from her region in China during the 1994 immigration interview, and although they understood the Mandarin interpreter, she did not, as she speaks only the Wenzhou dialect. Zhang averred that one of the other aliens present for the interview, Chen Jian Sheng, served as an intermediary between her and the Mandarin 2 interpreter, and that Chen must have provided his own address in Brooklyn, which was inadvertently listed as Zhang’s address. Zhang explained that she only learned of the 1995 order of deportation when she initiated asylum proceedings with her husband in 2000. The IJ denied the motion to reopen, reasoning that there was no evidence in the record supporting her claim that a third person had acted as a translator or that anyone but Zhang had provided her address information. The IJ also noted that Zhang did nothing after receiving Form I-122 to determine when she might be scheduled for a hearing. Zhang did not appeal that decision. In May 2010, Zhang, through new counsel, filed a second motion to reopen, again arguing that she did not receive proper notice of the 1995 deportation hearing. Zhang averred, for the first time, that she learned of the removal hearing in October 1995 when Chen Jian Sheng contacted her. She also argued that reopening was warranted based on (1) her prior attorney’s ineffective assistance and (2) changed conditions in China. The IJ denied the motion to reopen, reasoning that relief was unwarranted for the same reasons given in denying the 2000 motion to reopen. The IJ also noted that Zhang had received the Form I-122, which listed the Brooklyn address, and that she could have taken steps to ensure that she would receive notice of her hearing. Finally, the IJ concluded that Zhang’s ineffective assistance claim was defective for failure to comply with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and that her claim of changed country conditions was meritless. 3 Zhang appealed, and the BIA upheld the IJ’s determination, reasoning, inter alia, that the affidavits Zhang submitted with her 2010 motion, which explained that Zhang never lived at the Brooklyn address, were entitled to little weight, given the excessive delay in obtaining them, and that the long delays in filing both motions to reopen indicated a lack of due diligence, thereby diminishing the weight of her evidence and arguments. Accordingly, the BIA concluded that Zhang failed to demonstrate reasonable cause for failing to appear at the deportation hearing, thus precluding reopening. Finally, the BIA rejected, for the same reasons given by the IJ, Zhang’s ineffective assistance and changed country conditions claims. Zhang then filed this petition for review. II We have jurisdiction pursuant to 8 U.S.C. § 1252(a). The denial of a motion to reopen is reviewed for abuse of discretion. See Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). As the Supreme Court has explained, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 100 (1988). Thus, in order to succeed on the petition for review, Zhang must demonstrate that the agency’s discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994). At the outset, we note that Zhang does not challenge the agency’s decision to deny her motion to reopen on the grounds of ineffective assistance of counsel or changed country conditions. Those arguments are therefore deemed waived, see Laborers’ Int’l 4 Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994), and the only issue before us is whether, as Zhang argues, her motion to reopen should have been granted because of defective notice. Under the INA, when an alien “does not attend” a removal proceeding after written notice has been provided to the alien or her counsel of record, the IJ must order the alien removed in absentia “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is deportable.” 8 U.S.C. § 1252b(c)(1) (1996).1 Such an order may be rescinded, however, if the alien moves to reopen at any time and demonstrates that she did not receive notice of the proceeding “in accordance with paragraph (1) or (2) of section 239(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii). Paragraphs (1) and (2) of § 239(a) require that notice of the proceedings be given in person to the alien “(or, if personal service is not practicable, through service by mail to the alien . . .).” A “strong presumption [of receipt] . . . applies only when a notice from an Immigration Court . . . is sent by certified mail, and [] a weaker presumption of receipt applies when such a notice is sent by regular mail.” Santana Gonzalez v. Att’y Gen., 506 F.3d, 274, 279 (3d Cir. 2007). In Matter of M-R-A-, 24 I. & N. Dec. 665 (BIA 2008), the BIA established a set of 1 As the Government notes, because the notice of hearing was issued before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) took effect, the pre-IIRIRA version of the INA controls in this matter. Notably, § 1252b was recodified at 8 U.S.C. § 1229a, and the relevant portion of that statute contains virtually identical language to the preceding statute. See 8 U.S.C. § 1229a(b)(5)(A). 5 guidelines with respect to the type of evidence the agency should consider that might rebut the presumption of receipt, including, but not limited to: (1) the alien’s affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the alien’s actions upon learning of the in-absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the alien had an incentive to appear; (5) any prior application or other prima facie evidence in the record or motion of statutory eligibility for relief, also indicating an incentive to appear; (6) the alien’s previous attendance at Immigration Court hearings; and (7) any other circumstances or evidence indicating possible non-receipt of notice. See id. at 674. All relevant evidence submitted must be considered, and “[e]ach case must be evaluated based on its own particular circumstances and evidence.” Id. The BIA considered the three affidavits provided by Zhang in support of her argument that she did not receive the hearing notice, but reasonably discounted that evidence in light of the fact that Zhang had raised the same argument 10 years earlier, but did not provide supporting evidence. Accordingly, the BIA concluded that Zhang had failed to rebut the presumption of receipt or demonstrate reasonable cause for failing to appear at the 1995 hearing. Given the long delays and limited supporting evidence in this matter, as well as the Form I-122, which includes the Brooklyn address and Zhang’s validating fingerprint, we are not persuaded that the BIA acted arbitrarily, irrationally, or 6 contrary to the law. We have considered the other arguments Zhang raises in her brief, and conclude that they do not warrant further discussion. Accordingly, we will deny the petition for review. 7	{ "pile_set_name": "FreeLaw" }
755 F.2d 936 Kourkenev.Bechtel Power Corp. 82-4511 United States Court of Appeals,Ninth Circuit. 3/1/85 1 N.D.Cal. AFFIRMED	{ "pile_set_name": "FreeLaw" }
378 F.Supp.2d 229 (2005) Larry WILLIAMS, Petitioner, v. Dominic MANTELLO, Superintendent, Coxsackie Correctional Facility, Respondent. No. 98-CV-6333. United States District Court, W.D. New York. March 29, 2005. 230 Larry Williams, Attica, NY, pro se. Robert Mastrocola, Monroe County District Attorney's Office, Rochester, NY, for Respondent. DECISION AND ORDER BIANCHINI, United States Magistrate Judge. INTRODUCTION Larry Williams ("Williams") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on two counts of second degree murder and three counts of first degree robbery. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b). FACTUAL BACKGROUND AND PROCEDURAL HISTORY Williams's conviction arises from the robbery and shooting death of Benny Lee Dukes ("Dukes"). In the early morning hours of November 20, 1994, Dukes was robbed by several men while he was standing on the front porch of a friend's house at 18 Maria Street in the City of Rochester. Dukes's dead body was discovered on November 21, 1994, on the back porch of a house several hundred yards away. When Williams was arrested on November 22, 1994, he gave a statement to police admitting that he and four others participated in the robbery of Dukes. Three of the four alleged confederates also were named in the indictment: Dedric Chislum ("Chislum"), Anthony Latson ("Latson"), and Gerome McCullough ("McCullough"). The indictment charged Williams, Chislum, Latson and McCullough with two counts of second degree murder (intentional and felony murder), three counts of first degree robbery, and one count of second degree criminal possession of a weapon. Severance was granted and Williams was tried separately from his co-defendants in Monroe County Court. Ultimately, the weapons charge was not submitted to the jury at Williams's trial. At trial, the jury heard testimony that Dukes's body was found in a nearly sitting position on the steps of an abandoned house on Theodore Street. Dukes's pants were down around his ankles, and he had a large hole in his chest near his heart from a gunshot blast, as well as recent abrasions 231 on both knees and the lower portion of his right leg. The coroner's evidence established that Dukes had been shot once at close range and had died from that wound. T.573-75, 591, 602, 606.[1] Angela Timmons ("Timmons"), Chislum's sister and Williams's aunt, was one of the three eyewitnesses to the murder. She testified that she had been smoking crack cocaine for a period of two to three days prior to the incident with Luz Roman and Maria Bermudez at their house at 18 Maria Street. T.351, 368, 371, 392. That night, Timmons witnessed four men confront Dukes on the front porch of 18 Maria Street. She recognized her brother, Chislum, as one of the four men. Chislum had a gun trained on Dukes while the three other individuals struggled with Dukes. T.354, 358, 367-68. With respect to the other assailants, Timmons testified that Williams was her nephew, and that she only knew McCullough and Latson by their street names, "Chunky" and "Gilla", respectively. Timmons heard Dukes tell them first that he had no money and then that he had $5. Chislum then yelled, "Move, man, move!" His three cohorts stepped away from Dukes. At that moment, the gun went off. Timmons testified that Dukes and Chislum were standing face-to-face, about three to four feet away from each other at that time. T.359. Timmons turned away from the window when the shot was fired; when she looked outside again, she only saw two young men dashing through a short cut to Theodore Street. One of them was "Gilla" (i.e., Latson) but she did not see who the other one was. T.361. Timmons then heard two more shots. About ten or fifteen minutes later, Williams returned to 18 Maria Street; he had a gun in his hands. Williams, who appeared nervous and upset to Timmons, said, "You didn't see anything, right?" Timmons assured him that they had not seen anything. He left soon thereafter, but did not go in the direction of Theodore Street. T.365, 393-97. On cross-examination, defense counsel introduced three inconsistent statements by Timmons. First, two days after the robbery, Timmons had informed the police that Chislum was standing behind, rather than in front of Dukes. T.381. Second, at the grand jury proceeding, Timmons had said that when the gun went off, Chislum was two to three steps behind Dukes. T.384. Third, Timmons had told a private investigator employed by Chislum's defense team that the gun had been pointed up in the air and could not have hit Dukes. T.383. In order to further undermine the key testimony provided by Timmons, defense counsel called a pharmacological expert who testified that the effects of a two to three day cocaine binge could impair a person's ability to perceive and recall events. T.669-70. Roman, another eyewitness, testified with some difficulty through an interpreter that Chislum came over on the night of November 19 and asked to borrow Dukes's car. Dukes refused and Chislum left. Williams came over and asked Roman if Dukes had any money, and she replied that he did not. According to Roman, Dukes left ten minutes later. Williams followed Dukes and told him to hand over his money; Dukes said that he did not have any money. Roman testified that after Dukes said that he had no money, "[t]he four people killed him." T.476. She testified that Williams had the gun at first but then gave it to Chislum. Roman testified that when the shot was heard, 232 Williams had the gun; moments later, she testified that, in fact, it was Chislum who had the gun when the shot was fired. T.477. The four men then ran "towards the other place," which Roman was unable to identify. T.478. Roman testified that Williams returned to the house several minutes later with the gun and said, "Mommy, me happy." T.479-80. According to Roman, Williams typically called her "Mommy," even though she was not his mother. Roman testified that she was crying; she waited for William to leave and she then went to her brother's house for several days. T.481. On cross-examination, Roman asserted her Fifth Amendment right against self-incrimination when defense counsel asked her if she used cocaine on the night of Dukes's murder, if she prostituted in order to support herself financially, and if she forced her daughter, Maria Bermudez, to prostitute herself. T.480-84. Roman reiterated that Williams had the gun when it went off; defense counsel confronted her with the transcript of her testimony from a previous trial in the matter of Dukes's murder in which she testified that she saw Chislum shoot the gun. T.488. Maria Bermudez ("Bermudez"), Roman's daughter and the third eyewitness, testified that late on the night of November 19, she was with her mother and Dukes at the house on Maria Street. Chislum came over to use the bathroom and asked Dukes to "hold his car." Dukes refused and Chislum left. Williams came over to the house and asked Roman if Dukes had any money; when Roman replied negatively, Williams left. When Dukes left the house, Bermudez saw Chislum and three other men coming up the porch steps. Chislum had the gun pointed at Dukes, and the other three rifled through Dukes's pockets looking for money. T.507, 524-25. Bermudez testified that there was no light on the front porch so she was unable to see the events transpiring there very well. She heard the gun go off, but she did not see the actual shot. T.507, 523. According to Bermudez, Chislum had the gun at the time the shot was heard. T.508. Everyone disappeared and soon thereafter, Bermudez head two more gunshots. Williams came to the back door several minutes later. When Timmons let him in, Bermudez did not see that he had a gun. T.509. Williams then left. Dhoretha Pass ("Pass"), who lived across the street, testified that she was woken up by a gunshot. She immediately heard the sound of footsteps running toward her backyard followed by two more gunshots. T.611-12. When she looked out her window, she saw two men whom she identified as Chislum and Williams running across the street in front of her house. T.613, 622. Pass observed Chislum carrying a gun. T.613, 624. The coroner testified that Dukes could have moved vigorously for several minutes after receiving the gunshot wound to his chest. T.582. No blood was found at Maria Street, on the ground on the way to Theodore Street, or on Dukes's clothes apart from the immediate area of the wound. T.535, 555-57, 636, 639. However, the coroner testified, the chest wound would not necessarily have caused a great deal of external bleeding. T.583. At the close of the proofs, defense counsel requested that the court add to its felony murder instruction the following language: "[I]f the jury finds that the killing is an intentional act by a person other than [defendant] for purposes unrelated to the robbery, then it would not be a felony murder." T.671-72. Counsel maintained that the proof presented supported a finding that Chislum's shooting of Dukes 233 was an independent act unrelated to the robbery and that it occurred after the robbery was completed, at a different location and when Williams was not present. T.672-73. After hearing argument from the prosecutor, the trial court refused to charge as requested but informed defense counsel that he could argue that point in summation. T.675. With regard to the intentional murder charge, counsel requested that the court "clearly elucidate the fact that [defendant] must have a specific intent to cause the death ... of the deceased." T.674. The court agreed. On June 23, 1995, the jury returned a verdict convicting Williams of all counts in the indictment. He was sentenced on August 4, 1995, to 25 years to life on the murder convictions and 8 1/3 to 25 years on the robbery charges, all sentences to run concurrently to each other. The Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction on May 30, 1997. People v. Williams, 239 A.D.2d 922, 659 N.Y.S.2d 597 (4th Dept.1997). Leave to appeal to the New York Court of Appeals was denied on August 20, 1997. People v. Williams, 90 N.Y.2d 912, 663 N.Y.S.2d 524, 686 N.E.2d 236 (N.Y.1997). This federal habeas petition followed in which Williams raises the following grounds for habeas relief: (1) the felony murder charge was erroneous; (2) the intentional murder charge was erroneous; and (3) the sentence was harsh and excessive. Respondent concedes that Williams has fully exhausted state remedies with respect to all of his habeas claims. See 28 U.S.C. § 2254(b). DISCUSSION Standard of Review To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Merits of the Petition I. Erroneous Jury Instructions A. Standard for Reviewing Jury Instructions A habeas petitioner has a high hurdle to clear before obtaining relief based on an allegedly infirm jury instruction. In reviewing the propriety of the challenged instruction, the habeas court must ask "whether the ailing instruction by itself so affected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); accord, e.g., DelValle v. Armstrong, 306 F.3d 1197, 1200-01 (2d Cir.2002). The issue is not whether the instruction is "undesirable, erroneous or even `universally condemned'" but whether the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 146-47, 94 S.Ct. 396 (citations omitted); accord, e.g., Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.1996). The Supreme Court has held that it is a "`well-established proposition that single instruction to the jury may not be judged in artificial isolation,' but rather must be judged as the jury understood it, as part of the whole instruction, and indeed, as part of all the proceedings that were observed by the jury." Chalmers, 73 F.3d at 1267 234 (quoting Cupp, 414 U.S. at 146-47, 94 S.Ct. 396); accord DelValle, 306 F.3d at 1201. B. The Intentional Murder Instruction At the beginning of its charge to the jury, the trial court defined accessory liability as follows: To be guilty under § 20.00 of the Penal Law, "the People must prove that the defendant, Williams, acted with the mental culpability required for the commission of the crime of Murder Intentional Murder in the 2d Degree and Robbery in the 1st Degree with three counts. You will recall that in defining as I will define those crimes, the People must prove as an essential element of these crimes that the defendant acted intentionally. Therefore, before defendant Williams can be criminally liable for the conduct of the other defendants, the People must prove that defendant Williams, in fact, intended that such conduct be performed. . . . . . Bear in mind it is not sufficient if the People establish merely that defendant Williams associated with the other defendants or that defendant Williams was present at the time the other defendant or defendants committed the conduct alleged to constitute the crime[] of Intentional Murder[.] ... As instructed, the People must prove that the defendant, Williams, himself intentionally or knowingly engaged in conduct alleged to constitute the crime [sic] of Intentional Murder and Robbery in the 1st Degree under three theories". T.744-46 (emphasis supplied). As to the count charging murder in the second degree (intentional murder), the trial court charged that the People were required to prove beyond a reasonable doubt that, among other things, the defendant, either in accessory or as in principal shot Benny Lee Dukes with the intent to cause the death of Benny Lee Dukes. According to law, a person intends to cause the death of another person when his conscious aim or objective is to cause the death of that person. It is not necessary for the People to establish that the intent to kill was present in the mind of the defendant or defendants for any period of time before Benny Lee Dukes was shot. T.747 (emphasis supplied). The jury requested that the felony murder, intentional murder, and robbery charges be re-read, along with the elements of each of the charges. T.757. The trial judge first read back the section of the Penal Law defining accomplice liability, see T.763, which was the same as that given previously, see T.744-45. When the court read the definition of intentional murder, he slightly changed the phrasing of the instruction by referring to "defendants" in the plural: [The prosecution must prove] that the defendants shot Benny Lee Dukes with the intent to cause the death of Benny Lee Dukes. According to law, a person intends to cause the death of another person when his conscious aim or objective is to cause the death of that person. It is not necessary for the People to establish that the intent to kill was present in the mind of the defendants for any period of time before Benny Lee Dukes was shot. It is sufficient if you find that such intent to kill was in the minds of the defendants when, in fact, Benny Lee Dukes was shot. T.765 (emphasis supplied). Compare with T.747, quoted supra. Some time later, the jury asked to be re-read the intentional murder charge. T.773. Defense counsel indicted that after 235 listening to the Court's intentional murder charge "the second time it was read," see T.765, it was "confusing to [him] as to whether or not the explanation indicated that my client specifically had to have the intent to kill Mr. Dukes ... perhaps[] due to the way Section 20.20 [sic] and the charge on Intentional Murder were read separately." T.773. Defense counsel elaborated, stating that the charge appeared to indicate that as long as one of the co-defendants had the intent to cause death, then the jury could convict Williams of intentional murder. T.775-76. The trial court, apparently misunderstanding defense counsel's objection, asked if he wanted the first element to read that the jury must find "that the defendant, Larry Williams, shot Benny Lee Dukes[.]" T.776. At that point, prosecutor told the court, "You can't do that." Id. Defense counsel added that such a statement was contrary to the facts. Id. The trial court proceeded to have the court reporter re-read the first version of the intentional murder charge (see T.747). T.778. Defense counsel excepted to the instruction on the basis that it allowed the jury to convict Williams as long as the co-defendants had the intent to kill Dukes. T.778-79. The trial judge did not deem it necessary to clarify the charge, stating that he thought it "clear that they're [sic] talking about [Williams] as an accessory." T.780. The jury asked a third time to hear the instructions on accomplice liability, robbery committed while displaying what appeared to be a firearm, and intentional murder. T.780. The court reporter read the charges as given during the trial court's first iteration. T.780-81; see T.745-47, quoted supra. Defense counsel again excepted to the intentional murder charge, noting that in the context of discussing when the intent to cause death must arise, the court "very specifically indicate[d] that the jury can find that there's no specific time when the intent must be formed[;] [i]t must be in the mind of the defendant or defendants at the time Mr. Dukes died." T.781. According to defense counsel, such phrasing "clearly allows the jury, through the use of the word `or,' to find that if the defendants ... had the intent to kill [Dukes] at the time that they did kill him, that [Williams] can be convicted." Id. Defense counsel asked for a re-instruction, or, in the alternative, a mistrial, both of which were denied. T.782. The trial judge agreed with the prosecutor's argument that the accomplice liability charge "clearly says that the defendant must also have the intent to commit the crime of murder." Id. Read in conjunction with that charge, the prosecutor argued, the intentional murder charge sets forth the level of intent necessary to convict Williams. Id. On direct appeal, the Fourth Department rejected Williams's contention that the instruction "erroneously permitted the jury to convict him of intentional murder without finding that defendant himself intended to kill." People v. Williams, 239 A.D.2d at 922, 659 N.Y.S.2d 597. According to the state court, the proper test is "whether, from the court's charge as a whole, the jury would have understood the correct principles." Id. In this case, the Fourth Department found, the trial court "repeatedly instructed the jury that, in order to be guilty of intentional murder, defendant must have intended to kill." Id. Williams contends that the use of the disjunctive, "the defendant or such defendants," in the trial court's original intentional murder charge, see T.747, erroneously relieved the People of their burden to prove that Williams himself had the specific intent to kill. This particular charge was read back by the court reporter 236 to the jury in response to its third and fourth requests for re-instruction. Following the jury's second request, the trial judge charged the jury himself and substituted the phrase "the defendants" for the "defendant or such defendants." Williams complains principally about the court's phrasing when it gave the initial charge. Respondent argues that the offending phrase, "defendant or such defendants," was used in the context of the trial court's point that the intent to kill need not have existed for any period of time prior to the shooting but instead only must have been present at the time of the shooting. Respondent's Memorandum of Law ("Resp.Mem.") at 2 (Docket # 8). Respondent asserts that "this `premeditation instruction' was really a subpart of the general instruction on intent." Id. I agree with respondent that this is an accurate reading of the charge and that Williams's argument takes the erroneous disjunctive phrase out of context. In addition, I disagree with Williams that this instruction concerning the timing of the intent was the only instruction on the intent element of intentional murder: at the very beginning of the intentional murder charge, the court informed the jury that the People must prove that "defendant, either in accessory or as in principal[,] shot Benny Lee Dukes with the intent to cause the death." T.747. Granted, the trial judge's wording was not very artful. However, he did convey to the jury the notion that defendant, must have possessed the intent, at least as an accessory, to cause Dukes's death. Respondent also argues that the trial court properly instructed the jury on accessory liability by stating that the People must prove that Williams acted with the "mental culpability required for the commission of the crime of ... Intentional Murder ... and Robbery[.]" T.744; Resp. Br. at 2-3 (Docket # 8). The trial court further stated that "the People must prove as an essential element of these crimes that the defendant acted intentionally." "Therefore," the court continued, "before... Williams can be criminally liable for the conduct of the other defendants, the People must prove that ... Williams, in fact, intended that such conduct be performed." T.745. According to respondent, these statements concerning intent cured any error that may have existed in the court's intentional murder charge. Williams concedes that the trial court's instruction on accessory liability was partially correct. Petitioner's Memorandum ("Pet'r Mem.") at 12 (Docket # 4). He takes issue, however, with the trial court's "generic" accessory liability charge because it never indicated specifically what "such conduct" encompasses. Id. However, the jury knew that there were both murder and robbery charges about which it needed to deliberate. A reasonable juror of average intelligence would have understood "such conduct" to refer to the behavior constituting intentional murder and armed robbery, which the trial court subsequently explained. He also objects to the trial court's "lumping together," id. at 3, of the intentional murder and robbery counts in the following instruction: "[T]he People must prove that ... Williams, himself intentionally and knowingly engaged in conduct alleged to constitute the crime [sic] of Intentional Murder and Robbery in the 1st Degree under three theories." T.745-46. Williams argues that under the foregoing charge, the jury could have concluded that Williams "intentionally gave Dedric Chislum the gun (or engaged in conduct [sic]), thus satisfying the `intended that such conduct be performed' element." Had the court said "intentional murder or robbery," I would agree that 237 such a conclusion was possible. However, the trial judge stated that Williams intentionally must have engaged in the conduct alleged to constitute intentional murder and robbery. A reasonable juror hearing that instruction would have understood it to mean that Williams must have engaged in behavior amounting to both intentional murder and robbery. I do not find it likely that a reasonable juror would conclude, based upon that language, that merely providing the weapon to the actual shooter was enough to subject Williams to accessory liability for intentional murder. Moreover, prior to this part of the charge, the trial court informed the jury that it was not sufficient for the People to prove that Williams merely associated with the other defendants or simply was present when the other defendants committed the murder and robbery. T.745. Williams further argues that "nothing in the [Penal Law] § 20.00 charge sets forth that which is required as to the `intent to cause death' element of intentional murder." Pet'r Mem. at 12 (Docket # 4). However, the accessory liability charge does not explain the substantive elements of any of the crimes with which Williams was charged; that typically is not the function of the accessory liability charge. During the intentional murder charge, the trial judge explained that "[a] person is guilty of Murder in the 2nd Degree when, with intent to cause the death of another person, he causes the death of such person." This is a correct statement of the law. As noted above, the trial judge's further description of "intent" in the intentional murder charge was not very lengthy and perhaps could have been clearer. However, it was not plainly incorrect unless one removes the phrase "defendant or defendants" from its context in the court's instruction concerning the time that the necessary intent must have arose. I can see that there might have been a greater probability of confusion if the timing portion of the charge (in which the offending phrase "defendant or defendants" appeared) was the only time that the trial court instructed the jury as to the intent requirement. In such a case, the jury might have understood the law to allow conviction of intentional murder based on proof that either Williams or one of the other defendants possessed the intent to cause death at the time Dukes was shot, which is insufficient to meet the standard of proof required by the Constitution. However, the trial judge informed the jury that it must find that Williams, "either in accessory or as in principal," shot the victim "with the intent to cause death." The court also explained that "a person intends to cause the death of another person when his conscious aim or objective is cause the death of that person." In addition, the court told the jury the context of its accessory liability instruction that it must find that Williams acted intentionally with regard to the elements of all of the charged crimes. Looking at the jury charge in its entirety, it instructed that jury that, in order to convict, it had to find that Williams himself possessed the requisite intent to commit all of the crimes charged. See, e.g., McDonald v. Smith, 2003 WL 22284131, at 4 (E.D.N.Y. Aug.21, 2003) (although the court's acting in concert charge "ma[de] it sound as though the jury only needs to find intent for either the petitioner or the co-defendant but not both," the court later said that "`an accessory or aider or abettor must share the intent of the principal actor before he may be liable for the crime. And you, as fact finders, must determine whether or not the defendant acted in concert as to each count of the indictment;'" the jury charge as a whole indicated that petitioner had to have the requisite intent"). Since the Appellate Division's holding was neither contrary 238 to, nor an unreasonable application of, clearly established federal precedent, habeas relief is not warranted. C. The Felony Murder Instruction Williams argues that the trial erroneously failed to include in the felony murder charge the following language requested by defense counsel: "[I]f the jury finds that the killing is an intentional act by a person other than [defendant] for purposes unrelated to the robbery, then it would not be a felony murder." T.672. The defense theory argued on summation was that after the robbery was over, Chislum chased down Dukes and killed him for reasons having nothing to do with the robbery. T.681-82. In his statement to the police Williams admitted that, at his uncle's (i.e., Chislum's) request, he got the "thing," meaning a shotgun that had been stashed in a garbage can behind the house. Williams claimed, however, that he did not become aware that Dukes had been killed until several days after the robbery. Williams indicated in his statement to the police that he did not know that anybody was going to get killed. On direct appeal, the Fourth Department held that the trial court was correct in denying defense counsel's request to charge and "properly charged that, in the context of this case, a person is guilty of felony murder when he commits the crime of first degree robbery and, `in the course of and in furtherance of such crime or of immediate flight therefrom, another participant causes the death of a person other than one of the participants.'" People v. Williams, 239 A.D.2d at 922, 659 N.Y.S.2d 597 (citing N.Y. Penal Law § 125.25(3)). Noting that the proof at trial established that the killing of Dukes occurred "in the course of and in furtherance of the robbery," the court found that the requested statement "neither countered that proof nor established the affirmative defense to felony murder." Id. (citing N.Y. Penal Law § 125.25(3)(c)). As the state court observed, felony murder is a strict liability offense, making the killer's subjective intent or motive irrelevant. See id. ("Because defendant's request to charge distorted the `course and furtherance' element and was not supported by a reasonable view of the evidence, the court properly denied it.").[2] In order to prevail on his contention that the trial court erred in refusing to give requested jury instructions, Williams must establish that his own proposed language "`accurately represented the law in every respect,'" and that the charge actually given, viewed as a whole, prejudiced him. United States v. Dove, 916 F.2d 41, 45 (2d Cir.1990) (quoting United States v. Ouimette, 798 F.2d 47, 49 (2d Cir.1986), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 134 (1988)); see 239 also United States v. Sabbeth, 125 F.Supp.2d 33, 38 (E.D.N.Y.2000) ("A party does not have a right to have a requested instruction included within the Court's charge, even if it dovetails with that party's theory of the case, unless it correctly states the law."); United States v. Kelly, 349 F.2d 720, 759 (2d Cir.1965) ("[I]t is not the function of the trial judge to put lengthy, confusing or inaccurate requests for instructions through a winnowing or sifting process in an endeavor to select what is good and reject what is bad. If a proffered request is in any respect incorrect, the denial of such a request is not error."). In the instant case, defense counsel's requested language did not accurately the reflect the law. I note that Williams mischaracterizes the New York state cases which he cites as authority for the proposition that when one of the participants in a felony other than the defendant kills someone for his own personal reasons unrelated to the felony, the defendant is not liable for murder. In People v. Elling, 289 N.Y. 419, 46 N.E.2d 501 (N.Y.1943), for example, the state court of appeals reversed the conviction as to defendant Bender where "[t]he unquestioned evidence [was] that the defendant Elling shot Skaritza for a reason personal to Elling and unrelated to the robbery and that the defendant Bender tried to prevent the act." Id. (emphasis supplied). In People v. Truesdell, 122 A.D.2d 444, 446, 504 N.Y.S.2d 835 (3d Dept.1986), which cited Elling, the appellate division upheld the conviction of felony murder where "the proof established that [the co-defendant] killed the Lynches, not for any private personal reason ..., but in furtherance of the robbery." Id. (emphasis supplied). Unlike the defendants in Elling and Truesdell, here the defense essentially offered nothing other than mere surmise that Chislum killed Dukes for some personal reason unrelated to the robbery. Defense counsel suggested in his summation several reasons as to why Chislum might have killed Dukes, but he conceded that "[t]here is really not much evidence on why [Chislum] did it." Despite the lack of proof, the defense nevertheless asserted that "it had nothing to do with the robbery." T.681-82. A careful review of Elling shows that it cannot be read as standing for the proposition that the fact that the killing may have been done for a reason personal to the defendant's co-felon, without more, entitles the defendant to escape liability for felony murder. The requested language ignores the possibility that a killing may be done for a reason unrelated to the underlying felony, yet still be committed "in the course of and in furtherance of" the felony. Thus, the instruction requested by Williams would have allowed the jury to circumvent the statutory intention of Penal Law § 125.25(3), which is to make all defendants who participate in a commonly planned felony liable for murders committed in the course and furtherance thereof, without regard to the intent of the actual killer. Because the requested charge did not accurately reflect the law "in every respect," see United States v. Dove, 916 F.2d at 45 (citations omitted), the trial court's refusal to charge did not run afoul of any federal due process principles.[3]240 Williams is not entitled to habeas relief on this claim. II. Harsh and excessive sentence As bases for leniency in his punishment, defense counsel urged the trial court to consider the fact that Chislum was the shooter; that Williams only was seventeen years-old; and that Williams's mother had a severe cocaine problem. Williams contends that in light of these factors the court should have imposed a sentence of less than the maximum twenty-five years to life. The Appellate Division refused to modify Williams's sentence, finding that it was "neither unduly harsh nor severe." People v. Williams, 239 A.D.2d at 922, 659 N.Y.S.2d 597. A petitioner's assertion that a sentencing judge abused his discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir.1977) (petitioner raised no cognizable federal claim by seeking to prove that state judge abused his sentencing discretion by disregarding psychiatric reports) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948)) ("The [petitioner's] sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of habeas corpus."). A challenge to the term of a sentence does not present a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992). Second degree murder under Penal Law § 125.25 is a class A-I felony. In this case, New York Penal Law § 70.00 establishes sentencing guidelines for those, like Williams, found guilty of class A-I felonies. Williams's sentence of 25 years 241 to life clearly was within the statutory limit. See New York Penal Law § 70.02(3)(a)(i) ("For a class A-I felony, such minimum period shall not be less than fifteen years nor more than twenty-five years[.]"). Accordingly, William's sentencing claim is not cognizable on habeas review. CONCLUSION For the reasons stated above, Larry Williams's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Williams has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253. IT IS SO ORDERED. NOTES [1] Citations to "T.___" refer to the trial transcript. [2] The statutory defense to felony murder is set forth in Penal Law § 125.25(3): When the defendant is not the only participant in the crime, "it is an affirmative defense that the defendant: (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon ...; and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon ...; and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." N.Y. Penal Law § 125.25(3). "Section 125.25(3) affords `an accomplice of a felon who kills an opportunity to "fight his way" out of a felony murder charge,' but New York courts have read this as affording a `narrow' exception." Davis v. Superintendent, Napanoch Corr. Facility, 1990 WL 160883, at 2 (S.D.N.Y. Oct.13, 1990) (quoting People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 375-77, 305 N.E.2d 461 (N.Y.1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109 (1974) (citation omitted)). [3] I note that People v. Blake, 44 A.D.2d 606, 353 N.Y.S.2d 528 (2d Dept.1974), the case upon which Williams's defense counsel primarily relied as authority for his proposed language, never was tested on appeal. Also, since it is an intermediate appellate court case, it is not binding New York precedent. Furthermore, it is factually inapposite. In Blake, the court noted that defendant initially requested and was granted a charge that "the jury should acquit of felony murder if it found that the actual killing was not done in furtherance of the alleged commonly planned robbery but rather in furtherance of [the co-felon's] own private purpose." People v. Blake, 44 A.D.2d at 606, 353 N.Y.S.2d 528. A four-fifths majority of the appellate division held that the trial court's refusal to reiterate this portion of its initial charge when the jury subsequently requested further instructions on the law constituted prejudicial error because, "[o]n the evidence presented, the jury was entitled to acquit defendant of felony murder if it believed the exculpatory portions of his statements." The defendant in Blake stated that although he and his co-felon jointly decided to steal the victim's purse, the co-felon grabbed the victim around the neck, dragged her down some steps into an alleyway while defendant remained on the street as a lookout; and that, when his cohort did not quickly return, defendant went down to investigate and was shocked to find that the victim had apparently been the subject of an attempted sexual attack and had been brutally beaten about the head with a rock. See id. Assuming for the sake of argument that Blake was correctly decided, Williams's self-serving statements that he "didn't know anybody was going to get killed" and that "if [he] knew that [he] wouldn't have gone along," see T.458, do not exculpate him from guilt for felony murder because intent is not a prerequisite of that offense. From Williams's own statement, the most reasonable view of the evidence is that the shooting was done in the course of and in furtherance of the robbery and that Williams watched Chislum shoot Dukes and did nothing to prevent it. Williams told the police that after they pushed Dukes off the porch, "Deke [i.e., Chislum] kept the gun on the dude.... I grabbed some money out of his left back pocket.... I gave Ant [not named in the indictment] one ten and [C]hunky [i.e., McCullough] one ten, and I kept the rest. When I stepped back, Gilla [i.e., Latson] and Ant was [sic] going through the dude's pants and one of them had pulled his pants down. All the while Deke kept the gun on the dude. Right around that time, Deke fired the gun and I started to run." T.457. Thus, contrary to defense counsel's assertion at trial, the robbery still was occurring at the time that Dukes was shot. Unlike the situation in Blake, there was no evidence at Williams's trial to counter the "course and furtherance" requirement, the key aspect of felony murder.	{ "pile_set_name": "FreeLaw" }
995 F.2d 948 ALPINE RIDGE GROUP, a partnership; Monroe Associates, alimited partnership; Brentwood, a limited partnership;Campbell Courts Associates, a partnership; Cheney GardensLimited Partnership, a limited partnership, et al.,Plaintiffs-Appellees,v.Henry G. CISNEROS,* in his official capacityas Secretary of the United States Department ofUrban Development; U.S. Department ofHousing and Urban Development,Defendants-Appellants.ACACIA VILLA; Alicia Park Apartments; Amerige Villa;Antelope Valley, et al., Plaintiffs-Appellees,v.Henry G. CISNEROS,* Sec. HUD; UnitedStates of America, Defendants-Appellants.ALPINE RIDGE GROUP, a partnership; Monroe Associates, alimited partnership; Brentwood, a limited partnership;Campbell Courts Associates, a partnership; Cheney GardensLimited Partnership, a limited partnership, et al.,Plaintiffs-Appellees,andBitterroot Manor, a limited partnership, et al.,Plaintiffs-Intervenors,v.Henry G. CISNEROS,* in his officialcapacity as Secretary of the United StatesDepartment of Urban Development; U.S.Department of Housing andUrban Development,Defendants-Appellants. Nos. 91-35573, 91-55354 and 91-35267. United States Court of Appeals,Ninth Circuit. June 25, 1993. Douglas Letter, Civil Div., Dept. of Justice, Washington, DC, for defendants-appellants. Warren J. Daheim, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, Tacoma, WA, Henry A. Hubschman, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, for plaintiffs-appellees. On Remand from the United States Supreme Court. Before WALLACE, Chief Judge, HUG, and RYMER, Circuit Judges. ORDER 1 The mandate of the United States Supreme Court certified on June 2, 1993, in Cisneros v. Alpine Ridge, --- U.S. ----, 113 S.Ct. 1898, 123 L.Ed.2d 572 reversed the judgment of this court. Therefore, we vacate our opinion at 955 F.2d 1382 (9th Cir.1992), reverse the district court, and remand to the district court for further proceedings which are consistent with the opinion of the Supreme Court. * Henry G. Cisneros is substituted for his predecessor, Jack Kemp, as Secretary of Department of Urban Development. Fed.R.App.P. 43(c)(1)	{ "pile_set_name": "FreeLaw" }
30 F.3d 1484 Bonnie & Co. Fashion, Inc., Boerer (Bonnie)v.Hertz, Herson & Company, Ron Grossman Hertz, Herson &Company, Grossman (Ronald, CPA) NO. 93-5678 United States Court of Appeals,Third Circuit. June 30, 1994 Appeal From: D.N.J., Sarokin, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
961 F.2d 151 Phillip LONG, David Wood, Plaintiffs-Appellees,v.John VAN de KAMP, Attorney General of the State ofCalifornia, Defendant-Appellant. No. 91-55834. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 4, 1992.Decided April 7, 1992. Robert David Breton, Deputy Atty. Gen., Los Angeles, Cal., for defendant-appellant. Phillip Long, in pro per. Appeal from the United States District Court for the Central District of California. Before: HUG and PREGERSON, Circuit Judges, and PECKHAM, Senior District Judge.* PER CURIAM: 1 The facts are stated in the district court's opinion which is reported at 772 F.Supp. 1141 (C.D.Cal.1991). The district court concluded that the Eleventh Amendment did not stand as a bar to its jurisdiction over this case. Id. at 1143. However, under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), there must be a connection between the official sued and enforcement of the allegedly unconstitutional statute, and there must be a threat of enforcement. We doubt that the general supervisory powers of the California Attorney General are sufficient to establish the connection with enforcement required by Ex parte Young. See Southern Pacific Transportation Co. v. Brown, 651 F.2d 613, 614 (9th Cir.1981) (as amended) (Oregon Attorney General's power to direct and advise, which was not binding on district attorneys who had independent duty to enforce state law, was not sufficiently connected with enforcement). Moreover, there is no threat that Cal.Vehicle Code § 2805(a) will be enforced by the Attorney General. Absent a real likelihood that the state official will employ his supervisory powers against plaintiffs' interests, the Eleventh Amendment bars federal court jurisdiction. 2 The lack of threatened enforcement by the Attorney General also means that the "case or controversy" requirement of Article III is not satisfied. The Attorney General has not in any way indicated that he intends to enforce section 2805(a). In addition, the searches of plaintiffs' premises were not the result of any action attributable or traceable to the Attorney General. Consequently, an injunction against the Attorney General will not forestall such future searches of plaintiffs' property because there is no indication that the Attorney General intends to pursue, or encourage local law enforcement agencies to pursue, such searches under section 2805(a). See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38-41, 96 S.Ct. 1917, 1924-26, 48 L.Ed.2d 450 (1976). 3 Accordingly, we vacate the district court's order and remand with instructions to dismiss this case. 4 We find Judge Wilson's well-reasoned examination of the Fourth Amendment issue persuasive, but given our resolution of the Eleventh Amendment issue we do not reach the Fourth Amendment issue. 5 VACATED and REMANDED. * Hon. Robert F. Peckham, Senior United States District Judge for the Northern District of California, sitting by designation	{ "pile_set_name": "FreeLaw" }

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